DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The amendment filed December 2, 2025, has been received and entered.
Claims 2, 4, 7-9, 14, 16, 18, and 20-23 are canceled.
Claims 1, 3, 5, 6, 10-13, 15, 17, 19, and 24-32 are pending. Claims 15, 17, 19, and 24-32 are withdrawn.
Claims 1, 3, 5, 6, and 10-13 are examined on the merits.
Response to Amendment
It is noted that claim 15 (withdrawn and currently amended) is listed as “2. 15.” The number “2.” preceding claim 15 should be deleted from the claim listing.
Claim Objections
Claims 11 and 12 are objected to because of the following informalities:
Claim 11 is objected to because the recitation “the microbe culture are in a vegetative state” is grammatically incorrect. The recitation “are” should be replaced with the word “is.”
Claim 12 is objected to because the recitation “the microbe culture are in a spore state” is grammatically incorrect. The recitation “are” should be replaced with the word “is.”
Appropriate correction is required.
Notice Re: Prior Art Available Under Both Pre-AIA and AIA
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.
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.
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, 3, 5, 6, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Madduri (US 2020/0031715. Previously cited) in view of Davis (US 4,249,952. Previously cited) and Sadasivan (US 2013/0296461. Previously cited).
Madduri discloses a concrete blend comprising cement, water, and a composition comprising a biologically sourced surfactant (paragraph [0035]; claims 1 and 10 of Madduri), wherein a surfactant that is biologically sourced is also referred to as a “biosurfactant” (paragraph [0014]). Examples of the biologically sourced surfactant of Madduri include glycolipids (paragraph [0026]), and rhamnolipids may be a particularly desirable glycolipid surfactant for use in their cement blends (paragraph [0027]; claim 14 of Madduri). See also Example 2 in which rhamnolipids were combined with cement and water (paragraph [0052]).
Additionally, Madduri teaches that modern concrete blends represent a material system containing water, cement, aggregates, and specialty additives (paragraph [0003]). In illustrative embodiments, a water mixture comprising a biologically sourced surfactant may be combined with a cement to form a concrete blend of their disclosure, and in some illustrative embodiments, the concrete blends may comprise an aggregate material such as sand and/or rock (paragraph [0029]). Thus, the concrete blend of Madduri comprises a concrete mixture comprising water, aggregate (e.g., sand and/or rock), and cement, meeting limitations of the concrete mixture comprised by the composition of instant claim 1, as well as meeting aggregate limitations of instant claim 3.
The compositions of Madduri provide advantageous benefits when admixed with concrete blends, including improving mixing and handling features of concrete blends (abstract). As such, Madduri discloses a composition to improve concrete (e.g., improving mixing and handling features), wherein the composition comprises a biosurfactant (e.g. a biologically sourced surfactant that can be a glycolipid) and a concrete mixture (blend of water, aggregate, and cement), meeting limitations of instant claim 1.
Madduri differs from the claimed invention in that Madduri does not expressly disclose that:
Their concrete mixture comprises clinker; and
Their biosurfactant is a growth byproduct of a microbe culture and is a sophorolipid;
and/or their composition comprises a microbe culture.
Regarding difference (1) (Madduri does not expressly disclose that their concrete mixture
comprises clinker):
Madduri discloses that suitable types of cement that may be present in their concrete blends may include Portland cements (paragraph [0029]).
Davis discusses the most common method of preparing Portland cement (column 1, lines 20-24). The method comprises obtaining the well-known cement clinker (column 1, lines 34-35). The clinker is then finely ground to create Portland cement (column 1, lines 35-36).
Before the effective filing date of the claimed invention, it would have been obvious to the person of ordinary skill in the art to include clinker in the concrete blend of Madduri. One of ordinary skill in the art would have been motivated to do this in order to include Portland cement in the composition of Madduri, which is disclosed in Madduri as a suitable type of cement in their concrete blend.
Regarding difference (2) (Madduri does not expressly disclose that the biosurfactant included in their composition is a growth byproduct of a microbe culture and is a sophorolipid; and/or their composition comprises a microbe culture):
Madduri discloses that the biologically sourced surfactants used in their invention are not particularly limited, and suitable biologically sourced surfactants may be glycolipids (paragraph [0026]).
Sadasivan discloses sophorolipids, also known as “sophorose lipids,” as being a type of glycolipid biosurfactants (paragraphs [0157]-[0159]). Sophorose lipid biosurfactant can be produced by yeasts of the genus Starmerella, and specifically can be produced by culturing that microorganism in a culture medium (paragraphs [0163]-[0164]).
Before the effective filing date of the claimed invention, it would have been an obvious to the person of ordinary skill in the art to substitute the biologically sourced surfactant (i.e. biosurfactant) of the composition rendered obvious by Madduri and Davis with a sophorolipid, for the predictable result of obtaining a concrete blend. It would have been an obvious matter of simple substitution of a biosurfactant that may be a glycolipid (as taught in Madduri) with another biosurfactant that is a glycolipid (sophorolipid as taught by Sadasivan). There would have been a reasonable expectation of obtaining the concrete blend as sought by Madduri with this substitution because Madduri discloses that the biologically sourced surfactants used in their invention are not particularly limited, and glycolipids (which sophorolipids are directed to) are suitable.
Therefore, Madduri in view of Davis and Sadasivan renders obvious instant claims 1 (growth byproducts embodiment) and 3 (sand, rock).
Regarding instant claim 5, Madduri teaches an amount of biologically sourced surfactant in their compositions may range between about 1% to about 10% by weight (paragraph [0028]) which overlaps the claimed range. Moreover, Madduri teaches specific embodiments of that amount such as about 1% to about 2% by weight (paragraph [0028]) which fall within the claimed range. Example 2 includes rhamnolipids in an amount ranging between 1 and 10% (paragraph [0052]) which includes concentrations falling in the claimed range. It would have been obvious to apply these teachings to the sophorolipid as the biologically sourced surfactant in the composition rendered obvious by Madduri in view of Davis and Sadasivan. Thus, instant claim 5 is rendered obvious.
Further regarding instant claims 1 (all embodiments), 6, and 10, it is further noted that Madduri in view of Davis and Sadasivan does not disclose the embodiment of instant claim 1 of the composition comprising a microbe culture, nor do the references disclose the embodiment of instant claim 1 of the composition comprising a microbe culture and growth byproducts thereof (wherein the growth byproducts are a biosurfactant that is a sophorolipid). Therefore, the references differ from instant claim 6 in that they do not disclose that the microbe culture is present in the composition at a concentration of about 0.1 g/l to about 100 g/l, as well as differing from instant claim 10 in that the references do not expressly disclose that the microbe culture comprises Starmerella spp. (elected species). However, before the effective filing date of the claimed invention, it would have been obvious to the person of ordinary skill in the art to substitute the sophorolipid of the composition rendered obvious by Madduri, Davis, and Sadasivan with a culture of yeast of the Starmerella genus (i.e. Starmerella spp.) comprising sophorolipids. As discussed above, it would have been obvious to substitute the biologically sourced surfactant of the composition rendered obvious by Madduri in view of Davis with a sophorolipid as taught in Sadasivan. Since sophorolipids are produced by culturing a yeast of the genus Starmerella, as taught in Sadasivan, then the culture of yeast of the genus Starmerella comprises a sophorolipid sought for inclusion in the invention rendered obvious by Madduri in view of Davis and Sadasivan, wherein the sophorolipids are amongst the growth byproducts inherently present in the Starmerella culture. Because of the presence of sophorolipids in the culture, then it would have been obvious that include said culture in the composition of Madduri in order to provide the biosurfactant for inclusion in the composition. In making this modification, then the references render obvious instant claims 1 (all embodiments) and 10 (Starmerella spp.).
Further still regarding instant claim 6, it would have been a matter of routine optimization to have varied the concentration of the culture of Starmerella yeast in the composition rendered obvious by Madduri in view of Davis and Sadasivan (see preceding paragraph), specifically to a concentration of about 0.1 g/l to about 100 g/L, because the skilled artisan would have recognized that the concentration of the culture affects the amount of the sophorolipid produced which the skilled artisan would have recognized as a result-effective variable since the biosurfactant is a critical component in the Madduri invention for conferring advantageous benefits on the concrete blend (e.g., improving mixing and handling features of the concrete blend, see paragraph [0015] of Madduri). It is noted that “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Thus, instant claim 6 is rendered obvious.
Claims 11 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Madduri, Davis, and Sadasivan as applied to claims 1, 3, 5, 6, and 10 above, and further in view of Farmer (WO 2018/160995. Previously cited) and De Graeve (FEMS Yeast Research. 2018. 18(7): foy072. 13 pages. Previously cited).
As discussed above, Madduri in view of Davis and Sadasivan renders obvious claims 1, 3, 5, 6, and 10. The references differ from claim 11 in that they do not disclose that the microbe culture (the culture of Starmerella yeast) is in a vegetative state. The references differ from claim 12 in that they do not disclose that the microbe culture (the culture of Starmerella yeast) is in a spore form.
Farmer discloses environmentally-friendly compositions using microorganisms and their growth byproducts to degrade polymers used in fracking wells (abstract). The composition comprises one or more microorganisms and/or a growth byproduct thereof (claim 1 of Farmer). Amongst the microorganisms, Farmer teaches Starmerella bombicola ATCC 22214 as an effective producer of sophorolipid biosurfactants (page 13, lines 13-19). The microorganisms can be in a vegetative form or a spore form in their composition (page 22, line 22). When discussing the microorganism used in their invention, including Starmerella bombicola, Farmer teaches that the microbe can be in spore form (page 25, lines 10-14).
De Graeve reviews Starmerella bombicola, particularly their production of biosurfactants (abstract). De Graeve discloses the vegetative reproduction of S. bombicola, as well as production of spores of S. bombicola during sexual reproduction (page 5, left column, last paragraph).
Before the effective filing date of the claimed invention, it would have been obvious to the person of ordinary skill in the art to use Starmerella bombicola, in vegetative or spore form, as the Starmerella yeast of the culture included in the composition rendered obvious by Madduri in view of Davis and Sadasivan. One of ordinary skill in the art would have been motivated to do this because Starmerella bombicola is an effective producer of sophorolipid, Starmerella bombicola is recognized as being included with a growth byproduct thereof in a composition in which the microorganism is in vegetative or spore form (as taught in Farmer), and Starmerella bombicola is known as being present in vegetative or spore form when reproducing (as taught in De Graeve). Thus, instant claims 11 and 12 are rendered obvious.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Madduri, Davis, and Sadasivan as applied to claims 1, 3, 5, 6, and 10 above, and further in view of Terzo (US 2005/0172863. Previously cited).
As discussed above, Madduri in view of Davis and Sadasivan renders obvious claims 1, 3, 5, 6, and 10. The references differ from claim 13 in that they do not disclose that their composition further comprises a concrete admixture, wherein the concrete admixture comprises at least one ingredient selected from accelerators (elected species), bonding agents, corrosion inhibitors, air entraining agents,…(non-elected species).
Terzo discloses a novel admixture including an accelerator and a corrosion inhibitor that accelerates the time required to set a concrete mixture at low temperature (abstract). The invention of Terzo addresses the industrial need for a concrete mixture that reduces costs and accelerates setting of concrete in cold temperatures (paragraph [0004]).
Before the effective filing date of the claimed invention, it would have been obvious to the person of ordinary skill in the art to further include an admixture including an accelerator and a corrosion inhibitor in the composition rendered obvious by Madduri in view of Davis and Sadasivan. One of ordinary skill in the art would have been motivated to do this because that admixture would have conferred the benefit of accelerating the time required to set the concrete mixture of the composition rendered obvious by Madduri, Davis, and Sadasivan at a low temperature, thereby reducing costs as sought in the industry. Therefore, instant claim 13 (selected from accelerators (elected species) and corrosion inhibitors (non-elected species)) is rendered obvious.
Response to Arguments
Applicant’s arguments, filed December 2, 2025, with respect to the rejections under 35 U.S.C. 112(b) of claims 7, 8, 11, and 12, the rejection under 35 U.S.C. 102(a)(1) and 102(a)(2) of claims 1-3, 5, and 7 as being anticipated by Madduri in light of Tan, the rejection under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Bywater-Ekegard in light of Grice, the rejection under 35 U.S.C. 103 of claim 4 as being unpatentable over Madduri and Tan in further view of Davis, the rejection under 35 U.S.C. 103 of claims 1, 6, 8, and 10 as being unpatentable over Madduri and Tan in further view of Sadasivan, the rejection under 35 U.S.C. 103 of claims 11 and 12 as being unpatentable over Madduri, Tan, and Sadasivan in further view of Farmer and De Graeve, the rejection under 35 U.S.C. 103 of claim 13 as being unpatentable over Madduri and Tan in further view of Terzo, the rejection under 35 U.S.C. 103 of claim 3 as being unpatentable over Bywater-Ekegard and Grice in further view of Welker, the rejection under 35 U.S.C. 103 of claim 4 as being unpatentable over Bywater-Ekegard and Grice in further view of Davis, the rejection under 35 U.S.C. 103 of claims 5 and 6 as being unpatentable over Bywater-Ekegard and Grice, the rejection under 35 U.S.C. 103 of claim 13 as being unpatentable over Bywater-Ekegard and Grice in further view of Terzo, the rejection of claims 1-3, 5-8, 10, and 13 on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 11,691,915, the rejection of claim 4 on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 11,691,915 in view of Davis, and the rejection of claims 11 and 12 on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 11,691,915 in view of Farmer and De Graeve, have been fully considered and are persuasive.
In particular, the rejections under 35 U.S.C. 112(b) have been rendered moot by the canceling of claim 7 or overcome by the amendments to claims 11 and 12.
The rejection under 35 U.S.C. 102(a)(1) and 102(a)(2) over Madduri in light of Tan, and the rejection under 35 U.S.C. 103 of claim 13 as being unpatentable over Madduri and Tan in further view of Terzo, have been overcome by the amendment to claim 1 since Madduri does not expressly disclose that their composition comprises clinker and a sophorolipid. The rejection under 35 U.S.C. 103 of claim 4 as being unpatentable over Madduri and Tan in further view of Davis has been rendered moot by the canceling of claim 4. The rejection under 35 U.S.C. 103 of claims 1, 6, 8, and 10 as being unpatentable over Madduri and Tan in further view of Sadasivan, and the rejection under 35 U.S.C. 103 of claims 11 and 12 as being unpatentable over Madduri, Tan, and Sadasivan in further view of Farmer and De Graeve, have been overcome by the amendment to claim 1 since they do not render obvious a composition comprising clinker.
The rejection under 102(a)(1) and 102(a)(2) over Bywater-Ekegard in light of Grice, the rejection under 35 U.S.C. 103 of claim 3 as being unpatentable over Bywater-Ekegard and Grice in further view of Welker, the rejection under 35 U.S.C. 103 of claims 5 and 6 as being unpatentable over Bywater-Ekegard and Grice, and the rejection under 35 U.S.C. 103 of claim 13 as being unpatentable over Bywater-Ekegard and Grice in further view of Terzo, have been overcome by the amendment to claim 1 since Bywater-Ekegard does not expressly disclose that their composition comprises clinker nor does it disclose that their composition comprises a sophorolipid or a microbe culture that is capable of producing a sophorolipid as a growth byproduct. The rejection under 35 U.S.C. 103 of claim 4 as being unpatentable over Bywater-Ekegard and Grice in further view of Davis has been rendered moot by the canceling of claim 4.
Regarding the nonstatutory double patenting rejections, the terminal disclaimer filed on December 2, 2025, disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Patent No. 11,691,915 has been reviewed and is accepted. The terminal disclaimer has been recorded. In light of the terminal disclaimer, the nonstatutory double patenting rejections have been withdrawn.
As such, these rejections have been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of the previously cited primary reference Madduri in combination with the previously cited references Davis, Sadasivan, Farmer, De Graeve, and Terzo, as necessitated by the amendments to the claims.
Applicant’s arguments are unpersuasive with respect to the new grounds of rejections under 35 U.S.C. 103 based on Madduri. Applicant asserts that both Madduri and Sadasivan (cited to render obvious inclusion of a sophorolipid) fails to teach or suggest addition to a concrete mixture both a microbe culture and growth byproducts. Applicant cites paragraph [0086] of Sadasivan and paragraphs [0010] and [0026] of Madduri. However, claim 1 does not require that the composition comprises both a microbe culture and growth byproducts. The recitation “a microbe culture and/or growth byproducts” includes multiple embodiments, including the embodiment of a composition comprising a microbe culture (not further comprising growth byproducts) and the embodiment of a composition comprising growth byproducts of a microbe culture (not further comprising the microbe culture); this is due to the “or” of the recitation in claim 1. As set forth above in the rejection under 35 U.S.C. 103 over Madduri in view of Davis and Sadasivan, the references render obvious a composition comprising a sophorolipid and a concrete mixture, thereby rendering obvious instant claim 1.
However, the embodiment of claim 1 of the claimed composition comprising a microbe culture and a sophorolipid is also rendered obvious by Madduri in view of Davis and Sadasivan in the new grounds of rejection under 35 U.S.C. 103. Even in that case, Applicant’s arguments are unpersuasive. The Examiner disagrees with the assertion by Applicant that paragraph [0026] of Madduri makes it clear that the product does not contain a microbe culture but may be derived from a microbe culture. Paragraph [0026] of Madduri does not make any mention of a microbe culture, nor does it state that a microbe culture should be excluded. Therefore, there is no teaching away from including a microbe culture that supplies the biosurfactant (sophorolipid) for inclusion in the composition of Madduri. As for Sadasivan, it is cited for its teachings that sophorolipid is a known glycolipid biosurfactant, and can be produced by culturing a microorganisms (Starmerella yeast) in a culture medium. Sadasivan would not have led the skilled artisan to exclude a microbe culture in the composition of Madduri.
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 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.
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Sef
/SUSAN E. FERNANDEZ/Examiner, Art Unit 1651
/DAVID W BERKE-SCHLESSEL/Primary Examiner, Art Unit 1651