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 .
Election/Restrictions
Examiner notes that Group I in the Requirement for Restriction was intended to include claims 1-14 instead of claims 1-9. Therefore, the groups should be Group I: claims 1-14, Group II: claims 15-19, and Group III, claim 20. Below is the examiner’s reasoning:
Group I is drawn to a module. Claim 10 is multiple modules as claimed in claim 1 linked together. Claims 11-14 are dependent on claim 10. Therefore, claims 10-14 are also drawn to a module and Group I should include claims 1-14. Applicant’s election of Group I will be treated as the election of claims 1-14 accordingly.
Applicant's election with traverse of Group I (claims 1-14) in the reply filed on 8/20/2026 is acknowledged. The traversal is on the ground(s) that all claims are linked to the same invention. This is not found persuasive because:
Regarding groups I and II, although group II as claimed includes the module as claimed in claim 1, group I (the apparatus) as claimed can be used to practice another and materially different process, such as merely storing a biomass. This sufficiently shows that groups I and II are distinct inventions (MPEP § 806.05(e)).
Regarding groups I and III, although group III encompasses the same core elements as that of group I as described in the Remarks filed 8/20/2026, groups I and III have materially different designs. E.g., group III as claimed does not require the module to be transparent as claimed in group I. Additionally, there was nothing of record to show them to be obvious variants at the time. This sufficiently shows that groups I and III are distinct inventions (MPEP § 806.05(j)).
Regarding groups II and III, group III as claimed can be used to practice another and materially different process than group II as claimed, such as producing using the aqueous consortium to produce and harvest gas. This sufficiently shows that groups II and III are distinct inventions (MPEP § 806.05(e)).
The requirement is still deemed proper and is therefore made FINAL.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the bottom piece fitted to the bottom end of the tube, top piece fitted to the top of the tube, air diffusion device, air vents, at least one fitting, quick-connect fitting, must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to because Fig. 5 is labelled incorrectly. Units for power are watts (W), rather than volts. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Interpretation
Examiner notes that the following claim interpretations are made:
In claim 1, line 2, the limitation “photosynthetically active radiation” is interpreted as sunlight or any wavelength of electromagnetic radiation suitable for photosynthesis.
In claim 1, lines 2-3, the limitation “a long axis of the tube defining a top end and a bottom end” is interpreted as a long axis of the tube defined by a top end of bottom end of the tube.
In claim 5, lines 1-2, the limitation “configured to support one or more plants” is interpreted as is compatible with one or more plants.
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“an air diffusion device” in claim 1, line 6;
“one or more passive gas diffusion devices” in claim 8, lines 1-2;
“one or more consortium growth monitoring devices” in claim 9, lines 1-2.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claims 1-14 are 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "the cathode and anode" in line 11. There is insufficient antecedent basis for this limitation in the claim. For examination on the merits, the cathode and anode will be interpreted as the cathode wire and anode wire.
Claims 2-14 are similarly rejected as they depend upon rejected claim 1
Claim 4 recites the limitation "the aqueous consortium" in line 2. There is insufficient antecedent basis for this limitation in the claim. For examination on the merits, the aqueous consortium will be interpreted as the consortium.
Regarding claim 7, the limitation “wherein the algal species are Arthrospira platensis and Chlorella vulgaris” renders the claim indefinite. Claim 6, which claim 7 depends upon recites “composed of at least one algal species”. It is unclear what the noted limitation is directed toward. E.g., is claim 7 intended only to limit the choice of algal species or to limit both the choice of algal species and the number of algal species? For examination on the merits, the noted limitation will be interpreted as drawn to limiting the choice and number of algal species, as this appears consistent with the specification.
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.
Claims 1-2, 4-5, 8-10, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Walter et al. From the lab to the field: Self-stratifying microbial fuel cells stacks directly powering lights (hereinafter referred to as Walter – see PTO-892) in view of Morgan (US 8,476,067 B2) (see PTO-892) and Barkeloo et al. (US 2014/0377846 A1) (hereinafter referred to as Barkeloo – see PTO-892).
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Regarding claim 1, Walter discloses a microbial fuel cell module (abstract; Fig. 2 – see figure below), i.e., a module, comprising: a container (Fig. 2); a cathode (Fig. 2); an anode (Fig. 2); a consortium contained within the container (pg. 2, col. 1, para. 3 discusses microbes and microorganisms within the microbial fuel cell); and wherein the cathode and anode are each placed within the consortium at the top and bottom ends of the container (Fig. 2).
Walter does not disclose or teach the container being a tube, the tube transparent to photosynthetically active radiation; a long axis of the tube defining a top end and a bottom end said top and bottom ends parallel to each other; a bottom piece fitted to the bottom end of the tube; a top piece fitted to the top of the tube; an air diffusion device attached to, and passing through the bottom piece; air vents spaced at the top end of the tube.
However, Morgan in the analogous art of photobioreactors discloses a photobioreactor in the shape of a tube (Fig. 1, vertical tube 102 houses algae; col. 5, lines 11-19), the tube being transparent to photosynthetically active radiation (col. 4, lines 44-46), a long axis of the tube defining a top end and a bottom end, said top and bottom ends parallel to each other (Fig. 1); a bottom piece fitted to the bottom end of the tube (Fig. 1, base assembly 110); a top piece fitted to the top of the tube (Fig. 1, head cap assembly 108); an air diffusion device attached to, and passing through the bottom piece (Fig. 2, gas line 210 and gas diffusion apparatus 112); and an air vent spaced at the top end of the tube (Fig. 14, one-way valve 1412; col. 9, lines 56-55 describes one-way valve 1412 as a vent).
Morgan’s photobioreactor is capable of culturing algae for harvesting (col. 5, lines 14-15) as well as treating polluted air (abstract).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Walter’s module to incorporate the aspects of Morgan’s photobioreactor, as described above, as it would allow Walter’s module to culture algae and impart the capability for the module to treat polluted air. It has been held that it is prima facie obvious to applying a known technique to a known devices ready for improvement to yield predictable results (MPEP § 2143 I D). In this case, Walter’s module, i.e., a base device, can be modified to incorporate the construction features of Morgan, i.e., a known technique, which would predictably allow the module to culture algae and treat polluted air.
The prior art combination module discussed above does not explicitly disclose multiple air vents.
Nonetheless, 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 prior art combination module to comprise additional air vents as such a modification represents mere duplication of one-way valves discussed above. It has been held that the duplication of parts has no patentable significance unless a new and unexpected result is produced (MPEP §2144.04 VI B). Such a modification would predictably allow more airflow into the module.
The prior art combination module discussed above does not expressly disclose or teach wherein the cathode and anode are wires.
However, Barkeloo in the analogous art of microbial fuel cells (MFCs) teaches that it is known in the art to use wires for a microbial fuel cell’s anode and cathode ([0114]-[0116]) to receive and accommodate current generated by the microbial fuel cell ([0119]).
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 prior art combination cathode and anode such that they are wires. The cathode wire and anode wire would predictably transfer current generated by a consortium, as taught by Barkeloo. It has been held that a claim has no patentable significance when substitution of one known element for another yields predictable results to one of ordinary skill in the art (MPEP § 2143 I B).
Regarding claim 2, the prior art combination teaches the module of claim 1 wherein the bottom piece further comprises at least one fitting (Morgan: Fig. 2, gas diffusion apparatus 112 has a connection 212).
The limitation “configured to permit passage of the air supply through the bottom piece” is directed toward the intended manner of operating the claimed at least one fitting and does not differentiate the claimed structure from the prior art structure because all structural limitations are taught in the prior art (MPEP § 2114 II).
Regarding claim 4, the prior art combination teaches the module of claim 1.
The limitation “wherein the top piece is configured to collect and direct precipitation to the aqueous consortium” is directed toward the intended manner of operating the claimed top piece and does not differentiate the claimed structure from the prior art structure because all structural limitations are taught in the prior art (MPEP § 2114 II). In the absence of further positively recited structure, the prior art applied to claim 1 above meets claim 4.
Regarding claim 5, the prior art combination teaches the module of claim 1.
The limitation “wherein the top piece is configured to support one or more plants” is directed toward the intended manner of operating the claimed top piece and does not differentiate the claimed structure from the prior art structure because all structural limitations are taught in the prior art (MPEP § 2114 II). In the absence of further positively recited structure, the prior art applied to claim 1 above meets claim 5.
Regarding claim 8, the prior art combination teaches the module of claim 1 wherein the tube further comprises one or more passive gas diffusion devices (Morgan: Fig. 2, air inlet 206).
Regarding claim 9, the prior art combination teaches the module of claim 1 further comprising one or more consortium growth monitoring devices (Morgan: col. 9, lines 35-48 discloses a water monitor probe, which indirectly monitors algal growth conditions).
Regarding claim 10, the prior art combination as discussed above does not explicitly disclose a bioreactor power source, comprising: one or more modules as claimed in claim 1 electrically linked together.
However, Walter of the prior art combination discloses MFC modules connected in series (p. 3, section 2.1.2., “All the modules of a cascade were electrically connected in series”), which were able to power public lighting (abstract).
It has been held that it is prima facie obvious to applying a known technique to a known devices ready for improvement to yield predictable results (MPEP § 2143 I D). In this case, one or more prior art combination modules as described above (claim 1 rejection under 35 U.S.C. 103), i.e., the base device ready for improvement, could be improved by connecting them in series, i.e., electrically linking, to power public lighting, as taught by Walter.
Regarding claim 14, the prior art combination teaches the bioreactor power source of claim 10.
The limitation “wherein the bioreactor power source is configured to connect with one or more additional bioreactor power sources the whole configured to supply electrical power to one or more electrical loads” is directed toward the intended manner of operating the claimed bioreactor power source and does not differentiate the claimed structure from the prior art structure because all structural limitations are taught in the prior art (MPEP § 2114 II). In the absence of further positively recited structure, the prior art applied to claim 10 above meets claim 14.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Walter in view of Morgan and Barkeloo as applied to claim 2 above, and further in view of Ganuza Taberna et al. (US 2020/0002665 A1) (hereinafter referred to as Ganuza – see PTO-892).
Regarding claim 3, the prior art combination teaches the module of claim 2.
The prior art combination does not explicitly disclose or teach wherein the fitting is a quick-connect fitting.
However, Taberna in the analogous art of microalgae culturing teaches that quick connect couplers, i.e., quick connect fittings, are known in the art to allow fluid communication between parts ([0075]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the prior art fitting discussed above for a quick connect fitting because they would serve the same purpose of providing fluid communication between parts. It has been held that it is prima facie obvious to substitute equivalents known for the same purpose (MPEP § 2144.06).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Walter in view of Morgan and Barkeloo as applied to claim 1 above, and further in view of Mekuto et al. Microalgae as a biocathode and feedstock in anode chamber for a self-sustainable microbial fuel cell technology: A review (hereinafter referred to as Mekuto – see PTO-892).
Regarding claim 6, the prior art combination teaches the module of claim 1.
The prior art combination does not expressly disclose or teach wherein the consortium is aqueous and is composed of at least one algal species.
Morgan of the prior art combination teaches that algae can be used to treat polluted air, as discussed above.
Moreover, Mekuto in the analogous art of MFCs teaches that microalgae Spirulina sp. can be used to generate bioelectricity in an MFC (p. 9, col. 2 discloses Chlorella vulgaris used as an electron acceptor in a photosynthetic MFC).
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 prior art combination module such that the consortium is aqueous and is composed of at least one algal species because Mekuto teaches that Spirulina sp. can be used in an MFC to produce clean electricity. It has been held that it is prima facie obvious to applying a known technique to a known devices ready for improvement to yield predictable results (MPEP § 2143 I D). In this case, the prior art combination module, i.e., the base device, could be improved by using at least one algal species in the consortium to treat polluted air, as shown by Morgan, or to generate bioelectricity, as shown by Mekuto.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Walter in view of Morgan, Barkeloo, and Mekuto as applied to claim 6 above, and further in view of Hossain, Progress in physicochemical parameters of microalgae cultivation for biofuel production (hereinafter referred to as Hossain – see PTO-892).
Regarding claim 7, the prior art combination teaches the module of claim 6.
Mekuto of the prior art combination teaches that both Arthrospira platensis and Chlorella vulgaris can be used in an MFC (p. 9, section 3.1 discusses use of Chlorella vulgaris and p. 14, section 4.5 discusses use of Spirulina platensis) but does not explicitly disclose use of the two species together.
However, Hossain in the analogous art of microalgae cultivation teaches that mixed cultures of Spirulina platensis and Chlorella vulgaris are known electrode substrates (p. 16, col. 2).
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 prior art combination module such that the algal species are Arthrospira platensis and Chlorella vulgaris, as taught by Hossain. The ordinarily skilled artisan would be motivated to use the claimed species because they are known in the art to generate bioelectricity when cultured together.
Claims 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Walter in view of Morgan and Barkeloo as applied to claim 10 above, and further in view of Park et al. (KR 20160068541 A) (hereinafter referred to as park – English machine translation provided, see PTO-892).
Regarding claim 11, the prior art combination teaches the bioreactor power source of claim 10.
The prior art combination does not disclose or teach wherein the one or more modules are attached to a ground support pole.
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However, Park in the analogous art of photobioreactors teaches a reaction chamber, i.e., a photobioreactor, connected to a streetlight pole, i.e., attached to a ground support pole (Fig. 1 – see figure below).
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 prior art combination bioreactor power source as discussed above to attach the one or more modules to a ground support pole to power the streetlight. It has been held that it is prima facie obvious to applying a known technique to a known devices ready for improvement to yield predictable results (MPEP § 2143 I D). In this case, Park’s apparatus, i.e., the base device, could be improved by attaching the prior art combination one or more modules as discussed above to a streetlight pole to power the light.
Regarding claim 12, the prior art combination teaches the bioreactor power source of claim 11.
The limitation “wherein the ground support pole is configured with support bases configured to hold the bioreactor modules and provide an air supply” is directed toward the intended manner of operating the claimed ground support pole and does not differentiate the claimed structure from the prior art structure because all structural limitations are taught in the prior art (MPEP § 2114 II). In the absence of further positively recited structure, the prior art applied to claim 11 above meets claim 12.
Regarding claim 13, the prior art combination teaches the ground support pole of claim 11.
The limitation “wherein the ground support pole is configured with one or more air inlets fluidically connected to at least one air pump, said air pump further configured to draw in air through the inlets and supply the air to one or more bioreactor modules” is directed toward the intended manner of operating the claimed ground pole and does not differentiate the claimed structure from the prior art structure because all structural limitations are taught in the prior art (MPEP § 2114 II). In the absence of further positively recited structure, the prior art applied to claim 11 above meets claim 13.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ADRIAN J CARREON whose telephone number is (571)272-6818. The examiner can normally be reached Monday - Friday 8:30 AM - 5 PM.
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/A.J.C./ Examiner, Art Unit 1799
/William H. Beisner/ Primary Examiner, Art Unit 1799
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