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
Applicant's election with traverse of Group I in the reply filed on 11/12/2025 is acknowledged. Applicants argue that the inventions have unity of invention based on MPEP 1850. However, that section of the MPEP discusses restriction for National Stage Applications filed under 35 USC 371. However, the present application was not filed under 35 USC 371. See MPEP 1896 regarding the differences in restriction practice for applications under 35 USC 111(a) and 35 USC 371. Applications filed under 35 USC 111(a) are not subject to unity of invention practice.
Applicants argue that the system of group I cannot be used to grow cyanobacteria because growth requirements for cyanobacteria and algae are different. However, applicants have not provided any evidence that the system of group I contains any particular features that would preclude the growth of cyanobacteria.
The requirement is still deemed proper and is therefore made FINAL.
Claims 13-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 11/12/2025.
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 controlling means claimed in Claim 11 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.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 contains irregular bullet points. To set forth elements or steps of a claim, applicant should use line indentation. See MPEP 608.01(m).
Claim 1, line 3, states “(not shown)”. Claimed limitations not shown in the drawings are subject to a drawing objection and the drawings do show an opening. Examiner suggests removing this language.
Claim 1, line 10, states “and define intermittent light and dark cycle for”. Examiner believes this is a typographical error and should read “and define an intermittent light and dark cycle for”.
Claim 8 states “i), ii), iii), iv)” throughout. These are unnecessary symbols and cause confusion when reading the claim. Removal of these is recommended. As noted above, use of indentation can make the claim clearer as well.
Claim 11, line 3, states “(not shown)”. Claimed limitations not shown in the drawings are subject to a drawing objection. Examiner suggests removing this language.
Claim 11 uses periods in “i.” and “ii.”. Periods may not be used except for the end of the claim except for abbreviations. To set forth elements or steps of a claim, applicant should use line indentation. See MPEP 608.01(m).
Appropriate correction is required.
Claim Interpretation
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.
In Claim 1, “ at least one circulating means” and “at least one covering means” are being interpreted under 35 U.S.C. 112(f). Applicants specification, page 14, defines the circulating means to be either a pump or a pump and paddle wheels. Applicants specification, page 19, defines the covering means to be a photovoltaic panel, wooden block, plastic sheet, cloth, or permanent structure.
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 3-6 and 9-12 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 3 recites the limitation "the side walls and the partition" in line 1. There is insufficient antecedent basis for this limitation in the claim. For examination purposes, it is interpreted as depending from Claim 2.
Claim 3 states “the partition walls”. It is unclear how there are two partition walls, as Claim 2 states there is a singular partition wall. For examination purposes, it is interpreted as the side walls and the partition wall are parallel to each other.
Regarding Claim 3, it is unclear what is meant by the side walls and partition wall being aligned in a direction dependent upon the location of the reservoir. It is unclear if this is an orientation of the reservoir or physical location of the reservoir and how the location effects the alignment of the side walls and partition wall. Further clarification is requested.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 4, 5, and 10 recite the broad recitation “5 cm/s to 30 cm/s”, “15% to 55%”, and “6:1”, respectively and the claims also recite “5 cm/s to 15 cm/s”, “28% to 40%”, and “3:1.5”, respectively, which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For examination purposes, it is being treated as the broadest of ranges.
Claim 6 is further rejected as it depends from Claim 5.
Regarding Claim 9, it is unclear whether the plurality of sensors are being selected as a group together or individually from the group. Further, it is unclear whether the cover motion sensor, all of the sensors, or some of the sensors are configured to detect the light intensity, the level of the fluid medium, and physio-chemical parameters. Further clarification of the claim is requested. For examination purposes, it is being interpreted as the system requires a plurality of sensors from the list provided.
Regarding Claim 11, lines 10 and 12 state “configured to cooperate”. It is unclear what is meant by this claim language. It is unclear if the microprocessor is defining the velocity of the flow path or the circulating means is defining it and the microprocessor is connected and cooperating with it. Further clarification is requested. Further regarding claim 12, it is unclear if the limitation “specifically configured to cooperate…” in lines 10 and 12 is an example or preference, rather than a required claim limitation. See MPEP 2173.05(d).
Regarding Claim 12, it is unclear whether the wireless communication network is required to communicate through all of the options, or just one of the options listed. For examination purposes, it is interpreted as being a Markush group of Internet of Things, short-range communication, and long-range communication.
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.
Claims 1, 2, 4-5, 7, 9 and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tonkovich et al. (WO2014144270A1).
Regarding Claim 1, Tonkovich teaches the following:
A bioreactor system comprising a culture vessel (reservoir) with an inner volume configured to contain an aqueous culture of mixotrophic microorganisms ( configured to contain a fluid medium having an algal culture) and at least one lighting device or a component [an opening or window] to allow the inner volume exposure to some light (para 35)(an opening through with the ambient light can be incident on the fluid medium contained in the reservoir in its operative configuration)
The culture may be circulated by any known means such as thrusters, pumps, paddlewheels, and gravity (para 47)(at least one circulating means configured to circulate the fluid medium in said reservoir in its operative configuration at a desired velocity)
A cover configured to block at least a portion of the sunlight from contacting the culture of microorganisms in which the cover may comprise a photovoltaic panel, a film, a passive shade cloth, a polymer, tinted glass, and combinations thereof (para 51)(at least one covering means configured in its operative state to at least partially cover said opening of reservoir to at least partially block the light incident on the fluid medium)
The covering means to define an intermittent light and dark cycle for the fluid medium for a predetermined period of time in the reservoir to define a predetermined ration of light and ark time is an intended use of the device. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim (see MPEP 2114). The device of Tonkovich would be capable of defining the light and dark cycle and therefore meets the claim.
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Regarding Claim 2, Tonkovich teaches all of the limitations of Claim 1 (see above). Tonkovich further teaches the bioreactor may comprise a culturing vessel such as... a raceway pond (para 35)(reservoir is an open raceway pond). Tonkovich further teaches the pond to be generally oval-shaped with curved end walls and straight side walls and a partition wall provided in the reservoir spaced apart from the sidewalls to define a path for fluid medium circulating in the reservoir in its operative configuration (see Fig. 7, below).
Further the raceway pond may be constructed above ground with a frame or molded body, or may be constructed in the ground (para 59)(said walls of said reservoir being at least partially embedded in the ground or projecting therefrom).
Regarding Claim 4, Tonkovich teaches all of the limitations of Claim 1 (see above). Tonkovich further teaches the culture may be circulated by any known means such as thrusters, pumps, paddlewheels, and gravity (para 47)(circulating means being defined by a pump or a pump and paddle wheels). The circulating means being configured to circulate the fluid medium along the flow path at a specific velocity is an intended use of the device. The pump of Tonkovich would be capable of circulating the fluid medium at a specific velocity and therefore meets the claim.
Regarding Claim 5, Tonkovich teaches all of the limitations of Claim 1 (see above). Tonkovich further teaches the cover configured to block at least a portion of the sunlight from contacting the culture of microorganisms in which the cover may comprise a photovoltaic panel (para 47)(said covering means is a photovoltaic panel). The covering means configured to cover a footprint area of the reservoir to the extent of 15-55% is an intended use of the device. Given Tonkovich teaches the bioreactor may be at least partially covered with a cover, the device of Tonkovich would be capable of covering 15-55% of the footprint area, and therefore meets the claim. Further, the cover must be aligned across the flow path, parallel to the flow path or partially parallel to the flow path as there is no other possible alignment.
Regarding Claim 7, Tonkovich teaches all of the limitations of Claim 1 (see above). The photovoltaic panels to power said circulating means or the movement of said covering means is an intended use of the device. Tonkovich’s photovoltaic panels would be capable of powering the circulating means and therefore meets the claim.
Regarding Claim 9, Tonkovich teaches all of the limitations of Claim 1 (see above). Tonkovich further teaches the system may comprise sensors to measure and monitor at least one of pH, temperature, flow velocity, light, culture concentration (para 81).
Regarding Claim 10, Tonkovich teaches all of the limitations of Claim 1 (see above). Given the covering means being configured to define the predetermined ration of light and ark time is an intended use of the device, system would be capable of having the ration of light and dark time being in the range of 6:1 and therefore meets the claim.
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.
Claims 3 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Tonkovich et al. (WO2014144270A1) in view of Mohan et al. (WO2018203211A1).
Regarding Claim 3, Tonkovich teaches all of the limitations of Claim 1 (see above). Tonkovich further teaches the sidewalls and the partition are aligned parallel to each other (see Fig. 7, above). Tonkovich further teaches when the temperature of the culture of microorganisms cannot be consistently maintained, methods of cooling and heating may need to be added to the system (para 41). Tonkovich does not teach the depth of the reservoir in the range of 5 cm to 30 cm, or the temperature of the fluid medium to be controlled to be 28 to 40 degrees Celsius.
Mohan teaches an algal cultivation system with an algal raceway pond (page 8, lines 16-20). Mohan further teaches the system to operate at shallow depths, i.e. less than 10 cm (page 13, line 11).
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 device of Tonkovich and adjust the depth of the reservoir to less than 10 cm as taught by Mohan. One would have been motivated to make this modification as it ensures maximum utilization of sunlight with minimum attenuation losses (page 13, lines 11-12).
Further, it would have been obvious to one of ordinary skill in the art to control the fluid medium to be in an acceptable range dependent upon the material being cultivated and Tonkovich teaches adding a cooling or heating method to achieve the desired temperature (para 41).
Regarding Claim 8, Tonkovich teaches all of the limitations of Claim 1 (see above). Tonkovich further teaches sensors to measure and monitor at least one of temperature, flow velocity and light (para 81). Given the device of Tonkovich requires a pump and an array of sensors, a power device for supplying power to said sensors being selected from an external power device, a power device mounted on said covering means, and a combination of power devices is a required element of Tonkovich’s device. Tonkovich does not teach a sensor for sensing the depth of the fluid medium in the reservoir.
Mohan teaches a sensor within the system such as a level sensor (depth sensor)(page 3, lines 10-11). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a level sensor in the system of Tonkovich as taught by Mohan. One would have been motivated to make this modification as it would allow the monitoring of the level of the system and allow the stopping or starting of the pump of the device (page 3, lines 27-28).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Tonkovich et al. (WO2014144270A1) in view of Shoham et al. (US20150250113A1).
Tonkovich teaches all of the limitations of Claim 1 (see above). Tonkovich does not teach the system is controlled and operated remotely over a wireless communication network selected from a group that consists of the internet of things, short-range communication, and long-range communication.
Shoham teaches a system for monitoring growth of an aquatic plant culture (Abstract). Shoham further teaches the system to be automated with Wi-Fi communication and remote control (para 144). 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 device of Tonkovich with the communication and remote control as taught by Shoham. One would have been motivated to make this modification to facilitate accurate and highly potent real time culture management and performance optimization (para 144).
Allowable Subject Matter
Claims 6 and 11 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding Claim 6, Tonkovich teaches all of the limitations of Claim 5 (see above). Tonkovich does teach the cover to be movable photovoltaic panels as they had to have been installed and therefore are capable of being moved. Tonkovich further teaches a propeller mixer fastened to a rotating shaft and driven by a motor (para 75)(the circulating means being controlled by means of at least one motor).
However, Tonkovich does not teach the movement of the photovoltaic panels to cover and uncover the opening being controlled by means of at least one first motor.
Note: Said motors being powered by the power obtained from the photovoltaic panels is intended use of the device and would only need to be capable to meet the claim.
Further, examiners search provided no other prior that would have anticipated or would have been obvious to combine to arrive at the claimed invention.
Regarding Claim 11, Tonkovich teaches all of the limitations of Claim 1 (see above). Tonkovich does teach a pump (motor driven circulating means). Tonkovich does not teach a motor driven covering means, a controller configured to regulate the condition for growth of the culture, a memory, or a microprocessor configured to operate and execute one or more devices of the system.
Mohan teaches the system to comprise a controller with cooperates with the pumping device, level sensors, and salinity sensors which generate signals received by the controller and the controller generates an output signal to trigger to stop the pumping device (page 3, lines 23-28).
Mohan does not teach the motor driven covering means or the microprocessor to cover or uncover a desired area in accordance with the exposed area of the reservoir in real time.
Further, examiners search found no other prior art that anticipated or would have been obvious to combine to arrive at the claimed invention.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN E LEPAGE whose telephone number is (571)270-3971. The examiner can normally be reached 8:30-5:30 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Elizabeth Robinson can be reached at 571-272-7129. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.E.L./ Examiner, Art Unit 1796
/ELIZABETH A ROBINSON/ Supervisory Patent Examiner, Art Unit 1796