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 .
DETAILED ACTION
Claims 1-19 are pending. Claim 20 is cancelled.
Election/Restrictions
Applicant’s election of Group I, claims 1-19, in the reply filed on 3/31/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 1-19 are examined herein.
Specification
The use of the terms “COLORQUARTZ” ([0004]) and “Poraver” ([0008]), which are both a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claim 11 is objected to because of the following informalities: there is an extraneous new line in front of “ionic bonds” after hydrophilic bonds,” in line 2-3. Appropriate correction is required.
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.
Claims 2, 5, and 19 are 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.
Claim 2 recites the limitation “which remains at least 80% viable after months of storage.” Claim 2 is indefinite because there is no number of months recited in the claim. Applicant may consider amending to “which remains at least 80% viable after one or more months of storage” to obviate this rejection.
Claim 5 is indefinite because the claim limitations have more than one reasonable interpretation. The claim recites “one or more strains” followed by a list of different bacterial species “and/or a urease and/or a carbonic anhydrase producing microorganism.” In one interpretation, the bacteria comprise one or more strains of Sporosarcina pasteurii (e.g. NCIM 2477) in addition to the remaining bacteria recited in the list. In a second interpretation, the bacteria comprise one or more species pf Sporosarcina pasteurii, Sporosarcina ureae, Proteus vulgaris, Bacillus sphaericus, Myxococcus xanthus, Proteus mirabilis, Bacillus megaterium, Helicobacter pylori, and/or a urease and/or a carbonic anhydrase producing microorganism.
Claim 19 recites the limitation "the aggregate" in line 2. There is insufficient antecedent basis for this limitation in the claim.
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 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.
Claims 1, 3-7, 12-13, and 16-19 are rejected under 35 U.S.C. 103 as being unpatentable over Jonkers et al. (EP 2 082 999 A1) in view of Jonkers et al. (Ecological Engineering 36 (2010) 230–235, February 2010; hereafter Jonkers 2010) as evidenced by Kminek et al. (Radiation-dependent limit for the viability of bacterial spores in halite fluid inclusions and on Mars. Radiat Res. 2003 Jun;159(6):722-9).
Jonkers teaches culturing Bacillus pseudofirmus to produce spores followed by harvesting by centrifugation, washing the pellet containing cells and spores in tap water, centrifugation and then resuspending in an aliquot of tap water to obtain a suspension with a density of 3×1010/ml ([0027]). Culturing B. pseudofirmus and subsequently harvesting by centrifugation necessarily requires contacting the cells with a culture medium to form a mixture and incubating the mixture.
Jonkers teaches contacting porous aggregate particles with the bacterial spore-containing suspension while under partial vacuum, followed by drying the suspension at room temperature (Jonkers claim 14 and [0022]), which necessarily concentrates the spores by removing water and residual culture medium.
Jonkers teaches that the particles comprise average diameters of 0.05 mm (50 microns) in size ([0010], [0027], and Jonkers claim 8), which overlaps with the claimed range of less than 75 microns.
Jonkers does not teach the composition of the culture medium used to produce spores, so Jonkers does not explicitly teach that the culture medium is aqueous.
Jonkers 2010 teaches an aqueous culture medium for Bacillus pseudofirmus comprising distilled water supplemented with manganese to enhance sporulation (page 231, right column, paragraph 1).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to culture Bacillus pseudofirmus in the aqueous medium of Jonkers 2010 in order to produce spores. The person of ordinary skill in the art would have had a reasonable expectation of success given that Jonkers 2010 teaches culturing Bacillus pseudofirmus in an aqueous medium and Bacillus pseudofirmus is a spore-forming bacteria.
Regarding the requirement that the aggregate is “shelf-stable,” bacterial spores are inherently shelf-stable and viable: Bacterial spores exhibit a remarkable resistance to adverse environmental conditions like desiccation, temperature extremes, pH variation, UV radiation and ionizing radiation as evidenced by Kminek (page 1, Introduction, paragraph 1). Furthermore, Jonkers teaches that Liapor (crushed clay)-immobilized B. pseudofirmus spores are characterized by long-term viability (months to years). See [0028]).
Regarding claim 3, Jonkers 2010 teaches an enhanced sporulation culture medium comprising the salts, NH4Cl, KH2PO4, CaCl2, KCl, MgCl2·6H2O, MnSO4·2H2O, NaHCO3, citric acid trisodium, and Na2CO3; as well as trace element solution (“minerals”) and yeast extract (comprising saccharides, amino acids, proteins, peptides, vitamins, and minerals). See page 231, right column, paragraph 1.
Regarding claim 4, Jonkers 2010 teaches culture media that do not contain urea (page 231, right column, paragraph 1).
Regarding claim 5, Jonkers also teaches particles comprising ureolytic (i.e. urease-producing), spore-forming S. pasteurii, produced by the same method as Example 1. See [0030].
Regarding claims 12-13, Jonkers teaches that the aggregate particles comprise sand (see Table on page 4). Sand necessarily comprises grains.
Regrading claim 16, Jonkers does not teach the concentration of spores produced.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to routinely optimize the amount of spores produced during cell culture by varying culture conditions such as the culture medium, temperature, pH, agitation, and duration of culture. The person of ordinary skill in the art would have had a reasonable expectation of success in the routine optimization of the amount of spores produced during cell culture.
Regarding claim 17, although Jonkers teaches that B. pseudofirmus is cultured in its late exponential growth phase to produce spores ([0027]), Jonkers does not explicitly teach that the culture medium stimulates spore formation.
Jonkers 2010 also teaches an aqueous alkaline mineral medium that stimulates spore formation (page 231, right column, paragraph 1).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to culture B. pseudofirmus in Jonkers 2010 spore-stimulating medium in order to maximize the production of spores to subsequently incorporate into the aggregate particles per the method of Jonkers. The person of ordinary skill in the art would have had a reasonable expectation of success in culturing B. pseudofirmus in Jonkers 2010 spore-stimulating medium.
Claim 18 recites that the aqueous medium maintains viability of spore-forming bacteria without propagation. The spore-forming bacteria are not limited to vegetative cells or spores, thus claim 18 is interpreted as requiring that the aqueous medium maintains viability of spore-forming bacteria in either the spore or vegetative cell states without propagation. Bacterial spores are inherently shelf-stable and viable: Bacterial spores exhibit a remarkable resistance to adverse environmental conditions like desiccation, temperature extremes, pH variation, UV radiation and ionizing radiation, as evidenced by Kminek (page 1, Introduction, paragraph 1). Therefore, bacterial spores are necessarily capable of maintaining viability without propagation in any aqueous medium that is capable of promoting formation of their corresponding vegetative cells. Since Jonkers 2010 teaches culture media capable of supporting cell growth and/or sporulation, then these media are necessarily capable of maintaining spore viability without propagation.
Regarding claim 19, Jonkers dries the spores with the aggregate particles until no weight change occurs ([0027], page 4, lines 3-4), which is equivalent to no more water being able to evaporate. Therefore, Jonkers drying step achieves less than 10% liquid by weight.
Claims 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Jonkers et al. (EP 2 082 999 A1) in view of Jonkers et al. (Ecological Engineering 36 (2010) 230–235, February 2010; hereafter Jonkers 2010) as evidenced by Kminek et al. (Radiation-dependent limit for the viability of bacterial spores in halite fluid inclusions and on Mars. Radiat Res. 2003 Jun;159(6):722-9), as applied to claims 1, 3-7, 12-13, and 16-19 above, further in view of Lian et al. (Geochimica et cosmochimica acta 70.22 (2006): 5522-5535).
See discussion of Jonkers and Jonkers 2010 above, which is incorporated into this rejection as well.
Regarding claims 6-8, Jonkers and Jonkers 2010 do not teach incubating the bacteria at physiological pH for 1-3 days to produce spores and/or vegetative cells.
Jonkers uses the spore-loaded aggregate particles to generate self-healing concrete through calcite precipitation (see Jonkers [0028] and [0030]).
Lian teaches incubating Bacillus megaterium at pH 7.0 for 36 hours (page 5524, left column, 2.1. Bacteria cultivation and identification, paragraph 1). Lian also teaches that Bacillus megaterium are spore-forming bacteria (page 5524, left column, second to last line) and are capable of carbonate biomineralization or precipitation of calcium carbonate mineral phases (Title, page 5522, Introduction, right column, lines 1-3).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to replace the B. pseudofirmus spore-forming bacteria with Lian’s Bacillus megaterium in the method of Jonkers modified by Jonkers 2010. It would have been further obvious to incubate B. megaterium for 36 hours, per Lian’s teaching. The person of ordinary skill in the art would have been motivated to change to different spore-forming bacteria capable of calcite precipitation in the method of Jonkers modified by Jonkers 2010 in order to engineer aggregate particles with the best self-healing properties. The person of ordinary skill in the art would have had a reasonable expectation of success in replacing B. pseudofirmus with B. megaterium because both bacteria are spore-forming and capable of precipitating calcite. Furthermore, Lian is in a similar field of endeavor as Jonkers: Lian studies carbonate biomineralization and Jonkers is interested in calcite precipitation (a form of carbonate biomineralization) to engineer self-healing concrete.
Lian’s incubation for 36 hours is within the claimed range of from 6 hours to 6 days (claim 6) and 1-3 days (claim 7). Therefore, a prima facie case of obviousness exists. See MPEP 2144.05.
Claims 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Jonkers et al. (EP 2 082 999 A1) in view of Jonkers et al. (Ecological Engineering 36 (2010) 230–235, February 2010; hereafter Jonkers 2010) as evidenced by Kminek et al. (Radiation-dependent limit for the viability of bacterial spores in halite fluid inclusions and on Mars. Radiat Res. 2003 Jun;159(6):722-9), as applied to claims 1, 3-7, 12-13, and 16-19 above, further in view of Kardon et al. (Journal of Materials in Civil Engineering 9.2 (1997): 85-92).
See discussion of Jonkers and Jonkers 2010 above, which is incorporated into his rejection as well.
Jonkers does not teach further mixing the culture medium comprising spores and aggregate particles with a polymer as a binding agent.
Kardon teaches that mixing normal Portland cement with polymer creates interpenetrating matrices that result in an improvement in the mechanical properties of the polymer-modified concrete (page 85, paragraph bridging left and right columns).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to add a polymer to the aggregate particles and culture medium comprising spores in the method of Jonkers modified by Jonkers 2010 in order to strengthen the interaction between the particles and the spores. The person of ordinary skill in the art would have had a reasonable expectation of success in mixing a polymer with the particles and bacterial spores given that Kardon teaches that mixing a polymer with Portland cement comprising aggregate particles creates interpenetrating matrices, thus improving mechanical properties. In other words, the polymer acts as a binding agent.
Regarding instant claim 11, adding a polymer to the aqueous medium comprising bacterial spores and aggregate particles necessarily results in van der Waals forces between the cells, particles, and polymer because van der Waals forces are weakly attractive forces due to the random interactions between all molecules and atoms.
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Jonkers et al. (EP 2 082 999 A1) in view of Jonkers et al. (Ecological Engineering 36 (2010) 230–235, February 2010; hereafter Jonkers 2010) as evidenced by Kminek et al. (Radiation-dependent limit for the viability of bacterial spores in halite fluid inclusions and on Mars. Radiat Res. 2003 Jun;159(6):722-9), as applied to claims 1, 3-7, 12-13, and 16-19 above, further evidenced by Continental Trade (2025, website).
See discussion of Jonkers and Jonkers 2010 above, which is incorporated into this rejection as well.
Regarding claims 14-15, particles 50 microns in diameter (Jonkers [0010] and Jonkers claim 8) are less than both mesh 100 and mesh 200, as evidenced by Continental Trade (page 4, see mesh size 100 and 200).
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claim 2 is rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 15 of U.S. Patent No. 11,795,108 (‘108) as evidenced by Continental Trade (2025, website). This is a statutory double patenting rejection.
Instant claim 2 has the same claim scope as claim 15 of ‘108. Although claim 15 of ‘108 does not explicitly recite that the aggregate particles comprise ultrafine aggregate particles that have average diameters of less than 75 microns, claim 15 of ‘108 recites that the aggregate particles comprise particles with a mesh size of 200 or smaller. A mesh of 200 or smaller necessarily requires that the aggregate particles comprise particles that have average diameters of less than 75 microns as evidenced by Continental Trade (page 4, mesh size 200 corresponds to 74 microns).
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 1-4, 6-7, 12-17, and 19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-40 of copending Application No. 18/955,896 (‘896, reference application) as evidenced by Continental Trade (2025, website). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-4, 6-7, 12-17, and 19 are obvious over claims 1-40 of ‘896.
Claim 1 of ‘896 recites a method for manufacturing a composition comprising: adding an aqueous medium to a collection of microorganisms to form an aqueous mixture, incubating the aqueous mixture under conditions that promote formation of vegetative cells within the aqueous mixture, mixing the aqueous mixture containing the vegetative cells with aggregate particles, and forming the composition by removing liquid from the aqueous mixture to concentrate the vegetative cells.
Claims 1-18 of ‘896 are drawn to a method for manufacturing a composition. Claim 22 is drawn to a construction material made by the method of claim 1. Claims 19-21 of ‘896 are drawn to am method of manufacturing a composition. Claim 23 of ‘896 is drawn to a construction material made by the method of claim 19. Claims 24-40 of ‘896 are drawn to a composition for use in manufacturing construction materials.
Claims 24-40 of ‘896 are drawn to a composition rather than a method. However, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to manufacture the composition of any of claims 24-40 in any of the methods of claims 1-21 of ‘896 given the structural requirements of the composition.
Claim 1 of ‘896 does not recite that the bacteria are viable spore-forming bacteria or that the aggregate particles comprise average diameters less than 75 µm.
However, claim 6 of ‘896 recites that the composition contains spores and/or vegetative cells, so the bacteria are necessarily viable spore-forming bacteria.
Regarding the particle size, claim 27 of ‘896 recites that the particulate minerals comprise particles of a mesh size of 100 or smaller. A mesh size of 100 or smaller corresponds to average diameters less than 149 µm, as evidenced by Continental Trade (page 4, mesh size 100) which is a range that overlaps with the claimed range of less than 75 µm.
Therefore, instant claim 1 is obvious over claims 1-40 of ‘896.
Instant claim 2 is obvious over claims 6, 11, and 27 of ‘896. Claim 6 of ‘896 recites that the composition contains from about 106 to about 1012 spores and/or vegetative cells/ml. Claim 11 of ‘896 recites that the composition contains less than 10% liquid by weight. Instant claim 2 recites the same requirements as both claims 6 and 11 of ‘896. Since the mixture of claims 6, 11, and 27 of ‘896 contains vegetative cells and aggregate particles, removing liquid necessarily concentrates both the cells and the aggregate particles. It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to remove liquid to satisfy the requirements of both claims 6 and 11 of ‘896 in order to create a composition for use in manufacturing construction material that meets both specifications.
Instant claim 3 is obvious over claims 6, 17, 19, and 27 of ‘896.
Instant claim 4 is obvious over claims 6, 19, 27, and 32 of ‘896.
Instant claims 6-7 are obvious over claims 6, 16, 19, and 27 of ‘696.
Regarding instant claim 6, claim 16 of ‘896 recites that the incubating the aqueous mixture is performed for a duration between 6 hours and 6 days.
Regarding instant claim 7, the duration between 6 hours and 6 days (claim 16 of ‘896) overlaps with the claimed range of 1-3 days.
Regarding instant claim 12, claim 36 of ‘896 recites the same particle types as instant claim 12, but claim 36 of ‘896 is drawn toa composition for use in manufacturing a construction material rather than a method for manufacturing a composition. Claim 12 is obvious over claims 6, 19, 27, and 36 of ‘896, since it would have been obvious to the person of ordinary skill in the art before the effective filing date of the claimed invention to produce the composition of claims 27 and 36 by the method of claim 6 or 19 of’ 896.
Regarding instant claim 13, sand comprises grains, so claim 13 is also obvious over claims 6, 19, 27, and 36 of ‘896.
Instant claims 14-15 are obvious over claims 6, 19, and 27 of ‘896.
Instant claim 16 is obvious over claims 6. 19, 27, and 39 of ‘896.
Instant claim 17 is obvious over claims 6, 19, and 27 of ‘896 because claim 19 of ‘896 recites incubating the aqueous mixture under conditions that induce formation of spores.
Instant claim 19 is obvious over claims 6, 11, 19, and 27 of ‘896.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 5 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 6, 19, and 27 of copending Application No. 18/955,896 (‘896, reference application) as evidenced by Continental Trade (2025, website) in view of Jonkers et al. ("Self-healing of cracked concrete: A bacterial approach." Proceedings of FRACOS6: fracture mechanics of concrete and concrete structures. Catania, Italy (2007): 1821-1826; hereafter Jonker 2007).
See discussion of claims 6, 19, and 27 of ‘896 and Continental Trade above, which is incorporated into this rejection as well.
Regarding instant claim 5, claims 6, 19, and 27 of ‘896 do not recite the species of spore-forming bacteria.
Jonkers 2007 teaches bacterial concrete comprising aggregate particles of varying sizes (Table 1) mixed with spore-forming bacteria Sporosarcina pasteurii (page 2, left column, 2 Methods 2.1 Cultivation of alkali-resistant spore-forming bacteria, paragraph 1).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to replace the generic spore-forming bacteria of claims 6, 19, and 27 of ‘896 with Jonkers 2007’s Sporosarcina pasteurii. The method of claims 6, 19, and 27 of ‘896 requires a generic spore-forming bacteria and Jonkers 2007 teaches a spore-forming bacteria. Furthermore, Jonkers 2007 is in a similar field of endeavor because Jonkers 2007 is interested in materials combining bacteria and aggregates.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 8 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 6, 19, and 27 of copending Application No. 18/955,896 (‘896, reference application) as evidenced by Continental Trade (2025, website) in view of Lian et al. (Geochimica et cosmochimica acta 70.22 (2006): 5522-5535).
See discussion of claims 6, 19, and 27 above, which is incorporated into this rejection as well.
Regarding instant claim 8, claims 6, 19, and 27 of ‘896 do not recite incubating the bacteria at physiological pH to produce spores.
Lian teaches incubating Bacillus megaterium at pH 7.0 (page 5524, left column, 2.1. Bacteria cultivation and identification, paragraph 1) and Lian also teaches that Bacillus megaterium are spore-forming bacteria (page 5524, left column, second to last line). Lian teaches that B. megaterium is capable of carbonate biomineralization (Title).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to replace the generic spore-forming bacteria of claims 6, 19, and 27 of ‘896 with Lian’s Bacillus megaterium. The method of claims 6, 19, and 27 of ‘896 requires a generic spore-forming bacteria and Lian teaches a spore-forming bacteria. Furthermore, Lian is in a similar field of endeavor because Jonkers is interested in carbonate biomineralization.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 9-11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 6, 19, 27, and 35 of copending Application No. 18/955,896 (‘896, reference application) as evidenced by Continental Trade (2025, website) in view of Kardon (Journal of Materials in Civil Engineering 9.2 (1997): 85-92).
See discussion of claims 6, 19, 27, and 35 of ‘896 and Continental Trade above, which is incorporated into this rejection as well.
Claim 35 of ‘896 recites the composition for use in manufacturing construction materials further comprises a polymer. Claim 35 of ‘896 is drawn to a composition rather than a method.
Kardon teaches that mixing normal Portland cement with polymer creates interpenetrating matrices that result in an improvement in the mechanical properties of the polymer-modified concrete (page 85, paragraph bridging left and right columns).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to use the composition of claim 35 of ‘896, comprising a polymer, in the method of claims 6, 19, and 27 of 896. The person of ordinary skill in the art would have had a reasonable expectation of success in mixing a polymer with the particles and bacterial spores given that Kardon teaches that mixing a polymer with Portland cement comprising aggregate particles creates interpenetrating matrices, thus improving mechanical properties. In other words, the polymer acts as a binding agent. Therefore, instant claims 9-10 are obvious over claims, 6, 19, 27, and 35 of ‘896 in view of Kardon.
Regarding instant claim 11, adding a polymer to the aqueous medium comprising bacterial spores and aggregate particles necessarily results in van der Waals forces between the cells, particles, and polymer because van der Waals forces are weakly attractive forces due to the random interactions between atoms.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 18 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 6, 19, and 27 of copending Application No. 18/955,896 (‘896, reference application) as evidenced by Continental Trade (2025, website) and by Kminek et al. (Radiation-dependent limit for the viability of bacterial spores in halite fluid inclusions and on Mars. Radiat Res. 2003 Jun;159(6):722-9).
See discussion of claims 6 19, and 27 and ‘896 and Continental Trade above, which is incorporated into this rejection as well.
Regarding instant claim 18, claim 18 recites that the aqueous medium maintains viability of spore-forming bacteria without propagation. The spore-forming bacteria are not limited to vegetative cells or spores, thus claim 18 requires that the aqueous medium maintains viability of spore-forming bacteria in either the spore or vegetative cell state without propagation. Claims 6 and 19 of ‘896 require adding an aqueous medium to a collection of microorganisms to form an aqueous mixture and incubating the aqueous mixture under conditions that promote formation of vegetative cells within the aqueous mixture. Therefore, the aqueous medium is necessarily capable of maintaining viability of the spore-forming bacteria in spore state without propagation. Bacterial spores are inherently shelf-stable and viable: Bacterial spores exhibit a remarkable resistance to adverse environmental conditions like desiccation, temperature extremes, pH variation, UV radiation and ionizing radiation as evidenced by Kminek (page 1, Introduction, paragraph 1). Therefore, bacterial spores are necessarily capable of maintaining viability in any aqueous medium that is capable of promoting formation of their corresponding vegetative cells.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1 and 3-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 11,795,108 (‘108) as evidenced by Continental Trade (2025, website). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 is anticipated by claim 15 of ‘108 and claims 3-19 are obvious over claims 1-19 of ‘108.
Instant claims 1 is anticipated by claim 15 of ‘108. Although claim 15 of ‘108 does not explicitly recite that the aggregate particles comprise ultrafine aggregate particles that have average diameters of less than 75 microns, claim 15 of ‘108 recites that the aggregate particles comprise particles with a mesh size of 200 or smaller. A mesh of 200 or smaller necessarily requires that the aggregate particles comprise particles that have average diameters of less than 75 microns as evidenced by Continental Trade (page 4, mesh size 200 corresponds to 74 microns).
Claims 1-14 and 16-19 of ‘108 do not recite that the aggregate particles comprise ultrafine aggregate particles that have average diameters of less than 75 microns. However, given that claim 15 requires that the aggregates comprise particles with a mesh size less than 200, It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to apply any of the methods of claims 1-14 and 16-19 of ‘108 to aggregates with mesh size less than 200, which necessarily requires that the particles comprise average diameters of less than 75 microns.
Instant claim 3 is obvious over claims 2 and 15 of ‘108.
Instant claim 4 is obvious over claims 3 and 15 of ‘108.
Instant claim 5 is obvious over claims 4 and 15 of ‘108.
Instant claim 6 is obvious over claim 6 and 15 of ‘108.
Instant claim 7 is obvious over claim 7 and 15 of ‘108.
Instant claim 8 is obvious over claim 8 and 15 of ‘108.
Instant claim 9 is obvious over claim 9 and 15 of ‘108.
Instant claim 10 is obvious over claim 10 and 15 of ‘108.
Instant claim 11 is obvious over claim 11 and 15 of ‘108.
Instant claim 12 is obvious over claims 11 and 15 of ‘108.
Instant claim 13 is obvious over claims 13 and 15 of ‘108.
Instant claim 14 is obvious over claim 14 of ’108. Mesh size less than 100 requires particles less than 149 microns in size as evidenced by Continental Trade (page 5, mesh size 200), which overlaps with the claimed range of aggregates comprising average diameters less than 75 microns in size.
Instant claim 15 is obvious over claim 15 of ‘108.
Instant claim 16 is obvious over claims 15-16 of ‘108.
Instant claim 17 is obvious over claims 15 and 17 of ‘108.
Instant claim 18 is obvious over claims 15 and 18 of ‘108.
Instant claim 19 is obvious over claims 15 and 19 of ‘108.
Conclusion
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/LOUISE W HUMPHREY/Supervisory Patent Examiner, Art Unit 1657
/CANDICE LEE SWIFT/Examiner, Art Unit 1657