DETAILED ACTION
Status of Claims:
Claims 1-24 are pending.
Claims 5, 19, and 21 have been amended.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 4/27/2026 has been entered.
Response to Arguments
Applicant's arguments filed 4/27/2026 have been fully considered but they are not persuasive. The applicant argues that the primary determining factor of if Sorensen and Furuya are analogous inventions is the relation to biological phosphorous removal. This argument is not persuasive. In response to applicant's argument that Sorensen and Furuya are nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Furuya is pertinent to the control of oxygenation based on nitrate and nitrite concentrations and is in the same field of biological wastewater treatment. Sorensen is in the same field of biological wastewater treatment comprising anaerobic and aerobic zones. It is further noted that although the claims states that the invention is “enhanced biological phosphorous removal” no phosphorous removal is claimed and the amount of phosphorous removal is not limited.
The applicant argues that underpinning of the claimed inventions is based on the finding that adjusting the amount of oxygen during the aerated step achieves excellent removal of phosphorus from water. This argument is not persuasive because the same effluent concentration of phosphorus claimed is disclosed by Sorensen (see Sorensen para. 0052).
The applicant argues that adjusting the oxygen supply based on oxygen requirements offers a distinct advantage over consistent constant oxygen supply. This argument is not persuasive because it is well known in the art to adjust the oxygen supply based on the nitrate and nitrite concentration (see for example Furuya para. 0048).
The applicant argues that the biofilm aspects of Furuya are not technically compatible with a method of EBPR, therefore one skilled in the art would not modify Sorensen with Furuya. Specifically the applicant argue that because the biofilm of Furuya is not exposed to anaerobic conditions it is not applicable to EBPR methods. This argument is not persuasive, at least, because Furuya explicitly teaches that the biofilm has an anaerobic zone (see Furuya para. 0087) and that phosphorus accumulating bacteria are present in an anaerobic environment (see para. 0068). Furuya is not required to teach every limitation of the claims for the claims to be obvious in view of Sorensen and Furuya. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
The applicant argues that one skilled in the art would have not any motivation to take the features relating to adjusting oxygen supply in an aerated step, as taught by Furuya and apply it to the EBPR biofilm method of Sorensen because “they would have absolutely no reason to believe that it would provide a technical benefit for EBPR biofilm methods”. This argument is not persuasive because the prior art is not required to have the same motivation to combine features as the instant invention. Sorensen is directed to the purification of nitrogen in addition of phosphorus (see at least Sorensen para. 0016), therefore one skilled in the art would have been motivated to add the control method of Furuya to ensure there is not an excess or shortage of oxygen supplied (see Furuya para. 0038).
The applicant argues that hindsight reasoning would be required for the combination. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
The applicant argues that the claimed subject matter is advantageous because it provides a method of EBPG wherein the oxygen supplied is based on the actual oxygen requirements for the POAs in the biofilm. This argument is not persuasive for at least the reason that it is not claimed. The claims require “the amount of oxygen supplied in aerated step (ii) is dependent on the level of nitrite and/or nitrate detected”. This limitation is disclosed by Furuya. No relationship between the amount of oxygen supplied and the amount of oxygen required by the PAOs is claimed.
The applicant again argues that the teachings of Sorensen and Furuya in relationship to biological phosphorus removal must be considered when determining whether the method of claim 1 is obvious. This argument is not persuasive because “enhanced biological phosphorus removal is the intended use of the claimed invention, not an additional step. The motivation to combine the teachings of the prior art do not need to be the same as the motivation in the instant invention. As one skilled in the art would have found it obvious to combine the teaching of Furuya with the teachings of Sorensen in order to ensure the appropriate amount of oxygen is supplied (see Furuya para. 0038) Furuya does not need to teach the same enhanced biological phosphorus removal.
The previous 112 rejections are withdrawn in view of the amendments.
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 (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.
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(s) 1-15 and 18-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sorensen et al (US 2017/0158534) in view of Furuya et al (US 2014/0374346).
Regarding Claim 1:
Sorensen teaches the method for enhanced biological phosphorus removal from water by a biofilm, said method comprising:(i) an anaerobic step in which said biofilm is subjected to anaerobic conditions; (ii) an aerated step in which said biofilm is subjected to aerated conditions by supplying oxygen to the water (see para. 0016).
Sorensen does not teach (iii) detecting the level of nitrite and/or nitrate in the water in or after aerated step (ii); wherein the amount of oxygen supplied in aerated step (ii) is dependent on the level of nitrite and/or nitrate detected or wherein the amount of oxygen supplied in aerated step (ii) is decreased in response to the detection of an increased, or increasing, level of nitrite and/or nitrate and wherein the amount of oxygen supplied in aerated step (ii) is increased in response to the detection of a decreased, or decreasing, level of nitrite and/or nitrate. Sorensen further teaches that the process is intended for biological removal of nitrogen (see para. 0019).
Furuya teaches detecting the level of nitrite and/or nitrate in the water in or after an aerated step; wherein the amount of oxygen supplied in aerated step is dependent on the level of nitrite and/or nitrate detected (see para. 0060, 0061) and, wherein the amount of oxygen supplied in aerated step (ii) is decreased in response to the detection of an increased (exceeds set range), or increasing, level of nitrite, (see Furuya para. 0058, 0061); and wherein the amount of oxygen supplied in aerated step (ii) is increased in response to the detection of a decreased (below set range), or decreasing, level of nitrite and/or nitrate (see Furuya para. 0058, 0060).
Sorensen and Furuya are analogous inventions in the art of biological nitrogen removal. It would have been obvious to one skilled in the art before the effective filing date of the invention to add the steps of detecting the level of nitrite and/or nitrate in the water in or after an aerated step; wherein the amount of oxygen supplied in aerated step is dependent on the level of nitrite and/or nitrate detected, as disclosed by Furuya, to the aerated step of Sorensen because it insures that amount of oxygen supplied is appropriate and can improve the nitrogen removal rates (See Furuya para. 0123).
Regarding Claim 2:
Sorensen, as modified, teaches the method of claim 1, wherein said biofilm is present on free flowing (freely moving) biofilm carriers (see Sorensen para. 0035).
Regarding Claim 3:
Sorensen, as modified, teaches the method of claim 1, wherein said water is wastewater (see Sorensen, Abstract).
Regarding Claim 4:
Sorensen, as modified, teaches the method of any one of claim 1, wherein said method is performed in a Moving Bed Biofilm Reactor (MBBR) (see Sorensen, para. 0017).
Regarding Claim 5:
Sorensen, as modified, teaches the method of claim 4, wherein said biofilm is present on biofilm carriers and wherein the filling ratio of biofilm carriers is between 30 % to 75 %, of the wet volume of the reactor (see Sorensen para. 0042).
Regarding Claim 6:
Sorensen, as modified, teaches the method of claim 1, wherein said method is a continuous method (see Sorensen para. 0032).
Regarding Claim 7:
Sorensen, as modified, teaches the method of claim 1, wherein said anaerobic step (i) is carried out in an anaerobic zone of a reactor and said aerated step (ii) is carried out in an aerated zone of a reactor (see Sorensen para. 0024).
Regarding Claim 8:
Sorensen, as modified, teaches the method of claim 1, wherein said anaerobic zone and/or said aerated zone is sub-divided into a plurality of sub-chambers (separated into several consecutive chambers) (see Sorensen para. 0024).
Regarding Claim 9:
Sorensen, as modified, teaches the method of claim 1, wherein the biofilm is present on biofilm carriers and at the end of the aerated step said biofilm carriers are transferred from the aerated chamber to the anaerobic chamber without significant transfer of water (see Sorensen para. 0025).
Regarding Claim 10:
Sorensen, as modified, teaches the method of claim 9, wherein said transfer is performed by a mechanical device (see Sorensen para. 0024).
Regarding Claim 11:
Sorensen, as modified, teaches the method of claim 1, wherein said oxygen is supplied in the form of air (see Sorensen para. 0018).
Regarding Claim 12:
Sorensen, as modified, teaches the method of claim 1, wherein the level of nitrite (N02) is detected (see Furuya para. 0046).
Regarding Claim 13:
Sorensen, as modified, teaches the method of claim 1, wherein the level of nitrate (NO3) is detected (see Furuya para. 0046).
Regarding Claim 14:
Sorensen, as modified, teaches the method of claim 1, wherein the level of nitrite (NO2) and nitrate (NO3) is detected (see Furuya para. 0046).
Regarding Claim 15:
Sorensen, as modified, teaches the method of claim 1, wherein the level of nitrite and/or nitrate is detected by one or more in-line sensors (nitrate meter 7) (see Furuya para. 0045).
Regarding Claim 18:
Sorensen, as modified, teaches the method of claim 16, wherein said increased or increasing or decreased or decreasing level of nitrite and/or nitrate is an increase or decrease relative to a nitrite and/or nitrate setpoint level (set target range) (see Furuya para. 0058-0061).
Regarding Claim 19:
Sorensen, as modified, teaches the method of claim 18, wherein said setpoint level of nitrite and/or nitrate is less than 5 mg/l (see Furuya para. 0059). Given that the prior art range of less than 5 mg/l fully encompasses the claimed range or 0.5 to 5mg/l a prima facie case of obviousness exists and one skilled in the art would have found it obvious to have a setpoint within the claimed range (see MPEP 2144.05)
Regarding Claim 20:
Sorensen, as modified, teaches the method of claim 1, wherein in aerated step (ii) there is a continuous supply of oxygen to the water (aeration can be performed continuously) (see Furuya para. 0057).
Regarding Claim 21:
Sorensen, as modified, teaches the method of claim 1, wherein said method achieves biological phosphorus removal from water such that there is a concentration of PO4-P of less than 0.5 mg/l (0.20 mg/l) (see Sorensen para. 0052).
Regarding Claim 22:
Sorensen, as modified, teaches the method of claim 1, wherein said method further comprises the removal of nitrogen in the form of ammonium from said water (see Sorensen para. 0027).
Regarding Claim 23:
Sorensen, as modified, teaches the method of claim 22, wherein said removal of nitrogen is by simultaneous nitrification-denitrification (SND) by microorganisms in the biofilm (see Sorensen para. 0027).
Regarding Claim 24:
Sorensen, as modified, teaches water treatment system (biological reactor) (see Sorensen para. 0024) configured to perform the method of claim 1 (see rejection of claim 1 above).
Claim(s) 16 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sorensen et al (US 2017/0158534) in view of Furuya et al (US 2014/0374346) as applied to claim 1 above, and further in view of Lemaire et al (US 2013/0256217).
Regarding Claim 16:
Sorensen, as modified, teaches the method of claim 1.
The combination does not teach said amount of oxygen supplied in aerated step (ii) is decreased by decreasing a DO-setpoint.
Lemaire teaches an amount of oxygen supplied in an aerated step is decreased by decreasing a DO setpoint ( new value of oxygen intake) (see para. 0066-69).
Sorensen, as modified by Furuya, are analogous inventions in the art of operating MBBRs. It would have been obvious to one skilled in the art to decrease the oxygen supplied in the aerated step of Lemaire (as modified by Furuya) by decreasing a DO setpoint, as disclosed by Lemaire because it limits oxygen consumption while ensuring a high level of elimination of ammonia (see Lemaire para. 0069) and it is desirable in Sorensen to remove ammonia (ammonium) (see para. 0026).
Regarding Claim 17:
Sorensen, as modified, teaches the method of claim 1.
The combination does not teach said amount of oxygen supplied in aerated step (ii) is increased by increasing a DO-setpoint .
Lemaire teaches an amount of oxygen supplied in an aerated step is increased by increasing a DO setpoint ( new value of oxygen intake) (see para. 0066-69).
Sorensen, as modified by Furuya, are analogous inventions in the art of operating MBBRs. It would have been obvious to one skilled in the art to increase the oxygen supplied in the aerated step of Lemaire (as modified by Furuya) by decreasing a DO setpoint, as disclosed by Lemaire because it limits oxygen consumption while ensuring a high level of elimination of ammonia (see Lemaire para. 0069) and it is desirable in Sorensen to remove ammonia (ammonium) (see para. 0026).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CLAIRE A NORRIS whose telephone number is (571)272-5133. The examiner can normally be reached M-Th 7:30-5 F: 8-12.
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/CLAIRE A NORRIS/Primary Examiner, Art Unit 1779 6/26/2026
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