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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-6, 8-17 and 21-23 in the reply filed on December 01, 2025 is acknowledged.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the a) at least one light source that is positioned in the container (claim 15), b) a frame define and circumferentially surrounding an interior chamber (claim 10), c) an additional light system comprising: a transparent light tube that extends into an interior of the additional container; and an additional light source supported in the transparent light tube (claim 21), must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “at least one air distribution device” in claim 12.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 21 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 21 recites the limitation "an additional light system" in line 4. However, “a light system” was not previously recited in the claims. Therefore, it is unclear as to which element of the photobioreactor system that the additional light system supplements.
Appropriate correction is required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 3-4, 8-9, 12-17 and 23 are rejected under 35 U.S.C. 102(s)(1) as being anticipated by Yoshino et al (JP 2006-014627-A; with English machine translation; hereinafter “Yoshino”).
Regarding claim 1, Yoshino discloses a photobioreactor system, comprising: a frame (FIG. 1: frame (11); [0025]); a reflective wall coupled to the frame such that the reflective wall defines and circumferentially surrounds an interior chamber (FIG. 1: cylinder (40) having a wall with a reflective surface (41); [0033]); and a plurality of light sources coupled to the reflective wall such that the plurality of light sources circumferentially surrounds the interior chamber (FIGS. 1 and 3: light source (30); [0008], [0025] and [0033]).
Regarding claim 3, Yoshino further discloses wherein the frame is an open box structure with a top opening across a top of the frame to provide access to the interior chamber (Frame (11) includes an upper opening adapted to access content within the interior chamber, e.g., openings 23,24; [0029]-[0030]).
Regarding claim 4, Yoshino further discloses wherein an air system comprising at least one tubing assembly, wherein the at least one tubing assembly comprises at least one tubing (FIGS. 1 and 5: air diffuser comprising an air source (123) and a tubing (110,120) coupled to a plurality of opening (25a,25b) arranged in a ring; [0011], [0017], [0031]-[0032]) that is configured to extend from an air source to a plurality of air outlets arranged in a ring that is configured to be placed in a container within the interior chamber (the air system of Yoshino is structurally the same as the instant air system and thus fully capable of performing the recited function of “to extend from an air source to a plurality of air outlets arranged in a ring that is configured to be placed in a container within the interior chamber.” Furthermore, it is noted that a recitation directed to the manner in which a claimed apparatus is intended to be used does not distinguish the claimed apparatus from the prior art, if the prior art has the capability to so perform. Apparatus claims must distinguish from the prior art in terms of structure rather than function (see MPEP 2114).
Regarding claim 8, Yoshino further discloses a container configured to be positioned within the interior chamber (FIGS. 1,3: container (20); [0008]), wherein the container is formed from a transparent material ([0008], [0033]).
Furthermore, it is noted that a recitation directed to the manner in which a claimed apparatus is intended to be used does not distinguish the claimed apparatus from the prior art, if the prior art has the capability to so perform. Apparatus claims must distinguish from the prior art in terms of structure rather than function (see MPEP 2114).
Regarding claim 9, regarding the limitation “wherein the photobioreactor system is disposed on or in a floating or fixed structure at a body of water,” said limitation does not add any additional structural limitations to the claimed photobioreactor system. Yoshino discloses all of the structural features of the claimed photobioreactor system and thus fully capable of being disposed on or in a floating or fixed structure at a body of water.
Regarding claim 12, Yoshino discloses a photobioreactor system comprising: a container configured to hold contents that comprise a desired organism (FIGS. 1,3: container (20); [0008], [0033]); a plurality of light sources configured to emit light into the container (FIGS. 1 and 3: light source (30); [0008], [0025] and [0033]); and an air system comprising at least one tubing assembly, wherein the at least one tubing assembly comprises at least one tubing that is configured to extend from an air source, through an opening formed in the container, and to at least one air distribution device placed proximate to a bottom surface of the container (FIGS. 1 and 5: an air diffuser comprising an air source (123) and a tubing (110,120) extending through an insertion openings of the container ([0027], [0031]), and coupled to a plurality of opening (25a,25b) arranged in a ring within the container; [0011], [0017], [0031]-[0032]). Furthermore, it is noted that a recitation directed to the manner in which a claimed apparatus is intended to be used does not distinguish the claimed apparatus from the prior art, if the prior art has the capability to so perform. Apparatus claims must distinguish from the prior art in terms of structure rather than function (see MPEP 2114).
Regarding claim 13, Yoshino further discloses wherein the at least one air distribution device comprises a plurality of air outlets (a plurality of opening (25a,25b) arranged in a ring within the container; [0011], [0017], [0031]-[0032]).
Regarding claim 14, Yoshino further discloses wherein a frame assembly that defines an interior chamber configured to receive the container, wherein the frame assembly comprises a frame and at least one reflective wall (frame assembly comprising a stand (11) and reflective wall (41) defining an interior chamber adapted to receive container (20); FIGS. 1 and 3; [0008], [0033]).
Regarding claim 15, Yoshino further discloses wherein the plurality of light sources comprise as comprises at least one light source that is positioned in the container, discrete rows of light sources positioned about a wall of the container, or both (FIGS. 1 and 3: light source (30) surrounding container (20); [0008], [0025] and [0033]).
Regarding claim 16, Yoshino further discloses a sensor configured to generate sensor data indicative of one or more characteristics of the contents of the container (e.g., pH sensor, temperature sensor and carbon dioxide sensor; [0038]-[0039]); and a controller configured to: receive and process to the sensor data (e.g., pH sensor data is sent to a computing device to detect and adjust the pH in the system; [0038]); and instruct display output of a recommendation, an alert, or both based on the sensor data (sensor data is displayed on a display device 150; [0038]).
Regarding claim 17, Yoshino further discloses wherein the controller is located on-shore and remotely from the container (computing device of pH sensor data is a separate device that is coupled to the container). Furthermore, regarding the limitation “wherein the controller is located on-shore,” said limitation does not add any additional structural limitations to the claimed photobioreactor system. Yoshino discloses all of the structural features of the claimed controller and thus considered to be fully capable of being located on-shore and remotely from the container.
Regarding claim 23, Yoshino further discloses wherein at least one light source of the plurality of light sources is housed within a transparent light tube that extends into an interior of the container (FIGS. 1 and 3: light source (30) with tubings).
Therefore, Yoshino meets and anticipates all of the limitations set forth in claim(s) 1, 3-4, 8-9, 12-17 and 23.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Yoshino as applied to claim 1 above, and further in view of Rudolph et al (US 2020/0230568; hereinafter “Rudolph”).
Regarding claim 2, Yoshino discloses the photobioreactor system according to claim 1 as set forth above. Yoshino further discloses at least one opening an upper opening to provide access to the interior chamber (see FIGS. 1 and 3), but does not explicitly disclose wherein at least one side opening is defined between a horizontal bar of the frame and an upper edge of the reflective wall to provide access to the interior chamber. Rudolph discloses a reactor system comprising a frame (see FIGS. 1A-1D and 2A: DC hanger assembly; [0039]), a wall coupled to the frame and defining an interior chamber (see FIGS. 1A-1D and 2A: receptacle adapted to receive a disposable container; [0039]), and a disposable container arranged within the interior chamber (see FIGS. 1A-1D and 2A; [0039]). In view of Rudolph, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the frame of Yoshino so as to comprise horizontal bars as disclosed by Rudolph. One of ordinary skill in the art would have made said modification for the purpose of providing means for introducing and removing containers within the interior chamber, as disclosed by Rudolph (see FIGS. 1A-1D and 2A; [0039]).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Yoshino as applied to claim 1 above, and further in view of Zheng (US 2020/0216489).
Regarding claim 5, Yoshino discloses the photobioreactor system according to claim 1 as set forth above. Yoshino discloses the claimed plurality of light sources and a controller ([0038]), but does not explicitly disclose wherein the controller configured to generate instructions to control the plurality of light sources according to a schedule. Zheng discloses a bioreactor comprising a container (FIG. 2: container 200; [0016]), a light source (212; [0016], [0019]), and a controller configured to generate instructions to control the light source according to a schedule ([0019], [0061]). In view of Zheng, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the controller of Yoshino with the controller of Zheng to arrive at the claimed invention. One of ordinary skill in the art would have made said modification for the purpose of providing optimum culturing conditions for the algae culture, as disclosed by Zheng ([0019]).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Yoshino in view of Zheng as applied to claim 1 above, and further in view of Spanton (US 2021/0392835).
Regarding claim 6, modified Yoshino discloses the photobioreactor system according to claim 5 as set forth above. Modified Yoshino does not explicitly disclose wherein the controller is configured to receive an input of one or more characteristics of contents in a container within the interior chamber and to select the schedule from a database based on the input, and wherein the one or more characteristics comprise a type of organism, an intended location of distribution of the contents, or both. Spanton discloses a control system for controlling a plurality of light sources of a cultivation system. The control system comprises a controller adapted to control spectrum and intensity of the plurality of light sources (see abstract). The spectrum and intensity of the plurality of light sources is based on an input into the controller (e.g., type of the cells being cultured; [0024]-[0027]). In view of Spanton, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the controller of modified Yoshino with the controller of Spanton to arrive at the claimed invention. One of ordinary skill in the art would have made said modification for the purpose of providing optimum culturing conditions for the cells being cultured.
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Yoshino as applied to claim 1 above.
Regarding claim 10, Yoshino discloses the photobioreactor system according to claim 1 as set forth above. Yoshino discloses wherein the frame and the reflective wall coupled to the frame define and circumferentially surround the interior chamber, and the plurality of light sources coupled to the reflective wall circumferentially surround the interior chamber (see FIGS. 1 and 3: wall of cylinder (40) defines an interior chamber, and a bottom portion of said interior chamber is disposed within a frame (11); [0025], [0034], [0037]). Yoshino discloses the claimed invention except for the duplication of the interior chamber. However, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified duplicated the interior chamber of Yoshino, since it has been held that a mere duplication of working parts of a device involves only routine skill in the art (see MPEP § 2144.04 VI. B.). One would have been motivated to duplicate the interior chamber of Yoshino for the purpose of culturing cells simultaneously in a plurality of separate containers within the interior chambers and thereby increase the throughput of the photobioreactor system.
Regarding claim 11, photobioreactor system of modified Yoshino is structurally the same as the instant photobioreactor system and thus fully capable “to receive a respective container that holds and enables growth of a desired organism.” Furthermore, it is noted that a recitation directed to the manner in which a claimed apparatus is intended to be used does not distinguish the claimed apparatus from the prior art, if the prior art has the capability to so perform. Apparatus claims must distinguish from the prior art in terms of structure rather than function (see MPEP 2114).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Yoshino as applied to claim 8 above, and further in view of Jung (KR 2016-0102729-A; with English machine translation).
Regarding claim 21, Yoshino discloses the photobioreactor system according to claim 8 as set forth above. Yoshino discloses the claimed container within the interior chamber (FIGS. 1,3: container (20); [0008]), wherein the container is formed from a transparent material ([0008], [0033]), but does not explicitly disclose an additional container comprising a respective capacity greater than a respective capacity of the container. However, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the photobioreactor system of Yoshino such that the interior chamber includes additional container including an additional container comprising a respective capacity greater than a respective capacity of the container to arrive at the claimed invention. One would have been motivated to have made said modification for the purpose of culturing cells simultaneously in a plurality of separate containers within the interior chambers and thereby increase the throughput of the photobioreactor system. Modified Yoshino does not explicitly disclose an additional light system comprising: a transparent light tube that extends into an interior of the additional container; and an additional light source supported in the transparent light tube. Jung discloses a photobioreactor comprising a container (200), and a light source (FIG. 3: 100) in a transparent light tube (201). In view of Jung, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated the light source of Jung into the additional containers of modified Yoshino for the purpose of enhancing irradiation efficiency into the additional containers as suggested by Jung ([0049], [0063]). One of ordinary skill in the art would have made said modification for the purpose of increasing cultivation efficiency of cultured cells.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Yoshino as applied to claim 12 above, and further in view of Niazi (US 2015/0290597).
Regarding claim 22, Yoshino discloses the photobioreactor system according to claim 12 as set forth above.
Yoshino discloses the claimed air system fastened to the bioreactor system but does not explicitly disclose wherein the air system comprises at least one weight configured to facilitate placement of the at least one air distribution device proximate to the bottom surface of the container. Niazi discloses wherein an air system can be anchored or weighted down so as to arrange the air system in a bioreactor at a desired position ([0027]). In view of Niazi, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified fastening means of the air system of Yoshino with the fastening means of Niazi. One of ordinary skill in the art would have made said modification because said modification would have been the simple substitution of one known fastening means for another for the predictable result of fastening an air system into a photobioreactor system, as suggested by Niazi ([0027]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Knight et al (US 9,228,165) disclose a frame, a wall coupled to the frame and a horizontal bar. Herzog (US 2012/0309081) discloses photobioreactor system comprising a frame and container arranged within the frame. Hauslage (DE 10-2017113306-A1) discloses a wall defining an interior chamber, a plurality of light sources arranged within the interior chamber, and a container arranged within the interior chamber.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIBAN M HASSAN whose telephone number is (571)270-7636. The examiner can normally be reached on 8:30 AM - 5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Marcheschi can be reached on 5712721374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LIBAN M HASSAN/Primary Examiner, Art Unit 1799