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 .
Detailed Action
This Office Action is in response to the Applicant’s reply received 1/12/26. Claims 30-44 are pending and considered on the merits.
Response to Applicant’s Arguments and Amendments
In the response submitted by the Applicant the following 35 U.S.C § 103 (a) rejections are withdrawn:
Claim(s) 30, 32, 40, 43, and 44 were rejected under 35 U.S.C. 103 as being unpatentable over Ashby et al. (US 2017/0245503, in IDS 2/16/23);
Claim(s) 31, 34, 36, 37, 38, 39, 41, and 42 were rejected under 35 U.S.C. 103 as being unpatentable over Ashby et al. (US 2017/0245503) as applied to claims 30, 32, 40, 43, and 44 above, and further in view of Czinkóczky et al. (Biochemical Engineering Journal, 2020), Sawitzki et al. (Ciênc. Tecnol. Aliment., Campinas, 2009), Gummadi et al. (J Ind Microbiol Biotechnol, 2009), Marty-Teysset et al. (APPLIED AND ENVIRONMENTAL MICROBIOLOGY, 2000), Bates et al. (ThermoScientific Application Note, 2016), Guadayol et al. (Limnol. Oceanogr.: Methods, 2009)
The Applicant’s amendments produced significant 35 USC § 112 issues which necessitated the above withdrawals. These issues are described in detail below. While these rejections are removed at the moment, they are not precluded from being re-applied once the claims can be interpreted clearly. All arguments drawn to these rejections are now considered moot.
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.
Claim 30-44 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.
Claim 34 was previously rejected as indefinite and the current amendment has not resolved this issue. Claim 34 includes the limitation “the 10 L culture medium is in a stainless-steel balloon of a culture tank”. The term “stainless-steel ballon of a culture tank” is not clearly defined in the Specification and was not found as a common term of art. It is not clear what is the structure of this culture tank. The Applicant has provided no diagram nor a description of this culture system and it is not a widely used term in the art.
The Examiner found two citations that may read on this type of reactor. One is Paek et al. (Pant Cell, Tissue and Organ Culture 2005) in Fig. 1 which discloses a “balloon-type bubble bioreactor”. The other is KR100252832 (Translation provided) who describes another bubble type reactor in Figs. 1-3. As noted, the structure of KR’832 and Paek et al. are very different from each other and typical bioreactors used in fermentation. The metes and bounds of this limitation cannot be determined since the structure is not clearly defined by the Applicant. This is the reason this claim is indefinite and must be amended to clarify this issue.
Claims 30-44 are now rejected as being indefinite because of the amendments to claim 30. In particular, newly added step (C) in incongruent with the other steps in the method.
Step a) limits Bacillus, Lactobacillus, and Pseudomonas are cultured followed by fermentation. Each microorganism is cultured and fermented at a specific condition listed in this step. This culturing and fermentation have already taking place by step b) which requires the induction of the metabolites.
However Step C and D either describe a different process or are out of order. Step C requires the sequence expansion of the Bacillus, Lactobacillus, and Pseudomonas and “inoculation of a fermentation culture” [emphasis added]. The culture of these bacteria has already occurred in step a). The phrase “inoculation of a fermentation culture” does not link this step to the culturing and fermenting in step a), and broadly interpreted, could be a different fermentation method. This makes it unclear how Step C integrates into the method. Furthermore, new step d) appears to be a repeated step b) since it produces metabolites for solubilizing phosphates.
These discrepancies are not corrected by the dependent claims and make the claims difficult to properly interpret in view of the art. It appears the applicant wishes to culture then ferment each bacteria individually at specific conditions before combining them for a second fermentation to produce then bottle the product. However this is only one of several different interpretations. It is noted that steps a) and b) do not require the three bacteria to be separately culture or fermented. The phrase:
wherein each microorganism is cultured and fermented at a specific condition
comprising one or more parameters selected from the group consisting of a temperature, an agitation speed, an aeration, a pressure and any combination thereof
does not limit that each bacteria is cultured and fermented in isolation from the others. It does not exclude the possibility that all three microbes are mixed and exposed to the same specific condition. This issue appears again in step b) where they have a very similar wherein clause. However step b) raises a new issue because it does not have an additional fermentation step, so either a step is missing or this wherein clause is redundant for step a).
Request for Interview
They Applicant may wish to schedule an interview the examiner prior to replying to negotiate the best way to remove this rejection. Also some of the data submitted appears to show some improvement (see Biologic 4 in Figs 2 and 3) which may be a useful tool to advance prosecution. However the interpretation between these claims and those results must be clarified.
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.
In response to this office action the applicant should specifically point out the support for any amendments made to the disclosure, including the claims (MPEP 714.02 and 2163.06).
CONTACT INFORMATION
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THANE E UNDERDAHL whose telephone number is (303) 297-4299. The examiner can normally be reached Monday through Thursday, M-F 8-5 MST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Fereydoun Sajjadi can be reached at (571) 272-3311.The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THANE UNDERDAHL/Primary Examiner, Art Unit 1699
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