DETAILED ACTION
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 4 and 11-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Blyth et al. (US 20150080505 A1), hereinafter referred to as BLYTH.
Regarding claim 1, BLYTH teaches a method for producing an engineered asphalt additive (paragraph [0009]: methods of producing rubber compositions for use in paving mixtures) comprising the steps of:
adding a plurality of structural particles (paragraph [0047]: crumb rubber) to a first vessel;
adding at least one non-elastomeric liquid (paragraph [0047]: maltene-like oil) to the first vessel; and
mixing the plurality of structural particles with the at least one non-elastomeric liquid in the first vessel for between 1 and 30 minutes to produce an engineered asphalt additive (paragraphs [0046]: the process temperature and time in the methods of producing the rubber compositions disclosed herein can vary; the composition can be heated for as long as about 15 minutes; [0047]: the mixture of crumb rubber and maltene-like oil can be mixed to varying degrees using containers and mixers common in the field, a mixing blender such as a ribbon blender or, preferably, a paddle blender can be used). BLYTH teaches mixing for 15 min, which is within and anticipates the claimed range.
Regarding claim 4, BLYTH teaches the method of claim 1, wherein the at least one non-elastomeric liquid coats at least a portion of a surface of each of the plurality of structural particles (paragraph [0094]: rubber composition was made by first thoroughly coating a rubber with an oil).
Regarding claim 11, BLYTH teaches the method of claim 1, wherein the non-elastomeric liquid is selected from the group consisting of workability/compaction agents, slipping agents, rejuvenation agents, and anti-stripping agents (paragraph [0047]: maltene-like oil).
Regarding claim 12, BLYTH teaches the method of claim 1, wherein the structural particles are crumb rubber particles (paragraph [0037]: crumb rubber).
Regarding claim 13, BLYTH teaches the method of claim 1, wherein the structural particles are crumb rubber particles and are selected from the group consisting of rubber ground through ambient processing, rubber ground through cryogenic processing, recycled rubber, vulcanized rubber, and un-vulcanized rubber (paragraphs [0037]: the crumb rubber can be vulcanized; [0040]: reduced in size by using cryogenic system).
Regarding claim 14, BLYTH teaches the method of claim 1, wherein the structural particles are comprised of recycled rubber from auto tires, truck tires, waste auto tires, waste truck tires, or any combination thereof (paragraph [0040]: the major source of crumb rubber is from scrap tires).
Regarding claim 15, BLYTH teaches the method of claim 1, wherein a majority of the structural particles have a size between minus 16 mesh and plus 300 mesh (paragraph [0038]: crumb rubber with a sieve designation of about 80 mesh, or about 170 mesh). BLYTH teaches sizes which are within and anticipate the claimed range.
Regarding claim 16, BLYTH teaches the method of claim 15, wherein a majority of the structural particles have a size between minus 30 mesh and plus 300 mesh (paragraph [0038]: crumb rubber with a sieve designation of about 80 mesh, or about 170 mesh). BLYTH teaches sizes which are within and anticipate the claimed range.
Regarding claim 17, BLYTH teaches the method of claim 16, wherein a majority of the structural particles have a size between minus 40 mesh and plus 300 mesh (paragraph [0038]: crumb rubber with a sieve designation of about 80 mesh, or about 170 mesh). BLYTH teaches sizes which are within and anticipate the claimed range.
Regarding claim 18, BLYTH teaches method of claim 1, wherein the mixing step comprises using a paddle mixer, a ribbon blender or mixer, a V blender, a continuous processor, a cone screw blender, a counter-rotating mixer, a double & triple shaft mixer, drum blenders, an intermix mixer, a horizontal mixer, or a vertical mixer (paragraph [0047]: the mixture of crumb rubber and maltene-like oil can be mixed to varying degrees using containers and mixers common in the field, a mixing blender such as a ribbon blender or, preferably, a paddle blender can be used).
Claims 1 and 2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Butz et al. (US 20130116364 A1), hereinafter referred to as BUTZ.
Regarding claim 1, BUTZ teaches a method for producing an engineered asphalt additive (paragraph [0001]: a method for producing a bulk material of agglomerates having rubber particles and wax; the use of this bulk material for the production of asphalt) comprising the steps of:
adding a plurality of structural particles to a first vessel;
adding at least one non-elastomeric liquid to the first vessel; and
mixing the plurality of structural particles with the at least one non-elastomeric liquid in the first vessel for between 1 and 30 minutes to produce an engineered asphalt additive (paragraphs [0197]: the rubber granulate is supplied in the mixer, the mixing process and the associated heat generation are started, and thereafter the wax are measured and added; [0074]: the wax melt should be added to the rubber particles to be activated by swelling within about 2-3 minutes).
Regarding claim 2, BUTZ teaches the method of claim 1, wherein the mixing step lasts for between 1 and 5 minutes (paragraphs [0197]: the rubber granulate is supplied in the mixer, the mixing process and the associated heat generation are started, and thereafter the wax are measured and added; [0074]: the wax melt should be added to the rubber particles to be activated by swelling within about 2-3 minutes).
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.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over BLYTH in view of Osborn et al. (US 5488080 A), hereinafter referred to as OSBORN.
Regarding claim 3, BLYTH teaches the method of claim 1. While BLYTH discloses that the process temperature and time in the methods of producing the rubber compositions disclosed herein can vary (see BLYTH at paragraph [0046]), BLYTH is silent with respect to the mixing step occurring at an ambient temperature.
However, OSBORN discloses a dry liquid concentrate mixture comprising crumb rubber particles and tall oil, tall oil derivatives or other fatty acids, which may be enhanced by other components, such as modifiers, for use to enhance the properties of parent materials, such as asphalt (see OSBORN at Abstract). OSBORN teaches that mixing of the rubber particles with the tall oil agents is best accomplished by a dispersion mixing system, such as a ribbon blender, and that mixing can be done at ambient temperature (see OSBORN at Col. 4, lines 38-41).
One of ordinary skill in the art would have recognized anticipated success when mixing the rubber composition of BLYTH at ambient temperature as disclosed by OSBORN based on the teachings of BLYTH describing that the process temperature and time in the methods of producing the rubber compositions disclosed herein can vary (see BLYTH at paragraph [0046]). Moreover, one of ordinary skill in the art would have a reasonable expectation of success when conducting mixing of the rubber composition of BLYTH at ambient temperature disclosed by OSBORN since OSBORN explicitly teaches that mixing of the rubber particles with the tall oil agents can be done at ambient temperature (see OSBORN at Col. 4, lines 38-41). See MPEP § 2144.05(II)(A): "[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".
Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention that the modification of the method of BLYTH by mixing crump rubber with oil at ambient temperature as disclosed by OSBORN would be suitable.
Claims 5-6, 8-10 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over BUTZ.
Regarding claim 5, BUTZ teaches a method for producing a modified asphalt mix comprising the steps of:
adding an aggregate to a second vessel;
heating the aggregate in the second vessel to an elevated temperature; adding the engineered asphalt additive of claim 1 to the second vessel;
adding heated asphalt binder to the second vessel; and
mixing the aggregate with the engineered asphalt additive of claim 1 and the heated asphalt binder to produce asphalt mix (paragraphs [0116-17]: the agglomerates produced according to the invention can are readily conveyed with the dispensing techniques existing in asphalt mixing plants, such as with screw conveyors or pneumatic conveyors, agglomerates are metered directly into the asphalt mixer in the production of asphalt, based on the bituminous composition with a fraction of 1-30 wt.-%; [0092]: the mixing temperature is in the range of 130 to 190°C/266 to 374 degrees Fahrenheit; [0202]: a stone mastic asphalt SMA 16 S is to be manufactured using rubber particles).
BUTZ discloses manufacturing a stone mastic asphalt (paragraph [0202]), thus indicating that the asphalt composition comprises coarse aggregate. Furthermore, according to MPEP 2144.04 (IV)(C): The selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946); Selection of any order of mixing ingredients is prima facie obvious. In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930).
Regarding claim 6, BUTZ teaches the method of claim 5, wherein the asphalt binder is heated to a temperature between 280-350 degrees Fahrenheit (paragraph [0092]: the mixing temperature is in the range of 130 to 190°C/266 to 374 degrees Fahrenheit). BUTZ teaches a range which overlaps and renders obvious the claimed range. 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. See MPEP §2144.05(I).
Regarding claim 8, BUTZ teaches the method of claim 5, during the mixing step, the plurality of structural particles of the engineered asphalt additive swell up to a volume larger than their original volume (paragraph [0127]: by the swelling of rubber particles in the bitumen, oily components (maltenes) are removed from the bitumen and fixed in the rubber; the rubber particles thereby increase in volume (up to twice)).
Regarding claim 9, BUTZ teaches the method of claim 5, wherein the elevated temperature is a temperature between 280 and 350 degrees Fahrenheit (paragraph [0092]: the mixing temperature is in the range of 130 to 190°C/266 to 374 degrees Fahrenheit). BUTZ teaches a range which overlaps and renders obvious the claimed range.
Regarding claim 10, BUTZ teaches the method of claim 5, wherein the elevated temperature is a temperature between 270 and 300 degrees Fahrenheit (paragraph [0092]: the mixing temperature is in the range of 130 to 190°C/266 to 374 degrees Fahrenheit). BUTZ teaches a range which overlaps and renders obvious the claimed range.
Regarding claim 19, BUTZ teaches the method of claim 5, wherein the mixing step comprises using belts, augers, metered feeding, pneumatic feeding, or a loss in weight feeder (paragraph [0116]: the agglomerates produced according to the invention can are readily conveyed with the dispensing techniques existing in asphalt mixing plants, such as with screw conveyors or pneumatic conveyors).
Regarding claim 20, BUTZ teaches the method of claim 5, further comprising a second mixing step wherein the engineered asphalt additive is mixed using aggregate feed belts, a RAP collar, or pug mill (paragraphs [0016-17]: the agglomerates produced according to the invention can are readily conveyed with the dispensing techniques existing in asphalt mixing plants, such as with screw conveyors or pneumatic conveyors; the agglomerates are metered directly into the asphalt mixer in the production of asphalt).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over BUTZ in view of OSBORN.
Regarding claim 7, BUTZ teaches the method of claim 6, but is silent with respect to the mixing step lasting for between 9 seconds and 5 minutes.
However, OSBORN discloses a dry liquid concentrate mixture is disclosed comprising crumb rubber particles and tall oil, tall oil derivatives or other fatty acids, which may be enhanced by other components, such as modifiers, for use to enhance the properties of parent materials, such as asphalt (see OSBORN at Abstract). OSBORN teaches that asphalt may be blended with a 10-30 mesh ambiently produced crumb rubber; resulting dry liquid concentrate mixture is blended into the asphalt at a temperature of 320°F, the jellified material from this blending is accomplished within a mix cycle of 5 minutes (see OSBORN at Col. 8, lines 11-17).
Both BUTZ and OSBORN disclose asphalt additives comprising crump rubber coated with oil. Furthermore, similarly to BUTZ, OSBORN discloses mixing at elevated temperature (see OSBORN at Col. 8, lines 11-17: 320°F; and BUTZ at paragraph [0092]: the mixing temperature is in the range of 130 to 190°C/266 to 374 degrees Fahrenheit). Thus, one of ordinary skill in the art before the effective filing date of the claimed invention would have a reasonable expectation of success when adjusting mixing time of the method of BUTZ to be within the claimed range, e.g., mixing for 5 minutes, as disclosed by OSBORN, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 220 F.2d 454, 105 USPQ 223 (CCPA 1955).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Greenberg et al. (US 5952412 A) discloses rubber pellets made from discarded rubber and a liquid binder, with such pellets preferably containing an amount of filler material; the rubber pellets are preferably used to produce asphalt, so that the rubber pellets provide specific amounts of ingredients to an asphalt production process thereby eliminating separate ingredient addition steps (Col. 1, lines 4-15).
Dannert et al. (EP 1873212 A1) discloses a process for modifying bitumen with waster rubber powder comprising a first step in which rubber powder is mixed with aromatic oil, and a second step in which the rubber powder resulting from the previous step is mixed with bitumen, at a temperature comprised between 140-200°C and for a time comprised between 5-40 minutes (Abstract).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANASTASIA KUVAYSKAYA whose telephone number is (703)756-5437. The examiner can normally be reached Monday-Thursday 7:00am-5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber 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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/ANASTASIA A. KUVAYSKAYA/Examiner, Art Unit 1731
