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 .
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.
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Claim 8 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 12,478,007. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 12 of U.S. Patent No. 12,478,007 anticipates claim 8 of the instant application. Claims 8 and 12 are mapped and compared below.
Claim 12 of U.S. Patent No. 12,478,007 recites:
[An algal growth system comprising: a. a flexible sheet material to facilitate growth of a biofilm; b. a liquid reservoir configured to retain a contacting liquid in contact with the flexible sheet material][1]; [c. a mechanism to rotate the flexible sheet material through the contacting liquid; d. an enclosure housing the flexible sheet material and the liquid reservoir; and e. a resource reclamation device associated with the enclosure, wherein the resource reclamation device is configured to collect and provide a resource for reuse][3], [and wherein the resource reclamation device is selected from the group consisting of a condenser, a heat exchanger, an air-conditioning compressor, a direct air capture device, or a chiller][5], [the liquid source is wastewater][2], [wherein the algal growth system will produce water that is collected by the resource reclamation device, and wherein the collected water is cleaner than the wastewater][4].
While claim 8 of the instant invention recites:
[An algal growth system comprising: a. a flexible sheet material to facilitate growth of a biofilm; b. a liquid reservoir configured to retain a contacting liquid in contact with the flexible sheet material][1], [wherein the contacting liquid is wastewater][2]; [c. a mechanism to rotate the flexible sheet material through the contacting liquid; d. an enclosure housing the flexible sheet material and the liquid reservoir; and e. a resource reclamation device associated with the enclosure, wherein the resource reclamation device is configured to collect and provide a resource for reuse][3], [wherein the collected resource is water, and wherein the collected water is cleaner than the wastewater contacting liquid][4], [the resource reclamation device is selected from the group consisting of a condenser, a heat exchanger, an air-conditioning compressor, a direct air capture device, or a chiller.][5]
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 12,108,713 in view of Oh et al CN 103283582. Claim 12 of U.S. Patent No. 12,108,713 discloses claim 1 of the invention but fails to disclose the collected resource being water cleaner than the wastewater contacting liquid. Oh teaches a resource reclamation device associated with the enclosure, wherein the resource reclamation device is configured to collect and provide a resource for reuse (collected water W is recycled to the original algae cultivation tank 110 through the motor 252 and the transfer pipe 251 of the discharging unit 250 (resource reclamation device) of the algae incubator 100 (enclosure), Oh translation, ¶0110), wherein the collected resource is water (in that water is separated from algae, Oh translation, ¶0110) cleaner than (as best understood) the wastewater contacting liquid.. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention with a reasonable expectation of success to substitute the harvest and dewatering system of Oh for the harvest and dewatering system of Gross (as suggested by Gross, ¶0037) as to provide an equivalent way to harvest algae while decreasing its water content.
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 1-18 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.
The term “cleaner than” in claim 1 is a relative term which renders the claim indefinite. The term “cleaner than” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The applicant has not stated a way to determine what constitutes as collected water being “cleaner than”, whether it be solids content, the removal of chemicals or clarity of the water compared to the wastewater.
Claim 17 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential elements, such omission amounting to a gap between the elements. See MPEP § 2172.01. The omitted elements are: the relationship between the flexible sheet of material and the frame of the invention. Without structural relationships between the flexible sheet and frame or other elements of the device it is unclear how a height is determined.
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.
Claim(s) 1-3, 5-7, 9, 12, 15, 17, and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gross et al US 2020/0308519 in view of Oh et al CN 103283582.
Regarding Claim 1, Gross discloses an algal growth system (RAB 10; figure 3) comprising: a. a flexible sheet material to facilitate growth of a biofilm (biofilm of algal cells 18 is attached to the surface of the supporting material 12 comprising a flexible sheet material; figure 3; paragraphs [0037], [0038]); b. a liquid reservoir configured to retain a contacting liquid in contact with the flexible sheet material (liquid reservoir 30 holds contacting liquid 14 in contact with the supporting material 12; paragraph [0038]); C. a mechanism to rotate the flexible sheet material through the contacting liquid (drive motor 24, gear system 26 and drive shafts 28 rotate the supporting material 12 through the contacting liquid 14; paragraph [0038]); d. an enclosure (greenhouse 40; figure 3) housing the flexible sheet material and the liquid reservoir (as shown; figure 3). Gross fails to explicitly disclose and e. a resource reclamation device associated with the enclosure, wherein the resource reclamation device is configured to collect and provide a resource for reuse. Oh teaches e. a resource reclamation device associated with the enclosure, wherein the resource reclamation device is configured to collect and provide a resource for reuse (collected water W is recycled to the original algae cultivation tank 110 through the motor 252 and the transfer pipe 251 of the discharging unit 250 (resource reclamation device) of the algae incubator 100 (enclosure), Oh translation, ¶0110), wherein the collected resource is water (in that water is separated from algae, Oh translation, ¶0110) cleaner than (as best understood) the wastewater contacting liquid.. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention with a reasonable expectation of success to substitute the harvest and dewatering system of Oh for the harvest and dewatering system of Gross (as suggested by Gross, ¶0037)as to provide an equivalent way to harvest algae while decreasing its water content.
Regarding Claim 2, Gross in view of Oh discloses the algal growth system of claim 1, and Gross further discloses further comprising a frame and wherein the flexible sheet material is mounted on the frame in a first mounted geometry, wherein a first height of the first mounted geometry is greater than a first width of the first mounted geometry (see Gross, claim 1).
Regarding Claim 3, Gross in view of Oh discloses the algal growth system of claim 2. In the primary embodiment, Gross fails to explicitly disclose wherein the mechanism to rotate the flexible sheet material includes a motor coupled with an actuator system, wherein the actuator system is operably coupled to the first frame, and wherein the motor is operably configured to actuate the actuator system such that the flexible sheet material is actuated. In a second embodiment, Gross teaches wherein the mechanism to rotate the flexible sheet material includes a motor coupled with an actuator system (drive motor 324 incudes a gear or pulley system 326 (actuator system) driving shafts 328 for rotating the support materials 312 (flexible sheet material); paragraph [0057]; see paragraph [0095] indicating pulley system is the actuator), wherein the actuator system is operably coupled to the first frame (frame 323; figure 14), and wherein the motor is operably configured to actuate the actuator system such that the flexible sheet material is actuated (drive motor 324 rotates a gear or pulley system 326 driving shafts 328 for rotating the support materials 312; paragraph [0057]). In order to use minimum amount of water for operation of the system (Gross; paragraph [0055]), it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Gross's primary embodiment's mechanism to incorporate Gross's second embodiment's actuator system coupled to the first frame.
Regarding Claim 5, Gross in view of Oh further discloses wherein a majority of the flexible sheet material (supporting material 12; figure 3) is positioned within a gaseous phase (gaseous phase 16; figure 3) and a minority of the flexible sheet material is in contact with (as shown; figure 3) the contacting liquid (contacting liquid 14; figure 3), wherein the mechanism rotates the flexible sheet material through a sunlight capture part in the gaseous phase (drive motor 24, gear system 26 and drive shafts 28 rotate the supporting material 12 through the sunlight capture part 32 in the gaseous phase 16; figure 3; paragraphs [0038], [0039]).
Regarding Claim 6, Gross in view of Oh discloses the algal growth system of claim 1, and Gross further discloses wherein the flexible sheet material is selected from the group consisting of cheesecloth, fiberglass, porous PTFE coated fiberglass, chamois, vermiculite, microfiber, synthetic chamois, burlap, cotton duck, velvet, poly- lactic acid, abraised poly-lactic acid, vinyl laminated nylon, polyester, wool, acrylic, lanolin, woolen, cashmere, leather, silk, lyocell, hemp fabric, polyurethane, olefin fibre, polylactide, carbon fiber, and a combination thereof (supporting material 12 is made of porous PTFE coated fiberglass; paragraph [0042]).
Regarding Claim 7, Gross in view of Oh discloses the algal growth system of claim 1, and Gross further discloses wherein the flexible sheet material is operably configured to grow algae selected from the group consisting of Nannochloropsis, Scenedesmus, Haematococcus, Botryococcus, Spirulina, Dunaliella, Arthrospira, Porphyridium, Phaeodactylum, Nitzschia, Crypthecodinium, and Schizochytrium (supporting material 12 grows algae cells 18 such as Nannochioropsis; paragraph [0045]).
Regarding Claim 9, Gross in view of Oh discloses the algal growth system of claim 1, and Gross further discloses wherein the enclosure is selected from either a greenhouse or an air dome (greenhouse 40; figure 3).
Regarding Claim 12, Gross in view of Oh discloses the algal growth system of claim 1, and Gross further discloses wherein the liquid reservoir (liquid reservoir 30; figure 8) includes a heat exchanger which will heat the contacting liquid contained within the reservoir (pump 38 heats the contacting liquid 14 in the liquid reservoir 30; paragraph [0041]).
Regarding Claim 15, Gross in view of Oh discloses the algal growth system of claim 1, and Gross further discloses further comprising a second liquid reservoir configured to retain a second contacting liquid in contact with the flexible sheet material (second liquid reservoir having a second liquid to contact the supporting material 12; paragraph [0040]), wherein the flexible sheet material is exposed to a first condition within the liquid reservoir (supporting material 12 is contacted with contacting liquid 14 in the reservoir 30; paragraphs [0037], [0038]) and a second condition within the second reservoir (supporting material 12 is contacted with the second liquid in the second liquid reservoir; paragraph [0040]), wherein one or more of the first condition or the second condition facilitates growth of a desirable species or consortium of microorganisms, or inhibits growth of an undesirable species or consortium of microorganisms (contacting the supporting material 12 with the second liquid maximize algal growth; paragraph [0040]).
Regarding Claim 17, Gross in view of Oh discloses the algal growth system of claim 1. Gross fails to explicitly disclose wherein the flexible sheet material has a height of between about 500 feet and about 1 foot. In order to improve the growth of algal cells (Gross; paragraph [0041]), it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Gross's flexible sheet material to have a height of between about 500 feet and about 1 foot, since where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding Claim 18, Gross in view of Oh discloses the algal growth system of claim 1. Gross fails to explicitly disclose wherein a maximum percentage of the flexible sheet material that is in contact with the contacting liquid at any point in time is between about 20%.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gross et al US 2020/0308519 in view of Oh et al CN 103283582, as applied to claims 1-3, 5-7, 9, 12, 15, 17, and 18 above, and in further view of Xuelang CN 204491563.
Regarding Claim 4, Gross in view of Oh discloses the algal growth system of claim 1. Gross fails to explicitly disclose wherein the mechanism is powered through a renewable energy source. Xuelang teaches wherein the mechanism is powered through a renewable energy source (solar equipment supplies power to the motor, the motor drives the drum and the shaft to rotate the belt; page 2, paragraph [0016]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Gross's mechanism to be powered by Xuelang's renewable energy source, because as Xuelang discloses the renewable energy source provides a low cost source of energy to the system (Xuelang; abstract).
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gross et al US 2020/0308519 in view of Oh et al CN 103283582, as applied to claims 1-3, 5-7, 9, 12, 15, 17, and 18 above, and in further view of Li CN 109601200.
Regarding Claim 11, Gross in view of Oh discloses the algal growth system of claim 9. Gross fails to explicitly disclose wherein the enclosure is an air dome, and wherein the system further comprises one or more blower units to inflate the air dome. Li teaches wherein the enclosure is an air dome (inflatable membrane greenhouse structure 1; figure 1; page 3, paragraph [0024]), and wherein the system further comprises one or more blower units to inflate the air dome (agricultural greenhouse structure comprises blower 2 to inflate the structure 1; page 3, paragraph [0025]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Gross's enclosure to incorporate Li's air dome and blower unit, because as Li discloses the air dome and blower unit improves the rigidity, toughness, stability, bearing capacity, and has high light transmittance, high cyclic utilization rate, high thermal insulation performance and allows convenient and quick installation and disassembly (Li; page 2, paragraph [0016]).
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gross et al US 2020/0308519 in view of Oh et al CN 103283582, as applied to claims 1-3, 5-7, 9, 12, 15, 17, and 18 above, and in further view of Chuang et al US 2010/0236164.
Regarding Claim 15, Gross in view of Oh discloses the algal growth system of claim 1, and Gross further discloses further comprising grow lights and an air circulation system positioned within the enclosure (gas input 43 and grow lights 42 shown to be provided in the greenhouse 40; figure 7). Gross fails to explicitly disclose wherein the grow lights and air circulation system are powered by a renewable energy source. Chuang teaches wherein the grow lights and air circulation system are powered by a renewable energy source (LED lights 80 and the ventilation fans 70 are powered by the solar cell module 20; paragraph [0029]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Gross's grow lights and air circulation system to be powered by Chuang's renewable energy source, because as Chuang discloses the renewable energy increases efficiency of the system (Chuang; paragraph [0038]).
Response to Arguments
Applicant’s arguments with respect to the double patenting rejection of the claims in view of U.S. Patent No. 12,108,713 and the 35 USC § 102 rejection of the claims under Gross 2021/0292201 have been fully considered and are persuasive.
A new double patenting rejection is made under U.S. Patent No. 12,108,713 in view of Oh et al CN 103283582.
The double patenting rejection of the claims under U.S. Patent No. 12,478007 is maintained and elaborated above. Claim 12 depends from and includes all limitations of claim 1 of U.S. Patent No. 12,478007 and cannot be considered in a void. Claim 12 when read in its entirety anticipates claim 8 of the instant invention.
Applicant's arguments filed 06/09/2026 with respect to claims rejected under Gross et al US 2020/0308519 in view of Oh et al CN 103283582 have been fully considered but they are not persuasive.
The applicant argues that Oh fails to teach the collected water being cleaner than the wastewater contacting liquid. Like Gross, Oh discloses harvesting and removing water content from algae (Gross, ¶0037)(Oh translation, ¶0110). Gross broadly states that “other suitable device or system” can be used to perform this limitation. Substituting the harvesting and de-watering system of Oh for the system of Gross would be simply using an equivalent system to perform the same function and reach the same outcome.
As to the collected water of Oh being cleaner than the wastewater contacting liquid, the broadly stated limitation of “cleaner” is performed by the removal of algae from the water. The applicant has not stated a way to determine what constitutes as “cleaner”, whether it be solids content, or the removal of chemicals or clarity of the water. The separation of the combined algae and water of Oh into algae and water is considered to meet the broad limitation of the collected water being “cleaner”, as the water would no longer contain algae.
Conclusion
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/KRISTEN C HAYES/ Primary Examiner, Art Unit 3642
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