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 .
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 (i.e., changing from AIA to pre-AIA ) 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.
Claim Objections
Claims 17-18 are objected to because of the following informalities:
In claim 17, applicants claim “wherein said depolymerized wax a A115 wax…”
In claim 18, applicants claim “wherein said depolymerized wax a A155 wax…”
The word “is” appears to be missing after “depolymerized wax”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
Claims 17-19 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.
Claims 17 and 18 contain the trademark/trade name A115, A120 and A125 of the Ceranovus line of waxes. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a particular polyolefin wax and, accordingly, the identification/description is indefinite.
As to claim 19, applicants claim a method of reducing the time required for asphalt oxidation; however, it is unclear as to how to determine whether the time required for oxidation was reduced, as there is no other time to make a comparison thereto.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim 20 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by WO 2017/136957.
WO ’957 exemplifies adding a wax, produced by depolymerization of post-consumer polyethylene, to 150/200 penetration asphalt, which as evidenced by Ferm, is suitable for paving asphalt (col. 3, ll. 46-47), in order to improve dimensional stability and thermal stability (Abstract and pp. 26-27).
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 1-4, 6-10, 14 and 15 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) and NIOSH (Asphalt Fume Exposures During the Application of Hot Asphalt to Roofs, CDC NIOSH, June 2003, 47 pages).
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 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 1-4, 6-7 and 15.
As to claims 8 and 14, 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 9 and 10, 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 19, Hoiberg teaches that the introduction of a small amount of
Claims 1, 3-8, 11, 12-13, 15, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2017/136957 in view of Tanaka (US 5,990,206), and further in view of Naikboo (US 2010-0227954) and Rotz (US 2014/0069297).
WO ’957 exemplifies adding a wax, produced by depolymerization of post-consumer polyethylene, to 150/200 penetration asphalt, which as evidenced by Ferm, is suitable for paving asphalt (col. 3, ll. 46-47), in order to improve dimensional stability and thermal stability (Abstract and pp. 26-27).
WO ‘957 teaches preparing the wax from a polymer feed which includes polyethylene polypropylene, and up to 20% of polystyrene, and undesirable additives such as fillers, dyes, metals, etc. (p. 2, [0052]).
WO ‘957 does not teach or suggest the inclusion of polyphosphoric acid, as claimed.
Tanaka teaches an asphalt modifier composition compring a rubber-base modifier, such as SBS, and a phosphorus compound, such as polyphosphoric acid, where the phosphorus compound acts as a crosslinking agent between the rubber-base modifier and the asphalt, teaching that the asphalt composition containing the phosphorus compound has high adhesion to an aggregate and good resistance to stripping from the aggregate, and increased dispersibility of the modifier in the asphalt.
Therefore, it would have been obvious to one of ordinary skill at the time the invention as filed to have added polyphosphoric acid with the SBS modifier of WO ‘957, as Tanaka teaches that the combination of modifiers allows for increased dispersibility of the modifier in the asphalt and high adhesion to the aggregate.
WO ‘957 in view of Tanaka is prima facie obvious over instant claims 1, 3-4 and 6.
As to claims 5 and 11, Rotz teaches typical additives for asphalt, the additives of which include flux oils, recycled ground tire, polyphosphoric acid and waxes, and Naiboo teaches suitable additives to include SEBS and CTO (a known extender). WO ‘957 teaches the inclusion of atactic polypropylene, styrene-butadiene-styrene, polyphosphoric acid as a crosslinking agent.
As to claim 8, WO ‘957 exemplifies the inclusion of 2 wt% wax.
As to claim 12, WO ‘957 teaches the wax as having a melting point of 115°C
As to claim 13, WO ‘957 exemplifies the addition of SBS to the wax (p. 7, [0131]-[0132]).
As to claim 16, WO ’957 teaches the SBS can be used with atactic polypropylene, which meets applicants’ second modifier.
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