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 .
Notes
All the objections and rejections in the previous Office Action not reiterated herein have been withdrawn.
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.
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: “a visual inspection means” in claim 5.
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 the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 5 and 21 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Amended independent claim 5 recites the limitation "at least one sensor or analyzer for determining the concentration of nitrate and the concentration of biomass" in lines 21-22. However, said limitation constitutes new matter. The instant specification, as originally filed, discloses that the nitrogen source should controlled in order to keep the nitrate concentration below a certain level (see page 5, ll. 9-13). The disclosure also discusses results of an experiment detailing the effect of different ammonia concentration in the fermentation process (pages 20 to 21). However, Applicant’s disclosure is silent regarding at least one sensor or analyzer for determining the concentration of biomass. Moreover, the disclosure is silent regarding a single sensor or analyzer that determines both the concentration of the nitrate and the concentration of the biomass. There is no discussion in the Applicant’s disclosure of such sensor/analyzer. As such, said limitation constitutes new matter.
Claim 7-10, 12-13 and 15-21 are included in this rejection by virtue of their dependency upon a rejected base claim.
Amended claim 21 recites the limitation "the at least one sensor or analyser is configured for continuously determination of the nitrate concentration and biomass concentration by in-line analysis or on-line analysis," however, said limitation constitutes new matter. The instant specification, as originally filed, discloses that the nitrogen source should controlled in order to keep the nitrate concentration below a certain level (see page 5, ll. 9-13). The disclosure also discusses results of an experiment detailing the effect of different ammonia concentration in the fermentation process (pages 20 to 21). However, Applicant’s disclosure is silent regarding at least one sensor or analyzer configured for continuously determination of the biomass concentration by in-line analysis or on-line analysis. Moreover, the disclosure is silent regarding a single sensor or analyzer that determines both the concentration of the nitrate and the concentration of the biomass. There is also no discussion in the Applicant’s disclosure of such sensor/analyzer. Furthermore, while the disclosure discusses that the concentration of the nitrate may be determined by an in-line analysis or by an on-line analysis (page 8, ll. 16-18), the disclosure is silent regarding such analysis for the biomass concentration. As such, said limitation constitutes new matter.
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 5, 7-10, 12-13 and 15-21 are rejected under 35 U.S.C. 103 as being unpatentable over Larsen (already of record, US 2011/0244543) in view of Vigreux (already of record, EP 0057152-B2, English machine translation has been provided) and Jiang et al (WO 2009/129655-A1; with English machine translation; hereinafter “Jiang”).
Regarding claims 5 and 10, Larsen discloses a fermentation reactor comprising a loop-part (FIG. 2: U-shaped fermenter (100) having a loop part ; [0073], [0076]) and a top tank (FIG. 2: U-shaped fermenter (100) having a top tank (top part 104); [0073], [0076]), said loop-part comprising a downflow part, connected to an upflow part via a U-part (FIG. 2: U-shaped fermenter includes a down-flow leg (101) and an up-flow leg (102); [0073], [0076]), wherein the top tank comprises: (i) a first outlet connecting the top tank to the downflow part of the loop-part and allowing a fermentation liquid present in the top tank to flow from the top tank into the loop-part (FIGS. 2-3: opening of the top tank (top part 104) connected to the down-flow leg (101); [0073], [0076]); (ii) a first inlet connecting the top tank to the upflow part of the loop-part, allowing fermentation liquid present in the loop-part to flow from the loop part into the top tank (FIGS. 2-3: opening of the top tank (top part 104) connected to the up-flow leg (102); [0073], [0076]); wherein the fermentation reactor further comprises: (v) at least one inlet for supplying a nitrogen-source comprising ammonia, an ammonium compound and/or molecular nitrogen (injection points 110 or through other nozzles (not shown) placed in the down-flow leg or up-flow leg or the U-bend of the fermenter; [0049], [0063], [0086], [0110]; Claim 46); and (vi) at least one sensor or analyser for determining the concentration of nitrate in the fermentation liquid (fermenter includes one sensor configured to measure concentration of nitrate in the liquid; [0094]); and wherein the fermentation reactor comprises at least one supply pump configured and/or controlled to automatically regulate the nitrate concentration in the fermentation liquid, the supply pump being configured to supply the nitrogen-source to maintain the nitrate concentration below 0.035 g/l and to maintain the nitrate concentration below 0.01 g nitrate/g biomass (FIG. 4: a pump (111) coupled to the injection points (110) for introducing gaseous substrates including nitrogen-source; [0049], [0086], [0110]; the addition of gaseous substrates including nitrogen-source into the fermenter is controlled by a control system based on data (e.g., nitrate concentration) obtained by the at least sensor; [0094], [0097], [0103], [0111]; thus, the pump is configured and/or controlled automatically regulate the nitrate concentration in the fermentation liquid, the supply pump being configured to supply the nitrogen-source to maintain the nitrate concentration below 0.035 g/l and to maintain the nitrate concentration below 0.01 g nitrate/g biomass). Larsen does not explicitly disclose wherein the top tank comprises a vent tube for discharging effluent gasses from the top tank. However, Larsen does disclose wherein the gas from a headspace (117) of the top tank is release via a valve (120) (0089]). Further, Larsen discloses wherein the vent tube is well-known in the art for venting gas or gases separated in the headspace of a top tank (FIG. 1: venting tube 6; [0070]). In view of Larsen, it would have been obvious to one of ordinary skill in the art to have incorporated a venting tube into the top tank of Larsen for the purpose of venting gas or gases separated in the headspace of a top tank, as disclosed by Larsen (FIG. 1: venting tube 6; [0070]). Further, one of ordinary skill in the art would have made said modification since such component is well-known in the art as disclosed by Larsen ([0070]). Larsen does not explicitly disclose wherein the top tank comprises a visual inspection means. Vigreux discloses a fermentation reactor comprising an inspection hole for periodic maintenance operations (see FIG. 1 and page 4 of the English translation). In view of Vigreux, it would have been obvious to one of ordinary skill in the art to have incorporated an inspection hole into the top tank of Larsen for the purpose of facilitating periodic maintenance operations of the top tank as disclosed by Vigreux (see FIG. 1 and page 4 of the English translation). Larsen does not explicitly disclose at least one sensor or analyser for determining the concentration of biomass in the fermentation liquid. Jiang discloses a fermentation system comprising a fermenter (FIG. 6: fermentation tank (101); page 6 of the English translation document), a plurality of sensors including nutrient concentration sensor (glucose or nitrogen sensor) and a biomass concentration sensor (see pages 2 and 6), and a controller for controlling addition of nutrient into the fermenter based on the sensed data (page 6). In view of Jiang, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have employed the biomass concentration sensor of Jiang with the fermentation reactor of Larsen to arrive at the claimed invention. One of ordinary skill in the art would have made said modification for the purpose of timely controlling of the fermentation process as disclosed by Jiang (page 2), and thereby enhancing the fermentation process.
Furthermore, it is noted that the recitations of functional language "e.g., for supplying a nitrogen-source comprising ammonia; to supply the nitrogen-source to maintain the nitrate concentration below 0.035 g/l and to maintain the nitrate concentration below 0.01 g nitrate/g biomass" are drawn to intended use of the claimed invention. It is noted that a recitation directed to the manner in which a claimed apparatus is intended to be used does not distinguish the claimed apparatus from the prior art, if the prior art has the capability to so perform. Apparatus claims must distinguish from the prior art in terms of structure rather than function (see MPEP 2114). Furthermore, the intended uses of the apparatus do not further define any structural features to the claimed supply pump but rather only define how the supply pump may be used. The prior art discloses all of the structural features of the claimed supply pump and thus since the structure is the same, the claimed functions are apparent.
Regarding claim 7, modified Larsen further discloses wherein the fermentation reactor is for the fermentation of methanotrophic organisms (Larsen at [0049]-[0050] and [0056]).
Regarding claim 8, modified Larsen further discloses wherein the loop- part of the fermentation reactor comprises one or more gas inlet; one or more water inlet; and/or one or more fermentation medium inlet (injection points 110 or through other nozzles (not shown) placed in the down-flow leg or up-flow leg or the U-bend of the fermenter; Larsen at [0049], [0063], [0086], [0110]; Claim 46).
Regarding claim 9, modified Larsen further discloses wherein the one or more gas inlet; the one or more water inlet; and/or the one or more fermentation medium inlet is controlled by a computer based on the data obtained from the at least one sensors or analysers (injection points 110 or through other nozzles (not shown) placed in the down-flow leg or up-flow leg or the U-bend of the fermenter; Larsen at [0049], [0063], [0086], [0110]; Claim 46).
Regarding claim 12, modified Larsen further discloses wherein the fermentation reactor further comprises a first pressure controlling device and a second pressure controlling device and optionally, a third pressure controlling device (Larsen at [0038]-[0040]).
Regarding claim 13, modified Larsen further discloses wherein the first pressure controlling device is selected from a valve, a pump such as a propeller pump, a lobe pump, a turbine pump or nozzles or jets, and wherein the second and/or optionally third pressure controlling device is selected from a valve, a static mixer, a hydrocyclone, a pump such as a propeller pump, a lobe pump, a turbine pump, a pressure controlled valve, a plate with holes, nozzles or jets or a narrowing of the diameter or cross-section of the fermentation reactor part in which it is placed (Larsen at [0038]-[0040] and [0081]).
Regarding claims 15-16, modified Larsen further discloses wherein the fermentation reactor comprises an ion sensor or analyser for determining the content of one or more ion species in a fermentation liquid, and wherein the one or more ion species is selected from phosphate, calcium, hydrogen, nitrite and/or ammonium (Larsen at [0094], [0097], [0103], [0111]).
Regarding claim 17, modified Larsen further discloses wherein the visual inspection means is placed at an end of the top tank (see FIG. 1 of Vigreux).
Regarding claim 18, modified Larsen further discloses wherein the top tank further comprises a light source (fermentation reactor of Larsen includes spectrophotometric device; see [0094] of Larsen).
Regarding claim 20, modified Larsen discloses the first and the second pressure controlling devices (see Larsen at [0038]-[0040]). Regarding the limitation “wherein at least one of the first and second pressure controlling device is configured to provide an alternating pressure to the fermentation liquid during circulation in the fermentation reactor,” it is noted that the limitation “to provide an alternating pressure to the fermentation liquid during circulation in the fermentation reactor” is drawn to intended use of the claimed invention. A recitation directed to the manner in which a claimed apparatus is intended to be used does not distinguish the claimed apparatus from the prior art, if the prior art has the capability to so perform. Apparatus claims must distinguish from the prior art in terms of structure rather than function (see MPEP 2114). Furthermore, the intended uses of the apparatus do not further define any structural features to the claimed first and second pressure controlling devices, but rather only define how the first and second pressure controlling devices may be used. The prior art discloses all of the structural features of the claimed first and second pressure controlling devices and thus since the structures are the same, the claimed functions are apparent.
Regarding claim 21, modified further Larsen discloses wherein the at least one sensor or analyser is configured for continuously determination of the nitrate concentration and biomass concentration by in-line analysis or on-line analysis (fermenter includes one sensor configured to measure concentration of nitrate in the liquid; [0094]). Further, the at least one sensor or analyser of modified Larsen is considered to continuous as the sensor contentiously provides status of the nitrate concentration to the control system (see Larsen at [0094], [0097], [0103], [0111]).
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Larsen in view of Vigreux and Jiang as applied to claim 5 above, and further in view of Kjar et al. (already of record, US 2017/0152469).
Regarding claim 19, modified Larsen discloses the fermentation reactor according to claim 5. Modified Larsen does not explicitly disclose wherein the top tank is further provided with at least one foam sensor inside the top tank. Kjar discloses that the use of foam sensor system with bioreactor and fermenter is well-known in the art ([0003]). In view of Kjar, it would have been obvious to one of ordinary skill in the art to have employed the foam sensor of Kjar with the fermentation reactor of modified Larsen since such a component is well-known in the art as disclosed by Kjar ([0003]).
Response to Arguments
Applicant’s arguments with respect to claim(s) 5, 7-13 and 15-22 have been considered but are moot in view of the new ground of rejection.
With respect to the Applicant’s argument that Larsen fails to disclose or suggest ant link between supply of the nitrogen-source and measuring the concentration of nitrate and the concentration of biomass in the fermentation liquid as presently claimed (Remarks at page 7), Applicant’s argument is noted. It should be noted that the claims as currently presented does not require any link between measurement of biomass concentration and supply of the nitrogen-source. Further, Applicant’s disclosure does not disclose any steps where the concentration of biomass is measured and based on the measured data, the supply of nitrogen-source is controlled.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIBAN M HASSAN whose telephone number is (571)270-7636. The examiner can normally be reached on 8:30 AM - 5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Marcheschi can be reached on 5712721374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LIBAN M HASSAN/Primary Examiner, Art Unit 1799
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