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 12/10/2025 is acknowledged. The traversal is on the ground(s) that the groups are linked by a single general inventive concept as stated on page 2, and the cited prior art does not teach the common technical feature. This is not found persuasive because the argued concept is not positively recited by every group (restriction item 10). Groups I, II and IV share the same technical feature of steps a)-d) in claim 1. The cited references read on the limitations of claim 1 (see also prior art rejection below), and therefore the shared technical feature does not contribute over the prior art.
The requirement is still deemed proper and is therefore made FINAL.
Claims 8-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected groups, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 12/10/2025.
Claim Objections
Claim 1 is objected to because of the following informalities:
In step “a)”, amend “vegetable” in the third line to “vegetables”, and “residue” in the fifth and sixth lines to “residues” for consistency and to place the claim in better form.
In step “b)”, insert “the” before “at least one strain” and delete “an” before “edible filamentous fungus”.
In step “c)”, insert “vvm” after “0.25”.
In step “d)”, in the second line delete “a” before “protein-rich” and insert “the”. In the third line delete “comprising at least one fermented substrate and at least one strain of an edible filamentous fungus” since the limitation is redundant. In the fifth line delete “an” before “edible filamentous fungus”.
Appropriate correction is required.
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 1-5 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.
Regarding claim 1, the limitation “protein-rich” recited in line 1 and step “d)” is relative and therefore renders the claim indefinite. The term is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. While the specification recites “may have a high protein content of at least 10%...may comprise up to 60% protein” (page 11 lines 17-19), such a disclosure is not a definition. It is not clear if “protein-rich” encompasses other, undisclosed amounts.
In step “a)” the limitation “as well as precursors” renders the claim indefinite since it is unclear what substances are encompassed by “precursors”. The specification does not provide further detail.
Regarding claim 2, the limitation “protein-rich” in line 3 renders the claim indefinite for the same reason stated above.
Regarding claim 3, the limitation “adding at least one binder” renders the claim indefinite since it is unclear what the binder is added to. It is unclear if the binder is added to the “at least one substrate” of step “a)” or some other feature.
Regarding claims 4-5, the limitation “protein-rich” renders the claims indefinite for the same reason stated above.
Claim Rejections - 35 USC § 102
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 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.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhang et al. (US 2019/0256391 A1).
Regarding claim 1, Zhang et al. teaches a method for manufacturing a nutrient-rich biomass (abstract) comprising at least one fermented substrate and at least one strain of an edible filamentous fungus, said method comprising the steps of:
a) providing at least one substrate to be fermented, said substrate maintained at a moisture content of 30-40% i.e., having total solid loading of from 60-70% (paragraph 41), wherein said at least one substrate is cracked corn but can also include other grains such as rice, barley or wheat, or agricultural residues like wheat straw or corn stover (paragraph 41);
b) inoculating said at least one substrate with at least one strain of an edible filamentous fungus thus obtaining at least one inoculated substrate (paragraph 41);
c) setting a set of conditions, wherein said set of conditions comprises maintaining a substrate moisture content of 30-40% and incubation (maintaining) a temperature of 30oC with or without aeration (flow rate of gas) for fungal growth (paragraphs 40-41);
d) fermenting said at least one inoculated substrate at said set of conditions while continuously monitoring at least one parameter such as the moisture content, temperature, and aeration as stated above, thus obtaining a protein-rich biomass comprising at least one fermented substrate and at least one strain of an edible filamentous fungus; wherein said at least one strain of an edible filamentous fungus is selected from the group consisting of Rhizopus spp., Aspergillus spp., Neurospora spp., Monascus spp., and Rhizomucor spp (paragraphs 20-21); and wherein said set of conditions is amended as a function of said at least one parameter (paragraphs 40-41).
Regarding the biomass being “protein-rich”, the process of Zhang et al. obtains a “nutrient-rich” liquid of the fungi, which would necessarily comprise fungal protein. Therefore, the biomass of Zhang et al. is construed to be “protein-rich”.
The disclosed moisture content and temperature are controlled, particularly through airflow such as venting for heat, volatile compound removal, and favorable gas exchange (paragraph 40). Likewise, parameters such as ammonia concentration can be monitored (figure 6). Such a process would have necessarily required “amending” said conditions as a function of monitored parameters in order to maintain optimal fermentation conditions.
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.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. as applied to claim 1 above, and in view of Shinohara et al. (US 2022/0356432 A1).
Regarding claim 2, Zhang et al. does not teach robot-assisted loading and/or unloading as claimed.
Shinohara et al. teaches a culturing device (abstract), where loading and unloading of a container is performed automatically by a robot arm (paragraph 47).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Zhang et al. to load/unload using robot assistance since the prior art recognizes such a feature, and to facilitate process efficiency, where automating a manual process is prima facie obvious, see MPEP 2144.04 III.
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. as applied to claim 1 above, and in view of Coleman et al. (US 3,829,363).
Regarding claim 3, Zhang et al. does not teach adding at least one binder simultaneously with step a. In view of the rejection under 35 USC 112(b) above, the limitation is interpreted to mean the binder is added into a fermenter with the at least one substrate to be fermented.
Coleman et al. teaches a method for manufacturing protein biomass from Aspergillus niger (abstract), a source of nutrients is provided by starch-containing substrates and waste residues from processing agricultural crops, the waste including potato starch (column 1 lines 59-65; column 2 lines 12-13). The reference recognizes a problem of disposal of waste from said potato processing, and aims to provide a solution by incorporating the waste as a substrate for fungus fermentation (column 1 lines 24-34 and 70 to column 2 line 3). It is noted that potato starch is recognized as a binder in Applicant’s specification (page 10 lines 1-3).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Zhang et al. to add potato starch simultaneously with step a) since the prior art recognizes potato starch as a nutrient source for fungus fermentation, to minimize waste as taught by Coleman et al., and to reduce manufacturing cost by utilizing a “cheap” nutrient source.
Regarding claim 4, Zhang et al. does not teach heat treatment of the protein-rich biomass immediately after step d).
Coleman et al. further teaches, after the end of the fermentation period, the temperature of the product is elevated for a time sufficient to sterilize the product (column 3 lines 38-42).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Zhang et al. to immediately sterilize the product after fermentation in order to kill the fungi and stop the fermentation such that the protein can be extracted, to prevent proliferation of contaminants, and to ensure safety of the biomass product.
Regarding claim 5, Zhang et al. does not teach drying the biomass.
Coleman et al. further teaches the fermentation product is sterilized, the fungal protein recovered by filtration, then dried for analysis (column 4 lines 51-60).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Zhang et al. to dry the product in order to similarly allow for analysis to determine protein content, and to facilitate preservation for storage and/or transport as is known for dried food products.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached 9:30-6.
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, Erik Kashnikow can be reached at (571)-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/BRYAN KIM/Examiner, Art Unit 1792
Prosecution Insights