DETAILED ACTION
This office action follows a reply filed on March 30, 2026. Claim 19 has been amended. Claims 19 and 21-39 are currently pending and under examination.
The texts of those sections of Title 35 U.S. Code are not included in this section and can be found in a prior Office action.
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 § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 36 and 39 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
In claim 36, applicants claim that the addition of the depolymerized wax increases the softening point of the paving asphalt by at least 10%.
This includes a range with a minimum of 10% and no maximum percentage. Applicants do not have basis for this range of increase in the softening point. Applicants generally disclose that the wax increases the softening point, and provide two examples where the softening point is increased by 10%, 12% and 18%; however, this is not representative of the claimed range, which requires any amount equal to or greater than a 10% increase.
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.
Claim 39 is 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.
In claim 39, applicants claim that the wax will allow for GTR to be used “without negatively affecting said pavement asphalt formulation”.
It is unclear as to what “negative affects” the applicants are claiming. This limitation is broad and indefinite.
Claim Rejections - 35 USC § 103
Claims 19, 21-27, 29-30, 35-37 are rejected under 35 U.S.C. 103 as being unpatentable over Trumbore (US 7,951,239) in view of Kumar (US 2012/0016169) and further in view of Martin (US 2011/0160356), as evidenced by Streiff (US 2019/0119191), NIOSH (Asphalt Fume Exposures During the Application of Hot Asphalt to Roofs, CDC NIOSH, June 2003, 47 pages), and Palmer (US 2017/0137717).
Trumbore teaches a coating asphalt comprising a non-coating grade asphalt, which includes paving grade asphalts, a catalyst, specifically listed to include polyphosphoric acid, and a wax (col. 4). Trumbore teaches a non-coating grade asphalt feedstock is partially blown, and then a wax is added to the partially blown asphalt to further raise its softening point to one that is within the target softening point range to produce coating asphalt (Abstract), specifically teaching that the method produces a coating asphalt having the desired properties without the necessity of a complete blowing process (col. 7, ll. 16-21), further teaching that the partial blowing process may significantly redcuce blow time compared to a complete blowing process (col. 8, ll. 40-46).
Trumbore teaches that any type of wax can be used, where Fischer-Tropsch wax are most effective for use with certain types of non-roofing asphalts (col. 7, ll. 53-57), but does not teach or suggest the wax as a depolymerized wax, as claimed.
Kumar teaches a process of depolymerization of mixed polyethylene waste, which can include up to 10% of polystyrene and polypropylene impurities, and further teaches the separation of any pigment particles/impurities therefrom, inherently suggesting the waste as comprising pigment particles and impurities before depolymerization. Kumar teaches the depolymerization as being carried out using a [Fe-Cu-Mo-P]Al2O3 catalyst. Kumar teaches that the wax obtained by catalytic depolymerization has similar properties to a commercially available Fischer-Tropsch wax.
Streiff teaches that the depolymerization of plastic wastes to form a wax is suitable for use in asphalt coatings (p. 14, [0162]).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to have prepared the asphalt of Trumbore using the depolymerized waste wax of Kumar, as Trumbore does not particularly limit the type of wax that can be used in the composition, Trumbore prefers Fischer-Tropsch wax, and Kumar teaches the formed wax as similar properties thereto, where Streiff provides evidence that waxes prepared from depolymerized wax are suitable for use in asphalt coatings.
Trumbore does not teach or suggest the inclusion of a first modifier, or ground tire rubber, as claimed.
Martin teaches adding GTR with phosphoric acid during blowing leads to an increase in the softening point while improving the storage stability and performance grade of the asphalt (p. 2, [0025]).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to have added GTR during the acid blowing of Trumbore, as Martin teaches that this method leads to an increase in the softening point of the asphalt, while improving storage stability.
Trumbore in view of Kumar and further in view of Martin is prima facie obvious over instant claims 19, 21-25 and 35.
As to claims 26-27, Trumbore teaches the addition of 0.5-8 wt% wax (col. 8, ll. 1-5), exemplifying an amount of 3 wt%. This range overlaps with the claimed ranges of 0.5-3 wt% in claim 8 and 5-15 wt% in claim 14, and it has been held that overlapping ranges are sufficient to establish prima facie obviousness. See MPEP 2144.05.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have selected from the overlapping portion of the range taught by the reference because overlapping ranges have been held to establish prima facie obviousness.
As to claims 29-30, Trumbore teaches that the method is suitable for producing a built up roofing asphalt, which meet the specifications of ASTMD312 (col. 12, ll. 25-29). Mopping asphalt and saturant-grade asphalt (AC 20) are known asphalts used in the BURA, as evidenced by NIOSH (pp. 2-3).
As to claim 34, Trumbore teaches the asphalt as being made by blending vacuum tower residua with residua from solvent deasphalting units, where the vacuum tower resida meet applicants’ extender, as evidenced by Palmer (p. 1, [0007]).
As to claims 36-37, Trumbore teaches that the wax increases the softening point of the asphalt from 78°C to 97°C and reduces the penetration depth from 22 dmm to 16 dmm.
Claims 31-33 and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Trumbore (US 7,951,239) in view of Kumar (US 2012/0016169) and further in view of Martin (US 2011/0160356), as applied above to claims 19, 21-27, 29-30, 34-37, and further in view of Falkiewicz (US 2008/0119591), as evidenced by Tanaka (US 5,990,206).
Trumbore in view of Kumar and further in view of Martin is prima facie obvious over instant claims 19, 21-27, 29-30, 34-37, as described above and applied herein as such, as Trumbore teaches adding a method of partially blowing an asphalt composition comprising polyphosphoric acid, followed by the addition of a wax, such as a Fischer-Tropsch wax, where Kumar teaches a wax obtained by catalytic depolymerization as having similar properties to a commercially available Fischer-Tropsch wax, and Martin teaches that the addition of GTR with phosphoric acid during blowing leads to an increase in the softening point while improving the storage stability and performance grade of the asphalt.
Trumbore does not teach or suggest the inclusion of SBS, SEBS or crosslinking agent, as claimed.
Falkiewicz teaches air-blown roofing asphalt modified with polyphosphoric acid, similar to Trumbore, teaching that polymer modifiers can be added, where APP (atactic polypropylene) and SBS are the most popular modifiers and provide different flexibility and strength characteristics to asphalt (p. 4, [0041]).
Naiboo teaches asphalt compositions comprising asphalt, suitable additives to include SEBS and CTO (a known extender), where CTO acts as a dispersing agent for the polymer for the wax, and SEBS is a functional equivalent of SBS.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to have added SBS, SEBS and/or APP as polymeric modifiers in the blown asphalt of Trumbore, as Falkiewicz teaches that these are popular modifiers which provide different flexibility and strength characteristics to asphalt. Adding CTO as an asphalt extender to disperse the wax in view of Naiboo is prima facie obvious. These are all known additives used in the art of blown asphalt.
Polyphosphoric acid acts as a crosslinking agent between the rubber-base modifier and the asphalt, as evidenced by Tanaka.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIEANN R JOHNSTON whose telephone number is (571)270-7344. The examiner can normally be reached Monday-Friday, 8:00 AM - 4:00 PM EST.
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/Brieann R Johnston/ Primary Examiner, Art Unit 1766
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