DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Araos (WO2013013272) in view of Araos (WO2020085986) and Bluhm (3447978).
Regarding claims 1-3, Araos (272) discloses an emulsion explosive including hydrogen peroxide from 25-85 % (pg. 4, lines 26-34), emulsifier up to 5% (pg. 11, lines 1-20), oil from 5-30 % (pg. 8, lines 20-34), and nitrates such as ammonium (pg. 12, lines 1-15).
Araos (986) teaches the use of the claimed stabilizer (see claim 7) for a hydrogen peroxide emulsion explosive.
Bluhm teaches that cetyl alcohol is a known supplementary fuel that can be used in combination with emulsion explosives (col. 5, lines 20-25).
It would have been obvious to one having ordinary skill in the art at the time the invention was made and/or filed to use the stabilizer as taught by Araos (986) with the hydrogen peroxide explosive of Araos (272) since Araos (986) suggests that it works to stabilize hydrogen peroxide emulsion explosives. It is also obvious to use varying amounts of the nitrate material since it is disclosed as an oxidizer and one of skill would know to optimize the amount to achieve the desired oxidizing effect. It is also obvious to use cetyl alcohol in addition to the fuels disclosed by Araos (272) since both relate to emulsion explosive and since Araos (272) indicates that mixtures of known fuels can be used. Further, Bluhm teaches that cetyl alcohol is a known supplemental fuel for emulsion explosive. It is obvious to use varying amount of the supplementary fuel to optimize the performance of the explosive since Bluhm identifies the compound as contributing to the reduction properties of the explosive (i.e. fuel) and it is well-settled that optimizing a result effective variable is well within the expected ability of a person of ordinary skill in the subject art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980), In re Aller, 220 F.2d 454, 105 USPQ 233 (CCPA 1955). The oil thickener wil inherently inhiobit self-gassing since the same chemical is being used. The effect of increasing energy and inhibition of self-gassing by the DTPMPA is also inherent since the prior art discloses DTPMPA. As to limitations which are considered to be inherent in a reference, note the case law of In re Ludke, 169 USPQ 563; In re Swinehart, 169 USPQ 226, In re Fitzgerald, 205 USPQ 594; In re Best et al, 195 USPQ 430; and In re Brown, 173 USPQ 685, 688.
Regarding claim 5, Araos (272) discloses the use of microballoons and gas bubbles (pg. 5, lines 1-15).
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive.
The prior art discloses the same claimed ingredients. Applicant has claimed what the chemicals do in the mixture. Since the prior art has the same chemicals, they will have the same functions. Applicant cannot remove the function from the chemical just because another function is identified.
In response to applicant's argument that there is a different reason for using the claimed compounds, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Applicant suggests that the self-gassing provides additional benefits but note that the prior art teaches the addition of the stabilizer as a stabilizer for a similar emulsion explosive. Thus, it is obvious to combine the two references.
Applicant argues that the reference fail to identify the problem addressed by the applicant. Note that the prior art discloses the same ingredients and provides a motivation to combine them. It does need to have the same described benefits as identified by the Applicant. Those benefits will be present because the same ingredients with amounts are used. There is no requirement that the prior art identify the benefits alleged by Applicant.
In response to applicant's argument that the secondary reference, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). The combination relates to the disclosure of a stabilizer and is not directed towards to thickener.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AILEEN BAKER FELTON whose telephone number is (571)272-6875. The examiner can normally be reached Monday 9-5:30, Thursday 11-3, Friday 9-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jonathan Johnson can be reached at 571-272-1177. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AILEEN B FELTON/Primary Examiner, Art Unit 1734
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