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 .
Status of Claims
Claims 1-18 are pending in the present application with claims 1 and 10 being independent.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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 8 and 11 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.
Claim 8 recites the limitation "the stimulation means" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites the limitation "the calculations" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-18 are rejected under 35 U.S.C. §101 because the claimed invention is directed to product of nature and an abstract idea without significantly more:
Subject Matter Eligibility Criteria - Step 1:
Claims 1-9 are directed to an apparatus (i.e., a machine) and claims 10-18 are directed to a method (i.e., a process). Accordingly, claims 1-18 are all within at least one of the four statutory categories. 35 USC §101.
Subject Matter Eligibility Criteria - Alice/Mayo Test: Step 2A - Prong One:
Regarding Prong One of Step 2A of the Alice/Mayo test (which collectively includes the guidance in the January 7, 2019 Federal Register notice and the October 2019 and July 2024 updates issued by the USPTO as incorporated into the MPEP, as supported by relevant case law), the claim limitations are to be analyzed to determine whether, under their broadest reasonable interpretation, they “recite” a judicial exception or in other words whether a judicial exception is “set forth” or “described” in the claims. MPEP 2106.04(II)(A)(1).
When a law of nature or natural phenomenon is claimed as a physical product, the courts have often referred to the exception as a "product of nature." For example, the isolated DNA of Myriad and the primers of Ambry Genetics were described as products of nature by the courts. Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 580, 106 USPQ2d 1972, 1975 (2013); University of Utah Research Foundation v. Ambry Genetics, 774 F.3d 755, 758-59, 113 USPQ2d 1241, 1243 (Fed. Cir. 2014). As explained in those decisions, products of nature are considered to be an exception because they tie up the use of naturally occurring things, but they have been labeled as both laws of nature and natural phenomena. See Myriad Genetics, Inc., 569 U.S. at 590-91, 106 USPQ2d at 1979 (claims to isolated DNA held ineligible because they "claim naturally occurring phenomena" and are "squarely within the law of nature exception"); Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 76 USPQ 280, 281 (1948) (claims to bacterial mixtures held ineligible as "manifestations of laws of nature" and "phenomena of nature"). Step 2A of the Office’s eligibility analysis uses the terms "law of nature" and "natural phenomenon" as inclusive of "products of nature". MPEP 2106.04(b).
Where the claim is to a nature-based product in combination with non-nature based elements (e.g., a claim to "a yogurt starter kit comprising Lactobacillus in a container with instructions for culturing Lactobacillus with milk to produce yogurt"), the markedly different characteristics analysis should be applied only to the nature-based product limitation. For instance, for the yogurt starter kit example, the Lactobacillus would be analyzed for markedly different characteristics. The container and instructions would not be subject to the markedly different characteristics analysis as they are not nature-based products, but would be evaluated as additional elements in Prong Two (and Step 2B if needed) if it is determined that the Lactobacillus does not have markedly different characteristics from any naturally occurring counterpart and thus is a product of nature exception. See, e.g., Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 76 USPQ 280, 281 (1948) (although claims 7, 8, 13 and 14 recited an inoculant comprising a bacterial mixture and a powder base, only the bacterial mixture was analyzed). MPEP 2206.04(c)(I)(A)
An “abstract idea” judicial exception is subject matter that falls within at least one of the following groupings: a) certain methods of organizing human activity, b) mental processes, and/or c) mathematical concepts. MPEP 2106.04(a).
Representative independent claim 1 includes limitations that recite a product of nature and at least one abstract idea. Specifically, independent claim 1 recites:
Apparatus for implementing a computational system comprising:
- a colony of live microorganisms;
- a receptacle in which the microorganisms are able to be stimulated to cause a reaction or to modify their physiology or behaviour;
- monitoring apparatus to track the reaction or changes in the physiology or the behaviour of the microorganisms in response to stimulation; and
- processing circuitry to make calculations, including machine learning, based on or coupled with the reaction of the microorganisms, or their physiological or behavioural changes.
I) The Examiner submits that "a colony of live microorganisms" as underlined above recites a "product of nature" as set forth below.
Markedly Different Characteristics Analysis:
A) Selecting the Appropriate Counterpart:
The first step in the analysis is to select the appropriate counterpart(s) to the nature-based product. MPEP 2106.04(c)(II)(A). When the nature-based product is derived from a naturally occurring thing, then the naturally occurring thing is the counterpart. Id.
In this regard, the Examiner will assume naturally-occurring microorganisms such as any appropriate bacteria, virus, etc. (e.g., see top of page 2 of the specification).
B) Identifying Appropriate Characteristics For Analysis
The second step in the analysis is to identify appropriate characteristics to compare. MPEP 2106.04(c)(II)(B). Appropriate characteristics must be possessed by the claimed product, because it is the claim that must define the invention to be patented. Cf. Roslin, 750 F.3d at 1338, 110 USPQ2d at 1673 (unclaimed characteristics could not contribute to eligibility). Examiners can identify the characteristics possessed by the claimed product by looking at what is recited in the claim language and encompassed within the broadest reasonable interpretation of the nature-based product. In some claims, a characteristic may be explicitly recited. For example, in a claim to "deoxyribose", the recited chemical name informs those in the art of the structural characteristics of the product (i.e., the "deoxy" prefix indicates that a hydroxyl group has been removed as compared to ribose). In other claims, the characteristic may be apparent from the broadest reasonable interpretation even though it is not explicitly recited in the claim. For example, in a claim to "isolated gene B," the examiner would need to rely on the broadest reasonable interpretation of "isolated gene B" to determine what characteristics the isolated gene has, e.g., what its nucleotide sequence is, and what, if any, protein it encodes. Id. Appropriate characteristics can be expressed as the nature-based product’s structure, function, and/or other properties, and are evaluated on a case-by-case basis. Non-limiting examples of the types of characteristics considered by the courts when determining whether there is a marked difference include:
• Biological or pharmacological functions or activities;
• Chemical and physical properties;
• Phenotype, including functional and structural characteristics; and
• Structure and form, whether chemical, genetic or physical. Id.
In the present case, the Examiner will assume the appropriate characteristics for analysis include one or more of the above types of characteristics.
C) Evaluating Characteristics To Determine Whether They Are "Markedly Different"
The final step in the markedly different characteristics analysis is to compare the characteristics of the claimed nature-based product to its naturally occurring counterpart in its natural state, in order to determine whether the characteristics of the claimed product are markedly different. The courts have emphasized that to show a marked difference, a characteristic must be changed as compared to nature, and cannot be an inherent or innate characteristic of the naturally occurring counterpart or an incidental change in a characteristic of the naturally occurring counterpart. Myriad, 569 U.S. at 580, 106 USPQ2d at 1974-75. Thus, in order to be markedly different, the inventor must have caused the claimed product to possess at least one characteristic that is different from that of the counterpart. MPEP 2106.04(c)(II)(C).
In the present case, there is no indication in the claims (either explicitly or implicitly) that the characteristics of the claimed nature-based product (i.e., the recited colony of live organisms) are "markedly different" than those of its naturally occurring counterpart in its natural state (i.e., than any appropriate naturally-occurring bacteria, virus, etc.).
Accordingly, the claim recites at least one product of nature.
II) The Examiner submits that the remaining above underlined limitations recite at least one Abstract Idea as set forth below.
The remaining above underlined limitations recite “mental processes” because they are observations/evaluations/judgments/analyses that can, at the currently claimed high level of generality, be practically performed in the human mind (e.g., with pen and paper). For instance, a medical professional (e.g., microbiologist) could readily track the reaction or changes in the physiology/behavior of the microorganisms in response to stimulation (e.g., via reviewing a series of microscopic images and watching/thinking about the changes) and then make calculations (e.g., with pen and paper) based on or coupled with the reaction of the microorganisms, or their physiological/behavioral changes. These recitations, under their broadest reasonable interpretation, are similar to how the concepts of collecting information, analyzing it, and displaying certain results of the collection and analysis in the claims were characterized to be "mental processes" in Electric Power Group, LLC, v. Alstom (830 F.3d 1350, 119 USPQe2d 1739 (Fed. Cir. 2016)). MPEP 2106.04(a)(2)(III).
Accordingly, the claim recites at least one abstract idea.
Furthermore, dependent claims 3, 4, 11, 14, and 16-18 just further define the at least one judicial exception as set forth below:
-Claim 3 recites how the microorganisms are selected from bacteria, cyanobacteria, single cell flagellates, viruses, archaea, protists, and unicellular fungi which just further defines the "product of nature" discussed above.
-Claim 4 recites how the microorganisms are from the genus Euglena which just further defines the "product of nature" discussed above.
-Claim 11 calls for generating the output data driven by the computations of the microorganisms, intrinsic in their reactions or modifications which is practically performable in the human mind ("mental processes").
-Claim 14 recites how the monitoring includes visual location and tracking of the microorganisms prior to, during and after stimulation which is practically performable in the human mind ("mental processes").
-Claim 16 recites a training phase during which output data derived from reaction or modification of the microorganisms in response to the stimulation is gathered and may be used to adjust the stimulation pattern to improve the accuracy of output data in subsequent cycles of stimulation. A person can practically in their mind with pen and paper gather/review such output data and then determine appropriate adjustments to the stimulation pattern to improve the accuracy of the output data in later stimulation cycles ("mental processes").
-Claim 17 calls for deriving the stimulus from input data and/or to calculating the output data based on the reaction or modification which again is practically performable in the human mind with pen and paper at such claimed high level of generality ("mental processes").
-Claim 18 calls for deriving the stimulus from input data and/or calculating the output data based on the reaction or modification of the microorganisms which again is practically performable in the human mind with pen and paper at such claimed high level of generality ("mental processes").
Subject Matter Eligibility Criteria - Alice/Mayo Test: Step 2A - Prong Two:
Regarding Prong Two of Step 2A of the Alice/Mayo test, it must be determined whether the claim as a whole integrates the at least one judicial exception into a practical application. As noted at MPEP §2106.04(II)(A)(2), it must be determined whether any additional elements in the claim beyond the at least one judicial exception integrate the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception. The courts have indicated that additional elements such as merely using a computer to implement an judicial exception, adding insignificant extra solution activity, or generally linking use of a judicial exception to a particular technological environment or field of use do not integrate a judicial exception into a “practical application.” MPEP §2106.05(I)(A).
In the present case, the additional limitations beyond the above-noted at least one judicial exception recited in the claim are as follows (where the bolded portions are the “additional limitations” while the underlined portions continue to represent the at least one judicial exception):
Apparatus for implementing a computational system comprising (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f)):
- a colony of live microorganisms;
- a receptacle in which the microorganisms are able to be stimulated to cause a reaction or to modify their physiology or behaviour (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f));
- monitoring apparatus to (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f)) track the reaction or changes in the physiology or the behaviour of the microorganisms in response to stimulation; and
- processing circuitry to (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f)) make calculations, including machine learning (merely reciting the idea of a solution or outcome without reciting details of how a solution to a problem is accomplished, see MPEP § 2106.05(f)), based on or coupled with the reaction of the microorganisms, or their physiological or behavioural changes.
For the following reasons, the Examiner submits that the above-identified additional limitations, when considered as a whole with the limitations reciting the at least one abstract idea, do not integrate the above-noted at least one abstract idea into a practical application.
Regarding the additional limitations of the computational system including the receptacle, monitoring apparatus, and processing circuitry, the Examiner submits that these limitations amount to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)).
Regarding the additional limitations of the machine learning, the Examiner submits that this limitation amounts to merely reciting the idea of a solution or outcome without reciting details of how a solution to a problem is accomplished which is equivalent to the words “apply it” (see MPEP § 2106.05(f)). Claims that do no more than apply established methods of machine learning to a new data environment are not patent eligible. Recentive Analytics, Inc. v. Fox Corp., Fox Broadcasting Company, LLC, Fox Sports Productions, LLC, Case No. 23-2437, (Fed. Cir. 2025), pp. 10, 14. An abstract idea does not become nonabstract by limiting the invention to a particular field of use or technological environment. Id.
Regarding stimulating the colony of live microorganisms with a stimulus whose pattern is derived from input data, or allowing the stimulation of the colony of live microorganisms with an external stimulus (independent claim 10), the Examiner submits that this limitation amounts to merely reciting the idea of a solution or outcome without reciting details of how a solution to a problem is accomplished which is equivalent to the words “apply it” (see MPEP § 2106.05(f)).
Thus, taken alone, the additional elements do not integrate the at least one abstract idea into a practical application. Furthermore, looking at the additional limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. MPEP §2106.05(I)(A) and §2106.04(II)(A)(2).
For these reasons, representative independent claim 1 and analogous independent claim 10 do not recite additional elements that integrate the judicial exception into a practical application. Accordingly, representative independent claim 1 and analogous independent claim 10 are directed to at least one judicial exception.
The remaining dependent claim limitations not addressed above fail to integrate the at least one judicial exception into a practical application as set forth below:
-Claim 2 recites a stimulation apparatus to stimulate the microorganisms within the receptacle which amounts to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)).
-Claim 5 recites how the receptacle is a petri-dish or other substantially flat plate on or in which the microorganisms can react or be otherwise modified which does no more than generally link use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 6 recites how the recites how the stimulus is in the form of light which does no more than generally link use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 7 recites how the light stimulus can vary in one or more of the following characteristics: light intensity, wavelength, pattern and duration. This limitation amounts to merely reciting the idea of a solution or outcome without reciting details of how a solution to a problem is accomplished which is equivalent to the words “apply it” (see MPEP § 2106.05(f)).
-Claim 8 recites how the stimulation means includes a display screen located adjacent the microorganisms which amounts to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)) and generally linking use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 9 recites how the monitoring apparatus includes one or more of a microscope, camera and image processing software to track reaction or modification of the microorganisms which amounts to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)) and generally linking use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 11 recites processing circuitry which amounts to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)).
-Claim 12 recites how the method involves particle swarm optimization which just amounts to generally linking use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 13 recites how the stimulation involves providing an input pattern of stimulation to the microorganisms for a defined time period which amounts to merely reciting the idea of a solution or outcome without reciting details of how a solution to a problem is accomplished which is equivalent to the words “apply it” (see MPEP § 2106.05(f)).
-Claim 15 recites how the microorganisms are located in a receptacle that maintains their viability and permits their reaction, behavioural change or physiological change in response to stimulation as well as allowing monitoring of their reaction, behavioural change or physiological change which amounts to merely using machinery as a tool performing its typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)) and generally linking use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 18 recites a computer program comprising computer software code run on a processing system for carrying out the method which amounts to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)).
When the above additional limitations are considered as a whole along with the limitations directed to the at least one judicial exception, the at least one judicial exception is not integrated into a practical application. Therefore, the claims are directed to at least one judicial exception.
Subject Matter Eligibility Criteria - Alice/Mayo Test: Step 2B:
Regarding Step 2B of the Alice/Mayo test, representative independent claim 1 does not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the at least one judicial exception for reasons the same as those discussed above with respect to determining that the claim does not integrate the at least one judicial exception into a practical application.
Regarding the additional limitations of the computational system including the receptacle, monitoring apparatus, and processing circuitry, the Examiner submits that these limitations amount to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)).
Regarding the additional limitations of the machine learning, the Examiner submits that this limitation amounts to merely reciting the idea of a solution or outcome without reciting details of how a solution to a problem is accomplished which is equivalent to the words “apply it” (see MPEP § 2106.05(f)). Claims that do no more than apply established methods of machine learning to a new data environment are not patent eligible. Recentive Analytics, Inc. v. Fox Corp., Fox Broadcasting Company, LLC, Fox Sports Productions, LLC, Case No. 23-2437, (Fed. Cir. 2025), pp. 10, 14. An abstract idea does not become nonabstract by limiting the invention to a particular field of use or technological environment. Id.
Regarding stimulating the colony of live microorganisms with a stimulus whose pattern is derived from input data, or allowing the stimulation of the colony of live microorganisms with an external stimulus (independent claim 10), the Examiner submits that this limitation amounts to merely reciting the idea of a solution or outcome without reciting details of how a solution to a problem is accomplished which is equivalent to the words “apply it” (see MPEP § 2106.05(f)).
The dependent claims also do not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exception for reasons the same as those discussed above with respect to determining that the dependent claims do not integrate the at least one abstract idea into a practical application.
-Claim 2 recites a stimulation apparatus to stimulate the microorganisms within the receptacle which amounts to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)).
-Claim 5 recites how the receptacle is a petri-dish or other substantially flat plate on or in which the microorganisms can react or be otherwise modified which does no more than generally link use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 6 recites how the recites how the stimulus is in the form of light which does no more than generally link use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 7 recites how the light stimulus can vary in one or more of the following characteristics: light intensity, wavelength, pattern and duration. This limitation amounts to merely reciting the idea of a solution or outcome without reciting details of how a solution to a problem is accomplished which is equivalent to the words “apply it” (see MPEP § 2106.05(f)).
-Claim 8 recites how the stimulation means includes a display screen located adjacent the microorganisms which amounts to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)) and generally linking use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 9 recites how the monitoring apparatus includes one or more of a microscope, camera and image processing software to track reaction or modification of the microorganisms which amounts to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)) and generally linking use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 11 recites processing circuitry which amounts to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)).
-Claim 12 recites how the method involves particle swarm optimization which just amounts to generally linking use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 13 recites how the stimulation involves providing an input pattern of stimulation to the microorganisms for a defined time period which amounts to merely reciting the idea of a solution or outcome without reciting details of how a solution to a problem is accomplished which is equivalent to the words “apply it” (see MPEP § 2106.05(f)).
-Claim 15 recites how the microorganisms are located in a receptacle that maintains their viability and permits their reaction, behavioural change or physiological change in response to stimulation as well as allowing monitoring of their reaction, behavioural change or physiological change which amounts to merely using machinery as a tool performing its typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)) and generally linking use of the judicial exception to a particular technological environment or field of use without adding an inventive concept to the judicial exception or altering how the judicial exception is carried out (see MPEP § 2106.05(h)).
-Claim 18 recites a computer program comprising computer software code run on a processing system for carrying out the method which amounts to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one judicial exception (see MPEP § 2106.05(f)).
Therefore, claims 1-18 are ineligible under 35 USC §101.
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.
Claims 1-11 and 13-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by NPL "Euglena-based neurocomputing with two-dimensional optical feedback on swimming cells in micro-aquariums" to Ozasa et al. ("Ozasa"):
Regarding claim 1, Ozasa discloses apparatus for implementing a computational system (Figure 1 on page 528) comprising:
a colony of live microorganisms (Euglena cells per Figure 1 and section 2.1);
a receptacle (micro-aquarium including cover glass and dish per Figure 1 and section 2.1) in which the microorganisms are able to be stimulated to cause a reaction or to modify their physiology or behaviour (blue-light intensity used to induce/stimulate photoreaction of Euglena per section 2.1);
monitoring apparatus to track the reaction or changes in the physiology or the behaviour of the microorganisms in response to stimulation (optical microscope/video camera per section 2.1); and
processing circuitry (the PC per section 2.1) to make calculations, including machine learning, based on or coupled with the reaction of the microorganisms, or their physiological or behavioural changes (the PC processes images (which capture the photoreaction of the Euglena cells) into input/output signals used in neurocomputing (a form of ML) which involves making calculations per sections 2.1-2.2).
Regarding claim 2, Ozasa discloses the apparatus as claimed in claim 1, further including a stimulation apparatus to stimulate the microorganisms within the receptacle (LC projector per Figure 1 and section 2.1).
Regarding claim 3, Ozasa discloses the apparatus as claimed in claim 1, further including wherein the microorganisms are selected from bacteria, cyanobacteria, single cell flagellates, viruses, archaea, protists, and unicellular fungi (the Euglena cells per section 2.1 is a single celled flagellate).
Regarding claim 4, Ozasa discloses the apparatus as claimed in claim 1, further including wherein the microorganisms are from the genus Euglena (Euglena per section 2.1).
Regarding claim 5, Ozasa discloses the apparatus as claimed in claim 1, further including wherein the receptacle is a petri-dish or other substantially flat plate on or in which the microorganisms can react or be otherwise modified (dish/plate in Figure 1 and section 2.1).
Regarding claim 6, Ozasa discloses the apparatus as claimed in claim 1, further including wherein the stimulus is in the form of light (light per section 2.1).
Regarding claim 7, Ozasa discloses the apparatus as claimed in claim 6, further including wherein the light stimulus can vary, in one or more of the following characteristics: light intensity, wavelength, pattern and duration (the end of section 2.1 discusses changing the light intensity).
Regarding claim 8, Ozasa discloses the apparatus as claimed in claim 2, further including wherein the stimulation means comprises a display screen located adjacent the microorganisms (the LC projector of Figure 1 and section 2.1 necessarily includes an LCD panel for projecting light patterns onto the micro-aquarium).
Regarding claim 9, Ozasa discloses the apparatus as claimed in claim 1, in which the monitoring apparatus includes one or more of a microscope (microscope per section 2.1), camera (video camera per section 2.1) and image processing software to track reaction or modification of the microorganisms (image-processing per section 2.1).
Regarding claim 10, Ozasa discloses a method of implementing a computational system (Abstract, Figure 1, and section 2.1 discloses/illustrates a computational system) comprising:
stimulating a colony of live microorganisms with a stimulus whose pattern is derived from input data, or allowing the stimulation of a colony of live microorganisms with an external stimulus (Figure 1 and section 2.1 illustrate/disclose inducing/stimulating a photoreaction in Euglena cells with light );
monitoring the reaction or modification of the microorganisms in response to that stimulation (Abstract, Figure 6, and second 2.3 discuss monitoring temporal changes in trace momentum according to photophobic reactions of Euglena); and
deriving output data based on the reaction or modification (Abstract, sections 2.2 and 3.4, and Figure 2 discuss/illustrate output signals/data based on the photoreaction).
Regarding claim 11, Ozasa discloses the method as claimed in claim 10, in which the calculations are carried out on processing circuitry to generate the output data driven by the computations of the microorganisms, intrinsic in their reactions or modifications (section 2.2 discusses a neurocomputing algorithm (e.g., carried out by PC/processing circuitry of section 2.1) that performs calculations to generate output data based on computations of trace momentum of Euglena cells (intrinsic in reactions/modifications of Euglena cells)).
Regarding claim 13, Ozasa discloses the method as claimed in claim 10, in which the stimulation involves providing an input pattern of stimulation to the microorganisms for a defined time period (section 2.1 discloses an input pattern of light projected onto the micro-aquarium of Euglena cells, while section 1 discloses how the stimuli can be "time-variant" (which corresponds to some defined time period); also, note how Figure 15 illustrates an illumination intensity for fixed on/off time periods)
Regarding claim 14, Ozasa discloses the method as claimed in claim 10, in which monitoring includes visual location and tracking of the microorganisms prior to, during and after stimulation (sections 2.1, 2.3, 3.1-3.4, and Figures 13-15 disclose/illustrate observing/monitoring/visual location tracking of movements of Euglena cells before/during/after illumination/stimulation).
Regarding claim 15, Ozasa discloses the method as claimed in claim 10, in which the microorganisms are located in a receptacle that maintains their viability and permits their reaction, behavioural change or physiological change in response to stimulation as well as allowing monitoring of their reaction, behavioural change or physiological change (the Euglena cells are located in a micro-aquarium including a dish whereby their photoreaction is monitored in response to illumination/stimulation per Figures 1-2 and section 2.1).
Regarding claim 16, Ozasa discloses the method as claimed in claim 10, in which there is a training phase during which output data derived from reaction or modification of the microorganisms in response to the stimulation is gathered and may be used to adjust the stimulation pattern to improve the accuracy of output data in subsequent cycles of stimulation (Figure 6 illustrates how trace momentum evaluation (output data from photoreaction of the Euglena cells) is obtained/gathered leading to parameter adjustment which leads to generation of illumination signal, where the illumination signal pattern is adjusted as it is based on the adjusted parameters as shown in Figure 6 in a cyclical pattern).
Regarding claim 17, Ozasa discloses the method as claimed in claim 10, the system being configured to derive the stimulus from input data and/or to calculate the output data based on the reaction or modification (section 2.2 discloses calculating output data based on the photoreactions of the Euglena cells).
Regarding claim 18, Ozasa discloses a computer program comprising computer software code for implementing a method as claimed in claim 10 (the PC in section 2.1 necessarily executes a computer program including software code for implementing the above method), the code being configured to derive the stimulus from input data and/or to calculate the output data based on the reaction or modification of the microorganisms (section 2.2 discloses calculating output data based on the photoreactions of the Euglena cells) when the program is run on a data processing system (Figure 1 illustrates a data processing system).
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior 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 following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
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 12 is rejected under 35 U.S.C. 103 as being unpatentable over NPL "Euglena-based neurocomputing with two-dimensional optical feedback on swimming cells in micro-aquariums" to Ozasa et al. ("Ozasa") in view of NPL "A Fast Bacterial Swarming Algorithm For High-dimensional Function Optimization" to Chu et al. ("Chu"):
Regarding claim 12, Ozasa discloses the method of claim 10, in which the method involves … optimization (the Abstract and section 4.4 discloses neurocomputing of combinatorial optimization).
However, Ozasa might be silent regarding such optimization specifically being particle swarm optimization.
Nevertheless, Chu teaches (page 1) that it was known in the healthcare informatics art to utilize PSO when analyzing the behavior of bacteria as doing so reduces computational load.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the method of Ozasa to utilize PSO as taught by Chu to advantageously reduce computational load during the analysis. A person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention and there would have been a reasonable expectation of success in doing so. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). Furthermore, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. Id.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
NPL " Amoeba-based computing for traveling salesman problem: Long-term correlations between spatially separated individual cells of Physarum polycephalum" discloses a series of control experiments using two individual cells (two single-celled organisms) to perform parallel searches in the absence of intercellular communication. It was found that an amoeba-based computer (ABC) drastically lost its ability to find a solution when it used two independent individuals. However, interestingly, when two individuals were prepared by dividing one individual, they found a solution for a few tens of minutes. That is, the two divided individuals remained correlated even though they were spatially separated. These results suggest the presence of a long-term memory in the intrinsic dynamics of this organism and its significance in performing sophisticated computing.
NPL "Remarkable problem-solving ability of unicellular amoeboid organism and its mechanism" discloses that the time taken by a unicellular plasmodium to find a reasonably high-quality travelling salesman problem (TSP) solution grows linearly as the problem size increases from four to eight. Interestingly, the quality of the solution does not degrade despite the explosive expansion of the search space. Formulating a computational model, it is shown that the linear-time solution can be achieved if the intrinsic dynamics could allocate intracellular resources to grow the plasmodium terminals with a constant rate, even while responding to the stimuli. These results may lead to the development of novel analogue computers enabling approximate solutions of complex optimization problems in linear time.
US 2011/0233046 discloses a method, a system, an arrangement, and a computer-accessible medium and device to stimulate individual neurons in brain slices in any arbitrary spatio-temporal pattern, using two-photon uncaging of photo-sensitive compounds such as MNI-glutamate and/or RuBi-Glutamate with beam multiplexing. Such exemplary method and device can have single-cell and three-dimensional precision. For example, by sequentially stimulating up to a thousand potential presynaptic neurons, it is possible to generate detailed functional maps of inputs to a cell. In addition, it is possible to combine this exemplary approach with two-photon calcium imaging in an all-optical method to image and manipulate circuit activity. Further exemplary embodiments of the present disclosure can include a light-weight, compact portable device providing for uses in a wide variety of applications.
US 2023/0107066 discloses a microelectronic sensor for non-invasive and label-free chemical detection and biomolecular diagnostics of analytes in a raw sample (without pre-treatment and without purification) is described in the present invention. The sensor comprises a microelectronic chip and a sample collection system attached to said microelectronic chip or incorporating said microelectronic chip. The sample collection system may be a sampling swab attached to the microelectronic chip or a breathalyser tube incorporating the microelectronic chip. The microelectronic chip contains a nanoarray of metamolecules configured to detect and transmit signals through the sample in a THz frequency range, and an integrated circuit for storing and processing signals in a THz frequency domain, and for modulating and demodulating radio-frequency (RF) signals. The metamolecules are composed of split-ring resonators and a wave container or a wave bouncer confining or bouncing waves received from the split-ring resonators, and further exciting a dark mode in the split-ring resonators.
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/JONATHON A. SZUMNY/Primary Examiner, Art Unit 3686
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