DETAILED ACTION
Status of Claims:
Claims 1-28 and 30-32 are pending.
Claims 1, 12, and 23 are 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 .
Response to Arguments
Applicant's arguments filed 5/28/2025 have been fully considered but they are not persuasive. The applicant argues that claim 23 is not indefinite because “net zero carbon solution” is a well know common term understood to mean “a balancing of the amount of greenhouse gases emitted into the atmosphere with an equal amount of carbon removed or offset”. This argument is not persuasive because the applicant has further amended to claim to state “wherein the amount of greenhouse gases emitted into the atmosphere is equal to or less than the amount of carbon removed from the wastewater”. The amount of carbon removed from the wastewater is not offset carbon. The carbon is only offset if the same amount of carbon released into the atmosphere is absorbed into something else (i.e. by trees planted or algae grown in conjunction with the treatment plant). There is no teaching in the specification of removing or offsetting the carbon released into the atmosphere, only reducing the amount.
The applicant argues that Whiteman does not disclose an embodied carbon footprint. This argument is not persuasive because an embodied carbon footprint in an inherent feature of every structure/treatment plant. The prior art does not need to explicitly refer to a limitation for it to be inherent.
The applicant argues that the PE referred to in Whiteman is not equivalent to flow rate because it is a measurement of the amount to pollution. This argument is not persuasive because paragraph 0005 of Whiteman states “PE is standardization that is used to measure flow” further paragraph 0006 of Whiteman states “a unit of PE typically equates to 50 gallons per person per day…” therefore determining PE is equivalent to determining an initial flow rate because it is a standardization of the flow rate. The claims do not require measuring flow rate, only determining flow rate.
The applicant argues that the example disclosed in paragraph 0146 of Whiteman teaches that the structures of the treatment plant will be changed because Whiteman states “redesigning the flow regime”. This argument is not persuasive because changing the flow through the existing plant does not change the embodied carbon footprint because no new structures are added. Whiteman explicitly teaches that adding additional structures (further upgrades to include aerobic digesters…) is optional and not required by example 19, therefore changes to the embodied carbon footprint are not required. Whiteman teaching additional features not included by the claims does not discount that the claimed limitations (i.e. not increasing the embodied carbon footprint by not adding new structures) are also disclosed.
The applicant argues that paragraph 0146 is silent regarding the effluent and that biosolids are not equivalent to the effluent. This argument is not persuasive because Whiteman teaches that “in the is example, it is assumed that the plant is at design, struggling with meeting permit requirements for discharge…” and that the method of adding an active treatment batch (“dosed at the headworks…”) allows for greater treatment and increase in hydraulic loading (PE, flowrate) (see para. 0146). As the capacity is increased the level of pollutants in the effluent are inherently maintained or reduced (the plant is subject to discharge permit requirements, the capacity cannot increase if the requirements are not met, as it was previously struggling the pollutant level could not increase and still meet permit requirements.) Further, the level of pollutants being maintains at or below the first level is a result of the method, not an additional method step.
The applicant again argues that increasing PE does not mean increasing flow rate and that PE is expressly referred to as “loading rate”. This argument is not persuasive because paragraph 0146 states “hydraulic” or organic loading rate. The hydraulic loading rate is the flow rate of the wastewater. An increase of up to 200% is disclosed (see para. 0146).
The applicant is correct that reference to paragraph 0147 was made in error.
The applicant argues that paragraph 0146 is void any disclosure of greenhouse gases. The applicant is correct that Whiteman does not refer to greenhouse gases. However the amount of greenhouse gases produced is a result of the method, not an additional method step. As Whiteman teaches the claimed method steps (adding a batch of active microbes) into the same system (a wastewater treatment facility) the same result, reducing the first amount of greenhouse gases is inherent.
The applicant argues that paragraph 0149 teaches increase the production of methane, a greenhouse gas. This argument is not persuasive because paragraph 0149 of Whiteman is directed to a separate example (example 20) than paragraph 0146 (example 19).
The applicant argues that paragraph 0149 is void of any disclosure about effluent. This argument is not persuasive for the same reasons as above.
The applicant argues that paragraph 0120 and figure 8 of Whitman are void of any disclosure regarding greenhouse gases. This argument is not persuasive because paragraph 0120 and figure 8 explicitly refer to the use of biofermentation. Claim 23 is directed to the use of biofermentation. As Whiteman teaches biofermentation to treat wastewater (see Fig,. 8, example with biofermentation vs. without) the limitations of claim 23 are met. Claim 23 does not require reducing greenhouse gases. Further the newly added limitation of “the amount of greenhouse gases emitted into the atmosphere is equal to or less than the amount of carbon removed from the waste water” is a result of the method, not an additional method step. As the prior art teaches the same method (treatment with biofermented microbes) under comparable conditions (in a wastewater treatment plant) to those disclosed by the applicant the same result is inherent.
The applicant argues that the ‘803 reference is void any disclosure of “carbon”, “net zero carbon, “green”, and “providing green sustainable microbiology net zero carbon solutions to wastewater”. The applicant is correct that ‘803 does not use the same terms as the instant claims. However the prior art is not required to use the same terms as the instant claims. As ‘803 teaches the same method of using biofermented microbes toe treat wastewater the limitations of claim 23 are met.
The applicant argues that inherency can never be presumed and that the office action failed to provide objective evidence of cogent technical reasoning to support the conclusion of inherency. This argument is not persuasive because there is support for the concussion of inherency. Claims 5-7, 8-9, and 10-11 are directed solely to results of the claimed method, not additional method steps. The only method steps claimed by the applicant are determining an initial flow rate, increasing the flow rate, and adding a batch of active microbes all of which are disclosed by the prior art. Whiteman further teaches the method is being performed in the same environment (a wastewater treatment plant) and under the same conditions as disclosed by the instant specification (microbes are dosed at the headworks, or the anoxic zone, etc.) (see Whiteman para. 0146) which are the same as those disclosed in the instastn invention (a water treatment system and dosing at any number of addition points) (See published specification para. 0080). Further the applicants specification explicitly states “Apparatus, equipment, systems, treatments and biofermentation methods of the type taught and disclosed in U.S. Publ. No 2020/0087183, the entire disclosure of which is incorporated by reference, can be used in the present inventions to provide the benefits and advantages of the present inventions” therefore the method taught in Whiteman (US 2020/0087183) can be used in the present invention to provide the benefits of the present invention. The applicant admits that the method used in Whiteman is the method used in the instant invention.
Claim Rejections - 35 USC § 112
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 23-28 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 23:
The claim states “net zero carbon…the amount of greenhouse gases emitted into the atmosphere is equal to or less than the amount of carbon removed from the waste water”. It is not clear how the method is “net zero carbon” if the amount of carbon emitted is the same as the amount of carbon removed from the water.
Claim 28 is a “use claim”. No steps for “using” are claimed.
The remaining claims are indefinite as they depend from an indefinite claim.
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, through the use of an active treatment batch of microbes 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. 0146); c. adding a batch of active microbes (dose to the headworks or other locations) to the wastewater (see para. 0146) 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. 0146) ; 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 at least because energy is used, see fig. 8 comparing energy uses) from the treatment of a wastewater and disposal of a sludge; wherein a flow rate of wastewater through the treatment facility is at an initial flow rate; wherein the pollutants in an effluent from the wastewater treatment facility 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. adding a batch of active microbes (dose) to the wastewater, thereby 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 and maintain the flow rate at or above the initial flow rate. 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 the method comprising using biofermentation to treat the waste water and waste material with a treatment containing biofermented microbes; wherein the amount of greenhouse gases emitted into the atmosphere is equal to or less than the amount of carbon removed from the waste water (see whole document, specifically para. 0120, fig, 8). As Whiteman teaches the same method as claimed, and disclosed in the specification the amount of greenhouse gases emitted into the atmosphere being equal to or less than the amount of carbon removed from the waste water inherent because it is a result of the method, not an additional method step.
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
THIS ACTION IS MADE FINAL. 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 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 6/16/2026
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