DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Applicant’s amendment and response filed on 10/24/2025 have been received and entered into the case. Claims 2-3 and 15 have been canceled. Claims 1, 4-14 and 16-21 are pending and have been considered on the merits. All arguments have been fully considered.
Withdrawn Objections
Objections are withdrawn in view of applicant’s amendments.
Withdrawn Rejections
Rejections under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, are withdrawn in view of applicant’s amendments.
Rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, are withdrawn in view of applicant’s amendments.
Rejections under 35 U.S.C. 103 are withdrawn in view of applicant’s amendments.
Rejections of Claim 15 under nonstatutory double patenting are withdrawn in view of applicant’s amendments – Claim 15 has been canceled.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the claims at issue are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1, 4-14 and 16-21 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-15 of U.S. Patent No 11,707,078 (referred to as the ‘078 patent) in view of Menon et al (US 2013/0149333 A1; 6/13/2013.), Verma et al (Can. J. Bot. 1970;48:429-431.), Paulova et al (Eng. Aspects Fd. Biotechnol. 2013;89-110.), senthilkumar (https://senthilarivan.wordpress.com/2015/11/26/fermenter-and-its-features/. 2015;1-14.), and Wagner et al (US 4,048,013; 9/13/1977.).
Claims 1-15 of the ‘078 patent recite a process for producing single cell protein (SCP), the process comprising the steps of: a) growing a thermophilic fungus of the species Rhizomucor pusillus in a medium containing a fermentable carbon-rich feedstock; wherein the fungus is grown in submerged culture under non-sterile conditions at a temperature higher than 45° C. and a pH of less than 3.8; and, b) recovering SCP from the medium in the form of biomass of the thermophilic fungus grown in step a) wherein the protein content of the biomass is at least 40% (w/v) on dry matter basis. The carbon-rich feedstock is fed to the medium at a rate at which the concentration of the carbon-rich feedstock is kept below the concentration at which the toxicity of the organic acids in the feedstock reduces the growth rate of the fungus. The process is a fed-batch process, a repeated fed-batch process or a continuous process. The thermophilic fungus is Rhizomucor pusillus CBS 143028. The biomass is recovered from the medium by at least one of sieving, filtration and decantation to obtain a sieved, filtered or decantated biomass cake. ‘078 patent does not recite cooling device that requires input energy. Before the effective filing date of the claimed invention, it was well-known in the art that the filamentatious morphology often results in chain growth of microbes, which allows the microbes to be collected in sieves or separation means (para 0131), and that harvesting may be performed by filtration, sieving, screening, or centrifugation (para 0245), as evidenced by Menon. In addition, Verma teaches harvesting performed using a sieve with a pore diameter of 2 mm (p.429 col right – para 2).
‘078 patent does not teach the method comprises the use of two or more fermenters (claim 5), wherein after the first fermenter is emptied for harvesting it is cleaned (claim 13), and after harvesting the empty first fermenter is filled with at least part of the content of the second fermenter wherein growth continued during harvesting (claim 14).
However, ‘078 patent does teach the method of producing single cell protein comprises batch and continuous cultivations (Claim 3). Paulova teaches continuous fermentation (cultivations) is defined as a process running in one or more bioreactors (fermenters) (p.95 para 3). In addition, senthilkumar teaches basic functions of a fermenter, which a fermenter should require a minimum of labor in maintenance, cleaning, operating and harvesting operations, and it should be suitable for a range of fermentation processes (p.2 para 5).
Thus, before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to incorporate two or more fermenters for desired operations, since ‘078 patent discloses a method of producing single cell protein comprises batch and continuous fermentation, Paulova discloses that continuous fermentation involves one or more fermenters, and senthilkumar discloses that a fermenter is used for cleaning and harvesting operations and that it should be suitable for a range of fermentation processes. In other words, before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to optimize the number of fermenters and its intended usage as a matter of design choice. In addition, before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to optimize the sequences of harvesting, emptying and cleaning steps as well as to optimize the use of fermenters as a matter of design choice, since ‘078 patent, Paulova, and senthilkumar all disclose fermentation processes, Paulova discloses that fermentation processes involves one or more fermenters, and senthilkumar discloses that a fermenter is used for cleaning and harvesting operations and that it should be suitable for a range of fermentation processes. Moreover, before the effective filing date of the claimed invention, one of ordinary skill in the art would have been motivated by the cited references to incorporate two or more fermenters, to optimize the sequences of harvesting, emptying and cleaning steps, and to optimize the use of fermenters, with a reasonable expectation for successfully converting cassava starch to protein.
‘078 patent does not teach the method wherein the water fraction is recycled back to the fermentation (claim 11).
However, ‘078 patent does teach the method for producing single-cell protein. Wagner teaches a process for producing single-cell protein (Title), comprising recycling culture fluid (includes water) back in the fermentation process (col.2 line 41-43).
Thus, before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to recycle water fraction back to a fermentation, since such a method step is routinely practiced in the art of producing single-cell protein, as evidenced by Wagner. Moreover, before the effective filing date of the claimed invention, one of ordinary skill in the art would have been motivated by the cited reference to recycle water fraction back to a fermentation with a reasonable expectation for successfully converting cassava starch to protein.
Response to Arguments
Applicant traverses the obviousness-type double patenting rejection without further explanation, and requests that the rejection be held in abeyance until indication by the Office of allowable claims in this application.
Conclusion
No claims are 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 extension fee 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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LYNN Y FAN whose telephone number is (571)270-3541. The examiner can normally be reached on M-F 7am-4pm.
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/Lynn Y Fan/
Primary Examiner, Art Unit 1759