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
This application is a continuation (CON) application of U.S. Application Serial Number 18/295,041, filed 4/03/2023, which is a CON of U.S. Application Serial Number 16/761,313, filed 5/04/2020, which is a 371 of PCT/ EP2018/080134, filed 11/05/2018. This application claims benefit to foreign application EP 17200037.4, filed 11/04/2017. Claims 1-16 are pending and have been examined on the merits.
Information Disclosure Statement
The information disclosure statement submitted on 10/14/2024 has been considered by the examiner.
Drawings
The drawings are objected to because “Figur 1a:” on sheet 1 should be “Fig. 1A” and “Figur 1b:” on sheet 2 should be “Fig. 1B” as described in 37 CFR 1.84(u)(1).
37 CFR 1.84(u)(1) states “The different views must be numbered in consecutive Arabic numerals, starting with 1, independent of the numbering of the sheets and, if possible, in the order in which they appear on the drawing sheet(s). Partial views intended to form one complete view, on one or several sheets, must be identified by the same number followed by a capital letter. View numbers must be preceded by the abbreviation "FIG." Where only a single view is used in an application to illustrate the claimed invention, it must not be numbered and the abbreviation "FIG." must not appear.”
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Interpretation
Claims 1-9 and 13-16 are drawn to a device, i.e., an apparatus, not a method. Intended use or method step limitations in apparatus claims are interpreted as requiring that the claimed device be capable of performing the intended use or method step; hence, apparatus claims with intended use recitations are anticipated or made obvious by prior art apparatuses which could perform the intended use or method step regardless of whether the prior art discloses the intended use or method step.
Claim Rejections - 35 USC §§ 101/112
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.
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 10-12 are rejected under 35 U.S.C. 101 because the claimed inventions are directed to non-statutory subject matter.
The claims do not fall within at least one of the four categories of patent eligible subject matter because although the claims assert that they are drawn to a method, the claims either A) do not set forth a method step and do not comprise a transitional phrase (claims 10-11) or B) set forth a method only comprising “utilizing” the device according to claim 1 (claim 12; i.e., a “use” claim – see MPEP 2173.05(q)).
Because claims 10-12 constitute method claims which do not set forth any method step, it is indefinite what process the claim encompasses; hence, claims 10-12 are also rejected under 35 U.S.C. 112(b) for indefiniteness.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, 5-13 and 15-16 are rejected under 35 U.S.C. 102(a)(1)/102(a)(2) as being anticipated by Beaumont et al., US 2017/0296961 (US Patent Application Publication cite 1, IDS, 10/14/2024; herein “Beaumont”).
Beaumont teaches a system comprising a device comprising an absorber material for the reversible adsorption of carbon dioxide (CO2) from a gas stream, wherein the gas stream is ambient air, i.e. atmospheric air (i.e. at least one module comprising a capture unit configured for binding the atmospheric CO2 by way of an adsorber material; Abst.; [0001-2], [0023]; Fig. 2), wherein the device can release the CO2 adsorbed from the atmosphere by pressure or temperature swings [0073], wherein the released CO2 goes to a storage buffer able to store an amount of the CO2 enriched gas to 0.1 to 2 days usage for a particular application ([0091], [0110]; p. 7, claims 7-8 and 21; i.e. after treatment by way of heat or a vacuum, the atmospheric carbon dioxide being kept available), wherein the CO2 absorption unit is connected to a microalgae photo bioreactor (i.e. the at least one module being connected to at least one bioreactor; [0080], [0088], [0090-1]; p. 7, claims 12-13 and 21) capable of performing the intended use of continuously supplying atmospheric carbon dioxide to autotrophic microorganisms in the at least one bioreactor ([0097], [0109-0112]; p. 8, claim 23) anticipating claim 1.
Beaumont teaches methods of sequestering CO2 from ambient air with the device (Abst.; [0001-2], [0006], [0030], [0044], [0090-91]) anticipating claim 12.
Beaumont teaches that the method of sequestering CO2 from ambient air can comprise continuously supplying the CO2 to autotrophic microorganisms in a (continuously operating) bioreactor ([0097], [0109-110]; pp. 7-8, claims 7-8, 12-13 and 21-23) anticipating claims 10-11.
Regarding claim 2, Beaumont teaches that their system (i.e., device) comprises a storage buffer able to store an amount of the CO2 enriched gas to 0.1 to 2 days usage for a particular application ([0091], [0110]; p. 7, claims 7-8 and 21), i.e., Beaumont’s device is capable of performing the intended use of keeping the atmospheric CO2 available in a container, anticipating claim 2.
Regarding claims 3 and 13, Beaumont teaches that the CO2 storage container can be a pressurized storage container (the storage buffer holds the CO2 in a compressed form; [0091]; p. 7, claim 11) anticipating claims 3 and 13.
Regarding claim 5, Beaumont teaches that the bioreactor can be a microalgae photobioreactor ([0080], [0090]; p. 7, claims 13 and 21) or an open pond [0088] anticipating claim 5.
Regarding claim 6, the limitation “air capture module” appears to be synonymous with the CO2 sequestration module set forth in claim 1 (specification, pp. 9-10, spanning ¶). Thus, claim 6 delimits the “at least one module comprising a capture unit configured for binding the atmospheric carbon dioxide by way of an adsorber material” to being “a capture unit configured for binding the atmospheric carbon dioxide by way of an adsorber material”. The at least one module comprising a capture unit configured for binding the atmospheric carbon dioxide by way of an adsorber material in Beaumont is a capture unit configured for binding the atmospheric carbon dioxide by way of an adsorber material anticipating claim 6.
Regarding claims 7 and 16, it would appear that the autotrophic microorganisms, which can be micro algae, are NOT part of the device, but instead are components of the intended use recitation of claim 1 “wherein the atmospheric carbon dioxide is continuously supplied to autotrophic microorganisms in the at least one bioreactor.” However, Beaumont clearly recites that the device comprises supplying the sequestered CO2 to photobioreactors comprising microalgae ([0080], [0088], [0090]; p. 7, claims 13 and 21), i.e., photoautotrophic microorganisms, anticipating claims 7 and 16.
Claims 8 and 15 are drawn to the intended use “wherein the atmospheric carbon dioxide is supplied to the autotrophic microorganisms in the at least one bioreactor together with air” (claim 8) wherein “a ratio of carbon dioxide to air is from 1:99 vol% CO2/air to 10:90 vol% CO2/air” (claim 15). The device taught by Beaumont is capable of performing the intended use because Beaumont teaches that the amount of air with the CO2, and thus, the ratio of CO2 to air, in the gas supplied to the particular application (e.g., a photobioreactor with microalgae) can be modulated from 1 to 99.99% CO2 in air ([0072], [0086], [0090]) anticipating claims 8 and 15.
Claim 9 is drawn to the intended use “wherein 5 to 50% of a culture medium in the at least one bioreactor is replaced”. The device taught by Beaumont is capable of performing the intended use because Beaumont teaches that the microalgae photobioreactors can comprise aqueous medium (p. 7, claims 21-22) which would necessarily require that the device of Beaumont has means for adding or removing aqueous media to the photobioreactor, anticipating claim 9.
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.
Claims 1-16 are rejected under 35 U.S.C. 103 as being unpatentable over Beaumont in view of Nusko, DE10346471, published 4/15/2004 (Foreign Patent Document cite 6, IDS, 10/14/2024; the English translation relied on in the rejection is NPL cite 2, IDS, 10/14/2024; herein “Nusko”).
The discussion of Beaumont regarding claims 1-3, 5-13 and 15-16 set forth in the rejection above is incorporated herein.
Beaumont teaches that their system can comprise a conduit 17 from the enclosed application (closed greenhouse in Fig. 3) which vents waste gas from the enclosed application through the CO2 sequestration module to the environment (conduit 17 in Fig. 3; 17 is explained in Table 1); hence, a person of ordinary skill in the art at the time of filing would have found it obvious to employ such a conduit connected to the CO2 capture device in combination with a gas/liquid separator when a micro algae photobioreactor (PBR) is the enclosed application, because venting the waste gas from the photobioreactor would allow the removal of inhibitory substances (e.g. O2) from the photobioreactor and would allow the CO2 capture unit to recover any CO2 present in the waste gas. Nusko teaches device configuration details about venting waste gas from a PBR which makes obvious employing a gas/liquid separator to extract the waste gas from the PBR in the device of Beaumont.
Nusko teaches a system drawn to, inter alia, removing CO2 from a gas stream comprising supplying the gas stream to a photobioreactor wherein the photosynthetic microorganisms fix the CO2 from the gas stream (Abst.) wherein the device comprises a photobioreactor (PBR; 4 in Fig. 5) with a gas/liquid separator (5 in Fig. 5) wherein the gas/liquid separator allows for waste gases (methane and O2 according to Nusko; p. 6, ¶8) to be removed from the PBR.
Hence, a person of ordinary skill in the art at the time of filing would have found it obvious for the system of Beaumont to further comprise a gas/liquid separator on the PBR to allow for waste gases to be delivered to the CO2 capture device to recapture CO2 and vent other waste gases because Beaumont teaches venting waste gas from enclosed applications, such as closed greenhouses, through the CO2 sequestration module to the environment and Nusko teaches that a gas/liquid separator allows for waste gases to be removed from a PBR; therefore, claim 4 is prima facie obvious.
Regarding claim 14, it would appear that the autotrophic microorganisms, which can be of the genus Chlorella, are NOT part of the device, but instead are components of the intended use recitation of claim 1 “wherein the atmospheric carbon dioxide is continuously supplied to autotrophic microorganisms in the at least one bioreactor.” However, cultivating Chlorella in Beaumont’s PBR is obvious over the disclosures of Beaumont and Nusko because Beaumont clearly recites that their carbon capture device comprises supplying the sequestered CO2 to photobioreactors comprising microalgae ([0080], [0088], [0090]; p. 7, claims 13 and 21) which a person of ordinary skill in the art at the time of filing would have found it obvious that the microalgae can be Chlorella species of microalgae because Nusko teaches that microalgae and especially Chlorella kessleri are particularly well suited for CO2 fixation (p. 4, ¶8); therefore, claim 14 is prima facie obvious.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Trent R Clarke whose telephone number is (571)272-2904. The examiner can normally be reached M-F 10-7 MST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Melenie Gordon can be reached at 571-272-8037. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TRENT R CLARKE/ Examiner, Art Unit 1651
/DAVID W BERKE-SCHLESSEL/ Primary Examiner, Art Unit 1651
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