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 .
Status of claims
Claims 1-20 as filed on 4/03/2024 are pending and under examination.
Claim Objections
Claim 5 is objected to because of the following informalities:
Lain name of microorganisms should be italicized and indicate a full genus name and a full species name. Appropriate correction is required.
Claim Rejections - 35 USC § 112
Indefinite
Claims 1-20 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.
Claim 1 is indefinite with respect to the phrase “chitin fraction” because claim does not indicate from what fungal material this faction is obtained and purified.
Claim 1 is indefinite with respect to the phrase “functionalized” support scaffold in the lack of definition in the as-filed specification about functionalization beyond providing for functions such as supporting mycelial grow, spreading and colonization.
Claim 8 is indefinite with respect to phrase ”bio-organic foam” in the lack of definitions in the as-filed specification about what is intended by “bio-organic” feature and “foam” form. Mycelium is natural, thus, bio-organic. Mycelium produces aerial hypha, thus, would have appearance of a light foam.
Claim 12 recites the limitation "the bio-organic foam” in method of claim 1.There is insufficient antecedent basis for this limitation in the claim.
Deposit
Claim 5 is rejected under 35 U.S.C. 112, first paragraph, as containing subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Claim 5 require one of ordinary skill in the art to have access to a specific microorganism G. lucidum SB-000.
Because the microorganism is essential to the claimed invention, it must be obtainable by a repeatable method set forth in the specification or otherwise be readily available to the public. If the microorganism is not so obtainable or available, the requirements of 35 U.S.C. 112 may be satisfied by deposit of the microorganism. The specification does not disclose a repeatable process to obtain the microorganism and it is not clear from the specification or record that the microorganism is readily available to the public.
The objection and accompanying rejection may be overcome by establishing that each microorganism identified is readily available to the public and will continue to be so for a period of 30 years or 5 years after the last request or for the effective life of the patent, whichever is longer, or by an acceptable deposit as set forth herein. See 37 CFR 1.801-1.809.
If the deposit is made under the terms of the Budapest Treaty, then an affidavit or declaration by applicants or a statement by an attorney of record over his/her signature and registration number, stating that the deposit has been made under the Budapest Treaty and that all restrictions imposed by the depositor on availability to the public of the deposited material will be irrevocably removed upon issuance of the patent would satisfy the deposit requirement. See 37 CFR 1.808.
Claim Rejections - 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 and 3 are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by US 2020/0392341 (Smith et al) in the light of evidence by Islam et al (“ Morphology and mechanics of fungal mycelium”. Nature-Scientific Reports, published on line 12 October 2017; 7:13070 | DOI:10.1038/s41598-017-13295-2; pages 1-12) and Vetter (Science Direct. Food Chemistry. 2007, 102, pages 6-9).
US 2020/0392341 (Smith et al) discloses a method of forming a mycelium-based composite material or “a mycotextile” (entire document including Figure 1), wherein the method comprises:
Step of generating an inoculum (or “a pre-inoculum substrate”) seeded with a selected fungal strain or species (par. 0317, lines 1-3); wherein the selected fungal strain has a hyphal diameter of 1 μm or greater since it is an inherent characteristic of fungal mycelium (see reference by Islam page 1, par. 3); wherein “chitin fraction” would be in the range of about 45-80% within the meaning of the claims since chitin is a main polysaccharide of fungal cell walls and total amount polysaccharides of fungal cell is about 80-90-% of the dry mass (see reference by Vetter page 6, col. 2);
Step of cultivating or growing a fungal mycelium (“mycelium mat”) using the inoculum or a pre-inoculum substrate (par. 0028; Figure 1; par. 0317, lines 1-3);
Step of incorporating a solid support material (par. 0030; Figure 13; par. 0318-0319; par. 0371-0379) or adding a “functionalized support scaffold layer”) after some period of growing (“a first time period” of cultivation of the pre-inoculum and/or of the seeded inoculum) and growing the fungal mycelium in/on the solid support scaffold for a second period (step 106 on figure 13) within the meaning of the claims; and
Step of processing the cultivated mycelium (or cultivated/grown “mycelium mat”) by applying a bonding/crosslinking agent (par. 0028’ par. 0050-0052’ par. 0358-0373) for bonding/crosslinking fungal chitin within the fungal mycelium; wherein in the cited method the bonding/crosslinking agents are provided as particles of sizes of less than 1 μm (see par. 0052; par. 0361), thereby, “impregnating the hyphae with a plurality of functionalized nanoparticles” as intended to covalently, if not electrostatically, crosslinking the bonding agent particles to chitin and/or chitosan in the hyphae to form the fungal composite mycelium material (see figure 1 final product) or “a mycotextile” within the broadest reasonable meaning of the claims.
Thus, the cited document is considered to anticipate claim 1.
As applied to claim 3: the bonding agents embedded throughout the material or added as a layer (last 3 lines of oar. 0300), thereby, of a first and second sides of cultivated mycelium on support scaffold.
Thus, the cited document US 2020/0392341 (Smith et al) is considered to anticipate claims 1 and 3.
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.
Claims 1-3, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2020/0392341 (Smith et al) taken with Islam et al (“ Morphology and mechanics of fungal mycelium”. Nature-Scientific Reports, published on line 12 October 2017; 7:13070 | DOI:10.1038/s41598-017-13295-2; pages 1-12), Vetter (Science Direct. Food Chemistry. 2007, 102, pages 6-9) and US 2012/0124839 (Kalisz et al).
The cited US 2020/0392341 (Smith et al) is relied upon as explained above for disclosure of a method of forming a mycelium-based composite material that is cultivated on support scaffold and further processed with particulate bonding/crosslinked agents.
The cited US 2020/0392341 (Smith et al) does not explicitly teach the use of ceramic or metallic particles/nanoparticles for processing cultivated mycelium although it suggests that the bonding agent can be metal (see last lines of par. 0367).
However, the prior art teaches addition of ceramic and metallic nanoparticles to cultivated mycelium or mycelium mat. The cited US 2012/0124839 (Kalisz et al) teaches addition of nanoparticles to mycelium mat or cultivated mycelium (par. 0071), wherein the nanoparticles include metallic nanoparticles and/or nanoclay particles (same as ceramic particles); for example: see lines 6-8 from the bottom of par. 0071. The cited US 2012/0124839 (Kalisz et al) teaches that addition of nanoparticles results in different physical and chemical characteristics of final composite (par.0071).
Therefore, it would have been obvious to one having ordinary skill in the art at the time the claimed invention was filed to process the cultivated mycelium in a method of US 2020/0392341 (Smith et al) by addition of particulate bonding/crosslinking agents in a form metallic nanoparticles and/or ceramic nanoparticles with a reasonable expectation of success in forming a mycelium-based composite material because US 2020/0392341 (Smith et al) recognizes possibility of using metallic bonding agent and because addition of ceramic and metallic nanoparticles to cultivated mycelium or mycelium mat have been knonw and used in the prior art as intended to modify characteristics of the final mycelium-based composite material as adequately evidenced by US 2012/0124839 (Kalisz et al).
Thus, the claimed invention as a whole was clearly prima facie obvious, especially in the absence of evidence to the contrary.
The claimed subject matter fails to patentably distinguish over the state art as represented be the cited references. Therefore, the claims are properly rejected under 35 USC § 103.
Claims 1-6 , 19 amd 20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2020/0392341 (Smith et al) taken with Islam et al (“ Morphology and mechanics of fungal mycelium”. Nature-Scientific Reports, published on line 12 October 2017; 7:13070 | DOI:10.1038/s41598-017-13295-2; pages 1-12), Vetter (Science Direct. Food Chemistry. 2007, 102, pages 6-9) and US 2012/0124839 (Kalisz et al) as applied to claims 1-3, 19 and 20 above,
and further in view of McEnvoy (“Characterizing Carbonyls with Infrared Spectroscopy: An Introductory Chemistry Experiment in a Molecular Bioscience Program”. Journal of Chemical Education. 2014, 91, pages 726-729).
The cited US 2020/0392341 (Smith et al) is relied upon as explained above for disclosure of a method of forming a mycelium-based composite material that is cultivated on support scaffold and further processed with particulate bonding/crosslinked agents. The cited US 2020/0392341 (Smith et al) teaches and recognizes that bonding agents react with active groups of fungal hyphae that are amine, hydroxyl and carboxyl (par. 0056). But the document does not describe analyzing and measuring chemical contents of fungal mycelial hyphae or its reactive carbonyl compounds by ATR/FTIR spectrometry. However, the use ATR/FTIR spectrometry have been knonw and used in the prior analyzing chemical contents of materials including reactive carbonyl compounds; for example: see McEnvoy describing same ranges of about 1600-1800 cm-1 for strong carbonyl peaks (age 727, col.2, par. 2).
Therefore, it would have been obvious to one having ordinary skill in the art at the time the claimed invention was filed to add step of analyzing and measuring chemical contents of fungal mycelial hyphae or its reactive carbonyl compounds by ATR/FTIR spectrometry in the method of US 2020/0392341 (Smith et al) with a reasonable expectation of success in selecting fungal strains having chitin with reactive groups as intended for crosslinking of fungal mycelium-based materials in the method of US 2020/0392341 (Smith et al) because the use ATR/FTIR spectrometry have been knonw and used in the prior analyzing chemical contents of materials including reactive carbonyl compounds and because the cited US 2020/0392341 (Smith et al) recognizes that bonding agents react with active groups of fungal hyphae that include carboxyl, thus, necessary for completing cross-linking.
Thus, the claimed invention as a whole was clearly prima facie obvious, especially in the absence of evidence to the contrary.
The claimed subject matter fails to patentably distinguish over the state art as represented be the cited references. Therefore, the claims are properly rejected under 35 USC § 103.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2020/0392341 (Smith et al) taken with Islam et al (“ Morphology and mechanics of fungal mycelium”. Nature-Scientific Reports, published on line 12 October 2017; 7:13070 | DOI:10.1038/s41598-017-13295-2; pages 1-12), Vetter (Science Direct. Food Chemistry. 2007, 102, pages 6-9), US 2012/0124839 (Kalisz et al) and McEnvoy (“Characterizing Carbonyls with Infrared Spectroscopy: An Introductory Chemistry Experiment in a Molecular Bioscience Program”. Journal of Chemical Education. 2014, 91, pages 726-729) as applied to claims 1-6 , 19 amd 20 above,
and further in view of US 2020/0392341 (Smith et al) and US 2021/0155893 (Kozubal et al).
The cited US 2020/0392341 (Smith et al) is relied upon as explained above for disclosure of a method of forming a mycelium-based composite material that is cultivated on support scaffold and further processed with particulate bonding/crosslinked agents.
With regard to steps generating inoculum and growing fungal mycelium (claims 7-11) the cited US 2020/0392341 (Smith et al) teaches the of use sterile various substrates as nutrient sources including grains or corn materials, including lignocellulose and including nitrogen source (par. 0317, 0333). The incubation temperature are in the range 25-30°C (par. 0320) and incubation for a period when a predetermined amoutn of mycelium is reached (Par. 0321). The cited US 2020/0392341 (Smith et al) does not recognize ratio of carbon to nitrogen 40:1 for nutrient sources. But prior art, for example: US 2021/0155893 teaches that fungal biomass or fungal mat cultivated or high lipid contents is grown under limited nitrogen such as ratio 40:1 of carbon to nitrogen (par. 0021). Therefore, it would have been obvious to one having ordinary skill in the art at the time the claimed invention was filed to modify nutrients substrates in the method of US 2020/0392341 (Smith et al) by C:N ratio 40:1, if intended for lipid production and accumulation if the final mycelium-based composite product.
With regard to steps of growing mycelium biomass or mat (claims 8, 12-17) the cited US 2020/0392341 (Smith et al) clearly acknowledges that methods of growing mycelium have been well established in the art (par. 0333), thus would be obvious to one skill in the art. In particular with regard to preparing bio-organic foam the cited US 2020/0392341 (Smith et al) discloses the use same or similar materials as “activator comprising micronutrients” including minerals, phosphates and/or derived from wastes including sawdust (0033), clearly water, and as well as glycerol (table 7). The support material for cultivated or grown mycelium include mesh (0065, 0299).
With regard to steps of processing mycelium (claim 18) the cited US 2020/0392341 (Smith et al) clearly teaches applying pressing, applying mordants or dyes ( 0332) an moisture cure (page 15, line 1).
Thus, the claimed invention as a whole was clearly prima facie obvious, especially in the absence of evidence to the contrary.
The claimed subject matter fails to patentably distinguish over the state art as represented be the cited references. Therefore, the claims are properly rejected under 35 USC § 103.
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Vera Afremova
May 5, 2026
/VERA AFREMOVA/ Primary Examiner, Art Unit 1653
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