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 .
Election/Restrictions
Applicant’s election without traverse of Group I in the reply filed on 07/23/2026 is acknowledged.
Claims 12 and 16-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claims 1-11 and 13-15 are directed to the elected invention and have been examined on their merits.
Priority
The present application is a § 371 National Stage Entry of PCT/EP2022/084959 (filed on 12/08/2022) and claims priority to German application DE102021214010.6 (filed on 12/08/2021).
Specification
The disclosure is objected to because it contains embedded hyperlinks and/or other forms of browser-executable code. Specifically, p. 1, par. 2; p. 2, par. 1; p. 3, par. 1; p. 6, par. 3; p. 12, par. 5; and p. 28, par. 3 contain hyperlinks.
Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112:
(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.
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 5-10 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention.
Claim 5 is rejected as indefinite because there is insufficient antecedent basis for the term “the culture medium” in line 2. Neither claim 5 nor the claim from which this claim depends (claim 1) teach or define a “culture medium”. Accordingly, it is not readily apparent what “culture medium” is being limited.
In the interest of compact prosecution, it is interpreted that claim 5 introduces a culture medium and limits it such that it does not contain a carbon source.
Claim 6 is rejected as indefinite because, for the reasons discussed above, there is insufficient antecedent basis for “the culture medium”.
Additionally, claim 6 introduces a Markush group wherein the culture medium “is selected from the group consisting of” 9 elements. This claim is a full list of ingredients in a culture medium but as the claim reads, a person is expected to select “a culture medium” from this list (e.g., by picking “NaCl” as the culture medium).
In the interest of compact prosecution, this claim has been interpreted to instead be limiting the culture medium to require each of these components and in the recited concentrations.
Claim 7 is rejected as indefinite because, for the reasons discussed above, there is insufficient antecedent basis for “the culture medium”.
Additionally, claim 7 requires adjustment of pH “with an air stream”. It is unclear if this is the same air stream as recited in claim 1 or is an additional air stream used only to control pH.
In the interest of compact prosecution, this claim has been interpreted to allow for adjustments of the flow rate in the air stream of claim 1 (i.e., the input which “supplies air to the autotrophic microorganisms”) rather than requiring a second air source for pH control.
Moreover, claim 7 allows for “additional carbon dioxide in the air stream”. Again, it is unclear if this refers to an additional air stream used to control pH or could include adding carbon dioxide to the air stream which supplies air to the autotrophic microorganisms.
Finally, “air” is defined by applicant to mean “natural, atmospheric air, usually containing 78% by volume nitrogen, 21% by volume oxygen and noble and other gases, in particular carbon dioxide, also of anthropogenic origin, also known as atmospheric carbon dioxide” (Specification, p. 9, par. 2). Thus, it is not clear how the air stream could have “additional carbon dioxide” because claim 1 requires “carbon dioxide from the air” to be “a sole carbon source for the autotrophic microorganisms”. In other words, claim 1 excludes supplementation of the culture with air other than atmospheric carbon dioxide and it is therefore not clear how there could be “additional carbon dioxide in the air stream”.
In the interest of compact prosecution, this claim has been interpreted to allow for supplementation of additional carbon dioxide. Nonetheless, the claim should be amended (or appropriate argument should be submitted) in order to clarify how a process which excludes carbon other than atmospheric carbon dioxide can also include “additional carbon dioxide”.
Claim 8 is rejected for the same reasons discussed above in the rejection of claim 7. Namely, claim 8 recites “the culture medium” and allows for control “with an air stream and/or with additional carbon dioxide in the air stream”.
Claim 9 is rejected because it is unclear what is meant by the phrase “photon flux density (PFD) is greater than 0 – 10,000 µE/m2 ▪ sec ▪ m2. Specifically, this claim recites a range within a range. The first range is 0 – 10,000 but the claim is required to be “greater than” this range. Thus, it is not clear if the PFD falls within 0 – 10,000 or encompasses values greater than 0 – 10,000.
In the interest of compact prosecution this claim has been interpreted as meaning 0 - 10,000.
Additionally, it is not clear if applicant intended to include the second recitation of m2 because the specification provides PFD in terms of µE/m2 ▪ sec (p. 14, par. 5).
Claim 10 is rejected because, for the reasons discussed above, the claims exclude anything other than atmospheric CO2 (through explicit definition of the term “air”). Thus, it is not clear how the “proportion of carbon dioxide in the air stream is from 0.1 – 5% by volume” as this exceeds the amount of CO2 found in atmospheric air.
Claims 7-8 and 10 are rejected under 35 U.S.C. 112(d) as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claims 7-8 and 10 are rejected under 35 U.S.C. § 112(d) because they improperly broaden the scope of claim 1. As discussed above, claim 1 requires “carbon dioxide from the air” to be “a sole carbon source for the autotrophic microorganisms”.
“Air” is defined by applicant to mean “natural, atmospheric air, usually containing 78% by volume nitrogen, 21% by volume oxygen and noble and other gases, in particular carbon dioxide, also of anthropogenic origin, also known as atmospheric carbon dioxide” (Specification, p. 9, par. 2). Thus, by virtue of claim construction, claim 1 and its dependents necessarily exclude the addition of any carbon dioxide other than atmospheric carbon dioxide.
Thus, because claims 7-8 allow for “additional carbon dioxide in the air stream” and claim 10 allows for carbon dioxide concentrations which exceed the amount found in atmospheric air, they are improperly broadening and contradict the requirement that atmospheric air is the “sole carbon source”.
Applicant may cancel the claims, amend the claims to place the claims in proper dependent form, rewrite the claims in independent form, or present a sufficient showing that the dependent claims comply with the statutory requirements.
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.
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 1-5, 10-11, and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Ramanan et al. (Bioresource Technology, 2010, Vol. 101, pages 2616-2622; cited in IDS filed on 10/09/2024), as evidenced by Radmann et al. (Aquaculture, 2007, Vol. 265, pages 118-126) and CCAP (“Bold’s Basal Medium (BB)”, Culture Collection of Algae and Protozoa Media Recipes, Webpage. https://www.ccap.ac.uk/wp-content/uploads/MR_BB.pdf. Accessed September 2026); claim 6 is rejected over the same and as further evidenced by Rajasekaran et al. (Walailak Journal of Science and Technology, 2016, Vol. 13(1), pages 67-75).
Ramanan et al. teaches that the industrial revolution has pumped in huge volumes of CO2 into the earth’s atmosphere (p. 2616, left col., par. 1). Recently, it has been widely accepted that global warming is because of greenhouse gas emissions from anthropogenic activities and therefore actions are being taken to mitigate the greenhouse gas emissions from anthropogenic activities, especially in the case of large point source emissions (Id.). Photosynthesis has long been recognized as a means to sequester anthropogenic CO2 and algae have also been identified as fast growing species whose carbon fixing rates are much higher than those of terrestrial plants (Id.). The continuous cultivation of algae would not only help in biofixation of CO2 but also yield value added products from biomass such as proteins, fatty acids, vitamin A, minerals, pigments, dietary supplements for humans, animals, and aquaculture (Id.).
Regarding claim 1, Ramanan teaches construction of a “mini-raceway pond” consisting of a shallow tank with a working volume of 8 L and a headspace of 156 L which was enclosed to avoid CO2 leakage and injected with a range of CO2 concentrations (Section 2.2). Ramanan teaches that the raceway pond “was constructed with a design adopted from previous studies” (Section 2.2; citing Radmann et al. 2007). Radmann demonstrates that the open raceway ponds contain culture medium (Section 2.2). Ramanan teaches that Spirulina platensis is grown in “modified Zarrouk medium devoid of bicarbonate ion (carbon free media)” and Chlorella sp. was grown in Bold Basal Media (Section 2.1).
CCAP provides evidence that Bold Basal Medium is free of carbon.
Ramanan continues by stating that both Spirulina and Chlorella showed high fixation efficiency (Section 3.1).
Ramanan differs because applicant defines “air” as meaning “natural, atmospheric air, usually containing 78% by volume nitrogen, 21% by volume oxygen and noble and other gases, in particular carbon dioxide, also of anthropogenic origin, also known as atmospheric carbon dioxide” (Specification, p. 9, par. 2). Ramanan, as discussed above, uses enriched CO2 air (1%, 5%, and 10%). Thus, because Ramanan supplies CO2 enriched air, it does not supply “air” as defined by the specification.
Nonetheless, Ramanan provides sufficient motivation and teaching to modify its invention such that the air (plain meaning) is atmospheric air. For example, as discussed above, Ramanan teaches that the goal of the invention is to capture CO2 in the atmospheric air in order to combat global warming. Thus, a person having ordinary skill in the art would have been motivated to use the air in which Ramanan identifies a problem (rather than another source such as a CO2 tank with concentrated CO2). There would have been a reasonable expectation that autotrophic microorganisms supplied with the “air” (applicant’s definition of the term) would be capable of “sequestering carbon from the air” because these microorganisms are widely known to concentrate carbon through photosynthesis as their natural activity. See, for example, Ramanan’s teaching that “[t]he microalgae are…efficient sequesters of CO2” (p. 2617, left col., par. 1). This obviousness is based upon the “Some Teachings, Suggestion, or Motivation in the Prior Art That Would Have Led One of Ordinary Skill To Modify the Prior Art Reference or To Combine Prior Art Reference Teachings To Arrive at the Claimed Invention” rationale set forth in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007). See MPEP 2143(I)(G).
Thus, Ramanan, as evidenced by Radmann and CCAP, renders obvious a process for sequestering carbon from the air, wherein air is supplied to autotrophic microorganisms (Spirulina and Chlorella) in at least one bioreactor (a mini-raceway pond reactor), and carbon dioxide from the air is a sole carbon source for the autotrophic microorganisms.
Regarding claim 2, as discussed above, Ramanan teaches a mini-raceway pond reactor (an open pond bioreactor).
Regarding claims 3 and 13-14, as discussed above, Ramanan renders obvious the method involving the use of Spirulina and Chlorella. These genera of microorganism are considered to be photoautotrophic (claim 3) algae (claim 13), of the genera Spirulina (Arthrospira) and Chlorella (claim 14). The position that Spirulina and Arthrospira are interchangeable terms is supported by applicant’s disclosure which teaches “Spirulina is a common and commercial name for a variety of similar cyanobacteria species belonging to the genus Arthrospira” and “[t]he genus Arthrospira includes…A. platensis” (Specification, p. 8, par. 3).
Regarding claims 4 and 15, as discussed above, Ramanan teaches the use of Spirulina platensis. Spirulina platensis is known to be another taxonomic name for Arthrospira platensis. See, for example, applicant’s disclosure which teaches “Spirulina is a common and commercial name for a variety of similar cyanobacteria species belonging to the genus Arthrospira” and “[t]he genus Arthrospira includes…A. platensis” (Specification, p. 8, par. 3).
Regarding claim 5, as discussed above, Ramanan explicitly teaches that Zarrouk media is modified to be devoid of bicarbonate (and explicitly states “carbon free media”)(Section 2.1). Additionally, CCAP demonstrates that Bold Basal Media is devoid of an additional carbon source.
Thus, Ramanan teaches the process for sequestering carbon from the air, wherein the culture medium for the autotrophic microorganisms does not contain a carbon source.
Regarding claim 6, as discussed in the 35 U.S.C. § 112(b) section above, this claim has been interpreted to be defining a culture medium used in the process.
As discussed above, Ramanan teaches the use of Zarrouk media which has been modified to not contain bicarbonate.
Although Ramanan does not provide the specific components in the Zarrouk media, Rajasekaran et al. provides evidence that Zarrouk media contains:
0.5 g K2HPO4¸ 2.5 NaNO3, 1.0 g K2SO4, 1.0 g NaCl, 0.2 g MgSO4 ▪ 7H2O, 0.04 g CaCl2, 0.01 g FeSO4 ▪ 7H2O, 0.08 g NaEDTA, 16.8 g NaHCO3, and 1 ml of micronutrients (i.e., a trace element solution) per liter (Table 2). Thus, the modified Zarrouk media contains each of these components except NaHCO3 as explicitly taught by Ramanan.
Regarding claim 10, Ramanan teaches that the raceway ponds were injected with 1%, 5%, and 10% CO2 (Section 2.2).
Thus, Ramanan teaches the process for sequestering carbon from the air according to claim 7, wherein a proportion of carbon dioxide in the air stream is 1%, 5%, and 10% (1% and 5% falling within the claimed range of 0.1 – 5% by volume). "If the prior art discloses a point within the claimed range, the prior art anticipates the claim." UCB, Inc. v. Actavis Labs. UT, Inc., 65 F.4th 679, 687, 2023 USPQ2d 448 (Fed. Cir. 2023)(MPEP § 2131.03(I)).
Regarding claim 11, Ramanan teaches that “[t]he system was maintained at 30 °C” (Section 2.2).
Thus, Ramanan teaches the process for sequestering carbon from the air according to claim 1, wherein a temperature in the at least one bioreactor is 30 °C (a value falling within the claimed range of between 20 °C and 45 °C). "If the prior art discloses a point within the claimed range, the prior art anticipates the claim." UCB, Inc. v. Actavis Labs. UT, Inc., 65 F.4th 679, 687, 2023 USPQ2d 448 (Fed. Cir. 2023)(MPEP § 2131.03(I)).
Claims 1-11 and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Ramanan et al. (Bioresource Technology, 2010, Vol. 101, pages 2616-2622; cited in IDS filed on 10/09/2024) in view of Mehar et al. (Journal of CO2 Utilization, 2019, Vol. 33, pages 384-393), as evidenced by Radmann et al. (Aquaculture, 2007, Vol. 265, pages 118-126), CCAP (“Bold’s Basal Medium (BB)”, Culture Collection of Algae and Protozoa Media Recipes, Webpage. https://www.ccap.ac.uk/wp-content/uploads/MR_BB.pdf. Accessed September 2026) and Rajasekaran et al. (Walailak Journal of Science and Technology, 2016, Vol. 13(1), pages 67-75).
The teachings of Ramanan are set forth above and applied herein. Ramanan is found to render obvious claims 1-6, 10-11, and 13-15.
Regarding claims 7-8, Ramanan teaches that CO2 fixation inside mini-raceway ponds depend on variables including pH (Section 3.1) and pH is a critical parameter for growth rate of algae (Section 3.3). Additionally, Ramanan teaches that the pH of the mini-raceway pond was maintained at 10.0 during the CO2 sequestration experiment runs after standardization. Thus, Ramanan teaches the process for sequestering carbon from the air according to claim 1, wherein a pH of the culture medium is 10.0 (a value falling within the claimed range of 7 to 11). "If the prior art discloses a point within the claimed range, the prior art anticipates the claim." UCB, Inc. v. Actavis Labs. UT, Inc., 65 F.4th 679, 687, 2023 USPQ2d 448 (Fed. Cir. 2023)(MPEP § 2131.03(I)). In the interest of compact prosecution, it is noted that Ramanan also teaches subjecting the microorganisms to a range of pHs between 7-13 (Section 3.3).
With respect to the requirement that the pH of the culture medium is adjusted via photon flux density (PFD) and/or with an air stream and/or with additional carbon dioxide in the air stream (claim 7) and that a pH of the culture medium represents a setpoint value between 7 to 11, and deviations from the setpoint value are controlled via photon flux density (PFD) and/or with an air stream and/or with additional carbon dioxide in the air stream (claim 8), Ramanan does not directly teach these aspects.
Nonetheless, Mehar provides methods for automatically controlling open raceway ponds for pH control of Spirulina biomass (abstract). Mehar teaches that Spirulina are sunlight-driven cell factories that can convert CO2 into a biomass rich in high-value metabolites and remains one of the better tools for beneficial utilization of CO2 (p. 384, left col., par. 1). However, Spirulina cultivation needs to be done at an optimum pH in order to maintain unialgal culture and to obtain high biomass without compromising the quality (p. 384, right col., par. 1). Conventional Spirulina cultivation is done without control over pH or maintained by adding acids and bases which may cause additional chemical waste or damage the cells (p. 384, right col., par. 1 through p. 385, left col., par. 1). To this end, Mehar developed an automated system for CO2 feeding (p. 385, left col., par. 1). Specifically, Mehar teaches that “[t]he desired pH was maintained with CO2 supplementation from CO2 feeding unit of the automation system” (p. 385, right col., par. 2). When the pH of the culture rises above the set value, the pH controller opens a solenoid valve and CO2 is sparged into the container at a set flow rate through CO2 sparger till the set pH is achieved and when the set pH value is achieved, the solenoid valve of the pH controller gets closed automatically (Id.).
Thus, because both Ramanan and Mehar teach the importance of pH regulation in raceway ponds including in Spirulina cultivation for CO2 sequestration, and because Mehar teaches a means by which pH can be regulated, it would have been obvious to have modified Ramanan in view of Mehar in order to arrive at a method wherein the pH of the culture medium is adjusted with an air stream and with additional carbon dioxide in the air stream (claim 7) and wherein deviations from the setpoint value are controlled with an air stream and with additional carbon dioxide in the air stream (claim 8). Although Ramanan is silent as to how the pH is controlled, it teaches that it is adjusted to 10.0 and it would have been particularly advantageous to have adapted Ramanan’s method to use Mehar’s pH regulation control because Mehar teaches that regulation with air flow changes rather than acid and base addition allows for automated control, reduces cell death, and reduces the need for additional reagents. There would have been a reasonable expectation of success because Mehar demonstrates the ability of this system to regulate pH at pH 7.5, 8.5, and 9.5 with Spirulina culture and in modified Zarrouk medium (Sections 2.1, 2.3, 2.4). This obviousness is based upon the “Some Teaching, Suggestion, or Motivation in the Prior Art That Would Have Led One of Ordinary Skill To Modify the Prior Art Reference or To Combine Prior Art Reference Teachings To Arrive at the Claimed Invention” rationale set forth in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007). See MPEP 2143(I)(G).
Thus, claims 7-8 are obvious over Ramanan in view of Mehar, as evidenced by Radmann and CCAP.
Regarding claim 9, as discussed above, Ramanan in view of Mehar, as evidenced by Radmann and CCAP renders obvious the process of claim 7.
Neither Ramanan nor Mehar specifically teach that air is supplied to the autotrophic microorganisms in the at least one bioreactor with an air flow of 50 – 50,000 L/h ▪ m2.
Nonetheless, Mehar teaches that the CO2 flow controls can “control/manage the desired CO2 concentration, and the control of gas flow rate” (p. 385, left col., par. 3) and teaches that “[t]he pH of the culture was regulated and maintained at the set pH…by feeding pure food grade gaseous CO2 only” (p. 385, right col., par. 3).
Thus, because both Ramanan and Mehar teach the importance of pH control and Mehar renders obvious controlling this parameter by adjusting the CO2 flow rate, a person having ordinary skill in the art could have routinely experimented with various CO2 flow rates and arrived at the broadly claimed range of 50 – 50,000 L/h ▪ m2 with a reasonable expectation of success. This expectation is reasonable because the change would be expected to merely affect how well the system buffers the pH and the pH would merely affect the efficiency of Ramanan’s system. There is no evidence of record that the specifically recited flow rate is critical or elicits an unexpected or remarkable result. Thus, because the claims differ only from Ramanan in view of Mehar in that they specify a broad range of flow rates and because it was previously known that flow rate adjustment was useful for pH regulation, claim 9 is obvious over Ramanan in view of Mehar, as evidenced by Radmann and CCAP as a result of routine experimentation.
Conclusion
No claim is allowed.
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/GRANT C CURRENS/Examiner, Art Unit 1651
