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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/27/2026 has been entered.
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.
Claims 1, 4-6, 11 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Lawrence et al. (WO 2019040787) in view of Nickel (U.S. Patent No. 4,434,743).
For claim 1, Lawrence et al. discloses a method for cultivating clams, the method consisting essentially of: placing clams and live oysters (page 1, lines 14-15; page 18, lines 12-15) in a mesh oyster grow-out bag (Fig. 2 and page 18, lines 21-22: 280), attached directly to a float (Fig. 2: 270) so that the mesh oyster grow-out bag is held under the surface of the water (page 18, line 24-page 19, line 3).
Lawrence et al. discloses simultaneous aquaculture of multiple species of bivalves (as discussed on page 3, lines 8-9 and page 18, lines 12-15), but fails to specifically disclose clam seed and juvenile oysters. Nickel teaches it is well known in the art of shellfish mariculture, a method of cultivating clam seed and live juvenile oysters (Col. 1, lines 13-37). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Lawrence et al. to include the clam seed and live juvenile oysters as taught by Nickel for the advantage of optimizing clam cultivation and growth in order to maximize profitability.
For claims 4-6, Lawrence et al. fails to specifically show wherein the mesh oyster grow-out bag is maintained at 1 inch to 48 inches under the surface of the water. Nickel teaches a method of cultivating clams comprising: placing clam seed and live juvenile oysters in a mesh bag (as discussed in Col. 3, lines 7-9), wherein the mesh bag is maintained at 1 inch to 48 inches under the surface of the water (as discussed in Col. 3, lines 50-55); wherein the mesh bag is maintained at 2 inches to 36 inches under the surface of the water (as discussed in Col. 3, lines 50-55); wherein the mesh bag is maintained at 6 inches to 24 inches under the surface of the water (as discussed in Col. 3, lines 50-55). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Lawrence et al. to include maintaining the mesh oyster grow-out bag at 6 inches to 24 inches under the surface of the water as taught by Nickel for the advantage of providing optimal cultivating conditions (Nickel as discussed in Col. 5, line 65-Col. 6, line 15).
For claim 11, Lawrence et al. discloses the invention substantially as claimed, but fail to show taking place in a subtidal zone. Nickel teaches a method of cultivating clam seed and live juvenile oysters (Col. 1, lines 13-37), taking place in a subtidal zone (as shown in Fig. 3 at the bed 12). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Lawrence et al. to include taking place in a subtidal zone as taught by Nickel for the advantage of providing desired water conditions and nutrient levels for optimal cultivation of the clams.
For claim 13, Lawrence et al. discloses the invention substantially as claimed, but fail to show wherein the juvenile oysters are less than one year old at an initial culture time. Nickel teaches a method of cultivating clam seed and live juvenile oysters (Col. 1, lines 13-37), wherein the juvenile oysters are less than one year old at an initial culture time (as discussed in Col. 1, lines 13-15: from an infantile seed stock stage”). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Lawrence et al. to include juvenile oysters less than one year old at an initial culture time as taught by Nickel for the advantage of optimizing clam and oyster life cycles for juveniles raised to maturity.
Claims 2, 3, 8-10 and 14-18 are rejected under 35 U.S.C. 103 as being unpatentable over Lawrence et al. (WO 2019040787) in view of Nickel (U.S. Patent No. 4,434,743), as applied to claim 1 above, and further in view of Stephen et al. (U.S. Patent No. 2012/0184001).
For claims 2 and 3, Lawrence et al. as modified by Nickel disclose the invention substantially as claimed, but fail to show wherein the clam seed are selected from the group consisting of Mya arenaria, razor clam, hard clam, and Atlantic surf clam; and wherein the clam seed is Mya. Stephen et al. teaches a method for cultivating clams comprising: placing clams in a mesh bag (as discussed in [0008], [0016], [0054] and Fig. 1: 100) with live oysters (as discussed in [0022]: “two or more species of shellfishes…may be cultured in these cages”, [0063]: mixed fish culture, and [0072]: oysters, clams), wherein the clam seed are selected from the group consisting of Mya arenaria, razor clam, hard clam, and Atlantic surf clam (as discussed in [0072]); and wherein the clam seed is Mya (as discussed in [0072]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Lawrence et al. and Nickel to include the clam seed as taught by Stephen et al. for the advantage of optimizing the culture conditions as juveniles are raised to maturity.
For claims 8-10, Lawrence et al. as modified by Nickel disclose the invention substantially as claimed, but fail to show wherein the ratio of clam seed to oysters is 74:100 to 100:300; wherein the ratio of clam seed to oysters is 100:75 to 100:300; and wherein the ratio of clam seed to oysters is 1:1. Stephen et al. teaches a method for cultivating clams comprising: placing clams in a mesh bag (as discussed in [0008], [0016], [0054] and Fig. 1: 100) with live oysters (as discussed in [0022]: “two or more species of shellfishes…may be cultured in these cages”, [0063]: mixed fish culture, and [0072]: oysters, clams), wherein the ratio of clam seed to oysters is 74:100 to 100:300 (as discussed in [0063]: “The one or several major fish species may constitute greater than…about 30%, about 40%, about 50%, about 60%, about 70%”); wherein the ratio of clam seed to oysters is 100:75 to 100:300 (as discussed in [0063]: “The one or several major fish species may constitute greater than…about 30%, about 40%, about 50%, about 60%, about 70%”); and wherein the ratio of clam seed to oysters is 1:1 (as discussed in [0063]: “The one or several major fish species may constitute greater than…about 50”). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Lawrence et al. and Nickel to include the ratios as taught by Stephen et al. for the advantage of optimizing the culture conditions for maximum profitability.
For claim 14, Lawrence et al. as modified by Nickel disclose the invention substantially as claimed, but fail to show taking place in a subtidal zone in a Maryland portion of the Chesapeake Bay. Stephen et al. teaches a method for cultivating clams comprising: placing clams in a mesh bag (as discussed in [0008], [0016], [0054] and Fig. 1: 100) with live oysters (as discussed in [0022]: “two or more species of shellfishes…may be cultured in these cages”, [0063]: mixed fish culture, and [0072]: oysters, clams), taking place in a subtidal zone (as discussed in [0007]) in a Maryland portion of the Chesapeake Bay (as discussed in [0006] known aquaculture and fish farming “in Chesapeake Bay and Pokomoke River near Maryland in the United States”). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Lawrence et al. and Nickel to include taking place in a subtidal zone in a Maryland portion of the Chesapeake Bay as taught by Stephen et al. for the advantage of providing desired water conditions and nutrient levels for optimal cultivation of the clams.
For claims 15-17, Lawrence et al. as modified by Nickel disclose the invention substantially as claimed, but fail to show wherein water salinity is in the range of 2 ppt to 30 ppt; wherein water salinity is in the range of 4 ppt to 20 ppt; and wherein water salinity is in the range of 6 ppt to 15 ppt. Stephen et al. teaches a method for cultivating clams comprising: placing clams in a mesh bag (as discussed in [0008], [0016], [0054] and Fig. 1: 100) with live oysters (as discussed in [0022]: “two or more species of shellfishes…may be cultured in these cages”, [0063]: mixed fish culture, and [0072]: oysters, clams), wherein water salinity is in the range of brackish water environments (as discussed in [0072]: “Depending on the environment, freshwater, brackish water, or marine shellfishes can be used.” and [0113]: brackish environment “(about 0.5 to about 31 ppt salts)”). While the claimed range is narrower than the broader range as disclosed in the reference to Stephen et al., the prior art fully encompasses the water salinity range and discusses “Any of such aquatic environments, freshwater species, marine species, and/or species that thrive in varying and/or intermediate salinities or nutrient levels, can be used in certain embodiments.”(Stephen et al. [0113]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Lawrence et al. and Nickel to include a specific range of water salinity as taught by Stephen et al. for the advantage of providing desired water conditions and nutrient levels for optimal cultivation of the clams.
For claim 18, Lawrence et al. as modified by Nickel disclose the invention substantially as claimed, including taking place in an estuary (Nickel as discussed in Col. 3, lines 50-53), but fails to show taking place in brackish water. Stephen et al. teaches a method for cultivating clams comprising: placing clams in a mesh bag (as discussed in [0008], [0016], [0054] and Fig. 1: 100) with live oysters (as discussed in [0022]: “two or more species of shellfishes…may be cultured in these cages”, [0063]: mixed fish culture, and [0072]: oysters, clams), taking place in brackish water (as discussed in [0072]: “Depending on the environment, freshwater, brackish water, or marine shellfishes can be used.” and [0113]: brackish environment “(about 0.5 to about 31 ppt salts)”). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Lawrence et al. and Nickel to include brackish water as taught by Stephen et al. for the advantage of providing desired water conditions and nutrient levels for optimal cultivation of the clams.
Response to Arguments
Applicant's arguments filed 2/27/2026 have been fully considered but they are not persuasive.
Applicant argues “The aquaculture method disclosed by Lawrence includes a 1) water tank containing free swimming animals and 2) a cage within the tank, the cage containing surface-attached animals, 3) in the same volume of water. The method of claim 1, by virtue of the "consisting essentially" language, necessarily excludes the tank of Lawrence. Lawrence fails to reveal any appreciation or understanding that practicing the method of claim 1, using only the materials immediately available to oyster farmers, would have any benefit whatsoever. No person of ordinary skill reading Lawrence would be motivated to arrive at the present invention. No person of ordinary skill in the art would have arrived at the claimed invention based on the disclosure of Lawrence. Nickel and Stephen fail to cure this deficiency of Lawrence.”
The examiner notes that the transitional phrase “consisting essentially of” limits the scope of the claim to the specified materials or steps “and those that do not materially affect the basic and novel characteristic(s)” of the claimed invention. Thus, the reference to Lawrence clearly describes the system as shown in Fig. 2: 212, consists of the float 270 and the bag 280, and further submerged in a volume of water 125. The fact that the tank is used is not a material or step that “materially affect the basic and novel characteristic(s)” of the claimed invention.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE A CLERKLEY whose telephone number is (571)270-7611. The examiner can normally be reached 8:30AM-5PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Peter Poon can be reached at 571-272-6891. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DANIELLE A CLERKLEY/ Examiner, Art Unit 3643