DETAILED ACTION
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 2-4 and 10 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.
Claim 2 recites “wherein the asphalt material has the penetration grade, a viscosity, a type, and a grade prepared in accordance with requirements from AASHTO, ASTM, or CNS”. It is unclear whether the claimed asphalt material is prepared in accordance with requirements from AASHTO, ASTM or CNS, or whether the claimed asphalt material has the penetration grade, a viscosity, a type, and a grade in accordance with requirements from AASHTO, ASTM, or CNS. Furthermore, claim 2 fails to set forth the claimed penetration grade, a viscosity, a type, and a grade, therefore, one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Please note, claim 4 is rendered indefinite as a result of its dependency on claim 2.
Claim 3 recites the limitation "the Marshall Method" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the IDEAL-CT test" in line 4. There is insufficient antecedent basis for this limitation in the claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 6 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 6 is dependent upon claim 1 and recites “wherein the second volume percentage is selected from one of 0.1%, 0.2%, 0.3%, 0.4%, 0.5%, 1.0%, 1.5%, 2.0%, 3.0%”, while claim 1 sets forth the range from 0.1% to 0.9%. Thus, claim 6 fails to further limit the subject matter of the claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 (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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3, 5-7 and 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Yuanxun et al. (Fatigue Property of basalt fiber-modified asphalt mixture under complicated environment, Journal of Wuhan University of Technology-Mater. Sci. Ed. 2014, pages 996-1004), hereinafter referred to as YUANXUN, in view of McDade et al. (US 20200048466 A1), hereinafter referred to as McDADE.
Regarding claim 1, YUANXUN teaches a basalt fiber reinforced asphalt concrete (see YUANXUN at Abstract: basalt fiber-reinforcing asphalt mixture), comprising:
an asphalt material with a penetration grade between 40-300 at room temperature, selected from one of asphalt mortar, an oil-soluble asphalt, an emulsified asphalt, and a modified asphalt (see YUANXUN at Table 1: asphalt AH-70, penetration at 25°C of 75);
an aggregate having a first volume percentage between 50-80% and a basalt fiber reinforcement with a second volume percentage between 0.1-0.9% (see YUANXUN at Tables 2: density of aggregate of 2.7 g/cm3, Table 3: Gradation type AC-131: selected gradation mass percent which passes 1.18 mm sieve: 32%; Table 4: basalt fiber 2.56-3.05 g/cm3; Table 8: opt. bitumen-aggregate ratio of 5.4% and density of asphalt mixture of 2.4 g/cm3). According to MPEP § 2111, the proper claim interpretation includes giving claims their broadest reasonable interpretation in light of the specification. Therefore, for the purpose of the claim interpretation, the Examiner treats the limitation “aggregate” according to the specification paragraphs [0030] and [0034] describing aggregate being fine sand and 3 mm and 6 mm stone, while mineral filler is set forth to be compliant with ASTM D242/D242M requirements, and thus including particles passing 1.18 mm sieve. Therefore, examiner treats 32% passing 1.18 mm sieve disclosed by YUANXUN (Table 3, Gradation type AC-131, selected gradation) as referring to a filler, and the rest as reading on limitation “aggregate” set forth in claim 1. Based on the asphalt mixture composition disclosed in Table 8, aggregate content was calculated around 64%. The volume percents of aggregate and basalt fiber were calculated based on the disclosed density of asphalt mixture (Table 8), density of aggregate (Table 2) and density of basalt fiber (Table 4); thus, YUANXUN teaches around 64% volume percent of aggregate and 0.3 vol.% of basalt fiber. 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. See MPEP §2144.05(I).
But YUANXUN fails to explicitly teach a composition comprising a chemical admixture for asphalt concrete used to adjust the properties of the basalt fiber reinforced asphalt concrete.
However, McDADE discloses methods for producing the asphalt concrete (see McDADE at paragraph [0005]). McDADE also discloses an asphalt concrete comprising aggregate, and a binder additive comprising base asphalt and at least one additive (see McDADE at paragraph [0007]). McDADE teaches that various additives can be used including chemical admixtures or agents configured to generate certain characteristics; additives can include emulsion agents, chemical accelerators, chemical retarders, plasticizers, pigments, etc. (see McDADE at paragraph [0031]).
Both, YUANXUN’s and McDADE’s disclosures describe asphalt concrete compositions comprising asphalt, aggregate and additives. According to MPEP § 2144.06(I), "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the asphalt mixture of YUANXUN by including the chemical admixture, e.g., chemical accelerators, chemical retarders, plasticizers, as disclosed by McDADE based on teachings of McDADE describing that various additives can be used to generate certain characteristics (see McDADE at paragraph [0031]).
The rationale for such modification would have been combining prior art elements according to known methods to yield predictable results. See MPEP §2143(I) (Exemplary rationale (A)).
Regarding claim 3, YUANXUN as modified by McDADE teaches the basalt fiber-reinforced asphalt concrete according to claim 1, wherein the first volume percentage is calculated according to one of the Marshall Methods, Hveem Method, Hubbard-Field Method, and Smith Triaxial Method (see YUANXUN at 2.2 Marshall test-determination of the optimum bitumen-aggregate ratio and the optimum dosage of basalt fiber, left column, paragraph 1, p. 998).
Regarding claim 5, YUANXUN as modified by McDADE teaches the basalt fiber-reinforced asphalt concrete according to claim 1, wherein the basalt fiber reinforced asphalt concrete is one of a dense-graded asphalt concrete (see YUANXUN at 2.2 Marshall test-determination of the optimum dosage of basalt fiber, paragraph 2, p. 998: the dense gradation asphalt mixture; two gradation types AC-16I and AC-13I were adopted in the tests).
Regarding claim 6, YUANXUN as modified by McDADE teaches the basalt fiber-reinforced asphalt concrete according to claim 1, wherein the second volume percentage is selected from one of 0.1%, 0.3%, 0.3% (see YUANXUN at Table 8: basalt fiber 0.30%).
Regarding claim 7, YUANXUN as modified by McDADE teaches the basalt fiber-reinforced asphalt concrete according to claim 1, wherein the chemical admixture for asphalt concrete is selected from a superplasticizer, an air-entraining agent, a water reducer, a rapid setting agent, a retarding agent, an early strength agent, a water-reducing retarding agent, a water-reducing early strength agent, a high-performance water reducer, a high-performance water-reducing retarding agent, a plasticizer, a plasticizing and retarding agent, a pigment, a corrosion inhibitor, a shrinkage reducer, a freeze-thaw resistant agent, a pumping aid, a flowability concrete admixture, a special purpose admixture, and a combination thereof (see rejection of claim 1 above and McDADE at paragraph [0031]: additives can include emulsion agents, chemical accelerators, chemical retarders, plasticizers, pigments, etc.), and the basalt fiber reinforcement comprises a basalt fiber (see YUANXUN at Abstract: basalt fiber), an unsaturated polyester, an epoxy, a vinyl resin, a filler, a curing agent, or a combination thereof.
Regarding claim 9, YUANXUN as modified by McDADE teaches the basalt fiber-reinforced asphalt concrete according to claim 1, wherein the basalt fiber reinforcement has a length in range between 1-12 mm (see YUANXUN at Table 4: basalt fiber length of 12 mm). YUANXUN teaches 12 mm which is within the claimed range.
Regarding claim 10, YUANXUN as modified by McDADE teaches the basalt fiber-reinforced asphalt concrete according to claim 1, wherein the basalt fiber-reinforced asphalt concrete has an indirect tensile strength greater than 433.8 kPa exhibiting superior toughness (see YUANXUN at Table 11: AC-131, tensile strength of 6.13 Mpa). YUANXUN teaches tensile strength which is which the claimed range. While YUANXUN as modified by McDADE is silent with respect to a maximum CTindex value being 4900 in the IDEAL-CT test, YUANXUN as modified by McDADE teaches all constituents of the asphalt mixture as set forth in claim 1.
Therefore, one of ordinary skill in the art would have anticipated the asphalt mixture of YUANXUN as modified by McDADE to necessarily comprise the claimed property such as a maximum CTindex value being 4900 in the IDEAL-CT test. See MPEP §2112.01(I): “where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best”.
Claims 2 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over YUANXUN in view of McDADE as applied to claim 1 above, and further in view of Bitumen AH-70 product specification retrieved from https://infinitygalaxy.org/product/bitumen-ah70/ on 12.19.2025.
Regarding claim 2, YUANXUN as modified by McDADE teaches the basalt fiber reinforced asphalt concrete according to claim 1, but is silent with respect to the asphalt material having a penetration grade, a viscosity, a type, and a grade prepared in accordance with requirements from AASHTO, ASTM, or CNS.
However, YUANXUN explicitly teaches that the type of asphalt used in the study was AH-70 (see YUANXUN at 2.1 Marshall test, first paragraph , p. 997) and discloses the major technical indices of AH-70 in Table 1. As evidenced from commercially available Bitumen AH-70 product specification, major technical indices such as penetration grade and viscosity are in accordance with ASTM standards (see Bitumen AH-70 product specification on pages 2-3). Since YUANXUN discloses utilization of AH-70 asphalt with measured major technical indices (see YUANXUN at Table 1) being identical to the specifications indicated in Bitumen AH-70 product specification, it would have been obvious to one of ordinary skill in the art that AH-70 asphalt of YUANXUN is prepared in accordance with requirements from ASTM. Moreover, one of ordinary skill in the art would have anticipated success when preparing an asphalt concrete according to the disclosure of YUANXUN utilizing AH-70 asphalt commercially available from any supplier including Infinity Galaxy in the absence of unexpected results.
Regarding claim 4, YUANXUN as modified by McDADE and Bitumen AH-70 product specification retrieved from https://infinitygalaxy.org/product/bitumen-ah70/, teaches the basalt reinforced asphalt concrete according to claim 2, wherein the penetration grade is 60/70, 60/80, 80/100 or 85/100, and the viscosity is AC10, AC20, AR-8000, C170, or C320 (see rejection of claim 2 above and Bitumen AH-70 product specification at pages 2-3: penetration of 60-80 and viscosity of >130 poises).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over YUANXUN in view of McDADE as applied to claim 1 above, and further in view of Radziszewski et al. (Properties of asphalt concrete with basalt-polymer fibers. Archives of Civil Engineering, 2018, Vol. LXIV, pages 197-209), hereafter referred to as RADZISZEWSKI.
Regarding claim 8, YUANXUN as modified by McDADE teaches the basalt fiber-reinforced asphalt concrete according to claim 1, but fails to explicitly teach wherein the basalt fiber reinforcement is produced by combining basalt fibers as the main material with polymer materials, and then performing an extrusion molding process.
However, RADZISZEWSKI discloses the results of laboratory tests of asphalt concrete, modified with innovative basalt-polymer fibers FRP, with improved technical properties and increased fatigue life (see RADZISZEWSKI at 1. Introduction, last paragraph, p. 198). RADZISZEWSKI also discloses properties of basalt-polymer FRP fibers including length of 12 mm (see RADZISZEWSKI at Table 1). RADZISZEWSKI teaches a composition comprising 5.1% of bitumen (see RADZISZEWSKI at 3. Materials and test methodology, 2nd paragraph, p. 201) and 0.3% fibers added to the asphalt concrete (see RADZISZEWSKI at 4. Test results and analysis, 2nd paragraph, p. 203). Please note, the statement “is produced by combining, and then performing an extrusion molding process” is not considered as further limiting structurally an asphalt concrete composition. According to MPEP §2113(I): "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)”. Thus, since the claim is drawn to the asphalt concrete composition, the recitation of a process steps for preparing basalt polymer fiber is considered not limiting.
Both YUANXUN’s and RADZISZEWSKI’s disclosures are from the same field of endeavor and describe basalt fiber reinforced asphalt concrete. Thus, one of ordinary skill in the art would have recognized the potential benefit of improving the asphalt mixture of YUANXUN by utilizing basalt-polymer fibers as disclosed by RADZISZEWSKI since RADZISZEWSKI explicitly teaches improved technical properties and increased fatigue life of asphalt concrete modified with innovative basalt-polymer fibers (see RADZISZEWSKI at 1. Introduction, last paragraph, p. 198).
Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the asphalt mixture of YUANXUN by utilizing basalt-polymer fibers as disclosed by RADZISZEWSKI in order to obtain asphalt concrete with improved technical properties and increased fatigue life.
Conclusion
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/A.A.K./Examiner, Art Unit 1731
/AMBER R ORLANDO/Supervisory Patent Examiner, Art Unit 1731