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 .
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-2 and 6 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over by Li et al (US 2018/0223241).
Regarding claims 1-2 Li discloses a tubular photobioreactor comprising: a photo stage having one or more corrugated clear tubes through which algae suspension is being continuously circulated,(See Li Abstract, [0003], [0032] and Figs. 1-3 wherien a tubular photobioreactor formed from corrugated clear tube(s) 10 has an algae suspension circulated therein. )
the corrugated clear tubes having a tubular shape along an axial center axis and a corrugated cross-section, the corrugated cross-section defining a cross-section surface area, the cross-section surface area remaining constant along the center axis, the walls of corrugated clear tubes have a light transmittance such that surface area of the wall is a photon surface area where external light is transmitted through the wall to the algae suspension for algae growth.(See Li [0012] and [0032] and Figs. 2-3 wherein tubes 10 are tubes extended along a center axis are corrugated in cross-section and have a surface area that remains constant along a center axis. The corrugated clear tubes have a surface area that allow external light transmission therethrough such that algae grows therein, i.e. the tubes are transparent and clear.)
wherein the relative photon surface area is greater than 10 percent, when the corrugated clear tube is compared with a circular tube which has a circular cross-section of the same area as that of the corrugated clear cross section area. (See Li [0042] wherein the corrugated design increases illumination area, i.e. photon surface area, by 50-70% when compared to a circular tube.)
Furthermore assuming arguendo with respect to the surface area relative to a circular tube it is noted that such a modification would have required a mere change in shape of the corrugations which would have been obvious to one of ordinary skill in the art at the time of filing to optimize light usage and because the change in configuration of shape of a device is obvious absent persuasive evidence that the particular configuration is significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Regarding claim 3 Li discloses all the claim limitations as set forth above as well as the device where the center axis follows a straight or curved path. (See Li Fig. 2-3 wherein the center axis is a straight path.)
Regarding claim 5 Li discloses all the claim limitations as set forth above as well as the device wherein the corrugated cross-section is defined by a closed path traveling around the center axis between two radii extending from the center axis. (See Li Figs. 2-3 wherein the corrugated cross-section is a closed path around the center axis and extends between two radii extending from the center axis, i.e. a longer radius and shorter radius.)
Regarding claim 6 Li discloses all the claim limitations as set forth above as well as the device wherein the corrugated cross-section is defined by dividing circle by radii into alternate wedge-shaped sectors, with adjacent sectors having a different radius. (See Li Figs. 2-3 wherein the cross section is divided in alternate wedge-shaped sectors having adjacent sectors with different radii, i.e. sections which extend further from the center than adjacent sections.)
Furthermore assuming arguendo with respect the sections being wedge-shaped it is noted that such a modification would have required a mere change in shape which would have been obvious to one of ordinary skill in the art at the time of filing to optimize surface area and because the change in configuration of shape of a device is obvious absent persuasive evidence that the particular configuration is significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Claim(s) 4 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over by Li et al (US 2018/0223241) as applied to claims above, and further in view of Falco (US 2020/036995).
Regarding claim 4 Li discloses all the claim limitations as set forth above but does not disclose the corrugated cross section rotated around a center axis to form a helical like construction.
Falco discloses a photobioreactor having a clear tube with a corrugation which is rotated around a center axis such that it has a helical construction in order to allow effective dispersion of microorganisms to provide effective light exposure. (See Falco Abstract Figs. 11-12 and [0180]-[0182] wherein a corrugation 3 in a tube 2 is rotated around a center axis such that it is helical.)
It would have been obvious to one of ordinary skill in the art at the time of filling to rotate the corrugations of Li around a center axis to form a helical construction as described by Falco because such a rotation allows dispersion of microorganisms and effective light exposure throughout the tubing as would be desirable in the device of Li.
Regarding claim 7 Li discloses all the claim limitations as set forth above but does not disclose the material which the clear corrugated tube is formed from.
Falco discloses a photobioreactor comprising a clear corrugated tube wherein the tube is formed from glass or plastic.(See Falco [0168])
It would have been obvious to form the clear corrugated tube of Li from glass or plastic as described by Flaco because such materials are known to allow the effective transmission of light and containment on phototropic organisms as would be desirable in Li and one would have a reasonable expectation of success in utilizing such materials.
Response to Arguments
Applicant's arguments filed 9/19/2025 have been fully considered but they are not persuasive.
Applicant argues that the term “tubular photobioreactor” is a term of art which requires a specific construction requiring “a photo receiver or stage, with the photo stage comprising a long tube or tubes (often looped to save space) through which a microalgal culture flows”. Applicant argues that Li does not meet such a definition because it has a sealed end and is more akin to a bottle or jar and thus cannot be a tubular photobioreactor.
The examiner disagrees with both applicant’s assertion that tubular photobioreactor is a term of art requiring a specific construction as well as applicant’s limited interpretation of Li.
Assuming arguendo with respect to a tubular photobioreactor requiring “a photo receiver or stage, with the photo stage comprising a long tube or tubes (often looped to save space) through which a microalgal culture flows” as alleged by the applicant the examiner believes Li reads on such a narrow definition of “tubular photobioreactor”
Firstly applicant’s own specification discloses tubular photobioreactors being in the form of “flasks”, i.e. short bottom sealed devices, (See Fig. 2). Thus applicant appears to believe such sealed bottom flasks read on tubular photobioreactors and applicant’s arguments do not appear to hold weight.
Secondly contrary to applicant’s assertion LI does in fact read on applicant’s narrow interpretation of a tubular photobioreactor, i.e. a device with “a photo receiver or stage, with the photo stage comprising a long tube or tubes (often looped to save space) through which a microalgal culture flows”. Li discloses a long tubular structure 1 though which light passes in order to grow algae, i.e. a photo stage. While Li discloses that one end of the tube is “sealed” such a seal is only partial and the algae and other material flows from into a top of the tube and out a bottom of the tube. (See Li [0044]-[0045] where Li specifically discloses a tubular main body wherein liquid flows in a top 105 and out a bottom 107.) Li also specifies that such tubes may be placed in series such that fluid flows from one tube into another. (See Li [0029] and [0055]) Thus Li clearly reads on even applicant’s limited definition of a tubular photobioreactor.
Furthermore the fact that Li discloses additional structures within the tubes, i.e. mixing and aeration structures, designed to improve desirable aeration, are not material as applicant’s claims utilize comprising language.
Additionally applicant’s argues that “there is no tubing in Li et al to which the helical construction of Falco can be applied”. This is clearly false as Li discloses a tube structure and specifically recites such (See Li [0012]) and such specifically pointed out by the examiner in the rejection. As such applicant’s arguments are not persuasive the rejection is maintained.
Conclusion
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 JONATHAN M HURST whose telephone number is (571)270-7065. The examiner can normally be reached on M-F 7AM-4PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Marcheschi can be reached on 571-272-1374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JONATHAN M HURST/ Primary Examiner, Art Unit 1799