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 Objections
Claims 29-30 are objected to because of the following informalities:
Claim 29 reciting “roadways .” appear to have a typographical error and should be “roadways.”; and
claim 30 reciting “buildings .” appear to have a typographical error and should be “buildings.”.
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 18-35 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.
Claims 17-32 and 34 reciting “according to claim 1” are indefinite because claim 1 is “canceled”.
Examiner suggests amending the claims to either i) replace “claim 1” with “claim 17”, or ii) some other clarifying amendments so as to remove the ambiguity as set forth above.
Claims 33 and 35 are rejected due to their dependency on the respective claims 33 and 34.
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 17-35 are rejected under 35 U.S.C. 103 as being unpatentable over Rowland et al. (US 2016/0002442 A1) (“Rowland” hereinafter).
Regarding claim 17, Rowland teaches a method… for increasing the service life… of a bituminous composition (see Rowland at [0001] teaching mixtures of reaction products and reaction products of mixtures of long-chain fatty acids and… alkylene diamines and their use as performance modifiers for bitumen and in asphalt emulsions, see Rowland at [0027] teaching the present disclosure generally relates to the use of mixtures of linear and branched fatty alkyl amide waxes to enhance both high and low temperature properties of asphalt binder… use of these additives will improve road durability in climates that see both hot and cold seasonal temperatures, see Rowland at [0034] teaching the disclosure is applicable to any natural and petroleum-derived asphalts including straight-run fractional-derived asphalts including… cracked asphalts). One of ordinary skill in the art would appreciate that the use of additives to improve road durability as taught by Rowland necessarily has a method,
the method comprising incorporating into the bituminous composition at least one bisamide compound of formula (I)
RA-X-RC-X’-RB (I)
wherein… RA and RB are independently selected from the group consisting of… linear… saturated… hydrocarbon chains comprising 1 to 36 carbon atoms… RC is a… linear… saturated… hydrocarbon chain comprising 3 to 18 carbons… X and X’ represent an amide function… -NH-CO- or -CO-NH (see Rowland at [0035] teaching a first aspect… relates to the use of fatty bisamide waxes which are obtainable by the condensation of branched and/or linear fatty acids and alkylene diamines, see Rowland at [0041] teaching the alkylene diamines… comprise diamines of the structure
H2N –(–CH2–)–nNH2
where n = 2-6, see Rowland at [0042] teaching in a first embodiment the fatty bisamide wax is a physical blend of two waxes, the first of the structure
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where R is a long-chain predominantly linear alkyl group having… 17 to 21 carbon atoms… saturated). The R having 17 to 21 linear alkyl carbon atoms is taken to meet the claimed “RA and RB… linear saturated 3 to 18 carbon atoms”. CH2 n = 2-6 is taken to meet the claimed the claimed and “RC… linear saturated 3 to 18 carbon atoms” (see MPEP 2144.05(I)).
Regarding claim 18, Rowland teaches the limitations as applied to claim 17 above, and Rowland further teaches wherein the bisamide compound has the formula (IA)
RA-CONH-RC-NHCO-RB (IA)
(see Rowland at [0035] teaching a first aspect… relates to the use of fatty bisamide waxes which are obtainable by the condensation of branched and/or linear fatty acids and alkylene diamines, see Rowland at [0041] teaching the alkylene diamines… comprise diamines of the structure
H2N –(–CH2–)–nNH2
where n = 2-6, see Rowland at [0042] teaching in a first embodiment the fatty bisamide wax is a physical blend of two waxes, the first of the structure
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where R is a long-chain predominantly linear alkyl group having… 17 to 21 carbon atoms… saturated).
Regarding claims 19-20, Rowland teaches the limitations as applied to claim 17 above, and Rowland further teaches wherein RC represents a linear saturated hydrocarbon chain (claim 19), wherein RC is selected from the group consisting of… –C4H8– (claim 20) (see Rowland at [0041] teaching… where n = 2-6) (see MPEP 2144.05(I)).
Regarding claims 21-22, Rowland teaches the limitations as applied to claim 17 above, and Rowland further teaches wherein RA and RB, either… identical… represent a hydrocarbon chain comprising from 4 to 22 carbon atoms (claim 21), and wherein RA and RB, either… identical… represent a linear hydrocarbon chain (claim 22) (see Rowland at [0042] teaching in a first embodiment the fatty bisamide wax is a physical blend of two waxes, the first of the structure
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where R is a long-chain predominantly linear alkyl group having… 17 to 21 carbon atoms… saturated) (see MPEP 2144.05(I)).
Regarding claim 23, Rowland teaches the limitations as applied to claim 17 above, and Rowland further teaches wherein the bisamide compound of formula (I) is used in a concentration from 0.1 to 30% by weight with respect to the total weight of the bituminous composition (see Rowland at [0051] teaching the amount of performance modifier comprising the bisamide wax mixture to be added to the asphalt binder composition is at least 0.5%... based on the weight of the bitumen and/or asphalt cement) (see MPEP 2144.05(I)).
Regarding claim 24, Rowland teaches the limitations as applied to claim 17 above, and Rowland further teaches wherein the bituminous composition further additives different from the bisamide compound of formula (I) (see Rowland at [0042] teaching physical blend of two waxes… the second structure, shown below). The second bisamide is taken to meet the claimed “further additives different from the bisamide compound of formula (I)”.
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Regarding claim 25, Rowland teaches the limitations as applied to claim 17 above, and Rowland further teaches wherein the bituminous composition is solid when cold and in a divided form (see Rowland at [0021] teaching while most of the discussion has centered on hot and warm mix paving applications, asphalt binders incorporating the present disclosure would also have utility in emulsions and in non-paving applications… binders for fuel pellets and briquettes). Asphalt binders for pellets and briquettes is taken to meet the claimed “the bituminous composition is solid when cold and in a divided form”.
Regarding claims 26 and 28, Rowland teaches the limitations as applied to claim 17 above, and Rowland further teaches wherein the signs of aging are selected from the groups consisting of cracks, detachments, ruts, collapses, potholes, chipping, crumbling, blistering and crazing (claim 26), and wherein the aging is caused by the presence of oxygen and/or by exposure to ultraviolet radiation and/or by thermal variation and/or by exposure to moisture and/or by exposure to weathering (claim 28) (these recitations are not steps in the claimed method, and are being treated as being taught by Rowland, absent new and unexpected results because Rowland teaches that the use of these additives will improve road durability in climates that see both hot and cold seasonal temperatures (see Rowland at [0027]). Additionally, it is within the ability of one skilled in the art, with the benefit of the teachings of Rowland to identify the claimed “signs of aging are selected from the groups consisting of cracks, detachments, ruts, collapses, potholes, chipping, crumbling, blistering and crazing” (claim 26), and identify the cause of aging as recited in the claimed “wherein the aging is caused by the presence of oxygen and/or by exposure to ultraviolet radiation and/or by thermal variation and/or by exposure to moisture and/or by exposure to weathering” (claim 28)).
Regarding claims 27, 29-30 and 32-33, Rowland teaches the limitations as applied to claim 17 above, and Rowland further teaches for improving the resistance of the bituminous composition to oxidative and/or thermal aging (claim 27), for reducing the frequency of renewal and/or of renovation of the roadways (claim 29), for reducing the frequency of renewal and/or of renovation of buildings (claim 30), for reducing and/or minimizing and/or delaying and/or attenuating the degradation of at least one mechanical property of the bituminous composition (claim 32), and wherein the mechanical property is selected from the group consisting of the ring and ball softening temperature, the elastic recovery and the permanent deformation (claim 33) (these recitations are not steps in the claimed method, and are being treated as being taught by Rowland, absent new and unexpected results because Rowland teaches that the use of these additives will improve road durability in climates that see both hot and cold seasonal temperatures (see Rowland at [0027]). Additionally, it is within the ability of one skilled in the art, with the benefit of the teachings of Rowland to meet the claimed for improving the resistance of the bituminous composition to oxidative and/or thermal aging (claim 27), for reducing the frequency of renewal and/or of renovation of the roadways (claim 29), for reducing the frequency of renewal and/or of renovation of buildings (claim 30), for reducing and/or minimizing and/or delaying and/or attenuating the degradation of at least one mechanical property of the bituminous composition (claim 32), and wherein the mechanical property is selected from the group consisting of the ring and ball softening temperature, the elastic recovery and the permanent deformation (claim 33)).
Regarding claim 31, Rowland teaches the limitations as applied to claim 17 above, and Rowland further teaches wherein the bituminous composition is a bituminous mix (see Rowland at [0028] teaching the products of the disclosure are easier to incorporate into the asphalt binder and the hot mixes formed from the modified binders).
Regarding claim 34, Rowland teaches the limitations as applied to claim 17 above, and Rowland further teaches wherein the method comprises at least the following steps: i. preparation of a bituminous composition comprising at least one bisamide compound of formula (I) as defined in claim 17 (see Rowland at [0027] teaching the present disclosure generally relates to the use of mixtures of linear and branched fatty alkyl amide waxes to enhance both high and low temperature properties of asphalt binder… use of these additives will improve road durability in climates that see both hot and cold seasonal temperatures, see Rowland at [0034] teaching the disclosure is applicable to any natural and petroleum-derived asphalts including straight-run fractional-derived asphalts including… cracked asphalts, see Rowland at [0035] teaching a first aspect… relates to the use of fatty bisamide waxes which are obtainable by the condensation of branched and/or linear fatty acids and alkylene diamines, see Rowland at [0041] teaching the alkylene diamines… comprise diamines of the structure
H2N –(–CH2–)–nNH2
where n = 2-6, see Rowland at [0042] teaching in a first embodiment the fatty bisamide wax is a physical blend of two waxes, the first of the structure
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where R is a long-chain predominantly linear alkyl group having… 17 to 21 carbon atoms… saturated, and see claim 17 rejection),
ii. subjecting the bituminous composition to an aging process caused by the presence of oxygen and/or by exposure to ultraviolet radiation and/or by thermal variations and/or by exposure to moisture and/or by exposure to weathering, iii. measurement of one or a plurality of parameters selected from the group consisting of ring and ball softening temperature, non-recoverable creep compliance, and elastic recovery percentage to evaluate resistance to aging (these recitations are being treated as being taught by Rowland, absent new and unexpected results because Rowland teaches that the use of these additives will improve road durability in climates that see both hot and cold seasonal temperatures (see Rowland at [0027])... the reaction products were prepared by known methods and tested in blends with asphalt cement… the parameters relevant for the processing and quality of the asphalt, viz. softening point… ring/ball… needle penetration… were examined (see Rowland at [0054])… for hot mix paving applications, the Strategic Highway Research Program (SHRP) has developed asphalt binder specifications, including high temperature tests and low temperature tests, performed on asphalt cement before and after accelerated ageing… the high temperature tests determine the viscoelastic characteristics of the asphalt to control pavement rutting… the low temperature tests determine the cold flow properties of the asphalt to control low temperature cracking… the oven aging tests predict aging characteristics to estimate binder properties after extended periods of time on the road… this system defines climate-related optimal working conditions of asphalt binder through specifications for high and low temperature properties of asphalt cement that correlate to road performance… an increase in the upper performance grade of asphalt helps a road resist rutting, while an improved lower performance grade helps a road resist thermal cracking (see Rowland at [0007]). Additionally, it is within the ability of one skilled in the art, with the benefit of the teachings of Rowland to meet the claimed “ii. subjecting the bituminous composition to an aging process caused by the presence of oxygen and/or by exposure to ultraviolet radiation and/or by thermal variations and/or by exposure to moisture and/or by exposure to weathering, iii. measurement of one or a plurality of parameters selected from the group consisting of ring and ball softening temperature, non-recoverable creep compliance, and elastic recovery percentage to evaluate resistance to aging”.
Regarding claim 35, Rowland teaches the limitations as applied to claims 17 and 34 above, and Rowland teaches further comprising a step of applying the bituminous composition to a roadway and/or a surface of a building after the step (i) of preparation of the bituminous composition and before step (iii) (these recitations are being treated as being taught by Rowland, absent new and unexpected results because Rowland teaches that the use of these additives will improve road durability in climates that see both hot and cold seasonal temperatures (see Rowland at [0027])… a modifier for asphalt cement which improves rutting and processing characteristics of asphalt pavement without compromising the low-temperature properties of the asphalt cement (see Rowland at [0020]). Additionally, it is within the ability of one skilled in the art, with the benefit of the teachings of Rowland to meet the claimed “a step of applying the bituminous composition to a roadway and/or a surface of a building after the step (i) of preparation of the bituminous composition and before step (iii)”.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARITES A GUINO-O UZZLE whose telephone number is (571)272-1039. The examiner can normally be reached M-F 8am-4pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber R Orlando can be reached at (571)270-3149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARITES A GUINO-O UZZLE/Examiner, Art Unit 1731
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