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 .
Applicant’s Submission of a Response
Applicant’s submission of a response was received on 11/10/2025.
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.
Claim(s) 1-2, 5-8, and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Xi et al. (US 2021/0188677) in view of Schnabel et al. (EP 1068152 in IDS) and Peoples et al. (US 2002/0173019).
Regarding claim 1, Xi teaches a wastewater treatment apparatus for treating wastewater, the wastewater treatment apparatus comprising: a pre-treatment portion into which wastewater is introduced and which includes a fermentation microorganism reaction tank (103) in which amino acid fermentation microorganisms are capable of being accommodated; and a nitrification portion comprising a nitrification tank (2), which is connected downstream of the fermentation microorganism reaction tank and into which wastewater is introduced and in which nitrification microorganisms are capable of being accommodated (Fig. 1; [0045]-[0062] and [0107]-[0111]).
Xi teaches that a carrier/filter medium can be provided that has the microorganisms attached thereto (biofilm) in order to create suitable conditions for treatment process ([0062]-[0063]). Xi fails to teach that the material of the carrier is biodegradable plastic.
Schnabel teaches that it is beneficial to provide a carrier/filter medium for microorganisms/biofilm wherein the carrier is comprised of a biodegradable polymer/plastic material (PHB PHV) allowing for the material to biodegrade while also aiding in the formation of the biofilm ([0011]-[0017]). As, such, one skilled in the art would have found it obvious to use the biodegradable polymer/plastic in Schnabel as the specific carrier/filter medium in Xi in order to use a biodegradable material that can also aid in the formation of biofilms.
It is noted that Schnabel teaches the use of PHB and PHV but fail to explicitly state the plastic material is amorphous polyhydroxyl alkanoate (aPHA). Peoples teaches that PHB and PHV are species of a PHA genus and that the other more elastic PHAs (considered to be amorphous) also provide the same desired properties and similar structure ([0003]). As such, one skilled in the art would have found it obvious to use aPHAs as claimed with a reasonable expectation of success (In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious); Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 8 USPQ2d 1323 (Fed. Cir. 1988) (Claimed agricultural bagging machine, which differed from a prior art machine only in that the brake means were hydraulically operated rather than mechanically operated, was held to be obvious over the prior art machine in view of references which disclosed hydraulic brakes for performing the same function, albeit in a different environment.). A prima facie case of obviousness may be made when chemical compounds have very close structural similarities and similar utilities. "An obviousness rejection based on similarity in chemical structure and function entails the motivation of one skilled in the art to make a claimed compound, in the expectation that compounds similar in structure will have similar properties." In re Payne, 606 F.2d 303, 313, 203 USPQ 245, 254 (CCPA 1979). See In re Papesch, 315 F.2d 381, 137 USPQ 43 (CCPA 1963) (discussed in more detail below) and In re Dillon, 919 F.2d 688, 16 USPQ2d 1897 (Fed. Cir. 1990). As such, one skilled in the art would have found it obvious to use other similar PHA chemicals that are also biodegradable as they are part of the same genus and one would expect similar properties.
It is noted that "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). "Inclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935). As applied to this case, the actual structure is two tanks/vessels in series that are capable of holding various microorganisms/bacteria. Xi teaches that tanks 103 and 2 both contain microorganisms/bacteria and reads on the limitations as the fluid being treated and the specific microorganisms would be considered intended use. It is further noted that the types of bacteria/microorganisms taught in Xi in [0060] and [0095] overlap with Applicant’s list [0046] of their published application.
Regarding claim 2, Xi teaches a phosphorous discharge portion comprising a phosphorous discharge tank (101), which is connected to upstream of the fermentation microorganism reaction tank in which dephosphorization microorganisms are capable of being accommodated; and a separation portion (sludge discharge 7 of tank 102), which is connected to a downstream of the phosphorous discharge tank, is upstream of the fermentation microorganism reaction tank and separates an aggregated sludge (Fig. 1; [0045]-[0062]).
Regarding claims 5-6, as can be seen in Fig. 1 of Xi, the nitrification tank (2) has a base and sidewall portion and the upper side of the nitrification tank is open via the outlet.
Regarding claim 7, Xi teaches that the nitrification tank can include a circulation device/air supply device (10).
Regarding claim 8, Xi teaches that the nitrification tank includes a gas supply device (10).
Regarding claim 14, it is submitted that using a combination of PHA chemicals would have been obvious ("It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980)). Further, Peoples teaches that PHB and PHV would be considered semicrystalline PHAs ([0003]).
Claim(s) 9-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Xi et al. (US 2021/0188677) in view of Schnabel et al. (EP 1068152 in IDS) and Peoples et al. (US 2002/0173019) as applied to claim 1 above, and further in view of Jordan (US 2006/0201876).
Regarding claims 9-13, Xi teaches that microorganisms are present in the fermentation microorganism reaction tank (103) but fails to teach the microorganisms being Micrococcus, Bacillus, Brevibacterium, Corynebacterium, or Pseudomonas. Jordan teaches that for similar aerobic reaction tanks/ fermentation microorganism reaction tanks, representative genera include Micrococcus, Bacillus, Brevibacterium, Corynebacterium, or Pseudomonas ([0119]), As such, one skilled in the art would have found it obvious to use known aerobic bacteria already known and used in the art for the same/similar purpose with a reasonable expectation of success.
Response to Arguments
Applicant's arguments filed 11/10/2025 have been fully considered but they are not persuasive. The above rejection has been modified to address the added claim limitations.
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.
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/PETER KEYWORTH/Primary Examiner, Art Unit 1777