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 .
Election/Restrictions
Applicant's election with traverse of Group I (claims 27-41) in the reply filed on 12/18/2025 is acknowledged. The traversal is on the ground(s) that search for the composition of Group I claims would also involve the method and block copolymer of Groups II and III. This is not found persuasive because Groups II and III contain claim limitations not recited in independent claim 27 (Group I), therefore multiple searches would need to be conducted for Groups II and III.
The requirement is still deemed proper and is therefore made FINAL.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or non-obviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 27-31 and 38-41are rejected under 35 U.S.C. 103 as being unpatentable over AVRAMIDS (U.S. Publication No. 2020/02995511, hereinafter AVRAMIDS).
Regarding claims 27-30, AVRAMIDS teaches asphalt composition is an asphalt emulsion comprising asphalt, a polymer, basic salt, and water [0005-0006]. The polymer can be a pure acrylic polymer (i.e., (meth(acrylate) and/or (meth)acrylic acid monomers), styrene-butadiene copolymer, a vinyl aromatic-acrylic copolymer [0028]. The polymer can include one or more additional monomers include sulfo-functional monomers (e.g., sulfopropyl acrylate, sulfopropyl methacylate, and etc.) [0030]. The polymer can include the one or more additional monomers in an amount of 0.5% to 10 wt% based on the weight of the polymer [0030]. The polymer in the asphalt composition can be a styrene-butadiene copolymer. Suitable commercially available styrene-butadiene copolymers can include BUTANOL®NX1118, BUTONAL® NX 1138, BUTONAL® NX 4190, and BUTONAL® NS 198, commercially available from BASF Corporation [0034].
However, AVRAMIDS does not have a preferred embodiment of b) a block-copolymer in an amount of from about 0.003% to 3% by weight based on the weight of the asphalt emulsion (claim 1) and wherein block-copolymer is present in an amount of from about 0.01% to 1% by weight based on the weight of the asphalt emulsion (claims 28-29), and wherein the block-copolymer is present in an amount of about 0.1% by weight based on the weight of the asphalt emulsion (claim 30).
Given AVRAMIDS teaches the asphalt emulsion comprises a polymer in an amount of from 0.05 wt% to 10 wt% based on the asphalt composition [0005-0006], it would have been obvious to one of ordinary skill in the art at the time the invention was made to select the portion of the prior art's range which is within the range of applicant's claims because it has been held to be obvious to select a value in a known range by optimization for the best results. As to optimization results, a patent will not be granted based upon the optimization of result effective variables when the optimization is obtained through routine experimentation unless there is a showing of unexpected results which properly rebuts the prima facie case of obviousness. See In re Boesch, 627 F.2d 272,276,205 USPQ 215,219 (CCPA 1980). See also In re Woodruff 919 F.2d 1575, 1578,16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990), and In re AIIer, 220 F.2d 454,456,105 USPQ 233,235 (CCPA 1955).
Regarding claim 31, AVRAMIDS teaches the asphalt emulsion comprises asphalt in the amount of from 50 wt% to 99.9 wt% (Abstract; [0005]).
Regarding claim 38, AVRAMIDS teaches the asphalt composition can be used as a tack coat [0072 and 0074].
Regarding claim 39, AVRAMIDS teaches the asphalt composition can be used as a fog seal [0076].
Regarding claim 40, AVRAMIDS teaches the asphalt composition can be used as a chip seal [0077].
Regarding claim 41, AVRAMIDS teaches the asphalt composition is a hot mix asphalt (Claim 16; [0066]).
Allowable Subject Matter
Claims 32-37 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. AVRAMIDS, the closest prior art of record, fails to teach the block copolymer comprises a polybutyl acrylate hydrophobic block and a sodium polystyrene sulfonate hydrophilic block.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEVE V HALL whose telephone number is (571)270-7738. The examiner can normally be reached M-F, 9 am-5 pm, EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Del Sole can be reached at (571) 272-1130. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DEVE V. HALL
Primary Examiner
Art Unit 1763
/DEVE V HALL/Primary Examiner, Art Unit 1763