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 .
Claims 1-5, 7-11, 13-18 and 20-24 are pending in this application and were examined on their merits.
The rejection of Claim 19 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applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention, has been withdrawn due to the Applicant’s amendments to the claims filed 04/08/2026.
The rejection of Claims 1-5, 7-10, 14, 17 and 18 under 35 U.S.C. § 103 as being
unpatentable over Garcia-Gonzalez et al. (2014), in view of AI Rowaihi et al. (WO
2019/193518 A2), as evidenced by Mozumder et al. (2013), all of record, and further
evidenced by MMC (2025), has been withdrawn due to the Applicant’s amendments to the claims filed 04/08/2026.
The rejection of Claims 1-5, 7-10, 11, 13, 14, 17 and 18 under 35 U.S.C. § 103 as being unpatentable over Garcia-Gonzalez et al. (2014), in view of Al Rowaihi et al. (WO 2019/193518 A2), as evidenced by Mozumder et al. (2013), all of record, and further evidenced by MMC (2025), and further in view of Beilen et al. (2012), of record, has been withdrawn due to the Applicant’s amendments to the claims filed 04/08/2026.
The rejection of Claims 1-5, 7-10, 14, 15, 16, 17 and 18 under 35 U.S.C. § 103 as being unpatentable over Garcia-Gonzalez et al. (2014), in view of AI Rowaihi et al. (WO 2019/193518 A2), as evidenced by Mozumder et al. (2013), all of record, and further evidenced by MMC (2025), and further in view of Haas et al. (CA 2900293 A1), of record, has been withdrawn due to the Applicant’s amendments to the claims filed 04/08/2026.
The provisional rejection of Claims 1-5, 7-11, 13, 14 and 18 on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-9, 13, 14 and 15 of copending Application No. 18/570,699 in view of Mozumder et al. (2013), has been withdrawn due to the Applicant’s amendments to the claims filed 04/08/2026.
The provisional rejection of Claims 1-5, 7-11, 13, 14, 15, 16 and 18 on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-9, 13, 14 and 15 of copending Application No. 18/570,699 in view of Mozumder et al. (2013), of record, as applied to Claims 1-5, 7-11, 13, 14 and 18 above, and further in view of Haas et al. (CA 2900293 A1), of record, has been withdrawn due to the Applicant’s amendments to the claims filed 04/08/2026.
The provisional Claims 1-5, 7-11, 13, 14, 17 and 18 on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-9, 13, 14 and
15 of copending Application No. 18/570,699 in view of Mozumder et al. (2013), of
record, as applied to Claims 1-5, 7-11, 13, 14 and 18 above, and further in view of Al
Rowaihi et al. (WO 2019/193518 A2), of record, has been withdrawn due to the Applicant’s amendments to the claims filed 04/08/2026.
The provisional rejection of Claims 1-5, 7-11, 13, 14, 18 and 20 on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-9, 13, 14 and
15 of copending Application No. 18/570,699 in view of Mozumder et al. (2013), of
record, as applied to Claims 1-5, 7-11, 13, 14 and 18 above, and further in view of
further in view of Sivashanmugam et al. (2009), has been withdrawn due to the Applicant’s amendments to the claims filed 04/08/2026.
The provisional rejection of Claims 1-5, 7-11, 13, 14, 18 and 21 on the ground of
nonstatutory double patenting as being unpatentable over claims 1-5, 7-9, 13, 14 and
15 of copending Application No. 18/570,699 in view of Mozumder et al. (2013), of
record, as applied to Claims 1-5, 7-11, 13, 14 and 18 above, and further in view of
further in view of Reed et al. (US 2013/0149755 A1), has been withdrawn due to the Applicant’s amendments to the claims filed 04/08/2026.
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.
Claims 1-5, 7-10, 14, 17, 18, 22 and 23 are newly rejected under 35 U.S.C. § 103 as being unpatentable over Garcia-Gonzalez et al. (2014), in view of AI Rowaihi et al. (WO 2019/193518 A2), as evidenced by Mozumder et al. (2013) and MMC (2025), and further in view of Foster et al. (US 2019/0338320 A1), all of record, as necessitated by the Applicant’s amendments to the claims filed 04/08/2026.
Garcia-Gonzales discloses a cultivation method wherein C. necator cell mass
growth occurs in a bioreactor under heterotrophic conditions followed by cultivating bacteria to trigger PHB biosynthesis by applying nitrogen and oxygen limitations under autotrophic conditions using a gas mixture of H₂, O₂ and CO₂ and extracting the formed PHB (see Abstract and sections 2.2.1, 2.3 and 2.6).
The reference also discloses that the oxygen transfer rate must be enhanced to
achieve higher PHB accumulation and operation at elevated pressure is one means to
achieve this (Pg. 243, Column 1, Lines 60-63). Further, Garcia-Gonzalez discloses that
the gas composition was maintained at H:O2:CO₂ = 84:2.8:13.2 (vol%) and the pressure was maintained at atmospheric pressure or at an overpressure of 40 mbar (see section 2.2.1, section 2.2.3, and section 2.3). Therefore, Garcia-Gonzalez discloses conditions where the amount of O₂ is below 10% (vol%), the amount of CO₂ is between 2-25% (vol%) and the amount of H₂ is between 50-90% (vol%) and a pressure of 0 barg (atmospheric pressure). It is noted that polyhydroxybutyrate (PHB) is a
polyhydroxyalkonate (PHA), and reading on Claims 1, 10 and 18.
Regarding Claims 1, 14 and 18, Garcia-Gonzalez et al. discloses the culture medium used was the same as used in Mozumder et al. (2013) (Pg. 238, Column 2, Lines 17-18). Mozumder et al. evidences that the growth/fermentation medium comprises the salts monopotassium phosphate and ammonium sulfate (Pg. 366, Column 2, Lines 18-21) at a pH of 6.80 (Pg. 366, Column 2, Lines 29-31).
Regarding Claim 2-3, Garcia-Gonzalez discloses the bacterium as Cupriavidus necator, a wild type bacterium (see Abstract).
Regarding Claim 4, Garcia-Gonzalez discloses under the heterotrophic conditions glucose and waste glycerol were used as a carbon source or organic substrate (see Abstract). Therefore, Garcia-Gonzalez discloses the carbon source as a sugar or a polyol.
Regarding Claim 5, Garcia-Gonzalez teaches that the bacteria during the growth phase increased exponentially (see Pg. 241, Paragraph. 2).
Regarding Claims 8 and 9, Garcia-Gonzalez discloses that the gas composition was maintained at H2,:O2,:CO2, = 84:2.8:13.2 (vol%) (see section 2.2.3 and section 2.3).
Regarding Claim 10, Garcia-Gonzalez produces the same product, a PHA polymer (see citations above, section 2.6, section 3.2.4, and Conclusions).
Regarding Claim 23, Garcia-Gonzalez teaches that the cultivation produces PHB at 61, 72 and 74% calculated as the percentage of the ratio of the PHB concentration to the CDM (cell dry mass) concentration.
Garcia-Gonzalez et al. did not teach a method wherein the autotrophic cultivation
is at a pressure of at least 2 bar, or wherein a feed during said growing comprises 150 to 300 g/L C, 1 to 5 g/L N and 1 to 10 g/L P, as now required by Claims 1 and 18;
wherein the autotrophic cultivation is at a pressure of from 2-20 barg, as required
by Claim 7;
wherein the growth media comprises sucrose or fructose as the carbon source, as required by Claim 17;
or wherein the cultivating is under nitrogen deficient conditions and the pressure is 3-20 barg, as required by Claim 22.
AI Rowaihi et al. teaches that the amount of gaseous substrate provided during
autotrophic fermentation is controlled to minimize loss of gas and thereby increase gas-
to-liquid conversion efficiency. In the methods described herein, anaerobic fermentation
is performed at a pressure higher than atmospheric pressure. Operating at increased
pressure allows a significant increase in the rate of transfer of CO2 and H₂ from the gas
phase to the liquid phase. The pressure can be initially set to a pressure greater than or
equal to 2 bar absolute (or greater than or equal to 1 barg, see MMC, Lines 6-7 whom
teaches that 1 barg is approximately 2 bar absolute).
The AI Rowaihi reference further teaches that PHA producing bacterium may be cultured in a growth medium comprising a carbon source, such as fructose, sucrose, glucose or glycerol (Pg. 23, Paragraph [0079]).
Foster et al. teaches a method of producing polyhydroxyalkanoate (PHA) with C.
necator (Pg. 1, Paragraph [0004]) wherein the amount of controlling the concentrations
of one or more limiting nutrients during fermentation wherein the nutrients include
oxygen, nitrogen, phosphorus and carbon, wherein nitrogen, oxygen and/or phosphorus
limitation can increase organic acid production, and carbon limitation can cause
increased carbon uptake by the organism (Pgs. 2-3, Paragraph [0018]). Foster specifically teaches an example wherein C. necator is grown on a fructose (carbon
source) medium/feed with limited (e.g. deficient) nitrogen at 3.5 g/L or 1.75 g/L (Pg. 8,
Table 1 and Paragraph [0083]) and wherein C. necator is grown on a medium/feed
containing phosphorus at 2.35 g/L (1.41+0.04) and 1.18 g/L (0.71+0.47).
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to modify the autotrophic cultivation of PHB method
of Garcia-Gonzalez by increasing the pressure from 0 barg to greater than or equal to 1
barg (encompassing the claimed pressure of at least 2 barg and the claimed pressure
range of from 2-20 barg) as taught by AI Rowaihi because this would advantageously
increase the gas transfer rate of all the present gases into the liquid phase. The ordinary artisan would have been motivated to do so because Garcia-Gonzalez teaches that the gas (oxygen) transfer rate must be enhanced to achieve higher PHB accumulation and operation at elevated pressure is one means to achieve this, a finding confirmed by AI Rowaihi.
The ordinary artisan would have reasonable expectation of success in modifying the prior art reference to arrive at the claimed invention because both Garcia-Gonzalez and AI Rowaihi are directed to PHA production methods utilizing two-stage processes.
It would have been further obvious to one of ordinary skill in the art before the
effective filing date of the claimed invention to modify the method of Garcia-Gonzalez et
al. of producing PHB by culturing Cupriavidus necator in growth medium comprising
glucose or glycerol to substitute sucrose or fructose as the carbon source as taught by
AI Rowaihi et al. because this is no more than the selection of an art-recognized
equivalent bacteria carbon source for another. Those of ordinary skill in the art would
have been motivated to make this modification based on the availability of compounds
and artisan preference. There would have been a reasonable expectation of success in making this modification because glucose, glycerol, fructose and sucrose are all art-recognized equivalent bacterial sources of carbon.
With regard to Claims 1, 18 and 22, it would have been obvious to those of ordinary skill in the art before the instant invention to utilize a feed containing carbon, limited nitrogen, phosphorus and oxygen in the claimed concentration ranges because while the Foster et al. reference is silent with regard to the particular concentration of carbon, nitrogen, oxygen and phosphorus in the feed composition, the Foster reference teaches that nutrient concentrations can be controlled and manipulated to produce effects on the cultured microorganisms, i.e., result effective variables.
The Foster reference particularly exemplifies altering/limiting feed concentration of nitrogen, carbon and phosphorus. Therefore, the ordinary artisan would have found it obvious to alter other nutrients in the same composition to achieve desired effects. Further, the determination of the optimal or workable ranges of the concentration of nutrients in a feed composition by routine experimentation and optimization of result effective variables is not inventive. In this instance, the concentration of carbon in the feed composition and oxygen concentration will directly affect the carbon uptake and organic acid production of the C. necator cultured thereon. Those of ordinary skill in the art before the effective filing date on the instant invention would have been motivated to make this modification in order to obtain an effective C. necator feed composition for C. necator culture and the production of desired products. There would have been a reasonable expectation of success in making this modification because the reference already provides phosphorus and nitrogen concentration ranges for another C. necator feed composition which are within the claimed range and the determination of result effective variables by routine optimization and experimentation is within the purview of those of ordinary skill in the art.
Claims 1-5, 7-10, 11, 13, 14, 17, 18, 22 and 23 are newly rejected under 35 U.S.C. § 103 as being unpatentable over Garcia-Gonzalez et al. (2014), in view of Al Rowaihi et al. (WO 2019/193518 A2), and Foster et al. (US 2019/0338320 A1), as evidenced by Mozumder et al. (2013), and MMC (2025), as applied to Claims 1-5, 7-10, 14, 17, 18, 22 and 23 above, and further in view of Beilen et al. (2012), all of record, as necessitated by Applicant’s amendments to the claims filed 04/08/2026.
The teachings of Garcia-Gonzalez et al., AI Rowaihi et al. and Foster et al. were discussed above.
None of the above references taught a molded article or product comprising the
produced PHA, as required by Claims 11 and 13.
Beilin teaches PHAs have many and wide-ranging potential applications,
such as consumer products as bottles, films, fibers, flowerpots, foils, bags, fishing lines,
nets, materials used in biomedical applications, and for other disposable items such as
bottles, cups, plates, and cutlery that can be composted (see Pg. 1, Paragraph 1-3).
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to use the PHA produced by the method of Garcia-
Gonzalez et al., Al Rowaihi et al. and Foster et al. in making the products listed in Claims 11 and 13 because PHA is known in the art to be suitable for making molded articles such as flower pots and cups. The ordinary artisan would have been motivated to do so because Beilin teaches PHAs may be used in wide-range of application and teaches products under the categories listed in the claims. The ordinary artisan would have had a reasonable expectation of success in modifying the prior art references to arrive at the claimed invention because at least Garcia-Gonzalez and Beilin are directed to PHAs and Beilen teaches that PHAs have utility in making molded articles.
Claims 1-5, 7-10, 14, 15, 16, 17, 18, 22 and 23 are newly rejected under 35 U.S.C. § 103 as being unpatentable over Garcia-Gonzalez et al. (2014), in view of AI Rowaihi et al. (WO 2019/193518 A2) and Foster et al. (US 2019/0338320 A1), as evidenced by Mozumder et al. (2013), and further evidenced by MMC (2025), as applied to Claims 1-5, 7-10, 14, 17, 18, 22 and 23 above, and further in view of Haas et al. (CA 2900293 A1), all of record, as necessitated by Applicant’s amendments to the claims filed 04/08/2026.
The teachings of Garcia-Gonzalez et al., AI Rowaihi et al. and Foster et al. were discussed above.
None of the above references taught a method wherein the bacterium comprises
Pelomonas saccharophilia, as required by Claims 15-16.
Hass et al. is directed to the autotrophic fermentation of cells which synthesize
PHB (Pg. 13, Claims 1 and 3), wherein the cells may be hydrogen-oxidizing bacteria
including Cupriavidus necator (Pg. 3, Lines 21 and 30) or Pelomonas saccharophilia
(Pg. 4, Line 5).
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to modify the method of Garcia-Gonzalez et al., AI Rowaihi et al. and Foster et al. of producing PHB by Cupriavidus necator to substitute Pelomonas saccharophilia as taught by Hass et al. for the C. necator because this is no more than the selection of an art-recognized equivalent hydrogen-oxidizing bacteria known to fermentatively produce PHB for another. Those of ordinary skill in the art would have been motivated to make this modification based on the availability of compounds and artisan preference. There would have been a reasonable expectation of success in making this modification because both strains are art-recognized equivalent hydrogen-oxidizing bacterial known to produce PHB.
Claims 1-5, 7-10, 14, 17, 18, 20, 22 and 23 are newly rejected under 35 U.S.C. § 103 as being unpatentable over Garcia-Gonzalez et al. (2014), in view of AI Rowaihi et al. (WO 2019/193518 A2) and Foster et al. (US 2019/0338320 A1), as evidenced by Mozumder et al. (2013), and further evidenced by MMC (2025), as applied to Claims 1-5, 7-10, 14, 17, 18, 22 and 23 above, and further in view of Sivashanmugam et al. (2009), all of record, as necessitated by Applicant’s amendments to the claims filed 04/08/2026.
The teachings of Garcia-Gonzalez et al., AI Rowaihi et al. and Foster et al. were discussed above.
None of the above references taught a method wherein growth of the bacteria is
continued until a cell density of at least 20 is reached, as required by Claim 20.
Sivashanmugam et al. teaches a method of high cell density protein expression
in bacteria wherein OD600 of 10-20 are routinely achieved (Pg. 936, Abstract).
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to modify the method of Garcia-Gonzalez et al.,
AI Rowaihi et al. and Foster et al. of producing PHB by Cupriavidus necator in culture to culture the bacteria at a high density of 10-20 as taught by Sivashanmugam et al. because this would provide a higher density of bacteria cells producing the desired product. Those of ordinary skill in the art would have been motivated to make this modification to have a greater density of C. necator bacteria cells producing more PHB.
There would have been a reasonable expectation of success in making this modification because at least both the Garcia-Gonzalez and Sivashanmugam et al. references are drawn to the same field of endeavor, that is, the in vitro production of desired products by bacteria.
Claims 1-5, 7-10, 14, 17, 18, 21, 22 and 23 are newly rejected under 35 U.S.C. § 103 as being unpatentable over Garcia-Gonzalez et al. (2014), in view of AI Rowaihi et al. (WO 2019/193518 A2) and Foster et al. (US 2019/0338320 A1), as evidenced by Mozumder et al. (2013) and MMC (2025), as applied to Claims 1-5, 7-10, 14, 17, 18, 22 and 23 above, and further in view of Reed et al. (US 2013/0149755 A1), all of record, as necessitated by Applicant’s amendments to the claims filed 04/08/2026.
The teachings of Garcia-Gonzalez et al., AI Rowaihi et al. and Foster et al. were discussed above.
None of the above references taught a method wherein the amount of O₂ is
below 6% v/v, as required by Claim 21.
Reed et al. teaches a method wherein C. necator is cultured to produce the PHA
polyhydroxybutyrate (PHB) in an oxygen concentration of 4% (Pg. 17, Paragraph [0138]
and Pg. 18, Paragraph [0141]).
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to modify the method of Garcia-Gonzalez et al.,
AI Rowaihi et al. and Foster et al. of producing PHB by Cupriavidus necator wherein the amount of oxygen is 8% to use an oxygen level of 4% as taught by Reed et al. because the oxygen amount of Garcia-Gonzalez is not limited to the disclosed amount and Reed
teaches that the oxygen amount may be further reduced in culturing the same
microorganism. Those of ordinary skill in the art would have been motivated to make
this modification based artisan preference and the desired limitation of oxygen in the
culturing. There would have been a reasonable expectation of success in making this
modification because at least both the Garcia-Gonzalez and Reed references are drawn to the same field of endeavor, that is, the in vitro production of PHB by C. necator.
Claims 1-5, 7-10, 14, 17, 18, 22, 23 and 24 are newly rejected under 35 U.S.C. § 103 as being unpatentable over Garcia-Gonzalez et al. (2014), in view of AI Rowaihi et al. (WO 2019/193518 A2) and Foster et al. (US 2019/0338320 A1), as evidenced by Mozumder et al. (2013) and MMC (2025), all of record, as applied to Claims 1-5, 7-10, 14, 17, 18, 22 and 23 above, and further in view of Roohi et al. (2017), as necessitated by Applicant’s amendments to the claims filed 04/08/2026.
The teachings of Garcia-Gonzalez et al., AI Rowaihi et al. and Foster et al. were discussed above.
None of the above references taught a method wherein am amorphous content of the formed PHA is between 30-50%, as now required by Claim 24.
Roohi et al. teaches that bacterial produced PHA/PHB can be intercellular an in an amorphous state or released by accumulating cells after death and cell lysis as extracellular PHA/PHB which has an amorphous fraction of 40-50% (Pg. 30, Column 1, Lines 9-18 and Column 2, Lines 1-12).
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to modify the method of Garcia-Gonzalez et al.,
AI Rowaihi et al. and Foster et al. of producing PHB by Cupriavidus necator wherein the cultivation produces PHB with an amorphous content between 30-50% because the extraction of intercellular PHB results in cell death/lysis which releases extracellular PHB having an amorphous fraction of 40-50% as taught by Roohi et al. above. Those of ordinary skill in the art would have been motivated to make this modification based artisan preference and the amorphous percentage of the desired PHB to be produced. There would have been a reasonable expectation of success in making this modification because at least both the '699 application, Garcia-Gonzalez and the Roohi reference are drawn to the same field of endeavor, that is, the in vitro bacterial production of PHA/PHB.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159.
See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-5, 7-11, 13-16, 18 and 22 are newly provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-9, 13, 14 and 15 of copending Application No. 18/570,699 in view of Mozumder et al. (2013), and further in view of Foster et al. (US 2019/0338320 A1), all of record.
The instant invention (Claims 1 and 18) is drawn to a method for producing
polyhydroxyalkanoate comprising:
growing bacteria in a reactor under heterotrophic conditions in a media comprising at least one phosphate salt or at least one ammonium salt; and cultivating the bacteria under autotrophic conditions under an atmosphere of CO2, H₂ and O₂, wherein the amount on O₂ is below 10% v/v and pressure is at least 2 barg to form PHB, wherein the bacterium comprises Pelomonas saccharophilia, Azomonas lata, or Cupriavidus necator, and extracting the formed PHB,
wherein a content of CO2 is between 2% and 25 % v/v and wherein a content of H₂ is between 50% and 90 % v/v,
wherein a feed during said growing comprises 150 to 300 g/l C, 1 to 5 g/l N and
1 to 10 g/l P.
This is obviated by the method of the co-pending '699 application drawn to: a
method for producing PHA comprising a) growing bacteria under heterotrophic
conditions in a media; and b) cultivating the bacteria under autotrophic conditions under
an atmosphere of CO₂, H₂ and optional O₂, wherein the amount of O₂ if present is less
than 10% (v/v) and pressure is at least 1 barg, wherein at least one carbon source is
added before and/or during step b), reading on Instant Claims 1 and 18.
Instant Claims 1, 2-5, 7-11 and 13 read directly on Claims 2-5, 7-9, 13 and 15-16 of the '699 application.
The '699 application did not teach wherein the media in step a) comprises at
least one phosphate salt or at least one ammonium salt, wherein a feed during said growing comprises 150 to 300 g/l C, 1 to 5 g/l N and 1 to 10 g/l P, as now required by instant Claims 1 and 18;
wherein the pH of the media is 4.5 to 7.5, as required by Claim 14;
wherein the bacteria is Cupriavidus necator, as required by Claim 18;
or wherein the cultivating is under nitrogen deficient conditions and the pressure
is 3-30 barg, as required by Claim 22.
With regard to Claim 22, the Examiner notes that Claim 7 of the '699 application
discloses a pressure range of from 2-20 barg (overlapping the claimed range of 3-20
barg).
Mozumder et al. is drawn to a bacteria method of producing PHB, wherein C.
necator bacteria are grown in a growth/fermentation medium comprising the salts
monopotassium phosphate and ammonium sulfate (Pg. 366, Column 2, Lines 18-21) at
a pH of 6.80 (Pg. 366, Column 2, Lines 29-31).
Foster et al. teaches a method of producing polyhydroxyalkanoate (PHA) with C.
necator (Pg. 1, Paragraph [0004]) wherein the amount of controlling the concentrations
of one or more limiting nutrients during fermentation wherein the nutrients include
oxygen, nitrogen, phosphorus and carbon, wherein nitrogen, oxygen and/or phosphorus
limitation can increase organic acid production, and carbon limitation can cause
increased carbon uptake by the organism (Pgs. 2-3, Paragraph [0018]). Foster
specifically teaches an example wherein C. necator is grown on a fructose (carbon
source) medium/feed with limited (e.g. deficient) nitrogen at 3.5 g/L or 1.75 g/L (Pg. 8,
Table 1 and Paragraph [0083]) and wherein C. necator is grown on a medium/feed
containing phosphorus at 2.35 g/L (1.41+0.04) and 1.18 g/L (0.71+0.47).
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to modify the method of producing PHA by bacteria
of the '699 application by using C. necator and the growth medium of Mozumder et al.
because the '699 application is generic to the type of bacteria and growth medium and
Mozumder et al. provides a suitable specific bacteria and growth medium for the
process.
Those of ordinary skill in the art would have been motivated to make this
modification based on the availability of bacteria, media compounds and artisan
preference. There would have been a reasonable expectation of success in making this
modification because while the '699 application is silent with regard to the bacteria
species and composition of the growth media in their process, Mozumder et al. teaches
a suitable specific bacteria and growth medium for the process.
With regard to Claims 1, 18 and 22, it would have been obvious to those of ordinary skill in the art before the instant invention to modify the method of the '699 application and Mozumder to utilize a feed containing carbon, nitrogen, phosphorus and oxygen in the claimed concentration ranges because while the Foster et al. reference is silent with regard to the particular concentration of carbon, nitrogen and phosphorus in the feed composition and oxygen concentration, the Foster reference teaches that nutrient concentrations can be controlled and manipulated to produce effects on the cultured microorganisms, i.e., result effective variables. The Foster reference particularly exemplifies altering/limiting feed concentration of carbon, nitrogen and phosphorus. Therefore, the ordinary artisan would have found it obvious to alter other nutrients in the same composition to achieve desired effects. Further, the determination of the optimal or workable ranges of the concentration of nutrients in a feed composition by routine experimentation and optimization of result effective variables is not inventive. In this instance, the concentration of carbon in the feed composition and oxygen concentration will directly affect the carbon uptake and organic acid production of the C. necator cultured thereon.
Those of ordinary skill in the art before the effective filing date on the instant invention would have been motivated to make this modification in order to obtain an effective C. necator feed composition for C. necator culture and the production of desired products.
Claims 1-5, 7-11, 13-16, 17, 18 and 22 are newly provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-9 and 13-16 of copending Application No. 18/570,699 in view of Mozumder et al. (2013), and further in view of Foster et al. (US 2019/0338320 A1), and further in view of Al-Rowaihi et al. (WO 2019/193518 A2), all of record.
The teachings of the '699 application, Mozumder et al. and Foster et al. were discussed above.
None of the above references taught a method wherein the growth medium comprises sucrose or glucose, as required by Claim 17.
AI Rowaihi et al. teaches that PHA producing bacterium may be cultured in a
growth medium comprising a carbon source, such as fructose, sucrose, glucose or
glycerol (Pg. 23, Paragraph [0079]).
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to modify the bacteria PHB production method of the
'699 application, Mozumder et al. and Foster et al. utilizing glucose or glycerol as the carbon source in the growth media to substitute sucrose or fructose as the carbon source as taught by AI Rowaihi et al. because this is no more than the selection of an art-recognized equivalent bacteria carbon source for another. Those of ordinary skill in the art would have been motivated to make this modification based on the availability of compounds and artisan preference. There would have been a reasonable expectation of success in making this modification because glucose, glycerol, fructose and sucrose are all art-recognized equivalent bacterial sources of carbon.
Claims 1-5, 7-11, 13-16, 18, 20 and 22 are newly provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-9 and 13-16, 18 and 22 of copending Application No. 18/570,699 in view of Mozumder et al. (2013) and Foster et al. (US 2019/0338320 A1), and further in view of Sivashanmugam et al. (2009), all of record.
The teachings of the '699 application, Mozumder et al. and Foster et al. were discussed above.
None of the above references taught a method wherein growth of the bacteria
is continued until a cell density of at least 20 is reached, as by Claim 20.
Sivashanmugam et al. teaches a method of high cell density protein expression
in bacteria wherein OD600 of 10-20 are routinely achieved (Pg. 936, Abstract).
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to modify the method of the '699 application. Mozumder and Foster of producing PHA by Cupriavidus necator in culture to culture the bacteria at a high density of 10-20 as taught by Sivashanmugam et al. because this would provide a higher density of bacteria cells producing the desired product. Those of ordinary skill in the art would have been motivated to make this modification to have a greater density of C. necator bacteria cells producing more PHA. There would have been a reasonable expectation of success in making this modification because at least both the '699 application and Sivashanmugam et al. references are drawn to the same field of endeavor, that is, the in vitro production of desired products by bacteria.
Claims 1-5, 7-11, 13-16, 18, 21 and 22 are newly provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-9 and 13-16, 18 and 22 of copending Application No. 18/570,699 in view of Mozumder et al. (2013) and Foster et al. (US 2019/0338320 A1), and further in view of Reed et al. (US 2013/0149755 A1), all of record.
The teachings of the '699 application, Mozumder et al. and Foster et al. were discussed above.
None of the above references taught a method wherein the amount of O₂ is
below 6% v/v, as required by Claim 21.
Reed et al. teaches a method wherein C. necator is cultured to produce the PHA
polyhydroxybutyrate (PHB) in an oxygen concentration of 4% (Pg. 17, Paragraph [0138]
and Pg. 18, Paragraph [0141]).
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to modify the method of the '699 application, Mozumder and Foster of producing PHA by Cupriavidus necator wherein the amount of oxygen is less than 10% to use an oxygen level of 4% as taught by Reed et al. because the oxygen amount of the '699 application encompasses the disclosed amount and Reed teaches that the oxygen amount may be further reduced in culturing the same microorganism. Those of ordinary skill in the art would have been motivated to make this modification based artisan preference and the desired limitation of oxygen in the culturing. There would have been a reasonable expectation of success in making this modification because at least both the '699 application and the Reed reference are drawn to the same field of endeavor, that is, the in vitro production of PHA by C. necator.
Claims 1-5, 7-11, 13-16, 18, 22 and 23 are newly provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-9 and 13-16, 18 and 22 of copending Application No. 18/570,699 in view of Mozumder et al. (2013) and Foster et al. (US 2019/0338320 A1), and further in view of Garcia-Gonzalez et al. (2014), all of record.
The teachings of the '699 application, Mozumder et al. and Foster et al. were discussed above.
None of the above references taught a method wherein the cultivating is run until PHA is at a content of 50-90% by weight calculated from a dry weight of the whole biomass, as now required by Claim 23.
Garcia-Gonzales discloses a cultivation method wherein C. necator cell mass
growth occurs in a bioreactor under heterotrophic conditions followed by cultivating bacteria to trigger PHB biosynthesis by applying nitrogen and oxygen limitations under autotrophic conditions using a gas mixture of H₂, O₂ and CO₂ and extracting the formed PHB (see Abstract and sections 2.2.1, 2.3 and 2.6) and that the cultivation produces PHB at 61, 72 and 74% calculated as the percentage of the ratio of the PHB concentration to the CDM (cell dry mass) concentration.
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to modify the method of the '699 application, Mozumder and Foster of producing PHA by Cupriavidus necator wherein the cultivation produces PHB at 61, 72 and 74% calculated as the percentage of the ratio of the PHB concentration to the CDM (cell dry mass) concentration as taught by Garcia-Gonzalez et al. because this would produce a desired amount of the PHB. Those of ordinary skill in the art would have been motivated to make this modification based artisan preference and the percentage of the desired PHB to be produced. There would have been a reasonable expectation of success in making this modification because at least both the '699 application and the Garcia-Gonzalez reference are drawn to the same field of endeavor, that is, the in vitro production of PHA by C. necator.
Claims 1-5, 7-11, 13-16, 18, 22 and 24 are newly provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-9 and 13-16, 18 and 22 of copending Application No. 18/570,699 in view of Mozumder et al. (2013) and Foster et al. (US 2019/0338320 A1), all of record, and further in view of Roohi et al. (2017).
The teachings of the '699 application, Mozumder et al. and Foster et al. were discussed above.
None of the above references taught a method wherein an amorphous content of the formed PHA is between 30-50%, as now required by Claim 24.
Roohi et al. teaches that bacterial produced PHA/PHB can be intercellular an in an amorphous state or released by accumulating cells after death and cell lysis as extracellular PHA/PHB which has an amorphous fraction of 40-50% (Pg. 30, Column 1, Lines 9-18 and Column 2, Lines 1-12).
It would have been obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to modify the method of the '699 application, Mozumder and Foster of producing and extracting PHA/PHB by Cupriavidus necator wherein the cultivation produces PHB with an amorphous content between 30-50% because the extraction of intercellular PHB results in cell death/lysis which releases extracellular PHB having an amorphous fraction of 40-50% as taught by Roohi et al. above. Those of ordinary skill in the art would have been motivated to make this modification based artisan preference and the amorphous percentage of the desired PHB to be produced. There would have been a reasonable expectation of success in making this modification because at least both the '699 application, Garcia-Gonzalez and the Roohi reference are drawn to the same field of endeavor, that is, the in vitro bacterial production of PHA/PHB.
Response to Arguments
Applicant’s arguments, see Remarks, filed 04/08/2026, with respect to the above withdrawn rejections have been fully considered and are persuasive. The remaining rejections have been considered insofar as they apply to the new rejections above.
The Applicant argues that Foster is drawn to methods of increasing the yield of a biomass while having a reduced level of PHA, that is the population biomass includes 5-25 wt.% PHA and the reference is drawn to producing less PHA and Applicant notes that an objective is to increase production of organic acids not PHA. Applicant concludes that the reference is opposed to the purpose of Garcia-Gonzalez of cultivating/increasing PHB and the ordinary artisan would not have combined the references with a reasonable expectation of success. Applicant applies the same rationale to the obviousness-type double patenting rejections (Remarks, Pg. 7, Lines 14-26 and Pg. 8, Lines 26-27 and Pg. 9, Lines 1-6).
This is not found to be persuasive for the following reasons, Foster is generally drawn to increasing the yield of a biomass having a reduced level of PHA within a desired target range (Pg. 1, Paragraph [0002]) however the reference does not limit the level of PHA to any particular amount.
Similar to the claimed invention, Foster teaches a method for producing a biomass in a fermentation system, including providing an organism belonging to a genus selected from the group consisting of Cupriavidus and Ralstonia and culturing a population of the organism in the fermentation system. The method further includes independently controlling the concentration of each of one or more selected limiting nutrients in at least one reactor of the fermentation system. The selected limiting nutrients include nitrogen, phosphorous, or a combination thereof. (Pg. 2, Paragraph [0010]). While Foster may teach a desire for less PHA when the biomass is intended for use as an animal feedstock (Pg. 1, Paragraphs [0006] and [0009]), the reference teaches that the fermentation system is operated and controlled under conditions that produce population biomass having, on average, a polyhydroxyalkanoate concentration that is at or near a target concentration (Pgs. 4-5, Paragraph [0036]). Thus, the disclosure is not limited to exemplary low percentages of PHA but can encompass any amount of PHA at or near an unspecified target concentration. Thus, it would have been obvious to those of ordinary skill in the art before the instant invention to utilize a feed containing carbon, limited nitrogen, phosphorus and oxygen in the claimed concentration ranges because while the Foster et al. reference is silent with regard to the particular concentration of carbon, nitrogen, oxygen and phosphorus in the feed composition, the Foster reference teaches that nutrient concentrations can be controlled and manipulated to produce effects on the cultured microorganisms, i.e., result effective variables. The Foster reference particularly exemplifies altering/limiting feed concentration of nitrogen, carbon and phosphorus.
Therefore, the ordinary artisan would have found it obvious to alter other nutrients in the same composition to achieve desired effects. Further, the determination of the optimal or workable ranges of the concentration of nutrients in a feed composition by routine experimentation and optimization of result effective variables is not inventive.
In this instance, the concentration of carbon in the feed composition and oxygen concentration will directly affect the carbon uptake and organic acid production of the C. necator cultured thereon. Those of ordinary skill in the art before the effective filing date on the instant invention would have been motivated to make this modification in order to obtain an effective C. necator feed composition for C. necator culture and the production of desired products. There would have been a reasonable expectation of success in making this modification because the reference already provides phosphorus and nitrogen concentration ranges for another C. necator feed composition which are within the claimed range and the determination of result effective variables by routine optimization and experimentation is within the purview of those of ordinary skill in the art.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to PAUL C MARTIN whose telephone number is (571)272-3348. The Examiner can normally be reached Monday-Friday 12pm-8pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Sharmila G Landau can be reached at (571) 272-0614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAUL C MARTIN/ Examiner, Art Unit 1653
/SHARMILA G LANDAU/ Supervisory Patent Examiner, Art Unit 1653
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