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 Objections
Claim 5 is objected to because of the following informalities: Claim 5 recites a value of algal cells per liter as 5.31x107, for the purposes of examination this value is construed to be 5.31x107 cells/L. Appropriate correction is required.
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.
Claims 1-6 are 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. The term “rapid precipitation” in claims 1-6 is a relative term which renders the claim indefinite. The term “rapid precipitation” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. “Rapid precipitation” of travertine could be interpreted in multiple different ways, rapid could be interpreted in the sense of geological time scale in which formations of travertine are deposited, in which case rapid could mean a number of years as compared to decades or centuries. Rapid could also be interpreted on the human timescale which might encompass, seconds, minutes or hours depending on the expectation of the individual person. Whether or not the precipitation is rapid is relative and thus renders the claims of instant application indefinite. For the purposes of examination, rapid precipitation is construed simply as “precipitation of travertine crystals” without an adjective as to the rate of that precipitation, since no definition of rapid is provided.
Claims 2-4 are 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.
Claims 2-4 recites the limitation "the water". There is insufficient antecedent basis for this limitation in the claim. Claim 1 recites the limitation “a body of water”, which for the purposes of examination is construed to mean any significant accumulation of water on the earth’s surface (rivers, lakes, reservoirs or oceans). Claims 2-4, which depend on claim 1, recite “the water”, under the broadest reasonable interpretation “the water” would be broader than the body of water since this could include water in vats, distribution lines, flasks or cisterns (for example) used for municipal, industrial or scientific purposes, which have been excluded by the use of “a body of water” in claim 1. For the purpose of examination, “the water” of claims 2-4 is construed as the body of water.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-6 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural phenomenon without significantly more. The claims recite a method for the rapid precipitation of travertine by an algae comprising adding a microalgae (chlorella and/or diatoms) at a concentration of (0.1-8x108, cells per Liter, or specifically 5.31x107 cells/L), to a body of water having a calcium ion concentration between 100-500 mg/L (also the specific concentration of 300 mg/L of Ca or 31.87 mg/L Mg with 796.8 mg/L bicarbonate ion and a pH of 7.5) and stirring. This judicial exception is not integrated into a practical application because it is established in the field of travertine geology that algae are essential to travertine formation, to specifically include diatoms (Sun et al., Metabolic Influence of Psychrophilic Diatoms on Travertines at the Huanglong Natural Scenic District of China, International Journal of Environmental Research and Public Health, 16DEC14, hereafter “Sun”). The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the steps of adding algae that are already naturally occurring in the body of water and already precipitating travertine crystals does not constitute significantly more. It is noted that the instant application recites the step of stirring after adding the algae, this is not sufficient to amount to significantly more than the judicial exception since the main purpose of stirring is to promote an even distribution of the added element. This process is naturally accomplished by the motion of the naturally occurring flowing bodies of water associated travertine deposition.
The ranges of concentrations of divalent cations, bicarbonate and pH fall within natural ranges observed at bodies of water associated with the deposition of travertine (Liu et. al., Hydrochemical characteristics of travertine-depositing hot springs in western of Yunnan, China, Quaternary International (547) 63-74, 07OCT19, hereafter “Liu”). The method that applicant describes is a naturally occurring process, that is observed in bodies of water associated with the deposition of travertine. Thus, adding naturally occurring algae to a body of water with high concentrations of calcium and bicarbonate with the result of precipitating travertine crystals would simply be a duplication of a process that is already occurring naturally at that body of water.
Applicant also does not teach a method of modifying the concentrations of calcium, magnesium or bicarbonate in the bodies of water to match the specific concentrations of divalent cations or modification of the pH recited in the claims of the instant application. Thus, it is presumed that these values must be naturally occurring in the body of water that will receive the algae. This is especially so, since the values presented in the instant application are specific to the second decimal point in some case of magnesium ion concentration and that level of precision in the modification of water chemistry to an entire body of water is not trivial or in many cases even achievable.
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 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Dai et. al. (A kind of travertine geology sprayed on material and its application, CN 108586005 A, 28SEP18, hereafter “Dai”), and further in view of Liu et. al., (Hydrochemical characteristics of travertine-depositing hot springs in western of Yunnan, China, Quaternary International (547) 63-74, 07OCT19, hereafter “Liu”).
Dai teaches the application of algae, to include diatoms (Detailed ways, paragraph 5), to travertine at a karst water body for the purpose of repairing/restoring travertine landscapes (Contents of the invention, last paragraph). Dai also teaches that the algae can promote the deposition of calcium carbonate in karst water around the travertine is used to restore and strengthen the travertine (abstract). The method of Dai also includes the separate application of a travertine base material to the surface of the travertine in need of restoration.
Dai does not explicitly teach the concentrations of divalent cations, bicarbonate ions or the pH of the karst water body, though by the use of the term karst water it is implied that the calcium and bicarbonate concentrations would be elevated since karst waters are bodies of water in contact with limestone which results in dissolution of calcium carbonate into the body of water. However, Liu teaches that calcium concentrations in bodies of water associated with travertine deposition can range naturally from 60 mg/L to 721.4 mg/L, with an average of 211.8 mg/L and a standard deviation of 212.2 mg/L. Liu teaches that magnesium concentrations in bodies of water associated with travertine deposition can range naturally from 9.15 mg/L to 113 mg/L, with an average of 32.99 mg/L and a standard deviation of 31.42 mg/L. Liu further teaches that bicarbonate ion concentrations in bodies of water associated with travertine deposition can range naturally from 258 mg/L to 1544 mg/L with an average of 826.7 mg/L and standard deviation of 349.9 mg/L. Liu also teaches that the pH in the bodies of water associated with the deposition of travertine can naturally range from 5.9 to 7.67 with an average pH of 6.74 and a standard deviation of 0.6 (Tables 1 & 2).
Regarding claims 1-6: A method for promoting a rapid precipitation of travertine crystals by an algae comprising: adding a microalgae (chlorella and/or diatoms) in the amount of 0.1-8x108 cells/L (specifically 5.31x 107 cells/L) to a body of water with the following concentrations of Ca: 100-500 mg/L or 300 mg/L, Mg: 31.87, bicarbonate ions: 796.8 mg/L and a pH of 7.5, and stirring. It would be obvious to one of ordinary skill in the art to combine the method of spraying diatoms onto the surface of the travertine for the purpose of restoration and calcium carbonate deposition with the naturally occurring concentrations of calcium magnesium and pHs found in bodies of water associated with travertine deposition because it is known that the concentrations and pHs presented in the instant application are naturally present in the bodies of water associated with travertine or other karst water bodies and that algae promote the deposition of calcium carbonate in travertine formations. Furthermore, adding the algae directly to the water and then stirring the resulting mixture, rather than spraying the algae onto the surface of the travertine is an obvious variant since the process of spraying diatoms on the surface of the travertine will also result in adding the diatoms to the water and mixing as the water passes over the sprayed surface. The ordinary artisan would have expected nothing but success with this method given the depth of the prior art as it relates to algae and travertine formation. One would have been motivated to do so, since the method of just adding the algae to the body of water directly is much simpler and requires little to no equipment compared to the method taught in Dai.
Discussion of Relevant Prior Art
The prior art contains a reference that is considered relevant but was not applied in this office action: Arumugam et. al. (Bioprospecting microalgae with the capacity for inducing calcium carbonate biomineral precipitation, Asia-Pacific Journal of Chemical Engineering, 07MAR22, hereafter “Arumugam”).
Arumugam teaches the precipitation of calcium carbonate by Chlorella vulgaris at the concentrations of calcium ions of 480.9 mg/L and 1 g/L with a concentration of 7.39 mg/L of magnesium ions and at a pH of 6.5 while grown in glass flasks in a lab setting rather than a body of water.
Conclusion
Claim 5 is objected to.
Claims 2-4 are rejected under 35 U.S.C. 112(b) for lack of antecedent basis.
Claims 1-6 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural phenomenon.
Claims 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Dai and Liu.
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/G.A.W./ Examiner, Art Unit 1651
/MELENIE L GORDON/Supervisory Patent Examiner, Art Unit 1651