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
The disclosure is objected to because of the following informalities: most of the texts and numbers in Table 1 at [0118], Table 2 at [0127], Table 3 at [0137]-[0139] and Table 4 at [0144] are unclear or indistinct. Examiner suggests amending the tables to contain clear and distinct text and numbers. Appropriate correction is required.
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 1-26 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, the phrase "preferably" and “preferentially” in lines 8 and 13, and “even more preferably” in line 9 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 1 as requiring “0.5 to 5% by mass of the mass of the bitumen base… over a period Ps of at least 10 hours…” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 1, the recitation “stable” in line 11 is indefinite because the metes and bounds of the claimed “stable” is unclear. Additionally, the specification did not define the recited “stable”.
Examiner is treating claim 1 as requiring “the mass of the bituminous composition is constant at 25oC and under 1013.25 hPa, over a period Ps of at least 10 hours”.
Examiner suggests clarifying the claimed limitation because “claims must particularly point out and distinctly define the metes and bounds of the subject matter to be protected by the patent grant... uncertainties of claim scope should be removed, as much as possible, during the examination process” (see MPEP 2171).
Regarding claim 2, the phrase "especially” in lines 4, 8 and 9 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 2 as requiring “… following a trapping step, carried out by placing said bitumen… taking place 3 hours or more after the end of the trapping step” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 2, the recitations “stabilizes” and “stabilization” in line 8 are indefinite because the metes and bounds of the claimed “stabilizes” and “stabilization” are unclear. Additionally, the specification did not define the recited “stabilizes” and “stabilization”.
Examiner is treating claim 2 as requiring “until the mass of the bituminous composition obtained is constant…”.
Examiner suggests clarifying the claimed limitation because “claims must particularly point out and distinctly define the metes and bounds of the subject matter to be protected by the patent grant... uncertainties of claim scope should be removed, as much as possible, during the examination process” (see MPEP 2171).
Regarding claim 3, the phrase "preferably” and “preferentially” in lines 4 and 9 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 3 as requiring “… by incorporating from 0.1 to 9% by mass…” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 6, the phrase "especially” in line 7 and “exclusively” in line 8 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 6 as requiring “… in the form of one or more products of the reaction between CO2 and NaOH” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 7, the phrase "especially” in line 7 and “exclusively” in line 8 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 7 as requiring “… in the form of one or more products of the reaction between CO2 and KOH” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 8, the phrase "… and preferentially” in line 4 renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 8 as requiring “at least 83% by mass of the total mass of the bituminous composition” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 9, the phrase “preferably” in line 4, “preferentially” in line 7, and “even more preferably” in lines 7-8 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 9 as requiring “said adhesion promoter representing 0.01 to 2.5% by mass of the mass of the bitumen base” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 10, the phrase “preferably” in line 6, “preferentially” in line 6, and “even more preferably” in lines 7-8 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 10 as requiring “further comprising one or more polymers chosen from olefin polymers and elastomers, representing from 0.1 to 12% by mass of the mass of the bitumen base” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 11, the phrase “preferably” in lines 8, 9 and 13, “preferentially” in lines 10, 13, “even more preferably” in line 14, and “especially” in line 12 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 11 as requiring “a)… under heating at a temperature in the range from 90 to 230oC… b) trapping CO2 in the modified bitumen base at a mass content representing from 0.8 to 5.8% by mass of the mass of the bitumen base” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 12, the phrase “preferably” in lines 5 and 8, “preferentially” in lines 6 and 9, and “especially” in line 7 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 12 as requiring “the vessel being maintained at a temperature ranging from 10 to 200oC… the CO2 pressure being chosen in the range from 5.103 to 9.104 hPa” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 13, the phrase “preferably” in line 4, and “preferentially” in line 4 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 13 as requiring “the mass of alkali hydroxide incorporated represents from 0.1 to 9% by mass of the mass of the bitumen base” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 15, the phrase “preferably” in line 6, “preferentially” in line 8, and “even more preferably” in line 8 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 15 as requiring “said adhesion promoter being introduced in a proportion of 0.01 to 2.5% by mass of the total mass of the bitumen base” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 16, the phrase “preferably” in lines 6 and 7, “preferentially” in line 8, and “especially” in line 4 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 16 as requiring “one or more polymers chosen from olefin polymers and elastomers are also incorporated into the bitumen base, said polymers being introduced in a proportion of 0.1 to 12% by mass of the mass of the bitumen base” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 17, the recitation “stable” is indefinite because the metes and bounds of the claimed “stable” is unclear. Additionally, the specification did not define the recited “stable”.
Examiner is treating claim 17 as requiring “… step b) is subjected to a step of releasing a portion of the trapped CO2”.
Examiner suggests clarifying the claimed limitation because “claims must particularly point out and distinctly define the metes and bounds of the subject matter to be protected by the patent grant... uncertainties of claim scope should be removed, as much as possible, during the examination process” (see MPEP 2171).
Regarding claim 18, the phrase “preferably” in line 4, “preferentially” in line 5, and “even more preferably” in lines 5-6 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 18 as requiring “wherein the releasing step leads to a quantity of CO2 trapped in the bituminous composition, corresponding to 0.5 to 5% by mass relative to the mass of the bitumen base” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 24, the phrase “preferably” in line 4 and “preferentially” in line 4 render the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Examiner is treating claim 24 as requiring “wherein hot mixing… at a temperature of 80 to 200oC” as claimed.
Examiner suggests amending the claim to either: i) remove the additional preferential limitation; ii) amend the claim so as to incorporate the narrower preferential limitations as desired; or iii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Regarding claim 26, the recitation “stabilizing” in line 1 is indefinite because the metes and bounds of the claimed “stabilizing” is unclear. Additionally, the specification did not define the recited “stabilizing”.
Examiner is treating claim 26 as requiring “A method for trapping a quantity of CO2 within a bituminous composition”.
Examiner suggests clarifying the claimed limitation because “claims must particularly point out and distinctly define the metes and bounds of the subject matter to be protected by the patent grant... uncertainties of claim scope should be removed, as much as possible, during the examination process” (see MPEP 2171).
Claims 4-5, 14, 19-23 and 25 are rejected due to their dependency on the respective claims 1 and 11.
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 1-11, 13-16 and 19-26 are rejected under 35 U.S.C. 103 as being unpatentable over Andresen et al. (US 2021/0115255 A1) (“Andresen” hereinafter) in view of Constantz et al. (US 2010/0111810 A1) (“Constantz” hereinafter).
Regarding claim 1, Andresen teaches a bituminous composition (see Andresen at [0013] teaching bituminous compositions), comprising:
a bitumen modified by the incorporation of an alkali hydroxide, the bitumen base representing at least 72% by mass of said bituminous composition (see Andresen at [0014] teaching the bitumen represents from 79 to 99.98%... of said bituminous compositions, see Andresen at [0016] teaching the hydroxide XOH with X= Na). NaOH is taken to meet the claimed “alkali hydroxide” based specification at [0019] disclosing the alkali hydroxide is… NaOH. Bitumen represents from 79 to 99.98% of said bituminous compositions is taken to meet the claimed “the bitumen base representing at least 72% by mass of said bituminous composition” (see MPEP 2144.05(I)).
Andresen does not explicitly teach the claimed i) wherein CO2 is trapped in said bituminous composition and represents from 0.5 to 5% by mass of the mass of the bitumen base (see 112 rejection), and ii) the mass of the bituminous composition is stable at 25oC and under 1013.25 hPa over a period Ps of at least 10 hrs (see 112 rejection). However, Andresen teaches that the bituminous composition… can be used in fields of road applications… in road applications, the bituminous composition… used for the manufacture of… asphalts or surface coatings… asphalt is understood to mean a mixture of a bituminous composition with inorganic and/or synthetic fillers (see Andresen at [0136]-[0137] and [0141]).
With respect to i), like Andresen, Constantz teaches asphalt comprising bituminous composition with inorganic and/or synthetic fillers (see Constantz at [0056]-[0057] teaching the present disclosure also includes novel formulation which incorporate the CO2 sequestering composition into asphalt products… the term “asphalt” (i.e., bitumen) is used in its conventional sense… asphalt products of interest also include an amount of aggregate… aggregate… may be any convenient aggregate material… the aggregate material may be CO2 sequestering aggregates).
Constantz further teaches asphalt products of the disclosure may be prepared in accordance with traditional manufacturing protocols… the amount of CO2 sequestering additive, e.g., present in the asphalt product may vary, and may be 1% by weight or more… as such, an amount of the CO2 sequestering additive may be combined with other components of the asphalt product (e.g., asphalt, aggregate, cutback solvents, polymeric additives), and then mixed to produce the final asphalt product (see Constantz at [0058])… CO2 sequestering compositions… include compositions that contain carbonates and/or bicarbonates, which may be in combination… with a monovalent cation such as sodium… the carbonates and/or bicarbonate may contain carbon dioxide from a source of carbon dioxide… and thus some (e.g., at least 99, 99.5, or 99.9%) of the carbon in the carbonates and/or bicarbonates is of fossil fuel origin (see Constantz at [0019])… CO2 sequestering additives are components that store a significant amount of CO2 in a storage stable format… the CO2 sequestering additives of the compositions… including about 90% or more of CO2, e.g., present as one or more carbonate compounds (see Constantz at [0020])… sequestering of CO2… results in prevention of CO2 gas from entering the atmosphere and long term storage of CO2 in a manner that CO2 does not become part of the atmosphere (see Constantz at [0133]).
1% by weight or more CO2 sequestering additive present in the asphalt is taken to meet the claimed “i) wherein CO2 is trapped in said bituminous composition and represents from 0.5 to 5% by mass of the mass of the bitumen base” because the CO2 sequestering additive store (or trap) a significant amount of CO2 including about 90% or more of CO2.
Additionally, MPEP states that “the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination” (see MPEP § 2144.07). In this case, one of ordinary skill in the art would appreciate that the CO2 sequestering additive as taught by Constantz is a suitable aggregate in a bituminous composition.
Furthermore, MPEP states that "[w]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation", and “the normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” (see MPEP § 2144.05.II.A).
As such, one of ordinary skill in the art would appreciate that Constantz teaches 1% by weight or more CO2 sequestering additive may be added to an asphalt composition because it is a suitable aggregate and prevents of CO2 gas from entering the atmosphere, and seek those advantages by adding 1% by weight or more CO2 sequestering additive in the asphalt composition as taught by Andresen.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to add 1% by weight or more CO2 sequestering additive as taught by Constantz in the asphalt composition as taught by Andresen because it is a suitable aggregate and prevents CO2 gas from entering the atmosphere, and there is a reasonable expectation of success that the selected amount as taught by Constantz would be suitable.
With respect to ii), this recitation is being treated as being taught by Andresen in view of Constantz because the mass of the bituminous composition in the asphalt composition is expected to be capable of the claimed ii) “the mass of the bituminous composition is constant at 25oC and under 1013.25 hPa over a period Ps of at least 10 hrs”, absent new and unexpected results.
Alternatively, since the asphalt composition as taught by Andresen in view of Constantz and the claimed bituminous composition in claim 1 employ substantially similar materials and process, it is reasonable to believe that the claimed properties (i.e., the mass of the bituminous composition is constant at 25oC and under 1013.25 hPa over a period Ps of at least 10 hrs) would have naturally flowed following the teaching of Andresen in view of Constantz (see MPEP 2112.01).
Regarding claim 2, Andresen in view of Constantz teach the limitations as applied to claim 1 above, and Constantz further teaches wherein the CO2 was trapped in the bituminous composition (see Constantz at [0056]-[0057] teaching the present disclosure also includes novel formulation which incorporate the CO2 sequestering composition into asphalt products… the term “asphalt” (i.e., bitumen) is used in its conventional sense… asphalt products of interest also include an amount of aggregate… aggregate… may be any convenient aggregate material… the aggregate material may be CO2 sequestering aggregates),
following a trapping step, carried out by placing said bitumen base modified by incorporation of an alkali hydroxide into a CO2 pressure vessel, followed by a step of releasing a portion of the trapped CO2 until the mass of the bituminous composition obtained is constant, which takes place 3 hours or more after the end of the trapping step (see 112 rejection,
(this recitation is being treated as product-by-process limitations because it is not seen to differ structurally from the applied prior art Andresen in view of Constantz (see MPEP 2113.I). In this instance, the structure imparted by the recitations is the trapped CO2 in the bituminous composition, see claim 1 rejection based on Andresen in view of Constantz).
Regarding claim 3, Andresen in view of Constantz teach the limitations as applied to claim 1 above, and Andresen further teaches wherein the bitumen base has been modified by incorporating from 0.1 to 9% by mass relative to the bitumen base (see 112 rejection, see Andresen at [0016] teaching the hydroxide XOH with X=Na… represents at most 3% by weight… of said bituminous compositions) (see MPEP 2144.05(I)).
Regarding claims 4 and 6, Andresen in view of Constantz teach the limitations as applied to claim 1 above, and Constantz further teaches wherein the trapped CO2 is present, at least in part, in the bituminous composition in the form of one or more reaction products with alkali hydroxide (claim 4), and wherein the alkali hydroxide is NaOH, and at least a portion of the incorporated NaOH, or even all of the incorporated NaOH, has reacted with the trapped CO2 and is present in the bituminous composition in the form of one or more products of the reaction between CO2 and NaOH (claim 6) (see 112 rejection, see Constantz at [0019] teaching CO2 sequestering compositions… include compositions that contain carbonates and/or bicarbonates, which may be in combination… with a monovalent cation such as sodium).
Regarding claim 5, Andresen in view of Constantz teach the limitations as applied to claim 1 above, and Andresen further teaches wherein the alkali hydroxide is… NaOH (see Andresen at [0016] teaching the hydroxide XOH with X=Na).
Regarding claim 7, Andresen in view of Constantz teach the limitations as applied to claim 1 above, and Andresen further teaches wherein the alkali hydroxide is KOH (see Andresen at [0016] teaching the hydroxide XOH with X=K), and
at least a portion of the incorporated KOH, or even all of the incorporated KOH, has reacted with the trapped CO2 and is present in the bituminous composition in the form of one or more products of the reaction between CO2 and KOH (the KOH as taught by Andresen is expected to be capable of reacting with CO2 to form one or more products of the reaction between CO2 and KOH, absent new and unexpected results).
Regarding claim 8, Andresen in view of Constantz teach the limitations as applied to claim 1 above, and Andresen further teaches wherein the bitumen base represents at least 83% by mass of the total mass of the bituminous composition (see 112 rejection, see Andresen at [0014] teaching the bitumen represents from 79 to 99.98% by weight… of bitumen, of said bituminous compositions) (see MPEP 2144.05(I)).
Regarding claim 9, Andresen in view of Constantz teach the limitations as applied to claim 1 above, and Andresen teaches further comprising an adhesion promoter chosen from… amines… said adhesion promoter representing 0.01 to 2.5% by mass of the mass of the bitumen base (see 112 rejection, see Andresen at [0015] teaching the amine additive represents at most 3% by weight… of said bituminous compositions) (see MPEP 2144.05(I)).
Regarding claim 10, Andresen in view of Constantz teach the limitations as applied to claim 1 above, and Andresen teaches further comprising one or more polymers chosen from… olefin polymers… representing from 0.1 to 12% by mass of the mass of the bitumen base (see Andresen at [0091] teaching the amount of the olefinic polymer will be adjusted by the person skilled in the art, depending on the nature of the bitumen, see Andresen at [0093] teaching the bituminous composition… comprises, in total, from 0.05% to 15% by weight… by weight of conventional additives (in particular corresponding to the total amount of olefinic polymer and elastomer when they are both present) described above relative to the total weight of said composition.
Regarding claim 11, Andresen teaches a preparation method of a bituminous composition (see Andresen at [0040] teaching a process for the preparation of a bituminous composition), comprising
a bitumen base representing at least 72% by mass of said bituminous composition (see Andresen at [0040] teaching a bitumen, see Andresen at [0014] teaching the bitumen represents from 79 to 99.09% by weight… of bitumen, of said bituminous compositions) (see MPEP 2144.05(I)),
comprising the following steps:
a) obtaining a modified bitumen base, comprising the incorporation of an alkali hydroxide into a bitumen base, said incorporation being followed by or accompanied by mixing, under heating at a temperature in the range of 90 to 230oC (see 112 rejection, see Andresen at [0040] teaching the following components are mixed at a temperature in the range of 90 to 230oC… a bitumen, a hydroxide XOH with X= Na),
Andresen does not explicitly teach the claimed “b) trapping CO2 in the modified bitumen base at a mass content representing from 0.8 to 5.8% by mass of the mass of the bitumen base” (see 112 rejection). However, Andresen teaches that the bituminous composition… can be used in fields of road applications… in road applications, the bituminous composition… used for the manufacture of… asphalts or surface coatings… asphalt is understood to mean a mixture of a bituminous composition with inorganic and/or synthetic fillers (see Andresen at [0136]-[0137] and [0141]).
Like Andresen, Constantz teaches asphalt comprising bituminous composition with inorganic and/or synthetic fillers (see Constantz at [0056]-[0057] teaching the present disclosure also includes novel formulation which incorporate the CO2 sequestering composition into asphalt products… the term “asphalt” (i.e., bitumen) is used in its conventional sense… asphalt products of interest also include an amount of aggregate… aggregate… may be any convenient aggregate material… the aggregate material may be CO2 sequestering aggregates).
Constantz further teaches asphalt products of the disclosure may be prepared in accordance with traditional manufacturing protocols… the amount of CO2 sequestering additive, e.g., present in the asphalt product may vary, and may be 1% by weight or more… as such, an amount of the CO2 sequestering additive may be combined with other components of the asphalt product (e.g., asphalt, aggregate, cutback solvents, polymeric additives), and then mixed to produce the final asphalt product (see Constantz at [0058])… CO2 sequestering compositions… include compositions that contain carbonates and/or bicarbonates, which may be in combination… with a monovalent cation such as sodium… the carbonates and/or bicarbonate may contain carbon dioxide from a source of carbon dioxide… and thus some (e.g., at least 99, 99.5, or 99.9%) of the carbon in the carbonates and/or bicarbonates is of fossil fuel origin (see Constantz at [0019])… CO2 sequestering additives are components that store a significant amount of CO2 in a storage stable format… the CO2 sequestering additives of the compositions… including about 90% or more of CO2, e.g., present as one or more carbonate compounds (see Constantz at [0020])… sequestering of CO2… results in prevention of CO2 gas from entering the atmosphere and long term storage of CO2 in a manner that CO2 does not become part of the atmosphere (see Constantz at [0133]).
1% by weight or more CO2 sequestering additive present in the asphalt is taken to meet the claimed “b) trapping CO2 in the modified bitumen base at a mass content representing from 0.8 to 5.8% by mass of the mass of the bitumen base” because the CO2 sequestering additive store (or trap) a significant amount of CO2 including about 90% or more of CO2.
Additionally, MPEP states that “the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination” (see MPEP § 2144.07). In this case, one of ordinary skill in the art would appreciate that the CO2 sequestering additive as taught by Constantz is a suitable aggregate in a bituminous composition.
Furthermore, MPEP states that "[w]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation", and “the normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” (see MPEP § 2144.05.II.A).
As such, one of ordinary skill in the art would appreciate that Constantz teaches 1% by weight or more CO2 sequestering additive may be added to an asphalt composition because it is a suitable aggregate and prevents CO2 gas from entering the atmosphere, and seek those advantages by adding 1% by weight or more CO2 sequestering additive in the asphalt composition as taught by Andresen.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to add 1% by weight or more CO2 sequestering additive as taught by Constantz in the asphalt composition as taught by Andresen because it is a suitable aggregate and prevents CO2 gas from entering the atmosphere, and there is a reasonable expectation of success that the selected amount as taught by Constantz would be suitable.
Regarding claim 13, Andresen in view of Constantz teach the limitations as applied to claim 11 above, and Andresen further teaches wherein in step a), the mass of alkali hydroxide incorporated represents from 0.1 to 9% by mass of the mass of the bitumen base (see Andresen at [0016] teaching the hydroxide XOH with X= Na… represents at most 3% by weight… of said bituminous compositions) (see MPEP 2144.05(I)).
Regarding claim 14, Andresen in view of Constantz teach the limitations as applied to claim 11 above, and Andresen further teaches wherein the alkali hydroxide is… NaOH (see Andresen at [0016] teaching the hydroxide XOH with X=Na).
Regarding claim 15, Andresen in view of Constantz teach the limitations as applied to claim 1 above, and Andresen further teaches wherein during step a), an adhesion promoter chosen from… amines… said adhesion promoter representing 0.01 to 2.5% by mass of the mass of the bitumen base (see 112 rejection, see Andresen at [0015] teaching the amine additive represents at most 3% by weight… of said bituminous compositions) (see MPEP 2144.05(I)).
Regarding claim 16, Andresen in view of Constantz teach the limitations as applied to claim 11 above, and Andresen further teaches wherein during step a), one or more polymers chosen from… olefin polymers… representing from 0.1 to 12% by mass of the mass of the bitumen base (see Andresen at [0091] teaching the amount of the olefinic polymer will be adjusted by the person skilled in the art, depending on the nature of the bitumen, see Andresen at [0093] teaching the bituminous composition… comprises, in total, from 0.05% to 15% by weight… by weight of conventional additives (in particular corresponding to the total amount of olefinic polymer and elastomer when they are both present) described above relative to the total weight of said composition.
Regarding claims 19-22, Andresen in view of Constantz teach a method for preparing a… membrane… with a bituminous composition according to claim 1 (claim 19), and a method for preparing… a roadway surface… comprising combing a bituminous composition according to claim 1 with… aggregates (claim 20), a method for preparing a bituminous mix comprising hot mixing a bituminous composition according to claim 1 with… aggregates (claim 21), and a mix comprising a bituminous composition according to claim 1 in mixture with… aggregates (claim 22) (see Andresen at [0137] teaching the bituminous composition… used for the manufacture of hot bituminous mixes, asphalts or surface coating… a method of road building comprising the bituminous composition… with aggregates… under heat and applying the obtained material to form part of the road, and see claim 1 rejection based on Andresen in view of Constantz).
Regarding claims 23-25, Andresen in view of Constantz teach a method for preparing an asphalt, comprising hot mixing a bituminous composition according to claim 1 with… synthetic fillers (claim 23), wherein hot mixing with the bituminous composition can be carried out at a temperature of 80 to 200oC (claim 24, see 112 rejection), and an asphalt comprising a bituminous composition according to claim 1 in mixture with… synthetic fillers (claim 25) (see Andresen at [0136] teaching the heating temperature is in the range 80 to 240oC (see MPEP 2144.05(I)), see Andresen at [0137] teaching the bituminous composition… used for the manufacture of hot bituminous mixes, asphalts or surface coating… a method of road building comprising the bituminous composition… with synthetic fillers… under heat and applying the obtained material to form part of the road, and see claim 1 rejection based on Andresen in view of Constantz).
Regarding claim 26, Andresen in view of Constantz teach a method for trapping a quantity of CO2 within a bituminous composition, comprising incorporating the CO2 in said bituminous composition, followed by incorporating an alkali hydroxide (see Andresen at [0040] teaching a process for the preparation of a bituminous composition… wherein the following components are mixed… a bitumen, a hydroxide XOH with X=Na, see Constantz at [0003] teaching a non-cementitious composition that includes a CO2 sequestering additive, see Constantz at [0004] teaching a method of producing a non-cementitious composition that includes the CO2 sequestering additive… a method of producing a non-cementitious composition in which the non-cementitious composition is an asphalt product, and see claims 1 and 11 rejections based on Andresen in view of Constantz).
Allowable Subject Matter
Claims 12 and 17-18 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims, and 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.
The following is a statement of reasons for the indication of allowable subject matter: there are no prior art references of record that teach or fairly suggest to one of ordinary skill in the art all the cumulative limitations of each of the respective independent claim 11 and dependent claims 12 and 17-18.
Specifically, it is noted that Andresen in view of Constantz teach all the limitations of independent claim 11 as outlined above. However, Andresen in view of Constantz do not explicitly teach wherein the CO2 is incorporated by placing the modified bitumen base in a vessel under CO2 pressure, the vessel being maintained at a temperature ranging from 10 to 200oC, the CO2 pressure being chosen in the range from 5.103 to 8.104 hPa (claim 12, see 112 rejection), and the bituminous composition resulting from step b) is subjected to a step of releasing a portion of the trapped CO2 at the end of which the mass of the bituminous composition is constant (claims 17-18, see 112 rejections). And, there are no prior art references of record that provide adequate teachings or apparent reason that would lead the person of ordinary skill to modify Andresen and/or Constantz as claimed.
As such, the prior art references of record fail to teach or render obvious all the cumulative limitations of each of the respective independent claim 11 and dependent claims 12 and 17-18 as claimed. Therefore, all the cumulative limitations of each of the respective independent claim 11 and dependent claims 12 and 17-18 are considered allowable.
Conclusion
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/MARITES A GUINO-O UZZLE/Examiner, Art Unit 1731
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