DETAILED ACTION
Status of Claims:
Claims 1-11 are pending.
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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 and 14 of U.S. Patent No. 12,515,968. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding Claim 1:
The claims of the patent disclose the process for treating wastewater comprising the steps of, a) treating a first wastewater by way of an activated sludge process; b) pre-treating a second wastewater with a membrane aerated biofilm to produce an effluent with reduced ammonia concentration (see claim 1), wherein the pre-treating comprises the use of a shortcut nitrogen removal pathway (deammonification) (see claim 14); c) treating the effluent with reduced ammonia concentration in the activated sludge process, wherein the second wastewater has a higher concentration of ammonia than the first wastewater or comprises a liquid fraction of one or more sludges (see claim 1).
Regarding Claim 2:
The claims of the patent disclose process of claim 1 further comprising treating a portion (second portion) of the first wastewater with the membrane aerated biofilm (see claim 2).
Regarding Claims 3-11:
Claims 3-11 of the patent directly correspond to claims 3-11 of the instant application.
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.
Claim 1-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kos (USPN 5,811,009) in view of Cote (WO 2014130042) and Gong, the article, “Feasibility of a membrane-aerated biofilm reactor to achieve single-stage autotrophic nitrogen removal based on Anammox”.
Regarding Claim 1:
Kos teaches the process for treating wastewater comprising the steps of, a) treating a first wastewater by way of an activated sludge process (aeration tank 56) (see col. 5 lines 45-47, fig. 2); b) pre-treating a second wastewater with nitrification treatment (sidestream nitrification process) (see col. 2 lines 19-26, fig. 2) to produce an effluent with reduced ammonia concentration (effluent ammonia is reduced) (see col. 9 table 2); c) treating the effluent with reduced ammonia concentration in the activated sludge process (see fig. 1), wherein the second wastewater has a higher concentration of ammonia than the first wastewater or comprises a liquid fraction of one or more sludges (high ammonia, dewatering liquid) (see col. 4 lines 50-53, fig. 2).
Kos does not teach that the sidestream treatment is a membrane aerated biofilm that use a shortcut nitrogen removal pathway.
Cote teaches treating ammonia wastewater in an MABR and wherein the treating comprises removal of ammonia (see para. 0025).
Gong teaches treating wastewater with a membrane aerated biofilm to produce effluent with reduced ammonia, wherein the treatment uses a shortcut nitrogen removal pathway (partial nitrification and anammox) (see Abstract).
Kos, Cote, and Gong are analogous inventions in the art of wastewater treatment. It would have been obvious to one skilled in the art to replace the sidestream reactor of Kos with the MABR of Cote because it is the simple substitution of one known reactor for another known reactor, obviously resulting in the removal of ammonia from the waste stream, with an expectation of success (see MPEP 2143, B). It would have been obvious to one skilled in the art to operate the MABR of Kos (as modified by Cote) to use a shortcut nitrogen removal pathway (partial nitrification and anammox) as disclosed by Gong because it allows for oxygen limited conditions (see Gong pg. 777, left column 1st paragraph). Further through routine experimentation one skilled in the art would have found appropriate methods to operate the know MABR to remove ammonia. Applying a known technique to a known device (method or product) ready for improvement to yield predictable results is likely to be obvious. See KSR International Co. v. Teleflex Inc., 550 U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP §
2143, D.).
Regarding Claim 2:
Kos, as previously modified, teaches the process of claim 1 further comprising treating a portion of the first wastewater with the membrane aerated biofilm (dilute with influent wastewater) (see Kos col. 5 lines 16-22, fig, 2).
Regarding Claim 3:
Kos, as previously modified, teaches the process of claim 1 wherein the second wastewater comprises a liquid fraction of one or both of primary sludge and waste activated sludge produced in the activated sludge process (dewatering liquid is liquid fraction from both primary and waste activated sludge after digestion) (see Kos fig. 2).
Regarding Claim 4:
Kos, as previously modified, teaches the process of claim 1 wherein the second wastewater comprises a liquid fraction of anaerobic digester sludge (dewatering liquid) (see Kos fig. 2).
Regarding Claim 5:
Kos, as previously modified, teaches the process of claim 4 wherein the anaerobic digester sludge is produced by digestion of one or both of primary sludge and waste activated sludge produced in the activated sludge process (see Kos, fig. 2).
Regarding Claim 6:
Kos, as previously modified, teaches the process of claim 1 wherein the second wastewater has 400 to 2,000 mg/L of ammonia prior to dilution prior if any (see Kos col. 4 lines 50-52). Given that the prior art range of 400 to 2,000 mg/L overlaps the claimed range of 1,000 mg/l or more a prima facie case of obviousness exists and one skilled in the art would have found it obvious to have a second wastewater with 1,000 mg/L or more ammonia, prior to dilution.
Regarding Claim 7:
Kos, as modified, teaches process of claim 1 wherein the second wastewater is treated in a batch (batch experiments) (see Gong pg. 779 section 2.5.1) process to about the point of material alkalinity depletion (NaHCO3 is added to maintain the pH therefore the material alkalinity is near depletion) (see Gong, pg. 778 section 2.3).
Regarding Claim 8:
Kos, as previously modified, teaches the process of claim 1 comprising treating a portion of the first wastewater with the membrane aerated biofilm without first treating the portion of the first wastewater in the activated sludge wherein the portion is sufficient to allow the ammonia in the second wastewater to be nitrified without alkalinity depletion (the sidestream is diluted and carbonate is added, therefore alkalinity depletion is not reached) (see Kos col. 5 lines 16-35).
Regarding Claim 9:
Kos, as previously modified teaches process of claim 1 comprising treating a portion of the first wastewater with the membrane aerated biofilm without first treating the portion of the first wastewater in the activated sludge process wherein the portion is sufficient to produce a combined wastewater having at least about 1 mol alkalinity per mol of ammonia (about mg of CaCO3 per mg of ammonia, as this alkalinity is reached the amount of first wastewater added is sufficient to achieve it) (see Kos col. 5 lines 16-35).
Kos does not teach about 2 mol of alkalinity per mol of ammonia. Kos further teaches that alkalinity is consumed by the process so it needs to be added, therefore one skilled in the art would have found it obvious to adjust the amount to alkalinity and use at least 2 mol alkalinity per mol ammonia. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation” (see In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art (see In re
Boesch, 205 USPQ 215 (CCPA 1980) MPEP § 2144.05, II.). Further the applicant has not shown any significance or unexpected results associated with 2 mol of alkalinity per mol of ammonia.
Regarding Claim 10:
Kos, as previously modified, teaches the process of claim 1 comprising monitoring one or more of alkalinity, pH, and membrane exhaust oxygen concentration in step b) (pH is controlled, therefore alkalinity is monitored) (see Kos col. 5 lines 30-31).
Regarding Claim 11:
Kos, as previously modified, teaches the process of claim 1.
Kos does not explicitly teach selecting (a) a duration of a batch in a batch process with the membrane aerated biofilm or (b) a ratio of the first wastewater to second wastewater when a portion of the first wastewater is treated with the membrane aerated biofilm, based on a measurement of pH or membrane exhaust oxygen concentration. Kos further teaches that nitrification rate is dependent on pH (see col. 5 lines 30-31) and temperature (see col. 10 lines 23-30, table 3) and that influent wastewater (first wastewater) is added to cool (adjust the temperature) of the high ammonia concentrate (second wastewater). As Kos measure the pH and adjusts the ratio of first wastewater to second wastewater the selection is made based on the measurement of pH.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CLAIRE A NORRIS whose telephone number is (571)272-5133. The examiner can normally be reached M-Th 7:30-5 F: 8-12.
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/CLAIRE A NORRIS/Primary Examiner, Art Unit 1779 6/29/2026
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