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 .
Response to Arguments
Applicant’s arguments, see the section titled B. Clarifying Amendments, filed 5/18/2026, with respect to the 112(f) interpretation of claim 7 have been fully considered and are persuasive. The 112(f) analysis is no longer needed as such the mean-plus function interpretation has been withdrawn.
Applicant’s statements, see the section titled B. Clarifying Amendments, filed 5/18/2026, with respect to the clarifying amendments to claims 16-17 have been fully considered and are persuasive, the examiner agrees the amendment does not impact the scope of the claim.
Applicant’s arguments, see the section titled , filed 5/18/2026, with respect to claim 6 overcoming the 112(d) rejection have been fully considered and are persuasive. The 112(d) rejection of claim 6 has been withdrawn.
Applicant’s arguments, see the section titled A. Claims 14-15, filed 5/18/2026, with respect to the cancellation of claims 14-15 have been fully considered and are persuasive. The rejections of claims 14-15 are herein moot.
With respect to the following sections of the Remarks:
Applicant's arguments filed 5/18/2026 have been fully considered but they are not persuasive.
With respect to applicant’s arguments that “the Examiner has not shown a sufficient reason for modifying '254 in view of '575 to include "additional oyster shells positioned over the floor" as recited in Claims 1 and 7.” Based on the teachings of ‘575 one of ordinary skill would be educated on the fact that allowing water flow through the sides specifically is critical to the function of the oyster reef, the flow of the sides can still be maintained even if the center of the floor is covered. Putting an area of cultch in the center noted as the “cultch containment space” (18) is also taught by the reference, such an assembly where clutch is positioned over the “floor” of the pen is known. It is also known in the art that cultch is commonly utilized to attract spat, see ’254; col 6-7, 62-23, and expected to know the proper proportion of cultch required for an expected result given reef section’s size and adequate conditions. Nothing in ‘575 supports applicant’s assumption that a larger surface area of cultch in the center of the apparatus would collect less spat and therein mature oysters at harvest. In direct response to applicant’s argument that a prima facie case of obvious was not was not presented by the examiner, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the examiner takes the stance that once of ordinary skill in the art would know based on the teachings of ‘254 & ‘575 that a larger surface area of cultch during placement, the larger the surface area is expected to be at harvest within reason. The examiner notes ‘575 explicitly teaches placing cultch on a “floor” or cultch containment space, that in tandem with the warnings about flow would indicate there is an optimal ratio of surface area of culch to open flow area. As such the rejection is being maintained and herein made final.
With regards to the arguments specifically pertaining to the subject matter of claims 6 & 7. The examiner stated it would be obvious to have the oysters present on the floor in whatever amount is expedient or in other words practical, which includes not overfilling the artificial reef, which is predictable based on the teachings of ‘575 that sets forth that the flow is critical to the function of the artificial reef. The examiner asserts the amount of cultch being piled in the cultch containment space would impact the flow to a pertinent degree and the screen rating is established as the variable that would be adjusted to account for the disruptions to flow, see ‘575 col 9; 38-47, thus the amount of cultch is taught to be a result effective variable by the reference and routine optimization would indeed be obvious in this case to find an optimal grid sizing for a specific pile height. As such the rejection is being maintained and herein made final.
Claim Rejections - 35 USC § 103
Claims 1-4 & 6 are rejected under 35 U.S.C. 103 as being unpatentable over Gagliano et al., U.S. Patent No. 5,269,254 A, herein ‘254 in view of Gagliano et al., U.S. Patent No. 12,471,575 B2; herein ‘575.
Re claim 1, ‘254 discloses an apparatus for use in forming oyster reefs, the apparatus comprising:
a series of wire cages (fig. 1-3, 5-8, 10-13, & 15 and col 5-6; 6-13, 15, & 49-2, the panels; 10/10a each form a cage for containing cultch, formed of wire mesh), each wire cage having an interior area (fig. 8, for containing the cultch), the interior area of each wire cage being filled with oyster shells (fig. 8 and col 5-6; 68-2, the cultch material), the series of wire cages being secured together to form a closed pen (fig. 5 & 9 and col 6; 3-6, wherein the horizontal members secure the vertical support members that form the cage together to form a closed triangular pen);
a mesh netting beneath the series of wire cages to form a floor of the pen (fig. 10 & 15, the net is placed to prevent sinking in a body of water with a soft bottom surface).
‘254 fails to explicitly disclose mesh netting secured to the series of wire cages. However, ‘254 further discloses securing a plurality of wire cages (10; the panels, fig. 3 & 14) to a support surface (58; the posts, fig. 14).
The only distinction between the prior art and the claimed invention is that the prior art fails to explicitly disclose mesh netting secured to the series of wire cages and additional oyster shells positioned over the floor of the pen however, the prior art does disclose securing a plurality of wire cages to a support surface. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the known technique of securing the cages to the support surface to improve the similar device disclosed by the prior art in the same way by securing the net to the reef blocks to prevent drifting and prevent loss of the net. See MPEP 2143 I. (C).
Additionally, it would have been obvious to one having ordinary skill in the art at the time the invention was made to secure the net to the cages/panels, since it has been held that forming a single part of a structure which has formerly been formed in two pieces and put together generally only involves routine skill in the art. See MPEP 2144.04 V. B.
‘254 fails to disclose additional oyster shells being explicitly positioned over the floor of the pen. However, ‘575 discloses additional oyster shells positioned over a floor (32; the base, fig. 3A-4B and col 12; 18-25) of a pen (col 11; 22-34, wherein the cultch is crushed oyster shell and the material is placed within the central cultch containment space, see fig. 1A-2D).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose additional oyster shells positioned over the floor of the pen however, ‘575 discloses such a method. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the prior art elements of the cultch in the central space of the assembly as taught by ‘575 to the assembly of the prior art to yield the predictable result of a larger yield with the same size assembly. See MPEP 2143 I. (A).
Re claim 2, the modification of ‘254 and ‘575 discloses the invention of claim 1, ‘254 further discloses wherein a series of four wire cages are utilized to form a rectangular pen (col 7; 43-46, wherein the panels form a “columnar” rectangle; an extra panel is required, see fig. 15 by way of example).
Additionally, it would have been obvious to one having ordinary skill in the art at the time the invention was made to utilize the shape of a rectangle/four panels within each reef block; 40, since it has been held that the selection of any aesthetics for ornamental purposes is a matter of obvious design choice. See MPEP 2144.04 I.
Re claim 3, the modification of ‘254 and ‘575 discloses the invention of claim 1, ‘254 further discloses wherein a series of three wire cages (col 5; 49-51, three panels, which each additionally form a cage, are used to form the triangular reef block) are utilized to form a triangular pen (fig. 10 & 15).
Re claim 4, the modification of ‘254 and ‘575 discloses the invention of claim 1, ‘254 further discloses a generic mesh netting made primarily from a biodegradable material (col 5; line 14 & col 6; 31-32, when the suitable net is if the known material cotton).
‘254 fails to disclose the mesh netting (54) explicitly made of a biodegradable material or cotton. However, ‘254 further discloses the mesh netting being a net known in the art (col 6; 31-32, a suitable net is known in the art).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the mesh netting (54) explicitly made of a biodegradable material or cotton however, ‘254 discloses cotton a suitable material for nets. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the net by utilizing a simple substitution of the generic net taught by the prior art for the cotton in order to obtain the predictable result of an environmentally friendly netting. See MPEP 2143 I. (B).
Additionally, it would have been obvious to one having ordinary skill in the art at the time the invention was made to utilize a cotton net since they are a well-known environmentally friendly option, since it has been held that selecting a known material on the basis of its suitability for the intended use supports a prima facie obviousness determination. See MPEP 2144.07.
Re claim 6, as best understood, the modification of ‘254 and ‘575 discloses the invention of claim 1, ‘575 as applied to ‘254 further discloses wherein each of the wire cages has a height (fig. 15) and a height of the additional oyster shells positioned over the floor of the pen (see the rejection of claim 1) with the height of the shells on the floor of the pen is less than the height of the wire cages (fig. 15).
Additionally, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have the height of shells be at whatever height is expedient, which includes overfilling to prevent loss of the harvest, since it has been held that that discovering an optimum value of a result effective variable supports a case of obviousness when the general conditions of the claim are met by the prior art. See MPEP 2144.05 II. A.
Claim 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over ‘254 in view of Muench, Jr., U.S. Patent No. 5,007,377 A, herein Mue and ‘575.
Re claim 7, ‘254 discloses an apparatus for use in attracting and protecting oyster larvae and for forming oyster reefs, the apparatus being submersible in water with marine life and ocean tides, the apparatus comprising in combination:
four of wire cages (fig. 1-3, 5-8, 10-13, & 15 and col 5-6; 6-13, 15, & 49-2, the panels; 10/10a each form a cage for containing cultch, formed of wire mesh), each cage having a wire cage length (fig. 3, 6, & 8, the length of the panel), a wire cage height (fig. 3, 6, & 8, the height of the panel), an interior area (fig. 3, 6, & 8, for containing the cultch), and opposing ends (fig. 1-2 & 5, between the vertical supports), the interior area of each wire cage being filled with non-living oyster shells (fig. 8 and col 5-6; 68-2, the cultch material), the wire cages being secured in an end-to-end fashion to form a rectangular pen (col 7; 43-46, wherein the panels form a “columnar” rectangle; an extra panel is required, see fig. 15 by way of example), the pen having a lower end (20a; the bottom support member, fig. 8);
a mesh netting (54; the net; fig. 10 & 15) on the lower end of the pen and forming a floor (fig. 10 & 15, the net is placed to prevent sinking in a body of water with a soft bottom surface);
whereby when the apparatus is submerged oyster larvae attach to the oyster shells filled in the interior area of each wire cage (fig. 3, 6, & 8, the area the contains the cultch), with the oyster larvae attached to the oyster shells filled in the interior area of each wire cage being protected from the marine life and the ocean tides by the wire cages (col 7; 13-28, oyster larvae attach themselves to the cultch material within the panels and are protected from larger marine life and disruptions from the panels breaking a portion of the current).
Additionally, it would have been obvious to one having ordinary skill in the art at the time the invention was made to utilize the shape of a rectangle/four panels within each reef block; 40, since it has been held that the selection of any aesthetics for ornamental purposes is a matter of obvious design choice. See MPEP 2144.04 I.
‘254 further discloses a generic mesh netting made primarily from a biodegradable material (col 5; line 14 & col 6; 31-32, when the suitable net is if the known material cotton).
‘254 fails to explicitly disclose the mesh netting (54) made of a biodegradable material or cotton. However, ‘254 further discloses the mesh netting being a net known in the art (col 6; 31-32, a suitable net is known in the art).
The only distinction is that the ‘254 fails to disclose the mesh netting (54) explicitly made of a biodegradable material or cotton however, ‘254 discloses cotton a suitable material for nets. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the net by utilizing a simple substitution of the generic net taught by the prior art for cotton in order to obtain the predictable result of an environmentally friendly netting. See MPEP 2143 I. (B).
Additionally, it would have been obvious to one having ordinary skill in the art at the time the invention was made to utilize a cotton net since they are a well-known environmentally friendly option, since it has been held that selecting a known material on the basis of its suitability for the intended use supports a prima facie obviousness determination. See MPEP 2144.07.
‘254 fails to explicitly disclose mesh netting secured to the series of wire cages. However, ‘254 further discloses securing a plurality of wire cages (10; the panels, fig. 3 & 14) to a support surface (58; the posts, fig. 14).
The only distinction is that the prior art fails to explicitly disclose mesh netting secured to the series of wire cages however, the prior art does disclose securing a plurality of wire cages to a support surface. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the known technique of securing the cages to the support surface to improve the similar device disclosed by the prior art in the same way by securing the net to the reef blocks to prevent drifting and prevent loss of the net. See MPEP 2143 I. (C).
Additionally, it would have been obvious to one having ordinary skill in the art at the time the invention was made to secure the net to the cages/panels, since it has been held that forming a single part of a structure which has formerly been formed in two pieces and put together generally only involves routine skill in the art. See MPEP 2144.04 V. B.
The modification of ‘254 fails to disclose each cage having a cylindrical shape, closed opposing ends, additional oyster shells positioned over the floor and extending to an additional oyster shell height that is not greater than the wire cage height, whereby when the device is submerged oyster larvae attach to the additional oyster shells positioned over the floor, and the oyster larvae attached to the additional oyster shells positioned over the floor being protected from the marine life and ocean tides by the wire cage height. However, Mue discloses wire cages having a cylindrical shape (20, 30, 40, 50, 60, 70, & 80; the substantially cylindrical retaining members, fig. 1-5, 10, & 12) and closed opposing ends (fig. 1 and col 5; 35-10 the first and second end of each cylindrical retaining member is closed).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose each cage having a cylindrical shape, closed opposing ends, additional oyster shells positioned over the floor and extending to an additional oyster shell height that is not greater than the wire cage height, whereby when the device is submerged oyster larvae attach to the additional oyster shells positioned over the floor, and the oyster larvae attached to the additional oyster shells positioned over the floor being protected from the marine life and ocean tides by the wire cage height however, Mue discloses such wire cages. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the known technique of shaping the cages to retain mollusks therein taught by Mue to improve the similar device disclosed by the prior art in the same way by closing the wire cages to prevent5 losses of a given harvest. See MPEP 2143 I. (C).
The modification of ‘254 and Mue fails to disclose additional oyster shells positioned over the floor and extending to an additional oyster shell height that is not greater than the wire cage height; and whereby when the device is submerged oyster larvae attach to the additional oyster shells positioned over the floor, and the oyster larvae attached to the additional oyster shells positioned over the floor being protected from the marine life and ocean tides by the wire cage height. However, ‘575 discloses additional oyster shells positioned over a floor (32; the base, fig. 3A-4B and col 12; 18-25) of a pen (col 11; 22-34, wherein the cultch is crushed oyster shell and the material is placed within the central cultch containment space, see fig. 1A-2D) and whereby when the device is submerged oyster larvae attach to the additional oyster shells positioned over the floor (col 13-14; the larvae will attach to the loose cultch material within the hatchery tank), and the oyster larvae attached to the additional oyster shells positioned over the floor being protected from the marine life and ocean tides by the wire cage height (col 10; 43-64, wherein the side walls height protects the contents of unwanted mitigation within the space to maintain optimal growth; 18).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose additional oyster shells positioned over the floor and extending to an additional oyster shell height that is not greater than the wire cage height; and whereby when the device is submerged oyster larvae attach to the additional oyster shells positioned over the floor, and the oyster larvae attached to the additional oyster shells positioned over the floor being protected from the marine life and ocean tides by the wire cage height however, ‘575 discloses such a similar method. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the prior art elements of the cultch in the central space of the assembly as taught by ‘575 to the assembly of the prior art to yield the predictable result of a larger yield with the same size assembly. See MPEP 2143 I. (A).
The modification of ‘254, Mue, and ‘575 discloses the claimed invention except for having an explicit additional oyster shell height that is not greater than the wire cage height however, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have the height of shells be at whatever height is expedient, which includes overfilling to prevent loss of the harvest, since it has been held that that discovering an optimum value of a result effective variable supports a case of obviousness when the general conditions of the claim are met by the prior art. See MPEP 2144.05 II. A.
Re claim 8, the modification of ‘254, Mue, and ‘575 discloses the invention of claim 7, the modification discloses the claimed invention except for wherein the wire cage length of each of the wire cages is 4.5 feet and the wire cage height of each of the wire cages is 6 inches however, it would have been obvious to one having ordinary skill in the art before the effective filling date of the invention as the long and narrow shape will make the cages easier to store in the off season, since it has been held that that discovering an optimum value of a result effective variable supports a case of obviousness when the general conditions of the claim are met by the prior art. See MPEP 2144.05 II. A.
Re claim 9, the modification of ‘254, Mue, and ‘575 discloses the invention of claim 7, the combination discloses the claimed invention except for wherein the mesh netting has a mesh netting length of 4.5 feet and a mesh netting width of 5.5 feet however, it would have been obvious to one having ordinary skill in the art before the effective filling date of the invention as in order to fully cover the surface of the interior area and be manageable for a single person, since it has been held that that discovering an optimum value of a result effective variable supports a case of obviousness when the general conditions of the claim are met by the prior art. See MPEP 2144.05 II. A.
Claim 16 rejected under 35 U.S.C. 103 as being unpatentable over ‘254 in view of ‘575 as applied to claim 1 above, in view of Gagliano et al., U.S. Patent Application Publication No. 2017/0055502 A1, herein ‘502.
Re claim 16, the modification of ‘254 and ‘575 discloses the invention of claim 1, ‘254 further discloses wherein the apparatus is interconnected to another apparatus via a tie (fig. 10 and col 6; 17-19 & 21-22, wherein adjacent reef blocks are attached via ties).
The modification of ‘254 and ‘575 fails to disclose the ties being zip ties. However, ‘504 discloses zip ties as a fastener (para 61).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the ties being zip ties however, ‘504 discloses zip ties as a viable fastener. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the ties by utilizing a simple substitution of the known generic ties taught by the prior art for the zip ties from ‘504 in order to obtain the predictable result of fastening the cages together. See MPEP 2143 I. (B).
Claim 17 rejected under 35 U.S.C. 103 as being unpatentable over ‘254 in view of Mue and ‘575 as applied to claim 7 above, in view of ‘502.
Re claim 17, the modification of ‘254, Mue, ‘575 discloses the invention of claim 7, ‘254 further discloses wherein the apparatus is interconnected to another apparatus via a tie (fig. 10 and col 6; 17-19 & 21-22, wherein adjacent reef blocks are attached via ties).
The modification of ‘254, Mue, ‘575 fails to disclose the ties being zip ties. However, ‘504 discloses zip ties as a fastener (para 61).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the ties being zip ties however, ‘504 discloses zip ties as a viable fastener. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the ties by utilizing a simple substitution of the known generic ties taught by the prior art for the zip ties from ‘504 in order to obtain the predictable result of fastening the cages together. See MPEP 2143 I. (B).
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICOLE P MACCRATE whose telephone number is (571)272-5215. The examiner can normally be reached M-Th: 9am-5pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joshua J Michener can be reached at 571-272-1467. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICOLE PAIGE MACCRATE/Examiner, Art Unit 3642
/JOSHUA J MICHENER/Supervisory Patent Examiner, Art Unit 3642
