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 .
Response to Amendment
The Examiner acknowledges Applicant’s amendment of claim(s) 16 in Applicant’s Response to Official Action dated 12/11/2025 (“Response”). Claims 1-30 are currently pending in this application and are subject to examination herein.
Based upon Applicant’s amendment of the Specification to include reference characters 1 (Para. [0063]), 960 (Paras. [0096], [0108]) and 19 and amendment of the Drawings to remove elements 19 (Fig. 8A) and 147 (Fig. 9), the Examiner’s prior objection to the Drawings on those grounds is withdrawn.
Response to Arguments
Applicant's arguments filed 12/11/2025 have been fully considered but they are not persuasive. Applicant’s underlying argument that the combination of Oostvogels in view of Winiski does not render obvious claims 1, 3, 5-11, 13, 16, 21-27 and 29-30 because “a person of ordinary skill in the art would understand and appreciate the differences between the toadstools as disclosed in Oostvogels and the extra-particle aerial mycelial growth and the aerial mycelium of the present claims.” (Response at p. 11). The Examiner respectfully disagrees. While Applicant is correct that Oostvogels relates to edible toadstools (distinct fruiting bodies) rather than extra-particle aerial mycelial growth (a single continuous object), one having ordinary skill in the art before the effective filing date of the claimed invention would easily understand that analog of harvesting the extra-particle aerial mycelial growth using the same systems and methods disclosed and taught in Oostvogels. Furthermore, Oostvogels teaches the method steps to harvest fungal growth that would be equally applicable to mycelial growth as to toadstools and, as described in greater detail below, Winiski teaches cutting and compressing an aerial mycelial panel. It would have been obvious to use the method disclosed in Oostvogels with a reasonable expectation of success to cultivate aerial mycelial growth by using a different mushroom spore that provides the mycelium as a single contiguous object rather than distinct fruiting bodies, as taught in Winiski (Col. 5, lines 29-34). Furthermore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the methods disclosed in Oostvogels to include the cutting and compressing steps taught in Winiski with a reasonable expectation of success in order to form a higher density material, as taught in Winiski (Col. 64, lines 20-22). The obviousness rejection of the instant claims is proper for at least these reasons.
Moreover, instant claims are directed to a systems and methods for harvesting fungal growth. A material or article worked upon does not limit apparatus claims. “Thus, [i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims.’” MPEP 2115 (citing In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935). Moreover, the Court of Customs and Patent Appeals previously held that an obviousness rejection was proper to an apparatus claim to a “taping machine comprising a supporting structure, a brush attached to said supporting structure, said brush being formed with projecting bristles which terminate in free ends to collectively define a surface to which adhesive tape will detachably adhere, and means for providing relative motion between said brush and said supporting structure while said adhesive tape is adhered to said surface” even though the prior art applied was to a machine for perforating sheets that made no mention of adhesive tape. MPEP 2115 (quoting In re Casey, 370 F.2d 576, 580-81 (CCPA 1967). In so doing, the Court stated that “the references to claim 1 to adhesive tape handling do not expressly or impliedly require any particular structure in addition to that of [the prior art reference applied].” In re Casey, 370 F.2d 576, 580-81 (CCPA 1967). “[T]he manner or method in which such machine is to be utilized is not germane to the issue of patentability of the machine itself.” Id. at 580. Therefore, because the structure required by the instant claims is met by the combination of Oostvogels in view of Winiski, the obviousness rejection of the instant claims is proper for at least these reasons.
Applicant’s additional arguments continue to build on Applicant’s assertion that one of ordinary skill in the art would not be able to utilize Oostvogels in view of Winiski to process mycelia panels rather than toadstools or that the combination would destroy the intended purpose of Oostvogels. (Response a p. 13). The Examiner respectfully disagrees. Simply using the system/method on a different form of fungal growth would not rise to the level of destroying the intended purpose. It is well within the ability of a person of ordinary skill in the art to apply the teachings of Oostvogels in view of Winiski to different species of fungi. One of skill in the art could grow mycelium in the system/method taught by Oostvogels in view of Winiski to cut and compress the panels or could grow toadstools and cut the distinct fruiting bodies off and then merely omit the compressing step. Systems and methods of working on different articles while making desired adjustments are quite well-known in the art and are within the skill of one having ordinary skill in the art.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 3, 5-11, 13, 16, 21-27 and 29-30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Int’l. Pat. Pub. No. WO 98524023 A1 to Oostvogels (cited by Applicant in IDS filed on 09/13/2023) in view of Int’l. Pat. Pub. No. WO 2021092051 A1 to Winiski et al. (hereinafter Winiski) (cited by Applicant in IDS filed on 09/13/2023).
Regarding claim 1, Oostvogels discloses a method of harvesting mushrooms (Abstract), comprising:
providing a mycological growth web (cloth 7, nutrient layer 2 and mycelium spores) (Fig. 1; Col. 4, lines 3-7; col. 4, line 38 to col. 5, line 3) comprising a growth matrix (nutrient layer 2) (Fig. 1; Col. 4, lines 3-7), an extra-particle aerial mycelial growth (mycelium spores), and a growing net (cloth 7) (Fig. 1; Col. 4, line 38 to col. 5, line 3);
moving the web (cloth 7, nutrient layer 2 and mycelium spores) (Fig. 1; Col. 4, lines 3-7; col. 4, line 38 to col. 5, line 3) in a longitudinal direction (Fig. 2; Col. 5, line 30 to col. 6, line 25);
dividing the web (cloth 7, nutrient layer 2 and mycelium spores) (Fig. 1; Col. 4, lines 3-7; col. 4, line 38 to col. 5, line 3) along a separation zone (zone between mushrooms and growth media) to detach the mycelial growth from the growth matrix and form an aerial mycelium (Col. 6, lines 1-2; col. 6, lines 13-16);
cutting the mycelial panel in a transverse direction and across a width of the mycelial growth web (cloth 7, nutrient layer 2 and mycelium spores) (Fig. 1; Col. 4, lines 3-7; col. 4, line 38 to col. 5, line 3) to create a mycelial panel (Col. 6, lines 2-7).
However, Oostvogels does not expressly disclose using the method for harvesting an aerial mycelium panel and further does not disclose compressing at least a portion of the aerial mycelium panel along at least one of the width of the panel and in the transverse direction.
Nevertheless, Winiski teaches a method for harvesting an aerial mycelium panel (Abstract) that comprises cutting the mycelial panel in a transverse direction and across a width of the mycelial growth web to create a mycelial panel (Fig. 13A; Col. 67, lines 15-25); and compressing at least a portion of the aerial mycelium panel along at least one of the width of the panel and in the transverse direction (Fig. 13B; Col. 67, lines 26-34).
It would have been obvious to use the method disclosed in Oostvogels with a reasonable expectation of success to cultivate aerial mycelial growth by using a different mushroom spore that provides the mycelium as a single contiguous object rather than distinct fruiting bodies, as taught in Winiski (Col. 5, lines 29-34). Furthermore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the methods disclosed in Oostvogels to include the cutting and compressing steps taught in Winiski with a reasonable expectation of success in order to form a higher density material, as taught in Winiski (Col. 64, lines 20-22).
Regarding claim 3, the combination of Oostvogels in view of Winiski teaches the method of Claim 1 (see above). Furthermore, Oostvogles discloses that the separation zone comprises a plane of separation, and dividing the web comprises cutting the web along the plane of separation (Col. 6, lines 1-2; col. 6, lines 13-16).
Regarding claim 5, the combination of Oostvogels in view of Winiski teaches the method of Claim 1 (see above). However, neither Oostvogels nor Winiski expressly discloses the method further comprising stopping the web during at least one of cutting the aerial mycelium and compressing at least a portion of the aerial mycelium panel. Nevertheless, Oostvogels implicitly teaches that the method would stop the web during at least one of the cutting or compressing steps in order to avoid having a cut that is not perpendicular to the direction of travel of the web or to avoid having the compression cause a smearing action on the mycelium rather than a clean compression. To the extent that Applicant disagrees with the implicit teachings of Oostvogels, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Oostvogels in view of Winiski with a reasonable expectation of success to stop the web during at least one of the cutting or compressing steps in order to avoid having a cut that is not perpendicular to the direction of travel of the web or to avoid having the compression cause a smearing action on the mycelium rather than a clean compression.
Regarding claim 6, the combination of Oostvogels in view of Winiski teaches the method of Claim 1 (see above). However, neither Oostvogles nor Winiski discloses or otherwise teaches that the compressing comprises compressing substantially the entirety of the panel in the transverse direction. Nevertheless, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Oostvogels in view of Winiski to have the compressing comprise compressing substantially the entirety of the panel in the transverse with a reasonable expectation of success in order to have the entire panel brought to the same desired density.
Regarding claim 7, the combination of Oostvogels in view of Winiski teaches the method of Claim 1 (see above). Furthermore, Winiski teaches misting the aerial mycelium or the aerial mycelium panel (Col. 3, lines 30 to col. 5, line 3) prior to the compressing (e.g., during cultivation and before harvesting).
Regarding claim 8, the combination of Oostvogels in view of Winiski teaches the method of Claim 1 (see above). Furthermore, Oostvogels discloses diverting the growth matrix and the mycelium relative to each other (Fig. 2; Col. 6, lines 18-25).
Regarding claim 9, the combination of Oostvogels in view of Winiski teaches the method of Claim 8 (see above). Furthermore, Oostvogels discloses that the growth matrix comprises a plurality of pieces after the diverting step, further comprising reducing at least some of the plurality of pieces in size (Fig. 2; Col. 6, lines 18-25).
Regarding claim 10, the combination of Oostvogels in view of Winiski teaches the method of Claim 1 (see above). Furthermore, Oostvogels discloses a method further comprising moving the aerial mycelium panel from a first elevation to a second elevation (Fig. 2).
Regarding claim 11, the combination of Oostvogels in view of Winiski teaches the method of Claim 10 (see above). Furthermore, Oostvogels discloses a method wherein moving the aerial mycelium panel comprises moving the aerial mycelium panel at a substantially non-horizontal angle (e.g., over the drum 21 from table 23 to the conveyor moving in the direction of the black arrow) (Fig. 2).
Regarding claim 13, the combination of Oostvogels in view of Winiski teaches the method of Claim 1 (see above). Furthermore, Oostvogels discloses a method wherein said method comprises using a trolley apparatus (portal 14 displace by suspension cables 17) (Fig. 2; Col. 5, line 32 to col. 6, line 18) to implement at least one of said method steps.
Regarding claim 16, Oostvogels discloses a system for harvesting mushrooms (Abstract), comprising:
a net pulling system (winding roller 21, motor 22) (Fig. 2; Col. 5, lines 35-36) configured to longitudinally move a mycological growth web (cloth 7, nutrient layer 2 and mycelium spores) (Fig. 1; Col. 4, lines 3-7; col. 4, line 38 to col. 5, line 3);
a dividing instrument (knife 20) (Fig. 2; Col. 6, lines 24-16) configured to divide the web (cloth 7, nutrient layer 2 and mycelium spores) (Fig. 1; Col. 4, lines 3-7; col. 4, line 38 to col. 5, line 3) along a separation zone (zone between mushrooms and growth media) to detach the aerial mycelial growth from the growth matrix and form an aerial mycelium (Col. 6, lines 1-2; col. 6, lines 13-16);
a cutting instrument configured to move in a transverse direction and cut across a width of the aerial mycelium to form an aerial mycelium panel (Col. 6, lines 2-7);
However, Oostvogels does not expressly disclose using the method for harvesting an aerial mycelium panel and further does not disclose a compression tool configured to compress at least a portion of the aerial mycelium panel along at least one of the width of the panel and in the transverse direction.
Nevertheless, Winiski teaches a method for harvesting an aerial mycelium panel (Abstract) that comprises cutting the mycelial panel in a transverse direction and across a width of the mycelial growth web to create a mycelial panel (Fig. 13A; Col. 67, lines 15-25); and compressing at least a portion of the aerial mycelium panel along at least one of the width of the panel and in the transverse direction (Fig. 13B; Col. 67, lines 26-34).
It would have been obvious to use the method disclosed in Oostvogels with a reasonable expectation of success to cultivate aerial mycelial growth by using a different mushroom spore that provides the mycelium as a single contiguous object rather than distinct fruiting bodies, as taught in Winiski (Col. 5, lines 29-34). Furthermore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the methods disclosed in Oostvogels to include the cutting and compressing steps taught in Winiski with a reasonable expectation of success in order to form a higher density material, as taught in Winiski (Col. 64, lines 20-22).
Regarding claim 21, the combination of Oostvogels and Winiski teaches the system of Claim 16 (see above). However, neither Oostvogles nor Winiski discloses or otherwise teaches that the compressing comprises compressing substantially the entirety of the panel in the transverse direction. Nevertheless, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Oostvogels in view of Winiski to have the compressing comprise compressing substantially the entirety of the panel in the transverse with a reasonable expectation of success in order to have the entire panel brought to the same desired density.
Regarding claim 22, the combination of Oostvogels in view of Winiski teaches the method of Claim 16 (see above). Furthermore, Oostvogels discloses a method further comprising one or more sprayers configured to spray the aerial mycelium or the aerial mycelium panel (Col. 3, lines 30 to col. 5, line 3).
Regarding claim 23, the combination of Oostvogels in view of Winiski teaches the method of Claim 16 (see above). Furthermore, Oostvogels discloses a method further comprising an elevator configured to move the aerial mycelium panel from a first elevation to a second elevation (e.g., over the drum 21 from table 23 to the conveyor moving in the direction of the black arrow) (Fig. 2).
Regarding claim 24, the combination of Oostvogels in view of Winiski teaches the method of Claim 23 (see above). Furthermore, Oostvogels discloses a method wherein the elevator is configured to move the aerial mycelium panel at a substantially non-horizontal angle (e.g., over the drum 21 from table 23 to the conveyor moving in the direction of the black arrow) (Fig. 2).
Regarding claim 25, the combination of Oostvogels in view of Winiski teaches the method of Claim 24 (see above). Furthermore, Oostvogels discloses a method wherein the elevator is angularly adjustable and configured to move a second aerial mycelium panel at a different angle relative to the substantially non-horizontal angle (e.g., as portal moves between boards 16 at different levels, the elevator angle would adjust at least in the tangent from the roller 21 to the conveyor moving in the direction of the black arrow) (Fig. 2).
Regarding claim 26, the combination of Oostvogels in view of Winiski teaches the method of Claim 16 (see above). Furthermore, Oostvogels discloses a method further comprising a diverter positioned at or downstream of the dividing instrument, wherein the diverter (conveyor belts 24 and 25) (Fig. 2; Col. 6, lines 16-25) is configured to divert the growth matrix and the aerial mycelium or aerial mycelium panel relative to each other (Fig. 2; Col. 6, lines 18-25).
Regarding claim 27, the combination of Oostvogels in view of Winiski teaches the method of Claim 26 (see above). Furthermore, Oostvogels discloses a method wherein the growth matrix comprises a plurality of pieces, further comprising a reducer configured to reduce at least some of the plurality of pieces in size (Fig. 2; Col. 6, lines 18-25).
Regarding claim 29, Oostvogels discloses a method of harvesting mushrooms (Abstract), comprising:
providing a mycological growth web (cloth 7, nutrient layer 2 and mycelium spores) (Fig. 1; Col. 4, lines 3-7; col. 4, line 38 to col. 5, line 3) comprising a growth matrix (nutrient layer 2) (Fig. 1; Col. 4, lines 3-7), an extra-particle aerial mycelial growth (mycelium spores), and a growing net (cloth 7) (Fig. 1; Col. 4, line 38 to col. 5, line 3);
moving the web (cloth 7, nutrient layer 2 and mycelium spores) (Fig. 1; Col. 4, lines 3-7; col. 4, line 38 to col. 5, line 3) in a longitudinal direction (Fig. 2; Col. 5, line 30 to col. 6, line 25); and
dividing the web (cloth 7, nutrient layer 2 and mycelium spores) (Fig. 1; Col. 4, lines 3-7; col. 4, line 38 to col. 5, line 3) along a separation zone (zone between mushrooms and growth media) to detach the mycelial growth from the growth matrix and form an aerial mycelium (Col. 6, lines 1-2; col. 6, lines 13-16).
However, Oostvogels does not expressly disclose using the method for harvesting an aerial mycelium panel.
Nevertheless, Winiski teaches a method for harvesting an aerial mycelium panel (Abstract).
It would have been obvious to use the method disclosed in Oostvogels with a reasonable expectation of success to cultivate aerial mycelial growth by using a different mushroom spore that provides the mycelium as a single contiguous object rather than distinct fruiting bodies, as taught in Winiski (Col. 5, lines 29-34).
Regarding claim 30, the combination of Oostvogels in view of Winiski teaches the method of Claim 29 (see above). Furthermore, Oostvogels discloses further comprising:
cutting the mycelial panel in a transverse direction and across a width of the mycelial growth web to create a mycelial panel (Fig. 13A; Col. 67, lines 15-25); and
compressing at least a portion of the aerial mycelium panel along at least one of the width of the panel and in the transverse direction (Fig. 13B; Col. 67, lines 26-34).
Allowable Subject Matter
Claims 28 is allowed.
Claim 2, 4, 12, 14-15 and 17-20 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
THIS ACTION IS MADE FINAL. 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 CLAUDE J BROWN whose telephone number is (571)270-5924. The examiner can normally be reached Mon-Fri 8AM-5PM.
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, Joseph M. Rocca can be reached at (571) 272-8971. 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.
/CLAUDE J BROWN/Primary Examiner, Art Unit 3671