2020000325 (P.T.A.B. May. 13, 2020)

Lucy Greetham et al.

Patent Trials and Appeals BoardMay 13, 2020

2020000325 (P.T.A.B. May. 13, 2020)

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. 14/336,455 07/21/2014 Lucy Greetham 225525.67 8678 27162 7590 05/13/2020 CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO 5 BECKER FARM ROAD ROSELAND, NJ 07068 EXAMINER PYLA, EVELYN Y ART UNIT PAPER NUMBER 1633 MAIL DATE DELIVERY MODE 05/13/2020 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 LUCY GREETHAM, GAVIN R. MCINTYRE, EBEN BAYER, JACOB WINISKI, and SARAH ARALDI ____________ Appeal 2020-000325 Application 14/336,455 Technology Center 1600 ____________ Before JEFFREY N. FREDMAN, ULRIKE W. JENKS, and JOHN G. NEW, Administrative Patent Judges. Opinion for the Board filed by Administrative Patent Judge JENKS. Dissenting Opinion filed by Administrative Patent Judge FREDMAN. JENKS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from Examiner’s decision to reject claims 2–7, 9–14, and 16–23 as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Ecovative Design LLC. Appeal Br. 1. Appeal 2020-000325 Application 14/336,455 2 STATEMENT OF THE CASE Claims 2–7, 9–14, and 16–23 are on appeal, and can be found in the Claims Appendix of the Appeal Brief. Claim 2, reproduced below, is illustrative of the claimed subject matter: Claim 2. A process of growing a mycological biopolymer material, the steps of providing a tool defining a cavity therein with an opening into said cavity; packing said cavity of the tool with nutritive substrate and a fungus; placing a lid on said tool to cover said cavity, said lid having only one outlet therein defining a void space open to fresh air; allowing said fungus to grow mycelium within said cavity and to allow the mycelium to respirate within said cavity thereby producing carbon dioxide while colonizing the nutritive substrate; allowing the produced carbon dioxide to diffuse out of said outlet in said lid to create a gradient of carbon dioxide; and allowing the mycelium to grow along said gradient to fill said void space without producing a stipe, cap or spore therein and to produce a mycelium biopolymer in said void space. Appeal Br. Claims Appendix. The other independent claims, claims 7, 16, and 18, similarly recite a “mycological biopolymer.” Id. Appeal 2020-000325 Application 14/336,455 3 REFERENCES The prior art relied upon by Examiner is: Name Reference Date Beelman et al. (“Beelman”) US 5,681,738 October 28, 1997 Lüth et al. (“Lüth”) US 6,620,614 B1 September 16, 2003 Bayer et al. (“Bayer ’302”) US 2012/0270302 A1 October 25, 2012 Bayer et al. (“Bayer ’577”) US 2008/0145577 A1 June 19, 2008 Kalisz et al. (“Kalisz”) US 2011/0269214 A1 November 3, 2011 Instructables, How to Grow Oyster Mushroom Spawn (Low Tech), Feb 15, 2011 (available at https://www.instructables.com/id/1-How-to-Grow- Oyster-Mushrooms-Low-Tech/) (“Instructables”) F. Zadrazil, Influence of CO2 Concentration on the Mycelium Growth of Three Pleurotus Species, 1 Eur. J Appl. Microbiol. 327 (1975) (“Zadrazil”) REJECTIONS Appellant requests review of the following grounds of rejection made by Examiner: I. Claims 2–6 and 18–23 under 35 U.S.C. § 103(a) as unpatentable over Instructables in view of Kalisz. II. Claim 17 under 35 U.S.C. § 103(a) as unpatentable over Instructables in view of Kalisz as applied to claims 2–6 and further in view of Lüth. III. Claims 7 and 9 under 35 U.S.C. § 103(a) as unpatentable over Instructables in view of Kalisz and further in view of Bayer ’302. IV. Claims 10 and 11 under 35 U.S.C. § 103(a) as unpatentable over Instructables in view of Kalisz, and further in view of Bayer ’302 as applied to claims 7 and 9, and further in view of Beelman. Appeal 2020-000325 Application 14/336,455 4 V. Claims 12–14 under 35 U.S.C. § 103(a) as unpatentable over Instructables, in view of Kalisz, and further in view of Bayer ’302 as applied to claims 7 and 9, and further in view of Bayer ’577. VI. Claim 16 under 35 U.S.C. § 103(a) as unpatentable over Bayer ’577 in view of Zadrazil. I.–V. Obviousness over Instructables and Kalisz The issue of this appeal is whether the preponderance of evidence of record supports Examiner’s conclusion that the claims are obvious over the teachings of the combination of Instructables and Kalisz. Because the same issue is dispositive for rejections I.–V., we consider the rejections together. Findings of Fact FF1. Instructables2 teaches the propagation of oyster mushroom spawn of varieties of Pleurotus ostreatus and Pleurotus pulmonarius. See Instructables 1–2 (“This instructable describes how to propagate oyster mushroom spawn via grain spawn transfer, agar tissue culture transfer and liquid inoculation methods.”). FF2. Instructables teaches obtaining lidded jars and drilling 8mm holes in the lids to permit the mushroom spawn to breathe. See Instructables 5 (“we used 1 liter olive jars . . . [t]aking a drill, make an 8mm hole in each jar lid. Later, this will allow the mushroom spawn to breath [sic].”). FF3. Instructables teaches soaking grain and filling the prepared jars ¾ full before the lid is applied. See Instructables 6 (“[s]oak the grain for 24 2 Instructables is not paginated, therefore page numbers refer to the document as if it were consecutively paginated beginning on the first page. Appeal 2020-000325 Application 14/336,455 5 hours . . . . Lit[er] jars should be ¾ filled with grain and lids (with breathing holes) fitted . . .”). FF4. Instructables teaches inoculating the grain-filled jars with mushroom spawn, plugging the hole with cotton, and incubating the jars at temperatures of between 75–85°F. See Instructables 7–8 (“[t]ransfer 1–2 desert spoons of the spawn into your 1 lit[er] jar of sterile grain . . . for [P]leurotus ostreatus incubate at 24°C (75°F) and for [P]leurotus pulmonarius (summer) 24°C to 30°C (75°F to 85°F).”). FF5. Instructables teaches that the jars should be incubated for up to 10 days to permit the growth of fungal mycelium. See Instructables 13 (“you should notice popcorn sized colonization evenly spread throughout the grain after 1-2 days. If needed, give the jars a shake to evenly distribute the mycelium to aid colonisation. Once the mycelium is relatively uniform throughout the jar, leave it to incubate. The grain should be fully colonized with mycelium in seven to ten days.”). FF6. Instructables teaches that the colonized grain can be used to inoculate additional jars or used to grow mushrooms. See Instructables 13 (“[o]nce the jar is fully colonized, you can use it to inoculate more jars, or store it at low temperatures until needed and of course you can use it to inoculate straw substrate to grow mushrooms.”). FF7. Kalisz teaches growing fungal mycelium into an aggregate used for, among others, injection molding procedures. See Kalisz ¶ 71 (“a particulate additive . . . is incorporated into the liquid aggregate . . . with the fungal inoculum . . . to form a slurry . . . . The slurry . . . grows into live mycelium.”), ¶ 73 (“As the hyphae grow . . ., they will Appeal 2020-000325 Application 14/336,455 6 grow through and around the nutrients of the aggregate and the polymer particles, forming bonds with the particles which will remain in the final plasticized structure.”). FF8. Kalisz teaches that fungi breathe oxygen and produce carbon dioxide. See Kalisz ¶ 88 (“Unlike photosynthetic plants, fungi breathe in oxygen and release carbon dioxide.”). FF9. The Specification discloses that a “mycological biopolymer” is “a material composed entirely of fungal mycelium,” distinguishing between the “mycological biopolymer” and “mycological biocomposites which are comprised of lignocellulosic waste materials, fungal cellular tissue, and potentially supplemental nutrients (minerals, vitamins, and the like).” See Spec. 2:1–8. Principle of Law “[O]bviousness requires a suggestion of all limitations in a claim.” CFMT, Inc. v. Yieldup Int’l Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003) (citing In re Royka, 490 F.2d 981, 985 (CCPA 1974)). Analysis Examiner finds that Instructables teaches providing a tool, i.e., a jar, with a cavity, filling the cavity in the tool with a nutritive substance inoculated by a fungus, then covering the cavity with a lid provided with a single hole. See Ans. 4–11; FF1–FF4. Examiner finds incubating the tool from Instructables permit the growth of fungal mycelium. Ans. 4; FF5. Examiner finds that as the fungus grows, it consumes oxygen and emits carbon dioxide, and the hole provided in the lid of the jar allows the growing Appeal 2020-000325 Application 14/336,455 7 fungus to breathe. Ans. 5; FF2, FF8. Examiner finds that Instructables describes permitting the fungal mycelium that colonized the nutritive substance to be removed to then either inoculate additional jars, or permit the growth of mushrooms. FF6. Examiner finds that Kalisz teaches forming aggregates of mycelium and particulate materials for further processing such as for use in forming molded objects. Ans. 6–7; FF7. Examiner reasons that because “Instructables carries out the same method steps as in the instant application . . . any and all results of the method of Instructables, whether recognized at the time of filing or not, were inherently achieved.” Ans. 6. Additionally, Examiner finds that the claims are not limited to the production of a composition containing just fungal mycelium. See Ans. 27 (“it is noted the instant claims are not limited to producing a final product that comprises only fungal mycelium”). Examiner finds that nothing of the art would prevent the fungal mycelium cultured by Instructables from growing into the space between the nutritive substance and the lid of the container. Id. at 28 (“there is nothing in the cultivation jar of Instructables that would impede the growth of the mycelium . . . Kalisz provides the extrinsic evidence that the 10 day culture of Instructables would necessarily result in a portion of mycelium growth into the one outlet in the jar lid.”). Appellant contends that a description of the claimed formation of a “mycological biopolymer material” is absent from the teachings of Instructables or Kalisz. Appeal Br. 7–9, 12–14. Appellant contends that nothing in the Instructables or Kalisz references teaches or suggests to a skilled artisan the formation of the mycological biopolymer material encompassed by the instant claims. See Appeal Br. 7 (“Examiner acknowledges that Instructables is directed to a process of growing oyster Appeal 2020-000325 Application 14/336,455 8 mushroom spawn but does not present any evidence that oyster mushroom spawn is a mycological biopolymer material, i.e., a material composed entirely of fungal mycelium” (emphasis removed)). Appellant further distinguishes the mycological biopolymer claimed from the products formed by Instructables by again pointing out that, per the teachings of Instructables, a mycological biopolymer according to the instant claims is not formed. Id. at 9 (“the jars illustrated in Step 9 show mycelium (in white) distributed throughout the grain to produce an amalgam of mycelium and grain”). Appellant contends that Examiner’s position that given enough time the mycelium of Instructables would occupy the void space in the jar is unsupported by evidence, because Instructables teaches the “[full] colonization” of the contents of the jars by day ten. Id. at 12–13. Appellant indicates Instructables fails to demonstrate that after the “full colonization” of the contents of the Instructables jar, any mycelium has grown beyond the level of substrate in the jars. Id. at 13. We begin with claim construction of the terms “mycological biopolymer” and “mycelium biopolymer” giving the claims their broadest reasonable interpretation consistent with the Specification. In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000). The Specification defines “mycological biopolymer” as “a material composed entirely of fungal mycelium.” FF9. The Specification states that the claimed “mycological biopolymer” differs from “mycological biocomposites which are comprised of lignocellulosic waste materials, fungal cellular tissue, and potentially supplemental nutrients (minerals, vitamins, and the like).” FF9. Accordingly, we find that a “mycological biopolymer” is made solely of mycelium. Appeal 2020-000325 Application 14/336,455 9 According to the Specification, the “mycelium biopolymer” limitation found in claim 2 is also reasonably interpreted to be a product comprised solely of mycelium. “[T]he use of [two similar but different] terms in close proximity in the same claim gives rise to an inference that a different meaning should be assigned to each . . . . That inference, however, is not conclusive; it is not unknown for different words to be used to express similar concepts, even though it may be poor drafting practice.” Bancorp Servs., L.L.C. v. Hartford Life Ins. Co., 359 F.3d 1367, 1373 (Fed. Cir. 2004) (citing Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 93 F.3d 1572, 1579 (Fed. Cir. 1996). Here, there is no indication in the Specification that “mycological biopolymer” and “mycelium biopolymer” have a different meaning. The Specification teaches that the tool space is filled “with an undifferentiated mycelium chitin-polymer, which is subsequently extracted.” Spec. 3. The Specification further describes producing a mycelium product by placing the void space of the tool to be filled with biopolymer on top of the substrate or to the side of the substrate, creating either vertical mycelium or horizontal mycelium biopolymer. See Spec. 11–12. The Specification also describes that, after incubation, the substrate is removed from the biopolymer material. See id. at 10 (“extracting the biopolymer material from the nutritious substrate base in the tool, for example, using a blade”), see id. at 13 (“Prior to the completion of the growth the grid can be removed to permit the mycelium to conjoin with the adjacent tissues.”). Finally, the Specification describes using a hydroponic system for the production of the biopolymer. Id. at 13. Based on these disclosures in the Specification, we find that the claimed “mycelium biopolymer” is equivalent to the “mycological Appeal 2020-000325 Application 14/336,455 10 biopolymer” and, therefore, is reasonably interpreted to be composed solely of mycelium. We agree with Appellant that the Specification has expressly defined what is encompassed by a “mycological biopolymer,” specifically, that it is material composed entirely of fungal mycelium. See Appeal Br. 8; FF9 (indicating that “mycological biopolymer” is defined as “a material composed entirely of fungal mycelium.”). We find that both Instructables and Kalisz describe methods directed to the formation mycological biocomposites, the kind of aggregate the Specification excludes from the limitations of “mycological biopolymers” or “mycelium biopolymer” as recited in the instant claims. See FF5, FF7. Furthermore, we find that nothing of the cited art suggests that mycelium grown as a result of inoculating either the grain materials of Instructables or the nutrient/particulate slurry of Kalisz would provide a “material composed entirely of fungal mycelium” produced by the processes described in Instructables and Kalisz. Instructables describes the process as providing “popcorn sized colonization evenly spread throughout the grain,” which “is relatively uniform throughout the jar,” providing grain which “should be fully colonized with mycelium in seven to ten days.” FF5. This description of the material produced by Instructables reflects the type of mycological biocomposite which fall outside the metes and bounds of the instant claims. FF5–FF6. The teachings of Kalisz relied upon by Examiner fails to cure this deficiency, because Kalisz teaches that the product of fungal growth is an Appeal 2020-000325 Application 14/336,455 11 “aggregate” which “fully and evenly incorporate[s] the polymer particles into the resulting structure.” Kalisz ¶ 73; FF7. We agree with Appellant, and are not persuaded by Examiner’s position that given enough time the mycelium of Instructables would occupy the void space in the jar and thereby meet the claimed “mycological biopolymer” or “mycelium biopolymer” limitation as claimed. See Appeal Br. 29 (“that there is nothing in the cultivation jar of Instructables that would impede the growth of the mycelium into the opening in the lid and Kalisz . . . that after a certain period of time the mycelium grows into the closed growth cavity and fills all the voids and corners of the closed container.”). The Specification describes producing mycelium product by placing the void space of the tool to be filled with biopolymer on top of or beside the substrate. See Spec. 11–12. The void space as claimed is the space defined by the walls and the lid that form the cavity of the tool. Examiner identifies the 1 liter wide mouth jars of Instructables as meeting the limitation of the tool. See Ans. 4. Even if, as Examiner suggests, the mycelium in Instructables and Kalisz can grow into air pockets making up a portion of the tool cavity, the remainder of the cavity still contains grains. In other words, any product retrieved from the tool cavity will not be a mycological biopolymer because it also contains lignocellulosic waste materials. See FF9. Therefore, we are not persuaded by Examiner’s position that growth of mycelium into the air pockets disclosed in Instructables and Kalisz meets the “mycological biopolymer” production as claimed. We conclude that the preponderance of the evidence of record does not support Examiner’s conclusion that the combination of Instructables and Kalisz discloses a “mycological biopolymer” as recited in independent Appeal 2020-000325 Application 14/336,455 12 claims 2, 7, and 18 and dependent claims thereto. We thus reverse all the rejections under 35 U.S.C. § 103(a) that rely on the teachings of Instructables and Kalisz. VI. Obviousness over Bayer ’577 and Zadrazil. The issue is whether the preponderance of evidence of record supports Examiner’s conclusion that combination of Bayer ’577 and Zadrazil renders the “mycological biopolymer” as recited in claim 16 obvious. Findings of Fact FF10. Bayer ’577 describes a 3-dimensional digestible or non-digestible framework for supporting the growth of fungal mycelia. Bayer ’577 ¶ 206 (“[o]ne way of adding an engineered structure to mycelium composites is to produce a digestible or non-digestible 3-d framework within which the mycelium grows.”) FF11. Bayer ’577 describes plastic grids coated with nutritional substrate which is placed on a bed of inoculum and incubated to grow mycelium. Id. ¶¶ 210–11 (“a three-dimensional lattice, formed of sets of 1 mmx1 mm plastic grids . . . oriented orthogonally, is coated in a mixtures of starch and water . . . [and] placed on in a bed of inoculum containing Pleurotus ostreatus on a suitable nutrient carrier . . . held at the correct temperature, between 55-95 degrees Fahrenheit . . . to stimulate mycelial growth.”). FF12. Bayer ’577 describes the formation of a dense mat incorporating the plastic grid. Id. ¶ 213 (“The mycelium is grown over and through the grid producing a dense network of oriented hyphae. Overtime, the Appeal 2020-000325 Application 14/336,455 13 hyphae will interweave producing a dense 3-D mat. After 1 to 2 weeks of growth, the grid is removed from the incubator and dried.”). FF13. Zadrazil describes the beneficial effect increased air CO2 concentrations have on fungal growth. Zadrazil 327 (“Increased CO2 concentrations in the air has a positive effect on mycelium growth in the cultivation of Pleurotus ostreatus . . .”). FF14. Zadrazil indicates that CO2 concentrations as low as 5% promote this effect. Id. at 330 (“Table 1”). FF15. Zadrazil describes not only the fungal growth promoting effects of the elevated CO2 concentrations, but indicates that such increased CO2 concentrations inhibit the growth of contaminants. Id. at 333 (“The high concentration of CO2 in the substratum not only has a stimulating effect on the mycelium growth of the Pleurotus species but also an inhibitive effect on other species in the non-sterile straw substratum.”). Analysis Examiner finds that Bayer ’577 teaches placing a coated plastic grid on a fungus-inoculated nutrient bed and incubating the combination under conditions of controlled temperature and humidity to permit fungal mycelium to grow through the grid holes and form a dense mat of fungal mycelium encasing the plastic grid. See Ans. 23–25; FF10–FF12. Examiner acknowledges that Bayer ’577 does not teach the recited CO2 concentrations. Ans. 25. Examiner finds that Zadrazil establishes CO2 concentrations, falling within the range of CO2 concentrations claimed, to promote fungal mycelial Appeal 2020-000325 Application 14/336,455 14 growth while inhibiting the growth of contaminant organisms. Ans. 25; FF13–FF15. Appellant argues that the lattice grid described by Bayer ’577 does not have “a pair of vertically disposed chambers and a vertically disposed wall separating said chambers” as required by claim 16. Appeal Br. 28. Appellant further contends that “[t]here is no disclosure in Bayer ’577 of filling any chamber with a bed of inoculum containing Plearotus ostreatus on a suitable nutrient carrier,” nor a suggestion of passing liquid nutrient through the substrate while air is circulated through the adjoining chamber to permit the growth of a mycological biopolymer according to the instant claims. Id. (emphasis added; boldface omitted). Examiner responds that the lattice structure described by the figures of Bayer ’577 represent only a cutaway portion of the entire enclosed structure, thereby defining a number of vertically disposed chambers. Ans. 36–37. Examiner further explains that Bayer ’577’s teaching concerning placing substrate and fungal inoculant in one chamber permits the inoculation and subsequent fungal growth through the lattice into adjacent chambers, and that “humidified air” represents a “liquid nutrient” as required by the instant claims. Id. at 37. On the basis of this record, we find Appellant has the better position. As indicated above, the Specification states that “the invention provides a material composed entirely of fungal mycelium, herein referred to as ‘mycological biopolymer.’” Spec. 2:1–2; FF9. Bayer explicitly teaches that its fungal mycelium-encased plastic lattice incorporates materials in addition to the fungal mycelium. FF12 (“mycelium is grown over and through the grid producing a dense network of oriented hyphae . . . the grid is removed Appeal 2020-000325 Application 14/336,455 15 from the incubator and dried”). Because “mycological biopolymer” is “a material composed entirely of fungal mycelium” and does not include incorporations of lignocellulosic waste materials, Bayer ’577’s method of producing mycological biocomposites does not meet the claimed process. Accordingly, we reverse of the rejection of claim 16 under 35 U.S.C. § 103(a) as unpatentable over Bayer ’577 and Zadrazil. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 2–6, 18–23 103 Instructables, Kalisz 2–6, 18–23 17 103 Instructables, Kalisz, Lüth 17 7, 9 103 Instructables, Kalisz, Bayer ’302 7, 9 10, 11 103 Instructables, Bayer ’302, Kalisz, Beelman 10, 11 12–14 102 Instructables, Kalisz, Bayer ’302, Bayer ’577 12–14 16 103 Bayer ’577, Zadrazil 16 Overall Outcome 2–7, 9–14, 16–23 REVERSED Appeal 2020-000325 Application 14/336,455 16 FREDMAN, Administrative Patent Judge, dissenting. I respectfully dissent from the Majority’s opinion. Claim 2 is drawn to a process of growing a mycological biopolymer material with steps of providing an object with a cavity, packing the cavity with nutritive substance and fungus, covering the object with a lid, allowing the fungus to grow mycelium and respirate carbon dioxide, having a hole in the lid to allow the diffusion of the carbon dioxide from the lidded object, and having a void space with mycelium but not with stipe, cap, or spores. I agree with the interpretation of the Majority that a mycological biopolymer is reasonably understood as being solely comprised of mycelium. I recognize the Examiner has the burden of providing reasonable proof that a claim limitation is an inherent characteristic of the prior art. In re Best, 562 F.2d 1252, 1254–55 (CCPA 1977). The Examiner meets this “burden of production by ‘adequately explain[ing] the shortcomings it perceives so that the applicant is properly notified and able to respond.’” In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (quoting Hyatt v. Dudas, 492 F.3d 1365, 1370 (Fed. Cir. 2007)). The burden of proof then shifts to the applicant “to prove that the subject matter shown to be in the prior art does not possess the characteristic relied on.” Best, 562 F.2d at 1254–55. Whether the rejection is based on “inherency” under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to Appeal 2020-000325 Application 14/336,455 17 manufacture products or to obtain and compare prior art products. Best, 562 F.2d at 1255. I disagree with the Majority’s finding that the Instructables disclosures fails to render the claims obvious. As the Majority’s fact finding shows, the Instructables reference expressly teaches all of the recitations of claim 2 other than “the mycelium of Instructables would occupy the void space in the jar” (FF1–6; Dec. supra). However, the Examiner finds that “there is nothing in the cultivation jar of Instructables that would impede the growth of the mycelium into the void space” and that Kalisz evidences that “after a certain period of time the mycelium grows into the closed growth cavity and fills all the voids” (Final Rej. 7) (emphasis omitted). Appellant contends that the “photos of step 9 of Instructables that show complete colonization of all the jars with the level of the contents well below the lids, i.e. no showing of mycelium above the level of the contents or in the lids” (Appeal Br. 13). I find this argument unpersuasive because there are photos of step 9 that clearly show a virtually complete filling of the void space with mycelium material. The image below is reproduced from step 9 of the Instructables reference: Appeal 2020-000325 Application 14/336,455 18 This image from step 9 of the Instructables reference shows white mycelium material throughout the entire jars after inspection and reasonably demonstrates that at least some mycelium inherently and necessarily grew into the void space without containing either the nutrient material, stipe, cap, or spore materials. Appellant also contends that “the photos of step 9 belie the Examiner’s position that given enough time, the mycelium would fill the void space created by the one outlet in the jar lid of Instructables” (Appeal Br. 13) (emphasis omitted). I find this argument, without evidence, unpersuasive. Appellant provides no rebuttal evidence disputing this fact or otherwise demonstrating that a composition solely composed of mycelium was not, and would not be, necessarily present in the void in the Instructables jars. “[A]ttorney argument [is] not the kind of factual evidence that is required to rebut a Appeal 2020-000325 Application 14/336,455 19 prima facie case of obviousness.” In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Appellant contends that “Instructables does not disclose growing mycelium through the lids” (Appeal Br. 14). I find this argument unpersuasive because claim 2 does not require growth of the mycelium through the lids but solely requires “allowing the mycelium to grow along said gradient to fill said void.” See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“[A]ppellant’s arguments fail from the outset because . . . they are not based on limitations appearing in the claims.”). Thus, in my view, the Examiner has reasonably provided evidence that performance of the method of Instructables would inherently result in a composition solely composed of mycelium in the void space of the jars. For these reasons, I respectfully dissent from the Majority’s obviousness analysis as to the Instructables and Kalisz rejection.