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 .
Response to Amendment
The Amendment filed on 4/7/2026 has been entered. Claims 1-12 remain pending in the application. The examiner notes that claims 11 and 12 are withdrawn as they are dependent upon the withdrawn method claims. Additionally, the examiner notes that the preamble of claim 12 recites a “device,” however, the claim depends from a method claim.
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 recites “a discharge port,” however, claim 5 recites “a discharge port” and is therefore unclear if the discharge port recited in claim 6 is the same or different than the discharge port recited in claim 5. For examination purposes, they are interpreted to be the same. Additionally, the examiner notes that the rest of claim 6 appears to also be recited in claim 1.
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.
Claim(s) 5, 6, 8 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over WO 2007/011343, hereinafter Berzin in view of United States Application Publication No. 2012/0094350, hereinafter Raap.
Regarding claim 5, Berzin teaches a culturing device (figure 7A) that gathers gas generated by microalgae in a culturing solution, the culturing device comprising: an accommodation portion (item 102) that accommodates the culturing solution and the microalgae (intended use MPEP § 2114 (II)); a support body (items 210, 212 and 214) that supports the accommodation portion in a posture inclined with respect to a vertical direction (figure 3A); a gas supply unit (item 608) that supplies culturing gas to the culturing solution in the accommodation portion (figure 7A); a guide portion (item 101) that is provided to the accommodation portion and guides the culturing gas from a bottom portion of the accommodation portion toward a liquid surface of the culturing solution (figure 7A); and a gas gathering portion (item 141) that is provided at an upper portion of a side wall of the inclined accommodation portion (figure 7A), an outer surface of the side wall facing obliquely upward (figure 7A), wherein the gas gathering portion comprises a gathering port (the opening of item 114 into item 102) and the guide portion comprises a discharge port that discharges the culturing gas (the opening in the top channel 106).
Berzin fails to teach the gathering port is opened in the culturing solution the gathering port is positioned below the discharge port or at a same height as the discharge port.
Raap teaches a gas collection hood which is placed below the water surface so that gas bubbles do not reach the water surface and results in a calm zone at the top of the container (Raap, paragraph [0003]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have added a gas collection hood which is opened in the culturing solution because it would produce a calm zone at the top of the container (Raap, paragraph [0003]). Further, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, to determine, through routine experimentation, the optimum height for the gathering port so that it is at or below the height of the discharge port which would allow for the gas bubbles to not reach the water surface and result in a calm zone at the top of the container (Raap, paragraph [0003]) (MPEP § 2144.05 (II)).
Furthermore, the combination of Berzin with Raap would allow for the gas produced by the microalgae being cultured enters the gas gathering portion through the gathering port and is gathered with the gas gathering portion (intended use MPEP § 2114 (II) and see supra and figure 7A).
Regarding claim 6, modified Berzin teaches the guide portion (item 101) comprises a discharge port (the upper opening between item 101 and 102) that discharges the culturing gas (figure 7a), the gathering port is positioned below the discharge port or at a same height as the discharge port (see supra).
Regarding claim 8, these limitations are directed to the material worked upon by the apparatus, all the structural limitations of the claim has been disclosed by Berzin and the apparatus of Berzin is capable of working on Chlamydomonas and hydrogen. As such, it is deemed that the claimed apparatus is not differentiated from the apparatus of Berzin (see MPEP §2115).
Regarding claim 9, Berzin teaches wherein the gas gathering portion comprises a vessel (the tube of item 141 is considered to be the vessel) having the gathering port (figure 7A).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Berzin and Raap as applied to claim 5 above, and further in view of JP H1080267, hereinafter Kitajima.
Regarding claim 7, Berzin and Raap teach all limitations of claim 5; however, they fail to teach a sliding member that is provided to the accommodation portion and slides along an inner surface of the side wall of the accommodation portion.
Kitajima teaches a photosynthesis reactor which has a stirring member which slides on the inner surface of the cylinder so that it can simultaneously perform stirring and cleaning of the walls (Kitajima, page 7, paragraph 11).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have added a sliding member which slides along the inner surface of the accommodation portion because it would simultaneously perform stirring and cleaning of the walls (Kitajima, page 7, paragraph 11).
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Berzin and Raap as applied to claim 5 above, and further in view of United States Application Publication No. 2006/0033222, hereinafter Godfrey.
Regarding claim 10, Berzin and Raap teach all limitations of claim 5; however, they fail to each the gathering port is provided with a plug configured to close the gathering port.
Godfrey teaches a device which introduces a gas into a liquid which utilizes a plug or cap to enable the outlet to be repeatedly opened and closed (Godfrey, paragraph [0055]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have added a plug to the gathering port because it would enable the port to be repeatedly opened and closed (Godfrey, paragraph [0055]).
Response to Arguments
Applicant's arguments filed 4/7/2026 have been fully considered but they are not persuasive.
Regarding applicant’s argument that the disclose of paragraph [0003] of Raap is not speaking to the device of Raap, but instead to other European patent documents is not persuasive. Even though the device of Raap itself isn’t utilizing the description in paragraph [0003], the disclose of Raap is still disclosing that structure. As such one of ordinary skill in the art would have looked to paragraph [0003] of Raap and modified the device of Berzin to move the location of the gathering port so that it is below the surface of the liquid. The applicant’s further point to paragraphs [0009] and [0023] of Raap on what method Raap is utilizing. However, as discussed above, Raap teaches putting a gas collection hood below the surface along with reasons to have the hood below the surface.
In response to applicant's argument that the location of the gas collection hood relative to the discharge port is modified for a different reason, the fact that applicant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See MPEP § 2145 (II).
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 MATTHEW D KRCHA whose telephone number is (571)270-0386. The examiner can normally be reached M-Th 7am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Maris Kessel can be reached at (571)270-7698. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MATTHEW D KRCHA/ Primary Examiner, Art Unit 1796
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