Patent Application 16614133 - BIOFERTILIZER AND METHODS OF MAKING AND USING SAME

Title: BIOFERTILIZER AND METHODS OF MAKING AND USING SAME

Application Information

Invention Title: BIOFERTILIZER AND METHODS OF MAKING AND USING SAME
Application Number: 16614133
Submission Date: 2025-05-12T00:00:00.000Z
Effective Filing Date: 2019-11-15T00:00:00.000Z
Filing Date: 2019-11-15T00:00:00.000Z
National Class: 435
National Sub-Class: 252100
Examiner Employee Number: 98130
Art Unit: 1651
Tech Center: 1600

Rejection Summary

102 Rejections: 0
103 Rejections: 2

Cited Patents

The following patents were cited in the rejection:

US 0165733🔗

Office Action Text

DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 04/21/25 has been entered.
Election/Restriction and Examiner’s Note
The examiner notes that the claim identifier status for withdrawn claim 49 is incomplete, as it reads “(Currently Amended).”
Claim 49 remains withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 06/24/2022.
Status of claim rejections
The rejection of record under 35 USC 112(a) is maintained and modified in view of Applicant’s amendments to the claims in the response filed 04/21/25.
The rejections of record under 35 USC 103 are maintained in view of Applicant’s amendments/arguments in the response filed 04/21/25.
Claim interpretation
The examiner has interpreted the limitation of “the method of claim 2, wherein inhibiting glutamine synthetase inhibits assimilation of NH3 into biomass” (emphasis added) recited in claim 4 to be an intended result of inhibiting glutamine synthetase (see Final Office Action mailed 01/21/25).
New Claim Rejections – 35 USC § 112(b)
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 1-2, 4-13, 17-18, 20-23 and 85-89 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 “at or below a threshold concentration” in claim 1 is a relative term which renders the claim indefinite. The term “threshold concentration” 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.
Here, the instant claims require “generating NH3 with the one or more microorganisms in the bioreactor; and maintaining a concentration of the NH3 at or below a threshold concentration.” It is unclear what this “threshold concentration” of NH3 would be in the bioreactor, such that one of ordinary skill would not understand the concentration of NH3 that must be maintained inside of the bioreactor. The specification only speculates that “production of a desired end product by bacteria located within the solution may be controlled by limiting a concentration of bioavailable nitrogen, such as in the form of ammonia, amino acids, or any other appropriate source of nitrogen useable by the bacteria within the solution to below a threshold nitrogen concentration. However, and without wishing to be bound by theory, the concentration threshold may be different for different bacteria and/or for different concentrations of bacteria.” (see paragraph 100 of the specification as instantly filed). As such, the claim is indefinite. For the purposes of compact patent prosecution, the examiner has interpreted the limitation of “maintaining a concentration of the NH3 at or below a threshold concentration” to encompass maintenance of the concentration of NH3 to any concentration (including any de minimis amount of NH3).
Instant claim 1 recites that “the one or more microorganisms comprise X. autotrophicus”, while claims 20-23 recites that the “one or more microorganisms” comprise bacteria, archaea, fungi, and various other microorganism species (see claims 20-23). The claims are indefinite because it is unclear whether the microorganisms recited in claims 20-23 are additional species required in the bioreactor with X. autotrophicus as required by instant claim 1.
New Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.

The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.

Claims 20-23 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. In the instant case, claim 1 recites that “the one or more microorganisms comprise X. autotrophicus”, while claims 20-23 recites that the “one or more microorganisms” comprise bacteria, archaea, fungi, and various other microorganism species (see claims 20-23). Claims 20-23 recite a broader scope of microorganisms while claim 1 recites a narrower statement of the one or more microorganisms required in the bioreactor. Thus, claims 20-23 fail to further limit the base claim. A claim in dependent form must contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.

Maintained/Modified Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.

The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

Claims 1-2, 4-13, 17-18, 20-23 and 85-89 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The written description requirement for a claimed genus may be satisfied through sufficient description of a representative number of species by actual reduction to practice, reduction to drawings, or by disclosure of relevant, identifying characteristics, i.e., structure or other physical and/or chemical properties, by functional characteristics coupled with a known or disclosed correlation between function and structure, or by a combination of such identifying characteristics, sufficient to show the inventor was in possession of the claimed genus. A "representative number of species" means that the species which are adequately described are representative of the entire genus. Thus, when there is substantial variation within the genus, one must describe a sufficient variety of species to reflect the variation within the genus. See AbbVie Deutschland GmbH & Co., KG v. Janssen Biotech, Inc., 759 F.3d 1285, 1300, 111 USPQ2d 1780, 1790 (Fed. Cir. 2014). The issue is whether the skilled artisan would understand inventor to have invented, and been in possession of, the invention as claimed.
Claim interpretation: The independent claim (and thus the dependent claims) requires “a method of producing a biofertilizer in a bioreactor, comprising:(a) generating H2 in a bioreactor comprising one or more microorganisms which express a hydrogenase and a nitrogenase, wherein the bioreactor further comprises a source of N2 and CO2; and (b) growing the one or more microorganisms in the bioreactor in culture media in the presence of the H2 to produce a biofertilizer, wherein glutamine synthetase, in the one or more microorganisms, is inhibited by an inhibitor comprising phosphinothricin, wherein the one or more microorganisms comprise Xanthobacter autotrophicus and wherein the one or more microorganisms exhibit a resistance to reactive oxygen species (ROS); generating NH3 with the one or more microorganisms in the bioreactor; and maintaining a concentration of the NH3 at or below a threshold concentration.”
Instant claim 20-23 recites a massive genus of microorganisms (e.g., bacteria, archaea, fungi, Acidiphilum species, Athrobacter species, etc.) in any combination within the bioreactor.
The instant specification as published describes one or more mutant microorganisms, which may comprise one or more beneficial phenotypes or traits, e.g., resistance to reactive oxygen species (RORs). The term “mutant” refers to a microorganism obtained by direct mutant selection but also includes microorganisms that have been further mutagenized or otherwise manipulated (e.g., via the introduction of a plasmid). Accordingly, embodiments include mutants, variants, and or derivatives of the respective microorganism, both naturally occurring and artificially induced mutants. For example, mutants may be induced by subjecting the microorganism to known mutagens, such as N-methyl-nitrosoguanidine, using conventional methods. Conventional methods are available for obtaining or otherwise constructing desirable mutants of any bacteria or microorganism (see para 0131). Based on the specification, the examiner has interpreted the “microorganism exhibits a resistance to reactive oxygen species” to encompass any microorganism (either naturally occurring or microorganisms containing nebulous mutations) capable of exhibiting resistance to ROS as a beneficial phenotype (including the claims X. autotrophicus). The question at issue is whether the skilled artisan would have understood Applicant to have been in possession of the massive genus of microorganisms as encompassed by the instant claims.
Reduction to practice and disclosure of drawings or structural chemical formulas: Applicant discloses in the specification the cultivation and use of X. autotrophicus 7CT, B. japonicum, R. eutropha, and V. paradoxus in a bio-electrochemical reactor to make biofertilizer for growth of radish seeds (see Examples, para 00170-00207; 00213-14).
Sufficient, relevant, identifying characteristics, i.e., structure or other physical and/or chemical properties, by functional characteristics coupled with a known or disclosed correlation between function and structure: Applicant has not provided information as to the defining structural characteristics that would lead one of ordinary skill in the art to the identity of a microorganism capable of exhibiting a resistance to reactive oxygen species as claimed. Applicant’s claims encompass a massive genus of microorganisms (bacteria, archaea, algae, fungi, etc.) including microorganisms resistant to ROS naturally or via induction of artificial mutations. However, Applicants have not disclosed a single embodiment of a mutant capable of such an ability other than speculative embodiments in the specification. None of the instant claims further characterize such a microorganism, and as such Applicant does not have requisite support in the specification for such microorganisms. Applicant has claimed the microorganisms present in the bioreactor based on ability to resist ROS< however this indicates what the microorganism(s) are able to do (function), not what it is (relevant structure or identification). Even with knowledge in the art regarding the mutation of microorganisms generally, one of ordinary skill would not know what structural features of the microorganisms are required for the outcome of “exhibiting a resistance to reactive oxygen species” without a recognized correlation between structure and function. This is not sufficient to meet the written description requirement. The specification does not provide adequate disclosure for microorganisms with that much variation for use in a bioreactor.
Lack of support for massive genus of microorganisms resistant to ROS: The specification fails to teach and/or provide support for possession of the microorganisms (mutant or otherwise), as there is no correlation or defining characteristic that would convey the identity of them with the ability to perform the function as broadly claimed.
Applicant has provided no support of the claimed genus of ROS-resistant microorganisms within the specification. Applicant has only demonstrated possession of X. autotrophicus 7CT, B. japonicum, R. eutropha, and V. paradoxus, and more specifically X. autotrophicus for use in a bioreactor for making biofertilizer (see Examples as well as Figs. 5-11). However, there is no support in the specification for the use of any microorganism that is resistant to ROS. Applicant’s claim broadly encompasses any microorganism (including X. autotrophicus) having some nebulous natural or artificial mutations that would somehow exhibit ROS resistance, however the specification only provides support for the use of X. autotrophicus 7CT, B. japonicum, R. eutropha, and V. paradoxus. Furthermore, even though there is support for these specific microorganisms in the specification, Applicant has not identified or provided any data that shows whether any of the microorganisms utilized are capable of the ROS-resistant function (including X. autotrophicus) as instantly claimed. Thus, the data generated for the use of X. autotrophicus 7CT, B. japonicum, R. eutropha, and V. paradoxus disclosed in the specification cannot reasonably be extrapolated to and applied to support possession of an entire claimed genus of microorganisms resistant to ROS as claimed, because no one species, combination, or variant accounts for the variability amongst the claimed genus. As in Ariad, merely drawing a fence around the outer limits of a purported genus is not an adequate substitute for describing a variety of materials constituting the genus and showing that one has invented a genus and not just a species. “A patent is not a hunting license. It is not a reward for the search, but compensation for its successful conclusion.” Brenner v. Manson, 383 U.S. 519, 536 (1966).
The specification, then, is considered devoid of sufficiently detailed, relevant, identifying characteristics demonstrating that Applicant was in possession of the claimed genus of subject(s) in need thereof, i.e., additional complete or partial structures, other physical and/or chemical properties, functional characteristics coupled with a known or disclosed correlation between function and structure, or some combination thereof demonstrating possession of the claimed genus.
Response to Arguments
Applicant's arguments filed 04/21/25 have been fully considered but they are not persuasive.
On pg. 7 of the remarks, Applicant argues that amending claim 1 to recite “wherein the one or more microorganisms comprise Xanthobacter autotrophicus” satisfies the written description requirement, such that the rejection should be withdrawn.
In response, the examiner disagrees. As set forth in the previous rejection and in the rejection above, Applicant has provided no support of the claimed genus of ROS-resistant microorganisms within the specification. Applicant has only demonstrated possession of X. autotrophicus 7CT, B. japonicum, R. eutropha, and V. paradoxus, and more specifically X. autotrophicus for use in a bioreactor for making biofertilizer (see Examples as well as Figs. 5-11). However, there is no support in the specification for the use of any microorganism that is resistant to ROS (such as the ones encompassed by the “one or more microorganisms” language in claim 1). Applicant’s claim broadly encompasses any microorganism (including X. autotrophicus) having some nebulous natural or artificial mutations that would somehow exhibit ROS resistance, however the specification only provides support for the use of X. autotrophicus 7CT, B. japonicum, R. eutropha, and V. paradoxus. Furthermore, even though there is support for these specific microorganisms in the specification, Applicant has not identified or provided any data that shows whether any of the microorganisms utilized are capable of the ROS-resistant function (including X. autotrophicus) as instantly claimed. Thus, the rejections are maintained as set forth above.
Maintained 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.
First rejection
Claims 1-2, 4-13, 17-18, 20-23, and 85-86 are rejected under 35 U.S.C. 103 as being unpatentable over Reed et al. (US 2020/0165733, prior art of record, hereinafter “Reed”) in view of Torella et al. (PNAS, 112(8):2337-2342 (2015), IDS-NPL, hereinafter “Torella”), Colnaghi et al. (Plant Soil, 194:145-154 (1997), IDS-NPL, hereinafter “Colnaghi”), Berlicki et al. (Bioorg. Medic Chem., 14:4578-4585 (2006), hereinafter “Berlicki”) as evidenced by Schink (FEMS Microbiol. Let., 13(3):289-293 (1982), prior art of record) and Al Rowaihi et al. (Poly(3-hydroxybutyrate) production in an integrated electromicrobial setup: Investigation under stress-inducing conditions. PLoS One. 2018 Apr 26;13(4):e0196079; hereinafter “Al Rowaihi”).
Reed teaches a method of producing a biofertilizer in a bioreactor comprising growing one or more microorganisms in the bioreactor in a culture media to produce the biofertilizer (para 0044-0045, 0060, 0062, 105-106). Reed further teaches that the bioreactor comprises a source of nitrogen gas (N2), hydrogen gas (H2), and CO2 (para 0236-0238, 0249).
Reed teaches that the biofertilizer is a microbial biomass, e.g., a biomass and culture media (paras. 0002-0003, 0200, 0220). Reed also teaches that the biofertilizer is a protein-rich biomass, i.e., enriched with a carbon energy source (para 0045). Reed teaches liquid or solid culture medium to produce biomass as well as drying biomass (solid) and liquid suspensions of biomass (paras 0123, 0149, 0190, 0220, 0315-0136).
Instant claim 1 further recites that the one or more microorganisms express a hydrogenase and a nitrogenase. Reed teaches identical genera and species of microorganisms as recited by instant claims 1 and 23, including Xanthobacter autotrophicus, Alcaligenes species, Alcaligenes paradoxus, Arthrobacter species, Azospirillum species, Azospirillum lipoferum, Beggiatoa species, Cupriavidus necator, Derxia species, Hydrogenophaga species, Hydrogenophaga pseudoflava, Microcyclus species, Microcyclus aquaticus, Nitrosococcus species, Nocardia species, Nocardia autotrophica, Nocardia opaca, Paracoccus species, Paracoccus denitrificans, Pseudomonas species, Pseudomonas facilis, Ralstonia species, Ralstonia eutropha, Renobacter species, Renobacter vacuolatum, Rhizobium species, Rhizobium japonicum, Rhodobacter species, Rhodobacter sphaeroides, Rhodomicrobium species, Variovorax species, and Variovorax paradoxus (see e.g., para 0047, 0190-0192, 0195-0200). Reed also teaches that the microorganisms comprise bacteria, archaea, or fungi, and can naturally accumulate polyhydroxybutyrate (PHB) (para 0175, 0194, 0200, 0218, 0262).
As evidenced by Schink, Xanthobacter autotrophicus (claims 19 and 23) expresses both hydrogenase and nitrogenase (pg. 289, Introduction). Schink further evidences that X. autotrophicus can grow autotrophically with hydrogen, oxygen, carbon dioxide, and molecular nitrogen as sole sources of electrons, energy, carbon, and nitrogen; fixes carbon dioxide via the Calvin cycle; and utilizes hydrogenase to supply electrons for reduction of nitrogen by nitrogenase (pg. 289, Introduction). As evidenced by Colnaghi, diazotrophs—i.e., nitrogen fixing bacteria—convert N2 to NH3 by electron reduction and protonation of gaseous dinitrogen, which is further assimilated by glutamine synthetase (pgs. 145-146, Introduction).
As such, absent evidence to the contrary, the microorganisms taught by Reed, which are identical to those recited by the instant claims, would inherently express hydrogenase and nitrogenase, and exhibit the same properties as those recited by instant claims 1-3 and 6. Moreover, use of more than one of the microorganisms taught by Reed would reasonably encompass hydrogenase and nitrogenase expression from different microorganisms since each microorganism would individually express species-specific versions of the enzymes.
Reed does not explicitly teach that one or more of the microorganisms present in the bioreactor exhibits a resistance to reactive oxygen species. However, Al Rowaihi further evidences that PHB is produced in native and engineered microorganisms by accumulating as granules in the cytoplasm in response to conditions of physiological stress, and cells with high PHB content have enhanced survival and tolerance toward oxidative stress/damage caused by reactive oxygen species (ROS) such as hydroxyl radicals, superoxide anion, and hydrogen peroxide (pg. 2, para 2-3). Al Rowaihi further evidences that microorganisms such as Methylobacterium extorquens and Cupriavidus necator (previously known as Ralstonia eutropha) are well-studied strains of microorganisms that produce PHB (pg. 2, para 2-3).
As such, absent evidence to the contrary, at least one of the microorganisms taught by Reed (i.e., R. eutrophica as instantly claimed) would inherently be resistant to reactive oxygen species (the property required of instant claim 1) as Al Rowaihi evidences that the production of PHB by R. eutrophica confers increased ROS resistance and enhanced survival and tolerance toward oxidative stress/damage.
Reed teaches that “[c]ertain embodiments of the present invention leverage intermittent renewable sources of power, such as solar and wind, to produce the H2 required for carbon fixation” (para 0449). More particularly, Reed teaches use of an electrolyzer to produce H2 from water for use in the bioreactor (para 0449). The reference does not explicitly teach generating H2 in the bioreactor. However, it would have been prima facie obvious at the time of filing to generate H2 in the bioreactor taught by Reed because Torella teaches H2 generation in a bioreactor, using cathode and anode water-splitting catalysts, which can be utilized by microorganisms to produce, e.g., biomass (Abstract; FIG. 1, produced below).

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One of ordinary skill in the art would have been motivated to modify Reed in view of Torella in order to advantageously produce a renewable supply of H2 in the bioreactor taught by Reed with a reasonable expectation of success.
Reed and Torella do not explicitly teach a step of inhibiting glutamine synthetase, thereby inhibiting assimilation of NH3 into intracellular biomass in favor of extracellular NH3 accumulation in the bioreactor culture media. However, Colnaghi teaches diazotrophs—i.e., nitrogen fixing bacteria—convert N2 to NH3 by electron reduction and protonation of gaseous dinitrogen, which is further assimilated by glutamine synthetase (GS) (pages 145-146, Introduction). Colnaghi further teaches that genetic or biochemical interference with GS activity results in extracellular NH3 accumulation (page 147, first column).
Colnaghi also teaches that GS activity can be prevented by specific chemical inhibitors such as methionine sulfoximine (MSX) (page 146, second column). Berlicki teaches that MSX and phosphinothricin (PPT) were well-known, potent inhibitors of GS (page 4578, second column). One of ordinary skill in the art would have been motivated to modify Reed and Torella to include an inhibitor of GS, including PPT, which Berlicki teaches is a potent GS inhibitor, in order to advantageously enrich the biofertilizer taught by Reed and Torella with ammonia (NH3) with a reasonable expectation of success.
Furthermore, the maintenance of a concentration of NH3 in the bioreactor (as instantly claimed) would have been the result of routine optimization using standard laboratory techniques available at the time of filing, as Reed teaches that the production and distribution of molecules produced by the microorganisms can be optimized by control of bioreactor conditions, control of nutrient levels, genetic modifications of the cells by maintaining specific growth conditions (e.g. levels of nitrogen, oxygen, phosphorous, sulfur, trace micronutrients such as inorganic ions) (see paragraph 262-263) (see MPEP 2144.05).
Accordingly, the claimed invention was prima facie obvious to one of ordinary skill in the art at the time of filing especially in the absence of evidence to the contrary.
Second rejection
Claims 87-89 are rejected under 35 U.S.C. 103 as being unpatentable over Reed, Torella, Colnaghi, and Berlicki as applied to claims 1-2, 4-13, 17-18, 20-23, and 85-86 above, and further in view of Jiang et al ((2015), Electrodeposited Cobalt-Phosphorous-Derived Films as Competent Bifunctional Catalysts for Overall Water Splitting. Angew. Chem. Int. Ed., 54: 6251-6254; hereinafter “Jiang”).
As discussed above, the claims were rendered prima facie obvious by the combined teachings of Reed, Torella, Colnaghi, and Berlicki.
As further discussed above, Torella teaches a bioreactor that has a Co-Pi water-splitting anode, with NiMoZn and stainless steel (SS) cathodes (see Fig. 1 of Torella reproduced below; and pg. 2338, col 1, para 2).

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The difference between the references and the instant claims is that none of the references explicitly teach that the cathode comprises a cobalt-phosphate (Co-P) alloy catalyst (as in claim 87).
However, Jiang teaches cobalt-phosphorus derived films as competent bifunctional catalysts for water splitting (title, abstract). Jiang specifically teaches Co-P films can be directly utilized as electrocatalysts for both HER and OER (H2 and O2 evolution reactions, respectively) in strong alkaline electrolytes and alkaline medium solutions and can be employed as a catalyst on both anode and cathodes for overall water splitting with 100% Faradaic efficiency, rivalling the integrated performance of Pt and IrO2 cathode/anode configurations (see abstract, pg. 6253, col 1-2). One of ordinary skill would have been motivated to modify the bioreactor of Reed, Torella, Colnaghi, and Berlicki with the Co-P alloy catalyst cathode of Jiang in order to advantageously effectuate water splitting for H2 and O2 evolution reactions with 100% Faradaic efficiency that performs better than known cathode/anode configurations.
Accordingly, the claimed invention was prima facie obvious to one of ordinary skill in the art at the time of filing especially in the absence of evidence to the contrary.
Response to Arguments
Applicant's arguments filed 04/21/25 have been fully considered but they are not persuasive.
On pg. 7-9 of the remarks, Applicant argues none of the references teaches “generating NH3 with one of more microorganisms in the bioreactor”. Applicant also argues that Torella does not disclose or provide motivation to maintain a threshold concentration of NH3 in the bioreactor as an initial concentration of NH3 is provided and it is simply allowed to decrease over time as nitrogen is consumed by the microorganisms during the experiment. Applicant concedes that Torella teaches bacteria produce a desired product after nitrogen is sufficiently depleted (pg. 2339, col 2), and does not teach actively limiting nitrogen to be below a threshold. Applicant further argues much of the same for the dependent claims.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Second, as Applicant concedes, Torella teaches the production of desired product once nitrogen is sufficiently depleted (i.e., below a threshold as instantly claimed). While the examiner agrees that Torella does not teach “actively limiting nitrogen to be below a threshold”, the teachings of Torella must be viewed in light of the teachings of Reed. Reed explicitly teaches that the production and distribution of molecules produced by the microorganisms can be optimized by control of bioreactor conditions, control of nutrient levels, genetic modifications of the cells by maintaining specific growth conditions (e.g. levels of nitrogen, oxygen, phosphorous, sulfur, trace micronutrients such as inorganic ions) (see paragraph 262-263). Here, Reed explicitly teaches that maintenance of a specific molecule produced by the microorganisms (like NH3 as instantly claimed) would simply be the result of routine optimization using standard laboratory techniques available at the time of filing (see MPEP 2144.05). Thus, the rejections are maintained as set forth above.
Conclusion
NO CLAIMS ALLOWED.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GEORGIANA C REGLAS whose telephone number is (571)270-0995. The examiner can normally be reached M-Th: 8:00am-2:00pm.
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/G.C.R./Examiner, Art Unit 1651
/THOMAS J. VISONE/Supervisory Patent Examiner, Art Unit 1671