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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 May 2026 has been entered.
DETAILED ACTION
Applicant’s amendment filed on 05 May 2026 is entered. Claims 1, 8-9, 14, and 16-17 are amended, claims 2 and 7 are cancelled, and claim 23 is new. Claims 1, 3-5, 8-9, and 11-23 are pending. Claims 21-22 remain withdrawn as being drawn to an unelected invention.
The amended claims filed on 04 May 2026 are improper because claims 6 and 10, which were previously canceled in Applicant’s amendment filed 29 October 2024, are now listed with the identifiers “Previously Presented” and “Currently Amended”, respectively. Reinstatement of a previously canceled claim may only be done by adding the previously canceled claim as a “new” claim with a new claim number. As such, claims 6 and 10 are considered canceled commensurate with the amendment filed 29 October 2024, and will not be considered on the merits.
37 CFR 1.121(c) states:
(c) Claims. Amendments to a claim must be made by rewriting the entire claim with all changes (e.g., additions and deletions) as indicated in this subsection, except when the claim is being canceled. Each amendment document that includes a change to an existing claim, cancellation of an existing claim or addition of a new claim, must include a complete listing of all claims ever presented, including the text of all pending and withdrawn claims, in the application. The claim listing, including the text of the claims, in the amendment document will serve to replace all prior versions of the claims, in the application. In the claim listing, the status of every claim must be indicated after its claim number by using one of the following identifiers in a parenthetical expression: (Original), (Currently amended), (Canceled), (Withdrawn), (Previously presented), (New), and (Not entered).
(1) Claim listing. All of the claims presented in a claim listing shall be presented in ascending numerical order. Consecutive claims having the same status of “canceled” or “not entered” may be aggregated into one statement (e.g., Claims 1–5 (canceled)). The claim listing shall commence on a separate sheet of the amendment document and the sheet(s) that contain the text of any part of the claims shall not contain any other part of the amendment.
(2) When claim text with markings is required. All claims being currently amended in an amendment paper shall be presented in the claim listing, indicate a status of “currently amended,” and be submitted with markings to indicate the changes that have been made relative to the immediate prior version of the claims. The text of any added subject matter must be shown by underlining the added text. The text of any deleted matter must be shown by strike-through except that double brackets placed before and after the deleted characters may be used to show deletion of five or fewer consecutive characters. The text of any deleted subject matter must be shown by being placed within double brackets if strike-through cannot be easily perceived. Only claims having the status of “currently amended,” or “withdrawn” if also being amended, shall include markings. If a withdrawn claim is currently amended, its status in the claim listing may be identified as “withdrawn—currently amended.”
(3) When claim text in clean version is required. The text of all pending claims not being currently amended shall be presented in the claim listing in clean version, i.e., without any markings in the presentation of text. The presentation of a clean version of any claim having the status of “original,” “withdrawn” or “previously presented” will constitute an assertion that it has not been changed relative to the immediate prior version, except to omit markings that may have been present in the immediate prior version of the claims of the status of “withdrawn” or “previously presented.” Any claim added by amendment must be indicated with the status of “new” and presented in clean version, i.e., without any underlining.
(4) When claim text shall not be presented; canceling a claim.
(i) No claim text shall be presented for any claim in the claim listing with the status of “canceled” or “not entered.”
(ii) Cancellation of a claim shall be effected by an instruction to cancel a particular claim number. Identifying the status of a claim in the claim listing as “canceled” will constitute an instruction to cancel the claim.
(5) Reinstatement of previously canceled claim. A claim which was previously canceled may be reinstated only by adding the claim as a “new” claim with a new claim number.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 02 October 2025 is being considered by the examiner.
Claim Objections
Claim 4 is objected to because of the following informalities: the claim contains two commas on line 1, so one of those commas should be deleted. Appropriate correction is required.
Claim Rejections - 35 USC § 112
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, 3-5, 8-9, 11-20, and 23 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.
Claim 1 recites a probiotic-coated fertilized egg. The claims do not limit the fertilized egg to be from any particular animal, so the broadest reasonable interpretation of the claimed fertilized egg is any fertilized egg produced by any animal, for example fertilized eggs from reptiles, amphibians, animals or insects, etc.
The specification has only reduced to practice coating a fertilized poultry egg with probiotics, (Specification Examples 6-7 [48]-[49]), but does not adequately describe any other type of fertilized egg, much less a representative number of species of eggs within the recited genus of fertilized eggs.
The state of art is also limited to probiotic-coated fertilized poultry eggs, as can be seen in Amalaradjou et al. (US 20200022339 A1, published 23 January 2020), which teaches a probiotic composition that is sprayed onto the surface of a fertilized poultry egg (Amalaradjou claims 1 and 4). Zhu et al. (Lactobacillus mucosae isolated from eggshell surfaces improves egg quality and extends egg shelf life, International Journal of Food Microbiology 442 (2025) 111362) also teaches coating poultry eggshells with probiotic bacteria (Zhu Abstract and pg. 3 sec. 2.7). The art lacks sufficient description of probiotic coated fertilized eggs from other organisms besides poultry.
Without adequate written description, one of ordinary skill in the art cannot predictably envision all other species encompassed by the genus of fertilized eggs, so one of ordinary skill in the art would not recognize that Applicant had possession of the claimed invention at the time of filing.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 3-5, 8-9, 11-20, and 23 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural product without significantly more.
The claims are directed to the statutory category of a composition of matter, and recite an egg comprising a coating comprising a probiotic mixture comprising a shell probiotic, a traversing probiotic, and a gastric-juice resistant probiotic, where the probiotic mixture is selected from a group consisting of: L. casei, L. rhamnosus, L. plantarum, L. paracasei, Bifidobacterium, Bacillus subtilis, or Bacillus lichenformis, and combinations thereof. Claims 1 and 8-9 also recite that the probiotic coated egg further comprises prebiotics, claim 11 recites that the probiotic coated egg further comprises a pH modifier, and claims 12-13 recite that the probiotic coated egg further comprises a co-factor such as vitamins. Eggs are biological products derived from nature, such as from chickens. Probiotics are microorganisms derived from nature. The broadest reasonable interpretation of the term prebiotics includes compounds that are naturally occurring or naturally produced, such as oligosaccharides and plant fibers. The broadest reasonable interpretation of the term “pH modifier” includes such compounds as citric acid, acetic acid, glutamic acid, and salts thereof, which are also naturally produced compounds. The broadest reasonable interpretation of the term “co-factor” includes such compounds as vitamins and divalent cations, which are also naturally produced compounds.
Each of these natural components (eggs, probiotics, prebiotics, pH modifiers, and co-factors) also occur together within nature. Eggs harbor probiotic bacteria on the egg shell surface, and many of those probiotics (including species of Lactobacillus) are capable of traversing the eggshell and enter the egg white and intestinal tracts of embryos of developing chicks, as evidenced by Lee et al. Fig. 4 (Characterization of microbial communities in the chicken oviduct and the origin of chicken embryo gut microbiota, Scientific Reports volume 9, Article number: 6838 (2019)). Probiotics naturally digest natural prebiotic compounds as evidenced by Singh et al. Abstract and Pg. 20 para. 2 (Prebiotic potential of oligosaccharides: A focus on xylan derived oligosaccharides, Bioactive Carbohydrates and Dietary Fibre, 5 (2015), 19–30). Natural pH modifiers such as citric acid are intermediates of the Citric Acid Cycle in the metabolisms of probiotic bacteria, and probiotics de novo synthesize co-factors such as vitamins as evidenced by Gu et al. Abstract (Biosynthesis of Vitamins by Probiotic Bacteria, Probiotics and Prebiotics in Human Nutrition and Health, http://dx.doi.org/10.5772/63117, Pg. 135-148, 2016). The instant composition as claimed does not exhibit any markedly different characteristics from its closest natural counterpart because the instant composition itself is present together in nature, such as a natural chicken egg coated with probiotics derived from the mother hen, and the natural counterpart has the same capabilities as the instant composition, namely that the probiotics coated onto the egg which are derived from the mother hen are capable of translocating into the egg white and embryonic gastrointestinal tract. Accordingly, the instant claims recite a composition of matter that is directed to a natural phenomenon without significantly more because each of the structural components within the composition are naturally occurring or otherwise products of nature, and the instant composition does not exhibit markedly different characteristics as compared its natural counterpart.
This judicial exception is not integrated into a practical application because the instant claims are drawn to a composition of matter that do not recite any practical applications of the claimed composition. Examiner also notes that the instant claims recite many functional limitations; however, these functional limitations amount to desired functions and effects of the claimed invention and its components, and do not contribute any additional structural limitations to the present invention. As such, those functional limitations do not attribute any practical applications to the claimed invention.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, as presently claimed, the instant claims do not require any non-natural compounds to be present within or on the probiotic coated egg. The instant invention therefore lacks any additional elements that would be sufficiently to amount to significantly more than the judicial exception.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
Claims 1, 3-5, 8-9, and 11-20 are rejected under 35 U.S.C. 103 as being unpatentable over Amalaradjou et al. (US 20200022339 A1, published 23 January 2020) in view of Singh et al. (Prebiotic potential of oligosaccharides: A focus on xylan derived oligosaccharides, Bioactive Carbohydrates and Dietary Fibre, 5 (2015), 19–30), and as evidenced by Gu et al. (Biosynthesis of Vitamins by Probiotic Bacteria, Probiotics and Prebiotics in Human Nutrition and Health, http://dx.doi.org/10.5772/63117, Pg. 135-148, 2016).
Regarding the functional limitations of claims 1, 3-5, and 17-18, instant claim 1 recites the following functional limitations: “a shell probiotic that is capable of surviving on an exterior surface”, “a traversing probiotic that is capable of traversing the eggshell and impregnating an egg white and/or egg yolk”, “the probiotic eggwash is configured to be depositable onto the exterior surface of the eggshell”, and “the probiotic egg wash is ingestible by a developing embryo”. Instant claim 3 recites the functional limitation “[the] gastric-juice resistant probiotic is capable of forming a biofilm in a GI tract of the developing embryo”. Instant claim 4 recites the functional limitation “[the] shell probiotic is capable of surviving up to 21 days on the exterior surface of the eggshell”. Instant claim 5 recites the functional limitation “[the] two different species of shell probiotic each capable of surviving up to 21 days on the exterior surface of the eggshell”. Instant claim 17 recites the functional limitation “[the] two different species of shell probiotic each capable of surviving up to 21 days on the exterior surface of the eggshell”. Instant claim 18 recites the functional limitation “[a] gastric-juice resistant probiotic capable of forming a biofilm in a GI environment of the developing embryo”. The functional limitations within claims 1, 3-5, and 17-18 recite desired functions or effects of the probiotics, and do not recite specific structural limitations to the claimed composition, and therefore those functional limitations are not limiting to the structure of the claimed composition. As such, where the prior art teaches the same structural elements and components of the probiotic coated egg of the instant claims, the functional limitations of the claims are considered obvious.
Regarding the structural limitations of claims 1, 3-5, and 8-9, Amalaradjou teaches a probiotic composition that is sprayed onto the surface of a fertilized egg and thus teaches a probiotic coated egg (Amalaradjou claims 1 and 4). Suitable probiotics in the composition include the genera Lactobacillus, Bifidobacterium, and Bacillus (Amalaradjou claim 7), including the species L. casei, L. paracasei, and L. rhamnosus, and Bacillus subtilis, and that each of these probiotic bacteria can be used in combination, i.e. the probiotic mixture includes at least two different species of shell probiotic (Amalaradjou [0050]).
Amalaradjou does not teach prebiotics in their probiotic composition.
Singh teaches inulin, xylo-oligosaccharides, and fructo-oligosaccharides and their use as a prebiotic, which can selectively stimulate probiotic and microbiota growth (Singh Abstract and Pg. 20 para. 2).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have added prebiotics, such as xylo-oligosaccharides, fructo-oligosaccharides, galacto-oligosaccharides, and inulin to the probiotic composition of Amalaradjou. One of ordinary skill in the art would have been motivated to do so in order to stimulate the growth of the probiotics within the probiotic coated egg formulation of Amalaradjou. One of ordinary skill in the art would have had reasonable expectations of success because Singh taught several different prebiotic compounds that had the advantageous effect of stimulating the growth of probiotic microorganisms and other microbiota organisms.
Regarding claims 11 and 16, Amalaradjou also teaches that the sprayed probiotic composition also comprises phosphate buffer saline (PBS) which contains salts of phosphoric acid, thus comprises a pH modifier commensurate in scope with instant claim 11 (Amalaradjou [0057]).
Regarding the limitations of claims 12-13 and 16, Amalaradjou does not explicitly teach its probiotic composition to further comprise a co-factor.
However, probiotic commensal bacteria of the gut, specifically Lactobacillus and Bifidobacterium, were known in the art to be able to de novo synthesize enzymatic co-factor vitamins, such as vitamin K and water-soluble B vitamins, as evidenced by Gu (Gu Abstract). Therefore, a probiotic composition that comprises Lactobacillus and Bifidobacterium species, such as the composition taught by Amalaradjou, would necessarily also further comprise enzymatic co-factors such as vitamin K and water-soluble B vitamins because Lactobacillus and Bifidobacterium were known in the art to be capable of de novo synthesizing such co-factors.
Regarding claims 14-15 and 19-20, Amalaradjou also teaches that eggs are sprayed with approximately 9 log CFU/egg of probiotic, which is equal to approximately 109 CFU/egg (Amalaradjou [0137]).
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Amalaradjou and Singh as applied to claims 1, 3-5, 8-9, and 11-20 above, and further in view of Lei et al. (Influence of dietary inclusion of Bacillus licheniformis on laying performance, egg quality, antioxidant enzyme activities, and intestinal barrier function of laying hens, 2013 Poultry Science 92 :2389–2395, http://dx.doi.org/ 10.3382/ps.2012-02686).
Amalaradjou and Singh teach the probiotic egg wash composition comprises Bacillus subtilis, but they do not teach the composition comprises Bacillus lichenformis.
Lei teaches that supplementation of Bacillus lichenformis to egg laying chickens significantly increases egg production, mass, and shell thickness (Lei Abstract).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to add Lei’s probiotic Bacillus lichenformis into the Amalaradjou and Singh’s probiotic egg wash composition. One of ordinary skill in the art would have been motivated to do so with a reasonable expectation of success because incorporating Lei’s Bacillus lichenformis into Amalaradjou and Singh’s probiotic egg wash would significantly increase egg production, mass, and shell thickness of the produced eggs. Lei teaches that probiotic Bacillus lichenformis is a well-known probiotic relevant to the field of improving egg production, mass, and shell thickness, and Amalaradjou teaches that their composition may comprise additional Bacillus species, including Lei’s Bacillus lichenformis species.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Instant claims 1, 3-5, 8-9, 11-20, and 23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over conflicting claims 1-5, 8-9, 11-12, and 14-16 of copending Application No. 18/425,063. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are prima facie obvious in view of the conflicting claims.
The conflicting claims recite a probiotic eggwash comprising a probiotic mixture comprising a species of shell probiotic and a species of traversing probiotic, wherein said probiotic mixture is selected from a group consisting of: Lactobacillus acidophilus, Lactobacillus casei, Lactobacillus rhamnosus, Lactobacillus plantarum, Lactobacillus paracasei, Bifidobacterium lactis, Bacillus subtilis, Bacillus licheniformis, Bacillus amyloliquefaciens, Bacillus coagulans, Bacillus lentus, or Bacillus pumilus and combinations thereof (conflicting claim 1 and 4). The conflicting claims also recite that the concentration of probiotic eggwash is 101 to 1015 CFU/egg (conflicting claim 5). The conflicting claims also recite that the composition further comprises a gastric-juice resistant probiotic (conflicting claims 2-3), a prebiotic selected from plant-based oils, corn bran, xylo-oligosaccharides, fructo-oligosaccharides, galacto-oligosaccharides, arabinoxylan, xylose, sugarcane bagasse, xylan, pullulan, gentiobiose, polydextrose, tributyrin, glyceryl tributyrate, 1,2,3-tributyrylglycerol, lactitol, and combinations thereof, and wherein the prebiotic is a precursor material (conflicting claims 8-9 and 11), a pH modifier selected from a group consisting of: citrate and salts thereof, acetate and salts thereof, fumaric acid and salts thereof, glutamic acid and salts thereof, phosphoric acid and salts thereof, magnesium sulfate, and manganese sulfate, and mixtures thereof (conflicting claim 12), and a co-factor selected from fat soluble vitamins, water soluble vitamins, divalent cations, and mixtures thereof, and menadione nicotinamide, menadione, nicotinamide, synthetic vitamin K, vitamin K3, vitamin B3, niacin, riboflavin, lactoflavin, vitamin B2, vitamin G, ascorbic acid, vitamin C, L-threoascorbic acid, antiscorbutic factor, and combinations thereof (conflicting claims 14-16).
The instant claims do not specifically recite a probiotic coated egg. However, it would have been prima facie obvious to one of ordinary skill in the art in light of the conflicting claims to have applied the probiotic eggwash of the conflicting claims onto an egg, thereby creating a probiotic coated egg. One of ordinary skill in the art would have been motivated to do so because the conflicting claims recite the advantageous effect of establishing a GI tract microbiome within an embryo of an egg that outcompetes pathogens (conflicting claim 1). One of ordinary skill in the art would have had reasonable expectations of success because the conflicting claims recite that the probiotic eggwash can be deposited onto the exterior surface of an eggshell and then ingested by the developing embryo within the eggs such that the advantageous effects of establishing a GI tract microbiome in the embryo are be conferred upon the developing embryo within the egg (conflicting claim 1).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 04 May 2026 have been fully considered but they are not persuasive.
Regarding Applicant’s arguments that the prior art indicates that vertical transmission from the hen via the egg results in aberrant colonization of the chick, but the instant invention overcomes that limitation as described by Applicant’s data and figures of microbiota and immunological analyses, and that the chicks, upon hatch, are distinctly different from wild-type chicks, thus the claims are not simply focused on a combination of natural products (Remarks pgs. 11-18), the claims are directed to a probiotic coated egg, not an eggwash or hatched chicks from said eggs. Applicant’s arguments and presented data show data that hatched chicks from eggs coated with Applicant’s “F65” egg wash have altered microbiota (Argument figs. 1-3 pgs. 11-14), have altered cytokine expression on day of hatch (Argument fig. 4 pg. 14-15), and have altered innate immune cell prevalence (Argument fig. 5 pg. 15-16), and have higher flock survivability (Argument figs. 6-7 pg. 16-18) when compared to the control groups. Since the claims are not directed to the F65 eggwash or hatched chicks, Applicant’s arguments that these data support Applicant’s assertion that the instant invention is not naturally occurring is not convincing.
Regarding Applicant’s arguments that the claims are now directed to a fertilized egg, which results in a hatched chick upon hatching, so for purposes of evaluating whether the hatched chick will have the microbiota as specified, a hatched chick by necessity comes from a fertilized egg, and evidence shows that when the composition is applied to a fertilized egg, the resulting hatched chick has an improved microbiota (Remarks pg. 20 para. 1-3), the claims are directed to a probiotic coated fertilized egg, not a hatched chick. While it can be appreciated that a chick can hatch from said egg, the chick is not what is claimed. An egg and a chick are not the same thing.
Regarding Applicant’s arguments that their newly submitted data showing the efficacy of the F65 eggwash is commensurate in scope with the claims and/or the effectiveness of the full scope of the claims can now be reasonably extrapolated from the formulation (Remarks pg. 20 paras. 4-6, F65 eggwash data in Remarks figs. 1-7), the claims are directed towards a probiotic coated fertilized egg, not the F65 eggwash.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Alexander M Duryee whose telephone number is (571)272-9377. The examiner can normally be reached Monday - Friday 9:00 am - 5:00 pm.
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/Alexander M Duryee/Examiner, Art Unit 1657 /LOUISE W HUMPHREY/Supervisory Patent Examiner, Art Unit 1657
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