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 1-30); and species A: (1) wherein the CO2-containing medium is a CO2-containing gas; B: (1) the photobioreactor of claim 1; C: (3) wherein the photobioreactor is a closed reactor comprising a plurality of upwardly open reactor containers which are closed by a single-part, top wall of the photobioreactor and in which a nutrient medium can be accommodated; D: (1)(i) wherein at least one lighting element is positioned in the gap between adjacent reactor containers, by means of which lighting element light can be emitted through the respectively associated front and rear wall, which is of light-permeable design at least in regions, into one of the two adjacent reactor containers; E: (1) wherein at least one of the reactor container has at least one feeding device by means of which a CO2-containing medium can be introduced from outside the reactor container into at least one reactor container; F: (1) wherein a pulsing device is provided by means of which the CO2 and the CO2-containing gas can be introduced intermittently into the at least one reactor container in such a way that individual gas bubbles with a size of less than 3 cm can be introduced into the at least one reactor container; G: (2) wherein the overflow wall region formed in one or more parts is formed by a separate component which can be connected to the front wall and the rear wall of the two adjacent reactor containers; H: (1) wherein an inlet for the nutrient medium is provided at the front reactor container in the longitudinal direction in the wall selected from the group consisting of the top wall and the front wall and the side wall of the front reactor container in the longitudinal direction; I: (1) wherein an outlet for the nutrient medium is provided at the rearmost reactor container in the longitudinal direction, in the wall selected from the group consisting of the top wall and the rear wall and the side wall of the rearmost reactor container in the longitudinal direction; J: (1) wherein the front wall of the foremost reactor container in longitudinal direction has a first wall and plate-like bridging element which extends up to and adjoins the top wall; K: (1) wherein the rear wall of the rearmost reactor container in the longitudinal direction has a second wall-like and plate-like bridging element which extends to the top wall and is adjacent thereto, in the reply filed on 02/04/2026 is acknowledged.
Claims 1-13 & 16-28 are being examined.
Claim Objections
Claims 7 and 12 are objected to under 37 CFR 1.75(c) as being in improper form because a multiple dependent claim 7. See MPEP § 608.01(n). Accordingly, the claim 12 has not been further treated on the merits.
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.
Claims 1-11, 13 & 16-28 are 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.
Claims 1, 4-8, 16, 20, 26 are not clear with respect to what applicant is claiming. The claims do not clearly set forth the metes and bounds of the patent protection desired. The claims are indefinite reciting the phrase “can be [...]”, because the claims appear to include elements following the phrase, which are unclear as to if they are part of the claimed invention, making the scope of the claims unascertainable. In addition, claim 6 is unclear reciting “wherein it is optionally provided that the CO2 free solvent can be withdrawn [...]” because the limitation includes an optional element. Further, claims 6 and 17 are unclear reciting “it”. For the reasons given above, dependent claims are similarly unclear.
Claim 3 is unclear reciting “wherein the photobioreactor is part of a biogas plant”, because it is unclear what structural element is being claimed as the biogas plant is not a positive element of the claim.
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 (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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-11, 13 & 16-28 is/are rejected under 35 U.S.C. 102a1/a2 as being anticipated by Cathcart (US 2011/0027875).
Regarding claim 1, Cathcart teaches:
1. Photobioreactor (Abstract+), wherein said photobioreactor is a closed reactor (see Figs. 2, 13 for example) comprising:
a plurality of upwardly open reactor containers which are closed by a single-part, top wall of the photobioreactor (see Fig. 2 for example),
wherein at least a part of the reactor containers is an individual container which has a U-shaped cross section with a front wall extending in the direction of a vertical axis and a rear wall spaced apart therefrom in a longitudinal direction and likewise extending in the direction of the vertical axis, which rear walls are connected to one another at a bottom by a bottom wall so that the reactor containers of the photobioreactor, are individual containers arranged one behind the other in the longitudinal direction so that a reactor container at the front adjoins a front wall of a reactor container at the rear forming a gap therebetween (see Figs. 1-2 for example);
wherein the free end regions of the front and rear walls adjoining one another with the formation of the gap have a common overflow wall region which closes the gap from above with respect to the vertical axis direction and which has at least one container overflow opening between the adjoining reactor containers (see Fig. 5 for example);
that the overflow wall region extends up to and adjoins the at least one top wall (see Fig. 5 for example),
wherein at least one lighting element is positioned in the gap between adjacent reactor containers (see ¶ 0012 for example);
wherein a partition is provided in each of the individual reactor containers so that said partition extends from the bottom wall upwardly in the vertical axis direction to adjoin the top wall, so that the partition divides the reactor container in the longitudinal direction, into a front reactor chamber and a rear reactor chamber (see Figs. 1-2 for example);
wherein the bottom wall side adjoining the region of the partition to the bottom wall, so that at least one partition-through-flow opening is provided between the front and the rear reactor chamber (see Figs. 1-2 for example);
wherein at least one of the reactor container has at least one feeding device (e.g., one of three input ports ¶ 0032).
With regard to limitations in claims 1-8, 16, 19-21, 24-27 (e.g., in which a nutrient medium can be accommodated by means of which lighting element light can be emitted [...], etc.), these claim limitations are considered process or intended use limitations, which do not further delineate the structure of the claimed apparatus from that of the prior art. The cited prior art teaches all of the positively recited structure of the claimed apparatus. The Courts have held that a statement of intended use in an apparatus claim fails to distinguish over a prior art apparatus. See In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962). The Courts have held that the manner of operating an apparatus does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex Parte Masham, 2 USPQ2d 1647 (BPAI 1987). The Courts have held that apparatus claims must be structurally distinguishable from the prior art in terms of structure, not function. See In re Danley, 120 USPQ 528, 531 (CCPA 1959); and Hewlett-Packard Co. V. Bausch and Lomb, Inc., 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (see MPEP §§ 2114 and 2173.05(g)).
Regarding claims 9-11, 13, 17, 18, 22-24, 28, Cathcart teaches:
9. Photobioreactor according to claim 1, wherein, the bottom wall, the partition, the front wall, the rear wall and the overflow wall region of the reactor container, wherein the bottom wall is curved in the form of an arc, extending between two opposing side walls in the transverse direction and adjoin the opposing side walls, and wherein the side walls each extend up to and adjoin the top wall (see Figs. 1-2 for example).
10. Photobioreactor according to claim 9, wherein the bottom wall of the reactor container is curved in the shape of an arc, the apex of the curvature being located at the lowest point of the reactor container in the direction of the vertical axis, and wherein the opposite side walls extend downwardly in the vertical axis direction at least as far as the apex of the bottom wall and form a bottom contact surface (see Figs. 1-2 for example).
11. Photobioreactor according to claim 9, wherein each individual reactor container has two separate opposite side walls (see Figs. 1-2 for example).
13. Photobioreactor according to claim 1, wherein the front wall and the rear wall and the partition and the overflow wall region and the side walls have a shape selected from the group consisting of rectangular and plate-shaped (see Figs. 1-2 for example).
17. Photobioreactor according to claim 1, wherein the overflow wall region has a peripheral frame with a container overflow opening surrounded by the frame (see Figs. 1-2 for example).
18. Photobioreactor according to claim 1, wherein the overflow wall region has at least one flow guide element projecting into the container overflow opening and several container overflow openings lying next to one another in the transverse direction (see Figs. 2, 5 for example).
22. Photobioreactor according to claim 1, wherein the partition in the bottom wall side wall region has a peripheral frame region with a partition-through-flow opening surrounded by the frame region, wherein a lower frame part region in the vertical axis direction adjoins the bottom wall (see Figs. 1, 5 for example).
23. Photobioreactor according to claim 1, wherein the partition has at least one flow guide element projecting into the partition-through-flow opening and a plurality of partition-through-flow openings, lying next to one another in the transverse direction (see Figs. 2, 5 for example).
24. Photobioreactor according to claim 1, wherein at least one or at least part of the reactor containers has at least one feed nozzle (e.g., one of three input ports ¶ 0032).
28. Photobioreactor according to claim 1, wherein all reactor containers have an identical U-shaped basic structure with a front wall and a rear wall of substantially the same height, both of which have a gap distance to the top wall and both of which are surmounted by the partition extending up to and adjoining the top wall; wherein the gap distance to the top wall in the adjacent region of two reactor containers is bridged by the overflow wall region which extends to the top wall and is adjacent thereto; wherein the front wall of the foremost reactor container in longitudinal direction has a first wall and plate-like bridging element which extends up to and adjoins the top wall; wherein the rear wall of the rearmost reactor container in the longitudinal direction has a second wall-like and plate-like bridging element which extends to the top wall and is adjacent thereto; and wherein the first and second wall and plate-like bridging element as well as all existing front walls, partitions and rear walls as well as the at least one overflow wall region extend in trans verse direction between the side walls likewise extending up to the top wall and adjoin there, so that a closed reactor is formed when the top wall mounted (see Figs. 1-2 for example).
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 conflicting claims 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) 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 www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-11, 13 & 16-28 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 6-12, 14-16, 18-28, 30-31 of U.S. Patent No. 12,305,151. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are a broader version of the ‘151 and are therefore fully encompassed (see the claim interpretation above).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEAN KWAK whose telephone number is (571)270-7072. The examiner can normally be reached M-TH, 4:30 am - 2:30 pm EST.
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/DEAN KWAK/Primary Examiner, Art Unit 1798
DEAN KWAK
Primary Examiner
Art Unit 1798