Ex Parte McIntyre et al

Patent Trial and Appeal Board

Mar 23, 2017

13875425 (P.T.A.B. Mar. 23, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
225525.44 5633
EXAMINER
MACAULEY, SHERIDAN R
ART UNIT PAPER NUMBER
1653
MAIL DATE DELIVERY MODE
13/875,425 05/02/2013 Gavin McIntyre
27162 7590 03/23/2017
CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO
5 BECKER FARM ROAD
ROSELAND, NJ 07068
03/23/2017 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GAVIN MCINTYRE, JACOB WINISKI, SUE VAN HOOK,
LUCY GREETHAM, and COURTNEY HART
Appeal 2016-0030331
Application 13/875,425
Technology Center 1600
Before ERIC B. GRIMES, RICHARD M. LEBOVITZ, and JOHN G. NEW,
Administrative Patent Judges.
LEBOVITZ, Administrative Patent Judge.
DECISION ON APPEAL
This appeal involves claims directed to methods of producing a fimgal
leachate solution and methods of using the leachate to grow fungus. The
Examiner rejected the claims as anticipated under 35 U.S.C. § 102 and as
obvious under 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C.
§134. The rejections are affirmed.
1 The Appeal Brief (“Appeal Br.”) 2 lists Ecovative Design LLC of
Green Island, New York as the real-party-in-interest.
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Application 13/875,425
STATEMENT OF THE CASE
The Specification teaches that “utilizing waste streams from various
substrates and manufacturing processes to produce liquid media for
cultivating fungal biomass has been well explored.” Spec. 1:13—15. The
Specification also teaches the “[n]one of these examples utilize a fungus as
the primary agent for processing lignocellulose into water soluble
components that can be used to produce liquid culture media.” Id. at 1:22—
2:2. The Specification further teaches: “Accordingly, it is an object of the
invention to employ leachate as a liquid culture medium for cultivating
fungi.” Id. at 2:7—8. The Specification teaches that the leachate can be
produced by adding water to a substrate colonized with a selected fungus
and where the substrate “is leached in water to obtain a combination of water
soluble products” from the substrate which are subsequently used to grow
fungi. Id. at 2:21—22.
Claims 2—10, 12, 13, and 15 stand finally rejected by the Examiner as
follows:
1. Claims 2—5, 7, and 8 under pre-AIA 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under pre-AIA 35 U.S.C. § 103(a) as
obvious over Szuecs (US 2,505,811, pat. May 2, 1950). Final Rej. 4.
2. Claims 2—6 and 8 under pre-AIA 35 U.S.C. § 102(b) as anticipated
by or, in the alternative, under pre-AIA 35 U.S.C. § 103(a) as obvious over
Dale et al. (US Pat. Appl. Publ. 2007/0227063 Al, publ. Oct. 4, 2007)
(“Dale”). Final Rej. 5.
3. Claims 2—10, 12, and 13 under pre-AIA 35 U.S.C. § 103(a) as
obvious over Dale and Siddhant (Recycling of Spent Oyster Mushroom
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Application 13/875,425
Substrate to Recover Additional Value, 5 Kathmandu University Journal of
Science, Engineering and Technology 66—71 (2009)). Final Rej. 8.
4. Claims 2—10, 12, 13, and 15 under pre-AIA 35 U.S.C. § 103(a) as
obvious over Dale, Siddhant, and Stamets (US Pat. Appl. Publ.
2004/0211721 Al,publ. Oct. 28, 2004). Final Rej. 11.
Claim 2 is representative of the claimed subject matter and is
reproduced below:
2. A method of producing a fungal leachate solution
comprising the steps of
obtaining a feedstock of lignocellulosic substrate;
colonizing said substrate with a selected fungi to effect
decomposition of said feedstock and to leach out water soluble
compounds therefrom including at least one of a sugar alcohol,
a phenolic compound and a fatty acid; and
adding water to said colonized substrate to form a liquid
medium containing said at least one of a sugar alcohol, a
phenolic compound and a fatty acid.
CFAIM INTERPRETATION
Claim 2 requires “colonizing said substrate with a selected fungi to
effect decomposition of said feedstock and to leach out water soluble
compounds therefrom including at least one of a sugar alcohol, a phenolic
compound and a fatty acid.”
The term “colonizing” is not defined in the Specification. We give
the term “colonizing” its ordinary dictionary meaning that would be
understood by one of ordinary skill in the art in light of the Specification to
mean “establish itself in (an area).”2 Consistently, the Specification
describes inoculating a substrate with a fungus and growing the fungus on
2 https://en.oxforddictionaries.com/defmition/colonize.
3
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Application 13/875,425
the substrate. Spec. 5:14—17. Thus, “colonizing said substrate with a
selected fungi” means that the fungi is added to the substrate and
established, e.g., grown, on the substrate.
The “selected fungi” is colonized on the feedstock “to effect
decomposition of said feedstock and to leach out water soluble compounds
therefrom.” The term “decomposition” is given its ordinary meaning to
mean “break down or cause to break: down into component elements or
simpler constituents.”3 In other words, the fungus metabolizes the feedstock
as it colonizes it, resulting in the production of “at least one of a sugar
alcohol, a phenolic compound and a fatty acid.”
During the colonizing step, the claim further requires “to leach out
water soluble compounds therefrom,” i.e., leach out from the feedstock.
Leach means to “(with reference to a soluble chemical or mineral) drain
away from soil, ash, or similar material by the action of percolating liquid.”4
Thus, as the fungi decomposes the substrate into “at least one of a sugar
alcohol, a phenolic compound and a fatty acid,” these water-soluble
chemicals drain from the substrate. The claim does not require the
chemicals to be removed or separated. Thus, the claim is satisfied when the
soluble products drain from the feedstock substrate, e.g., into water present
in the feedstock substrate, but remain in contact with the feedstock.
The claims require “adding water to said colonized substrate to form a
liquid medium containing said at least one of a sugar alcohol, a phenolic
compound and a fatty acid.” Since the water is added to the substrate, and
3 https://en.oxforddictionaries.com/defmition/decompose.
4 https://en.oxforddictionaries.com/defmition/leach.
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no separation step is required, the resulting “liquid medium,” which is said
to be formed upon the addition of water, can include solid substrate.
ANTICIPATION BASED ON SZUECS
The Examiner found that Example 1 of Szuecs describes all the steps
of the claimed method. Final Rej. 4—5.
Appellants contend the Examiner erred because Szuecs does not
describe decomposing a feedstock nor producing a leachate. Appeal Br. 6—
7; Reply Br. 3, 4. We address each of these arguments below.
Decomposition
Claim 2 requires “colonizing said substrate with a selected fungi to
effect decomposition of said feedstock.” “Decomposition” is interpreted to
mean that the fungi breaks down or metabolizes the substrate into water-
soluble chemicals, including “at least one of a sugar alcohol, a phenolic
compound and a fatty acid.” See Claim Interpretation supra. Example 1 of
Szuecs describes growing the fungus on a substrate comprising peanut meal
for about 10 days to cover the substrate with mycelium. Szuecs, col. 1,1.
53—col. 2,1. 2; col. 3,11. 1—6. While decomposition of the substrate is not
expressly described by Szuecs, the Examiner found that “the fungi would
decompose the feedstock to utilize nutrients from the feedstock.” Final Rej.
4. The Examiner also found
The reference also specifically teaches that the mycelium grows
densely throughout the substrate (col. 3, lines 1—7). In order to
grow throughout the substrate, the mycelium must absorb
nutrients from its environment, which it must do by
decomposing the organic matter in order to utilize it for energy.
In other words, the growth of the mycelium in the substrate
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effects decomposition of the substrate because the fungus
breaks down and utilizes the nutrients in the substrate during
growth. Thus, since [Szuecs] teaches fungal growth in the
substrate, the reference inherently teaches decomposition of the
feedstock.
Ans. 3.
Appellants contend that the Examiner erred and provided no evidence
to substantiate this finding that the fungi decomposes the substrate. Reply
Br. 3. We do not agree that the Examiner erred. The Examiner’s position is
well-reasoned and scientifically sound. We do not believe it is necessary to
provide additional factual evidence that a fungus needs nutrients to grow and
that such growth involves metabolizing the substrate (“decomposition”) on
which it is grown to produce chemical breakdown products. Such finding
that an organism digests (metabolizes, decomposes, breaks down) the food
(substrate) it eats to extract nutrients is so well-known that it does not
require a factual source to establish its veracity. Appellants did not
adequately explain a flaw in the Examiner’s reasoning or fact finding.
Leach out
The claim also requires that water soluble compounds “leach out”
from the substrate. We interpreted this to mean that the water soluble
compounds drain from the feedstock, but can remain in contact and
unseparated from it. See Claim Interpretation supra. The Examiner found
that Szuecs produces a fungal leachate solution, such as the “‘essence of
mushroom’” described in Example 1 of Szuecs. Ans. 2—3. Appellants
contend that the Examiner did not provide evidence that a fungal leachate
would necessarily form. Appeal Br. 7—8. Appellants also contend that “the
Examiner is in error to posit that the addition of moisture to the substrate of
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Szuecs would inherently result in the leaching of some water soluble
compounds from the substrate.” Reply Br. 4—5.
Appellants’ argument does persuade us of Examiner error. Szuecs, as
found by the Examiner, inoculates a substrate with fungus. Szuecs, col. 2,11.
7—8. The substrate explicitly is described to contain water: “This mixture
[peanut meal, peat, sulfuric acid] is heated at 15 lbs. steam pressure for 30
minutes. Then there are mixed therewith: 6000 g. calcium carbonate
(CaCCE), 2000 g. ground wheat soaked in 5000 cc. water.'1'’ Id. at col. 2,11.
3—6 (emphasis added). Appellants’ statement that “there is no water in the
mycelium-inoculated feedstock” (Appeal Br. 7) is therefore inconsistent
with the factual evidence provided by the Examiner.
The Examiner’s finding that water-soluble compounds produced by
the growing and metabolizing fungi would drain into the water of the
feedstock is reasonable. As found by the Examiner, the same fungus
described in the Specification — Pleurotus ostreatus (Spec. 8 (Example 1)) —
is also described in Szuecs (Szuecs, col. 4,1. 72). Consequently, the
Examiner had reasonable basis to believe that Szuecs’s fungus would
produce the same water-soluble compounds as claimed, shifting the burden
to Appellants to show that it does not. (Once “the PTO shows sound basis
for believing that the products of the applicant and the prior art are the same,
the applicant has the burden of showing that they are not.” In re Spada, 911
F.2d 705, 708 (Fed. Cir. 1990).) Appellants did not meet this burden.
Because the products of the decomposition are water-soluble, they
would necessarily drain into the water moisture present in the feedstock.
Appellants attempt to rebut this finding by arguing that the substrate in
Szuecs is characterized as crumbly or of granular structure. Appeal Br. 5, 6,
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7. However, Szuecs expressly teaches the presence of water in the feedstock
substrate (Szuecs, col. 2,1. 6) and characterizes its water content:
• “The water content of the material is preferably adjusted to within
the range of 50 to 65% by weight.” Id. at col. 4,11. 13—15.
• “The resulting substrate contains 62.7 % water by weight.” Id. at
col. 4,11.31-33.
As discussed in the claim interpretation section, the claim does not
require the water soluble compounds to be separated from the feedstock.
Thus, their draining into the water present in the feedstock satisfies the
claimed requirement of “to leach out water soluble compounds therefrom.”
Appellants have not provided adequate evidence to the contrary.
Under Appellants’ reasoning, the fungi grown on the substrate do not
break the substrate components down, and do not release water-soluble
compounds into the water, both contentions which are contrary to scientific
principles that organisms metabolize food sources in order to grow and that
metabolism produces break-down products that, when water-soluble, would
necessarily dissolve in the water comprising the substrate.
In sum, the anticipation rejection of claim 2 by Szuecs is affirmed.
Claim 8
Claim 8 further requires “wherein said feedstock is soaked in said
water for a period sufficient to leach out said water soluble compounds and
to form a slurry comprised of liquid leachate and solid substrate.” The
Examiner found that water is added to Szuecs’ substrate which would form a
slurry of the substrate in water. Final Rej. 4. The Examiner’s finding is
supported by a preponderance of the evidence because the fungus is grown
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in the substrate, comprising water, for ten days, which would necessarily
form a slurry because of the presence of the water. Szuecs, col. 3,11. 1—7;
col. 2,11. 5—6. Appellants contend that this step is not described in Szuecs,
but did not identify an error in the Examiner’s findings. Appeal Br. 10.
Accordingly, the anticipation rejection of claim 8 by Szuecs in affirmed.
Claim 3—5 and 7
Appellants did not provide separate arguments for claims 3—5 and 7.
Appeal Br. 10. These claims therefore fall with claim 2. 37 C.F.R.
§41.37(c)(l)(iv).
ANTICIPATION REJECTION BASED ON DALE
The Examiner found that Dale describes all the steps of the claimed
method. Final Rej. 5—6. The Examiner found that Dale describes the use of
Pleurotus ostreatus, the same fungus employed in the Specification. Id. at 6.
Based on the identity between the fungus employed by Dale and in the
Specification, the Examiner found that the water-soluble products would
leach from the feedstock and into the liquid medium. Id.
Appellants contend that there is no disclosure in Dale of a fungal
leachate comprising at least one of a sugar alcohol, a phenolic compound
and a fatty acid as required by claim 2. Appeal Br. 11. Appellants also
contend there is no adding water as required by the claim. Id. As explained
below, Appellants’ arguments are not supported by adequate evidence.
Dale teaches that Mushroom Spent Straw (MSS) is produced after
fungal growth on a lignocellulosic substrate. Dale 1 8. Mushrooms are
fungi. The MSS is grown under 85% moisture conditions, and thus
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reasonably would contain water as found by the Examiner. Id. 123. See
Final Rej. 6. Leaching of water-soluble compounds into the water present in
the MSS would be reasonably expected because the same fungi are used in
both Dale and in the Specification, and thus would be reasonably expected to
produce the same water-soluble compounds upon decomposition. Because
the compounds are water-soluble they necessarily dissolve in water and thus
would “leach out” from the MSS into the water present in it as required by
claim 2 (“to leach out water soluble compounds therefrom”).
Dale teaches that the MSS is “soaked and stirred in distilled (de­
ionized) water.” Dale 130. This step involves the addition of water and
thus meets the claim limitation of “adding water to said colonized substrate
to form a liquid medium containing said at least one of a sugar alcohol, a
phenolic compound and a fatty acid.”
The Examiner also cited paragraph 35 of Dale as containing
anticipatory disclosure because it teaches cultivating mushrooms on rice
straw, a lignocellulosic feedstock (claim 2: “colonizing said substrate with a
selected fungi to effect decomposition of said feedstock”), in a humid
environment which would result in some leaching of the water-soluble
compounds into the water present in the straw (claim 2: “to leach out water
soluble compounds therefrom”), and subsequent extraction of the MSS
“with water to remove enzymes/proteins, organic acids, soluble lignin and
oligosaccharides” (Ans. 8) (claim 2: “adding water to said colonized
substrate to form a liquid medium containing said at least one of a sugar
alcohol, a phenolic compound and a fatty acid”). The Examiner finds that
lignin is a phenolic compound (Ans. 8).
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With respect to the disclosure cited by the Examiner at paragraph 30,
Appellants argue that Dale “relates to a byproduct produced in accordance
with [0015] - [0020] after the growth of mushrooms and specifically,
treating the waste . . . with an AFEX process using pressurized hot liquid
ammonia which is rapidly depressurized to release the ammonia treated solid
as the byproduct.” Appeal Br. 11.
Appellants do not explain why the Examiner’s findings are deficient.
The disclosure at paragraphs 15—20 of Dale describes growing mushrooms
under conditions where degradation occurs. Paragraph 17 of Dale expressly
refers to separating out the liquid, indicating that water is present and that
such water would contain the soluble compounds produced during the
mushroom growth. A step of adding water is not recited here. However, the
Examiner relied upon Dale’s paragraphs 30 and 35 for such steps.
In paragraph 30, as already discussed, the spent MSS is soaked in
water after growth. Similar disclosure, as discussed above, is also described
in paragraph 35 of Dale.
With respect to the Examiner’s findings based on paragraph 35 of
Dale, Appellants dispute that leaching out would occur, stating that “since
the bags are made of polythene, the Examiner has not explained how water-
soluble compounds inside the bags would be extracted through the bags into
condensate on the outside of the bags.” Appeal Br. 12.
We note that the Examiner referred to “a condensate containing a
leachate would form on the polythene bags in which the mushrooms are
cultivated.” Ans. 9. However, this statement does not require the
condensate to form on the outside of the bag; the condensate could form on
the inside, as well. Nonetheless, we do not rely on this finding in reaching
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the determination that Dale teaches that water-soluble compounds “leach
out” from the feedstock. Rather, Dale’s teaching of moisture conditions of
85% (Dale 123), the explicit disclosure of the presence of water in the grass
substrate on which the fungus is grown {id. 117) provides reasonable basis
to believe that the feedstock contains water and that the water-soluble
compounds produced during fungal growth would leach into the water
because of the normal chemical property of water-soluble compounds to
dissolve in water.
Appellants also contend there is no decomposition or colonization of
the substrate (Reply Br. 6), but provide no evidence to support this position,
particular when Dale expressly describes growing the fungus on substrate
and decomposing it into various components, including oligosaccharides.
Dale 11 8, 15, 30,35.
In sum, the anticipation rejection of claim 2 by Dale in affirmed.
Claim 8
Claim 8 further requires “wherein said feedstock is soaked in said
water for a period sufficient to leach out said water soluble compounds and
to form a slurry comprised of liquid leachate and solid substrate.” The
Examiner found that water is added to the substrate which would form a
slurry of the substrate in water. Final Rej. 6. The Examiner’s finding is
supported by a preponderance of the evidence because the spent straw is
“soaked” in water which would necessarily form a slurry because of the
presence of the water. Dale 130. Appellants contend that this step is not
described in Dale, but did not identity an error in the Examiner’s findings.
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Appeal Br. 12. Accordingly, the anticipation rejection of claim 8 by Dale is
affirmed.
Claims 3—6
Appellants did not provide separate arguments for claims 3—6.
Appeal Br. 12. These claims therefore fall with claim 2. 37 C.F.R.
§41.37(c)(l)(iv).
OBVIOUSNESS IN VIEW OF DALE AND SIDDHANT
Claims 12 and 13 further require inoculating the liquid medium,
obtained from the first step of colonizing substrate, with a fungus. The
Examiner found that Dale does not describe this step, but found that this
deficiency is met by Siddhant. The Examiner found:
[Siddhant] teaches a method of obtaining a feedstock of
lignocellulosic substrate (wheat straw) and colonizing the
substrate with a fungus to produce a spent mushroom substrate
(p. 66, par. 4-p. 67, par. 1). The reference teaches inoculating a
medium comprising a lignocellulosic feedstock and the spent
substrate with a selected fungus and incubating the inoculated
medium to effect metabolizing and colonization of the medium
(p. 67, par. 2).
Final Rej. 9—10.
The Examiner found that both Dale and Siddhant teach the desirability
of recycling of spent mushroom substrate. Final Rej. 10. The Examiner
found that one of ordinary skill in the art would have recognized that the
liquid produced by Dale could be used as a medium on which to culture
mushrooms. Id.
Appellants contend that Dale and Siddhant are non-analogous art.
Appeal Br. 13. Appellants contend that “Dale is directed to a process for the
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conversion of waste grass into byproducts and not the growing of
mushrooms” and therefore “no purpose would be achieved by adding fresh
wheat straw to the grass waste of Dale in order to convert the mixture into
byproducts.” Id. Appellants also contend:
While Dale discloses a use for the solid produced from the
growth of mushrooms {see 0016] there is no disclosure of a use
for the liquid produced from the growth of mushrooms and
which comprises enzymes and degraded lignin.
Id. at 15.
Discussion
Dale teaches adding water to mushroom spent straw on which fungus
has been cultivated and separating the MSS into substrate and water. Dale
1130, 35. Dale teaches that the spent substrate is treated to obtain sugars
which can be used in ethanol production. Id. H 6, 36. Dale teaches that the
liquid water is a source of lignin, oligosaccharides, organic acids and other
products. Id. H 28, 35, 37.
Siddhant also teaches utilizing spent straw substrate on which
mushrooms have been cultivated. Siddhant, Abstract. Siddhant describes
taking spent substrate after cultivation, autoclaving it, and then mixing it
with fresh wheat straw and growing fungus (mushrooms) on it. Siddhant 67
(See section titled: “As ingredient in the cultivation of other oyster
mushroom species”) (emphasis omitted).
Appellants contend that Dale and Siddhant are non-analogous prior
art. Prior art which is pertinent to the claimed invention is referred to as
“analogous” prior art. It is well-established that there are two criteria to be
applied when determining whether a reference is analogous prior art: (1)
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whether the reference is from the “same field of endeavor” as the claimed
invention, and (2) if the reference is not within the same field of endeavor,
“whether the reference still is reasonably pertinent to the particular problem
with which the inventor is involved.” In re Clay, 966 F.2d 656, 658—59
(Fed. Cir. 1992). “References are selected as being reasonably pertinent to
the problem based on the judgment of a person having ordinary skill in the
art.” In re Kahn, 441 F.3d 977, 986—87 (Fed. Cir. 2006). When neither
criterion is met from the perspective of a person having ordinary skill in the
art, the reference is deemed “non-analogous” and is not considered pertinent
to the § 103 determination.
In this case, Dale, Siddhant, and the claimed invention relate to the
cultivation of fungus, and then recycling for different purposes the spent
straw on which the fungus was grown. Appellants consider Dale and
Siddhant to be non-analogous because Dale utilizes the spent substrate to
make ethanol, while Siddhant uses it to grow more mushrooms on. Yet, as
pointed out by the Examiner (and supported by a preponderance of the
evidence as discussed supra), both publications recycle the spent straw,
making it reasonable for a person of ordinary skill in the art to have
consulted Dale as to how to make spent mushroom straw for recycling in
Siddhant’s method and to have recognized that Dale’s lignocellulosic waste
products (see Dale 135) could be utilized for mushroom cultivation instead
of treatment for the purpose of making ethanol. Moreover, Dale teaches that
spent straw has a variety of uses, including burning, land fill, compost,
animal feed, for making bio-plastics, and to make ethanol. Dale H 6, 8, 9.
Consequently, a preponderance of the evidence shows that, at the time of the
invention, it was widely known that spent straw had numerous uses. Thus,
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while Dale discloses one specific use of its own spent straw substrate, one of
ordinary skill in the art would have known that Dale’s spent straw could be
used in any one of the other conventional uses of it, including as a substrate
for further fungi cultivation as described in Siddhant.
Appellants also argue that Dale uses the solid from the spent straw,
not the liquid as recited in claims 12 and 13. Appeal Br. 15, 16.
The Examiner responded:
One of ordinary skill in the art would therefore recognize that
the spent mushroom substrate of Dale, containing at least some
liquid medium as remaining moisture, could be inoculated with
a selected fungus and incubated to effect metabolizing and
colonization of the medium, since [Siddhant] provides
motivation for the reuse of the spent mushroom substrate in the
method of Dale. It is noted that the claims do not require that
the liquid be separated from the spent mushroom substrate.
Thus, the colonization of the spent mushroom substrate, which
would contain at least some liquid, teaches the limitations of the
claims. Appellants’ arguments have therefore not been found to
be persuasive.
Ans. 13.
As explained above in the Claim Interpretation section, the
interpretation of “liquid medium” to permit the inclusion of solid substrate is
reasonable because the claims do not recite a step of separating the liquid
and recite that a “liquid medium” is formed when water is added to the solid
“colonized substrate.” Thus, the recited “liquid medium” includes the
mushroom spent straw (MSS) prior to extraction and after extraction as
described by Dale (e.g., Dale ^fl[ 30, 35).
One of ordinary skill in the art, upon reading Siddhant’s teaching that
spent straw can be recycled for use as a substrate for additional fungus
growth, would have recognized that Dale’s MSS (either before separation
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into substrate straw and liquid, or after separation when some liquid would
remain) be useful for such purpose because it constitutes the same type of
spent mushroom straw as described by Siddhant.
For the foregoing reasons, the obviousness rejection of claims 12 and
13 is affirmed.
OBVIOUSNESS IN VIEW OF DALE, SIDDHANT, AND STAMETS
Independent claim 15 has similar steps as claim 2, but further recites
“obtaining a feedstock of rye straw” and “to leach out water soluble
compounds including at least one of a sugar alcohol, a phenolic compound
and a fatty acid and chlamydospores therefrom.” Chlamydospores are
asexual fungal spores. Spec. 3. The Examiner relied on Dale and Siddhant
as discussed above, and further cited Stamets for teaching rye straw.
Appellants contend that there is no teaching of chlamydospores. Appeal Br.
17. However, the Specification states that “leachate derived from rye straw
(colonized and decomposed as described above). . . demonstrates a specific
effectiveness at stimulating germination of asexual spores, namely
chlamydospores.” Spec. 3. Thus, substituting rye straw, as suggested by
Stamets, in the process made obvious by Dale and Siddhant would
reasonably be expected to result in leaching chlamydospores along with
water soluble compounds.
In any event, claim 15 does not require chlamydospores because it
recites “at least one of’ a group which includes chlamydospores, but
therefore only requires one member of the group. The rejection is therefore
affirmed.
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Summary
Rejections 1—4 are affirmed. To the extent claims were not separately
argued, they fall with claims 2, 12, 13, and 15. 37 C.F.R. 41.37(c)(l)(iv)
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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