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 .
Applicant’s amendment and response filed on 5/20/2026 have been received and entered into the case. Claims 1-20 are pending, Claims 1-11 and 18-20 have been withdrawn, and Claims 12-17 have been considered on the merits, insofar as they read on the elected species of a nitrogen source. All arguments have been fully considered.
Withdrawn Objections
Objections are withdrawn in view of applicant’s amendments.
Withdrawn Rejections
Rejections of Claims 12-17 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.) are withdrawn in view of applicant’s amendments.
Claim Rejections - 35 USC § 102
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 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 12-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Helberg et al (Materials. 2019;12:2270.).
The instant claims recite a non-photosynthetic nutrient production system comprising: an inorganic carrier material, an abiotic nutrient mixture, and a non-photosynthetic metabolization source, wherein the abiotic nutrient mixture comprises water and at least one non-biomass carbon source.
Helberg teaches petri dishes (a non-photosynthetic nutrient production system) comprising synthetic fibers (an inorganic carrier material) (p.2 para 2), malt extract agar (an abiotic nutrient mixture comprises water and at least one non-biomass carbon source) produced from deionized water and peptone (a nitrogen source), and oyster mushroom culture (a non-photosynthetic metabolization source comprises a saprophytic organism) (p.2 para 5).
Therefore the reference anticipates the claimed subject matter.
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 (a non-photosynthetic 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.
Response to Arguments
Applicant argues that cited references do not teach a “non-photosynthetic nutrient production system” as amended in claim 12. However, these arguments are moot since those rejections are withdrawn in view of applicant’s amendments.
Conclusion
No claims are allowed.
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 extension fee 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.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curtis Mayes can be reached on (571)272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Lynn Y Fan/
Primary Examiner, Art Unit 1759
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