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 § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-19 and 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Alilovic (20040065396).
Regarding claims 1-19 and 21, Alilovic discloses an emulsion explosive that includes a discontinuous oxidizer phase from 80-95 % of the total composition and includes ammonium nitrate and calcium nitrate or sodium nitrate (0064). The calcium nitrate may be from 0-20 % of the oxidizer (0056). Para. 0034 and 0060 discloses that there are ammonium ions in the oxidizer solution as is claimed. The continuous or fuel phase can be from 2-10 % of the total composition (0064) and includes oil such as diesel, corn, soybean and the like (0054) and emulsifier from .5-3 % of the total composition. Water is included from around 10-16 % (see table 1). The viscosity will be inherent to the composition since the same ingredients with amounts are used. 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 the term “renewable”, the oils disclosed are inherently renewable. Further, the term “renewable” is a method limitation since it does not describe the compound itself but rather how it is obtained.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive. Applicant argues that the prior art does not disclose the nitrate dissolved in the aqueous, this is not accurate. Para. 0034 and 0060 discloses that there are ammonium ions in the oxidizer solution as is claimed. Applicant argues that the SVO is not used when the ammonium is dissolved in the oxidizer solution but there is simply no evidence of this. See MPEP 2123 which recites: The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments.
Applicant argues that the prior art does not disclose calcium nitrate with ammonium nitrate. This is not the case since the prior art reference clearly discloses the use of 0 to 20% calcium nitrate to replace a portion of the ammonium nitrate oxidizer (0056). Further with respect to claim two applicant recites the percentages based on the oxidizer alone. The percentages and the prior art are based on the entire composition. When calculated based on just the oxidizer portion of the composition, the prior art meets the limitations of claim two. Applicant argues that the SVO is not disclosed but again the prior art recites that corn or soybean oil may be used as the oil. There is nothing prior to support applicant’s allegations that the composition only contains ammonium nitrate. Applicant provides articles of other patents that only include ammonium nitrate. The prior art that has been applied in this case clearly recites that calcium nitrate is used to replace a portion of the ammonium nitrate. Since the prior art recites that corn oil or soybean oil can be the oil that is present in the emulsion, the amounts recited as 2 to 10% would be the amount of those oils included in the composition. As outlined above the prior art does include the same ingredients as that which is claimed. Thus the properties would be inherent as indicated above. Applicant also argues that there are unexpected results based on the addition of calcium nitrate. Clearly the prior art discloses the calcium nitrate to be used. 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).
Conclusion
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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