DETAILED ACTION
Status of Claims:
Claims 1-28 and 30-32 are pending.
Claims 1 is amended.
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 .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/02/2025 has been entered.
Response to Arguments
Applicant's arguments filed 11/02/2025 have been fully considered but they are not persuasive. The applicant argues that paragraphs 5 and 146 of Whiteman does not teach the limitations of claim 1. The applicant states that paragraph 5 has no relevance to claim 1. This argument is not persuasive because paragraph 5 is cited to define the term “PE”, used in paragraph 146 so show that increasing the PE is equivalent to increasing the flow rate.
The applicant argues that paragraph 146 is directed to adding structures to the wastewater treatment plant. This argument is not persuasive because paragraph 146 explicitly states that the plant “could be further upgraded” to include additional structures. The increase in PE (flow rate) disclosed in paragraph 146 before is achieved with a change to flow design and dosing (see para. 164, pg. 15 left column lines 1-13). The applicant argues that paragraph 146 is silent regarding the effluent because biosolids are not effluent. This argument in not persuasive because effluent is not limited to a liquid effluent and the biosolids before an separation step would be part of the effluent. Further as Whiteman teaches that the “plant is struggling with meeting permit requirements for discharge” (level of pollutants) and the upgraded treatment allows for an increase in PE capacity it inherent that the flow rate is increased while maintaining the pollutant level. The capacity of the plant would not be considered to be increased if the permit requirements were not met. The applicant argues that paragraphs 146 is void of any disclosure regarding “embodied carbon footprint”. The applicant is correct that the term “embodied carbon footprint” is not used, however no structures are added to achieve the increase in flow rate, therefore the embodied carbon footprint remains the same.
The applicant is correct that paragraph 147 is not directly related to the claim, however the claim is rejected in view of paragraphs 5 and 146. Paragraph 147 is no longer cited in the current rejection.
The corresponding arguments related to claim 12 are not persuasive for the same reasons as above. The applicant further argues with respect to claim 12 that paragraph 146 of Whitman does not have any disclosure regrading greenhouse gases. The applicant is correct that Whiteman does not refer to greenhouse gases, however reducing the amount of greenhouse gases is a result of a method step, not a method step. Something is done to reduce the amount of greenhouse gases while maintaining the level of pollution. The instant specification teaches that the reduction in greenhouse gases is form active treatment batch methods (dosing/adding microbes) (see for example published specification para. 0047, 0104), as this is the same method used by Whiteman (see whole document, in particular para. 0016, 0019, 0068, 0146) in the same system (a wastewater treatment facility) (see Whiteman para. 0146) the same result is inherent and the greenhouse gases will be reduced while maintaining the level of pollution.
The applicant argues that claim 23 is rejected solely of Whiteman USPN 9,409,803. It is initially noted that claim 23 is rejected separately by Whiteman US 2020/0087183 and Whiteman USPN 9,409,803. The applicant argues that ‘803 does not disclose “providing green sustainable microbiology net zero carbon solution to waste water”. This argument is not persuasive because ‘803 teaches “using biofermentation to treat the waste water” (see ‘803 whole document, in particular col. 8 lines 36-39, lines 58-60). The applicant is correct that ‘803 does not use the phrase “providing green sustainable microbiology net zero carbon solution to waste water”, however these terms do not add patentable weight to the claim, they do not have a standard meaning within the art and are not defined in the specification, nor are the steps being performed (they are a result or intended use of the method), therefore any method using biofermentation would be considered to meet the claimed limitations. The applicant arguers that “inherency can never be presumed. Rather the doctrine of inherency requires that the claim term be necessarily and always present in the prior art”. This argument is not persuasive because it has no support. The argument of inherency must be supported with evidence (“the extrinsic evidence must make is clear that the missing descriptive matter is necessarily present”) it is not required to be explicitly stated in the “claim term[s]”. In the instant case the “providing green sustainable microbiology net zero carbon solution to waste water” is necessarily present in ‘803 because the wastewater is treated using biofermentation. In particular the method disclosed in the applicants specification of adding an active treatment batch (from a biofermentation process) is taught by ‘803 (inoculation of microbes from the biofermentation system) (see ‘803 col. 8 lines 58-60). As the same method as disclosed by the applicant is taught by the prior art, and is performed in the same environment, the same result is inherent. The applicant argues that “total absence of the required claim elements, is insufficient to establish an inherent disclosure of those claim elements”. This argument is not persuasive for the reasons above and because there is not a “total absence” of the required claim elements there is an absence of the claim terms. The prior art is not required to use the same terms as the instant invention.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-22 are rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, as based on a disclosure which is not enabling. The disclosure does not enable one of ordinary skill in the art to practice the invention without adding a treatment batch, which is/are critical or essential to the practice of the invention but not included in the claim(s). See In re Mayhew, 527 F.2d 1229, 188 USPQ 356 (CCPA 1976). Claim 1 states “the initial flow rate is at a capacity of the embodied carbon footprint to maintain the pollutants in an effluent from the wastewater treatment plant…increasing the flow rate…wherein the level of pollutants in the effluent are maintained at or below the first level of pollutants…” and claim 12 states “without reducing the capacity of the wastewater treatment plant…the wastewater treatment facility producing a first amount of greenhouse gasses… for an initial flow rate of the wastewater treatment; wherein pollutants in an effluent from the wastewater treatment plant are maintained at or below a first level of pollutants; and, b. reducing the first amount of greenhouse gasses produced by at least 25%, while maintaining the level of pollutants in the effluent at or below the first level of pollutants”. Claim 1 does not include limitations directed to what the applicant has changed or what step has been down to allow the initial flow rate which is at capacity to be increased while maintaining the first level of pollutants. Claims 12 does not include limitations directed to what the applicant has changed or what step has been down to allow the first amount of greenhouse gases to be reduced while maintaining the level of pollutants. The specification states “the use of batches of active microbes…increasing the purity of the effluent…” (see para. 0019), “The present inventions provide surprising new uses for applications for and configurations of, active treatment batch methodologies…” (see para. 0020), “a treatment facility constructed to use an active treatment batch approach can conservatively increase capacity 25%” (see para. 0043), “[i]n general, embodiments of the present invention relate to wastewater treatment facilities that use and optimize active treatment batch methodologies”. The specification teaches that “active treatment batch methodologies” are used to create the improvements claims, however the claims do not require “active treatment batch methodologies”. As adding an “active treatment batch” is the only method disclosed in the specification that allows the capacity to be increased and the greenhouse gasses to be decreased therefore “active treatment batch methodologies” are critical or essential to the practice of the invention.
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.
Claims 1-28 and 30-32 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding Claim 1:
The claim refers to “the effluent” in line 2. There is insufficient antecedent basis for this limitation within the claims.
Regarding Claim 12:
The claim refers to “the effluent” in line 3. There is insufficient antecedent basis for this limitation within the claims.
Regarding Claim 23:
The claim states “providing green sustainable microbiology net zero carbon solution”. This phrase renders the claim indefinite because it is not clear what types of microbiology the applicant would consider to be “green” and “sustainable” these terms do not have any specific standards in the industry and are not defined in the specification, therefore and microbiology method that is not explicitly taught as unsustainable is considered to be “green sustainable”. It is further not clear what the applicant intends as “net zero carbon solution”. This term is not defined by the specification and it is not clear what aspect of the method is considered to be or have a “net zero carbon solution”.
Claim 23 is a use claim. The claim does not recite any steps and is therefore indefinite.
The remaining claims are indefinite because they depend from indefinite claims.
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.
Claim(s) 1-23, 25-28, and 30-32 are is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Whiteman (US 2020/0087183).
Regarding Claims 1-4:
Whiteman teaches the method of increasing a capacity of a wastewater treatment facility, while maintaining the quality of the effluent, and without increasing a carbon footprint of the wastewater treatment plant, the method comprising :a. determining an initial flow rate of a wastewater treatment facility (as the percent increase in flow (PE) is determined the initial flow rate is inherently determined) (see whole document, in particular para. 0146); the wastewater treatment facility (facility) (see para. 0146) having structures (at least clarifiers are referred to in paragraph 0146 as a structure) that handle and/or process wastewater, thereby defining a wastewater treatment plant, the structures having embodied carbon, thereby defining an embodied carbon footprint (every structure has an embodied carbon footprint); wherein the initial flow rate is at a capacity (facility is struggling to meet permit requirements) of the embodied carbon footprint to maintain the pollutants in an effluent from the wastewater treatment plant at or below a first level of pollutants (permit requirements) (see whole document, in particular para. 0146); and, b. increasing the flow rate of the wastewater treatment facility to provide an increased flow rate, wherein the increased flow rate is at least 25% greater (and at least 35%, 50% and 70% greater) than the initial flow rate (PE increase of 200%) (see para. 0147); c. wherein the level of pollutants in the effluent are maintained at or below the first level of pollutants at the increased flow rate (treatment is improved, therefore the level of at least some pollutants is inherently lower or the same) (see para. 0147) ; and, d. wherein, the embodied carbon footprint of the wastewater treatment facility remains the same (the embodied carbon footprint remaining the same is considered to be a result of the method and not an additional method step. As the prior art teaches the same method as claimed, and the same method disclosed in the applicant’s specification the same result is considered to be inherent). For the purposes of examination Population Equivalents (PE) is considered to directly correspond to flow rate as it is a metric designed to “measure flow” and represents the capacity of the facility (see para. 0005).
Regarding Claims 5-7:
Whiteman teaches the method of claim 1, wherein the amount of biosolids produced from treating the initial flow rate to the increased flow rate is reduced (reducing biosolids production) by at least 25% (and at least 50 and 60%) (see whole document, in particular para. 0149). Whiteman does not explicitly teach the percent reduction in biosolids, however the amount of biosolids produced is a result of the method and not a method step. As Whiteman teaches the same method as claimed, and the same method disclosed in the specification (adding a dose of microbes (an active treatment batch) to the facility) the same result is presumed to be inherent.
Regarding Claims 8 and 9:
Whiteman teaches the method of claim 1, wherein the amount of phosphorous produced from treating the initial flow rate to the increased flow rate is reduced by at least 20% (and at least 50%). Whiteman does not explicitly teach the percent reduction in phosphorous, however the amount of phosphorous produced is a result of the method and not a method step. As Whiteman teaches the same method as claimed, and the same method disclosed in the specification (adding a dose of microbes (an active treatment batch) to the facility) (see whole document, in particular para. 0146, 0022) the same result is presumed to be inherent.
Regarding Claims 10 and 11:
Whiteman teaches the method of claim 1, wherein the amount of nitrogen produced from treating the initial flow rate to the increased flow rate is reduced by at least 20% (and at least 50%). Whiteman does not explicitly teach the percent reduction in nitrogen, however the amount of nitrogen produced is a result of the method and not a method step. As Whiteman teaches the same method as claimed, and the same method disclosed in the specification (adding a dose of microbes (an active treatment batch) to the facility) ) (see whole document, in particular para. 0146, 0022) the same result is presumed to be inherent.
Regarding Claims 12-16:
Whiteman teaches the method of operating a wastewater treatment facility, to reduce the production of greenhouse gasses associated with the treatment of the wastewater, while maintaining the quality of the effluent, and without reducing the capacity of the wastewater treatment plant, the method comprising: a. the wastewater treatment facility producing a first amount of greenhouse gasses (producing greenhouse gases is inherent) for the treatment and disposal of sludge having for an initial flow rate of the wastewater treatment; wherein the pollutants in an effluent from the wastewater treatment plant are maintained at or below a first level of pollutants (first level is that struggling to meet requirements) (see whole document, in particular para. 0146); and, b. reducing the first amount of greenhouse gasses produced by at least 25% (and by at least 30%, 40%, 60%, and 80%) (reducing greenhouse gases is a result or of a step, not a process step), while maintaining the level of pollutants in the effluent at or below the first level of pollutants. Whiteman teaches adding a dose of microbes (see whole document, in particular para. 0149). This is the same method step as disclosed by the applicant to reduce greenhouse gases, therefore the same result is inherent and the greenhouse gases will be reduced by at least 80% and the level of pollutants will be at or below the first level.
Regarding Claims 17 and 18:
Whiteman teaches the method of claim 12, wherein the amount of biosolids produced from treating the initial flow rate to the increased flow rate is reduced by at least 50% (and at least 60%) (see whole document, in particular para. 0146). The amount of biosolids produced is a result of the method performed and not an additional step. Whiteman does not explicitly teach the percent reduction in biosolids, however Whiteman teaches the same method, applied to the same environment as the claims and as disclosed in the instant specification. Therefore the same reduction in biosolids is inherently the same.
Regarding Claims 19 and 20:
Whiteman teaches the method of claim 12, wherein the amount of phosphorous produced from treating the initial flow rate to the increased flow rate is reduced by at least 20% (and at least 50%). The amount of phosphorous produced is a result of the method performed and not an additional step. Whiteman does not explicitly teach the percent reduction in phosphorous, however Whiteman teaches the same method, applied to the same environment as the claims and as disclosed in the instant specification. Therefore the reduction in phosphorous is inherently the same.
Regarding Claims 21 and 22:
Whiteman teaches the method of claim 12, wherein the amount of nitrogen produced from treating the initial flow rate to the increased flow rate is reduced by at least 20% (and at least 50%). The amount of nitrogen produced is a result of the method performed and not an additional step. Whiteman does not explicitly teach the percent reduction in nitrogen, however Whiteman teaches the same method, applied to the same environment as the claims and as disclosed in the instant specification. Therefore the reduction in nitrogen is inherently the same.
Regarding Claim 23:
Whiteman teaches the method of providing green sustainable microbiology net zero carbon solution to waste water and waste material treatment using biofermentation to treat the waste water and waste material with a treatment containing biofermented microbes (see whole document, specifically para. 0120, fig, 8).
Regarding Claim 25:
Whiteman teaches the method of any of claims 1, 12, or 23, comprising increasing alkalinity recovery by improving denitrification (see whole document, in particular para. 0119). Whiteman teaches the process improves denitrification. As Whiteman teaches the same method as claimed, and disclosed in the specification the increased alkalinity recovered is inherent.
Regarding Claim 26:
Whiteman teaches the method of any of claims 1,12 or 23, comprising improving biomass settleability (see para. 0127).
Regarding Claim 27:
Whiteman teaches the method of any of claims 1,12 or 23, comprising control of undesirable filamentous growth (see whole document, in particular para. 0050).
Regarding Claim 28:
Whiteman teaches the method of any of claims 1, 12, or 23, comprising improving nitrification and increasing ammonia removal (see whole document, in particular para. 0119). The improvements are results of the method and not additional method steps. As Whiteman teaches the same method as claimed, and disclosed in the specification the improved nitrification and ammonia removal are inherent.
Regarding Claim 30:
Whiteman teaches the method of any of claims 1, 12, or 23, comprising increasing capacity and hydraulic throughput of wastewater plants (see whole document, in particular para. 0146).
Regarding Claim 31:
Whiteman teaches the method of any of claims 1, 12, or 23¸ comprising increasing phosphorus removal. Increasing phosphorous removal is a result of the method, not an additional method step. As Whiteman teaches the same method as the instant invention the same result, increased phosphorous removal, is inherent.
Regarding Claim 32:
Whiteman teaches the method of any of claims 1, 12, or 23, comprising minimizing opex costs (costs are reduced) (see whole document, in particular para. 0027, 0051, 0076).
Claim(s) 23 and 24 are is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Whiteman (USPN 9,409,803, hereafter referred to as ‘803).
Regarding Claim 23:
‘803 teaches the method of providing green sustainable microbiology net zero carbon solution to waste water and waste material treatment using biofermentation to treat the waste water and waste material with a treatment containing biofermented microbes (see whole document, in particular col. 8 lines 58-60, col. 3 lines 23-34).
Regarding Claim 24:
‘803 teaches the method of any of claims 1,12 or 23, comprising the treatment of fats, oils and grease (see whole document, in particular col. 5 lines 56-61).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CLAIRE A NORRIS whose telephone number is (571)272-5133. The examiner can normally be reached M-Th 7:30-5 F: 8-12.
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/CLAIRE A NORRIS/Primary Examiner, Art Unit 1779 11/25/2025