Appeal 2007-1941
Application 10/363,159
1 SUBJECT MATTER OF THE INVENTION
2 The claimed invention relates to a genus of compositions for sealing,
3 paving or repairing surfaces. According to the written description, the
4 compositions include an ethylene-unsaturated carboxylic acid copolymer
5 that “may be used alone . . . and/or preferably be combined with a
6 rubberized compound as well as possibly a reinforcing agent, a modifying
7 agent, an additive compound and/or a coloring agent.” Spec. p. 5, ll. 28-32.
8 Each of the rejected claims requires at least the combination of the
9 copolymer and the rubberized compound. Each of the rejected claims also
10 specifies that the composition is “not predominately asphalt.” Applicant
11 defines “not predominately asphalt” as “at least less than 50% asphalt.”
12 Paper titled “Response to Office Action Mailed 9-29-05,” entered December
13 12, 2005, p. 3.
14 PROSECUTION BEFORE THE EXAMINER
15 During the prosecution of the application an examiner rejected certain
16 of the claims under 35 U.S.C. § 102(b) and/or § 103(a) over prior art. Office
17 Action dated September 29, 2005. Applicant responded, inter alia, by
18 “amending the independent claims herein to clarify that applicant’s paving
19 compound ‘is not predominantly asphalt.’” Paper titled “Response to Office
20 Action Mailed 9-29-05,” entered December 12, 2005, p. 3. The amendment
21 narrowed the originally claimed genus to a subgenus of compositions that
22 “were not predominantly asphalt.” Applicant argued that the references
23 relied upon by the examiner did not teach or suggest a composition “that is
24 not predominately asphalt.” Paper titled “Response to Office Action Mailed
25 9-29-05,” entered December 12, 2005, p. 3.
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