Appeal No. 2006-2119
Application No. 10/357,977
adding a crosslinker to the mixture at a crosslinking temperature of between 185°C
and 190°C to form the polymer modified asphalt composition, wherein the crosslinker is selected
from the group consisting of a sulfur-containing derivative, elemental sulfur and mixtures
thereof; and
determining a top and bottom softening point of the polymer modified asphalt
composition and wherein the crosslinking temperature is adapted to control the compatibility of
the polymer modified asphalt composition, resulting in a difference between the top and bottom
softening points of 20°C or less.
Appellant has failed to respond to the Examiner's rejections under 35 U.S.C. § 112, first
paragraph or second paragraph (see Briefs, generally). Since Appellant has failed to address the
Examiner's rejections, we summarily sustain the afore-stated rejections (see the Manual of Patent
Examining Procedure (MPEP) § 1205.02 (8th ed., October 2005)).
Upon careful review of the respective positions advanced by the Appellant and the
Examiner regarding the rejections under §§ 102 and 103, we find that the Examiner's rejections
are well founded inasmuch as they are supported by the prior art evidence relied upon and in
accordance with the current patent jurisprudence. Accordingly, we will sustain the Examiner's
rejections for essentially those reasons expressed in the Answer.
Concerning the rejection under § 102 over Liang, Appellant's principal argument is that
Liang does not recognize controlling the compatibility of the composition via cross-linking
temperature. (Brief, page 3). However, we agree with the Examiner that Liang teaches the
addition of the cross-linker at a temperature of 185°C. (See Examples 3 to 6). Thus, the
invention of Liang produces a bituminous composition that is formed under the same conditions
as specified by the appealed claims.1 We note that a person of ordinary skill in the art repeating
1 Appellant has not presented separate arguments for the claims on appeal. Thus, we select claim 21 as
representative of the rejected claims.
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