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
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 Sep 2026 has been entered.
Response to Amendment
Status of the Claims
Receipt of Applicant’s response, filed 11 Sep 2026 has been entered.
Claims 1, 6-11 and 13-20 remain pending in the application.
Claims 1 and 14-20 are amended.
Claims 2-5 and 12 are cancelled.
Claims 1, 6-11 and 13-20 are under consideration to the extent of the elected species, i.e., that the target species is an algal species.
Rejections Withdrawn
Rejections Pursuant to 35 USC § 112
The rejection pursuant to 35 U.S.C. 112(a) set forth in the Final Office Action mailed 13 Mar 2026 is hereby withdrawn in light of applicants amendment of the claims.
Rejections Pursuant to 35 USC § 103
The rejection of claims 1, 2, 5-11, and 13-20 under 35 U.S.C. 103 as being unpatentable over Ayers et al. (US 2020/0008379, published 09 Jan 2020) as evidenced by the instant specification is withdrawn in light of applicant’s amendment of the claims, and in favor of the new grounds of rejection set forth below.
New Grounds of Rejections
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 1, 6-11 and 13-20 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 1 recites “deliverin at least a portion ofhte at least one target species of microbe with at least one live microbe.” It is not clear if the “at least one live microbe” is intended to refer to at least one live target species of microbe or if it refers to another microbe. Claims 6-11 and 13-20 are included in this rejection as they depend directly, indirectly, or include all the limitations of independent claim 1.
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.
Claims 1, 6-11 and 13-20 are rejected under 35 U.S.C. 103 as being unpatentable over Ayers et al. (US 2020/0008379, published 09 Jan 2020) in view of Subashchandrabose et al. (Environment International 51 (2013) 59–72) and Bhatnagar et al. (US 2013/0028338, 02 Feb 2012).
Ayers teaches a method comprising preparing one or more microbe-containing samples from at least one location of a current or planned plant growth and preparing at least one cultured sample by culturing microbes from the sample and Ayers teaches selecting at least one target species of microbe from the at least one cultured sample and propagating the at least one selected target species of microbe to increase the concentration of the at least one target species of microbe in the at least one cultured sample ([0025], claim 18) and teaches delivering at least a portion of the at least one target species of microbe to at least a portion of the at least one location, where at least a portion of the at least one target species of microbe being delivered comprises at least one live microbe and teaches that the at least one live microbe is an endemic species of algae (i.e the elected species of target species) to the delivery location ([0026], claims 20-22). Ayers teaches that when algae are introduced to the soil, the metabolic activity in the soil increases, resulting in greater CO2 production which lowers the pH of the soil resulting in the dissolution of calcium and magnesium carbonate bonds, thereby opening the soil for greater root penetration and increased water and fertilizer movement ([0007]). Ayers teaches that the system can reduce soil compaction and improve soil porosity and improve water/moisture retention by the soil ([0055]). Ayers teaches that the endemic algae are able to produce biochemicals that the algae can utilize to grow (e.g. sugars and vitamins) resulting in continued algal growth ([0004]). Ayers additionally teaches that algae produce growth regulators that improve salt tolerance and increase plant growth rate and fruit production ([0011]) and that the system can be used to build soil organics with nutrient-rich algae biomass to recover depleted soils ([0052]) rendering obvious selecting algal species for its ability to produce biomass as in claim 6. Regarding claim 7, Ayers teaches propagating the at least one selected target species in a bioreactor ([0025]). Ayers teaches that propagation in Agar coated petri dishes ([0123]), rendering the use of agar as in claim 1 as obvious. Ayers teaches providing a bioreactor adapted to propagate the target species in a culture solution ([0025]) and that the bioreactor may comprise microalgae for propagation ([0053], [0054]) and Ayers teaches that the bioreactor may be adapted to propagate at least one desired species in a culture solution using a combination of natural and artificial light ([0032]), thus rendering obvious the algal production vessel and photobioreactor of claims 8 and 9. Ayers teaches that the system may be portable and mounted on a trailer ([0089]) and that the water tank can receive water from the on-site water source of a farm ([0090]). The portability of the system renders obvious that the system may be at different locations such as onsite or offsite as in claims 10 and 11.
Ayers teaches that when algae are introduced to the soil that metabolic activity in the soil increases resulting in greater CO2 production which lowers soil pH and opens the soil for greater root penetration and increased water and fertilizer movement which carries more salts out of the root zone reducing the osmolarity and increasing the bioavailability of macro and micronutrients to the crop ([0007]). Moving salts out of the root zone and reducing osmolarity and increasing bioavailability of nutrients thus renders obvious a reduction in soil salinity as in claim 14 and the increase in nutrients in claim 17. Ayers teaches that constant or periodic addition of algae can result in a desirable buildup of organic matter to the soil ([0008], [0103]) and that the system can be used to build soil organics ([0052]) and increase the organic content of the soil ([0055]). The increase of organic matter and carbon dioxide as mention above renders obvious the increase in soil organic carbon and soil organic matter as in claims 15 and 16. Ayers teaches that the system can reduce soil compaction and improve soil porosity and improve water/moisture retention by the soil ([0055]), rendering obvious the improved soil permeability and water retention of claim 18. Ayers teaches the system can improve yield of a crop ([0055]), rendering obvious claim 19. Ayers teaches that the system and method can improve the texture, taste, size and nutrient content ([0055]) rendering obvious an improved nutrient value and quality of the crops grown as in claim 20. Ayers teaches the agricultural uses for the system include reducing ecological pollution and reducing greenhouse gas emission ([0055]).
Ayers does not teach the method as for “capturing carbon,” and does not teach the selection process of claim 1 including inoculating and incubating in an absence of light and selecting mixotrophic algal species based on growth in the absence of light. These deficiencies are made up for in the teachings of Subashchandrabose and Bhatnagar.
Subashchandrabose teaches mixotrophic microalga as distinctive biological agents for organic pollutant degradation (title). Subashchandrabose teaches that mixotrophy in microalgae has many advantages over bacteria and fungi in degrading organic pollutants and that strict phototrophic algae has limited the realization of their potential as bioremediation agents (abstract). Subashchandrabose teaches that photosynthesis enables algae to harness light energy into free chemical energy for metabolic purposes and that in soils, the availability of carbon is an important limiting factor for both autotrophs (in terms of CO2) and heterotrophs (as fixed carbon compounds) and that the availability of light may limit the autotrophic growth (page 61 left column). Subashchandrabose teaches that mixotrophy is a growth regime in which CO2 and organic carbon are simultaneously assimilated (page 61 right column) and that mixotrophic algae has dual abilities of renewable energy capture by CO2 fixation through photosynthesis and degradative effect on organic pollutants (page 60 right column) and that mixotrophy offers competitive advantage over strict phototrophs and heterotrophs (page 61 right column). Subashchandrabose teaches algal cultures under mixotrophic conditions can provide high growth rates and biomass with photosynthetic metabolites (page 62 left column) and that algal capacity to grow mixtrophically during periods of low nutrient concentrations and their tolerance to extreme environmental conditions can be a competitive advantage over heterotrophs or autotrophs as bioremediation agents (page 62 right column). Subashchandrabose teaches that mixotrophic algae contributes to sequestration of carbon, which is otherwise emitted as carbon dioxide to the atmosphere under heterotrophic conditions by other organisms (abstract). Subashchandrabose teaches that a good strategy to degrade organic pollutants in soil environments is to enrich and isolate the pollutant-degrading mixotrophic algae, because of their dual capabilities of CO2 assimilation and utilization of pollutants as organic carbon substances (page 62 right column). Subashchandrabose teaches that because of their versatile metabolism and their capacity to switch rapidly from one mode to another, mixotrophic algae can be successfully employed for remediating the pollutant environments (page 69 left column).
Bhatnagar teaches that waste streams rich in nutrients are colored or dark material and that growth of many species of algae in these waters is affected adversely by their dependence on photosynthesis but there are heterotrophic algae that prefer organic carbon substrates over fixation of carbon dioxide ([0006]). Bhatnagar teaches that mixotrophic algae can simultaneously drive photoautotrophy and heterotrophy to utilize both inorganic (CO2) and organic carbon substrates which leads to an additive or synergistic effect of the two processes that enhances their productivity and in turn provides the ability to grow in wastewaters ([0006]). Bhatnagar teaches processes of isolating and establishing mixotrophic algae ([0103], [0106]) and that it was important that the processes of autotrophy and heterotrophy not inhibit each other ([0106]). Bhatnagar teaches the process of identifying/establishing the algae included inoculating algae in flasks with BG11 medium and adding glucose and wrapping aluminum foil to stop light penetration and then selecting strains based on their performance ([0105], [0107]) such as growth performance ([0108-0112]).
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have a method of preparing one or more microbe-containing samples as taught by Ayers and to select mixotrophic algae based on growth in nutrient medium in the absence of light. The process of preparing microbe samples, culturing and propagating algal species and delivering to the location for uses such as improved crop yields, reducing ecological pollution and reducing greenhouse gas emission is known from Ayers. It is known from Subashchandrabose that mixotrophic algae contribute to carbon sequestration and has dual abilities of renewable energy capture by CO2 fixation through photosynthesis and degradative effect on organic pollutants, offering a competitive advantage over strict phototrophs and heterotrophs. It is further known from Subashchandrabose that algal cultures under mixotrophic conditions can provide high growth rates and biomass with photosynthetic metabolites and that algal capacity to grow mixtrophically during periods of low nutrient concentrations and their tolerance to extreme environmental conditions can be a competitive advantage over heterotrophs or autotrophs as bioremediation agents. It is similarly known from Bhatnagar that mixotrophic algae can simultaneously drive photoautotrophy and heterotrophy to utilize both inorganic (CO2) and organic carbon substrates which leads to an additive or synergistic effect of the two processes that enhances their productivity. Based on these teachings from Subashchandrabose and Bhatnagar, it would have been obvious to one of ordinary skill to select mixotrophic algae for its known ability to function under both phototrophic and heterotrophic conditions, leading to high growth rates and biomass, and thus providing a competitive advantage over strict autotrophs or heterotrophs as mixotrophic algae are not reliant on a single energy source. As it is obvious to select mixotrophic algae for the reasons noted above, it further would have been obvious to identify and select mixotrophic algae using the method of Bhatnagar which includes inoculating algae in medium with glucose and wrapping aluminum foil to stop light penetration and selecting strains based on their performance. This is a known method for identifying mixotrophic algae and it would have been obvious to utilize this method for the purpose of identifying mixotrophic algae for their known advantages over strict autotrophic and heterotrophic algae. These steps render obvious the active method steps of the instant claims.
Regarding claim 1 and the limitation “to increase a concentration of the at least one target species in the at least one location” and claim 13 which recites an increase in concentration beyond a naturally occurring concentration of the target species, these limitations are met from the method obvious over Ayers, Subaschandrabose and Bhatnagars, as described above, as the same method of the claims, namely, increasing the concentration of a target species of microbe including mixotrophic algae by propagating the target species and delivering the species to the at least one location is obivous. It does not appear that the claim language or limitations result in a manipulative difference in the method steps when compared to the prior art disclosure and the delivery of the microbe species that has been propagated to the location thus necessarily would lead to an increase in the concentration beyond a naturally occurring concentration of the microbe species at the location. Similalry, regarding the preamble of a “method of capturing carbon,” it is known from Subashchandrabose and Bhatnagar that mixotrophic algae contributes to carbon sequestration and fixation of carbon dioxide and it is thus understood that capturing carbon is a result of following the method rendered obvious, as described above, and does not represent a distinct difference from the method steps rendered obvious.
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references.
Response to Arguments
Applicant's arguments filed 11 Sep 2026 have been fully considered but they are not persuasive. Applicant states that the amended claims require active steps of inoculating a nutrient-agar medium, incubating the medium in an absence of light and selecting target species on the basis of growth observed in dark conditions and that Ayers is silent in regard to such steps (pages 7-8 of remarks). The examiner notes that the previous rejection with just Ayers has been withdrawn in favor of the rejection above where combined teachings from the references render obvious selecting mixotrophic algae with a dark growth method.
Conclusion
No claim is allowed.
Correspondence
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/EDWIN COLEMAN MITCHELL/Examiner, Art Unit 1619
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