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 .
Information Disclosure Statement
Several non-patent literature references cited in the Information Disclosure Statements have not been struck through and not considered since they do not list a publication date. See 37 CFR 1.98(b)(5). Also see MPEP 609.04(a)(I), which states that where the actual publication date of a non-patent document is not known, the applicant must, at a minimum, provide a date of retrieval (e.g., the date a webpage was retrieved) or a time frame (e.g., a year, a month and year, a certain period of time ) when the document was available as a publication.
Claim Objections
Applicant is advised that should claims 1-2 and 4 be found allowable, claims 13, 15, and 20 will be objected to under 37 CFR 1.75 as being substantial duplicates thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Steps (a) through (d) of claim 1 and steps (a)(i) through (a)(iv) of claim 13 are identical. While steps (e) and (f) of claim 1 and steps (a)(v) and (b) of claim 13 have different wording, both recite extracting oil from the harvested grain and producing a low carbon intensity biofuel from the extracted oil; “using the extracted oil as a feedstock for producing a low carbon intensity biofuel” in step (f) of claim 1 implies that that a low carbon intensity biofuel is actually produced.
Claims 2 and 4 depend from claim 1 and claims 15 and 20 depend from claim 13. Claim 2 is analogous to claim 15 and claim 4 is analogous to claim 20.
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 1-20 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.
In claims 1-2, 5, 7, 13, and 15, as well as their dependent claims, it is unclear what is the “corresponding conventional fuel produced from fossil feedstock” used in determining the difference in carbon intensity or the difference in emissions (claims 2, 7, and 15). Different conventional fuels will have different carbon intensities and have different amounts of emissions involved in their production. Since “low carbon intensity biofuel” is defined by its relationship to the corresponding conventional fuel, and applicant has not set forth a definition under any other standard, “low carbon intensity biofuel” is also indefinite.
Claims 1, 5, and 13 and their dependent claims recite a step of implementing land management practices to “reduce use of fossil fuel inputs” and to “maximize capture of atmospheric carbon by plant material of the Brassica carinata variety”. It is unclear what the reduced use of fossil fuel inputs is in comparison with, and also unclear how one would determine whether the capture of atmospheric carbon had been maximized.
Claims 2 and 15 recite an emissions reduction of about 60 to about 400%. It is unclear how the emissions can be reduced by more than 100%.
In claims 4, 9, 12, 17, and 20, it is unclear what is a “normal irrigation amount required for another oilseed crop” and how it would be determined, and it is also unclear what is a “recommended amount of nitrogen fertilizer”.
In claims 8 and 17 it is unclear what constitutes a “minimal” land use change.
Claim 9 and 17 recite “reducing use” of nitrogen fertilizer to between about 40% and about 100% of the recommended amount of nitrogen fertilizer. The “about 100%” upper endpoint is inconsistent with “reducing use”. The examiner recommends that “about 100%” be amended to “less than 100%”.
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.
Claims 1-15, 17, and 19-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lazzeri (Lazzeri, L., D’Avino, L., Mazzoncini, M., Antichi, D., Mosca, G., Zanetti, F., Del Gatto, A., Pieri, S., De Mastro, G., Grassano, N., Cosentino, S., Copani, V. Ledda, L., Farci, R., Bezzi, G., Lazzari, A., Dainelli, R., Spugnoli, P., “On Farm Agronomic and First Environmental Evaluation of Oil Crops for Sustainable Bioenergy Chains”, Ital. J. Agron., 2009, 171-180).
In the paragraph bridging the columns on page 172, Lazzeri discloses cultivating energy crops in rotation with food crops, and later in the right column of page 172, as well as section 2.2 on page 173, Lazzeri discloses planting Brassica carinata as an energy crop, meeting the limitations of step (a) of claim 1 and step (a)(i) of claims 5 and 13. In section 2.2 and Tables 1-2 on pages 173-174, Lazzeri discloses land management practices and low-input techniques for the cultivation of the Brassica carinata, meeting the limitations of step (b) of claim 1 and step (a)(ii) of claims 5 and 13. In sections 2.2 and 2.3 on pages 173 and 175 Lazzeri discloses harvesting the crops, as recited in step (c) of claim 1 and step (a)(iii) of claims 5 and 13. In the paragraph bridging pages 177 and 178, Lazzeri discloses incorporation of crop residues into the soil. Based on the relative amounts of crop residue and seed open field yield reported in Table 4 on page 177 of Lazzeri, the amount of crop residue relative to the amount of plant material other than the grain for the Emilia Romagna crops and the Apulia crop (crop C corresponds to Brassica carinata) falls within the range recited in step (d) of claim 1 and step (a)(iv) of claims 5 and 13. In section 2.4 on page 175 and Table 5 on page 178, Lazzeri discloses extracting oil from the grain, as recited in step (e) of claim 1, step (b) of claim 5, and step (a)(v) of claim 13. In section 2.4 and Table 7 on page 179, Lazzeri further discloses obtaining biodiesel from the oil, meeting the limitations of step (f) of claim 1 and step (b) of claim 13.
Since Lazzeri discloses a method meeting all the method steps of claims 1 and 13, the biodiesel produced by the method will possess the recited properties regarding carbon intensity. Similarly, the oil extracted by the grain will be capable of producing biodiesel having the carbon intensity recited in claim 5, noting that claim 5 does not require a step of actually producing the biodiesel. Additionally, Lazzeri discloses in Table 7 on page 179 various biodiesel products derived from Brassica carinata having a carbon intensity of 35, 36, or 46 CO2eq/MJ, whereas conventional diesel has a carbon intensity of 102.4 CO2eq/MJ, leading to a carbon intensity differential within the ranges recited in claims 1, 5, and 13, as well as dependent claims 2, 7, and 15. Claims 1-2, 5, 7, 13, and 15 are therefore anticipated by Lazzeri.
In the discussion on pages 177-178, Lazzeri discloses that the method leads to the sequestration of CO2 from the atmosphere, meeting the limitations of claim 3, as well as claims 8 and 17 for the case where the method comprises sequestering atmospheric CO2; it is noted that the specific amount of CO2 sequestration recited in those claims is recited as optional. In Table 2 Lazzeri indicates that the low input techniques use less nitrogen fertilizer than the high input techniques, meeting the limitations of claims 4, 12, and 20 for the case where the land management practices include reducing use of inorganic nitrogen fertilizer. In the “Apulia” cultivation techniques disclosed in Table 2, Lazzeri discloses reducing nitrogen fertilizer by 50%, within the ranges recited in claims 9 and 17. In section 2.2 on page 173 Lazzeri discloses that the Brassica carinata is sown in the fall (end September-beginning October, or second half of November) and teaches that sunflower is sown in the spring, implying that the Brassica carinata is harvested in the spring. The regions of Italy where Lazzeri discloses growing Brassica carinata have warm temperate dry or warm temperate moist climates, and Lazzeri therefore meets the limitations of claims 10 and 19 for the cases where the growing environment is warm temperate dry or warm temperate moist. Lazzeri does not teach a fallow period between sowing the Brassica carinata and the sunflower, therefore meeting the limitations of claims 6 and 14. In the first paragraph of the left column of page 175, Lazzeri discloses that the harvesting can be done by a combine harvester, meeting the limitations of claims 11 and 17.
In light of the above, claims 1-15, 17, and 19-20 are anticipated by Lazzeri.
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 8 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Lazzeri in view of Montemurro (Montemurro, F., Diacono, M., Scarcella, M., D’Andrea, L., Boari, F., Santino, A., Mastrorilli, M., “Agronomic performance for biodiesel production potential of Brassica carinata A. Braun in Mediterranean marginal areas.”, Italian Journal of Agronomy, 2016, 57-64).
The discussion of Lazzeri in paragraph 8 above is incorporated here by reference. Lazzeri discloses a method meeting the limitations of claims 5 and 13, but does not disclose specific food crops with which the Brassica carinata is rotated.
Montemurro, in the “Study sites” section in the left column of page 58, discloses carrying out a two-year rotation of Brassica carinata with cereal crops, meeting the limitations of claim 18, as well as claim 8 for the case where the first crop is a cereal crop.
It would have been obvious to one of ordinary skill in the art to use the cereal crops of Montemurro as the food crop in the method of Lazzeri, since Montemurro discloses throughout the reference that Brassica carinata can be grown successfully in rotation with cereal crops, and teaches best practices for growing Brassica carinata in such conditions.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Lazzeri in view of Hetherington (WO 2017/091891 A1).
The discussion of Lazzeri in paragraph 8 above is incorporated here by reference. Lazzeri teaches a method meeting the limitations of claim 13, but on page 177 teaches that the defatted seed meals obtained from Brassica carinata cannot be used as a feed due to the high level of glucosinolates.
In paragraph 21 Hetherington discloses a process for removing at least one glucosinate from a meal fraction of oilseed, and in paragraphs 26, 28, and 32 Hetherington discloses that the process that the process can be carried out on defatted meal from Brassica carinata. In paragraph 295 (Example 5) Hetherington discloses gluconate reduction of Brassica carinata (BC) to produce a meal destined for animal feed, and in paragraph 58 Hetherington discloses that animal feeds are formulations fed to livestock. In paragraph 5 Hetherington discloses that the meal produced from Brassica carinata is protein rich. Performing the glucosinate removal method of Hetherington on the defatted seed meals obtained from Brassica carinata of Lazzeri and using the product in an animal feed for livestock production therefore meets the limitations of claim 16.
It would have been obvious to one of ordinary skill in the art to perform the glucosinate removal method of Hetherington on the defatted seed meals obtained from Brassica carinata of Lazzeri and use the product in an animal feed for livestock production, since Hetherington teaches a method for overcoming the obstacles identified on page 177 of Lazzeri and paragraph 5 of Hetherington for the use of meal produced from Brassica carinata as an additive in animal feed for livestock, and since Hetherington teaches in paragraphs 5 and 76 that the meal is protein rich and low fiber.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES C GOLOBOY whose telephone number is (571)272-2476. The examiner can normally be reached M-F, usually about 10:00-6:30.
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/JAMES C GOLOBOY/Primary Examiner, Art Unit 1771