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 .
The amendment and response filed on May 26, 2026 are received.
Claims 1-19 are pending in this application, claims 4-15 are withdrawn from further consideration (see Restriction/Election below), and claims 1-3 and 16-19 are being examined.
Answer to Arguments:
Withdrawn Rejection(s):
The rejection of claims 1-3 and 16-19 under 35 U.S.C. 102(a)(1) as being anticipated by Jones, et al. (Fire and Materials, 2018, Vol. 42, p. 816 – 882), is withdrawn due to the amendment to claim 1 (i.e., inserting --, wherein the biofiller comprises rye berry grain--) filed on 05/26/2026.
Applicant arguments with respect to the above-mentioned 102 rejection is moot, because the rejection is withdrawn due to the amendment to claim 1 (i.e., inserting --, wherein the biofiller comprises rye berry grain--), filed on 05/26/2026, and further in view of new ground of rejection.
Applicant's amendment to claim 1 (i.e., inserting --, wherein the biofiller comprises rye berry grain--), necessitated the new grounds of rejection presented in this Office action.
Claim Rejection - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 2 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
In claim 2, the limitation ”wherein the biofiller is an organic filler, an inorganic filler, or a combination thereof”, fails to further limit the subject matter of the claim 1 upon which it depends, because the limitation “an organic filler, an inorganic filler, or a combination thereof” in claim 2 is broader than “rye berry grains” in claim 1 (as amended).
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejection - 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 1-3, 17 and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Xing et al. ( Xing, Yangang, et al. "Growing and testing mycelium bricks as building insulation materials." IOP conference series: earth and environmental science. Vol. 121. No. 2. IOP Publishing, 2018, p. 1-6).
Regarding claim 1, Xing et al. disclose a mycelium composite material comprising: a fungi generated mycelium fiber matrix; and a biofiller dispersed within the matrix, wherein the biofiller provides a structural element and nutrition source for the fungi and the mycelium fibers bind the biofiller, wherein the biofiller comprises rye berry grains (mycelium bricks/blocks comprising well colonized rye grains, etc.) (See for example, p. 2 paragraph 2.3. and p. 4 figure 2).
Regarding claim 2, Xing et al. disclose the mycelium composite material of claim 1, wherein the biofiller is an organic filler, an inorganic filler, or a combination thereof (composite material comprising colonized rye grains and wheat straw) (See for example, , p. 2 paragraph 2.3.).
Regarding claim 3, Xing et al. disclose the mycelium composite material of claim 1, further including a core of fungi colonized substrate encased by a water-repellant fungi skin, wherein the core and skin include a mycelium fiber network (mycelium bricks/blocks) (See for example, p. 2 paragraph 2.3. and p. 4 figure 2).
Regarding claim 17, Xing et al. disclose the mycelium composite material of claim 1, being heated to kill any living microbes in the mycelium composite (rye grains substrates sterilized by autoclaving before use, etc.) (See for example, p. 2 paragraphs 2.3.).
Regarding claim 19, Xing et al. disclose the mycelium composite material of claim 1, provided on or within a building envelope (mycelium bricks/blocks) (See for example, p. 2 paragraph 2.3. and p. 4 figure 2).
Xing et al. disclose therefore anticipate the claimed mycelium composite material.
Claim Rejection - 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.
Claims 1-3 and 16-19 and are rejected under 35 U.S.C. 103 as being unpatentable over Xing et al. as applied to claims 1-3, 17 and 19 above, and further in view of previously cited Jones, et al. (Fire and Materials, 2018, Vol. 42, p. 816 – 882) and Freshcap (Freshcap.com. Understanding Mushroom Substrates, 2017, 13 pages of PDF).
The teachings of Xing et al. with respect to the limitations of claims 1-3 and 17, and 19 were discussed above in detail.
Xing et al. do not teach the biofiller includes a source of silica in the nutrition source to enhance fire resistance of the mycelium composite (claim 16), and the mycelium composite material being pressure molded to enhance mechanical strength of the mycelium composite material (claim 18).
However, regarding claim 16, Jone set al. teach a mycelium composite material wherein the biofiller includes a source of silica in the nutrition source to enhance fire resistance of the mycelium composite (composite constituents rice hull and glass fines containing silica) (See for example, p. 819 left-hand column 3.1 2nd paragraph and p. 823 right-hand column 4. Conclusion).
Therefore, a person of ordinary skill in the art before the effective filing date of the invention knowing that including a source of silica in the nutrition source in the biofiller enhanced the fire resistance of the mycelium composite (teachings of Jones et al.) would have been motivated to apply the teachings of prior art and modify the biofiller in the composite material taught by Xing et al. by including a source of silica in the nutrition source in the biofiller with a reasonable expectation of success in providing the claimed mycelium composite of claim 16.
Regarding claim 18, Freshcap teaches pressure molding mycelium composite material (sawdust fruiting blocks substrate sterilized by heating under pressure at 15 psi, which is equivalent of 103.4 kPa, and sterilization under 250 F which is equivalent to 121.1 °C) (See for example, p. 4 last paragraph -Continued on p. 5 1st paragraph).
Therefore, a person of ordinary skill in the art before the effective filing date of the invention would have been motivated to apply the known technique of pressure molding taught by the prior art (as taught by Freshcap) to the mycelium composite of Xing et al. with biofiller with a reasonable expectation of success in pressure molding the mycelium composite to enhance mechanical strength of the mycelium composite material and provide the claimed mycelium composite of claim 18.
Conclusion(s):
No claims is allowed at this time.
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.
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/KADE ARIANI/Primary Examiner, Art Unit 1651
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