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 without traverse of Group I (claims 1-16) in the reply filed on 08/12/2026 is acknowledged.
Claims 17-18 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/12/2026.
Regarding the species elections, Applicant’s election without traverse of the following species in the reply filed on 08/12/2026 is acknowledged:
Regarding claim 3, the species elected is “salinity”.
Regarding claim 11, the species elected is “acrylamide”.
Regarding claim 13, the species elected is “polyhydroxyalkanoates”.
Regarding claim 14, the species elected is “nanocrystal quantum dot”.
Regarding claim 15, the species elected is “CuInS2”.
Regarding claim 16, the species elected is “ZnS”.
Regarding withdrawn claim 18, there is no species election, but claim 18 belongs to non-elected Group III.
Information Disclosure Statement
The information disclosure statement(s) (IDS) were submitted on:
02/27/2024
Accordingly, the information disclosure statement(s) are being considered by the examiner.
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.
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 1-2 and 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited).
Regarding claim 1, Lee discloses a system for algae cultivation (abstract), comprising:
an algae shade (abstract) comprising a gas permeable transparent sheet (paragraph [0039] “second layer”) coated (paragraphs [0145] and [0169] “coating”) with a gas permeable membrane layer (paragraph [0039] “first layer”),
wherein the gas permeable membrane layer is coated on a top side of the gas permeable transparent sheet (paragraph [0010] outer wall defines the shape of the device; Fig. 17 for sides) and a bottom side of the gas permeable transparent sheet (paragraph [0010] outer wall defines the shape of the device; Fig. 17 for sides) respectively.
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Lee, Fig. 12
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Lee, Fig. 17
If the limitation is not deemed fulfilled by Lee above, regarding the limitation “wherein the gas permeable membrane layer is coated on a top side of the gas permeable transparent sheet and a bottom side of the gas permeable transparent sheet respectively”, it would have been obvious to one skilled in the art before the effective filing date to modify the two layers to have been coated in the fashion that is described in the claim in order to have a selected wavelength of sunlight for algae growth, notably producing an increase in concentration of metabolites (Lee, paragraph [0169]).
Lee does not disclose:
wherein the gas permeable membrane layer has a thickness from 1.0 nm to 10,000 nm.
Regarding feature 1, the claim limitation is obvious under MPEP § 2144.04(IV)(A), which states that “where the only difference between the prior art and the claims was a recitation of relative dimensions … [and the claimed device] would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device”. Regarding the gas permeable membrane layer, it would have been obvious to one skilled in the art before the effective filing date to modify a coating of a gas permeable membrane layer (Lee, paragraphs [0145] and [0169] “coating”) to have a thickness the same as claimed in order to be able to coat and/or paint the gas permeable transparent sheet of Lee with a wavelength selecting material of sunlight for algae growth, notably producing an increase in concentration of metabolites (Lee, paragraph [0169]).
Regarding claim 2, Lee discloses further comprising at least one rod attached to the gas permeable transparent sheet (Figs. 11-12, elements 60 and/or 70; paragraph [0047] “gas supplying pipe” and/or “weighing pendulum”).
Alternatively, regarding the term “rod”, the claim limitation is obvious, as the configuration of the claimed shape is a matter of choice, absent persuasive evidence that the particular configuration is significant. MPEP § 2144.04(IV)(B). It would have been obvious to one skilled in the art before the effective filing date to modify the weighing pendulum to be a rod as this is another expected device that would substitute for weighing down the gas permeable transparent sheet as an anchor.
Regarding claim 6, Lee does not disclose wherein the algae shade has a thickness of 1 μm to 10 μm.
However, regarding this feature, it would have been obvious under sizes or shapes of parts. The claim limitation is obvious under MPEP § 2144.04(IV)(A), which states that “where the only difference between the prior art and the claims was a recitation of relative dimensions … [and the claimed device] would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device”. It would have been obvious to one skilled in the art before the effective filing date to modify the membrane and sheet of Lee to be within the claimed range in order to have a membrane and sheet that can be flexible (Lee, paragraph [0057]) and to reduce costs of manufacturing the device based upon materials.
Regarding claim 7, Lee does not disclose wherein the algae shade has an aspect ratio ranging of from 1:2 to 1:10.
However, the claim limitation is obvious under MPEP § 2144.04(IV)(A), which states that “where the only difference between the prior art and the claims was a recitation of relative dimensions … [and the claimed device] would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device”. It would have been obvious to one skilled in the art before the effective filing date to modify modified Lee with the range of aspect ratios claimed in order to cover a rectangular surface area for a rectangular open pond photobioreactor system.
Regarding claim 8, Lee discloses wherein the algae shade has a density of 1.0 g/cm3 or less (abstract “floating means” or paragraph [0011] “a structure on the water”).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) as applied to claim 1, in view of Meiser (US 20140242677) (newly cited).
Regarding claim 3, Lee does not disclose wherein the system further comprises one or more sensors to monitor at least one parameter selected from salinity, pH, water level, and dissolved gas concentration of water.
Meiser discloses wherein the system further comprises one or more sensors to monitor at least one parameter selected from salinity (paragraph [0064]).
In the analogous art of photobioreactors, it would have been obvious to one skilled in the art before the effective filing date to modify the algal growth device of Lee with the photobioreactor sensors of Meiser in order to determine the conditions of the water around the device for the purposes of optimal algal growth.
Regarding the limitation “pH, water level, and dissolved gas concentration of water”, these alternatives were not elected species. Additionally, the limitation is phrased in the alternative. Because at least one of the limitations is rejected above, no further rejections are required at this time.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) in view of Meiser (US 20140242677) (newly cited) as applied to claim 3, further in view of Jaramillo Gutiérrez (WO 2019025998) (newly cited).
Regarding claim 4, Lee does not disclose wherein the system further comprises a transmitter that transmits data from the one or more sensors to a receiver.
Jaramillo Gutiérrez discloses wherein the system further comprises a transmitter that transmits data from the one or more sensors to a receiver (abstract and pg. 7, last paragraph, “the wireless communication module (7) can send the data to an external computing unit”).
In the analogous art of sensors for water conditions, it would have been obvious to one skilled in the art before the effective filing date to modify the algal growth device of modified Lee with the sensors and transmitters of Jaramillo Gutiérrez in order to remotely study the data supplied by the device (Jaramillo Gutiérrez, pg. 7, last paragraph).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) as applied to claim 1, in view of Jenner (GB 2462332) (newly cited).
Regarding claim 5, Lee does not disclose wherein the system further comprises a microfluidic cooling network.
Jenner discloses wherein the system further comprises a microfluidic cooling network (pg. 40, lines 8-9, “The pumps and heat exchangers and other devices may be formed within the system as microfluidic features”).
In the analogous art of microfluidic photobioreactors, it would have been obvious to one skilled in the art before the effective filing date to modify the algal growth device of modified Lee with the microfluidic heat exchange or cooling network of Jenner in order to cool the algal growth device in the presence of a sunlit environment for handling by personnel and/or for any electronics onboard the device of modified Lee.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) as applied to claim 1; or, alternatively, under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) as applied to claim 1, in view of Maggiore (US 20190048303) (newly cited).
Regarding claim 9, Lee discloses wherein the gas permeable transparent sheet comprises a transparent biocompatible polymer (paragraph [0035], e.g. “gelatin”).
If it is deemed that Lee does not disclose this limitation, Maggiore discloses this limitation (paragraph [0201] for transparency and paragraph [0201] for the enclosure’s handling of biological material so the enclosure is biocompatible).
In the analogous art of cell culture bags, it would have been obvious to one skilled in the art before the effective filing date to modify the gas permeable transparent sheet of modified Lee to be a biocompatible polymer of Maggiore in order to have an optically transparent or clear material capable of being biocompatible to sustain a biological material (Maggiore, paragraph [0034]).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) as applied to claim 9, in view of Maggiore (US 20190048303) (newly cited).
Regarding claim 10, Lee alone or in view of Maggiore discloses a transparent biocompatible polymer (paragraph [0035], e.g. “gelatin”) (see above).
Lee does not disclose wherein the transparent biocompatible polymer comprises a photo-crosslinkable resin.
Maggiore discloses wherein the transparent biocompatible polymer comprises a photo-crosslinkable resin (paragraphs [0034] and [0045] for photopolymerization, paragraph [0201] for transparency, paragraph [0201] for the enclosure’s handling of biological material so the enclosure is biocompatible).
In the analogous art of single-use biological containers, it would have been obvious to one skilled in the art before the effective filing date to modify modified Lee with the photo-crosslinkable resin of Maggiore in order to have an optically transparent or clear material that is either a flexible or rigid capable of being biocompatible to sustain a biological material (Maggiore, paragraph [0034]).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) as applied to claim 9; or, alternatively, under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) in view of Maggiore (US 20190048303) (newly cited) as applied to claim 9,; or alternatively, under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) as applied to claim 9, in view of Wilson (US 5714384) (newly cited); or, alternatively, under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) in view of Maggiore (US 20190048303) (newly cited), as applied to claim 9, further in view of Wilson (US 5714384) (newly cited).
Regarding claim 11, Lee discloses wherein the transparent biocompatible polymer is selected from the group consisting of an acrylamide (paragraph [0034] “acryl” and “polyamide” “two or more of them”) and a gelatin (paragraph [0035]).
If it is deemed that Lee does not disclose an acrylamide, Wilson discloses an acrylamide (col. 5, lines 43-46).
In the analogous art of culture bags, it would have been obvious to one skilled in the art before the effective filing date to modify the gas permeable transparent sheet of modified Lee with the acrylamide of Wilson in order to be biocompatible with nutrients and with growing cells (Wilson, col. 5, lines 38-41).
Regarding the limitation “a polyurethane, a gelatin, an agar, a collagen, an alginate, a carrageenan, a polysiloxane, and combinations thereof”, these alternatives were not elected species. Additionally, the limitation is phrased in the alternative. Because at least one of the limitations is rejected above, no further rejections are required at this time.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) as applied to claim 1, further in view of Smith (US 20050032205) (newly cited).
Regarding claim 12, Lee does not disclose wherein the system has a gas permeability of 1 Barrer to 100 Barrer.
Smith discloses the limitation (paragraphs [0039] and [0056] “optical clarity” and gas permeabilities given for oxygen, carbon dioxide, and nitrogen, all within the claimed range).
In the analogous art of cell culture flexible gas permeable containers, it would have been obvious to one skilled in the art before the effective filing date to modify modified Lee with the gas permeabilities of Smith in order to best match the requirements of the cell culture being cultured, for example via adherent cells (Smith, paragraphs [0004] and [0056]).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) as applied to claim 1, in view of Zembouai (“A study of morphological, thermal, rheological and barrier properties of Poly(3-hydroxybutyrate-Co-3-Hydroxyvalerate)/polylactide blends prepared by melt mixing”) (newly cited).
Regarding claim 13, Lee discloses low density polyethylene (paragraph [0034]), high density polyethylene (paragraph [0034]), polypropylene (paragraph [0034]), and cellulose acetate (paragraph [0035]).
Lee does not disclose wherein the gas permeable membrane layer is selected from the group consisting of polyhydroxyalkanoates, polylactic acid, chitosan, cellulose, poly[bis(2-2(methoxyethoxy)ethoxy)]phosphazene, polytrimethylsilylpropyne, low density polyethylene, high density polyethylene, polypropylene, poly(imino-1-oxohexamethylene), and nylon 6.
Zembouai discloses wherein a gas permeable membrane layer is selected from the group consisting of polyhydroxyalkanoates (pg. 849, see Table on oxygen permeability).
In the analogous art of biological bags, it would have been obvious to one skilled in the art before the effective filing date to modify modified Lee with Zembouai’s polyhydroxyalkanoates to have an environmentally-friendly biodegradable product which is suitable for non-toxic biocompatibility (pg. 843, left column, first full paragraph) and is known for biological bags.
Regarding the limitation “polylactic acid, chitosan, cellulose, poly[bis(2-2(methoxyethoxy)ethoxy)]phosphazene, polytrimethylsilylpropyne, low density polyethylene, high density polyethylene, polypropylene, poly(imino-1-oxohexamethylene), and nylon 6”, these species were not elected. Additionally, the limitation is phrased in the alternative. Because at least one of the limitations is rejected above, no further rejections are required at this time.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) as applied to claim 1, in view of Sylvestre (US 20110281295) (newly cited).
Regarding claim 14, Lee does not disclose wherein the gas permeable membrane layer comprises a light frequency-shifting material selected from the group consisting of a nanocrystal quantum dot, a fluorescent protein, and combinations thereof.
Sylvestre discloses wherein the gas permeable membrane layer (paragraph [0110] “semi-permeable bags”) comprises a light frequency-shifting material selected from the group consisting of a nanocrystal quantum dot (paragraph [0056]).
In the analogous art of devices for culturing algae, it would have been obvious to one skilled in the art before the effective filing date to modify modified Lee with the quantum dots of Sylvestre in order to have an emission spectra that promotes algae photosynthesis (Sylvestre, paragraph [0034]).
Regarding “a fluorescent protein, and combinations thereof”, these species are not elected. Additionally, the limitation is phrased in the alternative. Because at least one of the limitations is rejected above, no further rejections are required at this time.
Claims 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Lee (US 20130052719) (newly cited) in view of Sylvestre (US 20110281295) (newly cited) as applied to claim 14, further in view of Abdel-Fattah (US 20140242676) (cited in the Information Disclosure Statement filed 02/27/2024).
Regarding claim 15, Lee does not disclose wherein the nanocrystal quantum dot is a core/shell nanoparticle comprising an inner core selected from the group consisting of CuInS2, Zn3P2, GaP, GaAs, GaSb, ZnS, ZnSe, ZnTe, CdSe, CdS, CdTe, PbS, PbSe, PbTe, and combinations thereof.
Modified Lee teaches quantum dots (see rejection to claim 14).
Abdel-Fattah discloses wherein the nanocrystal quantum dot is a core/shell nanoparticle comprising an inner core selected from the group consisting of CuInS2, Zn3P2, GaP, GaAs, GaSb, ZnS, ZnSe, ZnTe, CdSe, CdS, CdTe, PbS, PbSe, PbTe, and combinations thereof (paragraph [0024]).
In the analogous art of microphotobioreactors, it would have been obvious to one skilled in the art before the effective filing date to modify modified Lee with the inner core quantum dot material of Abdel-Fattah in order to have the light frequency-shifting agent absorb light comprising the light spectrum of from ultraviolet to green light and emit light comprising red light for photosynthesis (Abdel-Fattah, paragraphs [0022] and [0274]).
Regarding the limitation “Zn3P2, GaP, GaAs, GaSb, ZnS, ZnSe, ZnTe, CdSe, CdS, CdTe, PbS, PbSe, PbTe, and combinations thereof”, these species are not elected. Additionally, the limitation is phrased in the alternative. Because at least one of the limitations is rejected above, no further rejections are required at this time.
Regarding claim 16, Lee does not disclose wherein the nanocrystal quantum dot is a core/shell nanoparticle comprising an outer shell selected from the group consisting of ZnS, ZnSe, ZnTe, CdS, CdSe, CuGaS, GaP, and combinations thereof.
Modified Lee teaches quantum dots (see rejection to claim 14).
Abdel-Fattah discloses wherein the nanocrystal quantum dot is a core/shell nanoparticle comprising an outer shell selected from the group consisting of ZnS, ZnSe, ZnTe, CdS, CdSe, CuGaS, GaP, and combinations thereof (paragraph [0024]).
In the analogous art of microphotobioreactors, it would have been obvious to one skilled in the art before the effective filing date to modify modified Lee with the outer shell quantum dot material of Abdel-Fattah in order to have the light frequency-shifting agent absorb light comprising the light spectrum of from ultraviolet to green light and emit light comprising red light for photosynthesis (Abdel-Fattah, paragraphs [0022] and [0274]).
Regarding the limitation “ZnSe, ZnTe, CdS, CdSe, CuGaS, GaP, and combinations thereof”, these species are not elected. Additionally, the limitation is phrased in the alternative. Because at least one of the limitations is rejected above, no further rejections are required at this time.
Additional Prior Art References
The prior art made of record and not relied upon is considered pertinent to Applicant’s disclosure.
Trent (US 20100216203) (newly cited) – This invention is an algae bioreactor using submerged enclosures with semi-permeable membranes.
Redford (US 20120329147) (newly cited) – This invention is an aquatic-based microalgae production apparatus.
Takezawa (US 20210230526) (newly cited) – This invention is a cell enclosure device and use for same.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATHAN G ESPERON whose telephone number is 571-272-9807. The examiner can normally be reached 9 am - 6 pm Monday through Thursday, and 9 am - 6 pm every other Friday.
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, Michael Marcheschi can be reached at 571-272-1374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.G.E./Examiner, Art Unit 1799
/MICHAEL A MARCHESCHI/Supervisory Patent Examiner, Art Unit 1799
