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 .
Drawings
The drawings are objected to because there are two different figures labeled as Fig. 1D, and two different figures labeled as Fig. 1E. 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 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.
Claim 1 is rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, because the claim purports to invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, but fails to recite a combination of elements as required by that statutory provision and thus cannot rely on the specification to provide the structure, material or acts to support the claimed function. As such, the claim recites a function that has no limits and covers every conceivable means for achieving the stated function, while the specification discloses at most only those means known to the inventor. Accordingly, the disclosure is not commensurate with the scope of the claim.
Examiner’s Note
Claim 1 is not presently being interpreted under 35 U.S.C. § 112(f), because interpretation under 35 U.S.C. § 112(f) only applies to a claim for a combination. However, to promote compact prosecution, the Examiner is including an interpretation under 35 U.S.C. 112(f) for the claim limitation "fermentation device" that would apply if Applicant were to amend such that claim 1 is a claim for a combination.
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 fermentation device,” in claim 1.
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.
Paragraph [0021] of the instant invention publication (US 20240344048 ) discloses in some embodiments, the system comprises one or more compositions and/or one or more components (e.g., a fermenting device) such that a non-fermented composition interacts (e.g., contacts, directly contacts, reacts with) a fermenting composition, such that the non-fermented composition increases in alcoholic content (e.g., relative to the alcoholic content of the non-fermented composition prior to interacting with the fermenting composition). In some embodiments, the fermenting composition ferments at least a portion of the non-fermented composition.
Paragraph [0042] discloses in some embodiments, the system comprises a fermentation device (e.g., a fermentation chamber). In certain embodiments, the fermentation device is configured to receive the non-fermented composition and/or the non-fermented component (e.g., comprising the encapsulated non-fermented composition) such that it may be fermented. In some cases, the fermentation device may comprise and/or be configured to receive a fermenting composition (e.g., yeast such as immobilized yeast). In some embodiments, a fermenting component comprises the fermenting composition.
Paragraph [0060] discloses in some embodiments, the system comprises a fermentation device (e.g., a cartridge). In some cases, the fermentation device comprises the fermentation component and one or more inlets. For example, as illustrated in FIG. 2A, exemplary fermentation device 400 (e.g., a cartridge) comprises fermentation component 410 disposed within housing 420. As illustrated in FIG. 2B, in some embodiments, exemplary fermentation device 402 comprises fermentation component 410 disposed within housing 420 having an inlet 425. In some embodiments, inlet 425 is in fluidic communication with fermentation component 410 and/or non-fermented component 430. The fermentation device may be in fluidic communication with one or more additional components within the system including e.g., vessels, fluidic connectors, chambers, etc.
Paragraph [0065] discloses in certain embodiments, the fermentation device comprises a plurality of encapsulated fermenting components (e.g., comprising the fermenting composition) as described above and herein. For example, encapsulated fermenting composition spheres (or otherwise) may be disposed within a housing of the fermentation device. In other embodiments, the fermenting component is porous, as described above.
Paragraph [0066] discloses in some embodiments, one or more components of the system (e.g., the fermentation device, the fermentation component, the non-fermented component) is at least partially biodegradable. In certain embodiments, one or more components and/or compositions (e.g., the fermentation component, the fermenting composition, the non-fermented component, the non-fermented composition), of the system is edible (i.e. non-toxic).
Paragraph [0069] discloses in certain embodiments, the fermentation device comprises one or more microfluidic components (e.g., channels, vessels). The term ‘microfluidic component’ generally refers to a component having an internal volume of less than 1000 microliters and greater than or equal to 1 microliter. In one set of embodiments, a semi-permeable membrane is in fluidic communication with a least one microfluidic channel of the fermentation device. In some such embodiments, the flow of a fluid through the semi-permeable membrane induces laminar flow of the fluid. Advantageously, the fermentation device comprising one or more microfluidic components may continuously process (e.g., ferment) relatively low volumes of fluid at relative high rates (e.g., fermenting in relatively short amounts of time).
Paragraph [0084] discloses one or more components of the fermentation device may be aesthetically pleasing. For example, the system may be designed to have an aesthetically pleasing design for consumer use (e.g., at home, at a restaurant, at a business, at an event). In some embodiments, the fermentation device, or one or more components therein, may have any suitable shape. For example, in certain embodiments, the fermentation device has a cylindrical shape, a cubic shape, a cuboidal shape, a prismatic shape, or a conical shape. In some cases, at least one cross-section of the components and/or the fermentation device may be rectangular shaped, square shaped, triangular shaped, circular shaped, hexagonal shaped, or irregularly shaped. Other shapes are also possible. In an exemplary embodiment, the fermentation device has a cylindrical shape.
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 § 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.
Claim(s) 1 is/are rejected under 35 U.S.C. 103 as being unpatentable over Da Costs et al. (US 20140039050) in view of Schisler et al. (US 20090017164).
Regarding claim 1, Da Costs et al. discloses a system (¶ 0024, i.e. the fermentation system), comprising: a fermentation device (¶ 0025, 0026, 0028, i.e. the fermentation process), configured to receive a non-fermented composition (¶ 0002, 0004, e.g. sugar cane, sugar beets, fruit or molasses.) and to ferment at least 100 mL of the non-fermented composition into a fermented liquid (i.e. called fermented wine) having an alcoholic content (i.e. ethanol) of at least 4% (¶ 0008-0009, i.e. 7-10%).
Da Costs et al. does not specifically disclose the alcoholic content of at least 4% in less than or equal to 30 minutes.
However, Schisler teaches the ethanol production can be done in shorter time by increases yeast carbohydrate utilization (¶ 0058).
The combination of references are analogous art because they are from the same field of endeavor a fermentation process. Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art, having the teachings of Da Costs and Schisler before him or her, to include such process of Schisler because the process provides reduced fermentation time, increased ethanol yield. The suggestion/motivation for doing so would have been obvious because it improvement in ethanol manufacturing processes which include a fermentation step (¶ 0004) and a significant portion of that demand will be met by increasing the amount of ethanol prepared from other fermentation composition (¶ 0008).
Furthermore, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Attingger et al. (US 20170107465). Nordkvist et al. (US 20160194586). And Li et al. (US 20160083320).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KET D DANG whose telephone number is (571)270-7827. The examiner can normally be reached Monday - Wednesday 7:30 AM - 4:30 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Steven W. Crabb can be reached at (571) 270-5095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KET D DANG/Examiner, Art Unit 3761 /ELIZABETH M KERR/Primary Examiner, Art Unit 3761
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