Ex Parte Lesueur et al

Patent Trial and Appeal Board

Sep 14, 2016

12865610 (P.T.A.B. Sep. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/865,610
99715 7590
INNOPHOS, INC.
FILING DATE
03/04/2011
09/16/2016
259 Prospect Plains Road
Bdg. A
Cranbury, NJ 08512
FIRST NAMED INVENTOR
Didier Lesueur
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
99342.00088 4184
EXAMINER
BRUNSMAN, DAVID M
ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
09/16/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
IPRC@Innophos.com
J oseph.DiDonato@Innophos.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DIDIER LESUEUR, FREDERIC DELFOSSE, and
JEAN-VALERYMARTIN1
Appeal2015-002540
Application 12/865,610
Technology Center 1700
Before N. WHITNEY WILSON, CHRISTOPHER C. KENNEDY, and
DEBRA L. DENNETT, Administrative Patent Judges.
KENNEDY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 18-22 and 28. We have jurisdiction under
35 U.S.C. § 6(b). We AFFIRM.
BACKGROUND
The subject matter on appeal relates to asphalt concrete. Spec. 1 :3---6;
Claims 3, 18. Certain relevant claims are reproduced below from pages 3-5
(Claims Appendix) of the Amended Appeal Brief:
1 According to the Appellants, the Real Party in Interest is Innophos, Inc.
Br. 3.
Appeal2015-002540
Application 12/865,610
3. Manufacturing process for a cold, warm, or half-warm asphalt
concrete, provided that said asphalt concrete is comprised of
aggregates and bituminous binder containing water, for a road
surface comprising an exothermic mixture of at least i) one acid
anhydride or acid salt and at least ii) one basic anhydride or basic
salt, to obtain a temperature increase of said asphalt concrete.
7. Process according to Claim 3 wherein said exothermic mixture
is added into said asphalt concrete.
18. Asphalt concrete that can be obtained by the process according
to claim 3.
28. Process according to claim 7 wherein the exothermic mixture is
added into said asphalt concrete after it is spread and before or
after it is compacted.
ANALYSIS
In the Final Action, the Examiner rejected claims 1, 3, 7-16, 18-22,
and 24--30 under 35 U.S.C. § 112, i-f 2, as indefinite. Final Act. 2--4. The
Examiner determined, inter alia, that (1) "[ t ]he scope of claim 18 is unclear
in that it is in the form of a product by process claim but only recites that the
product 'can be' obtained by the process of claim 3," id. at 3, and (2) "[t]he
spread[ing] and compact[ion] steps in claim 28 lack antecedent basis in
claim 7," id. at 4.
In response to an Amendment after the Final Action and to arguments
raised by the Appellants in the Appeal Brief, the Examiner withdraws the
§ 112 rejection of claims 1, 3, 7-16, 24--27, 29, and 30. Ans. 3. However,
as the Examiner notes, the Appellants fail to contest the Examiner's basis for
rejecting claims 18-22 and 28. Id. The only arguments the Appellants raise
in the Appeal Brief are directed to the rejection of certain other claims which
no longer stand rejected. See App. Br. 6-7. The Appellants do not file a
Reply Brief, notwithstanding the fact that, in the Answer, the Examiner
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Appeal2015-002540
Application 12/865,610
expressly states that the Appellants have never challenged the substance of
the rejection of claims 18-22 and 28. See Ans. 3.
Because the Appellants identify no error in the Examiner's rejection
of claims 18-22 and 28, we summarily affirm the rejection of those claims.
Cf In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (even ifthe examiner
failed to make a prima facie case, the Board would not have erred in framing
the issue as one of reversible error because "it has long been the Board's
practice to require an applicant to identify the alleged error in the examiner's
rejections").
CONCLUSION
We AFFIRM the Examiner's rejections of claims 18-22 and 28.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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