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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 03/01/2022, 05/09/2022, 07/19/2022 and 10/02/2023 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-19 in the reply filed on 12/29/2025 is acknowledged.
Claims 20-30 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Invention, there being no allowable generic or linking claim.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 12/29/2025.
Claim Rejections - 35 USC § 103
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-9, 11 and 13-19 are rejected under 35 U.S.C. 103 as being unpatentable over Wilkerson et al. (hereinafter Wilkerson) US 2009/0148931 cited in the IDS filed 07/19/2022.
Regarding claim 1, Wilkerson discloses a system (bioreactor 840) comprising: a substrate (wall 856) having a first channel, a second channel, and a third channel defined therein as shown in Fig. 21 reproduced below, wherein the first channel is separated from the second channel by a first wall structure as shown in Fig. 21 reproduced below, and wherein the second channel is separated from the third channel by a second wall structure as shown in Fig. 21 reproduced below; and an optical waveguide (optical waveguide 12). See [0183, 0191-0196].
While Wilkerson does not expressly state that the wall structure is a partial wall structure, Wilkerson does disclose that the average depth, cross-sectional area (e.g., the cross-sectional area of the chamber 848 taken generally perpendicular to an upper surface of biomass producing material when the chamber 848 is filled), and other dimensions of the bioreactor 840 can be varied as desired [0184].
Thus, since providing a partial wall structure would only require a mere change in the size (or dimension) of a component which is generally recognized as being within the level of ordinary skill in the art, a mere change in size or dimension of the device, i.e. height, would have been prima facie obvious to one of ordinary skill in the art. Furthermore, where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. See MPEP §2144.04 (IV)(A).
As to the optical waveguide being configured to: receive illumination light at a first end of the optical waveguide; propagate the illumination light toward a second end of the optical waveguide; allow at least a portion of the illumination light to escape the optical waveguide from a first surface of the optical waveguide as the illumination light propagates toward the second end of the optical waveguide; and provide the portion of the illumination light that escapes the optical waveguide from the first surface to the second channel or the third channel, the device disclosed by Wilkerson is structurally the same as the instantly claimed. Thus, in the absence of further positively recited structure the device of Wilkerson is capable of providing the claimed operating conditions in view of paragraph [0072, 0078, 0081-0085, 0188 and 0196].
Additionally, it is noted that apparatus claims cover what a device is, not what a device does or how it is to be used. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim. See MPEP § 2114.
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Regarding claims 2 and 4-7, Wilkerson discloses a plurality of bioreactor channels for holding biomass, such as a plurality of photosynthetic organisms (e.g., prokaryotic algae, eukaryotic algae, or both) cultivation media, and the like as discussed in at least paragraphs [0028, 0061, 0194]. The contents of the plurality of bioreactor channels depend on the intended use of the apparatus, which in turn does not patentably distinguish it from the prior art. See MPEP § 2114.
Regarding claim 3, Wilkerson discloses wherein the first channel comprises a first inlet and a first outlet (opening 850), wherein the first inlet and the first outlet permit fluid communication between the first channel and an exterior of the system, wherein the second channel comprises a second inlet and a second outlet (opening 850), wherein the second inlet and the second outlet permit fluid communication between the second channel and the exterior of the system, wherein the third channel comprises a third inlet and a third outlet (opening 850), and wherein the third inlet and the third outlet permit fluid communication between the third channel and the exterior of the system [0183].
Regarding claim 8, Wilkerson discloses wherein the substrate has a fourth channel and a fifth channel defined there, wherein the fourth channel is separated from the fifth channel by a fourth partial wall structure as shown in Fig. 21 reproduced above, and wherein the system further comprises an additional optical waveguide (optical waveguide 12). See [0183, 0191-0196].
Wilkerson also discloses that he one or more environment controlling structures 904 may be operable to partial isolate, substantially isolate, completely isolate, or variations thereof the various open bioreactors 840, 880 from an open air environment. As previously disclosed, one or more illumination assemblies 10 can be carried by the isolator 904 and adapted to provide sufficient light to sustain dense populations of photosynthetic organisms cultivated within the bioreactors 840, 880 [0196]. The illumination assemblies 10 may comprise a single optical waveguide 12, or may comprise multiple optical waveguides 12 [0119]. Therefore, Wilkerson discloses an additional waveguide.
While Wilkerson does not expressly state that the wall structure is a partial wall structure, Wilkerson does disclose that the average depth, cross-sectional area (e.g., the cross-sectional area of the chamber 848 taken generally perpendicular to an upper surface of biomass producing material when the chamber 848 is filled), and other dimensions of the bioreactor 840 can be varied as desired [0184].
Thus, since providing a partial wall structure would only require a mere change in the size (or dimension) of a component which is generally recognized as being within the level of ordinary skill in the art, a mere change in size or dimension of the device, i.e. height, would have been prima facie obvious to one of ordinary skill in the art. Furthermore, where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. See MPEP §2144.04 (IV)(A).
Wilkerson does not expressly disclose that the first channel is separated from the fourth channel by a third wall structure. However, Wilkerson does disclose at least six channels and five separating walls.
Absent unexpected results, it would have been obvious to one of ordinary skill in the art to modify Wilkerson such that the first channel is separated from the fourth channel by third wall structure, since it has been held that rearranging parts of an invention involves only routine skill in the art. See MPEP §2144.04 (VI-C).
As to the optical waveguide being configured to: receive additional illumination light at a first end of the additional optical waveguide; propagate the additional illumination light toward a second end of the additional optical waveguide; allow at least a portion of the additional illumination light to escape the additional optical waveguide from a first surface of the additional optical waveguide as the additional illumination light propagates toward the second end of the additional optical waveguide; and provide the portion of the additional illumination light that escapes the additional optical waveguide from the first surface of the additional optical waveguide to the fourth channel or the fifth channel. Thus, in the absence of further positively recited structure the device of Wilkerson is capable of providing the claimed operating conditions in view of paragraph [0072, 0078, 0081-0085, 0188 and 0196].
Additionally, it is noted that apparatus claims cover what a device is, not what a device does or how it is to be used. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim. See MPEP § 2114.
Regarding claim 9, the rejection of claim 1 above is incorporated herewith.
Wilkerson discloses an array of open and/or closed bioreactors (804) can be used for a highly scalable biomass production system. The number and type of bioreactors can be periodically changed in order to efficiently make a desired amount of biomass product [0185].
Therefore, absent unexpected results, it would have been obvious to one of ordinary skill in the art to modify Wilkerson to include a second substrate having a fourth channel, a fifth channel, and a sixth channel defined therein, wherein the fourth channel is separated from the fifth channel by a third wall structure, and wherein the fifth channel is separated from the sixth channel by a fourth wall structure, since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. See MPEP §2144.04 (VI-B).
As to wherein the optical waveguide is further configured to provide the portion of the illumination light that escapes the optical waveguide from the first surface of the optical waveguide to the fifth channel or the sixth channel, the device disclosed by Wilkerson is structurally the same as the instantly claimed. Thus, in the absence of further positively recited structure the device of Wilkerson is capable of providing the claimed operating conditions in view of paragraph [0072, 0078, 0081-0085, 0188 and 0196].
Additionally, it is noted that apparatus claims cover what a device is, not what a device does or how it is to be used. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim. See MPEP § 2114.
Regarding claim 11, Wilkerson discloses wherein the substrate has a fourth channel, a fifth channel, and a sixth channel defined therein, wherein the fourth channel is separated from the fifth channel by a third wall structure, wherein the fifth channel is separated from the sixth channel by a fourth wall structure, wherein the fourth channel, the fifth channel, and the sixth channel are substantially parallel to the first channel, the second channel, and the third channel, respectively as shown in Fig. 21 reproduced above. Also see [0183, 0191-0196].
Wilkerson also discloses that he one or more environment controlling structures 904 may be operable to partial isolate, substantially isolate, completely isolate, or variations thereof the various open bioreactors 840, 880 from an open air environment. As previously disclosed, one or more illumination assemblies 10 can be carried by the isolator 904 and adapted to provide sufficient light to sustain dense populations of photosynthetic organisms cultivated within the bioreactors 840, 880 [0196]. The illumination assemblies 10 may comprise a single optical waveguide 12, or may comprise multiple optical waveguides 12 [0119]. Therefore, Wilkerson discloses an additional waveguide.
While Wilkerson does not expressly state that the wall structure is a partial wall structure, Wilkerson does disclose that the average depth, cross-sectional area (e.g., the cross-sectional area of the chamber 848 taken generally perpendicular to an upper surface of biomass producing material when the chamber 848 is filled), and other dimensions of the bioreactor 840 can be varied as desired [0184].
Thus, since providing a partial wall would only require a mere change in the size (or dimension) of a component which is generally recognized as being within the level of ordinary skill in the art, a mere change in size or dimension of the device, i.e. height, would have been prima facie obvious to one of ordinary skill in the art. Furthermore, where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. See MPEP §2144.04 (IV)(A).
As to the optical waveguide being configured to: : receive illumination light at a first end of the additional optical waveguide; propagate the illumination light toward a second end of the additional optical waveguide; allow at least a portion of the illumination light to escape the additional optical waveguide from a first surface of the additional optical waveguide as the illumination light propagates toward the second end of the additional optical waveguide; and provide the portion of the illumination light that escapes the additional optical waveguide from the first surface of the additional optical waveguide to the fifth channel or the sixth channel. Thus, in the absence of further positively recited structure the device of Wilkerson is capable of providing the claimed operating conditions in view of paragraph [0072, 0078, 0081-0085, 0188 and 0196].
Additionally, it is noted that apparatus claims cover what a device is, not what a device does or how it is to be used. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim. See MPEP § 2114.
Regarding claim 13, Wilkerson discloses wherein the optical waveguide is suspended above the second channel or the third channel [0188 and 0196].
Regarding claim 14, Wilkerson discloses wherein the optical waveguide is positioned on the substrate adjacent to the third channel or overlays the second channel or the third channel [0188 and 0196].
Regarding claim 15, the device disclosed by Wilkerson is structurally the same as the instantly claimed. Thus, in the absence of further positively recited structure the device of Wilkerson is capable of providing the operating conditions (wherein the optical waveguide is configured such that the portion of the illumination light that escapes the optical waveguide from the first surface and is provided to the second channel or the third channel is of substantially uniform intensity along a length direction of the second channel or a length direction of the third channel) in view of paragraph [0072, 0078, 0081-0085, 0188 and 0196].
Additionally, it is noted that apparatus claims cover what a device is, not what a device does or how it is to be used. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim. See MPEP § 2114.
Regarding claim 16, the device disclosed by Wilkerson is structurally the same as the instantly claimed. Thus, in the absence of further positively recited structure the device of Wilkerson is capable of providing the operating conditions (wherein the optical waveguide is configured such that the portion of the illumination light that escapes the optical waveguide from the first surface and is provided to the second channel or the third channel has an intensity that varies along a length direction of the second channel or a length direction of the third channel) in view of paragraph [0072, 0078, 0081-0085, 0188 and 0196].
Additionally, it is noted that apparatus claims cover what a device is, not what a device does or how it is to be used. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim. See MPEP § 2114.
Regarding claim 17, Wilkerson discloses wherein the optical waveguide is tapered in at least one dimension between the first end and the second end [0067].
Regarding claim 18, Wilkerson discloses wherein the optical waveguide comprises: a mixing region (one or more structures 26) configured to homogenize modes or wavelengths present within the illumination light received at the first end of the optical waveguide; and a coupling region(light-diffusing structures 28) configured to couple the homogenized illumination light from the mixing region into a main body of the optical waveguide[0081-0084].
Regarding claim 19, Wilkerson discloses wherein the first surface of the optical waveguide comprises one or more surface features (light-diffusing structures 28) configured to allow the portion of the illumination light to escape the optical waveguide from the first surface as the illumination light propagates toward the second end of the optical waveguide, and wherein the one or more surface features comprise diffractive features, longitudinal striations, lateral striations, isotropic striations, or pits (The light-diffusing structures 28 may take the form of one or more etchings, facets, grooves, thin-films, optical micro-prisms, lenses (e.g., micro-lenses, and the like), diffusing elements, diffractive elements (e.g., gratings, cross-gratings, and the like) or combinations thereof, such as represented in FIG. 3.) [0084].
Claim Objections
Claims 10 and 12 are 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.
Prior art of records does not disclose the system of claim 9, wherein the second substrate is positioned vertically adjacent to the substrate.
Prior art of records does not disclose the system of claim 11, wherein the third channel and the sixth channel are defined within the substrate adjacently to one another with a spacing therebetween, and wherein the spacing is sufficient to permit imaging of one or more substances contained within the third channel or the sixth channel.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LYDIA EDWARDS whose telephone number is (571)270-3242. The examiner can normally be reached on Monday-Wednesday 08:00-18:00 EST.
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/LYDIA EDWARDS/Primary Examiner, Art Unit 1796
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