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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 April 13, 2026, has been 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Claims 15, 17, 19, and 24-32 are withdrawn.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.
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 Sadasivan (US 2013/0296461. Previously cited) and Ito (JP 2010220516. Machine Translation cited below), as evidenced by De Graeve (FEMS Yeast Research. 2018. 18(7): foy072. 13 pages. 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]). See also Example 2 in which rhamnolipids (as a particularly desirable glycolipid surfactant according to paragraph [0027]) 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 composition comprises a microbe culture and their biosurfactant as growth byproducts of the microbe culture; the biosurfactant is a sophorolipid; wherein the microbe culture comprises cells and the broth in which the cells are grown.
However, 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 biosurfactant (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]).
Ito discloses obtaining sophorolipid by culturing microorganisms such as yeast, particularly producing sophorolipid from yeast belonging to Candida bombicola, specifically Candida bombicola NBRC 10243 strain (page 3, eighth and ninth paragraphs under DESCRIPTION OF EMBODIMENTS). As evidenced by De Graeve, Starmerella bombicola has been known as Candida bombicola (page 2, right column, first paragraph), and the strain NBRC 10243 is a strain of Starmerella bombicola (Table 1 on page 3). Therefore, sophorolipid is obtained by culturing the yeast Starmerella bombicola (e.g., Starmerella bombicola NBRC 10243). The culture method may be a liquid culture (page 4, first paragraph). For the use of sophorolipid in a feed additive (page 1, paragraph under TECHNICAL FIELD), an unpurified culture containing the sophorolipid can be added to feed (page 4, second paragraph).
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 concrete blend of Madduri with a liquid culture of yeast of the Starmerella genus (i.e. Starmerella spp.), for the predictable result of obtaining a concrete blend comprising a biologically sourced surfactant. 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 and Ito). Since sophorolipids are produced by culturing a yeast of the genus Starmerella (e.g., Starmerella bombicola), as taught in Sadasivan and Ito, then the liquid culture of yeast of the genus Starmerella comprises a biologically sourced surfactant, specifically sophorolipid, as sought for inclusion in the invention rendered obvious by Madduri in view of Sadasivan and Ito, wherein the sophorolipids is amongst the growth byproducts inherently present in the Starmerella culture. Because of the presence of sophorolipids in the liquid culture of Starmerella, then it would have been obvious to include said liquid culture in the composition of Madduri in order to provide the biologically sourced surfactant for inclusion in the composition. Moreover, an unpurified culture of Starmerella yeast is a suitable form for providing sophorolipid based on Ito (page 4, second paragraph). There would have been a reasonable expectation of obtaining the concrete blend as sought by Madduri with this substitution (in view of Sadasivan and Ito) 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. A liquid culture of yeast of the genus Starmerella inherently comprises cells of the yeast and the broth in which the cells are grown, meeting the limitation of the microbe culture of instant claim 1.
Therefore, Madduri in view of Sadasivan and Ito renders obvious instant claims 1 (growth byproducts embodiment), 3 (sand, rock), and 10 (Starmerella spp.).
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 of the liquid culture of yeast of the genus Starmerella in the composition rendered obvious by Madduri in view of Sadasivan and Ito. Thus, instant claim 5 is rendered obvious.
Regarding instant claim 6, it would have been a matter of routine optimization to have varied the concentration of the liquid culture of Starmerella yeast in the composition rendered obvious by Madduri in view of Sadasivan and Ito, 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 biologically sourced surfactant (i.e., 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, Sadasivan, and Ito, as evidenced by De Graeve, 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.
As discussed above, Madduri in view of Sadasivan and Ito (as evidenced by De Graeve) 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 liquid 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 liquid 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 liquid culture included in the composition rendered obvious by Madduri in view of Sadasivan and Ito. 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, Sadasivan, and Ito, as evidenced by De Graeve, 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 Sadasivan and Ito (as evidenced by De Graeve) 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 Sadasivan and Ito (as evidenced by De Graeve). 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, Sadasivan, and Ito 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 April 13, 2026, with respect to the objections to claims 11 and 12, the rejection under 35 U.S.C. 103 of claims 1, 3, 5, 6, and 10 as being unpatentable over Madduri in view of Davis and Sadasivan, the rejection under 35 U.S.C. 103 of claims 11 and 12 as being unpatentable over Madduri, Davis, and Sadasivan in further view of Farmer and De Graeve, and the rejection under 35 U.S.C. 103 of claim 13 as being unpatentable over Madduri, Davis, and Sadasivan in further view of Terzo, have been fully considered and are persuasive. In particular, the claim objections have been overcome by the amendments to claims 11 and 12. The rejections under 35 U.S.C. 103 have been overcome by the amendment to claim 1 since Davis was cited to render obvious the inclusion of clinker which was deleted from the claim, the limitation of the composition comprising a microbe culture and growth byproducts thereof was not required in independent claim 1, and the rejections do not address the new limitation of the microbe culture comprising cells and the broth in which the cells are grown. Therefore, these objections and rejections have been withdrawn.
However, upon further consideration, a new ground(s) of rejection is made in view of the previously cited references Madduri and Sadasivan in combination with the newly cited reference Ito. Applicant cites paragraphs [0028], [0034], [0043], and [0052] of Madduri for teachings regarding the biologically sourced surfactant in their invention. Applicant argues that given these teachings, then at best Madduri discloses a cement composition with between 1 and 10 weight percent rhamnolipids. Applicant then asserts that Madduri is silent as to whether the rhamnolipid composition additionally comprises a microbe culture that is required to contain cells and broth in which the cells are grown. However, the cited teachings are directed to examples of the biologically sourced surfactant of the reference, thereby not limiting the biologically sourced surfactant in the invention of Madduri. As pointed out in MPEP 2123(II), “Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments.” While Madduri is silent as to a composition comprising a microbe culture comprising cells and the broth in which the cells are grown, Sadasivan and Ito are cited in the new grounds of rejection under 35 U.S.C. 103 to render obvious the claimed limitation. Also, Applicant asserts that the sole disclosure of any glycolipid in Madduri is to “a rhamnolipid” but this disclosure fails to teach or suggest a rhamnolipid or any other glycolipid in combination with a microbe culture. However, Madduri does not limit the biologically sourced surfactant of their invention to a rhamnolipid since Madduri teaches, “In illustrative embodiments, suitably biologically sourced surfactants may include entities such as, for example, glycolipids…” (paragraph [0026], emphasis added) and that “In more specific embodiments, rhamnolipids may be a particularly desirable glycolipid surfactant for use in the compositions and cement blends of the present disclosure” (paragraph [0027]). It is clear that glycolipids, including rhamnolipids, are set forth as examples and preferred embodiments of the biologically sourced surfactants of the invention of Madduri. Therefore, Madduri does not require that the biologically sourced surfactants must be rhamnolipids.
Regarding Sadasivan which was cited in the last Office Action to render obvious a composition comprising a microbe culture, Applicant cites paragraph [0002] of Sadasivan as well as the examples of the reference, such as example 8 (paragraph [0285]), for teaching the use of rhamnolipids in a paint formulation. Applicant argues that Sadasivan fails to teach a combination of a biological surfactant in combination with a microbe culture. However, paragraphs [0163]-[0164] of Sadasivan provide teachings regarding sophorolipids in general, indicating that they can be produced by culturing yeast of the genus Starmerella in a culture medium. Such a culture is directed to a combination of a biological surfactant (sophorolipid) in combination with a microbe culture (yeast culture). Additionally, Applicant suggests that Sadasivan teaches against a combination of a biological surfactant with a microbe culture since the ZONIX product of their example contains 8.5% rhamnolipid as an active ingredient and 91.50% other ingredients which are not identified as a culture broth or cells. However, Sadasivan is cited for its teachings in general regarding the biosurfactant sophorolipid, not for the teachings regarding the examples in Sadasivan.
Furthermore, Applicant argues that one reason that Sadasivan is not combinable with Madduri is that Madduri and Sadasivan are non-analogous arts. Applicant points out that Madduri is directed to a cement and Sadasivan is directed to a paint. It is then argued that the reason this distinction is important is that formulations of surfactants used in paint are fundamentally different in concentration and function than that used for cement. However, Sadasivan is relied on for teachings regarding the biosurfactant sophorolipid in general, not the surfactants used in paint.
Applicant further points out that the PTO must show adequate support for its findings on the scope of the field of endeavor in the application’s written description and claims, including the structure and function of the invention, emphasizing that the examiner and the Board must have a basis in the application and its claimed invention for limiting or expanding the scope of the field of endeavor. However, MPEP 2141.01(a)(I) states that a reference is analogous art to the claimed invention if it meets one of two separate tests, one of which is regarding the field of endeavor argued by Applicant, the other one which is “the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention)” (emphasis added). Sadasivan is reasonably pertinent to the problem faced by the invention since it speaks to sophorolipid as growth byproducts of a microbe culture. Therefore, Sadasivan is analogous art according to the “reasonably pertinent” test.
Further still, Applicant argues that the use of rhamnolipid in both Madduri and Sadasivan are not combinable. Applicant cites the teaching in Madduri of a biologically sourced surfactant in an amount ranging between 1 and 10 weight percent. This appears to be in reference to paragraph [0028] of Madduri which does not limit the biologically sourced surfactant to a rhamnolipid. Applicant cites Tables 4 and 11 of Sadasivan regarding rhamnolipid concentrations. Then, Applicant asserts that to have combined Madduri and Sadasivan is to both have substituted sophorolipid for rhamnolipid and to have used at a concentration not taught or suggested by the reference. Applicant submits there is simply too much undue experimentation for the ordinary artisan to have had a reasonable expectation of successfully using the claimed glycolipid and microbe culture as is claimed. However, these arguments do not take into consideration how Madduri is modified in view of Sadasivan. Madduri discloses inclusion of a biologically sourced surfactant in their composition, and Sadasivan is relied on for its teaching of a known biologically sourced surfactant, sophorolipid, that is obtained and thus provided in a microbe culture. The teachings regarding rhamnolipid in Sadasivan are not relied on for modifying the invention of Madduri in the rejection.
Applicant also points out that Sadasivan teaches the existence of sophorolipid but provides no details how to make or use neither paint nor cement with sophorolipids replacing rhamnolipids. However, as discussed above, Madduri does not require that the biologically sourced surfactant of their invention must be a rhamnolipid, and since the rejection is based on substitution of the biologically sourced surfactant of Madduri (which includes the example of glycolipids in paragraph [0026]) with a known biologically sourced surfactant, sophorolipid which is a glycolipid, as recognized in the art, specifically in Sadasivan and additionally in Ito cited in the new grounds of rejection.
Conclusion
No claims are allowed.
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Sef
/SUSAN E. FERNANDEZ/Examiner, Art Unit 1651
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