DETAILED ACTION
Status of claim rejections
The objections to the specification are withdrawn in view of Applicant’s filing of a substitute specification in the response filed 03/11/2026.
The objections to the drawings are withdrawn in view of Applicant’s filing of a replacement drawing sheet in the response filed 03/11/2026.
The objections to the claims are withdrawn in view of Applicant’s amendments to the claims in the response filed 03/11/2026.
The rejections of record under 35 USC 112(b) are withdrawn in view of Applicant’s amendments in the response filed 03/11/2026.
The rejections of record under 35 USC 103 are modified in view of Applicant’s amendments in the response filed 03/11/2026.
Modified 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.
First rejection
Claims 1-5, 7-9, 11, 13, 15-17, 20, 23, and 32-35 are rejected under 35 U.S.C. 103 as obvious over Ju (WO200029604, in IDS filed 06/30/2023’ prior art of record) in view of Shetty et al (WO2014089436A1; cited in IDS filed 06/30/2023; hereinafter “Shetty”; prior art of record) as evidenced by Hahnke et al. (An improved medium for the anaerobic growth of Paracoccus denitrificans Pd1222. Front Microbiol. 2014 Jan 31;5:18; hereinafter “Hahnke”; previously cited prior art of record).
Ju teaches processes of culturing microorganisms in culture mediums under denitrifying anaerobic conditions (as in claim 1), including the addition of nitrate sources like nitric acid and nitrous acid as alternative oxidant source (as in claim 1) that acts as the final electron acceptor (as in claim 1) in the cellular respiratory chain (see claim 1, 4, 17-19; see pg. 9, pg. 13 paragraph 3, and pg. 14). Ju also teaches that the pH of the culture medium is maintained in an optimal pH range (as in claim 1), which is dependent on the species of microorganism chosen; the pH of the working volume was maintained at 6.5 + or - 0.1 by automatic pH control (see pg. 19, paragraph 4).
Ju does not explicitly teach adding nitric acid or nitrous acid two or more times or that the microorganisms are grown to a cell density of at least 3 g cell dry weight and that the nitric acid and/or nitrous acid provides at least 90% of the nitrate to the culture (as in claim 1).
However, Shetty teaches culturing of methylotrophic microorganisms, including P. denitrificans, under anaerobic conditions (see abstract; see paragraph 0213-0215). Shetty specifically teaches that nitrate sources can be added under batch or continuous culturing conditions, where appropriate amount of nitrate sources can be added to a culture to achieve a desired increase in biomass using lower or higher concentrations, as desired, so long as the amount added provides a sufficient amount of electron acceptor for the desired increase in biomass (see paragraph 0215). Shetty also teaches growth of cell biomass to high cell density such as E. coli at biomass concentrations of 50 gDCW L-1 are attainable and about 10 gDCW L-1 for Paracoccus (i.e., at least 3 g DCW L-1 as in claim 1; see paragraph 0261 and 0276) and that desired density of the biomass (i.e., density of the cells in the culture) can be achieved by, e.g., varying the amount of nutrients (like nitrate sources) during culture (see paragraph 0215).
While Shetty does not explicitly teach adding nitric acid/nitrous acid two or more times or that it provides at least 90% of the nitrate to the culture, the amount of nitrate source added to the culture medium would have been a matter of routine experimentation using standard laboratory techniques available at the time of filing (see MPEP 2144.05) because Shetty explicitly teaches that amount of nitrate sources can be added to a culture to achieve a desired increase in biomass via lower or higher concentrations and to provide a sufficient amount of electron acceptor.
Therefore, it would have been prima facie obvious to one of ordinary skill at the time of filing to modify the method of anaerobic denitrifying culture as taught by Ju by optimizing the amount of nitrates added to the culture medium as taught by Shetty to arrive at the claimed invention. One of ordinary skill would have been motivated to make the modification because Shetty explicitly teaches that the amount of nitrates in a culture medium can be advantageously optimized to achieve a desired increase in biomass.
Regarding claim 2, Ju teaches using various facultative aerobic bacteria, including P. denitrificans (see claim 3-4, see also pg. 11, paragraph 1).
Regarding claim 3-5, Shetty teaches the amount of nitrate sources can be added during continuous culture and at amounts desired (i.e., at high and low concentrations) to achieve a desired increase in biomass via lower or higher concentrations and to provide a sufficient amount of electron acceptor. As such, the addition of nitric acid/nitrous acid ten or more times (see instant claim 3), added continuously (as in claim 4) and at amounts greater than or equal to 2M (as in claim 5) would have been a matter of routine experimentation using standard laboratory techniques available at the time of filing (see MPEP 2144.05) for the same reasons as set forth above.
Regarding claim 7-9 and 32, Ju teaches that the pH of the culture medium is maintained in an optimal pH range (as in claim 7), which is dependent on the species of microorganism chosen; the pH of the working volume was maintained at 6.5 + or - 0.1 pH units by automatic pH control (as in claim 7-9; see pg. 19, paragraph 4).
Regarding claim 11, Ju teaches use of nitrate salt in the initial starting culture (see pg. 19, paragraph 5).
Regarding claim 13, Ju teaches incubation and culture for 500 hours (i.e., at least 50, 100, 200, or 300 hours as claimed; see pg. 19, paragraph 5).
Regarding claim 15, Shetty teaches growth of cell biomass to high cell density such as E. coli at biomass concentrations of 50 gDCW L-1 are attainable and about 10 gDCW L-1 for Paracoccus (i.e., at least 10 gDCW L-1; see paragraph 0261 and 0276) and that desired density of the biomass (i.e., density of the cells in the culture) can be achieved by, e.g., varying the amount of nutrients (like nitrate sources) during culture (see paragraph 0215).
Regarding claim 16, Shetty teaches using between 0 and 100 mM sodium nitrate (see paragraph 0018, 0208, and 0241), in which the claimed salt concentration being less than 100 mM lies within. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (see MPEP 2144.05).
Regarding claim 17 and 34, Ju and Shetty teach P. denitrificans, which is a heterotrophic microorganism as well as use of carbon sources (see abstract, claim 2-3 and see claim 15 of Ju; see para 216 of Shetty) including sugars such as glucose, xylose, arabinose, galactose, mannose, fructose and starch, and low molecular weight organic acids such as malate, acetate, pyruvate and the like (see pg. 12-13 of Ju).
Regarding claim 20, Ju teaches use of carbon source in the medium (see abstract; pg. 2-3).
Regarding claim 23, Ju and Shetty teach using batch or continuous culture (see pg. 10 of Ju; paragraph 0020, 0210, and 0263 of Shetty).
Regarding claim 33, Ju teaches the optimal pH for the microorganism (P. aeruginosa) is optimally from about 6 to about 7, more preferably between about 6.5 to about 6.8. Hankhe further evidences that P.denitrificans grows aerobically with maximum growth rate at pH 7.6 (see pg. 1, col 2). As, e.g., the P. nitrificans of Shetty is the same microorganism as claimed, absent evidence to the contrary, its optimal pH is between 7-8 as instantly claimed. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. (see MPEP 2112.01).
Regarding claim 35, Shetty teaches addition of trace elements such as molybdenum, boron, copper, zinc, manganese, and other trace metals (see para 00235). it would have been prima facie obvious to add the carbon source and trace elements separately as instantly claimed. Doing so would have been a matter of routine experimentation using standard laboratory techniques available at the time of filing (see MPEP 2144.05).
Accordingly, the claimed invention was anticipated by the teachings of Ju, especially in the absence of evidence to the contrary.
Response to Arguments
Applicant's arguments filed 03/11/2026 have been fully considered but they are not persuasive.
On pg. 11-14 of the remarks, Applicant argues the art fails to render the claims obvious. Applicant argues that the claims are limited to cell densities of 3 g CDW and the addition of nitrate/nitric acid to provide at least 90% of nitrate to the culture. Applicant argues Ju does not teach these features because Ju teaches using P. aeruginosa and only up to 2.6 g DCW was achieved under aerobic conditions after 160 hours, and a maximum of 2.8g DCW after over 200 hours of culture, etc., such that Ju fails to teach a culture which achieved high cell density despite growth for several hundred hours. Applicant argues the method as claimed demonstrates over 15-20 g DCW in cultures lasting for 50-70 hours, densities 10x higher than that of Ju, contributed by the addition of nitric acid and nitrous acid to provide electron acceptors for respiratory metabolism. Applicant argues that Ju’s use of nitrate sources are intended to increase cell concentration but is only achieved to a maximum of 2.8 g DCW. Applicant argues that it’s not obvious to use nitirc acid/nitrous to both maintain pH and provide an electron acceptor or that such a result would achieve high cell density, because even though Ju teaches use as an electron acceptor it is silent to use as a pH controller.
In response, the examiner disagrees. First, the 2.8 g DCW as achieved by Ju is close to Applicant’s claimed 3g DCW. MPEP 2144.05 states “a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985)”. Second, while Ju achieves a maximum 2.8 g DCW, Ju also explicitly teaches the pH of the culture medium is maintained in an optimal pH range (as in claim 1), which is dependent on the species of microorganism chosen (see above. Furthermore, Shetty specifically teaches that nitrate sources can be added under batch or continuous culturing conditions, where appropriate amount of nitrate sources can be added to a culture to achieve a desired increase in biomass using lower or higher concentrations, as desired, so long as the amount added provides a sufficient amount of electron acceptor for the desired increase in biomass (see paragraph 0215). As such, the g DCW/ density of the resulting cells are, absent evidence to the contrary, a matter of routine experimentation using standard laboratory techniques available at the time of filing (see MPEP 2144.05).
On pg. 14-17 of the remarks, Applicant argues, inter alia, a key advantage of the method is the flow rate of the nitric acid into the culture controls the metabolic rate of the system, the addition of nitric and/or nitrous acid allows pH to be controlled at high production rates, in contrast to conventional cultivation methods and which also avoids the buildup of inhibitory salts. Applicant then argues that Shetty teaches nothing on use of nitric acid as both the electron acceptor and pH controller or any effect on cell density. Applicant argues Shetty provides no means as to when or how the nitrate should be added or in what form, fails to teach continuous culturing, and fails to teach how the high density should be achieved. Applicant then urges that paragraph 216 concerns aerobic culture whereas the method is drawn towards anaerobic culture and only discusses using formate as the source of carbon and energy and that when nitrate is mentioned. It is indicated that maximal biomass attained under anaerobic conditions was 1.3 gDCW, below the threshold of the claims.
In response, the examiner disagrees for much of the same reasons as set forth above. As discussed above, Shetty specifically teaches that nitrate sources can be added under batch or continuous culturing conditions, where appropriate amount of nitrate sources can be added to a culture to achieve a desired increase in biomass using lower or higher concentrations, as desired, so long as the amount added provides a sufficient amount of electron acceptor for the desired increase in biomass (see paragraph 0215). As such, the amount of nitrate and the cell density of the resulting cells are, absent evidence to the contrary, a matter of routine experimentation using standard laboratory techniques available at the time of filing (see MPEP 2144.05). Shetty does not have to discuss what forms or when nitrate/nitrous acid are added because Ju specifically teaches addition of nitrate sources like nitric acid and nitrous acid as alternative oxidant source (see above). Thus, the rejections are maintained as set forth above.
Conclusion
NO CLAIMS ALLOWED.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GEORGIANA C REGLAS whose telephone number is (571)270-0995. The examiner can normally be reached M-Th: 8:00am-2:00pm.
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, Melenie Gordon can be reached at 571-272-8037. 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.
/G.C.R./Examiner, Art Unit 1651
/THOMAS J. VISONE/Supervisory Patent Examiner, Art Unit 1672
Prosecution Insights