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 .
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 (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 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, 5-9, 11 and 13-17 are rejected under 35 U.S.C. 102(a)(1) (a)(2) as being anticipated by Bayer et al. (US 2008/0145577 henceforth Bayer).
Regarding claim 1, Bayer discloses a method for making a mycelium-based biocomposite comprising: providing a substrate including one or more textiles (fibers, meshes…other bulking agents, para. 0016), providing mycelium (para. 0047), applying the mycelium to the substrate to form a composite (para. 0047), and allowing the mycelium to grow to form a mycelium biocomposite (para. 0049).
Regarding claim 3, Bayer discloses wherein the one or more textiles includes separated fibers (para. 0023).
Regarding claim 5, Bayer discloses wherein providing mycelium includes providing grain spawn (mycelium growing on solid or liquid nutrient, para. 0053).
Regarding claim 6, Bayer discloses wherein providing mycelium includes providing liquid spawn (para. 0053).
Regarding claim 7, Bayer discloses wherein applying includes placing textiles and mycelium in one or more alternating layers (para. 0050).
Regarding claim 8, Bayer discloses wherein applying includes combining the substrate and mycelium (inoculum and substrate are combined, para. 0054).
Regarding claim 9, Bayer discloses wherein applying includes placing textiles and mycelium into a mold (para. mixture of inoculum and substrate is placed in an enclosure, para. 0054 and 0055).
Regarding claim 11, Bayer discloses wherein the one or more textiles includes cotton (para. 0023).
Regarding claim 13, Bayer discloses wherein the mycelium is of the genus Pleurotus or Ganoderma (para. 0061 and 0071).
Regarding claim 14, Bayer discloses wherein allowing the mycelium to grow includes incubating the composite (para. 0049).
Regarding claim 15, Bayer discloses a mycelium-based biocomposite comprising: a substrate including one or more textiles (para. 0016); and mycelium (para. 0047), wherein the mycelium is integrated into the substrate (para. 0054).
Regarding claim 16, Bayer discloses wherein the one or more textiles include one or more of cotton, polyester, nylon, and some combination thereof (para. 0023).
Regarding claim 17, Bayer discloses wherein the biocomposite is substantially fire resistant (the method allows for the production of materials…fire protecting, para. 0073).
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.
Claims 2 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Bayer in view of McIntyre et al. (US 2013/0263500 henceforth McIntyre).
Regarding claim 2, Bayer teaches the invention substantially as claimed but fails to teach wherein the one or more textiles includes intact textiles. However, McIntyre teaches intact textiles (inoculum is poured onto a woven textile, para. 0022). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify the fibers of Bayer’s system with a textile as taught by McIntyre to produce various shapes to appeal to a large variety of applications and/or appeal to a large variety of users.
Regarding claim 4, Bayer teaches the invention substantially as claimed but fails to teach wherein the one or more textiles includes a combination of intact textiles and separated fibers. However, McIntyre teaches intact textiles (inoculum is poured onto a woven or non-woven textile, para. 0015 and 0022). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify the fibers of Bayer’s system with a textile as taught by McIntyre to produce various shapes to appeal to a large variety of applications and/or appeal to a large variety of users.
Regarding claim 10, Bayer teaches the invention substantially as claimed but fails to teach comprising sterilizing the substrate prior to applying. However, McIntyre teaches comprising sterilizing the substrate prior to applying (cotton burr substrate is sterilized, para. 0030; sterilized oat hulls, para. 0039). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Bayer’s method with a sterilized substrate as taught by McIntyre to prevent unwanted contamination of the inoculum that would prevent the fungus from growing on the substrate.
Claims 12, 18, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Bayer.
Regarding claim 12, Bayer teaches the invention substantially as claimed and further teaches the one or more textiles being a polymer (polymers, para. 0023) but is silent on the polymer being polyester. It would have been obvious to one having ordinary skill in the art before the effective filing date to use polyester, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obviousness. In re Leshin, 125 USPQ 416. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331.
Regarding claim 18, Bayer teaches the invention substantially as claimed and further teaches a mesh or net (para. 0016 and 0055) but fails to teach wherein the substrate has an average porosity of between 10- 100 pm. It would have been an obvious matter of design choice before the effective filing date to make the different portions of the openings of the mesh of whatever form or shape was desired or expedient, in order to prevent the inoculum from passing through the openings. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47.
Regarding claim 19, Bayer teaches the invention substantially as claimed but fails to teach wherein the biocomposite has humidity absorption of between 2-10% at 65% relative humidity and 21°C. It would have been obvious to one having ordinary skill in the art before the effective filing date to have a humidity absorption of between 2-10% at 65% relative humidity and 21°C, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 20, Bayer teaches the invention substantially as claimed but fails to teach wherein the biocomposite has humidity absorption of between 2-15% at 90% relative humidity and 21°C. wherein the biocomposite has humidity absorption of between 2-15% at 90% relative humidity and 21°C. It would have been obvious to one having ordinary skill in the art before the effective filing date to have a humidity absorption of between 2-15% at 90% relative humidity and 21°C, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EBONY E EVANS whose telephone number is (571)270-1157. The examiner can normally be reached 9am -5pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kimberly Berona can be reached at 5712726909. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/EBONY E EVANS/Primary Examiner, Art Unit 3647
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