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 § 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 3-6,8,14-25 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.
Claim 3 recites the limitation "the change in the height". There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the liquid on which the support and/or web are in-non-negative buoyancy". There is insufficient antecedent basis for this limitation in the claim.
It is noted that claim 3 recites a support which follows “the change in the height of the liquid on which the support and/or web are in non-negative buoyancy”. It is noted that the claims do not recite any portion of the device actually being in any liquid and having non-negative buoyancy therein so it is unclear what liquid the device is in non-negative buoyancy with. Also it unclear that any such liquid has height changes. Thus the structure of the device is indefinite as it is unclear what liquid and what height changes are present. It is suggested that applicant claim the device being placed in a liquid having height changes and having non-negative buoyancy therein such that the support is allowed to follow the said changes in the height of the liquid.
Thus claim 3 and claims which ultimately depend therefrom are indefinite.
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 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wen et al. (US 2020/0231477) and further in view of Christenson et al. (US 2011/0217764).
Regarding claim 1 Wen discloses a system for producing microalgae in the form of biofilm comprising at least one support and a web designed to receive the biofilm and wherein the at least one support is configured to have a rotational movement about an axis of rotation and to support and impart the rotational movement on the web the web is configured to at least partially surround the at least one support. (See Wen Abstract Figs 5 and 9-12 [0047], [0053]-[0057] wherein a device for producing algae includes at least one support, i.e. roller 129 and connected elements, and a web, i.e. support 112 (See Fig. 5 wherein support may be a web material. The supports are at least partially surrounded by the web and the supports impart rotational movement on the web about an axis or rotation.)
Wen discloses that the system may be installed in numerous systems for access to algae including raceways but does not specifically disclose the device having a non-negative buoyancy in a liquid.
Christenson et al. discloses a system for producing algae wherein an algae is cultivated on a support surrounding a rotational support and wherein the device is characterized in that the assembly has a non-negative buoyancy in a liquid.(See Christenson Abstract [0025] and Fig. 4 wherein the assembly is made to float, i.e. have a non-negative buoyancy in a liquid)
It would have been obvious to one of ordinary skill in the art at the time of filing to provide the assembly with a non-negative buoyancy as described by Christenson in the device of Wen because doing so allows the installation of an algae production device in a suitable site as would be desirable in the device of Wen to allow installation in such known sites.
Regarding claim 2 Wen discloses all the claim limitations as well as the device wherein the support (300) and the web (400) each have a non-negative buoyancy. (See Christenson Fig. 4 wherein the device floats and thus the support and web have a non-negative buoyancy.)
Response to Arguments
Applicant's arguments filed 8/25/2025 have been fully considered but they are not persuasive.
Applicant argues “Wen describes a photobioreactor system. The system enables the growth of algae and includes a frame and a sheet of flexible material that can have a substantially vertical orientation. The flexible sheet is configured to facilitate the growth and attachment of algae, and the flexible sheet can be supported by the frame. The algae growth system includes a first drive shaft coupled to the frame and capable of supporting and actuating the flexible sheet. A gear system is coupled to the first drive shaft, and a first roller is coupled to the frame and is configured to guide the flexible sheet. A drive motor is coupled to the gear system to actuate it and thereby actuates the at least one drive shaft such that the flexible sheet can be actuated (Abstract).
The Wen system may include a liquid reservoir containing a contact liquid for rotating the flexible sheet of the algae growth system through a liquid phase and a gas phase, and then harvesting algae from the flexible sheet (Section 0026).
The system uses a minimal amount of culture medium. The triangular and vertical designs reduce the total amount of water required for algae growth by submerging only the lower portion of the bioreactor (Section 35).
Figures 3, 4, 7, and 8 show the triangular design, in which it is indicated that the bottom of the triangular-shaped algae growth system is submerged in contact with the liquid 14 to reduce the amount of water (Section 37). Figures 3, 4, 7, and 8 show system 22 placed on a surface with its lower end dipping into reservoir 30 of liquid 14. The flexible sheet is stretched between shafts 28, the lowest of which is connected to a motor 24. The three shafts 28 between which the flexible sheet is stretched are attached to a frame formed by a greenhouse housing the system.
According to these embodiments, none of the elements exhibits non-negative buoyancy in a liquid.
Wen further states (paragraph 47, with reference to Figures 9 and 10) that the system can be used in freshwater or saltwater systems and placed in any fluid retention device or location. There is no indication that any element of this device is intended to float. There is likewise no indication that an assembly formed by at least one shaft and the flexible sheet can float, or even that the Wen system exhibits non-negative buoyancy.
With reference to Figure 15, paragraph 57 provides that the lower end of the support materials 312 can hang freely. The support materials are moved in and out of the contact liquid. The fact that the end hangs does not indicate that the system exhibits non-negative buoyancy. On the contrary, the absence of a shaft in the lower portion is possible precisely because the flexible sheet does not float in the liquid but hangs in it, allowing for true immersion.
No element of Wen explicitly describes flotation of an assembly or system. Indeed, Wen presents embodiments in which the system is fixed to a ground/support; nothing suggests that the assembly can float. A person of ordinary skill, upon reading Wen, would not reasonably infer that the system exhibits non-negative buoyancy in liquid (i.e., that the system would not sink). It cannot be considered that Wen implicitly describes a support-and-web assembly that can float in a liquid.”
It is noted that the claim limitations directed to the device having non-negative buoyancy in a liquid are related to intended uses of the claimed device. The examiner disagrees with applicant that the sheet of Wen cannot float in a liquid. The sheet of Wen is formed from numerous materials many if not all of which have a density less than many liquids and thus would have a non-negative buoyancy therein. i.e. the density of nylon is significantly less than liquid mercury and thus it has a non-negative buoyancy therein.
Furthermore the examiner specifically acknowledged that Wen did not disclose the entire assembly having a non-negative buoyancy and relied on additional art and rational for this feature.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant also argues that “Christenson relates to a rotating bioreactor and reel-harvester apparatus for biomass production. The bioreactor comprises a hollow cylinder on which a rope is placed to receive the biofilm. The cylinder rotates on a shaft secured to a frame, and the cylinder includes openings to allow it to fill with water. In Figure 4, one embodiment illustrates the cylinder secured to a frame equipped with a float that ensures flotation of the overall device.
Christenson does not describe that the cylinder is equipped with a sheet/web layer on which the biofilm grows, nor that the cylinder and its rotating support, taken together as an assembly, have non-negative buoyancy. Rather, Christenson merely provides that the system (e.g., Fig. 1) can be placed on a liquid using floats that keep the device as a whole afloat.
A person of ordinary skill seeking to apply Christenson to Wen would at most add floats to Wen's frame, while maintaining the frame-borne axes of rotation and the sheet. Such a combination still would not teach or suggest that the support-and-web assembly itself has non-negative buoyancy.
For at least the reasons discussed above, the subject matter of claim 1 would not have been obvious over Wen in view of Christenson. Accordingly, reconsideration and withdrawal of the rejection of claim 1 are respectfully requested. “
It Is noted that Christenson was not alleged to teach the sheet or support but merely that an assembly of a photobioreactor comprising a growth substrate which rotates in water may be desirably made to float.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Furthermore the frame of Wen is part of the assembly and thus providing it with floats such as described by Christenson would in fact provide the assembly with non-negative buoyancy. The claims utilize comprising language and thus the fact that the claims recite additional elements of the assembly, i.e. a frame, do not render the claims patentable over the cited prior art as it teaches all elements including a floating assembly with a support and web.
It is noted that amended claim 3 and it’s dependents, 4-6,8, 14-25 are rendered unclear due to the claim amendments for the reasons stated above and are now rejected under 112(b). As such applicant’s arguments with respect to the previous rejections are moot.
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