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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission has been entered.
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 1-11, 13-20, and 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over Alilovic (20040065396) in view of CN (106316727)
Regarding claims 1-20, 23, and 24, 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 (0064). The calcium nitrate may be from 0-20 % of the oxidizer (0056). 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 Chinese patent discloses the use of hydrogenated castor (ricin) oil from .5-5 % (0019). This percent meets the claimed range since the claim recites 5-20 % of the organic phase of which 50-88 % is the fuel and of that fuel there is 20-100 % of the hydrogenated oil. This calculates to be at a minimum amount of 50 % of the total organic phase is 5 % and 20 % of that fuel component is .5 %.
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.
Regarding claims 21 and 22, the prior art shows different amounts of the ingredients and thus will inherently result in using different amounts that changes the viscosity and stability.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive. Applicant’s arguments with regards to the fuel are moot in light of the new rejection above. 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 in 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 in the prior art to support applicant’s allegations that the emulsion is based only on ammonium nitrate. Applicant provides articles of other patents that only include ammonium nitrate. But 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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/AILEEN B FELTON/Primary Examiner, Art Unit 1734
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