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.
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 1-9, 12-14, 16, 19-22, 24-26, 29 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.
Regarding claim 1, it is not clear what is meant by “the impeller allows an axial velocity”. It is not clear if the impeller is actually operating at the claimed speeds, or is just capable of operating at the claimed speed, or something else.
Claims 2-9, 12-14, 16, 19-22, 24-26, and 29 are rejected for the same reasons as they depend from claim 1.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 25 recites a broad needle penetration range, and the claim also recites “more preferably” ranges which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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.
Claims 1-9, 12-14, 16, 19-22, 24-26, and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Fleischel (WO 2018/228840) in view of Chiovitti (US 5,337,965).
Regarding claims 1-3, 12-14, 16, 19-20, and 25, Fleischel teaches heating asphalt to a temperature of 110-190˚C, adding a thermosetting reactive composition, and stirring for at least 2.5 hours (page 3, lines 5-15). Fleischel teaches the product can be used for asphalt mix composition, and has improved softening point, need penetration, elastic response, and adhesion qualities (page 3, lines 20-25). Fleischel teaches homogenization occurs (page 9, lines 26-40). Fleischel teaches the thermosetting reactive compound is added in amount of 0.1-10% wt total composition (page 8, lines 30-34). Fleischel teaches thermosetting reactive compounds selected from polymeric MDI, epoxy resins, and melamine formaldehyde resins (page 3, lines 35-40), and production of an asphalt having a penetration of 20-30, 30-45, 35-50, 40-60, 50-70, 70-100, 100-150, 160-220, 250-330 (page 4, lines 5-12).
Fleischel does not explicitly disclose impeller mixer axial velocity, radial velocity, shear rate, or mixing power.
However, Examiner notes that it is known in the art to select appropriate mixers and speeds. Chiovitti teaches an impeller mixer to mix asphalt materials, operated at 200-20,000 rpm (column 2, lines 39-56).
Therefore, it would have been obvious to the person having ordinary skill in the art to have appropriately selected mixing speeds and equipment, in order to achieve the desired homogenization and desired product properties. Examiner additionally notes that it is expected that the impeller mixers of the prior art would “allow” the claimed mixing speeds. As addressed in the 112 rejections, it is not clear if the mixing speed is actually used in the claims, or just the apparatus is capable of achieving the speed.
Regarding claims 4-9, Fleischel teaches that the process is not limited to be performed in one reaction vessel or container. Multiple mixing steps in multiple vessels may be selected in order to achieve the desired products (page 9, lines 26-40). Examiner further notes that it would have been obvious to the person having ordinary skill in the art to appropriately select the mixing vessel equipment for each stage in order to achieve the desired homogenization and desired asphalt product.
Regarding claim 21-22, and 24, Fleischel teaches using the same performance grade asphalt 70-100 (Examiner considers to read on the claimed “granular”) with preheating up to 140˚C prior to mixing with the polymeric mdi (page 11, lines 1-40). It is further expected that the same products would result having the same properties, since the same process steps are applied to the same feeds at the same temperature conditions.
Regarding claim 26, Fleischel teaches asphalt mixed with thermosetting polymers (pages 8-11).
Regarding claim 29, Fleischel teaches asphalt mix compositions having improved performance (see examples). Examiner notes that the claims are “product by process” and do not recite any specific properties distinguishing from the products of Fleischel.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Krivohlavek (US 9,643,336) – teaches 600 rpm impeller speed
Knowles (US 3,305,474) – teaches mixing asphalt with high impeller speeds (column 2)
Memon (US 2009/0013903) – teaches curing and mixing asphalt compositions
Belak (US 3,260,610) – teaches mixing asphalt with impeller speed of 200-20000 rpm
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHELLE STEIN whose telephone number is (571)270-1680. The examiner can normally be reached Monday-Friday 8:30 AM-5:00 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Prem C Singh can be reached at 571-272-6381. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHELLE STEIN/Primary Examiner, Art Unit 1771
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