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 § 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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(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 6-7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by JP3203957U (see machine translation; Herein, “JP ‘957”).
Regarding claim 1, JP ‘957 teaches a culture device (Figs. 1-4; paragraph [0001]) for culturing microalgae in a culture solution (interpreted as an intended use, see MPEP 2114; [0001],[0016]), the culture device comprising:
an accommodation portion (Fig. 1, culture tank 10) configured to accommodate the culture solution and the microalgae (interpreted as a functional limitation, see MPEP 2114; [0001],[0016] and Fig. 1 teaches the culture tank 10 is capable of accommodating a culture medium and microalgae);
a guide portion (Fig. 1, airlift piping 30) provided inside the accommodation portion (Fig. 1) and extending in a depth direction of the accommodation portion (Fig. 1);
a gas supply portion (Fig. 1, air connection pipe 21 coupled to air pump 20) configured to supply gas at a lower portion of the guide portion in the depth direction (Fig. 1 and [0035] teaches the air connection pipe provides air, i.e. gas, at a lower portion of the airlift piping 30 in a depth direction near intake port 31);
wherein
the gas supply portion includes an extended tube portion that extends along the guide portion from an upper portion to the lower portion of the guide portion in the depth direction (Fig. 1 teaches the air connection pipe 21, i.e. extended tube portion, extends along airlift piping 30 from an upper portion, e.g. near element 42, towards a lower portion, i.e. near element 31, in the depth direction),
convection of the culture solution is caused by the gas supplied into the culture solution (interpreted as an intended use, see MPEP 2114; Fig. 1 and [0007] teaches the provided air allows for circulation of the culture medium, therefore convection is capable of being caused by the air supplied into the culture medium of the culture tank 10), and
when a region through which an upward flow of the convection passes is defined as an upward flow region (Fig. 1, interpreted as a region of upward flow of the air bubbles in air lift piping 30) wherein the upward flow moves from a lower portion of the accommodation portion in the depth direction toward the upper portion of the accommodation portion in the depth direction (Fig. 1 and [0026] teaches the air bubbles cause culture medium to be drawn from the lower portion near element 31 and rise towards the upper end of the pipping 33), the extended tube portion of the gas supply portion is arranged in the upward flow region along the guide portion (Fig. 1 shows the air connection pipe 21 is arranged in the upward flow region along the air lift piping 30).
Regarding claim 6, JP ‘957 teaches wherein the extended tube portion of the gas supply portion includes a gas discharge port (Fig. 1, interpreted as the lower port of air connection pipe 21 near element 31) configured to discharge gas toward the accommodation portion (Fig. 1 and [0026] teaches air is pumped or discharged towards the culture tank 10 via the lower port of air connection pipe 21 near element 31), and the gas discharge port opens toward a bottom portion of the accommodation portion (Fig. 1 teaches the lower port of air connection pipe 21 near element 31 opens towards a bottom portion of the culture tank 10).
Regarding claim 7, JP ‘957 teaches wherein the guide portion (Fig. 1, airlift piping 30) includes a deflection portion (Fig. 1, first pipe branch 34, second pipe branch 35, and cross-shaped pipe 33c) that directs the gas supplied from the extended tube portion of the gas supply portion in a horizontal direction (interpreted as an intended use, see MPEP 2114; Figs. 1-2 and [0026] teaches air bubbles rise through piping 33 to cause culture medium to rise and then flow through cross-shaped pipe 33c and pipe branch sections 34,35 to be blown out from the airlift pipe 30; therefore, the cross-shaped pipe 33c and branches 34,25 are structurally capable of directing gas, i.e. air bubbles, from air connection pipe 21, to the branch sections 34,35 which are in a horizontal direction), and the deflection portion is arranged at the upper portion of the guide portion in the depth direction (Fig. 1 teaches the cross-shaped pipe 33c and pipe branch sections 34,35 are at an upper portion of the airlift piping 30), and the deflection portion includes an insertion hole through which the gas supply portion is inserted (Fig. 1 shows cross-shaped pipe 33c including an opening or hole through which air connection pipe 21 is inserted).
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 conflicting claims 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) 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 www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-2 and 6-7 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 5 of copending Application No. 18/845,440 (herein, “App ‘440”) in view of JP3203957U (see machine translation; Herein, “JP ‘957”).
Regarding claim 1, App ‘440 recites a culture device for culturing microalgae in a culture solution (claim 1), the culture device comprising:
an accommodation portion (claim 1, “accommodating section”) configured to accommodate the culture solution and the microalgae (claim 1);
a guide portion (claim 1, “guide members”) provided inside the accommodation portion and extending in a depth direction of the accommodation portion (claim 1);
a gas supply portion (claim 1, “gas supply unit”) configured to supply gas at a lower portion of the guide portion in the depth direction (claim 1);
wherein
convection of the culture solution is caused by the gas supplied into the culture solution (interpreted as an intended use, see MPEP 2114; claim 1 recites gas is supplied at a lower end and rises up along the body portion, therefore convection is capable of being caused by the gas), and
when a region through which an upward flow of the convection passes is defined as an upward flow region wherein the upward flow moves from a lower portion of the accommodation portion in the depth direction toward the upper portion of the accommodation portion in the depth direction (claim 1 recites the body portion includes an upper end, and gas rises along the body portion; therefore, the body portion includes an upper flow region through which an upward flow moves from the lower portion of the accommodation portion to the upper portion of the accommodation portion).
App ‘440 fails to recite: the gas supply portion includes an extended tube portion that extends along the guide portion from an upper portion to the lower portion of the guide portion in the depth direction; the extended tube portion of the gas supply portion is arranged in the upward flow region along the guide portion.
JP ‘957 teaches a culture device (Figs. 1-4; paragraph [0001]) for culturing microalgae in a culture solution (interpreted as an intended use, see MPEP 2114; [0001],[0016]), the culture device comprising: an accommodation portion (Fig. 1, culture tank 10) configured to accommodate the culture solution and the microalgae (interpreted as a functional limitation, see MPEP 2114; [0001],[0016] and Fig. 1 teaches the culture tank 10 is capable of accommodating a culture medium and microalgae); a guide portion (Fig. 1, airlift piping 30) provided inside the accommodation portion (Fig. 1) and extending in a depth direction of the accommodation portion (Fig. 1); a gas supply portion (Fig. 1, air connection pipe 21 coupled to air pump 20) configured to supply gas at a lower portion of the guide portion in the depth direction (Fig. 1 and [0035] teaches the air connection pipe provides air, i.e. gas, at a lower portion of the airlift piping 30 in a depth direction near intake port 31); wherein the gas supply portion includes an extended tube portion that extends along the guide portion from an upper portion to the lower portion of the guide portion in the depth direction (Fig. 1 teaches the air connection pipe 21, i.e. extended tube portion, extends along airlift piping 30 from an upper portion, e.g. near element 42, towards a lower portion, i.e. near element 31, in the depth direction), convection of the culture solution is caused by the gas supplied into the culture solution (interpreted as an intended use, see MPEP 2114; Fig. 1 and [0007] teaches the provided air allows for circulation of the culture medium, therefore convection is capable of being caused by the air supplied into the culture medium of the culture tank 10), and when a region through which an upward flow of the convection passes is defined as an upward flow region (Fig. 1, interpreted as a region of upward flow of the air bubbles in air lift piping 30) wherein the upward flow moves from a lower portion of the accommodation portion in the depth direction toward the upper portion of the accommodation portion in the depth direction (Fig. 1 and [0026] teaches the air bubbles cause culture medium to be drawn from the lower portion near element 31 and rise towards the upper end of the pipping 33), the extended tube portion of the gas supply portion is arranged in the upward flow region along the guide portion (Fig. 1 shows the air connection pipe 21 is arranged in the upward flow region along the air lift piping 30).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the gas supply portion of App ‘440 to incorporate JP ‘957’s teachings of a gas supply portion including an extended tube extending and arranged along the guide portion in the depth direction to provide: the gas supply portion includes an extended tube portion that extends along the guide portion from an upper portion to the lower portion of the guide portion in the depth direction; the extended tube portion of the gas supply portion is arranged in the upward flow region along the guide portion. Doing so would have a reasonable expectation of successfully allowing for introduction of gas to the guide portion and accommodation portion. Additionally, doing so would be an obvious rearrangement of parts (MPEP 2144.04 (VI)(C)), wherein the particular placement and arrangement of the gas supply portion as an extended tube portion would be an obvious matter of design choice in view of JP ‘957.
Regarding claim 2, App ‘440 recites wherein the guide portion includes a guide body extending in the depth direction (claim 1 recites the guide members is inside the accommodation section and include a body portion that includes a lower end facing the accommodation section, therefore the guide member extends in the depth direction into the accommodation section), the guide body includes a first wall portion and a second wall portion facing each other (claim 5, first and third wall portion that face each other), and a third wall portion interposed between the first wall portion and the second wall portion (claim 5, second wall portion) and continuous with the first wall portion and the second wall portion (claim 5 recites the first, second, and third wall portions are connected together, therefore the second wall portion, i.e. third wall portion, is continuous with the first and third wall portions), and a cross section of the guide body cut along a direction perpendicular to the depth direction is formed into a U-shape by the first wall portion, the second wall portion, and the third wall portion (claim 5), and a hollow interior of the guide body is part of the upward flow region (claim 5 recites the guide member includes a first, second, and third wall portion that are connected to form a U-shape; therefore, the guide member is interpreted as having a hollow interior, i.e. the hollow portion of the U-shape, that is part of an upward flow region).
Regarding claim 6, App ‘440 fails to recite: wherein the extended tube portion of the gas supply portion includes a gas discharge port configured to discharge gas toward the accommodation portion, and the gas discharge port opens toward a bottom portion of the accommodation portion.
JP ‘957 teaches wherein the extended tube portion of the gas supply portion includes a gas discharge port (Fig. 1, interpreted as the lower port of air connection pipe 21 near element 31) configured to discharge gas toward the accommodation portion (Fig. 1 and [0026] teaches air is pumped or discharged towards the culture tank 10 via the lower port of air connection pipe 21 near element 31), and the gas discharge port opens toward a bottom portion of the accommodation portion (Fig. 1 teaches the lower port of air connection pipe 21 near element 31 opens towards a bottom portion of the culture tank 10).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the gas supply portion of App ‘440 to incorporate JP ‘957’s teachings of a gas discharge port towards a bottom portion of the accommodation portion to provide: wherein the extended tube portion of the gas supply portion includes a gas discharge port configured to discharge gas toward the accommodation portion, and the gas discharge port opens toward a bottom portion of the accommodation portion. Doing so would have a reasonable expectation of successfully allowing for introduction of gas to the bottom portion of the accommodation portion to allow for proper circulation of culture medium. Additionally, doing so would be an obvious rearrangement of parts (MPEP 2144.04 (VI)(C)), wherein the particular placement and arrangement of the extended tube portion and gas discharge port would be an obvious matter of design choice in view of JP ‘957.
Regarding claim 7, App ‘440 recites wherein the guide portion includes a deflection portion (claim 1) that directs the gas supplied from the extended tube portion of the gas supply portion in a horizontal direction (claim 1), and the deflection portion is arranged at the upper portion of the guide portion in the depth direction (claim 1).
App ‘440 fails to recite: the deflection portion includes an insertion hole through which the gas supply portion is inserted.
JP ‘957 teaches wherein the guide portion (Fig. 1, airlift piping 30) includes a deflection portion (Fig. 1, first pipe branch 34, second pipe branch 35, and cross-shaped pipe 33c) that directs the gas supplied from the extended tube portion of the gas supply portion in a horizontal direction (interpreted as an intended use, see MPEP 2114; Figs. 1-2 and [0026] teaches air bubbles rise through piping 33 to cause culture medium to rise and then flow through cross-shaped pipe 33c and pipe branch sections 34,35 to be blown out from the airlift pipe 30; therefore, the cross-shaped pipe 33c and branches 34,25 are structurally capable of directing gas, i.e. air bubbles, from air connection pipe 21, to the branch sections 34,35 which are in a horizontal direction), and the deflection portion is arranged at the upper portion of the guide portion in the depth direction (Fig. 1 teaches the cross-shaped pipe 33c and pipe branch sections 34,35 are at an upper portion of the airlift piping 30), and the deflection portion includes an insertion hole through which the gas supply portion is inserted (Fig. 1 shows cross-shaped pipe 33c including an opening or hole through which air connection pipe 21 is inserted).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified deflecting portion of App ‘440 to incorporate JP ‘957’s teachings of a deflection portion with an insertion hole for the gas supply portion to provide: the deflection portion includes an insertion hole through which the gas supply portion is inserted. Doing so would have a reasonable expectation of successfully allowing for insertion of the gas supply portion and introduction of gas to the bottom portion of the accommodation portion to allow for proper circulation of culture medium.
This is a provisional nonstatutory double patenting rejection.
Prior Art / Allowable Subject Matter
Claims 2-5 are not taught or fairly suggested, alone or in combination, from the prior art.
Claims 3-5 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.
Regarding claim 2, the closest prior art of JP3203957U (see machine translation; Herein, “JP ‘957”) teaches the culture device according to claim 1 (see above rejection of claim 1), and further teaches wherein the guide portion includes a guide body extending in the depth direction (Fig. 1, airlift piping 30 extends in a depth direction), a wall portion (Figs. 1-3, interpreted as the cylindrical wall of airlift piping 30, which includes the main body of the pipping 33), and a hollow interior of the guide body is part of the upward flow region (Fig. 1 shows a hollow interior of airlift piping 30 is part of the upward flow region). However, JP ‘957 fails to teach the guide body includes a first wall portion and a second wall portion facing each other, and a third wall portion interposed between the first wall portion and the second wall portion and continuous with the first wall portion and the second wall portion, and a cross section of the guide body cut along a direction perpendicular to the depth direction is formed into a U-shape by the first wall portion, the second wall portion, and the third wall portion. None of the prior art teaches or fairly suggest motivation to have modified JP ‘957 to include the claimed guide body having three wall portions forming a U-shape.
None of the prior art teaches or fairly suggests, alone or in combination, all of the limitations of claim 2.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 3, as discussed above regarding claim 2, none of the prior art teaches or fairly suggests, alone or in combination, all of the limitations of claim 2. Therefore, claim 3 is deemed allowable based on its dependency on all of the limitations of claim 2. Claims 4-5 are deemed allowable based on their dependency on claim 3.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Berzin (US 20090011492 A1) teaches a system for culturing algae (abstract; Fig. 1A) including a gas spargers (122, 124) to create bubbles to rise up through channels to induce liquid flow ([0074]), and a partition (101). Berzin teaches the partition can be tubular (Fig. 5D, element 417). Berzin teaches a gas inlet that extends into the bioreactor from the top and towards the bottom (Fig. 2B; [0110]), wherein support legs are attached to the gas inlet within the channel so that the gas inlet and gas sparger are supported on the partition ([0110]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HENRY H NGUYEN whose telephone number is (571)272-2338. The examiner can normally be reached M-F 7:30A-5:00P.
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/HENRY H NGUYEN/Primary Examiner, Art Unit 1758
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