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.
Election/Restrictions
Applicant’s election without traverse of Group I in the reply filed on 10 July 2026 is acknowledged.
Claim 10 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 10 July 2026.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claims 4, 8, 9, and 18-20 are objected to because of the following informalities: "that:n" on line 1 of claim 4; "theemulsion" and "thevitrification" on lines 9 and 10 of claim 8; "anda" on line 5 of claim 9; "according to f claim" on line 2 of each of claims 18-20. 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.
Claims 1-9 and 11-20 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 1 (as well as claims 2-7, 9, and 11-20 due to their dependency from claim 1) is rendered indefinite because it recites both that "the performance improvement layer comprises a viscous layer serving as an inner layer and a passivation layer serving as an outer layer" and also that the layer number of the viscous layer or passivation layers may be zero provided that they both are not zero.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 2 (as well as claims 12, 16, and 19 due to their dependency from claim 2) recites the broad recitation of a vitrification temperature is ≤30 oC, and the claim also recites vitrification temperatures of ≤20 oC, ≤10 oC, and 0-10 oC which are narrower statements of the range. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Likewise, claim 3 (as well as claims 4, 13, 17, and 20 due to their dependency from claim 3) is rendered indefinite because it contains the broad recitation of a mixture of emulsions having vitrification temperatures of ≤20 oC and ≥20 oC, as well as the narrower recitation of a mixture of emulsions having vitrification temperatures of ≤10 oC and ≥10 oC.
Likewise, claim 5 (as well as claim 6 due to its dependency from claim 5) is rendered indefinite because it contains the broad recitation of a mass ratio of 1:(0.5-2):(0.7-2.5), as well as the narrower recitation of a mass ratio of 1:(1.0-1.5):(1-2).
Claim 5 is further rendered indefinite by the phrase "the passivation emulsion further includes a functional auxiliary agent, and a mass ratio of the second polymer emulsion, the filler, the water and a functional auxiliary agent is 1:(0.5-2):(0.7-2.5):(0.02-0.1)" because it is unclear if this limitation is required by the claim.
Likewise, claim 8 is rendered indefinite because it contains the broad recitation of a mixture of emulsions having different vitrification temperatures, as well as the narrower recitation of a mixture of emulsions having vitrification temperatures of ≤20 oC and ≥20 oC, and a mixture of emulsions having vitrification temperatures of ≤20 oC and ≥20 oC mixed at a ratio of 1:(0.6-1).
Likewise, claim 9 is rendered indefinite because it contains the broad recitation of first and second emulsions being one or more of an acrylic emulsion, a styrene-butadiene emulsion, and a VAE emulsion, as well as the narrower recitations of a styrene-acrylic copolymer emulsion and a butadiene-styrene-acrylic copolymer emulsion, and an acrylic emulsion.
Claim Interpretation
Since it is Office policy to give claims their broadest reasonable interpretation during prosecution, claims 1-3, 5, 8, and 9 are understood to be limited by their broadest limitations for the purpose of examination.
Claim Rejections - 35 USC § 102
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 1-3, 5-7, 9, and 11-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lee (US 2009/0061221) as evidenced by the Vycar® data sheet, the Rhoplex® AC-1035 data sheet and US 2025/0154385.
Lee is directed to a tack film comprising a polymer film coated on its major surfaces with surface layers comprising a resinous material that is capable of forming a bond with an adjacent layer of asphaltic paving material (paragraph 0007). The tack film is used to ensure interlayer bonding between a layer asphaltic binder course and the surfacing course (paragraph 0032 and Figure 1). The coating composition from which the surface layers are formed is preferably a latex emulsion comprising a mixture of the emulsions Vycar® 460x63, Vycar® 578, Rhoplex® AC-1035, and Michemprime® 4983-40R (Table 1). Vycar® 460x63 and Vycar® 578 have glass transition temperatures of 22 oC and 11 oC, respectively (according to the Vycar® data sheet). Rhoplex® AC-1035 has a glass transition temperature of 28 oC (according to the Rhoplex® AC-1035 data sheet). Michemprime® 4983-40R has a glass transition temperature of 6.2 oC (according to paragraph 0064 of US 2025/0154385).
The polymer film of Lee corresponds to the polymeric film layer of the claims; the a surface layer corresponds to the viscous layer of the performance improvement layer of the claims.
Regarding claim 1, the limitations of this claim are taken to be met since the layer number of the passivation layer may be zero.
Regarding claim 2, the limitations of this claim are taken to be met since each of the four latexes forming the majority of the coating composition have glass transition temperatures (i.e., vitrification temperatures) of less than 30 oC.
Regarding claims 5-7, the limitations of these claims are taken to be met since the layer number of the passivation layer may be zero.
Regarding claims 11-13, the surfacing course corresponds to the asphalt size coated on the functional film since the surfacing course is asphaltic (paragraph 0046).
Regarding claim 15, the limitations of this claim are taken to be met by the arraignment illustrated in Figure 1 with the asphaltic binder course and surface course corresponding to asphalt size layers 1 and 2 with N equal to one.
Claim Rejections - 35 USC § 102
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.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 2009/0061221).
Lee teaches all the limitations of claim 4, as outlined above, except for illustrating an embodiment wherein the mixing ratio of high glass transition temperature and low glass transition temperature emulsions in 1:(0.5-1.5).
However, the broad and narrow ranges of the latexes of the composition depicted in Table 1 include high glass transition temperature and low glass transition temperature emulsions present in amounts that would result in mixing ratios overlapping the range recited in claim 4. The courts have held that a prima facie case of obviousness exists for overlapping ranges. See MPEP 2144.05.
Allowable Subject Matter
Claim 8 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter.
The invention of claim 8 is directed to the functional film of claim 1, wherein the performance improvement layer comprises a transition layer is arranged between viscous and passivation layers.
Lee represents the closest prior art. However, Lee does not teach or fairly suggest the presence of a transition layer, as recited in claim 8, arranged between viscous and passivation layers in a functional film as recited in claim 1.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAMSEY E ZACHARIA whose telephone number is (571)272-1518. The best time to reach the examiner is weekday mornings, Eastern time.
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/RAMSEY ZACHARIA/Primary Examiner, Art Unit 1787
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