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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted 2/2/2024 has been considered by the examiner.
Claim Objections
Claims 2-8 and 18 are objected to because of the following informalities: “modified” should be corrected to “the modified” in line 1 of claims 2-8 and 18. Appropriate correction is required.
Claim 9 is objected because of the following informalities: “modified” should be corrected to “the modified” in line 1.
Claim 15 is objected to because of the following informalities: The syntax of Claim 15 should be corrected for clarity to recite: “incorporating the modified binder of claim 1 into the asphalt” Appropriate correction is required.
Claim 16 is objected to because of the following informalities: “heating” should be corrected to “the heating” Appropriate correction 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.
(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(s) 1-7, 9-10, and 12-16 /are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ultraviolet aging Study on Bitumen Modified by a Composite of clay and fumed silica nanoparticles by Goshtasp Cheraghian and Michael P Wistuba Scientific Reports Nature Research (2020) 10:112216 (the effective filing date of the instant application is 10/21/2022 – this cited reference pre-dates the effective filing date by more than a year and therefore is not subject to any exception).
Regarding Independent Claim 1:
Ultraviolet teaches a nano composite of clay and fumed silica in binder (See Abstract) (meeting claim 1)
Regarding Claim 2:
Ultraviolet teaches the limitations above set forth. Ultraviolet also teaches CS-NPs enable rich binder contents in asphalt mixtures. Their large surface (20–500 m2 /g) is a unique character which promotes interaction of particles having a significant effect on the rheological and anti-aging properties of the modified binders18,19, also increasing bond strength. Meeting the limitation for the composition comprising a modified binder of asphalt.
Further Regarding Bitumen and Further Regarding Asphalt:
When CS-NPs are blended with bitumen, the CS-NPs partially cover the bitumen surface, and when exceeding a specific threshold value the CS-NPs begin to aggregate and create a structure of multiple layers (Fig. 2a). This particle aggregation changes the homogeneity of the blend and may also change its rheological properties (P2 last par)
Further Regarding Bitumen and Further Regarding Asphalt: The results representing a temperature range from 30 to 80 °C are shown in Fig. 5. The level of complex shear modulus was found to be significantly higher for bitumen samples modified with CS-NPs than for unmodified control bitumen samples. Hence, the addition of 0.2 wt.% of CS-NPs increases stiffness (and thus deformation resistance of the corresponding asphalt mixture). (P7 reference)
Regarding Claim 3
Ultraviolet teaches the limitations above set forth.
Ultraviolet teaches… this technique of producing hydrothermal CS-NPs is suitable for modified homogenous bitumen blending. (P6 4th par) (meeting the limitation of claim 3 for hydrothermal synthesis)
Regarding Claim 4:
Ultraviolet teaches the limitations above set forth.
Ultraviolet at P 11 average particle sizes of clay NPs and silica NPs are about 12 and 33 nm respectively (within the range of claim 4 for clay 10-50 – 12 and silica 20-100
See Fig 3 a) where clay has size of 22.14 nm or 32.02 nm within the range of claim 4 10-50 nm and silica has size of 41.23 nm or 44.21 nm (within the range of 20 to100 nm)
additive that was composed of clay and fumed silica nanoparticles (CS-NPs; of size in the range of 10–30 nm). Due to their increased ratio of surface area to volume compared to conventional filler particles, CS-NPs enable rich binder contents in asphalt mixtures. (P1 second to last par) (meeting the limitation of claims 1-2 overlapping claim 4 for 20-100nm)
Regarding Claims 5 and 12-14:
Ultraviolet teaches the limitations above set forth. Ultraviolet teaches …bitumen, which was modified by a composite of clay and fumed silica nanoparticles, and exposed to ultraviolet (UV) aging in laboratory. The volume fraction of the nanoparticles within the binder ranged from 1 to 3%(Abstract) (meeting the limitation for a composition of bitumen binder of claim 5 and 12-14)
Adding clay and fumed silica nanoparticles to bitumen reduced stiffness distinctly, and improved resistance to permanent deformation. The results indicate that the mechanical stability of the modified bitumen is very much driven by the specific concentration of clay and fumed silica nanoparticles (Conclusion section)(meeting the limitation for the binder to be a bitumen containing binder)
Ultraviolet teaches… this technique of producing hydrothermal CS-NPs is suitable for modified homogenous bitumen blending. (P6 4th par) (meeting the limitation of claim 3 for hydrothermal synthesis)
When CS-NPs are blended with bitumen, the CS-NPs partially cover the bitumen surface, and when exceeding a specific threshold value the CS-NPs begin to aggregate and create a structure of multiple layers (Fig. 2a). This particle aggregation changes the homogeneity of the blend and may also change its rheological properties (P2 last par)
Further Regarding Bitumen and Further Regarding Asphalt: The results representing a temperature range from 30 to 80 °C are shown in Fig. 5. The level of complex shear modulus was found to be significantly higher for bitumen samples modified with CS-NPs than for unmodified control bitumen samples. Hence, the addition of 0.2 wt.% of CS-NPs increases stiffness (and thus deformation resistance of the corresponding asphalt mixture). (P7 reference)
Claims 12-14 are product by process claims. Since the reference teaches the claimed product, it anticipates claim 12-14. "[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) (citations omitted)
Regarding Claim 6:
Ultraviolet teaches the limitations above set forth. See Table 2 for clay silicon dioxide nanoparticle content in binder in amount of 0.1, 0.2 and 0.3 (meeting the claimed range of claim 6)
Regarding Claim 15:
Ultraviolet teaches the limitations above set forth. The composition improves UV resistance and is incorporated into asphalt
, CS-NPs enable rich binder contents in asphalt mixtures.(P1 second to last par)
Regarding Claims 7, 9-10, 12-16
Ultraviolet teaches the limitations above set forth.
Adding clay and fumed silica nanoparticles to bitumen reduced stiffness distinctly, and improved resistance to permanent deformation. The results indicate that the mechanical stability of the modified bitumen is very much driven by the specific concentration of clay and fumed silica nanoparticles (Conclusion section)
When CS-NPs are blended with bitumen, the CS-NPs partially cover the bitumen surface, and when exceeding a specific threshold value the CS-NPs begin to aggregate and create a structure of multiple layers (Fig. 2a). This particle aggregation changes the homogeneity of the blend and may also change its rheological properties (P2 last par)
Materials and synthesis. In the present research, sodium bentonite (Sigma Aldrich Ltd., Germany), nano fumed silica (Aerosil A300, Degussa Co., Germany), and 50/70 penetration grade bitumen (Total Co., France) were used.
The montmorillonite chemical composition (i.e. clay) is reported as follows: 61.03% SiO2, 14.59% Al2O3, 2.22% MgO, 0.22% TiO2, 2.09% Fe2O3, 2.04% Na2O, 0.76% K2O and 0.77% CaO. Clay/silica was prepared with hydrothermal syntheses method (hydrothermal synthesis) using a procedure adapted from Yang et al.51 and Cheraghian et al.30,52. The size distribution of materials and X-ray diffraction (XRD) pattern were evaluated with dynamic light scattering (DLS) (Malvern ZEN 3600, UK) and X-ray powder diffraction (Philips PW 1730, Netherlands) analyses, as shown in Fig. 12. After purification of montmorillonite, it was milled to exchange 98 mmol/100 g cation capability. Then, 4 g of montmorillonite and 0.48 g of NaOH were dissolved for 3 h within 200 ml deionized water (clay suspension) at a temperature of 25 °C, and thereupon, they were dispersed by ultrasonic mixer. Then, 2 ml of polyethyleneglycol (PEG) and 4 g of cetyltrimethylammoniumbromid (CTAB) were dispersed in 40 ml of distilled water (a clay suspension with surfactants aqueous medium) . PEG/CTAB solution was blended to the mixture for 3 h, and at the same time 10 ml of tetraethylorthosilicate (TEOS) was injected to the suspension. (adding silicate to clay suspension with surfactants to form a mixture) The mixed materials (forming a mixture) in a stainless-steel autoclave were heated to a temperature of 180 °C for 16 h, and then that the materials were cooled down to 25 °C.
t. Figure 13 indicates the schematic synthesis process of clay and fumed silica.
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Section: Experimental Plan:
First, surface morphology of clay/fumed silica nanoparticles (CS-NPs) dispersed in the bitumen sample was studied using observations from field emission scanning electron microscopy (FESEM). Then, modified bitumen samples were prepared with different volume fractions of CS-NPs, to study the impact of CS-NPs concentration on resulting binder properties (P2) (meeting the limitation for particles and binder of claim 11.
The aggregation of clay NPs were found to be uniformly dispersed in the bitumen sample, which indicates that they were uniformly dispersed during the blending process already (P3 last par)
Claims 12-14 are a product by process claim. Since the reference teaches the claimed process and produces the claimed product, it anticipates claim 12. "[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) (citations omitted)
Regarding Claim 7:
Since the reference makes the claimed fumed silica clay nano composite using the same materials in the same amounts under the same conditions, it will necessarily have silica:clay ratio within the range of claim 7. (See instant specification at page 7 Preparation of Nano composite where the same materials amounts and conditions are used to form the nano composites of clay and fumed silica)
For example:
4 g clay
10 ml tetraethyl silicate –density 0.933 so 9.33 grams silicate 1 mole silica to 1 mole tetraethyl silicate molar weight 208 molecular weight silica
1 mole silica to 1 mole TEOS
9.33g x 60 mw silica / 208 mw TEOS = 2.69 grams silica
4g clay : 2.69 g silica = 1.49 within the claimed range.
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.
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.
Claim(s) 8 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ultraviolet aging Study on Bitumen Modified by a Composite of clay and fumed silica nanoparticles by Goshtasp Cheraghian and Michael P Wistuba Scientific Reports Nature Research (2020) 10:112216 (the effective filing date of the instant application is 10/21/2022 – this cited reference pre-dates the effective filing date by more than a year and therefore is not subject to any exception) as applied to claims 1-7, 9-10, and 12-16 above.
Regarding Claim 8:
Ultraviolet teaches the limitations above set forth. Ultraviolet teaches: Due to their increased ratio of surface area to volume compared to conventional filler particles, CS-NPs enable rich binder contents in asphalt mixtures. Their large surface (20–500 m2 /g) is a unique character which promotes interaction of particles having a significant effect on the rheological and anti-aging properties of the modified binders18,19, also increasing bond strength at the aggregate-bitumen interface 20 (P1 2nd to last par)(surface area within the range of claim 8 of 10 to 1000 m2/g)
Regarding Claim 18
Claim 18 depends from claim 8 which is rejected under 103 as obvious. Due to claim dependency claim 18 is rejected as obvious; however, the reference teaches the exact same range as is recited in claim 18) Ultraviolet teaches the limitations above set forth. Ultraviolet teaches…Due to their increased ratio of surface area to volume compared to conventional filler particles, CS-NPs enable rich binder contents in asphalt mixtures. Their large surface (20–500 m2 /g) is a unique character which promotes interaction of particles having a significant effect on the rheological and anti-aging properties of the modified binders18,19, also increasing bond strength at the aggregate-bitumen interface20(P1 2nd to last par)(meeting claim 18)
Claim(s) 11 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ultraviolet aging Study on Bitumen Modified by a Composite of clay and fumed silica nanoparticles by Goshtasp Cheraghian and Michael P Wistuba Scientific Reports Nature Research (2020) 10:112216 (the effective filing date of the instant application is 10/21/2022 – this cited reference pre-dates the effective filing date by more than a year and therefore is not subject to any exception) as applied to claims 1-7, 8, 9-10, and 12-17-18 above alternatively further in view of Effect of Blending Temperature and Blending Time on Physical Properties of NRL Modified Bitumen Mohd Amin Shafii Calvin Lai Yew Veng Nuryantizpura Mohamad Rais Amminudin Ab Latif International Journal of Applied Engeining Research ISSN 0973-4562 Vol 12 Number 13 (2017) pp 3844-3849
Regarding Claims 11 and 17:
Ultraviolet teaches the limitations above set forth
Section: Experimental Plan:
First, surface morphology of clay/fumed silica nanoparticles (CS-NPs) dispersed in the bitumen sample was studied using observations from field emission scanning electron microscopy (FESEM). Then, modified bitumen samples were prepared with different volume fractions of CS-NPs, to study the impact of CS-NPs concentration on resulting binder properties (P2)
The aggregation of clay NPs were found to be uniformly dispersed in the bitumen sample, which indicates that they were uniformly dispersed during the blending process already (P3 last par)
Bitumen is exposed to 163 C (P2 last section)
Ultraviolet teaches the composition comprising binder (bitumen / asphalt) and the nanoscale particles; however it does not recite the temperature or length of mixing of the nanoparticles into the binder material followed by cooling.
When CS-NPs are blended with bitumen, the CS-NPs partially cover the bitumen surface, and when exceeding a specific threshold value the CS-NPs begin to aggregate and create a structure of multiple layers (Fig. 2a). This particle aggregation changes the homogeneity of the blend.
However the examiner maintains it is within the ken of one of ordinary skill in the art at the time of filing the invention to ascertain a temperature at which the binder bitumen/asphalt will be soft enough to mix and to determine the amount of time depending on the mixing method to create a well-mixed homogenous product for optimized particle aggregation.
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
In the alternative, assuming the time and temperature of blending the nanoparticles/composite with the binder (bitumen/asphalt) is not obvious:
“Effect of Blending Temperature” teaches bitumen is sued as a binder for aggregate in construction of pavement. The bitumen may be modified such as with natural rubber latex. The optimum blending time at 150 C for 9 % is 10 minutes (Abstract) In order to mix in the additive to the bitumen, the bitumen is heated to 160C for 30 minutes to ensure it melts enough to be mixed. Then the additive is added to the bitumen in various amounts (P3855 C2) “Effect” teaches the optimum blending temperature can be identified (P 3847 C1) and the mixing time can also be identified (P3848 C1) to create a homogenous mix (P3848 C2)
It would have been obvious to one of ordinary skill in the art at the time of filing the invention to heat the bitumen to 150 C for 30 minutes to melt it so that the nanoparticulate can be added and mixed in followed by cooling as taught by “Effect” in the process of Ultraviolet to create a homogenous mixture in Ultraviolet.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO 892 accompanying this office action.
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/PAMELA H WEISS/Primary Patent Examiner, Art Unit 1732