DETAILED ACTION
Response to Amendment
In response to the amendment received on 09/27/2025:
claims 1-35 are currently pending
claims 12-35 are withdrawn from further consideration
claims 1-11 are amended
112b rejection is withdrawn in light of the amendment to the claims
new grounds of rejection applying Rygersberg, Bailey and Lucik are presented herein
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The text of those sections of Title 35 U.S. Code not included in this action can be found in a prior Office Action.
Claims 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Rygersberg et al. (CA 2190538 A1), hereinafter referred to as RYGERSBERG, in view of Bailey et al. (US Pub. No.: 20110233105 A1), hereinafter referred to as BAILEY.
Regarding claim 1, RYGERSBERG teaches a mixture for producing paving blocks (see RYGERSBERG at lines 23-25, p. 2: the modified shingle waste product is mixed with recycled asphalt and/or sand to make a shingle/asphalt/sand mix useful as an ingredient in the manufacturing of paving compositions) comprising recycled asphalt pavement particles in an amount of 20 to 80 percent of the mixture by weight (see RYGERSBERG at lines 10-11 p. 19: 0-50% by weight of minus 1 inch particles of recycled asphalt pavement), and recycled asphalt shingle particles (see RYGERSBERG at lines 19, p. 1: asphaltic roofing shingles; and lines 13-14, p. 2: the shingle waste is reduced to approximately minus ¼ inches in particle size). RYGERSBERG teaches a range which overlaps with the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim. See MPEP §2144.05(I).
It is noted that the limitation “for producing paving blocks” is a statement of intended use and is not considered as further limiting structurally a mixture. Moreover, RYGERSBERG teaches novel recyclable asphalt material and their use as ingredients in asphalt paving compositions (see RYGERSBERG at lines 9-10, p. 1). Therefore, the mix of RYGERSBERG is treated as capable of being used for forming paving blocks.
While RYGERSBERG is silent with respect to the mixture being between a temperature of 200 degrees F to 425 degrees F, RYGERSBERG teaches the modified shingle waste product mixed with recycled asphalt and/or sand to make shingle/asphalt/sand mix useful as an ingredient in the manufacture of hot mix paving compositions (see RYGERSBERG at lines 23-25, p. 2), which indicates heating the shingle/asphalt/sand mix to form paving compositions.
Furthermore, BAILEY discloses storage stable asphalt paving pellets that can be stored until they are needed for the preparation of asphalt paving material (see BAILEY at Abstract). BAILEY teaches that the pellet core may include recycled asphalt shingle material, recycled asphalt pavement and an asphalt binder material (see BAILEY at paragraph [0010]). BAILEY also discloses the practice of "pre-reacting" the asphalt in the asphalt shingle material, which allows recycled shingle material to be effectively incorporated into warm mix asphalt compositions; warm mix asphalt calls for temperatures of less than 285 degrees F (see BAILEY at paragraph [0042]). Additionally, BAILEY discloses that the asphalt in recycled shingle material has a melt point of 350 degrees F (see BAILEY at paragraph [0042]).
One of ordinary skill in the art would have recognized the potential benefit of shingle/asphalt mix of RYGERSBERG being at temperature of less than 285 degrees as disclosed by BAILEY based on the teachings of RYGERSBERG describing the modified shingle waste product mixed with recycled asphalt and/or sand to make shingle/asphalt/sand mix useful as an ingredient in the manufacture of hot mix paving compositions (see RYGERSBERG at lines 23-25, p. 2). Moreover, one of ordinary skill in the art would have been motivated to pre-react mixture of RYGERSBERG at temperature of less than 285 degrees F as disclosed by BAILEY since BAILEY explicitly teaches that the practice of "pre-reacting" the asphalt in the asphalt shingle material allows recycled shingle material to be effectively incorporated into warm mix asphalt compositions (see BAILEY at paragraph [0042]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the mixture of RYGERSBERG to pre-react at temperature of less than 285 degrees F as disclosed by BAILEY in order to effectively incorporate the recycled material into mix asphalt compositions.
Regarding 2, RYGERSBERG as modified by BAILEY teaches the mixture for producing paving products as in claim 1, wherein the amount of recycled asphalt shingle particles is from 5 to 80 percent of the mixture by weight (see RYGERSBERG at lines 9-10 p. 19: a shingle/asphalt/sand mix comprising a percent amount by weight in the range of 50-85% of modified shingle waste). RYGERSBERG teaches a range which overlaps with the claimed range.
Regarding claim 3, RYGERSBERG as modified by BAILEY teaches the mixture for producing paving products as in claim 1, but fails to explicitly teach wherein the amount of recycled asphalt shingles particles is from 10 to 40 percent of the mixture by weight.
However, BAILEY discloses storage stable asphalt paving pellets that can be stored until they are needed for the preparation of asphalt paving material (see BAILEY at Abstract). BAILEY teaches that the pellet core may include recycled asphalt shingle material, recycled asphalt pavement and an asphalt binder material (see BAILEY at paragraph [0010]). BAILEY also teaches that the core may include recycled asphalt shingles material in an amount ranging from about 10 wt % to about 50 wt % (see BAILEY at paragraph [0011]).
Both RYGERSBERG’s and BAILEY’s disclosures are from the same field of endeavor and describe compositions used to prepare asphalt paving materials and comprising recycled asphalt pavement and recycled asphalt shingle material (see RYGERSBERG at lines 23-25, p. 2, and BAILEY at Abstract). According to MPEP § 2144.06(I), "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the composition of RYGERSBERG by adjusting amount of recycled asphalt shingles to be in the range of 10 wt% to 50 wt% as disclosed by BAILEY (see BAILEY at paragraph [0010]). The rationale for such modification would have been combining prior art elements according to known methods to yield predictable results. See MPEP §2143(I) (Exemplary rationale (A)).
Regarding claim 4, RYGERSBERG as modified by BAILEY teaches the mixture for producing paving products as in claim 1, further comprising a rock-like material and is not recycled asphalt pavement (see RYGERSBERG at lines 9-10 p. 19: a shingle/asphalt/sand mix comprising sand).
Regarding claim 5, RYGERSBERG as modified by BAILEY teaches the mixture for producing paving products as in claim 4, wherein an amount of the rock-like material that is not recycled asphalt pavement is from 10 to 50 percent of the mixture by weight (see RYGERSBERG at lines 9-10 p. 19: a shingle/asphalt/sand mix comprising a percentage amount by weight in the range of 0-50% of sand). RYGERSBERG teaches a range which overlaps with the claimed range.
Regarding claim 6, RYGERSBERG as modified by BAILEY teaches the mixture for producing paving products as in claim 4, wherein the rock-like material that is not recycled asphalt pavement is selected from a group consisting of virgin rock, sand (see RYGERSBERG at lines 9-10 p. 19: a shingle/asphalt/sand mix comprising sand).
Claims 7-11 are rejected under 35 U.S.C. 103 as being unpatentable over RYGERSBERG in view of BAILEY as applied to claim 4 above, and further in view of Lucik et al. (US 4284366 A), hereinafter referred to as LUCIK.
Regarding claim 7, RYGERSBERG as modified by BAILEY teaches the mixture for producing paving blocks as in claim 4. Furthermore, BAILEY teaches that the asphalt pellets can be prepared to include fines (which reads on limitation “hard surfacing material”); any materials can be used to prepare the asphalt fines, e.g., metals, metal alloys; and that fines can be used a filler in the asphalt compositions and asphalt pavement (see BAILEY at paragraph [0085]). BAILEY discloses that fillers are added to asphalt to improve the density and strength of the mixture (see BAILEY at paragraph [0005]). BAILEY also teaches that fines are rock and/or mineral fines that can be obtained from any type of rock (see BAILEY at paragraph [0087]), and that fines can be included in an amount from about 6 to about 20% by weight (see BAILEY at paragraph [0088]).
One of ordinary skill in the art would have recognized the potential benefit of improving the composition of RYGERSBERG by including filler as disclosed by BAILEY since BAILEY explicitly teaches that fillers are added to asphalt to improve the density and strength of the mixture (see BAILEY at paragraph [0005]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of RYGERSBERG by including filler disclosed by BAILEY in order to improve the density and strength of the mixture.
But RYGERSBERG as modified by BAILEY fails to explicitly teach a hard surfacing material that is on one side of the paving blocks when loaded first into a preform press mold that subsequently receives the recycled asphalt pavement particles and the recycled asphalt shingle particles.
However, LUCIK discloses a molded paving unit formed as a composite of resilient base material and a friction material aggregate (see LUCIK at Col. 2, lines 3-5). LUCIK teaches that in a final molded condition, the particles of the aggregate are disposed in the base material throughout the thickness of the paving unit while being advantageously exposed at a wear surface of the unit; the paving unit is produced by molding its wear surface in contact with a compliant mold wall; this compliant wall has been found to effectively exclude binder material from interfacial areas between the wall and aggregate faces immediately adjacent the wall (see LUCIK at Col. 2, lines 5-14). LUCIK also teaches that such textured surface advantageously contributes to the overall friction coefficient of the ware face (se LUCIK at Col. 2, lines 36-37). Additionally, LUCIK discloses that a paving unit is especially suited for applications subjected to adverse environmental and service conditions, such as bridge decks, and other pavement areas that warrant a premium paving surface (see LUCIK at Col. 2, lines 38-42). LUCIK teaches that alternate layers of friction aggregate 11 and elastomeric binder material 12 are manually or automatically laid into the cavity 16 with the layer in contact with the compliant wall 23 preferably being a layer of aggregate (see LUCIK at Fig. 3 and Col. 4, lines 14-18).
One of ordinary skill in the art would have recognized the potential benefit of modifying the mixture of RYGERSBERG by including a hard surfacing material disclosed by BAILEY since BAILEY explicitly teaches that fillers are added to asphalt to improve the density and strength of the mixture (see BAILEY at paragraph [0005]). Moreover, when forming paving blocks, one of ordinary skill in the art would have been motivated to utilize the manufacturing method of LUCIK including alternating layers of friction aggregate and binder material laid into the mold cavity with the layer in contact with the compliant wall preferably being a layer of aggregate, since LUCIK explicitly teaches a paving unit manufactured in accordance with the disclosed method warrants a premium paving surface (see LUCIK at Col. 2, lines 38-42).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the mixture of RYGERSBERG by including a hard surfacing material disclosed by BAILEY in order to improve the strength of the mixture, and by utilizing the manufacturing method of LUCIK including alternating layers of friction aggregate and binder material laid into the mold cavity with the layer in contact with the compliant wall preferably being a layer of aggregate, when manufacturing paving block, in order to warrant a premium paving surface.
Regarding claim 8, RYGERSBERG as modified by BAILEY and LUCIK teaches the mixture for producing paving products as in claim 7, wherein an amount of the hard surfacing material is from 2 to 15 percent of the mixture by weight (see rejection of claim 7 above and BAILEY at paragraph [0088]: from about 6 to about 20% by weight). BAILEY teaches range which overlaps with the claimed range.
Regarding claim 9, RYGERSBERG as modified by BAILEY and LUCIK teaches the mixture for producing paving products as in claim 7, wherein the hard surfacing material is selected from a group consisting of rocks, pieces of metal, synthetic rocks, or a mix thereof (see BAILEY at paragraph [0086]: rock and/or mineral fines that can be obtained from any type of rock).
Regarding claim 10, RYGERSBERG as modified by BAILEY and LUCIK teaches the mixture for producing paving products as in claim 7, containing at least 20 percent by weight of the recycled asphalt shingle particles (see RYGERSBERG at lines 10-11 p. 19: 0-50% by weight of minus 1 inch particles of recycled asphalt pavement), at least 25 percent by weight of the recycled asphalt pavement particles (see RYGERSBERG at lines 9-10 p. 19: a shingle/asphalt/sand mix comprising a percent amount by weight in the range of 50-85% of modified shingle waste), at least 15 percent by weight of the rock-like material that is not recycled asphalt pavement (see RYGERSBERG at lines 9-10 p. 19: a shingle/asphalt/sand mix comprising a percentage amount by weight in the range of 0-50% of sand), and at least 2 percent by weight of the hard surfacing material (see rejection of claim 7 above and BAILEY at paragraph [0088]: from about 6 to about 20% by weight). RYSERSBERG and BAILEY teach ranges which overlap with the claimed ranges.
Regarding claim 11, RYGERSBERG as modified by BAILEY and LUCIK teaches the mixture for producing paving products as in claim 7, wherein none of the recycled asphalt pavement particles or the recycled asphalt shingle particles or the rock-like material that is not recycled asphalt pavement is larger than 1 inch (see RYGERSBERG at lines 13-14, p. 2: the shingle waste is reduced to approximately minus ¼ inches in particle size), and none of the hard surfacing material larger than 3/8 of an inch (see rejection of claim 7 above and BAILEY at paragraph [0222]: the term “fines” (fillers) is meant to refer to the small particulate nature of the powders of less than 8 mesh).
Response to Arguments
Applicant’s arguments with respect to claim 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In response to Applicant’s argument that “the pellets in Bailey must be utilized with liquid asphalt so that it "can at least partially melt the asphalt pellets 304 and form a bonding layer 307" (see Bailey; para. 0200), one skilled in the art would appreciate that the mixture used in the pellets of Bailey would not be applicable for use in a mixture used to produce a paving block; in part because the presently claimed mixture does not require the use of "liquid asphalt" to form any type of bonding layer” (see Remarks received on 09/11/2025 on page 10), it is noted that claim 1 recites “ a mixture for producing paving blocks comprising”. According to MPEP §2111.03(I): “The transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004)”. Thus, claim 1 as set forth does not exclude additional constituents of the claimed mixture such as liquid asphalt.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/A.A.K./Examiner, Art Unit 1731
/ANTHONY J GREEN/Primary Examiner, Art Unit 1731