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 .
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.
Claim(s) 24, 34-35, and 40-41 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schlesinger et al. (US 2009/0176303 A1), hereinafter Schlesinger, in view Carmouche (US 3,638,616).
Regarding claim 24, Schlesinger discloses a process for raising an oyster (P. 3 & claim 19 disclose that the benthic marine invertebrates are mollusks. Examiner notes, it is well understood that an oyster is a mollusk), the process comprising:
raising the oyster (see above) in an interior of a housing (Para. [0058], “[t]he cylindrical portion 9 of the culture cell 4 is fitted with a removable sheet 40 conforming the shape of the cylindrical portion 9 which may be used as a substrate for sessile, benthic invertebrates, e.g., sea anemones”);
providing a substrate adjacent the oyster to allow the oyster to attach to the substrate (Para. [0058], “[t]he cylindrical portion 9 of the culture cell 4 is fitted with a removable sheet 50 conforming the shape of the cylindrical portion 9 which may be used as a substrate for sessile, benthic invertebrates, e.g. sea anemones, and may also be raised above the water outlet 14, thus containing larvae and small anemones”), wherein the substrate comprises an inorganic material (Para. [0023], “removable sheets, e.g. nylon mesh or PVC, of e.g. 500 um, are fixed to the inner vertical walls of the culture cell for attachment thereto of the benthic marine invertebrates, e.g., sea anemones”).
circulating water from a body of water through a thermal reservoir having a temperature cooler than the body of water (“thermostat-regulated cooler” of paragraph 0031 and chiller 24, para. 0070);
cooling the water with the thermal reservoir (through the normal operation of pump 20, para. 0060 and/or circulation pump 49); and
moving the water through the interior of the housing such that the oyster is immersed in the water (Para. [0062], “the water is pumped from the sedimentation chamber 6 to the culture cell 4 by means of pump 20; as shown in fig. 2”).
However, Schlesinger does not appear to specifically delivering oxygen into the water to increase a rate of circulation of the water.
Carmouche is in the field of a fish-growing aquarium (Abstract) and teaches delivering [oxygen] into the water to increase a rate of circulation of the water (Col. 4, lines 24-26, “[c]onventional aerators (not shown) are attachable to the side of aquarium to increase circulation of water and to remove carbon dioxide and other toxic gases quicker”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Schlessinger such that it had an aerator, in order to increase the aeration and circulation of water (Carmouche: Col. 4, lines 18-20), and increase the overall health of the oyster. Furthermore, while Carmouche does not explicitly state that the aerator is delivering oxygen into the water, it would have been obvious to one of ordinary skill in the art to use oxygen since it is a well-known type of gas used in aerators for an aquarium.
Regarding claim 34, Schlessinger in view of Carmouche discloses the invention in claim 24, but does not appear to specifically disclosed wherein the oyster has a fat content of about 2 to 4 grams.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the invention of modified Schlesinger such that the oyster has a fat content of about 2 to 4 grams, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272,205 USPQ 215 (CCPA 1980). Furthermore, examiner notes since a similar setup is used in the instant invention, then the oyster in modified Schlesinger would inherently grow to have a fat content of about 2 to 4 grams.
Regarding claim 35, Schlessinger in view of Carmouche discloses the invention in claim 24, but does not appear to specifically disclose wherein the oyster has an adductor muscle with a volume of about 13 to about 15 ml.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the invention of modified Schlesinger such that the oyster has an adductor muscle with a volume of about 13 to about 15 ml, since an increase in the adductor muscle in oysters would also increase the meat content. Furthermore, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272,205 USPQ 215 (CCPA 1980).
Regarding claim 40, Schlessinger in view of Carmouche discloses the invention in claim 24, and Schlessinger further discloses controlling a volumetric flow rate of the water into the housing (Para. [0060], “the pump 20 controls the flow regime within the culture cell 4 by changing the flow rate of the water supplied to the culture cell 4”; fig. 2).
Regarding claim 41, Schlessinger in view of Carmouche discloses the invention in claim 40, and Schlessinger further discloses wherein the volumetric flow rate is between about 0.15 and 0.20 feet per second (Para. [0068], “[w]ithout the perforated disk turbulent flow was obtained at flow rates between about 100-600 l/h”. Examiner notes, 260 l/h – 350 l/h [i.e., 0.15 – 0.20 feet per second] is in the above range).
Claim 32 is rejected under 35 U.S.C. 103 as being unpatentable over Schlesinger in view of Carmouche, and further in view of Lombardi et al. (Shell Hardness and Compressive Strength of the Eastern Oyster…), hereinafter Lombardi.
Regarding claim 32, Schlessinger in view of Carmouche discloses the invention in claim 24, but does not appear to specifically disclose wherein the oyster has a shell with a hardness of between about 1 to 2 GPa.
However, Lombardi is in the field of Oysters and teaches shell hardness values between about 1 to 2 GPa (P. 178, “Intraspecific Crassostrea virginica comparisons (ages 1, 4, 6, 9 years). The mean (SEM) shell hardness values for one-year-old individuals of C. virginica were 1.17 0.17 GPa, 1.55 0.22 GPa for four-year-olds, 1.47 0.16 GPa for six-year-olds, and 1.20 0.14 GPa for nine-year-olds. Hardness values were not significantly different between age classes of C. virginica”).
It would have been obvious to one of ordinary skill in the before the effective filing date of the claimed invention to modify the invention of Schlessinger such that the oyster has a shell with a hardness of between about 1 to 2 GPa as taught by Lombardi, in order to protect the oyster against predators.
Claim 33 is rejected under 35 U.S.C. 103 as being unpatentable over Schlesinger in view of Carmouche, and further in view of Kraeuter (Oyster Growth Analysis: A Comparison of Methods), hereinafter Kraeuter.
Regarding claim 33, Schlessinger in view of Carmouche discloses the invention in claim 24, but does not appear to specifically disclose wherein the oyster grows about 0.15 to 0.20 inches per month.
However, Kraeuter is in the field oyster growth (Abstract) and teaches wherein the oyster grows about 0.15 to 0.20 inches per month (as shown in Tables 1 & 2, a published report on oyster shell growth shows that oysters in at least Newport River, NC grow about 4.68mm or 0.18 inches per month).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Schlesinger such that the oyster grows about 0.15 to 0.20 inches per month as taught by Kraeuter, in order to ensure a steady growth grate.
Claim(s) 37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schlessinger in view of Carmouche as applied to claim 24 above, and further in view of Sinclair et al. (US 12,082,564 B2), hereinafter Sinclair.
Regarding claim 37, Schlessinger in view of Carmouche discloses the invention in claim 24, but is silent regarding tumbling the oyster.
However, Sinclair is in the field of an aquaculture system (Abstract) and teaches tumbling the oyster (Col. 21, lines 50-56, “[a]t operation 912, the process can include determining to perform an agitation function based on cage type. As discussed herein, the control device may perform an agitation function based on cage type. The agitation function includes the agitate mode and the roll mode and is triggered to imitate a tumbling and/or shaking the oysters to break the edges off the shells leading to a more marketable shape”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Schlessinger such that the process can include tumbling the oyster as taught by Sinclair, in order to “break the edges off the shells leading to a more marketable shape” (Sinclair: Col. 21, lines 50-56).
Conclusion
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/N.A./Examiner, Art Unit 3647
/Christopher D Hutchens/Primary Examiner, Art Unit 3647