DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 16 January 2026 is acknowledged.
Applicant has overcome the following by virtue of amendment of the claims: (1) the objection to claim 4 has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-2, 4, 8, 10, 13, 16-18, 20, 22, 24-26, 28, 30, 35-36, 39-40, and 42
Withdrawn claims: 24-26, 28, 30, 35-36, and 39-40
Previously canceled claims: 3, 5-7, 9, 11-12, 14-15, 19, 21, 23, 27, 29, 31-34, 37-38 and 41
Newly canceled claims: None
Amended claims: 4
New claims: 42
Claims currently under consideration: 1-2, 4, 8, 10, 13, 16-18, 20, 22, and 42
Currently rejected claims: 1-2, 4, 8, 10, 13, 16-18, 20, 22, and 42
Allowed claims: None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 4, 8, 10, 13, 16-18, 20, 22, and 42 are rejected under 35 U.S.C. 103 as being unpatentable over Salmons et al. (US 2016/0298077 A1) in view of Das (US 4,138,498 A, cited on the IDS filed on 29 July 2022), and as evidenced by Guenzburg et al. (US 2014/0023693 A1).
Regarding claim 1, Salmons teaches a capsule comprising one or more strains of obligate anaerobic bacteria (e.g., Bifidobacterium infantis longum ([0107])). As indicated in Applicant’s Remarks (pp. 9-10) filed on 26 June 2025, Bifidobacterium infantis longum is recognized in the art as a moderate obligate anaerobe, and not a strict obligate anaerobe as claimed. Nonetheless, Salmons teaches a capsule comprising a strain of obligate anaerobic bacteria.
wherein the capsule has a porous wall comprising surface pores with a molecular weight cut off between 50 and 200 kDa – “In typical embodiments of the invention, the cells have been encapsulated in a microcapsule having a porous capsule wall.” ([0053]). Salmons further discloses that 24 kDa poly[dimethyldiallyl-ammonium chloride (pDADMAC) was used to prepare the capsules ([0090], [0108]). As evidenced by Guenzburg, capsules produced with pDADMAC of about 20 kDa have pores of at least 80 kDa up to 150 kDa ([0051]).
wherein the porous wall comprises a complex formed from sodium cellulose sulphate and poly[dimethyldiallyl-ammonium chloride] ([0057], [0090], [0108]).
Salmons does not teach that the one or more strains of obligate anaerobic bacteria are strict anaerobic bacteria. Salmons is silent regarding the encapsulated bacteria having improved stability in the presence of oxygen relative to a corresponding one or more strains of the bacteria not encapsulated in the capsule.
However, Das teaches that administration to a ruminant of a lactic-acid-utilizing strain of bacteria can alleviate or prevent the gastrointestinal upset and acidosis normally encountered when the animal is transferred to a high-energy diet from a normal pasture diet (col. 1, lines 57-61). Das teaches a composition for administration to ruminants to alleviate the symptoms of acidosis comprising a lactic-acid-utilizing bacterial culture and a carrier (col. 1, lines 62-65). Das further teaches that Megasphaera elsdenii has an unexpectedly large capacity to ferment lactic acid to form volatile fatty acids, and are able to ferment substantially all lactic acid from lactic acid producers such that there is not an accumulation of lactic acid, and hence, acidosis (col. 2, lines 15-27). Das teaches administering Megasphaera elsdenii to ruminants as a feed additive to standard feeds in several forms, including as broth, broth equivalent, paste, or lyophilized cells, and the microorganisms can be encapsulated prior to addition to the feed additive (col. 8, lines 8-17). As provided by the instant specification, Megasphaera elsdenii meets Applicant’s definition of strict obligate anaerobic bacteria (p. 20, lines 20-28).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the capsule of Salmons with the teachings of Das to encapsulate Megasphaera elsdenii in the sodium cellulose phosphate (NaCS)-pDADMAC capsules. First, Salmons teaches that obligate anaerobic bacteria such as Bifidobacterium infantis longum can successfully be encapsulated in NaCS-pDADMAC capsules under anaerobic conditions ([0107]) and that viability can be preserved by freeze drying ([0111]). Salmons also teaches that the encapsulated cells of the invention may be used to treat forms of suffering from an unbalanced bacterial population in the intestine (i.e., gastrointestinal disorders) by administering encapsulated cells of the invention to a subject including farm animals such as sheep, cows (i.e., ruminants) ([0066]). Das teaches that administering Megasphaera elsdenii to ruminants as a feed additive can alleviate or prevent acidosis caused by excessive lactic acid production, and that the Megasphaera elsdenii can be encapsulated. Therefore, one of ordinary skill in the art would have been motivated to encapsulate other obligate anaerobic bacteria following the teachings of Salmons, including Megasphaera elsdenii, as taught by Das, to treat different types of digestive disorders. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Das teaches that Megasphaera elsdenii can be administered in capsules to ruminant animals to prevent or treat lactic acidosis (i.e., a gastrointestinal disorder) (col. 1, lines 57-65, col 8, lines 8-17).
Regarding the claim language, “wherein the one or more strains of strict obligate anaerobic bacteria encapsulated in the capsule have improved stability in the presence of oxygen relative to a corresponding one or more strains of the bacteria not encapsulated in the capsule”, MPEP § 2111.04(I) states, “Claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure.” In the present case, the claim language in question does not limit the claimed structure of a capsule comprising one or more strains of strict obligate anaerobic bacteria, wherein the capsule has a porous wall comprising surface pores with a molecular weight cut off between 50 and 200 kDa, wherein the porous wall comprises a complex formed from sodium cellulose sulphate and poly[dimethyldiallyl-ammonium chloride]. Rather, the claim language in question describes the recognition of a latent property of the composition.
Applicant’s assertion of unexpected results in the specification that encapsulation of strict obligate anaerobic bacteria in a porous microcapsule improves stability of viable bacteria in the presence of oxygen relative to corresponding bacterial cultures which are not encapsulated is acknowledged (p. 3, line 35 – p. 4, line 13). However, as provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”, and “‘[t]he fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.’ Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)”.
Since the cited prior art teaches all structural characteristics of the claimed capsule, and the claim language in question is merely directed toward another advantage which would flow naturally from following the suggestion of the prior art, claim 1 is rendered obvious.
Regarding claim 2, Salmons and Das teach the capsule of claim 1.
Salmons also teaches that the capsule is freeze-dried – “[T]he viability of the encapsulated Bifidobacterium infantis bacteria was checked before freeze drying and after freeze drying ([0111]).
Claim 2 is therefore rendered obvious.
Regarding claim 4, Salmons and Das teach the capsule of claim 1.
Salmons does not teach that at least one of the strains of strict obligate anaerobic bacteria is: i) a lactic acid-utilising bacteria (LUB) or a starch-utilising bacteria; ii) from a genus selected from Megasphaera and/or Ruminococcus; and/or iii) Megasphaera elsdenii or Ruminococcus bromii.
However, Das teaches that administration to a ruminant of a lactic-acid-utilizing strain of bacteria can alleviate or prevent the gastrointestinal upset and acidosis normally encountered when the animal is transferred to a high-energy diet from a normal pasture diet (col. 1, lines 57-61). Das teaches a composition for administration to ruminants to alleviate the symptoms of acidosis comprising a lactic-acid-utilizing bacterial culture and a carrier (col. 1, lines 62-65). Das further teaches that Megasphaera elsdenii has an unexpectedly large capacity to ferment lactic acid to form volatile fatty acids, and are able to ferment substantially all lactic acid from lactic acid producers such that there is not an accumulation of lactic acid, and hence, acidosis (col. 2, lines 15-27). Das teaches administering Megasphaera elsdenii to ruminants as a feed additive to standard feeds in several forms, including as broth, broth equivalent, paste, or lyophilized cells, and the microorganisms can be encapsulated prior to addition to the feed additive (col. 8, lines 8-17). As provided by the instant specification, Megasphaera elsdenii meets Applicant’s definition of strict obligate anaerobic bacteria (p. 20, lines 20-28). Therefore, Das teaches that at least one of the strains of strict obligate anaerobic bacteria is i) a lactic acid-utilizing bacteria; ii) from a genus selected from Megasphaera; and iii) Megasphaera elsdenii.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to encapsulate Megasphaera elsdenii following the teachings of Salmons with the same motivation and with the same expectation of success as described regarding claim 1 above.
Claim 4 is therefore rendered obvious.
Regarding claim 8, Salmons and Das teach the capsule of claim 1.
Salmons does not teach that the capsule comprises Megasphaera elsdenii and Ruminococcus bromii and/or that the capsule does not comprise bacteria from a genus selected from the group consisting of: Bifidobacterium, Bacteroides, Fusobacterium, Propionibacterium, Enterococcus, Lactococcus, Peptostrepococcus, Pediococcus, Leuconostoc, Weissella, Geobacillus, and Lactobacillus.
However, Das teaches that administration to a ruminant of a lactic-acid-utilizing strain of bacteria can alleviate or prevent the gastrointestinal upset and acidosis normally encountered when the animal is transferred to a high-energy diet from a normal pasture diet (col. 1, lines 57-61). Das teaches a composition for administration to ruminants to alleviate the symptoms of acidosis comprising a lactic-acid-utilizing bacterial culture and a carrier (col. 1, lines 62-65). Das further teaches that Megasphaera elsdenii has an unexpectedly large capacity to ferment lactic acid to form volatile fatty acids, and are able to ferment substantially all lactic acid from lactic acid producers such that there is not an accumulation of lactic acid, and hence, acidosis (col. 2, lines 15-27). Das teaches administering Megasphaera elsdenii to ruminants as a feed additive to standard feeds in several forms, including as broth, broth equivalent, paste, or lyophilized cells, and the microorganisms can be encapsulated prior to addition to the feed additive (col. 8, lines 8-17). As provided by the instant specification, Megasphaera elsdenii meets Applicant’s definition of strict obligate anaerobic bacteria (p. 20, lines 20-28). Therefore, Das teaches that at least one of the strains of strict obligate anaerobic bacteria is i) a lactic acid-utilizing bacteria; ii) from a genus selected from Megasphaera; and iii) Megasphaera elsdenii.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to encapsulate Megasphaera elsdenii rather than Bifidobacterium infantis longum, following the teachings of Salmons with the same motivation and with the same expectation of success as described regarding claim 1 above. In this way, the capsule does not comprise bacteria from a genus selected from the group consisting of: Bifidobacterium, Bacteroides, Fusobacterium, Propionibacterium, Enterococcus, Lactococcus, Peptostrepococcus, Pediococcus, Leuconostoc, Weissella, Geobacillus, and Lactobacillus, as claimed.
Claim 8 is therefore rendered obvious.
Regarding claim 10, Salmons and Das teach the capsule of claim 1.
Salmons also teaches the capsule wherein: ii) the bacteria are suspended in the log phase of growth within the capsule – “Typically an OD600 reading of 1 corresponds to when the bacteria are in the exponential [i.e., log] growth phase.” ([0089]). For the encapsulation of the bacteria, 100 µl of a material culture with an OD600 reading of 1 was mixed with the encapsulation reagents ([0090], [0108]).
Claim 10 is therefore rendered obvious.
Regarding claim 13, Salmons and Das teach the capsule of claim 10.
Salmons does not teach that:
i) the porous capsule contains at least about 0.4 x 105 CFU of the strict obligate anaerobic bacteria one month after encapsulation following storage under anaerobic conditions at ambient temperature; or
ii) the porous capsule contains at least about 0.4 x 105 CFU of the strict obligate anaerobic bacteria three months after encapsulation following storage under anaerobic conditions at ambient temperature; or
iii) the porous capsule contains at least about 0.2 x 105 CFU of the strict obligate anaerobic bacteria eight months after encapsulation following storage under anaerobic conditions at ambient temperature.
However, MPEP § 2112(I) states, “[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” The claimed amounts of CFU/capsule after a period of one, three, or eight months represents the “discovery” of a property in a known composition, and is therefore not patentable. The patentable subject matter of claim 13 is therefore the subject matter of claim 10.
Therefore, where claim 10 is rendered obvious, so too is claim 13.
Regarding claim 16, Salmons and Das teach the capsule of claim 13 as described above. Salmons also discloses that the capsule may be stored under ambient conditions for up to 2 months (Figure 10, [0032], [0088]). Ambient temperature is broadly accepted to mean room temperature, or about 25°C. Therefore, Salmons also makes obvious storage of the capsule at an ambient temperature of up to about 35°C due to overlapping ranges. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Claim 16 is therefore rendered obvious.
Regarding claims 17, Salmons and Das teach the capsule of claim 1.
Salmons also teaches a composition comprising one or more capsules of claim 1 – “In a third aspect, the disclosure provides a composition comprising a suitable carrier and an encapsulated cell that is obtained by a method of freeze-drying encapsulated cells as described here.” ([0012]).
Claim 17 is therefore rendered obvious.
Regarding claim 18, Salmons and Das teach the composition of claim 17
Salmons also teaches that: ii) the composition is an animal feed additive – “In exemplary embodiments the composition can, for example be a food supplement for humans or animals…” ([0012]).
Claim 18 is therefore rendered obvious.
Regarding claim 20, Salmons and Das teach the composition of claim 18.
Salmons also teaches that the composition is provided in a dry form or a liquid form – “In exemplary embodiments of the invention, when used as food additive, the food can be a milk-based product such as yoghurt, cottage cheese, or butter milk [i.e., liquid form]. In other exemplary embodiments of the invention, when used as food additive, a freeze-dried encapsulated cell or the composition containing a freeze-dried encapsulated cell as disclosed herein as is stored in a separate compartment of a food package containing the food [i.e., dry form].” ([0015]).
Claim 20 is therefore rendered obvious.
Regarding claim 22 Salmons and Das teaches the composition of claim 17.
Salmons does not specifically teach that said composition is provided in a dosage form comprising at least about 1 x 106 CFU of at least one of the strains of strict obligate anaerobic bacteria.
Salmons discloses that the for the encapsulation of the bacteria, 100 µl of a material culture with an OD600 reading of 1 was mixed with the encapsulation reagents ([0090], [0108]). One of ordinary skill in the art would have known that an OD600 reading of 1 equates to approximately 1 x 108 CFU/ml. 100 µl of such bacteria equates to approximately 1 x 107 CFU in the encapsulated cell preparation. Salmons further discloses that, “the invention is also directed to various pharmaceutical or nutraceutical uses…For such uses, encapsulated cells of the invention or a composition containing such encapsulated cells are administered to a subject, usually a mammal such as human or a domestic animal or a farm animal…” ([0066]).
Salmons does not specify an amount of CFU for a dosage form.
However, Das teaches preparing capsules from a microbial cell paste, and administering the capsules to animals via a bolus gun, wherein each capsule contains from about 106 to 1012 microorganisms. Therefore, Das teaches a dosage form comprising at least 1 x 106 CFU.
It would have been obvious to further modify the teachings of Salmons with the teachings of Das to provide the capsules in a composition comprising a dosage form of about 106 to 1012 microorganisms. One of ordinary skill in the art would have been motivated to consult Das to determine a suitable amount of CFUs to administer to a subject. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Das teaches a dosage form comprising 106 to 1012 microorganisms. Furthermore, it would have been obvious for one of ordinary skill in the art to optimize the number of CFUs within the disclosed range of microorganisms by routine experimentation such that the desired effect of administering the composition was achieved. See MPEP § 2144.05(II)(A).
Claim 22 is therefore rendered obvious.
Regarding claim 42, Salmons and Das teach the capsule of claim 1.
Salmons does not teach that at least one of the strains of strict obligate anaerobic bacteria loses viability in the presence of >0.5% oxygen compared to viability of the bacteria in the presence of <0.5% oxygen.
However, Das teaches that administration to a ruminant of a lactic-acid-utilizing strain of bacteria can alleviate or prevent the gastrointestinal upset and acidosis normally encountered when the animal is transferred to a high-energy diet from a normal pasture diet (col. 1, lines 57-61). Das teaches a composition for administration to ruminants to alleviate the symptoms of acidosis comprising a lactic-acid-utilizing bacterial culture and a carrier (col. 1, lines 62-65). Das further teaches that Megasphaera elsdenii has an unexpectedly large capacity to ferment lactic acid to form volatile fatty acids, and are able to ferment substantially all lactic acid from lactic acid producers such that there is not an accumulation of lactic acid, and hence, acidosis (col. 2, lines 15-27). Das teaches administering Megasphaera elsdenii to ruminants as a feed additive to standard feeds in several forms, including as broth, broth equivalent, paste, or lyophilized cells, and the microorganisms can be encapsulated prior to addition to the feed additive (col. 8, lines 8-17). As provided by the instant specification, Megasphaera elsdenii meets Applicant’s definition of strict obligate anaerobic bacteria (p. 20, lines 20-28). As evidenced by the instant specification, “‘strict obligate anaerobes”…will not survive if there is > 0.5% oxygen in the environment’ (p. 20, lines 4-8).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to encapsulate Megasphaera elsdenii following the teachings of Salmons with the same motivation and with the same expectation of success as described regarding claim 1 above. The modification of Salmons with the teachings of Das to encapsulate Megasphaera elsdenii necessarily results in the capsule of claim 1 wherein at least one of the strains of strict obligate anaerobic bacteria loses viability in the presence of >0.5% oxygen compared to viability of the bacteria in the presence of <0.5% oxygen as claimed.
Therefore, where claim 1 is obvious, it necessarily flows that claim 42 is also obvious.
Response to Arguments
Claim Objections:
Applicant has overcome the objection to claim 4 by amendment. Accordingly, the objections have been withdrawn.
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 16 January 2026 have been fully considered, but they are not persuasive.
Applicant first argued that the Office has not addressed the fundamental differences in oxygen tolerance of strict obligate anaerobes and moderate anaerobes – in view of the teachings of Salmons and Guenzberg, the skilled person would have appreciated that the capsule formed from pDADMAC has pores allowing diffusion of small molecules including O2, CO2, and H2O into the capsule microenvironment, and that oxygen entering the capsule would compromise the viability of a strict obligate anaerobe, such as M. elsdenii, thereby negating any advantages conferred to the ruminant as a probiotic (p. 9, ¶ 3). Applicant argued that a person skilled in the art would a have recognized that the oxygen tolerance differences between moderate obligate anaerobes and strict obligate anaerobes directly affect bacterial viability under aerobic conditions (pp. 9-10, bridging ¶). Applicant further argued that Das teaches away from oxygen exposure when encapsulating strict obligate anaerobes such as M. elsdenii, stating “…microorganisms can be encapsulated using techniques to minimize processing exposure to oxygen and coating materials which are minimally permeable to oxygen…” (p. 10, ¶). Applicant argued that Das teaches towards the use of other microencapsulation techniques for formulating strict obligate anaerobes, and that a person skilled in the art armed with Das would have considered the capsules of Salmons unsuitable for encapsulating M. elsdenii (pp. 10 – 11, bridging ¶). Applicant argued that accordingly, there would have been no motivation to combine the teachings of Salmons and Das to arrive at the presently claimed capsule, and there would have been no reasonable expectation that a capsule formed from pDADMAC would maintain the viability of a strict obligate anaerobe (Id.).
Applicant’s arguments have been considered, but they are not persuasive. It is considered that one of ordinary skill in the art, recognizing that M. elsdenii is a strict obligate anaerobe, and recognizing that the capsules of Salmons would permit some amount of oxygen to pass through the pores, would take necessary precautions to minimize the amount of oxygen to which the capsules containing the M. elsdenii are exposed both during and after encapsulation. Even the encapsulated moderate obligate anaerobes of Salmons would eventually succumb to too much oxygen exposure if the capsules were left in open air. Salmons teaches that obligate anaerobic bacteria such as Bifidobacterium infantis longum can successfully be encapsulated in NaCS-pDADMAC capsules under anaerobic conditions ([0107]) and that viability can be preserved by freeze drying ([0111]). One of ordinary skill in the art would certainly take the same precautionary measures when dealing with strict obligate anaerobes such as M. elsdenii. This is in line with the teachings of Das cited by Applicant. Furthermore, Das teaches administering M. elsdenii to ruminants as a feed additive to standard feeds in several forms, including as broth, broth equivalent, paste, or lyophilized cells, and the microorganisms can be encapsulated prior to addition to the feed additive (col. 8, lines 8-17). Therefore, even in non-encapsulated forms, M. elsdenii can be added to standard feeds and still remain viable for long enough to enter the anaerobic environment of the rumen. Furthermore, it is considered that the capsules of Salmons “minimize” exposure of microorganisms to oxygen as compared to non-encapsulated microorganisms in that the capsule walls block much of the surrounding oxygen from contacting the microorganisms. No standard is given for what constitutes “minimally permeable to oxygen”. Therefore, the capsules of Salmons are deemed to be suitable for encapsulating M. elsdenii. As such, it is maintained that one of ordinary skill in the art would have been motivated to encapsulate M. elsdenii following the teachings of Salmons to treat different types of digestive disorders. MPEP § 2143.02(I) provides, “The reasonable expectation of success requirement refers to ‘the likelihood of success’ in combining or modifying prior art disclosures to meet the limitations of the claimed invention. See Elekta Ltd. v. ZAP Surgical Sys., Inc., 81 F.4th 1368, 1375, 2023 USPQ2d 1100 (Fed. Cir. 2023) and Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359, 1367, 119 USPQ2d 1171, 1176 (Fed. Cir. 2016).”. The proposed modification of Salmons with Das meets the limitations of the claimed invention as presented in the rejections hereinabove.
Applicant appears to have asserted unexpected results that Megasphera elsdenii and Ruminococcus bromii, could be encapsulated using a cellulose sulfate/pDADMAC complex under aerobic conditions and viability maintained following rehydration (See Example 7 and Tables 7 and 8 in the application as filed). The inventors also showed experimentally that viable Megasphera elsdenii and Ruminococcus bromii cells released from capsules into the rumen can be collected and grown in the batch cultures, demonstrating viability of these bacteria in the rumen following administration (See Examples 8 and 9 of application) (p. 11, ¶ 2).
Applicant’s assertion of unexpected technical results is acknowledged. Applicant’s argument has been considered, but it is not found to be persuasive. As provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”, and “‘[t]he fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.’ Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)”.
Since the cited prior art teaches all structural characteristics of the claimed capsule, and Applicant’s data are merely directed toward another advantage (viability of the so-encapsulated cells) which would flow naturally from following the suggestion of the prior art, Applicant’s data do not render the claims nonobvious. Moreover, Applicant’s examples do not appear to support that the M. elsdenii and R. bromii were encapsulated under aerobic conditions, but rather anaerobic conditions (See Examples 1 and 2 of application), and Applicant’s data regarding rehydration and collected and grown samples from the rumen appear to only support Applicant’s assertions toward M. elsdenii and not R. bromii (See Examples 8 and 9 of application).
For at least these reasons, Applicant’s arguments are not persuasive, and the rejections of the claims under 35 U.S.C. § 103 are maintained.
Conclusion
THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/Jennifer McNeil/Primary Examiner, Art Unit 1793