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
Response to Amendment
Status of the Claims
Receipt of Applicant’s response, filed 10 Dec 2025 has been entered.
Claims 1-11 and 13-20 remain pending in the application.
Claims 1, 2, 5-11, and 13-19 are amended.
Claim 12 is cancelled.
Claims 3 and 4 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Claims 1, 2, 5-11 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Rejections Withdrawn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 rejections of claims 1, 2 and 5-20 pursuant to 35 U.S.C. 112(b) set forth in the Non-Final Office Action mailed 11 Jul 2025 are hereby withdrawn in light of applicants amendment of the claims.
Rejections Pursuant to 35 USC § 102
The rejection of claims 1, 2, 7, 12 and 13 pursuant to 35 U.S.C. 102(a)(1) set forth in the Non-Final Office Action mailed 11 Jul 2025 are hereby withdrawn in light of applicant’s amendment of the claims, and the art is reapplied in the new grounds of rejection set forth below.
Rejections Pursuant to 35 USC § 103
The rejection of claims 1, 2 and 5-20 under 35 U.S.C. 103 as being unpatentable over Ayers et al. (US 2020/0008379, published 09 Jan 2020) is withdrawn in light of applicant’s amendment of the claims, and the art is reapplied in the new grounds of rejection set forth below.
New Grounds of Rejections
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, 2, 5-11 and 13-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The amendment filed 10 Dec 2025 has introduced new matter into the claims. Amended claim 1 recites “using the at least one target species of microbe to lower a pH of soil to increase a permeability of the soil in the at least one location; growing a plant in the soil to a greater root penetration than an original root penetration of the plant before the at least one target species of microbe was delivered; and capturing carbon in the soil in a form of the greater root penetration.” The response filed 10 Dec 205 indicates that support for amended claim 1 can be found in paragraph [0055] and the original claims. This has been fully considered but is not found persuasive. The originally filed disclosure at paragraph [0055] discloses features that necessarily result from the introduction of the algae to the soil but does not disclose active steps of using the microbe to lower pH, growing a plant to a greater root penetration and capturing carbon in a form of greater root penetration. Paragraph [0055] discloses that “when algae are introduced to the soil…the metabolic activity in the soil increases, resulting in greater CO2- production…this CO2 production is beneficial as it lowers the pH of the soil…opening the soil for greater root penetration.” This paragraph cited as support for the amendments discloses the result of introducing the algae but does not disclose the steps of using, growing and capturing as now more broadly recited in the instant claims.
Instant claim 1 now recites limitations, which were not clearly disclosed in the specification as filed, and now change the scope of the instant disclosure as filed. Such limitations recited in newly amended claim 1, which did not appear in the specification, as filed, introduce new concepts and violate the description requirement of the first paragraph of 35 U.S.C 112. Applicant is required to provide sufficient written support for the limitations recited in present claim 1 in the specification or claims, as-filed, or remove these limitations from the claims in response to this Office Action. Claims 2, 5-11 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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 2, 5-11 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) as evidenced by the instant specification.
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]), rendering obvious the increased permeability of the soil. Thus, Ayers teaches that the lower pH and opened soil for greater root penetration are results of delivery of the microbial species and it would be obvious to deliver the microbial species to lower pH and open the soil and improve soil porosity for greater root penetration, thereby rendering obvious the limitations of claim 1 that the microbe lowers the pH of soil to increase permeability and growing a plant in the soil to a greater root penetration and capturing carbon in a form of the greater root penetration. Regarding the “to increase a concentration of the at least one target species in the at least one location” limitation as in claim 1 and the final limitation of claim 1 of “capturing carbon in the soil in a form of the greater root penetration,” 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 described above as Ayers teaches the same method of the claims, namely, increasing the concentration of a target species of microbe by propagating the target species and delivering the species to the at least one location. 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. As it is obvious to increase root penetration, as described above, this meets the limitation of capturing carbon which is in the “form of the greater root penetration.” Ayers thus teaches and renders obvious each of the active method steps of the claims. Ayers does not teach the method as a “method of capturing carbon” as in the preamble of claim 1, however, the active method steps taught by Ayers, including delivering the microbial species to an area for plant growth, are the same as the active steps of the instant claims. Capturing carbon is a result of following the method rendered obvious by Ayers and does not represent a distinct difference from the method taught by Ayers.
Regarding claim 5 and that the algal species is mixotrophic capable (i.e. able to utilize sugars and other organic molecules as a food source), 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]). Continued algal growth and its ability to increase plant and fruit production renders 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 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 does not expressly teach each of the features of the method and the algal species, the bioreactor vessel and the soil and crop improvements with sufficient specificity to rise to the level of anticipation.
However, 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 sampling and propagating algal species microbes for the purpose of lowering pH and opening the soil and improving soil porosity for greater root penetration as recited in claim 1. The steps of propagating algal species and delivering to an area for plant growth, as well as lowering pH and improving soil porosity and root penetration are taught by Ayers, providing a reasonable expectation of success for the method. The limitations of the algal species, such as being mixotophic and producing biomass, and the bioreactor vessel and the results of administering the propagated algal species to the location are all obvious as detailed in the rejection above. One of ordinary skill in the art would have been motivated to have the method described and each of the subsequent limitations as they are all taught by Ayers as suitable in a method of sampling, culturing and propagating algal species with a bioreactor. One of ordinary skill in the art would have a reasonable expectation of successfully sampling, culturing, propagating algal species in a bioreactor and delivering the microbe species to a location as taught by Ayers since the modification of the prior art represents nothing more than the predictable use of prior art elements according to their established functions.
Accordingly, the instant claims are rendered prima facie obvious over the teachings of Ayers.
Response to Arguments
Applicant's arguments filed 10 Dec 2025 have been fully considered but they are not persuasive. Applicant states that the new claim amendments are not disclosed by the prior art. The examiner disagrees and notes that the method of the instant claims is is obvious from the teachings of Ayers for the reasons given in the rejection above.
Conclusion
No claims are allowed.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDWIN C MITCHELL whose telephone number is (571)272-7007. The examiner can normally be reached Mon-Fri 8:00-5:00.
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/E.C.M./Examiner, Art Unit 1619
/ANNA R FALKOWITZ/Primary Examiner, Art Unit 1600