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 Objections
Claim 7 is objected to because of the following informalities: claim 7 refers to performing step d. However, the language referred to in step d still claims the step of testing the composition being optional in its content. Appropriate correction is required.
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 2-3 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 2-3 require specific ordinates for phase angle δ. However, angles may be described in both degrees and radians and since neither unit is specifically claimed the claims are indefinite. Though frequency is referred to in radians per second, the values 27 and 70 suggest degrees. Appropriate action is required.
Claim Rejections - 35 USC § 102
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 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.
Claim(s) 1, 4, 5 and 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Non-Patent Literature titled, “Binder Characterization and Evaluation Volume 3: Physical Characterization” (herein Anderson).
Regarding claim 1, Anderson teaches A method of determining a suitability of a composition for sealing cracks and joints in pavement surfaces, the method comprising deriving a rheological profile of the composition over a stiffness range of from at least as low as 10,000 Pa to at least as high as 100,000,000 Pa (dynamic modulus varies from approximately 10 MPa to 1kPa), and the rheological profile of the composition being derived by a process comprising steps of:
testing the composition in a Dynamic Shear Rheometer (dynamic shear rheometer, p. 58) at a plurality of selected DSR test frequencies, in a range of from 0.01 radians/second to 10 radians/second (performed with frequencies ranging from 0.1 to 100 rad/s, p. 62), for a plurality of selected DSR test temperatures, in a range of from 0° C. and 100° C. (tests were performed using parallel plate or torsion bar geometry at temperatures of -35 °, -25 °, -15 °, -5 °, 5 °, 15°, 25 °, 35 °, 45 °, and 60°C, p. 62), to determine values of a maximum applied stress, a maximum resultant strain (characterizing the stress-strain response, p. 11), and a time lag between occurrence of the maximum applied stress and the maximum resultant strain, for the selected DSR test frequencies at the selected DSR test temperatures (time-dependent deformation component may be a delayed elastic component, p. 11);
calculating complex shear modulus (G*) values of the composition, for the selected DSR test frequencies at the selected DSR test temperatures, using the values of the maximum applied stress and the maximum resultant strain determined in step (a) (complex dynamic modulus is computed, p. 13, Eq. 1.2);
determining phase angle (δ) values of the composition, for the selected DSR test frequencies at the selected DSR test temperatures, using the time lag between occurrence of the maximum applied stress and the maximum resultant strain determined in step (a) (phase angle can be computed, p. 13-14);
optionally testing the composition in a Bending Beam Rheometer (BBR) at a plurality of selected BBR test temperatures in a range of from −40° C. to 0° C. to determine (i) higher stiffness values of the composition for the selected BBR test temperatures and (ii) a bending creep stiffness of the composition over a loading time of from 0 seconds to 240 seconds, and using, by transposition, the higher stiffness values and the bending creep stiffness to provide complex shear modulus (G*) values and phase angle (δ) values using transposition frequencies (expressed in radians per second) which are an inverse of the loading time (asphalts were also tested at low temperatures using the bending beam rheometer, temperatures ranging from -35 to 60 C, , p. 64; load times of 8-240 seconds, p. 69);
calculating, using the complex shear modulus (G*) values calculated in step (b) and the phase angle (δ) values determined in step (c), as well as the complex shear modulus (G*) values and the phase angle (δ) values provided by step (d) if conducted, a Master Curve for the composition that shows a relationship between complex shear modulus (G*) and phase angle (δ) for the composition expressed as a function of frequency and temperature (master curves for the asphalts tested were constructed, p. 63);
using the complex shear modulus (G*) values calculated in step (b) and the phase angle (δ) values determined in step (c), as well as the complex shear modulus (G*) values and the phase angle (δ) values provided step (d) if conducted, to construct a Black Space Diagram that shows a relationship between complex shear modulus (G*) and phase angle (δ) for the composition corresponding to an entire range of the selected DSR test temperatures and the selected DSR test frequencies (Fig. 1.10 teaches corresponding diagram showing a relationship between complex modulus and phase angle); and
adding a phase angle evaluation line to the Black Space Diagram demarking a level of desired performance (Fig. 1.10 teaches evaluation line, see p. 26 showing construction of Fig. 1.10; p. 18 discusses comparison and selection for best fit).
Regarding claim 4, Anderson teaches determining whether the phase angle (δ) of the composition on the Black Space Diagram is at least 30° when the complex shear modulus (G*) value of the composition is 100,000,000 Pa (Fig. 1.10 on p. 45 teaches corresponding a relationship between complex modulus and phase angle; Note that diagram axes and fitted line may be extrapolated to include claimed coordinates, and as such a corresponding determination may be made using the diagram; p. 18 teaches comparing the data against the master curve).
Regarding claim 5, Anderson teaches determining whether the phase angle (δ) of the composition on the Black Space Diagram is at least 30° when the complex shear modulus (G*) value of the composition is 1,000,000 Pa (Fig. 1.10 on p. 45 teaches corresponding a relationship between complex modulus and phase angle; Note that diagram axes and fitted line may be extrapolated to include claimed coordinates, and as such a corresponding determination may be made using the diagram; p. 18 teaches comparing the data against the master curve).
Regarding claim 7, Anderson teaches, wherein step (d) is performed (see rejection of step d above).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Anderson as applied to claim 1 above, and further in view of US 20130248251 (herein Kulkarni).
Regarding claim 6, Anderson teaches determining whether the composition demonstrates viscoelastic solid behavior, as determined by the fitting the Master Curve of the composition to the rheological profile of the composition at complex shear modulus (G*) values greater than 10,000 Pa, and determining whether the Master Curve of the composition conforms to a sigmoid curve (p. 14 teaches sigmoidal shape of master curve to show viscoelastic functions; Fig. 1.4 teaches complex modulus greater than 10kPa). Anderson does not teach, “with a root mean square error of less than 15%.” Anderson instead teaches “maximum standard error of about 10%” on p. 23. Anderson does not teach error calculation using RMS, but Kulkarni teaches it is known in the art to calculate error using either standard deviation or root mean square in rheology ([0045]), so it would have been obvious to one of ordinary skill in the art to simply substitute the standard error calculations of Anderson with the RMS error calculations of Kulkarni. The above findings satisfies the Graham factual inquiries stated in MPEP 2143 B regarding simple substitution of one known element for another to obtain predictable results.
Additionally, it would have been obvious to one of ordinary skill in the art to optimize error to 15% to suit model parameters. Based on MPEP 2144.05 II, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) and Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382. Note that according to § MPEP 2144, “Office personnel may invoke legal precedent as a source of supporting rationale when warranted and appropriately supported.”
Conclusion
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/WALTER L LINDSAY JR/Supervisory Patent Examiner, Art Unit 2852
/PHILIP T FADUL/Examiner, Art Unit 2852