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 .
DETAILED ACTION
Applicant’s submission dated 08/13/2025 (along with amendment to specification) is duly acknowledged.
Claims 8 and 9 have been canceled by the applicant’s current claim amendments.
Claims 1-7 and 10 as currently amended are pending in this application, and have been examined on their merits in this action hereinafter.
Priority
This application has an effective filing date of 04/27/2023.
Objection to Specification – Withdrawn
In view of current amendments to specification as filed by the applicant on 08/13/2025 (taken as replacement for section “Detailed Description” on pages 4-5, paragraphs [0005]-[0013] of the originally filed specification dated 04/27/2023), the objection to specification as previously made by the examiner has been withdrawn.
Although, the terms “graphene yeasts” or “edible flours” have not been specifically defined by the applicant, in the interest of compact prosecution examiner has broadly interpreted the term(s) for their plain meaning in light of the disclosure of record (see instant specification, paragraphs [0005]-[0013], for instance) that is intended to make the “finished product 2 (i.e. a transparent graphene containing probiotics)”. However, as stated earlier, it is to be noted that there is no specific disclosure and/or data on record for the isolation and/or characterization of any “graphene” actually produced via the method as claimed, and/or disclosed.
As per MPEP 2111.01, during examination, the claims must be interpreted as broadly as their terms reasonably allow. In re American Academy of Science Tech Center, F.3d, 2004 WL 1067528 (Fed. Cir. May 13, 2004)(The USPTO uses a different standard for construing claims than that used by district courts; during examination the USPTO must give claims their broadest reasonable interpretation.). This means that the words of the claim must be given their plain meaning unless applicant has provided a clear definition in the specification. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
Claim Objections – Made/Maintained
In view of the current amendments to claims 1, 3 and 10, the claim objections as previously made by the examiner, have been withdrawn. However, the objection over claim 2 is still made/maintained as discussed below:
1. Claim 2 (as currently amended) remains objected to because of the following informalities: claim 2 recites the term “Phyllostachys edulis”, a biological name, which needs to be either underlined or italicized in order to conform to the biological name recitation standards in the art (such as “Phyllostachys edulis”, for instance, where the name of the genus always starts with a capital letter). Appropriate correction is required.
Similar correction in the disclosure of record is still required (see specification, page 3, para [0006]; and amended specification, page 4, para [0006], for instances).
Claim Rejections - 35 USC § 112 – Made/Maintained
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.
1. Claims 1-7 and 10 (as amended) are/remain 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 1 (as currently amended) recites the following:
“1. A method of making graphene by fermentation comprising:
a step of preparing prerequisites, wherein heating raw materials configured to produce graphene two times to produce graphene powders, and the graphene powders are mixed with yeast and warm waters and are placed in a temperature control room for multiple days to form graphene yeasts;
a first step in which the graphene yeasts are mixed with edible flours, , and a warm water in a container and are stirred and placed in a temperature control room, thereafter a temperature of the temperature control room is increased to a predetermined temperature so as to produce a fermented graphene lump;
a second step in which fermented graphene lump is smashed by a smashing tool and is poured and smoothed out to a holding tray, then the holding tray is put into the temperature control room to be dried for multiple days, thus forming graphene enzyme lump;
a third step in which the graphene enzyme lump is put into a stirrer to refine the graphene enzyme lump into graphene enzyme powders;
a fourth step in which re-fermenting the graphene enzyme powders of the third step by repeating the first step, the second step and the third step of the method to produce re-fermented graphene powders;
a fifth step in which the re-fermented graphene powders are soaked in warm water for one day to produce edible flours, wherein a remained part of the warm water is removed after the edible flours deposit; and
a step sixth in which a finished product is produced, and the finished product being the ;
wherein in the third step, a color of the graphene enzyme powders is gray black;
wherein in the fourth step, a color of the re-fermented graphene powders is white.”
The recitation of claim as a whole remains ambiguous and confusing for at least the following reasons of record (instant claims are being interpreted as a process that results in an end product that comprises a liquid supernatant that comprises graphene):
A. Claim 1 recites the limitations in lines 3-4 “a step of preparing prerequisites, wherein heating raw materials configured to produce graphene two times to produce graphene powders…”, which makes it unclear if in fact the graphene is produced “two times” after “heating raw materials” (“two times” graphene production has not been disclosed in the instant disclosure on page 4, [0006]), and also if there are more than one type of “raw materials” being heated? (the only disclosed raw material appears to be “Phyllostachys edulis” as per above paragraph). Thus, the metes and bounds of the claimed process is unclear and has not been properly defined. Appropriate correction and/or explanation is required. Instant claim has been interpreted to require “heating raw material…two times…”, instead, in light of the disclosure of record.
B. Claim 1 (as amended) recites the limitations “a fourth step in which re-fermenting the graphene enzyme powders of the third step by repeating the first step, the second step and the third step of the method to produce re-fermented graphene powders”, which is still ambiguous and confusing because the “first step” requires the specific limitations “in which the graphene yeasts are mixed with edible flours, , and a warm water …”, and it is unclear if in step four, the same components are added and mixed, or only the fermentation conditions of the first step are actually required. The instant disclosure on page 4, amended paragraphs [0006]-[0013] does not provide any clear guidance regarding this point, and therefore the “fourth step” as currently recited that requires “repeating the first step, the second step and the third step of the method to produce re-fermented graphene powders”, is deemed indefinite. It is unclear as to how an artisan of ordinary skill in the art would be able to reasonably understand and/or perform the process as currently presented. The metes and bounds of the claimed process invention has not been properly defined. Appropriate correction and/or explanation is required.
C. Claim 1 as amended recites the limitations “a step sixth in which a finished product is produced, and the finished product being the ”, which is confusing because it is unclear as to what exactly being performed in this step ? As recited, no clear active step is required. Thus, it is unclear as to how an artisan in the art would perform the sixth step as currently required by the process, or for that matter what exactly is being encompassed by the step as presented ?
None of the claims dependent from claim 1 (claims 2-7 and 10), clarify this point, and therefore they are also rejected under 112b as being indefinite. Appropriate correction and/or explanation is required.
Applicant’s Response to 112(b) Rejections
Applicant states the following (see REM, page 7):
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However, as discussed above, claims 1-7 and 10 are still deemed indefinite, and appropriate corrections and/or explanations are required.
Claim Rejections - 35 USC § 112(f) – Made/Maintained
1. Claims 1-7 and 10 (as amended) are/remain 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 limitation “configured to” (see claim 1, line 3; taken as a place holder for means plus function recitation; akin to recitation “means for” or “step for”) has been evaluated under the three-prong test set forth in MPEP § 2181, subsection I, but the result is inconclusive. Thus, it is unclear whether this limitation should be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it is unclear as to how the “raw materials” are “configured to produce”, or what exactly is being used in the recited step “to produce graphene two times to produce graphene powders”. The disclosure on page 4, paragraph [0006] of the amended specification recites the following:
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From the recited step in claim 1, it is unclear as to how the “raw materials” have been “configured to produce graphene…” (other than “heating raw materials…” that is disclosed to be Phyllostachys edulis, as disclosed in paragraph [0006] on page 4 of the amended disclosure) that satisfies the “step of preparing prerequisites” as currently required in the claimed process. The boundaries of this claim limitation are ambiguous; therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
In response to this rejection, applicant must clarify whether this limitation should be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. Mere assertion regarding applicant’s intent to invoke or not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph is insufficient. Applicant may:
(a) Amend the claim to clearly invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, by reciting “means” or a generic placeholder for means, or by reciting “step.” The “means,” generic placeholder, or “step” must be modified by functional language, and must not be modified by sufficient structure, material, or acts for performing the claimed function;
(b) Present a sufficient showing that 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, should apply because the claim limitation recites a function to be performed and does not recite sufficient structure, material, or acts to perform that function;
(c) Amend the claim to clearly avoid invoking 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, by deleting the function or by reciting sufficient structure, material or acts to perform the recited function; or
(d) Present a sufficient showing that 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, does not apply because the limitation does not recite a function or does recite a function along with sufficient structure, material or acts to perform that function.
For the purpose of prior art in this office action (and in the absence of applicant’s response), the term “configured to” has been taken as requiring biomass being treated with heat at temperature steps as recited in instant claim 2 and/or disclosed in the specification of record (see amended specification page 4, [0006], in particular). Appropriate explanation and/or correction is required.
Applicant’s Response to 112(f) Rejection
It is noted that applicant has failed to clearly respond to this rejection on record (see REM, pages 7-10), and therefore, the rejection as discussed above, has been made/maintained.
Claim Rejections - 35 USC § 103 – Made/Maintained
NOTE: 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.
1. Claims 1-7 and 10 (as amended) are/remain rejected under 35 U.S.C. 103 as being unpatentable over MAHLE et al (24th Feb. 2023; NPL previously made of record by examiner) taken with TIWARI et al (18th July, 2022; NPL previously made of record by examiner) and GUO et al (2022; NPL previously made of record by examiner).
Claim 1 (as currently amended) recites the following:
“1. A method of making graphene by fermentation comprising:
a step of preparing prerequisites, wherein heating raw materials configured to produce graphene two times to produce graphene powders, and the graphene powders are mixed with yeast and warm waters and are placed in a temperature control room for multiple days to form graphene yeasts;
a first step in which the graphene yeasts are mixed with edible flours, , and a warm water in a container and are stirred and placed in a temperature control room, thereafter a temperature of the temperature control room is increased to a predetermined temperature so as to produce a fermented graphene lump;
a second step in which fermented graphene lump is smashed by a smashing tool and is poured and smoothed out to a holding tray, then the holding tray is put into the temperature control room to be dried for multiple days, thus forming graphene enzyme lump;
a third step in which the graphene enzyme lump is put into a stirrer to refine the graphene enzyme lump into graphene enzyme powders;
a fourth step in which re-fermenting the graphene enzyme powders of the third step by repeating the first step, the second step and the third step of the method to produce re-fermented graphene powders;
a fifth step in which the re-fermented graphene powders are soaked in warm water for one day to produce edible flours, wherein a remained part of the warm water is removed after the edible flours deposit; and
a step sixth in which a finished product is produced, and the finished product being the ;
wherein in the third step, a color of the graphene enzyme powders is gray black;
wherein in the fourth step, a color of the re-fermented graphene powders is white.”
See also 112 issues as discussed above, and the limitations of dependent claims 2-7 and 10 as presented.
Claimed process has been broadly interpreted herein as a method for preparing a clear, fermented graphene-containing product starting from a heat-treated biomass (of Phyllostachys edulis, a type of bamboo) using fermentation by yeast in the presence of added sugar. In essence, the heat treatments produce graphite, which is then exfoliated by yeast under growth and fermentation conditions in order to produce graphene-containing broth that is separated after settling of the fermentation mixture/raw materials (see amended specification, pages 4-5, paragraphs [0006]-[0012], in particular).
Mahle et al (Feb. 2023) disclose the process of yeast driven self-exfoliation and functionalization of graphene (see Title, Abstract, ll. 16-31 and ll. 43-55, for instance), wherein dry baker’s yeast (Saccharomyces cerevisiae; see ll. 85-93; and section “Methods”) cells were inoculated with graphite powder suspension in glucose solution at room temperature for a week in order to obtain dark colloidal dispersion suggesting exfoliation of graphite into graphene sheets (see Fig. 1, for instance); wherein the process comprises adding 0.2% (w/v) dry yeast cells to a graphite-containing glucose solution (0.5% w/v), wherein the yeast cells could grow, reach and remain in the stationary phase of growth and a visual change in the yeast-containing solution was the first indication of exfoliation of graphite (see Fig. 1; section “Yeast mediated exfoliation of graphite”, ll. 323-327, for instance); and wherein the functional and optical characterization of the exfoliated graphene layers revealed by spectroscopic analyses showed the same optical contrast property as being intrinsic to graphene (i.e. that is known to be a transparent sheet).
However, the method comprising a high temperature pre-treatment step (see claims 1-2; “a step of preparing prerequisites”) in order to from graphite from the raw materials including the biomass of Phyllostachys edulis, and fermentation temperature/conditions (see instant claim 3), have not been specifically disclosed by the cited reference of Mahle et al, as discussed above.
Tiwari et al (2022), while reviewing various art-known methods for conversion of biomass waste into value-added carbon nanomaterials that include graphite and graphene nanostructures (see Title, Abstract, Tables 1-2, and Figure 2, for instance), disclose the preparation of carbon nanomaterials and nanoparticles using bamboo-based biomass waste as raw precursor (see page 27, right column, for instance) employing various thermal treatment methods, including hydrothermal carbonation methods, molten salt process, single-step pyrolysis method, etc. (see entire sections 4.2, 4.5, and 5; Figure 18, for instance), wherein they disclose the fact that variety of biomass precursors, including bamboo have already been employed in the art to produce carbon nanomaterials including nanotubes (CNTs), graphene, and other graphitic nanostructures (see entire section 5 starting on page 31, for instance), wherein graphene, the single 2D layer of graphite, is considered as the “mother of all nano-allotropes” derived from carbon (see Fig. 22-23 on pages 32-34, for instance); and wherein high temperature pyrolysis methods can be used to convert various types of biomass into graphitic nanocarbons (see page 37, left column, 2nd paragraph, for instance). Thus, the step of high temperature pre-treatment of biomass derived from bamboo (and variety of other waste materials containing lignocellulosic plant sources) would have been obvious to employ in order to obtain graphitic nanocarbon material as starting point for the exfoliation of graphite using yeast fermentation process as already disclosed by the cited reference of Mahle et al, as discussed above.
Although, Tiwari et al do not explicitly disclose the example of specific bamboo species such as Phyllostachys edulis (as recited in instant claim 2), such would have been obvious to an artisan in the art as Guo et al (2022) disclose method for preparation of activated carbon nanomaterials from Phyllostachys edulis biomass (Moso bamboo; see title and Abstract) using single-step KOH activation at different high temperatures such as 500 0C to 1000 0C; wherein carbonized material included the structure of graphitic nanocarbon materials (see section 3.4, Fig. 7, for instance) that can be employed as source of graphite derived from bamboo biomass, as disclosed by Tiwari et al for the method of yeast-based exfoliation as disclosed and demonstrated by Mahle et al, discussed above. The specific limitations of grinding, mixing/stirring, types of containers used, fermentation time periods, temperatures, changes in color with fermentation and exfoliation time, etc. (see dependent claims 3-10), would have been obvious to an artisan in the art as given the combined disclosure from the cited references above, such would have been fully contemplated by an artisan in the art and can be further optimized depending on the type of biomass and/or pre-treatment methods used, specific yeast strain employed, and type of sugar sources used for fermentation process, to name a few variables that can be optimized as per need. Thus, unless evidence provided on record to the contrary (which is currently lacking on record; see pages 4-5 of the instant specification), the invention as presented fails to distinguish itself over the combined teachings and/or suggestions from the cited prior art references as discussed above.
The claim as a whole would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the invention as currently claimed.
As per MPEP 2111.01, during examination, the claims must be interpreted as broadly as their terms reasonably allow. In re American Academy of Science Tech Center, F.3d, 2004 WL 1067528 (Fed. Cir. May 13, 2004)(The USPTO uses a different standard for construing claims than that used by district courts; during examination the USPTO must give claims their broadest reasonable interpretation.). This means that the words of the claim must be given their plain meaning unless applicant has provided a clear definition in the specification. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
Response to Applicant’s Arguments
Applicant's arguments filed on 08/13/2025 (see REM, pages 7-10 regarding the 103(a) rejection of record) have been fully considered but they are not persuasive.
Regarding the 103(a) rejection of record, without fully clarifying the 112(b) issues of record, applicant appears to mainly argue that individual steps as recited in claim 1, as amended, have not been specifically taught and/or disclosed in the cited prior art of record (see REM, page 9). Applicant also states that “…none of the references, either alone or in combination thereof, taught or suggested many of the key elements of the present invention. Applicant also respectfully submits that, as disclosed above, the method of the present invention offers several distinct advantages over those in the prior art, thus, it should not be held that the present invention is obvious with respect to any of the prior art references, either alone or in combination thereof” (see REM, page 10), which are duly noted and considered. First, it is noted that the rejection of record pertains to an obviousness type rejection, and since the cited prior art references explicitly disclose the starting biomass raw materials, it treatment with heat to make graphite, and further exfoliation of the graphite (using fermentation by yeast cells) into graphene containing solutions (see detailed rejection over the cited prior art references of Mahle et al taken with disclosures from Tiwari et al and Guo et al), an artisan of ordinary skill in the art would have fully contemplated and have been able to perform the method to form graphene from bamboo biomass using already known steps as discussed in the rejection of record. Since, the main concept and parameters of heat treatment, exfoliation of graphite using yeast fermentation into graphene have been already known, the specific limitations of grinding, mixing/stirring, types of containers used, fermentation time periods, temperatures, intrinsic changes in color during yeast fermentation, and exfoliation time, etc. (see dependent claims 3-10), would have been obvious and optimizable to an artisan in the art given the combined disclosure from the cited references as discussed above. Since, the step of assessment for the spectroscopic quality of the graphene produced is already disclosed in the cited prior art of Mahle et al (see teachings in the rejection above), the argument related to color and/or optical properties of the product as currently asserted by the applicant (see REM, page 9, 1st paragraph) is duly noted, but is not found to be persuasive. In addition, applicant has failed to provide (in remarks or disclosure of record), any “key elements” that are critical to producing graphene containing end product, that is any different than the steps already known and/or suggested in the cited prior art. Also, no such “distinct advantages” related to any particular method step(s) has been pointed out and/or disclosed on record (see amended specification, pages 4-5, paragraphs [0005]-[0013], in particular), as currently alleged by the applicant.
Thus, the 103(a) rejection of record is properly made and/or maintained.
Conclusion
NO claims are currently allowed.
This action is a final rejection and closes the prosecution of this application. Applicant’s reply under 37 CFR 1.113 to this action is limited to an appeal to the Patent Trial and Appeal Board, an amendment complying with the requirements set forth below, or a request for continued examination (RCE) to reopen prosecution where permitted. Please note that the Office also offers initiatives that are available to applicants after the close of prosecution. See https://www.uspto.gov/patents/initiatives/uspto-patent-applications-iniatives-timeline for more information.
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If applicant should desire to file an after-final amendment, entry of the proposed amendment cannot be made as a matter of right unless it merely cancels claims or complies with a formal requirement made in a previous Office action. Amendments touching the merits of the application which otherwise might not be proper may be admitted upon a showing of good and sufficient reasons why they are necessary and why they were not presented earlier.
A reply under 37 CFR 1.113 to a final rejection must include cancellation of or appeal from the rejection of, each rejected claim. The filing of an amendment after final rejection, whether or not it is entered, does not stop the running of the statutory period for reply to the final rejection unless the examiner holds all of the claims to be in condition for allowance.
If applicant should desire to continue prosecution in a utility or plant application filed on or after May 29, 2000 and have the finality of this Office action withdrawn, an RCE under 37 CFR 1.114 may be filed within the period for reply. See MPEP § 706.07(h) for more information on the requirements for filing an RCE.
The application will become abandoned unless a Notice of Appeal, an after final reply that places the application in condition for allowance, or an RCE has been filed properly within the period for reply, or any extension of this period obtained under either 37 CFR 1.136(a) or (b).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SATYENDRA K. SINGH whose telephone number is (571)272-8790. The examiner can normally be reached M-F 8:00- 5:00.
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SATYENDRA K. SINGH
Primary Examiner
Art Unit 1657
/SATYENDRA K SINGH/Primary Examiner, Art Unit 1657