DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on September 30, 2025 has been entered.
This Office action is in response to the amendment filed September 30, 2025 in which claims 19 and 24 were amended.
The terminal disclaimers have been approved and the Double Patenting rejections of the prior office action are withdrawn.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 20 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 20 is rejected because calcium oxide is recited in claim 19. It is noted that cancelled claims 22 and 27 were not rejected in the previous Office action because the claims were written wherein the calcium oxide was the additive selected from a metal oxide. However, the addition of this limitation to claim 19 shows that that is not the case and that calcium oxide is a component that is separate from the recited additive.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 19, 21, 23, 24, 26 and 28 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Lee (US 20110172092-appears on IDS of 5/1/2025).
Lee teaches oxygenated biochar and soil formulations containing the oxygenated biochar (see abstract).
The oxygenated biochar can have any suitable carbon, nitrogen, oxygen, hydrogen, phosphorous, calcium, sulfur, ash, and volatile matter content. The carbon content can be about, at least, or no more than, for example, 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, 90, or 95 mole percent, or within a particular range therein. The nitrogen content can be about, at least, or no more than, for example, 0.1, 0.25, 0.5, 0.75, 1.0, 1.25, 1.5, 1.75, 2.0, 2.25, 2.5, 2.75, 3.0, 3.25, 3.5, 3.75, 4.0, 4.5, 5.0, 6.0, 7.0, or 8.0 mole percent, or within a particular range therein. The hydrogen content can be about, at least, or no more than, for example, 1, 2, 5, 10, 15, 20, 25, or 30 mole percent, or within a particular range therein. It should be noted that the conversion of the mole percents for the above elements would convert into weight percents that overlap the weight percentages of the present claims. The phosphorus or calcium content can independently be about, at least, or no more than, for example, 5, 10, 25, 50, 100, 500, 1000, 5000, 7500, 10000, 15000, 20000, or 25000 mg/kg, or within a particular range therein. The sulfur content can be about, at least, or no more than, for example, 50, 100, 200, 300, 400, 500, 600, 700, 800, 900, 1000, 1500, or 2000 ppm, or within a particular range therein (see para 0072). The ash content can be about, at least, or no more than, for example, 1, 2.5, 5, 10, 15, 20, 30, 40, 50, 60, or 70%, or within a particular range therein. The volatile matter content can be about, at least, or no more than 1, 2.5, 5, 10, 15, 20, 25, 30, 35, or 40%, or within a particular range therein. (see para 0072). The moisture level can be suitably adjusted, for example, to a humidity level of about, at least, or no more than 1%, 2%, 5%, 10%, 15, 20%, 25%, 30%, 35%, 40%, 45%, 50%, 55%, 60%, 65%, 70%, 75%, 80%, 85%, 90%, 95%, or 100%, or a humidity level within a range bounded by any two of these values (see para 0059). The ppm listed for the above elements overlap those of the present claims.
The oxygenated biochar may also be admixed in one or more soil-fertilizing compounds or materials. The soil-fertilizing compounds or materials can be, for example, carbonate-based (e.g., CaCO3 (salt)), phosphate-based (e.g., the known phosphate minerals, such as in rock phosphate or triple superphosphate), and potassium-based (e.g., KCI (metal halide)) (see para 0076). The salt and the metal halide overlap those of the present claims.
The oxygenated biochar can also have any suitable particle size. In various embodiments, the oxygenated biochar can have a particle size of about, at least, or no more than, for example, 50, 100, 250, 500, 750, 1000, 1500, 2000, 2500, 3000, 3500, 4000, 4500, or 5000 microns, or a particle size within a particular range bounded by any two of the foregoing values. In certain applications (e.g., to ensure the biochar materials are resistant to becoming airborne in windy and/or desert areas), larger biochar particle sizes, such as 6000, 7000, 8000, 9000, 10,000, 20,000, 30,000, 40,000, 50,000 microns or higher (for example, up to 100,000 microns), or a particle size within a particular range bounded by any two of the foregoing values, may be preferred (see para 0073).
Lee meets the limitations of the claims other than the differences set forth below. Lee does not specifically teach that the biochar is a biogenic pulverized-carbon composition. However, if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020).
Lee does not specifically teach the presence of calcium oxide. However, the claim language “at most about 10 wt % calcium oxide” reads on the absence of calcium oxide and is therefore not a required component.
Claim 25 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The prior art fails to teach or suggest that the additive is selected from sodium hydroxide, potassium hydroxide, magnesium oxide, hydrogen bromide, hydrogen chloride, sodium silicate, potassium permanganate, or a combination thereof.
Claims 29 and 30 are allowed because the prior art fails to teach or suggest the claimed elements, compounds and non-combustible matter.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CEPHIA D TOOMER whose telephone number is (571)272-1126. The examiner can normally be reached Monday-Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Prem Singh can be reached at 571-272-6368. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CEPHIA D TOOMER/Primary Examiner, Art Unit 1771 17390687/20260115