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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 04/26/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Claim limitation “fixing means” has/have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it follows the 3-prong analysis and so 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph is invoked
A claim limitation will be presumed to invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, if it meets the following 3-prong analysis: the claim limitations must use the phrase “means for” or “step for;”, the “means for” or “step for” must be modified by functional language; and the phrase “means for” or “step for” must not be modified by sufficient structure, material, or acts for achieving the specified function. (MPEP 2181)
Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, claim 1 has been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation: the equivalent structure of the fixing means are springs, staples, screws, glue or thermos-gluing (claim 2).
If applicant wishes to provide further explanation or dispute the examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.
If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112 , sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
For more information, see MPEP § 2173 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011).
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.
Claim(s) 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Tang et al. (WO 2013/048543 A1 – hereafter ‘543) in view of Hu et al. (US 2010/0028976 A1 – hereafter ‘976).
‘543 (Tang) discloses a photobioreactor (Abstract) that includes the following limitations for claim 1:
“A photobioreactor for the culture of macro or microorganisms, liquid evaporation or liquid fermentation”: ‘543 discloses a photobioreactor used for the cultivation of algae and microalgae (page 3 lines 6-8).
“an upper section and a lower section joined to each other by fixing means and further comprising an O-ring inserted on the periphery of the lower section”: ‘543 discloses that the photobioreactor has an upper section (the panels and top; Fig. 1) and a lower section that are joined by a sealing material where this material is the art equivalent of the fixing means (page 18, lines 16-18).
“an upper section further comprises a front face”: The upper section of ‘543 includes a front face (face 11; Fig. 1; page 18, lines 8-13).
“at least one lower inlet and at least one lower outlet are arranged in the lower section”: ‘543 discloses that the lower section has a lower inlet and a lower outlet (Fig. 1; holes 15; page 18, lines 24-28).
“at least one upper inlet and at least one upper outlet arranged on the upper section”: ‘543 discloses that the upper portion of the bioreactor has an upper inlet and outlet (holes 15; Fig. 1; page 18 lines 24-28).
“a removable supply tube arranged on the periphery of the lower section with gas outlet holes arranged on the length of the supply tube”: ‘543 discloses a circulation pipe (pipe 17; fig. 3) that is mounted on the bottom of the reactor and is porous, i.e. has holes, that allow gas to enter the photobioreactor (page 19 lines 14-18).
“an upper face adjacent to the front face and at least one opening and at least one intermediate hole”: ‘543 discloses that the photobioreactor includes a cover (cover 24) seals the bioreactor and includes a hole such as an aperture for adding medium (aperture 25; Fig. 1; page 19, lines 11-13).
“and the front face is arranged in an agnel that varies between 0° and 90°, which is defined by the inclination at the point of intersection of the front face with a horizontal axis that is parallel to the lower section.”: ‘543 discloses that the front panel forms and angle of 90° with the upper face (Fig. 1; Fig. 3).
‘543 differs from the instant claim regarding the use of an O-ring or intermediate openings.
‘976 (Hu) discloses a photobioreactor (Abstract) that for claim 1 includes a gasket (i.e. an O-ring) that is placed between the sidewall and an inner surface of a strut ([0091]). This prevents or reduces thermos-contraction /expansion due to temperature changes. ‘976 further discloses intermediate openings within the bioreactor (Fig. 4).
Therefore, it would have been obvious to one of ordinary skill in the art at the earliest effective filing day to employ the gasket and openings of ‘976 within ‘543 in order to provide a seal between the sidewall and the bottom. The suggestion for doing so at the time would have been in order to reduce thermos-contraction or expansion due to temperature changes due to outdoor conditions ([0091]).
For claim 2, ‘543 discloses that the frame are joined by a sealing material where this material is the art equivalent of the fixing means (page 18, lines 16-18).
For claim 3, ‘543 discloses that the photobioreactor can be made of a synthetic material such as polycarbonate (page 18, lines 8-13).
For claim 4, ‘543 discloses that the frame such as the lower portion can be made of metal (page 18, lines 16-18).
For claim 5, ‘543 discloses that the upper section can be made of a material such as polycarbonate (page 18, lines 8-13).
For claim 6, ‘543 discloses an upper outlet (hole 15; Fig. 1) that is fully capable as functioning as an overflow type.
For claim 7, ‘543 discloses that the aperture (aperture 25; Fig. 3) is part of a cover (page 19, lines 11-13).
For claim 8, ‘543 discloses that the frame has a flat shape (Fig. 1; page 18, lines 19=23).
For claim 9, ‘543 discloses that the bioreactor has a geometric shape (Fig. 1).
For claim 10, ‘543 does not explicitly disclose an additional lateral opening, however, this would merely be a duplication of parts (an additional hole) that would have been obvious to one of ordinary skill in the art the earliest effective filing date in order to remove material at a different height within the photobioreactor. See MPEP §2144.04 VI B.
For claim 11, ‘543 discloses that the photobioreactors are connected by pipes (Fig. 2; page 19, lines 23-25) where these would be connected by a fixing means such as an adhesive (page 18, lines 16-18).
For claim 12, ‘543 discloses that the bioreactors include inlet and outlet pipes (pipes 22; page 19, lines 16-18) where this would be considered a sector (Fig. 2). This is being interpreted as a sector.
For claim 13, , ‘543 discloses that the bioreactors include inlet and outlet pipes (pipes 22; page 19, lines 16-18) where this would be considered a sector (Fig. 2). Moreover, multiples of these sectors can be connected to form a larger cascade bioreactor (Fig. 2and is being interpreted as a field.
For claim 13, assuming, arguendo, that ‘543 does not disclose a field, ‘976 discloses a field of bioreactors ([0140]) that allows for the system to polish wastewater to completely remove nutrients from the wastewater.
Therefore, it would have been obvious to one of ordinary skill in the art at the earliest effective filing date to employ the field of ‘976 within ‘543 in order to remove waste. The suggestion for doing so at the time would have been in order to enhance biomass production ([0140]).
For claim 14, ‘543 discloses that the photobioreactors are supported by U-shape frames (page 5 lines 3-6) and where this would also support the pipes.
For claim 15, ‘543 disclose that the photobioreactor has a cubic shape (Fig. 1).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Herzog (US 2012/0309081 A1) discloses a photobioreactor system with adjustable rims.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL L HOBBS whose telephone number is (571)270-3724. The examiner can normally be reached Variable, but generally 8AM-5PM M-F.
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/MICHAEL L HOBBS/Primary Examiner, Art Unit 1799
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