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 .
DETAILED ACTION
Election/Restriction
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-10, drawn to a method of growing an aerial mycelium material, classified in CPC A01B79/02.
II. Claims 11-22, drawn to a method of growing an aerial mycelium material, classified in CPC C12N1/14.
The inventions are independent or distinct, each from the other because:
Inventions I and II are directed to related processes. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed are both drawn to methods of growing an aerial mycelium material, however, Invention II exclusively requires providing and dividing an extra-particle aerial mycelial growth; whereas Invention I exclusively requires disrupting a depleted growth matrix with mechanical force. Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
The inventions have acquired a separate status in the art in view of their different classifications;
The inventions require a different field of search (for example, searching different classes/subclasses or electronic resources, or employing different search strategies or search queries);
The prior art applicable to one invention would not likely be applicable toanother invention.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
During a telephone conversation with Anand Patel on 1/6/2025 a provisional election was made without traverse to prosecute Invention I, claims 1-10. Affirmation of this election must be made by applicant in replying to this Office action. Claims 11-22 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12/8/2023 and 1/8/2024 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the examiner.
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.
Claim 10 is 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 pre-AIA the applicant regards as the invention.
Claim 10 recites the limitations "providing the depleted growth matrix; applying the mechanical force to the depleted growth matrix; disrupting the depleted growth matrix with the mechanical force;… and growing extra-particle aerial mycelial growth from the rejuvenated growth matrix". The claim is indefinite since it is unclear why this claim is repeating limitations as set forth in the steps of claims 1 and 4, from which it ultimately depends, or if these steps refer to a different depleted growth matrix.
Claim 10 recites the limitation "the fresh substrate". There is insufficient antecedent basis for this limitation in the claim because claim 8 does not require fresh substrate, as other additives are permitted.
Claim Rejections - 35 USC § 102
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)(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 and 2 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Oancea et al. (RO 134165 A2).
For claim 1, Oancea et al. discloses a method of growing an aerial mycelium material (as discussed in lines 1-2 of the first full paragraph on page 2 of the translated disclosure: “Uses of the depleted substrate from mushroom cultivation in plant cultivation technologies are known, especially for the improvement of soil / crop substrate characteristics.”) comprising: providing a depleted growth matrix; applying a mechanical force to the depleted growth matrix (as discussed in lines 1-2 at the top of page 6 of the translated disclosure: “The wet depleted substrate from the cultivation of Pleurotus ostreatus mushrooms is ground on a knife mill”); and disrupting the depleted growth matrix with the mechanical force (as discussed on the bottom of page 4 of the translated disclosure: “Wet grinding of the depleted substrate”).
For claim 2, Oancea et al. discloses the method of Claim 1, wherein disrupting comprises at least one of grinding (as discussed on the bottom of page 4 of the translated disclosure: “Wet grinding of the depleted substrate”), breaking, fracturing, cutting, perforating, fragmenting, and physically manipulating the depleted growth matrix.
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.
Claims 3, 4, 6-8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Oancea et al. in view of Winiski et al. (U.S. Patent Application Publication No. 2022/0333055 A1, as cited by Applicant).
For claim 3, Oancea et al. discloses the method substantially as claimed, but fails to show the step further comprising: growing extra-particle aerial mycelial growth from the depleted growth matrix. Winiski et al. teaches a method comprising: growing extra-particle aerial mycelial growth from the depleted growth matrix (as discussed in [0009]: “thereby producing extra-particle aerial mycelial growth from the growth matrix” and [0216]: “Any suitable substrate can be used alone, or optionally combined with a further source of nutrition (e.g., a nutritional supplement), as media to support mycelial growth.”). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Oancea et al. to include growing extra-particle aerial mycelial growth from the depleted growth matrix as taught by Winiski et al. for the advantage of producing an improved mycelium.
For claim 4, Oancea et al. discloses the method substantially as claimed, but fails to show the step further comprising: rejuvenating at least a portion of the depleted growth matrix to form a rejuvenated growth matrix; and growing extra-particle aerial mycelial growth from the depleted growth matrix. Winiski et al. teaches a method comprising: rejuvenating at least a portion of the depleted growth matrix to form a rejuvenated growth matrix (as discussed in [0216]: “Any suitable substrate can be used alone, or optionally combined with a further source of nutrition (e.g., a nutritional supplement), as media to support mycelial growth.”); and growing extra-particle aerial mycelial growth from the depleted growth matrix (as discussed in [0009]: “thereby producing extra-particle aerial mycelial growth from the growth matrix”). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Oancea et al. to include rejuvenating at least a portion of the depleted growth matrix to form a rejuvenated growth matrix; and growing extra-particle aerial mycelial growth from the depleted growth matrix as taught by Winiski et al. for the advantage of producing an improved mycelium.
For claim 6, Oancea et al. as modified by Winiski et al. discloses the method of Claim 4, further comprising detaching the extra-particle aerial mycelial growth from the rejuvenated growth matrix to form a separated aerial mycelium from the extra-particle aerial mycelial growth (Winiski et al. as discussed in [0268]), wherein the extra-particle aerial mycelial growth and the separated aerial mycelium do not comprise a fruiting body (Winiski et al. as discussed in [0017]).
For claim 7, Oancea et al. as modified by Winiski et al. discloses the method of Claim 4, wherein rejuvenating comprises at least one of: sterilizing the depleted growth matrix; rehydrating the depleted growth matrix; and supplementing the depleted growth matrix with an additive(s) (Winiski et al. as discussed in [0122] and [0259]).
For claim 8, Oancea et al. as modified by Winiski et al. discloses the method of Claim 7, wherein rejuvenating comprises supplementing the depleted growth matrix with the additive(s), and wherein the additive(s) comprises at least one of: fresh fungal inoculum, fresh substrate, precolonized substrate, precolonized substrate which has been inoculated with fungal spawn and grown for up to 4 days before use, charcoal, and a nutrient source(s) (Winiski et al. as discussed in [0257]).
For claim 10, Oancea et al. as modified by Winiski et al. discloses the method of Claim 8, wherein the method comprises: providing the depleted growth matrix; applying the mechanical force to the depleted growth matrix; disrupting the depleted growth matrix with the mechanical force (Oancea et al. as discussed above in rejection of claim 1); rejuvenating the at least portion of the depleted growth matrix to form the rejuvenated growth matrix, wherein rejuvenating comprises supplementing the depleted growth matrix with the additive(s) (Winiski et al. as discussed in [0122] and [0259]), and wherein the additive(s) comprises the fresh substrate (Winiski et al. as discussed in [0092]: “a matrix containing a fungal-inoculated substrate and an optional nutrition source that is the same or different than the substrate”); and growing extra-particle aerial mycelial growth from the rejuvenated growth matrix (Winiski et al. as discussed in [0009]: “thereby producing extra-particle aerial mycelial growth from the growth matrix” and [0216]: “Any suitable substrate can be used alone, or optionally combined with a further source of nutrition (e.g., a nutritional supplement), as media to support mycelial growth.”).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Oancea et al. in view of Economou et al. (Valorization of spent oyster mushroom substrate and laccase recovery through successive solid state cultivation of Pleurotius, Ganoderma, and Lentinula strains, as cited by Applicant).
For claim 5, Oancea et al. discloses the method substantially as claimed, but fails to show the step further comprising: rejuvenating at least a portion of the depleted growth matrix to form a rejuvenated growth matrix; and growing one or more mushroom fruiting bodies from the rejuvenated growth matrix. Economou et al. teaches a method comprising: providing a spent mushroom substrate (SMS) defining a depleted growth matrix (as discussed on page 5214, col. 2), rejuvenating at least a portion of the depleted growth matrix to form a rejuvenated growth matrix (as discussed on page 5214, col. 2, 2nd paragraph: SMS “was supplemented” and “soaked in water”); and growing one or more mushroom fruiting bodies from the rejuvenated growth matrix (as discussed on page 5214, col. 2, end of 3rd paragraph: “During fruiting…”). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Oancea et al. to include rejuvenating at least a portion of the depleted growth matrix to form a rejuvenated growth matrix; and growing one or more mushroom fruiting bodies from the rejuvenated growth matrix as taught by Economou et al. for the advantage of producing mushroom fruiting bodies.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Oancea et al. in view of Winiski et al. (U.S. Patent Application Publication No. 2022/0333055 A1, as cited by Applicant), as applied to claim 8 above, and further in view of Economou et al. (Valorization of spent oyster mushroom substrate and laccase recovery through successive solid state cultivation of Pleurotius, Ganoderma, and Lentinula strains, as cited by Applicant).
For claim 9, Oancea et al. as modified by Winiski et al. disclose the method substantially as claimed, but fails to show the step further comprising: wherein rejuvenating comprises supplementing the depleted growth matrix with the additive(s) comprising fresh substrate at a mass ratio of between 1:3 and 3:1 depleted growth matrix to fresh substrate. Economou et al. teaches a method comprising: providing a spent mushroom substrate (SMS) defining a depleted growth matrix (as discussed on page 5214, col. 2), rejuvenating at least a portion of the depleted growth matrix to form a rejuvenated growth matrix (as discussed on page 5214, col. 2, 2nd paragraph: SMS “was supplemented” and “soaked in water”); wherein rejuvenating comprises supplementing the depleted growth matrix with the additive(s) comprising fresh substrate at a mass ratio of between 1:3 and 3:1 depleted growth matrix to fresh substrate (as discussed on page 5214, col. 2, 2nd paragraph: SMS “was supplemented…in various proportions to achieve various C/N ratios” in Table 1 on page 5215: with 80% SMS). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Oancea et al. and Winiski et al. to include rejuvenating comprises supplementing the depleted growth matrix with the additive(s) comprising fresh substrate at a mass ratio of between 1:3 and 3:1 depleted growth matrix to fresh substrate as taught by Economou et al. for the advantage of producing mushroom fruiting bodies.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE A CLERKLEY whose telephone number is (571)270-7611. The examiner can normally be reached 8:30AM-5PM.
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/DANIELLE A CLERKLEY/Examiner, Art Unit 3643