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 .
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.
Claim Objections
Claim 6 is objected to because of the following informalities: the last line includes a recitation of “a combiantion” which appears to contain a typographical error and should be “a combination”. Appropriate correction is required.
Applicant is advised that should claim 6 be found allowable, claim 12 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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 4, 16-17, and 22 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.
Claim 4 is indefinite because it includes a double positive recitation of “a moisture control aid” since it can depend from claim 3, and claim 3 depends from claim 2 which already includes a moisture control aid. Correction is required.
Claim 16 is written as if it could depend from itself, which is improper. For purposes of examination, it will be assumed that Applicant intended “any one of claims 14 to 15”. Correction is required.
Claim 17 recites the limitation "the mixture" in the third to last line. There is insufficient antecedent basis for this limitation in the claim. Correction is required.
Claim 22 recites the limitation "the total mixture" in the last two lines. There is insufficient antecedent basis for this limitation in the claim. Correction is required.
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.
Claims 1-2 and 4-16 are rejected under 35 U.S.C. 103 as being unpatentable over Li, US 10,954,390 B2 in view of Murphy, WO 2013/148116 A2 and Simpson, CA 1,115,440 A.
Regarding claim 1, Li teaches a plastic-containing binder comprising
a plastic source, the plastic comprising a styrene unit (polyethylene; column 5 line 46);
a second plastic source having a styrene unit (polystyrene; column 6 line 40; “One can use the 1W-SMP and the 2W-SMP polymers in combination to address both rutting and cracking”; column 6 lines 50-52);
an acrylate monomer (butyl acrylate; column 6 line 40); and
a cross linker (column 9 lines 21-22).
While Li fails to disclose the range of weight percentages of each component, Murphy teaches a plastic composition and discloses similar components comprising a styrene plastic, an acrylate monomer, and a cross linker, and discloses weight percentages in the ranges as claimed (styrenic block copolymer having a polystyrene content between 27-40%, 10-80% acrylate monomer; page 5 lines 15-16 and page 10 lines 16-18). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Li’s weight percentages of the plastic source, the second plastic source, and the acrylate monomer to have the claimed ranges in view of Murphy’s disclosure of a styrene and acrylate plastic composition since one of ordinary skill in the art would understand the general chemical limitations for combining the different proportions and materials.
Murphy further discloses a multifunctional monomer (1,3-butyleneglycol dimethacrylate) having a weight percent in the range of 6-60 (page 12 line 30). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to include a multifunctional monomer since a purpose of a multifunctional monomer in a plastic is to create branched polymer networks that increase a material’s stiffness and strength to be able to make a stiffer and stronger binder, and to have the multifunctional monomer in the range of 5 to 30% by weight since it has been held 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) , and such a modification merely constitutes the routine optimization of an acknowledged results effective variable (see MPEP 2144.05 II).
While the resulting combination fails to disclose a promoter (Examiner notes that promotor and promoter are alternative spellings), Simpson teaches a polymer composition comprising styrene, butyl acrylate, and a cross linker and discloses that adhesion promoters are a common additive (page 11 lines 10-12). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the binder of the resulting combination to include an adhesion promotor in view of Simpson’s disclosure that it is a common additive in polymer compositions which the plastic-containing binder is, to be able to further the adhesion of the binder.
Regarding claim 2, the resulting combination of claim 1 includes the limitations of claim 2 except for a moisture control aid. Simpson further discloses blending the ingredients under constant nitrogen purging to minimize the amount of moisture present (page 12 lines 15-18). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to include a moisture control aid in view of Simpson’s further disclosure since the polymer when packaged in an airtight container has prolonged stability (page 12 lines 23-24).
Regarding claim 4, while the resulting combination of claim 1 fails to disclose a moisture control aid, Simpson further discloses blending the ingredients under constant nitrogen purging to minimize the amount of moisture present (page 12 lines 15-18). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to include a moisture control aid in view of Simpson’s further disclosure since the polymer when packaged in an airtight container has prolonged stability (page 12 lines 23-24).
Regarding claim 5, Simpson further discloses that a multifunctional (“polyfunctional”) monomer is trimethylolpropane triacrylate (last line of page 9 through page 10 line 7). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the multifunctional monomer of the resulting combination to be trimethylolpropane triacrylate in view of Simpson’s further disclosure that trimethylolpropane triacrylate is a well-known multifunctional monomer as a known alternative.
Regarding claim 6, the resulting combination includes the triacrylate being trimethyolpropane triacrylate.
Regarding claim 7, Murphy further discloses that retardant curing additives can be incorporated (Abstract). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination from claim 1 to include a retarder in view of Murphy’s further disclosure to slow the curing time if desired.
Regarding claim 8, while the resulting combination from claim 7 fails to disclose one of the retarders claimed, the Examiner takes Official Notice that tertiary butyl catechol (TBC), tolu hydroquinone (HQ), or acetoxime are all old and well-known retarders. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to have the retarder be one of tertiary butyl catechol (TBC), tolu hydroquinone (HQ), or acetoxime since it has been held that selection of a known material based on its suitability for its intended use is a matter of obvious design choice. In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960).
Regarding claim 9, while the resulting combination fails to disclose that the retarder is present in the binder at about 100 to 3000 ppm, it has been held 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), and such a modification merely constitutes the routine optimization of an acknowledged results effective variable (see MPEP 2144.05 II). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to have the retarder present in the binder at about 100 to 3000 ppm based on the exact type of retarder and the amount of slowing needed before the plastic-containing binder cures.
Regarding claims 10-11, while the resulting combination fails to disclose that the promotor is selected from the claimed list, the Examiner takes Official Notice that N,N- dimethyl-p-toluidine (DMPT) and N,N-dieethyl-p-toluidine (DEPT) are known promotors. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to have the promotor be one of N,N- dimethyl-p-toluidine (DMPT) or N,N-dieethyl-p-toluidine (DEPT) since they are known alternatives based on the property to be supported.
Regarding claim 12, Simpson further discloses that a multifunctional (“polyfunctional”) monomer is trimethylolpropane triacrylate (last line of page 9 through page 10 line 7). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the multifunctional monomer of the resulting combination to be trimethylolpropane triacrylate in view of Simpson’s further disclosure that trimethylolpropane triacrylate is a well-known multifunctional monomer as a known alternative.
Regarding claim 13, the resulting combination from claim 2 includes the limitation claimed since Li discloses mixing the binder with aggregate (Figures 1A-2C).
Regarding claims 14 and 15, the resulting combination from claim 13 includes a moisture control aid being present. While the resulting combination fails to disclose the moisture content being less than 6% or less than 3% by weight, it has been held 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to have the moisture content be less than 6% or less than 3% by weight based on engineering design choice.
Regarding claim 16, the resulting combination from any one of claims 14-15 is absent any bitumen since there is no disclosure of bitumen. Examiner notes that while Li discloses asphalt, Li explicitly discloses that the asphalt component can be any asphalt known in the art (column 9 lines 23-26), and it is known in the art to use bio-based binders or synthetic resins to replace conventional petroleum bitumen.
Regarding claim 17, Li teaches a method of manufacturing a road comprising:
providing a binder comprising:
a plastic source, the plastic comprising a styrene unit (polyethylene; column 5 line 46);
a second plastic source having a styrene unit (polystyrene; column 6 line 40; “One can use the 1W-SMP and the 2W-SMP polymers in combination to address both rutting and cracking”; column 6 lines 50-52);
an acrylate monomer (butyl acrylate; column 6 line 40); and
a cross linker (column 9 lines 21-22).
While Li fails to disclose the range of weight percentages of each component, Murphy teaches a plastic composition and discloses similar components comprising a styrene plastic, an acrylate monomer, and a cross linker, and discloses weight percentages in the ranges as claimed (styrenic block copolymer having a polystyrene content between 27-40%, 10-80% acrylate monomer; page 5 lines 15-16 and page 10 lines 16-18). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Li’s weight percentages of the plastic source, the second plastic source, and the acrylate monomer to have the claimed ranges in view of Murphy’s disclosure of a styrene and acrylate plastic composition since one of ordinary skill in the art would understand the general chemical limitations for combining the different proportions and materials.
Murphy further discloses a multifunctional monomer (1,3-butyleneglycol dimethacrylate) having a weight percent in the range of 6-60 (page 12 line 30). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to include a multifunctional monomer since a purpose of a multifunctional monomer in a plastic is to create branched polymer networks that increase a material’s stiffness and strength to be able to make a stiffer and stronger binder, and to have the multifunctional monomer in the range of 5 to 30% by weight since it has been held 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) , and such a modification merely constitutes the routine optimization of an acknowledged results effective variable (see MPEP 2144.05 II).
While the resulting combination fails to disclose a promoter (Examiner notes that promotor and promoter are alternative spellings), Simpson teaches a polymer composition comprising styrene, butyl acrylate, and a cross linker and discloses that adhesion promoters are a common additive (page 11 lines 10-12). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the binder of the resulting combination to include an adhesion promotor in view of Simpson’s disclosure that it is a common additive in polymer compositions which the plastic-containing binder is, to be able to further the adhesion of the binder.
The resulting combination includes combining the binder with an aggregate (Figures 1A-2C) to coat said aggregate. While the resulting combination fails to disclose the moisture content being less than 3% by weight, Simpson discusses moisture control (page 12 lines 15-18). It has been held 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to control the moisture content to have it be less than 3% by weight based on engineering design choice.
The resulting combination includes compacting the layer during construction (Li’s column 4 lines 17-19). While the resulting combination fails to explicitly disclose laying the mixture onto a roading base course, the Examiner takes Official Notice that a pavement mixture is old and well-known to be laid on a roading base course to be able to form a road. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to lay the mixture of the resulting combination on a roading base course since that is a conventional step to be able to form a road. While the resulting combination fails to disclose laying a thickness of between 50 to about 200 mm, It has been held 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to lay the mixture at a thickness of between 50 to about 200 mm based on engineering design choice, depending on the type of traffic to be traversing the road.
Regarding claim 18, the resulting combination includes the binder comprising a styrene monomer being a polystyrene (column 6 lines 39-40).
Regarding claims 19-20, the inclusion of both claims proves a lack of criticality. The resulting combination from claim 17 includes the acrylate monomer being butyl acrylate, which is a soft monomer (Li’s column 6 line 40). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to have the acrylate monomer be selected from a hard monomer if less flexibility was desired of the polymer.
Regarding claim 21, the resulting combination includes a peroxide cross linker selected from benzoyl peroxide (Li’s column 9 lines 21-22).
Regarding claim 22, the resulting combination includes the binder being mixed with an aggregate (“admixture”), wherein the binder comprises about 8 to about 16% by weight of the total mixture (Li’s column 7 lines 41-57).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Li in view of Murphy and Simpson as applied to claim 1 above, further in view of EP 0649827 A1 (hereinafter will be referred to as “EP ‘827”).
Regarding claim 3, while the resulting combination fails to disclose that the plastic source comprises a depolymerised plastic, EP ‘827 teaches recovering styrene from waste plastic by depolymerization (seventh paragraph on page 2 of the English translation). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to have the plastic source which comprises a styrene unit to comprise depolymerised plastic in view of EP ‘827’s disclosure in an effort to reuse waste plastic.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See attached Notice of References Cited sheet. CN 113293840 A is cited for teaching forming a road using polymer modified asphalt concrete comprising styrene, acrylate, and a cross linking agent comprising benzoyl peroxide. Various references are cited for teaching a polymer-modified pavement.
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/KATHERINE J CHU/Examiner, Art Unit 3671
/CHRISTOPHER J SEBESTA/Supervisory Patent Examiner, Art Unit 3671
