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 .
Response to Election/Restriction
Applicant’s election without traverse of Group I claims 1-20 in the reply filed on 12/19/25 is acknowledged. Claims 40-49 are new and constructed to incorporate the claimed subject matter of Group I. Claims 21-35 have been cancelled. Claims 36, 37, 38, 39, and 50 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Summary
This is the initial Office action based on application 18234421 filed 8/16/23.
Claims 36, 37, 38, 39, and 50 are non-elected and have been withdrawn from further consideration.
Claims 1-20 and 40-49 are pending and have been fully considered.
Information Disclosure Statement
IDS filed on 12/19/24, 10/1/24, 5/24/24, 4/1/24, 12/20/23, 11/20/23, 11/3/23, and 8/16/23 have been considered by the examiner and copies of the Form PTO/SB/08 are attached to the office action.
Drawings
The Drawings filed on 8/16/23 are acknowledged and accepted by the examiner.
Specification
The Specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant's cooperation is requested in correcting any errors of which applicant may become aware in the specification. MPEP § 608.01
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 44, 45 and all dependent claims are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The limitation “…determining another phase angle of the at least a portion of the asphalt binder; and in response to the another phase angle of the asphalt binder being less than the selected threshold phase angle…” in claims 44 and 45 have not been defined in the claims, wherein one of ordinary skill in the art could not gleam the scope of the invention, which renders the claim indefinite. The phrase as presented in the claims can represent an endless possibility of interpretation; consequently, there is not a standard for ascertaining the degree of interpretation, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Applicant is required to further bring clarification and/or correction to claims.
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 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 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 of this title, 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 nonobviousness.
Claims 1-20 and 40-49 are rejected under 35 U.S.C. 103 as being unpatentable over WILLIAMS ET AL. (US PG PUB 20210130616) in their entirety. Hereby referred to as WILLIAMS.
Regarding claims 1-20 and 40-49:
WILLIAMS teaches in the abstract an asphalt product. The asphalt product includes an asphalt binder and a bio-oil blend comprising a mixture of a non-hydrogenated bio-oil and a partially hydrogenated bio-oil, where the bio-oil blend is mixed with the asphalt binder to form an asphalt product having a shear stiffness of 0.20 kPa to 11,000 kPa at a temperature ranging from 25° C. to 85° C. and/or a viscosity of 0.15 Pa.s to 1.50 Pa.s at a temperature ranging from 120° C. to 165° C. The present invention further relates to methods of producing an asphalt product and methods of applying an asphalt product to a surface.
WILLIAMS teaches in para [0002] The present application relates to the rejuvenation of vacuum tower bottoms through use of bio-derived materials and methods of making and using the vacuum tower bottoms.
WILLIAMS teaches in para [0015] Another aspect relates to a method of applying an asphalt product to a surface. The method includes (a) providing an asphalt product, (b) heating the asphalt product to a temperature of 145° C. to 155° C. to coat the mineral aggregate and produce an asphalt material which has improved rheological properties compared to that of an asphalt material absent the bio-derived material; (c) applying the heated asphalt material to a surface to be paved to form an applied paving material; and (d) compacting the applied paving material.
WILLIAMS teaches in para [0017] Material evaluation included high temperature evaluation in a dynamic shear rheometer (“DSR”) as well as low temperature evaluation in a bending beam rheometer (“BBR”) on short term and long-term aged binders. A comprehensive experimental plan consisting of replicate samples was used for grading according to American Association of State Highway and Transportation Officials (“AASHTO”) test methods. Material evaluation included both high and low temperature properties in a dynamic shear rheometer and bending beam rheometer, respectively after the requisite short and long-term aging. A total of eighteen groups including the control VTB with performance grade (PG) 76-10 were used in the evaluation of the BDMs. VTBs blended with two BDMs achieved a PG 70-22 and a 64-22; both are commonly used grades in the United States. Using the binder performance results, statistical modeling was done to optimize formulations to achieve a PG 70-22 and a PG 64-22. The measured viscosity results were used in a cost-benefits analysis of the control VTB and rejuvenated VTB at PG 70-22 and PG 64-22, reductions in energy consumption, and greenhouse gas emissions (CO2, NOX, SOX, and CO) were seen.
[0018] Aging included both rolling thin film oven (“RTFO”) and pressure aging vessel (“PAV”) aging which simulate short and long-term aging of the asphalt, respectively. Mass loss of the binder was measured after RTFO testing. All binder testing followed AASHTO M320.
[0019] Material evaluation was performed at high and low in-service pavement temperatures using a dynamic shear rheometer (“DSR”) and bending beam rheometer (“BBR”), respectively. Prior to DSR testing, the VTB-BTM material is aged in a rolling thin film oven (“RTFO”) to simulate aging that occurs during construction. Similarly, prior to BBR testing, the VTB-BDM material undergoes long-term aging in a pressure-aging vessel to simulate material properties 7-10 years post-construct [0062] In the fast pyrolysis process, biomass is heated rapidly in a high temperature environment, yielding a mix of liquid fuel (bio-oil), combustible gases, and solid char. Pyrolysis is an independent conversion technology, as well as a part of the gasification process. Gasification can be separated into two main stages: 1) solid devolatilization (pyrolysis) and 2) char conversion (combustion and gasification).
[0065] In one embodiment of the present invention, bio-oil formulated as an asphalt binder can include asphalt. Suitable grades of asphalt include the following: PG52-22, PG58-22, PG64-22, PG67-22, PG70-22, PG76-22, PG82-22, PG52-28, PG58-28, PG64-28, PG67-28, PG70-28, PG76-28, PG52-34, PG58-34, PG64-34, PG64-16, PG67-16, PG70-16, PG76-16, PG64-10, PG67-10, PG70-10, PG76-10, pen grade 40-50, pen grade 60-70, pen grade 85-100, pen grade 120-150, AR4000, AR8000, AC10 grade, AC20 grade, and AC30 grade.
[0067] In one embodiment of the present invention, the binder is a vacuum tower distillation bottom or vacuum tower bottom. Such vacuum tower distillation and vacuum tower bottoms are known to those skilled in the art.
[0068] the asphalt product contains up to 99% by weight bio-oil blend. The asphalt may alternatively contain from about 3% to about 40% by weight bio-oil blend. In one embodiment, the asphalt binder may contain about 3%, up to about 40% by weight bio-oil blend. Bio-oil, when mixed with asphalt and heated to a temperature of from about 120° C. to about 170° C., polymerizes with the asphalt, as furfural and phenol compounds in the bio-oil chemically react and form a polymer in the asphalt binder. In one embodiment, the bio-oil blend comprises 0.1 to 10.0 wt. % of the asphalt product. In another embodiment, the bio-oil blend comprises 6.0 to 10.0 wt. % of the asphalt product.
[0085] For example, the asphalt binder, when combined with the bio-oil blend, may produce a shear stiffness of 0.20 kPa to 11,000 kPa at a temperature ranging from 25° C. to 85° C. For example, the shear stiffness at a temperature ranging from 25° C. to 85° C. may be up 0.20 kPa; between 0.20 kPa and 11,000 kPa; between 0.50 kPa and 11,000 kPa; between 1.00 kPa and 11,000 kPa; between 1.50 kPa and 11,000 kPa; between 2.00 kPa and 11,000 kPa; between 2.50 kPa and 11,000 kPa; between 3.00 kPa and 11,000 kPa; between 3.50 kPa and 11,000 kPa; between 4.00 kPa and 11,000 kPa; between 4.50 kPa and 11,000 kPa; between 5.00 kPa and 11,000 kPa; between 5.50 kPa and 11,000 kPa; between 6.00 kPa and 11,000 kPa; between 6.50 kPa and 11,000 kPa; between 7.00 kPa and 11,000 kPa; between 7.50 kPa and 11,000 kPa; between 8.00 kPa and 11,000 kPa; between 8.50 kPa and 11,000 kPa; between 9.00 kPa and 11,000 kPa; between 9.50 kPa and 11,000 kPa; between 10.00 kPa and 11,000 kPa; between 25.00 kPa and 11,000 kPa; between 50.00 kPa and 11,000 kPa; between 100.00 kPa and 11,000 kPa; between 200.00 kPa and 11,000 kPa; between 300.00 kPa and 11,000 kPa; between 400.00 kPa and 11,000 kPa; between 500.00 kPa and 11,000 kPa; between 1,000 kPa and 11,000 kPa; between 2,500 kPa and 11,000 kPa; between 5,000 kPa and 11,000 kPa; between 7,500 kPa and 11,000 kPa; and between 10,000 kPa and 11,000 kPa. The temperature may be, for example, 25° C.; between 25° C. and 85° C.; between 30° C. and 85° C.; between 35° C. and 85° C.; between 40° C. and 85° C.; between 45° C. and 85° C.; between 50° C. and 85° C.; between 55° C. and 85° C.; between 60° C. and 85° C.; between 65° C. and 85° C.; between 70° C. and 85° C.; between 75° C. and 85° C.; between 80° C. and 85° C.; and 85° C. For example, in one embodiment, the asphalt product has a shear stiffness of 0.20 kPa to 11,000 kPa at a temperature ranging from 25° C. to 85° C. and a viscosity of 0.15 Pa.s to 1.50 Pa.s at a temperature ranging from 120° C. to 165° C. In another embodiment, the asphalt product has a shear stiffness for an unaged binder ranging from 0.21 kPa to 7.45 kPa at a temperature ranging from 64° C. to 82° C. In yet another embodiment, the asphalt product has a shear stiffness for a short term aged binder ranging from 0.45 kPa to 23.25 kPa at a temperature ranging from 64° C. to 82° C. Alternatively, in another embodiment, the asphalt product may have a shear stiffness for a long term aged binder ranging from 659.04 kPa to 10,883.63 kPa at a temperature ranging from 31° C. to 40° C.
[0090] In another embodiment, the asphalt product is used in roofing shingles. For a roofing-grade asphalt product, roofing granules can be applied to a surface of a coated base material. The roofing granules can be used for ultraviolet radiation protection, coloration, impact resistance, fire resistance, another suitable purpose, or any combination thereof.
[0102] Another aspect of the present invention relates to a method of producing an asphalt product. The method includes providing an asphalt binder, where the binder is a vacuum tower distillation bottom; providing a bio-oil blend comprising a mixture of a non-hydrogenated bio-oil and a partially hydrogenated bio-oil. The asphalt binder is mixed with the bio-oil blend under conditions effective to produce an improved asphalt product having a shear stiffness of 0.20 kPa to 11,000 kPa at a temperature ranging from 25° C. to 85° C. and/or a viscosity of 0.15 Pa.s to 1.50 Pa.s at a temperature ranging from 120° C. to 165° C.
[0114] Measurements gained from DSR testing are a specimen's complex shear modulus (G*) or stiffness and phase angle (δ). The complex shear modulus (G*) or stiffness is a measure of a specimen's total resistance to deformation, while the phase angle (δ) is the lag between the applied shear stress and the resulting shear strain experienced by said specimen. As the phase angle nears 90 degrees the material is more viscous, but as the phase angle edges closer to 0 degrees the material acts more elastic. The parameters G* and δ when used together as G*/sin(δ) are used to predict whether an asphalt binder will experience rutting. For short-term aged binder, rutting is the main concern (American Association of State Highway and Transportation Officials, (AASHTO).
[0184] Both HBO and PHBO have specific gravities similar to asphalt binder. For binder preparation, the BDMs HBO and PHBO, as well as a commercial rejuvenator CM were shear blended with VTB at 155° C.±5° C. at 3000 rpm for one hour using a Silverson shear mill. After all blending combinations were created, unaged materials were tested in the DSR. Subsequently, the materials were then short term aged in a RTFO and material was reserved for DSR testing. Remaining RTFO aged material was aged in a pressure aging vessel (PAV)—long term aging for subsequent testing in a DSR.
From the teachings of the references it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date, as evidenced by the references, especially in the absence of evidence to the contrary.
In addition, it would have been obvious to one of ordinary skill in the art to modify the process by varying the claimed ranges; however, no patentable distinction is seen to exist between the reference and the claimed invention absent evidence to the contrary. Especially, 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, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Furthermore, the claimed changes in the sequence of performing steps is considered to be prima facie obvious because the time at which a particular step is performed is simply a matter of operator preference, especially since the same result is obtained regardless of when the step occurs. See Ex parte RUBIN, 128 USPQ 440 (Bd. App. 1959). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results). With regard to any differences in the claimed conversion amounts, the skilled artisan would have found it obvious to modify the process conditions in order to obtain the desired conversions. Moreover, it is well-established that merely selecting proportions and ranges is not patentable absent a showing of criticality. In re Becket, 33 USPQ 33 (CCPA 1937). In re Russel, 439 F.2d 1228, 169 USPQ 426 (CCPA 1971)
Still, a claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)
Additionally, “Expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim.” Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). Furthermore, “[i]nclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims.” In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)). In In re Young, a claim to a machine for making concrete beams included a limitation to the concrete reinforced members made by the machine as well as the structural elements of the machine itself. The court held that the inclusion of the article formed within the body of the claim did not, without more, make the claim patentable
In conclusion, an intended result of a process being claimed does not impart patentability to the claims when the general conditions of a claim are disclosed in the prior art. Furthermore, it has been held that obviousness is not rebutted by merely recognizing additional advantages or latent properties present in the prior art process and composition. Further, the fact that applicant 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. Ex parte Obiaya, 227 USPQ 58, 60 (Bd.Pat. App. & Inter. 1985).
Therefore, it would have been obvious to the person having ordinary skill in the art to have selected appropriate conditions, as guided by the prior art, in order to obtain the desired products. It is not seen where such selections would result in any new or unexpected results. Please see MPEP 2144.05, II: noting obviousness within prior art conditions or through routine experimentation
If it is the applicant's position that this would not be the case, evidence would need to be provided to support the applicant's position.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANTEL GRAHAM whose telephone number is (571)270-5563. The examiner can normally be reached on M-TH 9:00 am - 7:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Prem Singh can be reached on 571-272-6381. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHANTEL L GRAHAM/
Examiner, Art Unit 1771
/ELLEN M MCAVOY/Primary Examiner, Art Unit 1771