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 .
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.
Claim 9 is 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.
The term “sharply increase” and “slowly increase” in claim 9 is a relative term which renders the claim indefinite. Although fig. 7 and paragraphs 0058-0059 disclose a graph depicting a sharp increase and a slow increase, the disclosure is not sufficient to provide a clear standard for ascertaining what constitutes sharply or slowly. 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. See MPEP 2173.05(b).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-9 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (abstract idea) without significantly more.
With regards to Step 1, the above claims are considered to be in a statutory category of process.
With regards to Step 2A, prong 1, we consider whether the claims recite a judicial exception (abstract idea). The claims as a whole are directed towards assessing the culture state based on measurement data , which constitutes an abstract idea. Specifically, under the 2019 Revised Patent Subject matter Eligibility Guidance (PEG), it falls into the grouping of mathematical concepts (mathematical relationships, mathematical formulas or equations, mathematical calculations) and mental processes - concepts performed in the human mind including an observation, evaluation, judgement, and/or opinion. In instant case, the assessment step is not defined as anything more than looking at data (the transmittance data) and making a conclusion, all of which may be done mathematically and/or mentally
With regards to Step 2A, prong 2, regarding claim 1, we consider whether the claim recites additional elements which integrate the judicial exception into a practical application. In the instant application, in addition to the assessment step the claims are directed to separating microalgae from the microalgae culture solution to culture microalgae along with measuring transmittance from the culture and the separated solution, which are mere data gathering steps in order to accomplish the assessment step. Therefore, this is insignificant extra solution activity, regarding selection of a particular data type for additional operational steps.
With regards to Step 2B, In claim 1, transmittance measurement values and irradiated light are acquired using methods that are
recited in a generic manner and are routine conventional in the prior art as evidenced by Feris, K. et al., (US 20150275166A1; published 1-10-2015).
Regarding Claims 2-6:the stated claims assess proliferative activity relative to a reference/control and/or assess viable/non-viable concentration of microalgae relative to exposure of irradiated light. Accordingly, with regards to 2A prong 1, claims 2-6 further define how the assessment step is performed and represent additional mental evaluation or comparison of data associated with the abstract assessment identified in claim 1. Regarding 2A, prong 2, Claim 5 additionally specifies the separation step occurs after a predetermined culture time elapses, however this merely describes when the sample is separated and does not integrate the abstract idea into a practical application. As per Step 2B, the claims do not amount to significantly more than the abstract idea since they involve comparing or evaluating collected data which were well understood, routine, and conventional, as evidenced by Feris, K. et al (page 5, paragraph 0044; paragraphs 0055-0065).
With regards to claims 7 and 8: under 2A, prong 1, the recitation of the irradiated wavelengths, as per the assessment of culture state, represent additional elements. Regarding 2A, prong 1: the acquisition of said data do not integrate into a practical application since they merely define how the wavelength measurements are gathered. As per 2B, the claimed wavelengths of light are well understood and are not deemed to integrate into a practical application since the measure of wavelengths are a conventional activity, as evidenced by Feris et al., (page 6, paragraph 0052).
With regards to claim 9: under 2A, prong 1,the steps for assessing boundary points from a spectrum of wavelengths are additional elements directed to the abstract idea of claim1. With regards to 2A, prong 2, the assessment over a spectrum of wavelengths do not integrate into a practical application. Regarding 2B, determining boundary points from measurements of wavelengths is well understood, routine, and a practical application, that is conventional as evidenced by Embaye et al., (column 4, lines 49-67; column 5, lines 1-23 and lines 47-58; US 8244477B1, 14-08-2012)..
As such, the claims do not recite additional elements that alone or together amount to significantly more than the judicial exception itself.
For the forgoing reasons, the claims are not deemed to encompass patent eligible subject matter under 35 USC § 101.
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 1-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Feris, K. et al., (US 20150275166A1; published 1-10-2015).
Regarding claim 1, Feris et al., describes assessment of culture conditions for microalgae using agricultural wastewater, in which the wastewater is separated, treated and reused for microalgae growth, wherein samples are measured for light absorbance (A), in which absorbance is negative log of transmittance (T), [A = - log T], to assess culturing conditions (page 3, paragraphs 0023-0024 and 0028; page 5, paragraph 0040).
Regarding claims 2 and 3, Feris et al., teaches several methods to assess microalgae growth relative to a control/reference as described through experiments assessing UV treated dairy manure wastewaters: anaerobic digester effluent (ADE) and polyhydroxyalkanoate reactor effluent (PHAE) (page 4, paragraphs 0036-0037). Feris et al., teaches a comparison between experimental measurements and reference values, wherein proliferative stages are greater than or equal to the reference are characterized through multiple data sets:
UV exposure with linear correlation (page 2, paragraph 0011; see Figs 4A-D),
changes in Chlorella vulgaris growth curves for pre- and post- UV treatment (page 2, paragraph 0012; see Figs 5A-B), and
linear relationships for lag phase growth as a function of UV dosing (page 3, paragraph 0013, see Fig 6A-B).
Regarding claim 4, Feris et al., teaches assessment steps and dead algae concentration from a culture solution by measuring lag phage and stationary phase life cycles with microalgae cultures from ADE and PHAE with UV treatment, compared with a reference (page 4, paragraph 0037; page 10, paragraph 0121).
Regarding claim 5, Feris et al., teaches transfer of cultured algae, post-harvest, for further cultivation, storage, separation for desirable components/products, wherein Chlorella vlulgaris growth rates were measured and compared with controls (page 5, paragraph 0044; paragraphs 0055-0065).
Regarding claim 6, Feris et al teaches a culture state assessment method using ‘Equation 2’ (page 8, paragraph 0076-0078), wherein the dead algae concentration is obtained from optical measurement values providing a ratio of viable algae to total microalgae in a solution (page 8, paragraph 0078).
Regarding claims 7 and 8, Feris et al., teaches methods of optical measurements from 200-400nm (for ADE) or 300-500nm (for PHAE) to assess the microalgae culture (page 6, paragraph 0052) .
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.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Feris, K. et al., (US 20150275166A1; published 1-10-2015) in view of Embaye, T.N. et al., (US 8244477B1; 14-08-2012).
The teaching of Feris et al., are previously disclosed.
Feris et al., does not teach dividing a transmission spectrum into regions based on rate of change in transmittance and/or identifying boundary points for wavelengths between said regions for algal culture assessment.
However, Embaye, et al., teaches methods to acquire optical measurements over a range, obtaining an optical spectrum from different stages of algae growth cycle, and identifying specific wavelengths for upstream analysis of algal culture solutions irradiated, based on said boundary points (i.e. first, second, third, fourth wavelength(s)) (column 4, lines 49-67; column 5, lines 1-23 and lines 47-58).
The motivation to combine Feris et al., with Embaye et al., would be to pinpoint optimal wavelength(s) to enhance increases in algal growth cycle, relative to the growth medium conditions, at a series of UV light ranges. These optimized methods would result in maximizing the growth conditions for microalgae and their downstream use.
It would have been obvious to one of ordinary skill in the art, at the effective date of filing, to combine the teaching of Feris et al., with Embaye et al., to provide multiple spectral readings at different stages of algal growth cycle, to then identify the specific optical range(s) at which there were sharp increases in transmittance and/or when changes to transmittance began to slow, indicating algal growth stage(s) relative to a specific growth medium. Since Feris et al., measures starting and end point readings, from algal cultures in addition to performing growth curves, which also require multiple optical measurements, relative to UV treatment with ADE and PHAE, it would have been a routine optimization step, to examine when there were sharp increases or a relative slowdown in transmittance at a given range of wavelengths to then optimize culture methods. Since the prior art teaches the same measurements and calculation methods to examine optimal transmittance boundary points, the prior art is therefore able to establish and select from said boundary points for optimal algal culture assessment.
Correspondence Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ENUSHA KARUNASENA whose telephone number is (571)272-3972. The examiner can normally be reached Monday-Friday 7:30am-5pm.
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/ENUSHA KARUNASENA/Examiner, Art Unit 1653
/SHARMILA G LANDAU/Supervisory Patent Examiner, Art Unit 1653