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 .
Response to Amendment
This office action is in response to the Amendment filed on 04/08/2026.
Claims 1-4, 6, 10, 15 and 21 are presently pending; claims 5, 7-9, 11-14 and 16-20 are canceled; claim 15 is withdrawn; claims 1 and 10 are amended; claim 21 is new; claims 1-4, 6, 10 and 21 are under examination.
The objection to claim 10 is withdrawn in light of the amendments to the claims.
The 35 U.S.C. 103 rejection of claims 1-4, 6 and 10 over TANAKA in view of KIM is withdrawn in light of the amendments to the claims.
New grounds of rejection are present herein in light of the amendments to the claims.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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 no obviousness.
Claims 1-4, 6, 10 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Tanaka, et al. (U.S. Pat. No. 5,990,206-A) (hereinafter, “TANAKA”) in view of Kim, et al. (U.S. Pub. No. 2017/0253528-A1) (hereinafter, “KIM”) and Kashiwagi (JP-2020090618-A) (hereinafter, “KASHIWAGI”; citations herein refer to the attached machine translation).
Regarding claim 1, TANAKA teaches an asphalt mixture (see TANAKA generally at Abstract), comprising:
a polyester resin (A) (see TANAKA at col. 4, line 65 - col. 5, line 4 and col. 22, lines 31-48),
a compound (B), and the compound (B) is a compound having 8 or more carbon atoms and having a hydroxy group or an amino group (see TANAKA at col. 6, lines 13-53, teaching such compounds, e.g., decyl alcohol),
and an aggregate (see TANAKA at col. 11, lines 39-43),
wherein the polyester resin (A) has a softening point or a melting point exceeding 76.5 °C (see TANAKA at col. 22, lines 31-48, teaching making the reaction mixture to form polyester with a melting point of 150 °C).
However, TANAKA fails to explicitly teach that (i) the aggregate contains an asphalt recycled aggregate and (ii) the polyester resin (A) has a softening point or a melting point not exceeding 145 °C.
Regarding (i) above, KIM teaches an asphalt paving mixture comprising 1 to 20% by weight of an asphalt binder composition and a 80 to 99% by weight of a mixed aggregate which contains 30 to 99.9% by weight of a natural aggregate and 0.1 to 70% by weight of a waste aggregate such as reclaimed asphalt pavement aggregate (see KIM at Abstract and paragraphs [0065]-[0066]). KIM teaches that using a mixture of a natural mineral aggregate and reclaimed asphalt pavement aggregate in these amounts significantly improves the mixability, compactibility and water resistance of the asphalt/aggregate mixture (see KIM at paragraphs [0065]-[0066]).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the asphalt mixture of TANAKA by using a mixed aggregate comprising natural aggregate and 0.1 to 70% by weight asphalt recycled aggregate in an amount of 80 to 99% by weight as taught by KIM (see KIM at paragraphs [0065]-[0066]) as the aggregate in the asphalt paving mixture of TANAKA (see TANAKA at col. 11, lines 39-43). One of ordinary skill in the art would have been motivated to make this modification for the benefit of significantly improving the mixability, compactibility and water resistance of the asphalt/aggregate mixture as taught by KIM (see KIM at paragraphs [0065]-[0066]).
Regarding (ii) above, KASHIWAGI teaches an asphalt mixture comprising a polyester resin, asphalt and a recycled aggregate (see KASHIWAGI at paragraphs 12, 22 and 54), wherein the polyester resin has a softening point of 90 °C or higher and 140 °C or lower (see KASHIWAGI at paragraph 36). KASHIWAGI teaches that excellent durability is obtained if the polyester has a softening point within this range (see KASHIWAGI at paragraphs 12, 22 and 36).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have further modified the asphalt mixture of TANAKA by using polyester resin with a softening point of 90 to 140 °C as taught by KASHIWAGI (see KASHIWAGI at paragraph 36). One of ordinary skill in the art would have been motivated to make this modification for the benefit of improving the durability of the asphalt as taught by KASHIWAGI (see KASHIWAGI at paragraphs 12, 22 and 36).
Regarding claim 2, as applied to claim 1 above, TANAKA in view of KIM and KASHIWAGI teaches an asphalt mixture according to claim 1, wherein the compound (B) has 30 or less carbon atoms (see TANAKA at col. 6, lines 13-53, teaching, e.g., decyl alcohol).
Regarding claim 3, as applied to claim 1 above, TANAKA in view of KIM and KASHIWAGI teaches an asphalt mixture according to claim 1, wherein the compound (B) is one or more compounds selected from the group consisting of an alkylamine, an alkyl alcohol, a sugar alcohol, and an alkylamide compound (see TANAKA at col. 6, lines 13-53, teaching, e.g., decyl alcohol).
Regarding claim 4, as applied to claim 1 above, TANAKA in view of KIM and KASHIWAGI teaches an asphalt mixture according to claim 1, which has a mass ratio of the polyester resin (A) to the compound (B) overlapping with and thereby rendering obvious the claimed range of 4 or more and 39 or less (see TANAKA at col. 7 line 41 - col. 8, line 65, teaching that the modifier composition comprises, by weight, 0.1 to 30% of the compound having the hydroxyl group (i.e., compound B) and 0.1 to 10% of the phosphorous compound, with the remaining 70 to 98.9% being the modifier (polyester resin); this results in ratios of A to B within with the claimed range, e.g., for a composition comprising 85% polyester resin and 10% compound B, the mass ratio is 8.5). As set forth in MPEP § 2144.05, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists (In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
Regarding claim 6, as applied to claim 1 above, TANAKA in view of KIM and KASHIWAGI teaches an asphalt mixture according to claim 1, wherein the asphalt mixture contains the asphalt recycled aggregate in an amount overlapping with and thereby rendering obvious the claimed range of 10% by mass or more and 80% by mass or less (see KIM at paragraphs [0065]-[0066], teaching, by weight, 80 to 99% of a mixed aggregate of which 0.1 to 70% is asphalt recycled aggregate, i.e., 0.1% to 69.3% by weight of the asphalt recycled aggregate in the asphalt mixture). As set forth in MPEP § 2144.05, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists (In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
Regarding claim 10, as applied to claim 1 above, TANAKA in view of KIM and KASHIWAGI teaches an asphalt mixture according to claim 1, wherein the polyester resin (A) has a softening point or a melting point of 90 °C or higher (see TANAKA at col. 22, lines 31-48, teaching a melting point of 150 °C; see KASHIWAGI at paragraph 36, teaching a softening point of 90 °C or higher and 140 °C or lower).
Regarding claim 21, as applied to claim 1 above, TANAKA in view of KIM and KASHIWAGI teaches an asphalt mixture according to claim 1, wherein the polyester resin (A) has a softening point or a melting point of 140 °C or lower (see KASHIWAGI at paragraph 36, teaching a softening point of 90 °C or higher and 140 °C or lower).
Response to Arguments
Applicant's arguments filed 04/08/2026 have been considered but are moot because the arguments do not apply to the new combination of references as set forth in the grounds of rejection above.
Further, the Amendment filed by Applicant necessitated new grounds of rejection under 35 U.S.C. 103 for claims 1-4, 6, 10 and 21 over TANAKA in view of KIM and KASHIWAGI as set forth above.
Conclusion
Applicant’s amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
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/S.C.C./Examiner, Art Unit 1731
/ANTHONY J GREEN/Primary Examiner, Art Unit 1731
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