DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 1-20 are currently pending.
Election/Restrictions
Applicant’s election without traverse of Group II, Claims 12-17, and of species a nitrogen source, in the reply filed on 1/7/2026 is acknowledged.
Claims 1-11 and 18-20 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected inventions and species, there being no allowable generic or linking claims.
Claims 12-17 are being examined in this application, insofar as they read on the elected species of a nitrogen source.
Claim Objections
Claim 15 is objected to because of the following informalities: “metabolization source comprises source comprises”. Appropriate correction is required.
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 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 of this title, 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.
Claims 12-17 are rejected under 35 U.S.C. 103 as being unpatentable over Macur et al (US 2020/0268031 A1; 8/27/2020.) in view of Del Cardayre et al (US 2019/0032097 A1; 1/31/2019.).
The instant claims recite a nutrient production system comprising an inorganic carrier material, an abiotic nutrient mixture, and a metabolization source, wherein the abiotic nutrient mixture comprises water and at least one non-biomass carbon source.
Macur teaches a bioreactor comprising at least one membrane, a filamentous fungus inoculum (para 0054), a carbon source, a nitrogen source (para 0189), and water (an abiotic nutrient mixture) (para 0291), wherein the at least one membrane comprises a synthetic polymer (an inorganic carrier material) (para 0061), the filamentous fungus belong to an order Agaricales (para 0068) includes Pleurotus ostreatus (a metabolization source, a saprophytic organism, mushroom) (para 0070), and the bioreactor produces a biomat that serves as a food source such as a protein source (a nutrient production system) (para 0296).
Macur does not teach the abiotic nutrient mixture comprises at least one non-biomass carbon source (claim 12).
However, Macur does teach the bioreactor comprises a carbon source. Del Cardayre teaches that a carbon source is a substrate or compound suitable to be used as a source of carbon for prokaryotic or simple eukaryotic cell growth including Pleurotus (para 0012), wherein the carbon source includes at least one biomass carbon source as well as at least one non-biomass carbon source (para 0067).
Thus, before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to incorporate at least one non-biomass carbon source for culturing a fungus including Pleurotus, since Macur and Del Cardayre both disclose culturing a fungus including Pleurotus using a carbon source, and Del Cardayre specifically discloses that the carbon source includes at least one non-biomass carbon source. Moreover, before the effective filing date of the claimed invention, one of ordinary skill in the art would have been motivated by the cited reference and routine practice to incorporate at least one non-biomass carbon source with a reasonable expectation of success.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the claims at issue are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 12-17 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-3, 9-10, 12, and 14-17 of co-pending Application No. 18/933,740 (referred to as the ‘740 application).
Claims 1-3, 9-10, 12, and 14-17 of the ‘740 application recite a nutrient production system comprising mineral wool, zeolite, mesoporous metal oxides, fiberglass, vermiculite, a synthetic polymer (an inorganic carrier material), an abiotic nutrient mixture comprises water, paraffin, mineral oil (at least one non-biomass carbon source), and Pleurotus ostreatus (a metabolization source, a saprophytic organism, mushroom). The abiotic nutrient mixture further comprises a nitrogen source.
This is a provisional obviousness-type double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
No claims are allowed.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LYNN Y FAN whose telephone number is (571)270-3541. The examiner can normally be reached on M-F 7am-4pm.
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/Lynn Y Fan/
Primary Examiner, Art Unit 1759