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 .
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it recites “The present invention consists of” and “The present invention further describes”, which are considered implied language. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01. The embedded hyperlinks are all found in paragraph 0007 of the Specification. Since the doi link cannot be reasonably truncated to a top-level domain name, the Examiner recommends including the article it links to as non-patent literature instead.
Claim Interpretation
Claim 1 recites “a low shear mixer”. While “low shear” is relative, this does not lead to indefiniteness because “a low shear mixer” is a term of the art that would be reasonably understood by a person having ordinary skill in the art practicing the claimed invention. A low shear mixer is known to use paddles or propellers to create flow, not shear, and maintains product integrity during mixing. Conversely, a high shear mixer is known to use high-speed rotors which create intense shear to break down particle sizes and promote emulsification. Because “a low shear mixer” is a well-understood term with a distinct mechanism of mixing, this term is not considered indefinite.
Claim 10 recites “petroleum asphalt cement gas oils specially cut to fit the petroleum asphalt cement production”. There is no direct antecedent basis for “the petroleum asphalt cement production”, but the Examiner believes that a person having ordinary skill in the art would reasonably understand that it refers to the process of obtaining petroleum asphalt cement recited in claim 1, on which claim 10 indirectly depends. Claim 10 also recites the acronym “GOP CAP”. In the specification, “GOP” is defined as “heavy gas oils” (paragraph 0005), and “CAP” is defined as “petroleum asphalt cement” (paragraph 0004), so there is no indefiniteness arising from the use of these acronyms.
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 1–10 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 1 recites “the plastic pyrolysis oil diluent” in line 5. While there is antecedent basis for this term in line 3 (“a plastic oil diluent”), lines 3–4 recite an optional step, so there isn’t a consistent antecedent basis for “the plastic pyrolysis oil diluent” in line 5. If the step recited in lines 5–6 requires the step of lines 3–4, then the step of lines 3–4 cannot be optional. However, if the step of lines 5–6 merely requires a diluent, whether it’s the cut diluent of lines 3–4 or an uncut diluent, the word “optional” should be incorporated into lines 5–6 to reflect that, e.g., “mixing the optionally cut plastic pyrolysis oil diluent, or an uncut plastic pyrolysis oil diluent, with a vacuum residue or an asphalt residue…”. The proposed amendment is supported by the specification, paragraph 0019.
Claims 2–5, being dependent on claim 1, inherit its deficiencies, and are rejected on the same grounds.
The phrases “advanced rheological tests” and “high service temperatures” in claim 2 contain relative terms which renders the claim indefinite. The terms “advanced” and “high” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what constitutes an “advanced rheological test”, and how an “advanced” test would differ from a “simple” test. Similarly, it is unclear what constitutes a “high service temperature”, and what the boundary is between “high service temperature” and “low service temperature”.
Claim 2 further recites “empirical ANP tests (no 19/2005)”. ANP is not a recognized abbreviation in the US, and a person having ordinary skill in the art would not be reasonably apprised of what the scope of this limitation is. The term is not defined in the specification, and while the Examiner understands that it refers to a specific standardized testing method in Brazil, where the present application originates, the abbreviation should be defined in the specification or the claim so that a person having ordinary skill in the art seeking to practice the present invention understands the full scope of the invention.
Claim 3 recites the limitation "the higher mass variation test" in lines 2–3. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 further recites “when the penetration ratio at 25°C/rotational viscosity at 177°C needs to be adjusted”. This leads to indefiniteness because the slash separating the penetration ratio from the rotational viscosity could be interpreted as “and” or “or”. In other words, it is unclear if the limitation only covers cases where the penetration ratio and the rotational viscosity need to be adjusted, or if it covers cases wherein either the penetration ratio or the rotational viscosity needs to be adjusted.
The terms “typical” and “typically” in claims 6, 9 and 10 are relative terms which renders the claim indefinite. The terms are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Regarding claim 6, “asphalt residue typical of refinery or vacuum residue” is indefinite because it is unclear what “typical of refinery…residue” is meant to encompass; asphalt residue composition depends on crude oil classification (e.g., paraffinic, naphthenic, aromatic), and can have different compositional properties (e.g., asphaltene content, sulfur levels, viscosity) depending on geographic source (e.g., Venezuelan crude oil vs. North Sea crude oil vs. Russian crude oil). Regarding claims 9 and 10, the specification, paragraph 0020, does give examples of typical fossil diluents, but it is not clear if these examples represent all the “typical” diluents, or if the claim is meant to encompass other unspecified diluents.
Claims 7 and 8, being dependent on claim 6, inherit its deficiencies, and are rejected on the same grounds.
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 5 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 5 recites the limitation “wherein the cutting temperature is greater than or equal to 200°C”. Claim 1, on which claim 5 depends, recites cutting a plastic pyrolysis oil at 200°C/200°C+, which is already interpreted as a cutting temperature of greater than or equal to 200°C. 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.
Allowable Subject Matter
Claims 1 and 6 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Claims 2–4 and 7–10 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Claim 1 recites a process for obtaining petroleum asphalt cement, comprising one mandatory step and two optional steps. The mandatory step recites mixing plastic pyrolysis oil diluent with a vacuum residue or asphalt residue to form a mixture, the mixing being done in a low shear mixer at a temperature between 115°C and 130°C, for 30 minutes.
While incorporating waste plastic into petroleum asphalt cement is known, the waste plastic is generally chopped, shredded, or pulverized and used as a filler. The use of pyrolysis oil derived from plastics is not widely reported in the art. In fact, the only relevant prior art that the Examiner could identify after a comprehensive search comes from Harialdi et al. (IOP Conf. Series: Materials Science and Engineering, 1087, 012005, 2021), who teaches the use of polyethylene pyrolysis oil as a softener for Buton Asphalt (see generally abstract). Harialdi et al. fails to explicitly teach the use of a low shear mixer under the given temperature conditions, and thus cannot anticipate the process of claim 1. Furthermore, the claimed mixing temperatures would not have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention. Texas Department of Transportation (“Laboratory Method of Mixing Bituminous Mixtures”, TXDOT Designation TEX-205-F, 2016) teaches asphalt mixing temperatures as ranging from 75–113 °C and from 135–163 °C, depending on the type and grade of asphalt (see pg. 4, Table 1). The claimed temperature range of 115–130 °C is close to the end points of these ranges, but would only have been obvious to a person having ordinary skill in the art if a specific type and grade of asphalt were known; generally, asphalt is presumed to be hot-mix asphalt unless otherwise specified, and hot-mix asphalts are mixed at temperatures greater than 135 °C, so the asphalt disclosed by Harialdi et al. is presumed to be hot-mix asphalt. Furthermore, a review published by Xu et al. (Materials, 15(10), 2022) explores the use of waste plastics as an asphalt modifier, and fails to explicitly teach any mention of plastic pyrolysis oils with asphalt, which further supports the novelty of the claimed invention.
Searches of prior art were conducted, but no prior art was identified which could reasonably anticipate or render obvious the claimed invention. Claim 1 therefore contains allowable subject matter. Claims 2–4, being dependent on claim 1, would similarly be allowable. Claim 6 recites a petroleum asphalt cement composition obtained by the process of claim 1. As the process of claim 1 is determined to contain allowable subject matter, the product produced thereby would similarly be allowable. Claims 7–10, being dependent on claim 6, would also be allowable. Claims 1–4 and 6–10 all contain allowable subject matter, but must first be amended to overcome the rejections under 35 U.S.C. 112(b). Claim 5 stands rejected under 35 U.S.C. 112(d) as being of improper dependent form.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ryan P Loughran whose telephone number is (571)272-2173. The examiner can normally be reached M, T, Th, F 6:30-4:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber Orlando can be reached at (571)270-3149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/R.P.L./Examiner, Art Unit 1731
/AMBER R ORLANDO/Supervisory Patent Examiner, Art Unit 1731
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