DETAILED ACTION
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 .
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.
Claims 1-3, 16, 22, 27, and 35-39 are rejected under 35 U.S.C. 103 as being unpatentable over Armstrong et al. (US 20080206860 A1), hereinafter Armstrong, in view of Keown (WO 0189291 A1), Illenberger et al. (US 20200305370 A1), hereinafter Illenberger, and Minato et al. (NZ 521709 A), hereinafter Minato.
Regarding claim 1, Armstrong discloses an apparatus for use in culturing Sphagnum, comprising:
a culture vessel for Sphagnum (culture vessel 9; fig 1a shows culture vessel 9; can be configured for Sphagnum cultivation);
a culture medium arranged in the culture vessel (fig 1a shows culture medium at bottom of culture vessel 9), wherein the culture vessel comprises an enclosed airspace above the culture medium (fig 1a; ¶ 0009, lines 9 and 10, “During culture the vessel is linked to at least one substantially sealed culture vessel”);
a barrier comprising a tube permeable to carbon dioxide (permeable membrane 6; figs 1a and 1b show that permeable membrane 6 is a tube that fits around vertical limb 5a of T-piece of gas outlet 5), wherein the tube is arranged above the culture medium (Fig. 1a shows tube at a height above the culture medium);
an inlet pipe connected to a source of carbon dioxide, and wherein a first end of the tube is connected to the inlet pipe (interconnecting means 8; fig 1a shows end of interconnecting means 8 is an inlet pipe connected to gas outlet 5 with an integral gas permeable membrane 6); and
wherein the apparatus is configured to supply carbon dioxide into the enclosed airspace through a wall of the tube (gas reservoir 3, gas outlet 5; fig 1a; ¶ 0036, lines 6-12, “A gas outlet 5 with an integral gas permeable membrane 6 is positioned in the head space of the vessel 2. The lower end of this gas outlet is sealed with a blanking plug of glass or other material 7. As the gas diffuses across the membrane and out of the vessel it enters an interconnecting means 8 and diffuses in the direction of the arrows towards a culture vessel 9;” ¶ 0009, lines 1-3, “In a preferred embodiment of the invention the gas is a fluid, even more preferably the fluid is a gas, which is s[e]lected from the group consisting of, for example, O2 or CO2”.
Although Armstrong discloses a tube and that the barrier is a tube, Armstrong fails to specifically disclose Sphagnum arranged in the culture medium, wherein the tube is not permeable to water and is arranged at least partially in the enclosed airspace within the culture vessel, and an outlet pipe connected to a second end of the tube.
Keown is in the field of culturing and teaches Sphagnum arranged in the culture medium (inoculum 5; fig 1; page 3, lines 1-3, “The inoculum 5 is a manually or mechanically cleaned sample of wild Sphagnum sp. Alternatively, the inoculum 5 may be derived from an axenic moss culture containing saprophytic and gametophytic tissue”),
Therefore, it would have been obvious to one of ordinary skill in the art of culturing before the effective filing date of the claimed invention to modify the device of Armstrong such that Sphagnum is arranged in the culture medium, as taught by the Sphagnum culture of Keown. The inclusion of the cultivation of Sphagnum would expand the use case of the device, which would improve the commercial application of the overall device. The modification would have a reasonable expectation of success.
Illenberger is in the field of plant cultivation and gas exchange and teaches wherein the tube is arranged at least partially in the enclosed airspace within the culture vessel (porous tube 15; fig 3 shows that porous tube 15 is arranged in receiving chamber 9); and an outlet pipe connected to a second end of the tube (output feed 7; fig 3; ¶ 0207, lines 1-5, “The bioreactor 3 shown in FIG. 3 has three carrier elements 10, each designed as a porous tube 15, which are then integrated parallel to one another in a pipe system within the receiving chamber 9. The porous tubes 15 are each connected to the input feed 6 and a gas supply line 16”).
Therefore, it would have been obvious to one of ordinary skill in the art of culturing before the effective filing date of the claimed invention to modify the device of Armstrong in view of Keown such that the tube is arranged at least partially within the culture vessel and an outlet pipe connected to a second end of the tube, as taught by the tube configuration and outlet of Illenberger. The provision of the outlet would facilitate transfer of fluids to outside the chamber, which would improve fluid conveyance. Additionally, the positioning of the tube within the culture vessel would allow for improved transfer of gas to occur within the chamber, which would provide greater control over fluids in the vessel. The modification would have a reasonable expectation of success.
Minato is in the field of plant growing and teaches wherein the tube is not permeable to water (page 13, line 19 – page 14, line 3, “Preferably, the hollow fiber membrane 3 that constitutes the hollow fiber membrane module MO has a three-layer composite-membrane structure in which a non-porous membrane 4 is tightly inserted between porous membranes 5 and 5 like a sandwich so as to have a cylindrical shape as shown in Fig. 13 2[a]. The non-porous membrane 4 is characterized by being impermeable to water and, on the other hand, selectively permeable to gases”).
Therefore, it would have been obvious to one of ordinary skill in the art of culturing before the effective filing date of the claimed invention to modify the device of Armstrong in view of Keown and Illenberger such that the tube is not permeable to water, as taught by the water-impermeable material of Minato. The provision of the water-impermeable material would allow for only gas to pass through the membrane, blocking liquids. This would overall control over gas delivery in the system. The modification would have a reasonable expectation of success.
Regarding claim 2, Armstrong as modified discloses the device of claim 1.
Armstrong discloses wherein the apparatus is configured to supply a gas comprising at least 1 % carbon dioxide by volume into the enclosed airspace (¶ 0036, lines 6-12; ¶ 0008, lines 5-8, “The rate of diffusion across the gas permeable membrane is dependent on the membrane's diffusive resistance which can be varied by altering the physical properties of the membrane;” discloses the gas concentrations are configured to be varied, so can be supplied at 1 % carbon dioxide).
Regarding claim 3, Armstrong as modified discloses the device of claim 1.
Armstrong discloses wherein the apparatus is configured to supply a gas comprising at least 90 % carbon dioxide by volume into the enclosed airspace (¶ 0036, lines 6-12; ¶ 0008, lines 5-8; discloses the gas concentrations are configured to be varied, so can be supplied at 90 % carbon dioxide).
Regarding claim 16, Armstrong as modified discloses the device of claim 1.
Armstrong discloses wherein the culture medium does not comprise sugar (¶ 0004 discusses the benefits of elimination of sugar from culturing apparatuses; disclosure does not discuss use of sugar for culture medium in the device).
Regarding claim 22, Armstrong as modified discloses the device of claim 1, and furthermore, the modified reference teaches further comprising a second culture vessel for Sphagnum and a second culture medium arranged in the second culture vessel (Armstrong; ¶ 0018, “The vessel according to the invention can be connected by way of interconnecting means to more than one culture vessel”), wherein the second culture vessel comprises a second enclosed airspace above the second culture medium (Armstrong; ¶ 0009, lines 9 and 10), and further comprising Sphagnum arranged in the second culture medium (Keown; inoculum 5; fig 1; page 3, lines 1-3); and
wherein the apparatus carbon dioxide is configured to supply carbon dioxide into the second enclosed airspace of the second culture vessel (Armstrong; ¶ 0009, lines 1-3).
Regarding claim 27, Armstrong discloses a method of culturing, comprising:
providing a culture vessel for Sphagnum (culture vessel 9; fig 1a shows culture vessel 9; can be configured for Sphagnum cultivation);
providing a culture medium arranged in the culture vessel (fig 1a shows culture medium at bottom of culture vessel 9), wherein the culture vessel comprises an enclosed airspace above the culture medium (fig 1a; ¶ 0009, lines 9 and 10);
providing a barrier comprising a tube permeable to carbon dioxide (permeable membrane 6; figs 1a and 1b show that permeable membrane 6 is a tube that fits around vertical limb 5a of T-piece of gas outlet 5), wherein the tube is arranged above the culture medium (Fig. 1a shows tube at a height above the culture medium);
an inlet pipe connected to a source of carbon dioxide, and wherein a first end of the tube is connected to the inlet pipe (interconnecting means 8; fig 1a shows end of interconnecting means 8 is an inlet pipe connected to gas outlet 5 with an integral gas permeable membrane 6);
supplying carbon dioxide into the enclosed airspace through a wall of the tube (gas reservoir 3, gas outlet 5; fig 1a; ¶ 0036, lines 6-12; ¶ 0009, lines 1-3).
Although Armstrong discloses that the barrier is a tube, Armstrong fails to specifically disclose Sphagnum culturing with Sphagnum arranged in the culture medium, wherein the tube is not permeable to water and is arranged at least partially in the enclosed airspace within the culture vessel, as well as providing an outlet pipe connected to a second end of the tube.
Keown is in the field of culturing and teaches Sphagnum culturing with Sphagnum arranged in the culture medium (inoculum 5; fig 1; page 3, lines 1-3).
Therefore, it would have been obvious to one of ordinary skill in the art of culturing before the effective filing date of the claimed invention to modify the method of Armstrong such that Sphagnum is cultured with Sphagnum arranged in the culture medium, as taught by the Sphagnum culture of Keown. The inclusion of the cultivation of Sphagnum would expand the use case of the method, which would improve the commercial application of the overall method. The modification would have a reasonable expectation of success.
Illenberger is in the field of plant cultivation and gas exchange and teaches wherein the tube is arranged at least partially in the enclosed airspace within the culture vessel (porous tube 15; fig 3 shows that porous tube 15 is arranged in receiving chamber 9); and an outlet pipe connected to a second end of the tube (output feed 7; fig 3; ¶ 0207, lines 1-5, “The bioreactor 3 shown in FIG. 3 has three carrier elements 10, each designed as a porous tube 15, which are then integrated parallel to one another in a pipe system within the receiving chamber 9. The porous tubes 15 are each connected to the input feed 6 and a gas supply line 16”).
Therefore, it would have been obvious to one of ordinary skill in the art of culturing before the effective filing date of the claimed invention to modify the method of Armstrong in view of Keown such that the tube is arranged at least partially within the culture vessel and an outlet pipe connected to a second end of the tube, as taught by the tube configuration and outlet of Illenberger. The provision of the outlet would facilitate transfer of fluids to outside the chamber, which would improve fluid conveyance. Additionally, the positioning of the tube within the culture vessel would allow for improved transfer of gas to occur within the chamber, which would provide greater control over fluids in the vessel. The modification would have a reasonable expectation of success.
Minato is in the field of plant growing and teaches wherein the tube is not permeable to water (page 13, line 19 – page 14, line 3, “Preferably, the hollow fiber membrane 3 that constitutes the hollow fiber membrane module MO has a three-layer composite-membrane structure in which a non-porous membrane 4 is tightly inserted between porous membranes 5 and 5 like a sandwich so as to have a cylindrical shape as shown in Fig. 13 2[a]. The non-porous membrane 4 is characterized by being impermeable to water and, on the other hand, selectively permeable to gases”).
Therefore, it would have been obvious to one of ordinary skill in the art of culturing before the effective filing date of the claimed invention to modify the method of Armstrong in view of Keown and Illenberger such that the tube is not permeable to water, as taught by the water-impermeable material of Minato. The provision of the water-impermeable material would allow for only gas to pass through the membrane, blocking liquids. This would overall control over gas delivery in the method. The modification would have a reasonable expectation of success.
Regarding claim 35, Armstrong as modified discloses the device of claim 1, and furthermore, the modified reference teaches wherein the tube (Armstrong; permeable membrane 6; figs 1a and 1b) is arranged partially inside the culture vessel (Illenberger; porous tube 15; fig 3 shows that porous tube 15 is arranged in receiving chamber 9).
Regarding claim 36, Armstrong as modified discloses the device of claim 1.
Armstrong discloses wherein the first end of the tube is arranged outside the culture vessel (permeable membrane 6; figs 1a and 1b show that gas outlet 5 and permeable membrane 6 are located outside of culture vessel 9).
Regarding claim 37, Armstrong as modified discloses the device of claim 1.
Armstrong discloses wherein the second end of the tube is arranged outside the culture vessel (permeable membrane 6; figs 1a and 1b show that gas outlet 5 and permeable membrane 6 are located outside of culture vessel 9).
Regarding claim 38, Armstrong as modified discloses the device of claim 1, and furthermore, the modified reference teaches wherein the tube (Armstrong; permeable membrane 6; figs 1a and 1b) is arranged entirely inside the culture vessel (Illenberger; porous tube 15; fig 3 shows that porous tube 15 is arranged entirely in receiving chamber 9).
Therefore, it would have been obvious to one of ordinary skill in the art of culturing before the effective filing date of the claimed invention to modify the device of Armstrong in view of Keown, Illenberger, and Minato such that the tube is arranged entirely within the culture vessel, as taught by the tube location of Illenberger. The positioning of the barrier within the culture vessel would allow for the transfer of gas to occur within the chamber, which would provide greater control over fluids in the vessel. The modification would have a reasonable expectation of success.
Regarding claim 39, Armstrong as modified discloses the device of claim 1, and furthermore, the modified reference teaches wherein the culture vessel defines a region being free of the culture medium (Armstrong; Fig. 1a shows culture vessel 9 defines a region being free of a culture medium as well as a region with the culture medium) (Illenberger; Fig. 3 shows receiving chamber defines a region free of a culture medium), the tube being arranged at least partially in the region (Illenberger; Fig. 3 shows that porous tube 15 is arranged in receiving chamber 9).
Claims 17, 19, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Armstrong (US 20080206860 A1) in view of Keown (WO 0189291 A1), Illenberger (US 20200305370 A1), and Minato (NZ 521709 A), as applied to claims 1 and 22, and further in view of Muller (US 4003160 A).
Regarding claim 17, Armstrong as modified discloses the device of claim 1, however, the modified reference fails to specifically disclose wherein the culture medium comprises a liquid culture medium, and wherein the apparatus is configured to stir the liquid culture medium.
Muller is in the field of plant growing and teaches wherein the culture medium comprises a liquid culture medium, and wherein the apparatus is configured to stir the liquid culture medium (col 4, lines 18-23, “The liquid culture medium that is to be used for growing the yeast is supplied to the fermentor 1 through the pipe 8 and is continuously stirred therein and mixed with the yeast growing therein by means of the stirrer 2 driven by the motor 3 while air is vigorously charged thereinto”).
Therefore, it would have been obvious to one of ordinary skill in the art of culturing before the effective filing date of the claimed invention to modify the device of Armstrong in view of Keown, Illenberger, and Minato such that the culture medium comprises a liquid culture medium, and wherein the apparatus is configured to stir the liquid culture medium, as taught by the liquid culture and mixing system of Muller. This would allow for the culture medium to be stirred, which would result in improved mixing. The modification would have a reasonable expectation of success.
Regarding claim 19, Armstrong as modified discloses the device of claim 17, and furthermore, the modified reference teaches wherein the apparatus is configured to stir the culture medium from externally of the culture vessel (Muller; fig 1 shows motor 3 drives stirring externally from outside vessel).
Regarding claim 23, Armstrong as modified discloses the device of claim 22, including a second culture medium and second culture vessel (Armstrong; ¶ 0018; ¶ 0009, lines 9 and 10), however, the modified reference fails to specifically disclose wherein the culture medium comprises a liquid culture medium, wherein the apparatus is configured to stir the liquid culture medium, a second liquid culture medium, and wherein the apparatus is further configured to stir the second liquid culture medium.
Muller teaches wherein the culture medium comprises a liquid culture medium, wherein the apparatus is configured to stir the liquid culture medium, a second liquid culture medium, and wherein the apparatus is further configured to stir the second liquid culture medium (col 4, lines 18-23).
Therefore, it would have been obvious to one of ordinary skill in the art of culturing before the effective filing date of the claimed invention to modify the device of Armstrong in view of Keown, Illenberger, and Minato such that the culture medium comprises a liquid culture medium, wherein the apparatus is configured to stir the liquid culture medium, a second liquid culture medium, and wherein the apparatus is further configured to stir the second liquid culture medium, as taught by the liquid culture and mixing system of Muller. This would allow for the culture medium to be stirred, which would result in improved mixing. The modification would have a reasonable expectation of success.
Claims 20, 21, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Armstrong (US 20080206860 A1) in view of Keown (WO 0189291 A1), Illenberger (US 20200305370 A1), Minato (NZ 521709 A), and Muller (US 4003160 A) as applied to claims 17 and 23, and further in view of Lee (KR 101443238 B1).
Regarding claim 20, Armstrong as modified discloses the device of claim 17, however, the modified reference fails to specifically disclose further comprising a heat source configured to apply a temperature differential in the culture vessel to stir the liquid culture medium.
Lee is in the field of plant growth and teaches further comprising a heat source configured to apply a temperature differential in the culture vessel to stir the liquid culture medium (¶ 0079, 8 and 9, “Additionally, the heat generated from the LED module may provide additional heating effect to the plant cultivation facility [210];” heat from LED module may provide a stirring effect for liquids).
Therefore, it would have been obvious to one of ordinary skill in the art of culturing before the effective filing date of the claimed invention to modify the device of Armstrong in view of Keown, Illenberger, Minato, and Muller to include a heat source configured to apply a temperature differential in the culture vessel to stir the liquid culture medium, as taught by the LED module of Lee. This would provide light and heat to the culture vessel, which would improve overall growth. The modification would have a reasonable expectation of success.
Regarding claim 21, Armstrong as modified discloses the device of claim 20, and furthermore, the modified reference teaches wherein the heat source comprises a light source (Lee; ¶ 0079, 8 and 9; LED module is a light source).
Regarding claim 24, Armstrong as modified discloses the device of claim 23, including a second culture medium and second culture vessel (Armstrong; ¶ 0018; ¶ 0009, lines 9 and 10), however, the modified reference fails to specifically disclose further comprising a heat source configured to apply a temperature differential in the culture vessel to stir the liquid culture medium, wherein the heat source comprises a light source, and wherein the light source is arranged between the culture vessel and the second culture vessel.
Lee teaches further comprising a heat source configured to apply a temperature differential in the culture vessel to stir the liquid culture medium (¶ 0079, 8 and 9; heat from LED module may provide a stirring effect for liquids), wherein the heat source comprises a light source (¶ 0079, 8 and 9; LED module is a light source), and wherein the light source is arranged between the culture vessel and the second culture vessel (fig 2 shows plant cultivation facility comprises multiple growth vessels, ¶ 0079, 8 and 9, discloses that the LED module provides light to entire cultivation facility 210, and thus multiple growth vessels).
Therefore, it would have been obvious to one of ordinary skill in the art of culturing before the effective filing date of the claimed invention to modify the device of Armstrong in view of Keown, Illenberger, Minato, and Muller to include a heat source configured to apply a temperature differential in the culture vessel to stir the liquid culture medium, wherein the heat source comprises a light source, and wherein the light source is arranged between the culture vessel and the second culture vessel, as taught by the LED module of Lee. This would provide light and heat to the culture vessel, which would improve overall growth. The modification would have a reasonable expectation of success.
Response to Arguments
Applicant's arguments filed 03/16/2026 have been fully considered but they are not persuasive.
Regarding the argument on page 10 that “However, a skilled artisan would not have combined Armstrong and Illenberger as suggested by the Examiner to have a tube that ‘is arranged at least partially in the enclosed airspace within the culture vessel and above the culture medium’ as required by independent claims 1 and 27. Rather, a skilled artisan, considering the teachings of Armstrong and Illenberger, would have the tube either (i) above the culture medium but not in the culture vessel as evidenced by FIG. 1 of Armstrong; or (ii) within the culture vessel but also within the culture medium and not above the culture medium as evidenced by FIG. 3 of Illenberger,” the Examiner submits that the modified reference teaches “is arranged at least partially in the enclosed airspace within the culture vessel and above the culture medium” as claimed. Armstrong discloses that the tube is arranged above the culture medium, as Fig. 1a shows the tube of Armstrong at a height above the culture medium, and Illenberger teaches that the tube is arranged at least partially in the enclosed airspace within the culture vessel, as Fig. 3 shows that porous tube 15 is arranged in receiving chamber 9. The Examiner further recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the motivation exists in Illenberger, as Illenberger discloses that the positioning of the tube at least partially swithin the culture vessel would allow for improved transfer of gas to occur within a chamber, which would provide greater overall control over fluids in the vessel.
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure.
Erikson, US 20180000024 A1, discusses an integrated gas and light system with multi-media irrigation technology.
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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/S.T.C./Examiner, Art Unit 3642
/JOSHUA D HUSON/Supervisory Patent Examiner, Art Unit 3642
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