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 .
Support for the amendments is within the instant application specification.
Applicant’s amendment to the claims filed on 3/27/2026 in response to the Non-Final Rejection mailed on 9/22/2023 is acknowledged. This listing of claims replaces all prior listings of claims in the application.
Claims 8, 11, 26 are canceled.
Claims 1-7, 9-10, 12-25, 27-46 are pending.
Applicant’s remarks filed on 3/27/2026 in response to the Non-Final Rejection mailed on 1/16/2026 have been fully considered and are deemed persuasive to overcome at least one of the rejections and/or objections as previously applied.
The text of those sections of Title 35 U.S. Code not included in the instant action can be found in the prior Office Action.
Withdrawn Objections
The objection to claims 22 and 43 because of the following informalities: use of the numbers ‘0.95 Aw, 90 Aw, or 85 Aw,’ is withdrawn in view of Applicant’s amendment of claims to recite 0.95 Aw, 85 Aw or 90 Aw.
Withdrawn Rejections
The rejection of claims 8, 26 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ) is withdrawn in view of Applicant’s cancellation of claims 8 and 26.
The rejection of claims 8, 26 under 35 U.S.C. 102a1 as being anticipated by Cheung et al (WO 02/070436 A2, Date Published: 12 September 2002, cited on IDS dated 1/26/2024) as evidenced by Riffo et al (2021, Journal of Fungi, cited on PTO-892 dated 1/16/2026) {herein Riffo} is withdrawn in view of cancellation of claims 8, 26.
Maintained Claim Rejections - 35 USC § 112(b)
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.
The rejection of claims 1-7, 9-10, 12-25, 27-46 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 is maintained. The rejection has been modified in view of Applicant’s amendment of claim 1 to recite ‘a nutrient rich product’; amendment of claim 1 to define ‘an effective amount.’ It is noted that the rejection of claim 15 over the recitation ‘at least a portion of’ is withdrawn in the office action dated 1/16/2026 in view of deletion of said recitation. Additionally, the rejection of claim 16 over the recitation ‘elevated pressure’ in the office action dated 1/16/2026 is withdrawn in view of deletion of said recitation. Furthermore, the rejection of claim 35 in the office action dated 1/16/2026 is withdrawn in view of Applicant defining the limitation ‘temperature’ in independent claim 1. The rejection of claim 37 in the office action dated 1/16/2026 is withdrawn in view of Applicant’s removal of the recitation ‘elevated.’ The rejection of claims 8, 26 are withdrawn in view of cancellation of said claims.
Regarding claim 1 (claims 3-7, 9-10, 12-25 dependent thereof), 28 (claims 29-46 dependent thereof), the recitation of the amended phrase ‘a nutrient rich product’ is indefinite because it is unclear what the scope of the phrase is intended to encompass structurally and functionally. It is unclear what the phrase ‘a nutrient rich product’ is intended to encompass as it can encompass a minerals, vitamins, etc. Said nutrient rich product could encompass any type or drink, food, medication, fertilizer, etc. Specifically, the word “rich” is a subjective term. Without a specific quantitative definition as to what is encompassed in the term “rich” one of skilled cannot determine what is a “nutrient-rich” product. Accordingly, the metes and bounds upon which patent protection is sought cannot be ascertained from this phrase.
RESPONSE TO REMARKS: Beginning on p. 11 of Applicant’s remarks, Applicant in summary contends that the claims have been amended to overcome the 112(b) rejection in the office action dated 1/16/2026.
While Applicants have overcome some of the previous rejections via amendments and arguments, there are new rejections that have been applied. Examiner contends that ‘a nutrient product’ is indefinite as Applicant has not provided any limitations within the instant application that would allow one of ordinary skill in the art to requisite what encompasses ‘a nutrient product.’
Maintained Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 1-2, 4-7, 9-10, 12-14, 25, 27-29, 32-35 under 35 U.S.C. 102(a1) as being anticipated by Cheung et al (WO 02/070436 A2, Date Published: 12 September 2002, cited on IDS dated 1/26/2024) as evidenced by Riffo et al (2021, Journal of Fungi, cited on PTO-892 dated 1/16/2026) {herein Riffo} is maintained. The rejection has been modified in view of Applicant’s amendment to claims to recite ‘…a first… and …second hurdle…,’ cancellation of claims 8 and 26. See MPEP 2131.01 regarding multiple reference 35 USC 102 rejections.
Claims 1-2, 4-7, 9-10, 12-14, 25, 27 are drawn to a method of inhibiting pathogenic microbial growth in a biomass, comprising: contacting the biomass with a first hurdle of pathogenic microbial growth comprising: an effective amount of live non-pathogenic yeast; contacting the biomass with at least one second hurdle of pathogenic microbial growth selected from temperature, pressure, pH, water activity, electrical conductivity, redox potential, and a combination thereof; agitating the biomass to distribute the yeast within the biomass to provide a yeast-stabilized biomass slurry; adding a micro-nutrient consisting of yeast lysate residue to the yeast-stabilized biomass slurry; and maintaining aerobic conditions in the slurry to permit yeast to grow aerobically, wherein the effective amount of live non-pathogenic yeast is at least 1E4 CFU/mL of slurry, wherein the pathogenic microbial growth in the biomass is reduced compared to pathogenic microbial growth in an equivalent biomass that is not contacted with the at least one first and the at least one second hurdle of pathogenic microbial growth, and wherein the method yields a nutrient rich product.
With respect to claims 1-2, 4-7, 10, 12-13, 14, 25, Cheung teaches a method of inhibiting pathogenic microbial growth within organic material by utilizing at least seven and up to nine non-pathogenic yeast cell components (page 3, lines 29-33; page 6, lines 21-22). Cheung further teaches the process can be initiated by inoculating 100ml of medium with 1ml of an inoculum of the selected non-pathogenic yeast strain(s) at a cell density of 10^2-10^5 cell/ml (page 54, lines 14-15), which falls within the recited 1E4 CFU/ml limitation of claim 1. The process can be scaled up or down according to needs (page 54, lines 16). Absent evidence otherwise, it is the Examiner’s position that a cell density of 10^2-10^5 cell/ml of S. cerevisiae, taught by Cheung, is a plurality of doses as said doses (10^2-10^5) are countable and quantifiable. In addition, it is the Examiner’s position that the ‘at least seven and up to nine non-pathogenic yeast cell components’ taught by Cheung are a ‘first hurdle’ as Cheun teaches said composition inhibits the growth of pathogenic microbes (page 6, lines 21-22). The optimal temperature is between 5°C to 45 ° C , which is 41 F to 113 F (page 19, line 31). It is noted that the recitation of ‘the temperature is at least 100F’ in claim 14 falls within the recited claimed range of ‘50F to 120°F’ in claim 13, upon which claim 14 depends. Examiner concludes that the temperature is raised from the lower level of what is claimed in claim 13 i.e., 50 degree. Furthermore, it is the Examiner’s position that the temperature range of 5°C to 45 ° C taught by Cheung is a ‘second hurdle’ as Applicant defines said temperature range within the instant application claim 13 as a ‘second hurdle.’ Furthermore, the organic material taught by Cheung may include sludge (abstract). Cheung further teaches mixing an organic substrate component, in a continuous process, with yeast cell components (page 3, lines 31-32; page 10, line 34). Absent evidence otherwise, it is the Examiner’s position that mixing of the yeast components with the organic material would necessarily create a slurry as it would be comprised of solid and liquid materials. Additionally, absent evidence otherwise, it is the Examiner’s position that the addition of the yeast components into the organic material would provide a yeast-stabilized biomass slurry since the yeast cell components maintain a balance of phosphorus components (page 3, lines 34-35), which is an indication of said yeast being metabolically active and stable. The organic material may also include manure or garbage (page 3, lines 29). Furthermore, absent evidence otherwise, it is the Examiner’s position that a homogenized liquid slurry would be produced as the mixing taught by Cheung would create a uniform, stable mixture of solid particles that are suspended evenly throughout the medium. Additionally, it is the Examiner’s position that mixing is the same as agitating continuously or periodically as mixing involved stirring and shaking which agitates the medium. Cheung further teaches that the yeast of the invention includes, but is not limited to living Saccharomyces cerevisiae (page 4, line 8 and page 7, line 13). Cheung further teaches that yeast cell components are provided by culturing a plurality of yeast cells in alternating electromagnetic fields over a period of time (page 10, lines 28-31). Evidentiary reference of Riffo is cited to demonstrate that yeast cells emitted with 1-5.9 GHz of EMF exhibited increased cellular permeability (page 9 para 1). As such, absent evidence otherwise, it is the Examiner’s position that the teaching of Cheung emitting a plurality of yeast cell components with EMF 3,000 MHz (3 GHz) would effectively rupture the cells membrane, causing the lysate to be within the slurry, thereby effectively adding the yeast lysate residue to the yeast-stabilized biomass slurry. Cheung further teaches that fermentation takes place under semi-aerobic conditions of which Examiner is interpreting to be the same as aerobic (claim 1) as both include oxygen. Macronutrients such as phosphorus and/or potassium may be added to the biomass (page 7, line 9). Additionally, it is noted that the recitation of “to produce a homogenized liquid slurry” (instant application claim 2) and “to produce a refined slurry filtrate” (instant application claim 46) is satisfied. As such, the product obtained by the combination of the teachings of the above references would inherently result in the same product as claimed. It is the Examiner’s position that since Cheung teaches the structure of a method of comprising a first hurdle (non-pathogenic yeast) and a second hurdle (temperature) for reducing pathogenic microbial growth, then a nutrient rich product would necessarily by formed as a product of the first and second hurdle in the presence of non-pathogenic yeast.
With respect to claim 9, Cheung teaches mixing an organic substrate component with yeast cell components (page 3, lines 31-32). Absent evidence otherwise, it is the Examiner’s position that mixing an organic substrate (biomass) with yeast is the same as continuously agitating the biomass as the act of mixing the biomass with the yeast with necessarily agitate the biomass/yeast composition. Said process is continuous (page 10, line 33). Since the art teaches the structure of an effective amount of live non-pathogenic yeast in contacted with a plurality of doses over time, it is the Examiners interpretation that the population of live non-pathogenic yeast would necessarily create the yeast-stabilized biomass slurry.
With respect to claim 27, Cheung teaches a method wherein pathogenic microorganisms, such as Escherichia coli, Salmonella spp., Shigella spp., and Campylobacter jejuni are used in the invention (page 2, lines 19-20).
Claims 28-29, 32-35 are drawn to a method of inhibiting putrefaction in biomass, comprising: processing a biomass to produce a homogenized liquid slurry; contacting the homogenized liquid slurry with a first hurdle of pathogenic microbial growth comprising: an effective amount of live non-pathogenic yeast; contacting the biomass with at least one second hurdle of pathogenic microbial growth selected from temperature, pressure, pH, water activity, electrical conductivity, redox potential, and a combination thereof; agitating the homogenized liquid slurry continuously to distribute the yeast within the homogenized liquid slurry in aerobic conditions to provide a yeast-stabilized biomass slurry; adding a micro-nutrient consisting of yeast lysate residue to the yeast-stabilized biomass slurry; filtering the yeast-stabilized biomass slurry to remove macroparticles to produce a yeast-stabilized biomass slurry filtrate; and aerating the yeast-stabilized biomass slurry filtrate, wherein the effective amount of live non-pathogenic yeast is at least 1E4 CFU/mL of slurry, wherein the pathogenic microbial growth in the biomass is reduced compared to pathogenic microbial growth in an equivalent biomass that is not contacted with the at least one and the at least second hurdle of pathogenic microbial growth, and wherein the method yields a nutrient rich product.
With respect to claims 28, 32-35 Cheung teaches a method of inhibiting microbial growth within organic material by utilizing at least seven and up to nine yeast cell components (page 3, lines 29-33). It is the Examiner’s position that inhibit microbial growth within the organic material would necessarily inhibit putrefaction (rotting) as it is well-known in the art that rotting of organic material is most commonly due to microbial contamination. Cheung further teaches the organic material may include sludge (abstract). In addition, Cheung teaches mixing an organic substrate component, in a continuous process, with yeast cell components (page 3, lines 31-32; page 10, line 34). Absent evidence otherwise, it is the Examiner’s position that mixing of the yeast components with the organic material would necessarily create a slurry as it would be comprised of solid and liquid materials. Additionally, absent evidence otherwise, it is the Examiner’s position that the addition of the yeast components into the organic material would provide a yeast-stabilized biomass slurry since the yeast cell components maintain a balance of phosphorus components (page 3, lines 34-35), which is an indication of said yeast being metabolically active and stable. The organic material may also include manure or garbage (page 3, lines 29). Additionally, absent evidence otherwise, it is the Examiner’s position that a homogenized liquid slurry would be produced as the mixing taught by Cheung would create a uniform, stable mixture of solid particles that are suspended evenly throughout the medium. It is the Examiner’s position that mixing is the same as agitating continuously or periodically as mixing involved stirring and shaking which agitates the medium. Cheung further teaches that the yeast of the invention include, but are not limited to living Saccharomyces cerevisiae (page 4, line 8 and page 7, line 13). Cheung further teaches that yeast cell components are provided by culturing a plurality of yeast cells in alternating electromagnetic fields over a period of time (page 10, lines 28-31). Evidentiary reference of Riffo is cited to demonstrate that yeast cells that are emitted with 1-5.9 GHz of EMF exhibited increased cellular permeability (page 9 para 1). As such, absent evidence otherwise, it is the Examiner’s position that Cheung emitting a plurality of yeast cell components with EMF 3,000 MHz (3 GHz) would effectively rupture the cells membrane, causing the lysate to be within the slurry, thereby effectively adding the yeast lysate residue to the yeast-stabilized biomass slurry. Cheung further teaches that fermentation takes place under semi-aerobic conditions of which Examiner is interpreting to be the same as aerobic as both include oxygen. Macronutrients such as phosphorus and/or potassium may be added to the biomass (page 7, line 9). The optimal temperature is between 5°C to 45 ° C , which is 41 F to 113 F (page 19, line 31). Furthermore, Cheung teaches the biomass from the culture medium is filtered to remove particulate matters (page 44, lines 12-13). The yeasts are allowed to mix for about 10-20 minutes (page 63, lines 32-33). Absent evidence otherwise, it is the Examiner’s position that mixing the yeast with the sludge will necessarily aerate the biomass as the process of mixing with introduced oxygen into the mixture. Additionally, it is noted that the recitation of “to produce a refined slurry filtrate” is a “product-by-process” claim limitation. MPEP 2113 states “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).” As such, the product obtained by the combination of the teachings of the above references would result in the same product as claimed.
With respect to claim 29, Cheung teaches the biological fertilizer composition can then be covered with soil and watered thoroughly (page 19, lines 22-23).
RESPONSE TO REMARKS: Beginning on p. 13 of Applicant’s remarks, Applicant contends that the rejection has been addressed by amendment. In summary, Applicant contends that Cheung as evidenced by Riffo does not disclose the application of two or more hurdles of pathogenic microbial growth, as is required by the claimed methods, where the at least first hurdle comprises an effective amount of live non-pathogenic yeast, where the effective amount of live non-pathogenic yeast is at least lE4 CFU/mL of slurry and the at least one second hurdle of pathogenic microbial growth is selected from temperature, pressure, pH, water activity, electrical conductivity, redox potential, and a combination thereof. Cheung as evidenced by Riffo neither discloses that the pathogenic microbial growth in the biomass is reduced compared to pathogenic microbial growth in an equivalent biomass that is not contacted with the at least one first and the at least one second hurdle of pathogenic microbial growth as encompassed by the subject matter of the claims nor discloses that the application of at least two hurdles of pathogenic microbial growth inter alia as claimed yields a nutrient rich product, as is required by independent Claims 1 and 28.
This argument is found to be not persuasive. Examiner contends that Cheung teaches the required limitations of a first hurdle of an effective amount of live non-pathogenic yeast and a second hurdle of pathogenic microbial growth is temperature with the teaching of a method of inhibiting pathogenic microbial growth within organic material by utilizing at least seven and up to nine non-pathogenic yeast cell components (page 3, lines 29-33; page 6, lines 21-22) In addition, the optimal temperature is between 5°C to 45 ° C , which is 41 F to 113 F (page 19, line 31). Applicant defines said temperature range as being a ‘second hurdle’ within the instant application claim 13. Overall, it remains the Examiner’s position that said teachings by Cheung would necessarily result in a nutrient rich product since Cheung anticipates the limitations of the instant applications claim 1 and 28.
Maintained 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 rejection of claims 3, 18-24, 30-31, 39-46 under 35 U.S.C. 103 as being unpatentable over Cheung et al (WO 02/070436 A2, Date Published: 12 September 2002, cited on IDS dated 1/26/2024) as evidenced by Riffo et al (2021, Journal of Fungi, cited on PTO-892 dated 1/16/2026) {herein Riffo} as applied to claims 1-2, 4-7, 9-10, 12-14, 25, 27-29, 32-35 is maintained. The rejection has been modified in view of Applicant’s amendment to claims to recite ‘a first and second hurdle,’ cancellation of claims 8 and 26.
Claims 3 is drawn to the method, wherein the processing comprises crushing or grinding the biomass to provide the homogenized liquid slurry with at least 80% of biomass being particles with a diameter less than 2 mm.
Claims 18 is drawn to the method, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a pH less than 5 for at least 30 minutes.
Claim 19 is drawn to the method, wherein the yeast-stabilized biomass slurry is maintained at a pH of 4.2±0.5 for at least 30 minutes.
Claims 20 is drawn to the method, wherein maintaining the pH comprises adding one or more acids.
Claims 21 is drawn to the method, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a water activity less than 0.97 AW for at least 30 minutes.
Claim 22 is drawn to the method, wherein the yeast-stabilized biomass slurry is maintained at a water activity selected from less than 0.95 Aw, 85 Aw or 90 Aw-for at least 30 minutes.
Claim 23 is drawn to the method, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at an electrical conductivity (EC) of 20.0±5 mS/cm for at least 30 minutes.
Claim 24 is drawn to the method, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a redox potential (Eh) selected from 0 mV to -200 mV for at least 30 minutes.
Claim 30 is drawn to the method, wherein the processing comprises crushing or grinding the biomass to provide homogenized liquid slurry with at least 80% of biomass particles having a diameter less than 2mm.
Claims 31 is drawn to the method, further comprising re-homogenizing and re-filtering the yeast-stabilized biomass slurry filtrate one or more times prior to the aerating step.
Claim 39 is drawn to the method, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a pH of less than 5 for at least 30 minutes.
Claim 40 is drawn to the method, wherein the pH in the yeast-stabilized biomass slurry is maintained at 4.2±0.5 for at least 30 minutes.
Claim 41 is drawn to the method, wherein the pH is maintained by addition of one or more acids.
Claim 42 is drawn to the method, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a water activity less than 0.97 Aw for at least 30 minutes.
Claim 43 is drawn to the method, wherein the yeast-stabilized biomass slurry is maintained at water activity selected from less than 0.95 Aw, 85 Aw. or 90 Aw for at least 30 minutes.
Claim 44 is drawn to the method, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at an electrical conductivity (EC) of 20.0±5 mS/cm for at least 30 minutes.
Claim 45 is drawn to the method, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a redox potential (Eh) selected from 0 mV to -200 mV for at least 30 minutes.
Claims 46 is drawn to the method, further comprising re-homogenizing the yeast-stabilized biomass slurry at a temperature of 75°F to 90"F for at least 6 hours, followed by filtering the heated slurry one or more times to produce a refined slurry filtrate.
The teachings of Cheung as applied to claims 1-2, 4-7, 9-10, 12-14, 25, 27-29, 32-35 are set forth in the 102(a)(1) rejection above.
However, Cheung does not teach the method of claim 3, of crushing or grinding the biomass to provide the homogenized liquid slurry with at least 80% of biomass being particles with a diameter less than 2 mm (claim 3). Cheung does not teach the method of claim 18, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a pH less than 5 for at least 30 minutes (claim 18). Cheung does not teach the method of claim 19, wherein the yeast-stabilized biomass slurry is maintained at a pH of 4.2±0.5 for at least 30 minutes (claim 19). Cheung does not teach the method of claim 20, wherein maintaining the pH comprises adding one or more acids (claim 20). Cheung does not teach the method of claim 21, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a water activity less than 0.97 AW for at least 30 minutes (claim 21). Cheung does not teach the method of claim 22, wherein the yeast-stabilized biomass slurry is maintained at a water activity selected from less than 0.95 Aw, 90 Aw, or 85 Aw for at least 30 minutes (claim 22). Cheung does not teach the method of claim 23, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at an electrical conductivity (EC) of 20.0±5 mS/cm for at least 30 minutes (claim 23). Cheung does not teach the method of claim 24, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a redox potential (Eh) selected from 0 mV to -200 mV for at least 30 minutes (claim 24). Cheung does not teach the method of claim 30, wherein the processing comprises crushing or grinding the biomass to provide homogenized liquid slurry with at least 80% of biomass particles having a diameter less than 2mm (claim 30). Cheung does not teach the method of claim 31, further comprising re-homogenizing and re-filtering the yeast-stabilized biomass slurry filtrate one or more times prior to the aerating step (claim 31). Cheung does not teach the method of claim 39, wherein the at least one second hurdle comprises further comprising maintaining the yeast-stabilized biomass slurry at a pH of less than 5 for at least 30 minutes (claim 39). Cheung does not teach the method of claim 40, wherein the pH in the yeast-stabilized biomass slurry is maintained at 4.2±0.5 for at least 30 minutes (claim 40). Cheung does not teach the method of claim 41, wherein the pH is maintained by addition of one or more acids (claim 41). Cheung does not teach the method of claim 42, wherein the at least one second hurdle comprises, further comprising maintaining the yeast-stabilized biomass slurry at a water activity less than 0.97 Aw for at least 30 minutes (claim 42). Cheung does not teach the method of claim 43, wherein the yeast-stabilized biomass slurry is maintained at water activity selected from less than 0.95 Aw, 90 Aw, or 85 Aw for at least 30 minutes (claim 43). Cheung does not teach the method of claim 44, wherein the at least one second hurdle comprises further comprising maintaining the yeast-stabilized biomass slurry at an electrical conductivity (EC) of 20.0±5 mS/cm for at least 30 minutes (claim 44). Cheung does not teach the method of claim 45, wherein the at least one second hurdle comprises further comprising maintaining the yeast-stabilized biomass slurry at a redox potential (Eh) selected from 0 mV to -200 mV for at least 30 minutes (claim 45).
With respect to claim 3, Cheung teaches the biomass is ground up to powder form (page 4, lines 34-35). MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the grinding of the biomass to produce particles with a diameter less than 2 mm depending on the particular application. It would be routine for one to arrive at a diameter less than 2 mm for the application they intend on using the biomass. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claims 18-19, Cheung teaches a pH range of 5.5-8.5 for the biological composition (page 19, line 32). Although Cheung does not explicitly teach ‘wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a pH less than 5 for at least 30 minutes,’ MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the pH and time at which it is at said pH depending on the particular application. It would be routine for one to arrive at a pH and time for the application they intend on using the yeast-stabilized biomass slurry Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claim 20, it would be obvious to one of ordinary skill in that art that one would add one or more acids to maintain a low pH of the biomass as acids are routinely utilized in the art to maintain and/or lower the pH of compositions. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claims 21-22, Cheung teaches the application of an electromagnetic field to a biomass with yeast components (page 10 lines 34-35 and page 11, lines 1-5). EM waves interact directly with water molecules, of which is the exact basis for how water activity is measure. As such, it is the Examiner’s position that the EMF applied by Cheung would necessarily result in water activity being applied to the biomass. , Although Cheung does not explicitly teach ‘wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a water activity less than 0.97 Aw for at least 30 minutes,’ MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the time at which the biomass is at a water activity depending on the particular application. It would be routine for one to arrive at a water activity for a period of time for the application they intend on using the yeast-stabilized biomass slurry. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claim 23, Cheung teaches the application of an electromagnetic field to a biomass with yeast components (page 10 lines 34-35 and page 11, lines 1-5). Since the electrical conductivity and electromagnetic (EM) waves are directly related as the conductivity of a material dictates how it interacts with, absorbs, or reflects EM wave, it is the Examiner’s position that the yeast-stabilized biomass slurry would necessarily exhibit an electrical conductivity (EC) . Regarding the recitation ‘an electrical conductivity (EC) of 20.0±5 mS/cm for at least 30 minutes,’ MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the time at which the electroconductivity is applied to the yeast-stabilized biomass slurry depending on the particular application. It would be routine for one to arrive at the electrical conductivity and time at which it is applied for the application they intend on using the yeast-stabilized biomass slurry. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claim 24, Cheung teaches the application of an electromagnetic field to a biomass with yeast components (page 10 lines 34-35 and page 11, lines 1-5). Redox potential and electromagnetic waves are inherently connected because both are deeply rooted in the behavior of electrons and electric fields. As such, it is the Examiner’s position that the yeast biomass taught by Cheung would necessarily have a redox potential. Although Cheung does not explicitly teach ‘wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a redox potential (Eh) selected from 0 mV to -200 mV for at least 30 minutes,’ MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the time at which the biomass is at a redox potential depending on the particular application. It would be routine for one to arrive at a redox potential for a period of time for the application they intend on using the yeast-stabilized biomass slurry. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claim 30, Cheung teaches the biomass is ground up to powder form (page 4, lines 34-35). It is obvious to one of ordinary skill in the art that the grinding of the biomass into powder, as taught by Cheung, would necessarily result in a homogenized liquid slurry since the biomass is comprised of liquid media along with the powder biomass. MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the grinding of the biomass to produce particles with a diameter less than 2 mm depending on the particular application. It would be routine for one to arrive at a diameter less than 2 mm for the application they intend on using the biomass. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claim 31, one of ordinary skill in the art would desire to re-homogenize and re- to improve consistency, efficiency, and product quality filter the yeast-stabilized biomass slurry filtrate one or more times prior to aerating to improve the consistency, efficiency, and production quality. Said process is well-known in the art and routinely performed on compositions containing particulate matter to remove artifacts. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claims 39-40, Cheung teaches a pH range of 5.5 to 8.5 for the biological composition (page 19, line 32). Although Cheung does not explicitly ‘wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a pH less than 5 for at least 30 minutes,’ MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the pH and time at which it is at said pH depending on the particular application. It would be routine for one to arrive at a pH and time for the application they intend on using the yeast-stabilized biomass slurry. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claim 41, it would be obvious to one of ordinary skill in that art that one would add one or more acids to maintain a low pH of the biomass as acids are routinely utilized in the art to maintain and/or lower the pH of compositions. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claims 42-43, Cheung teaches the application of an electromagnetic field to a biomass with yeast components (page 10 lines 34-35 and page 11, lines 1-5). EM waves interact directly with water molecules, of which is the exact basis for how water activity is measure. As such, it is the Examiner’s position that the EMF applied by Cheung would necessarily result in water activity being applied to the biomass. Although Cheung does not explicitly ‘wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a water activity less than 0.97 Aw for at least 30 minutes,’ MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the time at which the biomass is at a water activity depending on the particular application. It would be routine for one to arrive at a water activity for a period of time for the application they intend on using the yeast-stabilized biomass slurry. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claim 44, Cheung teaches the application of an electromagnetic field to a biomass with yeast components (page 10 lines 34-35 and page 11, lines 1-5). EMF generates electrical conductivity through electromagnetic induction. As such, it is the Examiner’s position that the EMF applied by Cheung would necessarily generate electrical conductivity as the EMF generates electrical conductivity through electromagnetic induction. Regarding the recitation ‘wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at an electrical conductivity (EC) of 20.0±5 mS/cm for at least 30 minutes,’ MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the time at which the electroconductivity is applied to the yeast-stabilized biomass slurry depending on the particular application. It would be routine for one to arrive at the electrical conductivity and time at which it is applied for the application they intend on using the yeast-stabilized biomass slurry. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claim 45, Cheung teaches the application of an electromagnetic field to a biomass with yeast components (page 10 lines 34-35 and page 11, lines 1-5). Redox potential and electromagnetic waves are inherently connected because both are deeply rooted in the behavior of electrons and electric fields. As such, it is the Examiner’s position that the yeast biomass taught by Cheung would necessarily have a redox potential. Although Cheung does not explicitly teach ‘wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry at a redox potential (Eh) selected from 0 mV to -200 mV for at least 30 minutes,’ MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the time at which the biomass is at a redox potential depending on the particular application. It would be routine for one to arrive at a redox potential for a period of time for the application they intend on using the yeast-stabilized biomass slurry. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
With respect to claim 46, one of ordinary skill in the art would desire to re-homogenize and refilter the yeast-stabilized biomass to improve consistency, efficiency, and product quality by filtering the yeast-stabilized biomass slurry filtrate one or more times prior to aerating to improve the consistency, efficiency, and production quality.. As such, one of ordinary skill in the art would have a reasonable expectation that the product obtained after re-homogenization and refiltering the biomass would be freer of particulate matter that could negatively impact the performance of the product. Additionally, although Cheung does not explicitly teach ‘at a temperature of 75°F to 90°F for at least 6 hours,’ MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the temperature and time at which it is at said temperature depending on the particular application. It would be routine for one to arrive at a temperate and time for the application they intend on using the yeast-stabilized biomass slurry. Therefore, the above invention would have been prima facie obvious. Additionally, it is noted that the recitation of “to produce a refined slurry filtrate” is a “product-by-process” claim limitation. MPEP 2113 states “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).” As such, the product obtained by the combination of the teachings of the above references would result in the same product as claimed. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
RESPONSE TO REMARKS: Beginning on p. 16 of Applicant’s remarks, Applicant contends that the rejection has been addressed by amendment. In summary, Applicant contends that a person skilled in the art would consider that the activation steps of Cheung are essential for achieving the effect of inhibiting pathogenic microbial growth in a biomass, and thus would not conceive of the method of the present claims which requires contacting or direct application of yeast cell component to the biomass - which Cheung explicitly deems as not effective.
This argument is found to be not persuasive. Examiner contends that Applicant’s claim limitations are not limited to a first and second hurdle. Examiner contends that the teachings by Cheung of the application of an EMF does not necessitate withdrawal of the rejection as Applicant has not limited the claim language to ONLY encompass what Applicant has recited in the instant application. Examiner contends that the claim language is open-ended, therefore Cheung is appropriately applied to teach the claim limitations.
The claims 15-17, 36-38 under 35 U.S.C. 103 as being unpatentable over Cheung et al (WO 02/070436 A2, Date Published: 12 September 2002, cited on IDS dated 1/26/2024) as applied to claims 1-2, 4-7, 9-10, 12-14, 25, 27-29, 32-35 in view of Ikegger (2018, Pressure fermentation, cited on PTO-892 dated 1/16/2026) {herein Ikegger} as evidenced by Riffo et al (2021, Journal of Fungi, cited on PTO-892 dated 1/16/2026) {herein Riffo} is maintained. The rejection has been modified in view of Applicant’s amendment to claims to recite ‘a first and second hurdle,’ cancellation of claims 8 and 26.
Claim 15 is drawn to the method, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry under a pressure of at least 2 bars for at least 30 seconds.
Claims 16 is drawn to the method, wherein with mixing the pressure is applied to each portion of the yeast-stabilized biomass slurry for at least 30 seconds.
Claims 17 is drawn to the method, wherein the pressure is maintained within the yeast-stabilized biomass slurry at a pressure selected from 5 bars to 16 bars for at least 30 minutes.
Claims 36 is drawn to the method, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry under a pressure of at least 2 bars for at least 30 seconds.
Claims 37 is drawn to the method, wherein with mixing the pressure is applied to each portion of the yeast-stabilized biomass slurry for at least 30 seconds.
Claim 38 is drawn to the method, wherein the pressure is maintained within the yeast-stabilized biomass slurry at a pressure selected from 5 bars to 16 bars for at least 30 minutes.
The teachings of Cheung as applied to claims 1-2, 4-7, 9-10, 12-14, 25, 27-29, 32-35 are set forth in the 102a1 rejection above.
However, Cheung does not teach the method of claim 15, wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry under a pressure of at least 2 bars for at least 30 seconds (claim 15). Cheung does not teach the method of claim 16, wherein with mixing the pressure is applied to each portion of the yeast-stabilized biomass slurry for at least 30 seconds (claim 16). Cheung does not teach the method of claim 17, wherein the pressure is maintained within the yeast-stabilized biomass slurry at a pressure selected from 5 bars to 16 bars for at least 30 minutes (claim 17). Cheung does not teach the method of claim 36, wherein the at least one second hurdle comprises maintaining at least a portion of the yeast-stabilized biomass slurry under a pressure of at least 2 bars for at least 30 seconds. Cheung does not teach the method of claim 37, wherein with mixing the pressure is applied to each portion of the yeast-stabilized biomass slurry for at least 30 seconds (claim 37). Cheung does not teach the method of claim 38, wherein the pressure is maintained within the yeast-stabilized biomass slurry at a pressure selected from 5 bars to 16 bars for at least 30 minutes (claim 38).
With respect to claims 15-16, Ikegger teaches a method wherein the pressure is utilized at 2.5 bars in the process of fermentation to inhibit air from contacting the fermentation broth (page 2, para 4; page 6, para 2). It would be obvious to one of ordinary skill in the art to split the yeast-stabilized biomass slurry into portions and apply pressure to each portion to optimize conditions for different stages and microorganisms, prevent contamination, and manage the process efficiently. Although Ikegger does not explicitly teach ‘wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry under a pressure of at least 2 bars for at least 30 seconds,’ MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the time at which the biomass is under pressure depending on the particular application. It would be routine for one to arrive at a pressure for a period of time for the application they intend on using the yeast-stabilized biomass slurry. Therefore, the above invention would have been prima facie obvious.
With respect to claims 36-38, Ikegger teaches a method wherein pressure is utilized at 2.5 bars in the process of fermentation to inhibit air from contacting the fermentation broth (page 2, para 4; page 6, para 2). Furthermore, it would be obvious to one of ordinary skill in the art to split the yeast-stabilized biomass slurry into portions and apply pressure to each portion to optimize conditions for different stages and microorganisms, prevent contamination, and manage the process efficiently. Although Cheung does not explicitly teach ‘wherein the at least one second hurdle comprises maintaining the yeast-stabilized biomass slurry under a pressure of at least 2 bars for at least 30 seconds,’ (claim 36) and ‘a pressure selected from 5 bars to 16 bars for at least 30 minutes’ (claim 38) MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the time at which the biomass is under pressure depending on the particular application. It would be routine for one to arrive at a pressure for a period of time for the application they intend on using the yeast-stabilized biomass slurry. Therefore, the above invention would have been prima facie obvious.
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to apply the teachings of Cheung et al. of a method of inhibiting microbial growth within organic material by utilizing yeast cell components (page 3, lines 29-33) or combine the teachings of Ikegger because Ikegger teaches a method wherein pressure is utilized in the process of fermentation to inhibit air from contacting the fermentation broth (page 2, para 4).
One of ordinary skill in the art would be motivated to either use the teachings of Cheung et al. by itself or combine the teachings of Ikegger because Ikegger provides the motivation for Cheung to use pressure during the fermentation process because the application of pressure reduces the amount of air that comes into contact with the fermentation mixtures (Ikegger: page 2, para 2), thereby reducing the likelihood of extraneous microbial contamination and spoilage. Additionally, the application of pressure reduces the build-up of esters which reduces the production of undesirable, overpowering flavors and aromas (page 2, para 6) for a biological fertilizer as said aromas could attract unwanted pests resulting in contamination of the biomass. One of ordinary skill in the art would have a reasonable expectation of success to try applying pressure to the fermentation mixture as doing so would reduce the likelihood of extraneous microbial contamination and spoilage.
One of skill in the art would have a reasonable expectation of success to make and use the claimed method of inhibiting pathogenic microbial growth in a biomass because Cheung provides the basic method and its uses of making it. Reference of Ikegger provides a method wherein pressure is utilized in the process of fermentation to inhibit air from contacting the fermentation broth (page 1, para 4). Therefore, there would be a reasonable expectation of success to arrive at the above invention. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
RESPONSE TO REMARKS: Beginning on p. 21 of Applicant’s remarks, Applicant contends that the rejection has been addressed by amendment. In summary, Applicant contends that Ikegger does not teach or suggest that the pathogenic microbial growth in the biomass is reduced compared to pathogenic microbial growth in an equivalent biomass that is not contacted with the first and second hurdle.
This argument is found to be not persuasive. Examiner contends that Ikegger was relied upon to provide the motivation for Cheung to use pressure during the fermentation process because the application of pressure reduces the build-up of esters which reduces the production of undesirable, overpowering aromas (page 2, para 6) for a biological fertilizer as said aromas could attract unwanted pests resulting in contamination of the biomass. Furthermore, the application of pressure reduces the amount of air that comes into contact with the fermentation mixtures (Ikegger: page 2, para 2), thereby reducing the likelihood of extraneous microbial contamination and spoilage. As such, Examiner maintains that utilizing Ikegger as a secondary reference to provide Cheung with motivation to utilize pressure as a second hurdle is appropriately applied to the 103 rejection within the instant application.
Conclusion
Status of Claims
Claims 8, 11, 26 are canceled.
Claims 1-7, 9-10, 12-25, 27-46 are pending.
Claims 1-7, 9-10, 12-25, 27-46 are rejected.
No claims are in condition of allowance.
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 ERICA NICOLE JONES-FOSTER whose telephone number is (571)270-0360. The examiner can normally be reached mf 7:30a - 4:30p.
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/ERICA NICOLE JONES-FOSTER/Examiner, Art Unit 1656
/MANJUNATH N RAO/Supervisory Patent Examiner, Art Unit 1656
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