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 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.
Claims 3, 4, 6 – 8, 11, 12, 14 – 16 & 18 – 20 are rejected under 35 U.S.C. § 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Regarding claims 3, 4, 6 – 8, 11, 12, 14 – 16 & 18 – 20, the claims all contain at least one instance of the term “about”. The term “about” is a relative term of degree and is subjective. See MPEP § 2173.05. The instant specification provides “about” to mean from -10% to +10% of the referenced number, most preferably -0.1% to +0.1% of the referenced number (Specification, p. 20, [0088]). In view of multiple preferred ranges within the range encompassed by “about”, as defined in the Specification, it is not possible to determine which allotted ranges of the pertinent components the Applicant intends to patent.
Additionally, claims 18 – 20 are further rejected for indefiniteness. The independent claim 18 cites a method for producing an asphalt binder composition but contains additional relative terms of degree and is subjective. See MPEP § 2173.05. The independent claim 18 uses relative terms “high” and “low” when referring to which shear mixer is being used for blending (Claim 18, lines 5 & 8, respectively). Absent any further quantitative definition(s) as to what constitutes “high” and “low” for the aforementioned shear mixers, one of ordinary skill in the art would be unable to determine the full scope of claim 18 or adequately determine whether a given degree of shear is considered to be “high” or “low”, as required by the claims.
The use of relative terminology in claims 18-20 creates a sufficient degree of confusion and uncertainty such that it would improper to reject the claims on the basis of prior art. See MPEP § 2173.06(II).
Claim Rejections - 35 USC § 102
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)(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.
Claims 1, 3 – 5, 7, 9 – 13, 15 & 17 are rejected under 35 U.S.C. § 102(a)(2) as being anticipated by Lee et al. (KR 101713590 B1).
Regarding claims 1, 9, 10 & 17, in the interest of compact prosecution, the distinction between LDPE and RPE is inconsequential. RPE is considered a product-by-process limitation as the claimed polyethylene is recycled only further limits the source from which polyethylene is obtained. In light of the Specification, RPE (i.e., “recycled” PE) does not appear to impart any structural or functional differences in the final product. Product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. Determination of patentability is based on the product itself. See MPEP § 2113.
Lee teaches an asphaltic composition and a solvent de-asphalting process (Abstract), said composition comprising an asphalt binder and sulfur. The composition comprises sulfur in preferable amounts of 0.1 – 0.5 wt.% (p. 13, [0042]). The composition comprises styrene-butadiene rubber (SBR) and styrene-butadiene-styrene (SBS), alone or as a mixture, in amounts of 1.0 – 3.0 wt.% (p. 12, [0035]), however, Lee expressly states low-density polyethylene (LDPE) may be used as in the asphaltic composition as a replacement for SBR or SBS to increase resistance of deformation (p. 13, [0041]).
Thus, Lee anticipates an asphaltic composition comprising an asphalt binder, sulfur in amounts of 0.1 – 0.5 wt.%, and LDPE in amounts of 1.0 – 3.0 wt.%. As Lee teaches LDPE as a suitable replacement for SBR/SBS, the composition reads on limitations as required by claims 1, 9, 10 & 17.
Regarding claims 3 & 11, Lee expressly states low-density polyethylene (LDPE) may be used as in the asphaltic composition as a replacement for SBR or SBS to increase resistance of deformation (p. 13, [0041]). SBR/SBS is taught to be present in the composition in amounts of 1.0 – 3.0 wt.% (p. 12, [0035]). Abiding by Lee & employing LDPE as a substitute for SBR/SBS will yield a composition comprising LDPE in amounts of 1.0 – 3.0 wt.%, reading on limitations of claims 3 & 11.
Regarding claims 4 & 12, Lee teaches the composition comprises sulfur in preferable amounts of 0.1 – 0.5 wt.% (p. 13, [0042]), reading on limitations of claims 4 & 12.
Regarding claims 5 & 13, Lee teaches optimal amounts of SBR/SBS (which may be replaced with LDPE, see rejection of claims 1 & 10 above) and sulfur for mixing with the asphalt binder (p. 15, [0045]).
Regarding claims 7 & 15, Lee teaches the melt mixing occurs in a range of 160°C – 200°C, preferably at 180°C (p. 15, [0046]), reading on limitations of claims 7 & 15.
Claim Rejections - 35 USC § 103
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.
Claims 2, 6, 8, 14 & 16, are rejected under 35 U.S.C. § 103 as being unpatentable over Lee et al. (KR 101713590 B1) in view of Zanchetta et al. (US 2007/0054988 A1).
Regarding claim 2, Lee remains as applied above. Lee does not teach the melt flow index of the LDPE.
In the same field of endeavor, Zanchetta teaches polymer compositions, particularly asphaltic compositions, comprising polyethylene (Abstract & [0001]). The polyethylene may be LDPE, HDPE or a combination of both. For asphaltic blends, the polyethylene may have a melt flow index value between 5 – 100 (p. 3, [0022] – [0023]).
It would have been obvious to one of ordinary skill in the art at the time of filing to employ the MFI range of 5 – 100, taught by Zanchetta, as a guide when following the teachings of Lee, as Zanchetta demonstrates this to be a suitable MFI for polyethylene in asphaltic compositions. A prima facie case of obviousness exists where the claimed ranges overlap or lie inside the ranges disclosed by the prior art. See MPEP § 2144.05.
Modification of Lee in view of Zanchetta as detailed above results in an asphalt binder composition comprising a base asphalt binder, LDPE and sulfur, wherein the LDPE has a MFI in the range of 5 – 100, reading on all limitations established by claim 2.
Regarding claims 6 & 14, maintaining the modification of Lee in view of Zanchetta previously detailed, Zanchetta teaches processes for creating the inventive asphaltic polymer blends, disclosing mixing all the ingredients at a temperature range of 180°C - 210°C for 4-6 hours (p. 4, [0027]). A prima facie case of obviousness exists where the claimed ranges overlap or lie inside the ranges disclosed by the prior art. See MPEP § 2144.05.
Regarding claims 8 & 16, maintaining the modification of Lee in view of Zanchetta previously detailed, Zanchetta teaches processes for creating the inventive asphaltic polymer blends, disclosing mixing all the ingredients via a blade stirrer at a temperature range of 180°C - 210°C at speeds of 400 – 1,000 rpm (p. 4, [0027]). A prima facie case of obviousness exists where the claimed ranges overlap or lie inside the ranges disclosed by the prior art. See MPEP § 2144.05.
Conclusion
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/CHRISTIAAN ROELOFSE/Examiner, Art Unit 1762
/ROBERT S JONES JR/Supervisory Patent Examiner, Art Unit 1762
