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 .
Non-Final Rejection
Claims 16-32 are pending. Claims 16 and 30 are independent.
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 16-32 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 16 and 30 recite limitation to:
70-90% of a portion of sticky and mixable, non-toxic substance; and
5-15 wt-% of a portion of a stickiness enhancing substance selected from a Markush group. It is unclear and indefinite if the sticky and stickiness substances within the claim are the same or different. For purposes of compact prosecution, the independent claims are interpreted as having the PEG, MEG and MPG (examiner’s interpretation supported by claim 17), however BRI cannot read limitations into a claim and appropriate correction is required.
The Markush group in claims 16 and 30 recite limitation to “Acetic acid ethenyl ester, polymer with 1-ethenyl-2-pyrrolidinone)…and/or” which is unclear and indefinite. The Markush group is interpreted as copolymer of acetic acid ethenyl ester and 1-ethenyl-2-pyrrolidinone ending with an “and”.
Claim 20 misspells fluorescein. Appropriate correction is required.
The terms “preferably approx” or “approx.” in claims 22-23 and 27 are relative terms which render the claims 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. For purposes of compact prosecution, the claims are interpreted BRI of the dye element being traceable for at least 7 days and 1:3 composition:water ratio before use. Appropriate correction is required.
The term “or other types of soap” in claim 28 is unclear and indefinite as to what is included or excluded. For purposes of compact prosecution, the claim 28 is interpreted BRI limitation to sodium lauryl sulfate. Appropriate correction is required.
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.
Claims 16-32 are rejected under 35 U.S.C. 103 as being unpatentable over Zha et al. (US 2020/0140719 A1) in view of Batdorf (US 4,866,105) and Briegel et al. (US 2020/030837 A1).
Zha et al. teach a composition for dust suppression (abstract) comprising 30-90% [0021] of non-hazardous PEG [0006] encompassing claim 16 limitation to 70-90 wt-% sticky nontoxic substance.
Zha et al. teach polyacrylate polymers [0005] in an amount of 0.01-10% [0028-0029] encompassing the claim 16 limitation to 5-15 wt-% stickiness enhancing substance.
Zha et al. teach surfactants are often ethoxylated alkyl phenols and anionic surfactants such as sodium lauryl sulfate [0006] and [0027] teaching they can be used at concentrations below 0.1 wt.%, such as from about 10 ppm wt. % to about 1,000 ppm of the composition. Examiner notes that this is below the claim 16 limitation to 1-10 wt-% of surfactant, the teaching of the sodium lauryl sulfate surfactant with the other claimed ingredients is taught by Zha et al. and it is well understood that optimizing the amount of surfactant in a binder is commonly known. Examiner’s position is supported by Briegel et al. [0172] establishing it is commonly known for one of ordinary skill to optimize the amount of surfactant disclosed by Zha et al. in a total amount of about 0.01-10 wt % anionic surfactant including the claimed sodium lauryl sulfate as disclosed by Zha et al. It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify Zha et al. with amount of anionic surfactant taught by Briegel et al. because it is well understood in the industrial composition art to optimize the amount of surfactant in a total amount of about 0.01-10 wt % anionic surfactant.
Zha et al. do not teach the 0.01-5 wt-% of traceable dye required in claim 16.
Batdorf (US 4,866,105) establish the state of the art of asbestos binder composition with a dye and guide one of ordinary skill to optionally include a dye in a binder composition for wetting and encapsulating asbestos and wool fibers. See title and abstract (col.2,ln65-67) and Example 1, in col.7 teaching 0.02 parts Polor Brilliant Blue Rawl dye with water, surfactant and 83% concentration of an acetylenic glycol blend in ethylene glycol. The 0.02 parts Polor Brilliant Blue Rawl dye exemplified in the binder composition of Batdorf encompasses the traceable dye element substance of claim 16 which Batdorf teaches monitor penetration and absorption and minimize hazardous slippery conditions (see col.8,ln.21-45).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify Zha et al. with 0.01-5 wt.% traceable dye as required by claim 16 and taught by Batdorf because Batdorf establishes the state of the art that binder compositions commonly include dye to monitor penetration and absorption and minimize hazardous slippery conditions. One of ordinary skill is motivated to combine the teachings of Zha et al. with Batdorf because they are in the analogous art of binding airborne dust and asbestos particles with similar components in similar amounts.
Zha et al. teach a composition for dust suppression (abstract) comprising 30-90% [0021] of non-hazardous PEG [0006] encompassing claim 17.
With respect to the dye element of claims 18-19, 21 and 24, Batdorf Example 1, in col.7 teaching 0.02 parts Polor Brilliant Blue Rawl dye with water, surfactant and 83% concentration of an acetylenic glycol blend in ethylene glycol. The 0.02 parts Polor Brilliant Blue Rawl dye exemplified in the binder composition of Batdorf encompasses the traceable dye element substance of claims 18-19, 21 and 24 which Batdorf teaches monitor penetration and absorption and minimize hazardous slippery conditions (see col.8,ln.21-45) encompassing the blue color meets the BRI of the claims as blue can be seen and the art specifically guides one of ordinary skill to monitor the penetration and absorption to minimize slippery surfaces. With respect to claim 24, limitation to wherein the dye element substance is biodegradable is encompassed by Batdorf teaching the composition as a whole is nontoxic, nonirritating and has no objectionable odor and is easily cleaned-up with water. See col.4.ln.18-20.
With respect to claim 20 limitation to fluorescein or quinine, Briegel et al. teach commonly known dyes and pigments incorporated into industrial compositions [0186] include halogenated fluorescein derivatives such as D&C Red No. 27. See middle of [0158]. It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify Zha et al. with fluorescein as taught by Briegel et al. establishing the state of commonly used dyes in industrial compositions commonly include fluorescein dye and Batdorf establish is well known to include a dye in binder compositions in general.
Claims 22-23 limitation to wherein after application the dye element substance is traceable for at least 7 days is met by the Batdorf teaching the light blue color. One of ordinary skill understands that when a blend has turned blue, it will remain blue and the Batdorf example 1 teaches that it remains fluid and capable of binding asbestos for at least 24 hours which range encompasses the claimed range. See col.8,ln.40-45.
Claim 25 limitation to the portion of a stickiness enhancing substance in the range of 5-10 wt-% is met by Zha et al. teaching polyacrylate polymers [0005] in an amount of 0.01-10% [0028-0029] thus encompassing the claim 25.
Claims 26-27 wherein the composition is mixed with water in a ratio of 1:3 before use is read upon by Zha et al. teaching additional solvent may be water [0022] and in an amount of 0-40% [0023]. Furthermore, diluting a composition prior to use is not a novel concept and one of ordinary skill reading Zha et al. can arrive at the claimed dilution as the art teaches the optional inclusion of additional water.
Claim 28 limitation to wherein the surfactant is sodium lauryl sulfate is met by Zha et al. teach surfactants are often ethoxylated alkyl phenols and anionic surfactants such as sodium lauryl sulfate [0006].
Claim 29 limitation to wherein the composition when applied is diffusion open is met by Zha et al. teaching the composition is applied to an exposed surface of a substrate. See abstract.
Independent claim 30 is read upon by Zha et al. teaching a composition for dust suppression (abstract) comprising 30-90% [0021] of non-hazardous PEG [0006] encompassing claim 16 limitation to 70-90 wt-% sticky nontoxic substance.
Zha et al. teach polyacrylate polymers [0005] in an amount of 0.01-10% [0028-0029] encompassing the claim 30 limitation to 5-15 wt-% stickiness enhancing substance.
Zha et al. teach surfactants are often ethoxylated alkyl phenols and anionic surfactants such as sodium lauryl sulfate [0006] and [0027] teaching they can be used at concentrations below 0.1 wt.%, such as from about 10 ppm wt. % to about 1,000 ppm of the composition. Examiner notes that this is below the claim 30 limitation to 1-10 wt-% of surfactant, the teaching of the sodium lauryl sulfate surfactant with the other claimed ingredients is taught by Zha et al. and it is well understood that optimizing the amount of surfactant in a binder is commonly known. Examiner’s position is supported by Briegel et al. [0172] establishing it is commonly known for one of ordinary skill to optimize the amount of surfactant disclosed by Zha et al. in a total amount of about 0.01-10 wt % anionic surfactant including the claimed sodium lauryl sulfate as disclosed by Zha et al.
Claim 30 limitation to mixing with water [0006] and [0022] and said mixture is then applied onto a surface of a building structure is taught by Zha et al. [0035] teaching spray application to a flat of curved surface and the step of applying the mixture being performed by a low pressure spraying until the surface is soaked is explained by Zha et al. [0030].
Zha et al. do not teach the 0.01-5 wt-% of traceable dye required in claim 30. Batdorf (US 4,866,105) guide one of ordinary skill to optionally include a dye in a binder composition for wetting and encapsulating asbestos and wool fibers. See title and abstract (col.2,ln65-67) and Example 1, in col.7 teaching 0.02 parts Polor Brilliant Blue Rawl dye with water, surfactant and 83% concentration of an acetylenic glycol blend in ethylene glycol. The 0.02 parts Polor Brilliant Blue Rawl dye exemplified in the binder composition of Batdorf encompasses the traceable dye element substance of claim 30 which Batdorf teaches monitor penetration and absorption and minimize hazardous slippery conditions (see col.8,ln.21-45).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify Zha et al. with 0.01-5 wt.% traceable dye as required by claim 30 and taught by Batdorf because Batdorf establishes the state of the art that binder compositions commonly include dye to monitor penetration and absorption and minimize hazardous slippery conditions.
Claims 31-32 wherein the composition is mixed with water in a ratio of 1:3 before use is read upon by Zha et al. teaching additional solvent may be water [0022] and in an amount of 0-40% [0023]. Furthermore, diluting a composition prior to use is not a novel concept and one of ordinary skill reading Zha et al. can arrive at the claimed dilution as the art teaches the optional inclusion of additional water.
Conclusion
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/PREETI KUMAR/ Examiner, Art Unit 1761
/ANGELA C BROWN-PETTIGREW/ Supervisory Patent Examiner, Art Unit 1761
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