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 § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 6 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 6 is indefinite for at least the following reasons:
Claim 6 depends from claim 1 which already requires “cultivating cyanobacteria […] on the drilling mud” (claim 1, lines 3-4) and claim 6 further recites “cultivating microalgae, cyanobacteria or macroalgae with the addition of drilling gravel” (lines 2-3) at a concentration ranging from “0.01% to 95% in culture medium or combination of culture media”. It is unclear if the drilling mud is considered the culture media and at what values are being compared to result in the claimed percentages. The claim recites “inoculation of Nannochloropsis sp.” (line 4). Nannochloropsis is a type of microalgae and it is unclear if the feature introduced by such narrower language is (a) merely exemplary of microalgae, and therefore not required, or (b) a required feature of the claim. It is unclear what the concentration ranging from “1 mg/L to 1 g/L” (line 5) refers to (e.g. algae and drilling gravel, a volume of material in the tank etc.). The term “other types of transparent containers” (line 6) encompasses such a large range of possible structures that one of ordinary skill in the art would not be able to determine the metes and bounds of the claim. The claim recites “a CO2 supply is without limitation of purity” (lines 7-8) but it is unclear what role the CO2 supply plays in the fertilizer structure or production of the fertilizer. It is unclear what the limitation “a pH” (line 8) refers to (e.g. a culture media, the organomineral fertilizer, the inoculation). The limitation “[…] 6 days of growth” (line 8) is unclear. There is no growing step recited in the claim.
Claim Rejections - 35 USC § 103
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.
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 are rejected under 35 U.S.C. 103 as being unpatentable over Christensen (US Patent Publication No. 2010/0133368 A1) in view of Kujawska (Plos one, 2020).
In regard to claims 1-2, Christensen teaches a composition, comprising:
a mineral matrix, chosen from the drilling gravel (e.g. a drill cuttings granulate) [para. 0060];
an organic matrix consisting of algal biomass produced by cultivating cyanobacteria, microalgae or macroalgae in culture media based on drilling gravel (e.g. growth of algae on the granulates, wherein algae is an organism including microalgae and macroalgae) [0060].
Christensen does not explicitly teach wherein wherein the composition has a minimum cation exchange capacity of 80 mmolc/kg. However, Kujawska describes the physiochemical properties of drill cuttings [pg. 3; Table 1]. The drill cuttings (e.g. wastes/residues produced during the exploration of oil and natural gas) [pg. 3, 1st full para.]. They exhibited a cation exchange capacity of about 496.5 mmocl/kg (e.g. 49.65 cmol/kg). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that Christensen’s composition, composed of drill cuttings, binder and algae growth, would exhibit a cation exchange capacity within the claimed range. One of ordinary skill in the art would have a reasonable expectation of success in combining a material with the physicochemical characteristics described by Kujawska (e.g. drill cuttings) with binder and algae growth based on the teachings of Christensen.
While Christensen does not explicitly describe the composition as an organomineral fertilizer (claim 1) for soil, fertigation, hydroponics, foliar application or plant seeds (claim 2), these limitations are interpreted as the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations. Christensen’s composition is described as non-toxic and growth of organic compounds on the granulates occurs freely [0060] and is therefore considered suitable for application via the claimed methods.
In regard to claim 3, Christensen teaches the composition of claim 1, wherein the mineral matrix is a granulate (e.g. solid) on which the algae is grown [0060].
Indication of Allowable Subject Matter
Claims 4 and 5 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The following is a statement of reasons for the indication of allowable subject matter:
The prior art references do not teach or render obvious all the cumulative limitations of claims 4 or 5 with particular attention to the claimed values of organic carbon and humidity and “wherein the solid product is soluble in water”. The composition disclosed by the Christensen reference is described as undergoing a processes of hardening on the seabed and is not considered soluble in water.
Response to Arguments
The objection to claim 5 and the rejection of claims 1 and 3-5 under 35 U.S.C. 112(b) is withdrawn in view of Applicant’s amendments (04/07/2026) to the claims.
Applicant’s arguments (paras. bridging pgs. 5-6) with respect to the newly added (04/07/2026) claim limitation directed to cation exchange capacity have been considered but are moot because the new ground of rejection in view of Kujawska (Plos one, 2020) makes obvious this limitation.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer A Smith whose telephone number is (571)270-3599. The examiner can normally be reached Monday - Friday 9:30am-6pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber R Orlando can be reached at (571) 270-3149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 April 16, 2026
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