DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. The applicant's submission filed on 19 June 2026, has been entered.
Status of the Claims
Amendments to the Claims and Arguments/Remarks filed 19 June 2026, in response to the Office Correspondence dated 02 March 2026, are acknowledged.
The listing of Claims filed 19 June 2026, are examined. Claims 1, 29, 30, 32, 33, 35, 47, and 48 are pending. Claims 2-28, 31, 34, and 36-46 remain withdrawn from consideration. Claim 1 is amended and claim 48 is newly presented. The amendment to claim 1 and new claim 48 are supported by the originally-filed disclosure.
Information Disclosure Statement
The Information Disclosure Statement (IDS), filed 19 June 2026, is acknowledged and has been considered.
Response to Amendment
The applicant’s arguments concerning the rejection under 35 U.S.C. § 112(b) have been fully considered and are persuasive. The rejection of claims 1, 29, 30, 32, 33, 35, and 47 under 35 U.S.C. § 112(b) is withdrawn.
As amended, claim 1 no longer recites a method “of reducing the incidence of woody breast.” Claim 1 instead affirmatively recites a method of incubating a fertilized unhatched poultry egg to hatching and expressly defines the operative carbon-dioxide concentration as “6750 ppm to 22,000 ppm.” The former uncertainty arising from the expression “within 10% of 7,500 ppm to within 10% of 20,000 ppm” is therefore no longer present.
Claim 47 now expressly requires that air exchanges are conducted during incubation, the air exchanges continue independently from when carbon dioxide is fed from a source outside the egg, and the air exchanges continue independently from carbon-dioxide concentration in the gaseous atmosphere. Read in light of the claim as a whole, “continue independently” requires that operation of the air-exchange process is not initiated, stopped, or otherwise controlled as a function of either the timing of external carbon-dioxide feed or the measured carbon-dioxide concentration. The claim does not require that the volumetric air-exchange rate remain mathematically invariant at every instant, and a person of ordinary skill would understand that a process in which ventilation is suspended because carbon dioxide is being injected would not satisfy the claim.
New objections to the claims and rejections under 35 USC § 112 are detailed below. The previous rejection of claims 1, 29, 30, 32, 33, 35, and 47 under 35 U.S.C. § 103 over Danilovich in view of Everaert and El-Hanoun is withdrawn and superseded by a new rejection under 35 U.S.C. § 103 of claim 1 over Huisinga in view of Fernandes; claims 29, 30, 32, and 33 over Huisinga in view of Fernandes and further in view of Danilovich and Piestun; claim 35 is rejected under 35 U.S.C. § 103 over Huisinga in view of Fernandes, Danilovich, and Piestun and further in view of Folsom; and claims 47 and 48 are rejected under 35 U.S.C. § 103 over Huisinga in view of Fernandes and further in view of Folsom, as detailed below.
Claims 1, 29, 30, 32, 33, 35, 47, and 48 are subject to a provisional rejection on the ground of nonstatutory double patenting over corresponding claims 47, 80, 102, and 103 of co-pending U.S. Application No. 18/064,406 (published as US20240189344A1).
Claim Objections
Claims 1, 29, 32, 35, and 47 are objected to because of the following informalities:
Claim 1 is objected to for range wording, “is 6750 ppm to 22,000 ppm”, which would be more clearly stated as “is from 6750 ppm to 22,000 ppm”. In addition, a comma would improve clarity after “12 hours” (i.e., “…at least 12 hours, the carbon dioxide concentration…”).
In claim 29, the later singular expression “in the exposure period” is inconsistent with the previously recited plurality of exposure periods and should be amended to “during each exposure period.” The phrase “a gaseous atmosphere into which no carbon dioxide is fed into the gaseous atmosphere” is redundant and should be amended (e.g., “a gaseous atmosphere into which no carbon dioxide is fed from a source outside the egg.”).
In claim 32, a comma should be inserted after “claim 29.”
In claim 35, a comma should be inserted after “claim 32.” The space preceding the comma in “9 to 11 , wherein” should be deleted. The phrase “wherein in each exposure period” should be amended to “wherein, during each exposure period,” or otherwise rewritten for grammatical clarity.
In claim 47, the expression “air exchanges are conducted in which air … is exchanged” is circular and grammatically awkward. The phrase “air from a source outside the gaseous atmosphere” should be clarified, preferably by using the terminology of the specification (e.g., “air exchange is conducted by exchanging air from outside the incubator with the gaseous atmosphere”).
In addition, the expressions “independently from when” and “independently from carbon dioxide concentration” should be rewritten to identify the intended operational relationship (e.g., “operation of the air exchange is not initiated, discontinued, or adjusted in response to the timing of…” and “independently of the measured carbon dioxide concentration”, respectively).
Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. § 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. § 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 29, 30, 47, and 48 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 enablement requirement. The claim contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Claims 1, 29, 30, 47, and 48 are rejected because the specification, while being enabling for incubation of chicken eggs under the disclosed 18-21-day incubation schedule, does not enable a person of ordinary skill to practice the full scope of the claimed method with all “poultry” eggs without undue experimentation.
Claim 1 is directed to incubating a “fertilized unhatched poultry egg to hatching” and affirmatively requires an incubation period of 18-21 consecutive days. Claims 29, 30, 47, and 48 incorporate that requirement through their dependency from claim 1.
The specification expressly defines “poultry” to mean chicken, turkey, duck, and goose. The specification separately states that turkey incubation periods are longer than chicken incubation periods and teaches that, when the invention is applied to other poultry, the disclosed time periods may need to be extended proportionally. The claimed method, however, does not permit such an extension because it requires incubation to hatching within a maximum of 21 consecutive days.
The following factors identified in In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988), have been considered and to apply in determining whether the full scope of a claim is enabled as follows:
Breadth of the claims: The claims encompass incubation to hatching of at least four expressly defined poultry species while imposing the same 18-21-day total incubation period on each species. This is materially broader than a claim limited to chicken eggs. The specification’s express definition prevents “poultry” from reasonably being treated as merely another term for chicken.
Nature of the invention: The invention concerns biological embryonic development through hatching. Completion of embryonic development is an affirmative result required by the preamble and body of claim 1, not merely optional. The specification defines “incubation” as including both the setting and hatching phases.
State of the art: The specification itself recognizes that the total incubation period is species-dependent. It expressly states that turkey egg incubation periods are longer than chicken incubation periods and that non-chicken applications may require proportional extension of the disclosed periods. Thus, the record does not support treating the same 18-21-day schedule as generally applicable to all expressly defined poultry species.
Level of ordinary skill: A person of ordinary skill would be familiar with operation of commercial incubators and species-dependent incubation protocols. Such a person could operate the disclosed carbon-dioxide, ventilation, temperature, and humidity equipment. The missing teaching is not how to operate that equipment, but how to cause every claimed poultry species to complete embryonic development and hatch within the fixed maximum period of 21 days.
Level of predictability: Although ordinary hatch times are biologically predictable for a given species, the disclosure provides no predictable basis for materially shortening the development of turkey, duck, or goose embryos to fit the claimed 18-21-day period. The specification directs the skilled artisan in the opposite direction, to extend the treatment periods proportionally for species having longer incubation periods.
Amount of direction provided: The specification provides substantial direction for chicken incubation, including an 18-day setting phase followed by a three-day hatching phase. It provides no regimen that permits the other expressly included poultry species to hatch within the same 18-21-day period. The statement that the regimens may be extended proportionally does not enable the presently claimed subject matter because an extended incubation period falls outside claim 1.
Working examples: The working examples use chicken eggs and a 21-day total process. For example, the disclosed eggs are transferred after 18 days to hatcher equipment and hatch over the following three days. No working example demonstrates hatching a turkey, duck, or goose egg within 18-21 days. The absence of working examples of other poultry species is considered together with the specification’s affirmative statement that at least turkey incubation requires a longer period.
Quantity of experimentation required: One of ordinary skill in the art would not merely be required to optimize carbon-dioxide concentration, ventilation, temperature, or humidity. The artisan would need to discover how to cause species that the specification acknowledges require longer incubation to complete development and hatch within no more than 21 days. The disclosure supplies no teaching, protocol, or structure-function relationship for accomplishing that result. Experimentation directed to materially altering the species-specific duration of embryonic development would not constitute routine verification of a disclosed embodiment.
In summary, considering the Wands factors as a whole, the specification enables the claimed 18–21-day method for chicken eggs, but does not enable the full scope of the genus “poultry egg” as expressly defined in the specification. The claims encompass a substantial number of expressly identified but unsupported or inoperative embodiments. Although the presence of some inoperative embodiments does not necessarily defeat enablement, a claim may be non-enabled when significant portions of its scope are inoperative and the disclosure does not permit one of ordinary skill in the art to practice or identify operative embodiments without undue experimentation.
Claims 29, 30, 47, and 48 do not cure this deficiency because none limits the poultry egg to a chicken egg or permits the incubation period to be extended beyond 21 days. Claims 32, 33, and 35 are not included in this particular rejection because claim 32 expressly limits the egg to a chicken egg, and claims 33 and 35 depend from claim 32. The rejection may be overcome, for example, by limiting claims 1, 29, 30, 47, and 48 to chicken eggs or by revising the incubation-period limitation in a manner supported by the original disclosure for the other claimed poultry species.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. § 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. § 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which Applicant regards as his invention.
Claims 47 and 48 are rejected under 35 U.S.C. § 112(b) or 35 U.S.C. § 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention.
Claim 47 recites that, “air exchanges continue independently from when carbon dioxide is fed” and “air exchanges continue independently from carbon dioxide concentration.” The phrase “continue independently from when carbon dioxide is fed” does not establish with reasonable certainty the operative condition required by the claim. It is unclear whether the limitation requires uninterrupted air exchange during carbon-dioxide feeding, an unchanged air-exchange volumetric flow rate during carbon-dioxide feeding, an air-exchange schedule whose commencement and termination are not controlled by carbon-dioxide-feed timing, only some temporal overlap between air exchange and carbon-dioxide feeding, or continued periodic air-exchange events even though individual air exchanges may be suspended while carbon dioxide is being fed.
Similarly, “air exchanges continue independently from carbon dioxide concentration” does not identify whether the air-exchange rate, timing, control setpoint, valve position, or occurrence of an exchange must be independent of the measured carbon-dioxide concentration.
The specification does not eliminate these alternative interpretations. The specification states that carbon-dioxide levels may be controlled “without restricting or changing the amount of fresh air exchanges,” which suggests maintenance of the amount or rate of air exchange. The specification also teaches measuring incoming and outgoing air flow and using that measurement to determine the carbon-dioxide feed rate, which describes a relationship between air exchange and carbon-dioxide control. The claim does not state which of these disclosed control relationships defines the scope of “continue independently.”
The limitation must provide an ascertainable boundary by which a person of ordinary skill can determine whether a particular process satisfies the claim. Here, the claims do not provide such a boundary (see MPEP §§2173.02 and 2173.05(g)). Claim 48 is also rejected because it depends from rejected claim 47 and does not cure the ambiguity of claim 47.
For claim 47, the intended relationship could be stated more objectively, for example as, …“wherein operation of the air exchange is not initiated, discontinued, or adjusted in response to either (i) commencement or cessation of feeding carbon dioxide from the source outside the egg or (ii) the measured carbon dioxide concentration in the gaseous atmosphere.” The exact amendment should correspond to the relationship actually supported and intended by applicant.
Separately, in claim 48, “the temperature and humidity” are introduced using the definite article without previous introduction in the claims from which it depends (i.e., claims 1 and 47), therefore lack explicit antecedent basis. The phrase should be amended to “temperature and relative humidity,” “a temperature and a relative humidity,” or another form providing proper introduction. The specification principally defines and controls “relative humidity”; therefore, use of “relative humidity” would provide greater consistency between the claims and disclosure.
Claim 48 also recites that “the temperature and humidity in the gaseous atmosphere are controlled independently of carbon dioxide concentration.” This functional limitation likewise fails to identify what control characteristic must be independent. It is unclear whether the temperature and humidity setpoints may not be functions of carbon-dioxide concentration; operation of heating, cooling, humidification, or dehumidification equipment may not be initiated or adjusted in response to carbon-dioxide concentration; the measured temperature and humidity values must remain unchanged as carbon-dioxide concentration changes; or the claim merely requires separately adjustable control equipment.
The specification discloses separate equipment for temperature and humidity control and states that carbon-dioxide levels can be controlled independently of temperature and humidity, but it does not expressly define the converse functional relationship now recited in claim 48. Thus, an ascertainable boundary by which a person of ordinary skill in the art can determine whether a particular process satisfies the claim is not adequately provided.
For claim 48, the intended relationship could be stated more objectively, for example as, “…wherein operation and setpoints of the temperature-control system and the relative-humidity-control system are not adjusted in response to the measured carbon dioxide concentration in the gaseous atmosphere.” The exact amendment should correspond to the relationship actually supported and intended by applicant.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. § 102 and 103 (or as subject to pre-AIA 35 U.S.C. § 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. § 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. § 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. § 102(b)(2)(C) for any potential 35 U.S.C. § 102(a)(2) prior art against the later invention.
Claim 1 is rejected under 35 U.S.C. § 103 as being unpatentable over Huisinga and Wreede (US20110094452A1; published 28 April 2011, hereinafter “Huisinga”), in view of Fernandes et al. (Single stage incubators and Hypercapnia during incubation affect the vascularization of the chorioallantoic membrane in broiler embryos. Poult Sci. 2017 Jan 1;96(1):220-225. Epub 2016 Sep 1, hereinafter “Fernandes”).
Huisinga is directed to systems and methods for incubating poultry eggs in a controlled gaseous environment. Huisinga teaches that incubation through hatch is performed according to an incubation profile in which temperature, carbon-dioxide content, humidity, and other climatic conditions are controlled (claims 40 and 46). Huisinga further teaches that its incubator can provide the entire incubation process through hatch (¶[0003] and ¶[0004]). Huisinga identifies a 21-day incubation cycle for chicken eggs (¶[0110]).
More particularly, Huisinga teaches placing poultry eggs in an incubator containing a controlled gaseous atmosphere (claim 40), incubating the eggs through hatch according to a programmable incubation profile (¶[0015] and ¶[0016]), using a 21-day incubation cycle for chicken eggs (¶[0110]), sensing carbon-dioxide concentration within the incubator (claims 47 and 48), providing carbon-dioxide concentration feedback to a computer controller, comparing the sensed carbon-dioxide concentration with one or more programmed setpoints, and injecting carbon dioxide from a carbon-dioxide reservoir through one or more carbon-dioxide injectors under real-time feedback control (claims 49-52; ¶[0062]-[0065]).
Huisinga’s system feeds carbon dioxide from a source outside the egg (carbon-dioxide reservoir), and the controller supplies carbon dioxide in response to measured carbon-dioxide concentration to establish the programmed incubation environment, as necessary to maintain a setpoint (¶[0062]-[0065]). Huisinga also teaches that a controller may execute a complete incubation profile, a profile for one or more days, or a single set of environmental setpoints maintained over one day (Fig. 1 and the corresponding description of sensors S1-S5, controller 130, carbon-dioxide injectors 142, and reservoir 137).
Huisinga therefore teaches or suggests a method of incubating a fertilized unhatched poultry egg to hatching, because Huisinga expressly teaches controlled incubation of poultry eggs through hatch; incubating the egg for an incubation period of 18 to 21 consecutive days, because Huisinga teaches a 21-day incubation cycle for chicken eggs; and in a gaseous atmosphere which is in contact with the egg, and during that time, feeding carbon dioxide from a source outside the egg into the gaseous atmosphere as necessary, because Huisinga places the eggs in the controlled incubator atmosphere and uses carbon-dioxide sensors, a programmed controller, external carbon-dioxide reservoir 137, and injectors 142 to provide real-time control of the carbon-dioxide concentration.
Huisinga exemplifies carbon-dioxide concentrations below the presently claimed lower endpoint (1000-5000 ppm; ¶[0104]) and does not expressly teach maintaining 6750-22,000 ppm carbon dioxide for at least 12 hours.
Fernandes evaluated carbon-dioxide concentration as a controlled incubation variable in fertile broiler chicken eggs. Fernandes used 2520 fertile eggs distributed among single-stage incubators operated at 4000, 6000, 8000, and 10,000 ppm carbon dioxide. The respective carbon-dioxide concentrations were maintained during the first ten days of incubation, after which the eggs were incubated under the same carbon-dioxide condition of 4000 ppm. Fernandes evaluated chorioallantoic-membrane vascularization, hatching, heart morphology, and post-hatch body development (Abstract; page 221, Experimental Design).
Fernandes therefore expressly teaches incubating fertilized chicken eggs; maintaining carbon dioxide at 8,000 ppm or 10,000 ppm; maintaining those concentrations for approximately ten days, substantially longer than 12 hours; and treating carbon-dioxide concentration as an incubation parameter capable of affecting embryonic and post-hatch characteristics. Both 8000 ppm and 10,000 ppm fall within the instant claimed range of 6,750-22,000 ppm.
Thus, it would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to program the feedback-controlled poultry incubator of Huisinga to maintain a carbon-dioxide concentration of 8000 ppm or 10,000 ppm for at least 12 hours, as taught by Fernandes. Huisinga provides a poultry-incubation apparatus expressly configured to receive a programmed carbon-dioxide setpoint; measure actual carbon-dioxide concentration; compare the measurement with the programmed profile; and inject carbon dioxide from an external reservoir to establish and maintain the selected concentration. Fernandes provides specific carbon-dioxide setpoints, 8000 ppm and 10,000 ppm, used to incubate fertile broiler eggs for ten days.
Therefore, a person of ordinary skill seeking to investigate or obtain the known effects of elevated carbon dioxide on embryonic vascularization, hatching, cardiac morphology, and post-hatch development would have had reason to enter one of Fernandes’s tested setpoints into Huisinga’s programmable controller. The proposed modification would merely use Huisinga’s apparatus for its expressly intended purpose, maintaining a selected poultry-incubation profile, at a poultry-incubation carbon-dioxide concentration expressly tested by Fernandes. Each component would perform its established function, and no change in the principle of operation of Huisinga would be required.
A person of ordinary skill would have had a reasonable expectation of successfully incubating the eggs under the proposed conditions because Huisinga expressly teaches real-time feedback control and injection from an external carbon-dioxide reservoir; Huisinga expressly teaches complete incubation of chicken eggs through a 21-day cycle; and Fernandes actually incubated fertile broiler eggs at 8000 ppm and 10,000 ppm for the first ten days of incubation. The proposed combination does not require speculation about whether poultry embryos can tolerate the selected concentrations or whether the concentrations can be maintained. Fernandes establishes biological operability, and Huisinga establishes technical operability. Hence, the combination of Huisinga and Fernandes teaches or suggests every limitation of instant claim 1. Accordingly, instant claim 1 would have been obvious.
Claims 1, 29, 30, 32, and 33 are rejected under 35 U.S.C. § 103 as being unpatentable over Huisinga and Wreede (US20110094452A1; published 28 April 2011, hereinafter “Huisinga”), in view of Fernandes et al. (Single stage incubators and Hypercapnia during incubation affect the vascularization of the chorioallantoic membrane in broiler embryos. Poult Sci. 2017 Jan 1;96(1):220-225. Epub 2016 Sep 1, hereinafter “Fernandes”), and in further view of Danilovich et al. (RU2649346C1; published 02 April 2018, hereinafter “Danilovich”), and Piestun et al. (Thermal manipulations during broiler embryogenesis: effect on the acquisition of thermotolerance. Poult Sci. 2008 Aug;87(8):1516-25, hereinafter “Piestun”).
Huisinga, in view of Fernandes, teaches the limitations of instant claim 1, as described above, from which instant claims 29, 30, 32, and 33 directly or indirectly depend, however do not explicitly teach the specific limitations of instant claims 29, 30, 32, and 33.
Huisinga additionally teaches that the environmental controller may execute a complete incubation profile (¶[0098]), only a portion of an incubation profile (¶[0097]), a profile covering one day or multiple days (¶[0098]); or a single set of setpoints maintained during a particular day (¶[0092]). The controller receives sensor feedback and controls carbon-dioxide injection according to the programmed profile (¶[0062] and ¶[0065]). Huisinga therefore supplies the control architecture needed to switch between different scheduled atmospheric states and to maintain a selected carbon-dioxide setpoint during a programmed period. Huisinga additionally states that temperature, relative humidity, carbon-dioxide content, and air cycling may be controlled according to particular tolerances specified in the incubation profile (¶[0104]).
Danilovich teaches incubating poultry eggs in a sealed chamber equipped with a carbon-dioxide sensor, temperature and humidity sensors, a computer-controlled external air valve, a computer-controlled carbon-dioxide valve connected to a carbon-dioxide cylinder, and exhaust and pressure-control valves (Fig. 1 and the specification description of the device of Fig.1).
Danilovich first opens the external-carbon-dioxide valve to enrich the chamber atmosphere and thereafter closes that valve (device operation description as “The device operates as follows” section, valve 15). Danilovich then permits the carbon-dioxide concentration to change while no carbon dioxide is being supplied from the external cylinder. When the carbon-dioxide concentration reaches an upper threshold, fresh air is supplied and used atmosphere is discharged until the carbon-dioxide concentration reaches a lower threshold (valve 14 and 13). This cycle is repeated whenever the upper carbon-dioxide concentration is reached (“When the concentration of carbon dioxide reaches 0.6%, valve 14 opens and fresh air is pumped from the compressor receiver into the container. At the same time, by opening the emergency valve 13, the used air leaves the tank. When the concentration of CO2 decreases to 0.4%, the valve 14 closes, respectively, and the emergency valve 13 stops bleeding air. This cycle is repeated every time the maximum concentration of carbon dioxide is reached.”).
Danilovich therefore expressly establishes that, in poultry incubation, it was known to operate repeated alternating atmospheric phases comprising an external-carbon-dioxide-enrichment phase, and a phase during which the external carbon-dioxide supply is closed and the chamber atmosphere is permitted to change or is exchanged with fresh air. Danilovich does not maintain 8000 ppm or 10,000 ppm within 10% of a constant setpoint and does not use fixed 18-24-hour exposure and intervening periods.
Piestun investigated repeated manipulation of the gaseous incubation environment of fertile Cobb broiler eggs. From embryonic day 7 through embryonic day 16, Piestun subjected one group to a fixed elevated-temperature and elevated-relative-humidity environment continuously for 24 hours per day and subjected another group to the same fixed treatment environment for 12 hours per day. The intermittently treated eggs were repeatedly transferred every 12 hours between the treatment incubator and the control incubator (Abstract; page 1517-1518, Experimental Design section).
Piestun therefore teaches repeatedly alternating poultry eggs between a treatment atmosphere and a control atmosphere, using the same treatment setpoints during each repeated treatment period, using repeated fixed-duration treatment and intervening periods, using a daily programmable regimen (pages 1517-1518, Experimental Design section), and comparing 12-hour and 24-hour environmental exposure durations as variables affecting hatching and post-hatch results (pages 1517-1519, Table 1, Table 2, and Figure 2). Piestun is relied upon for the temporal organization of a poultry-incubation treatment, not for the claimed carbon-dioxide concentration.
Instant claim 29 depends from instant claim 1 and additionally requires, throughout the incubation period, alternating exposure periods in which the carbon-dioxide concentration is maintained within 10% of the same set value between 7500 ppm and 20,000 ppm by feeding external carbon dioxide as necessary and intervening periods during which no carbon dioxide is fed from outside the egg.
Huisinga and Fernandes teach the underlying method of instant claim 1 for the reasons set forth above. Huisinga further teaches programmable one-day and multiple-day atmospheric setpoints and feedback-controlled injection of external carbon dioxide (¶[0092] and ¶[0098]). Fernandes supplies suitable poultry-incubation set values of 8000 ppm and 10,000 ppm, each of which falls within instant claim 29’s 7500–20,000 ppm set-value range. Danilovich teaches repeatedly alternating an external-carbon-dioxide operating state with a state in which the external-carbon-dioxide valve is closed. Piestun teaches repeatedly alternating poultry embryos between a fixed treatment environment and a control environment using the same treatment condition during each exposure period.
Thus, it would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to program Huisinga’s controller to repeat an exposure phase having a selected Fernandes setpoint of 8000 ppm or 10,000 ppm, during which the carbon-dioxide sensor and external injector maintain the selected concentration; and an intervening phase during which the external carbon-dioxide injector is disabled and ordinary incubation continues. Danilovich supplies an express reason to alternate carbon-dioxide-enrichment and no-external-feed/fresh-air phases in poultry incubation. Piestun independently establishes that repeated treatment/control cycles using the same environmental treatment condition were a conventional way to investigate and control the effect of an incubation environment on embryonic and post-hatch development.
Applying those temporal teachings to Huisinga would have permitted a person of ordinary skill to control the cumulative dose and timing of elevated-carbon-dioxide exposure, provide periods of ordinary incubation between elevated-carbon-dioxide treatments, and generate a repeatable treatment protocol. Using the same 8000 ppm or 10,000 ppm setpoint during every exposure period would have been the most direct and reproducible implementation of the repeated treatment regimen. Piestun uses the same treatment temperature and humidity during each repeated treatment period. Using the same carbon-dioxide setpoint would similarly isolate exposure timing and duration while avoiding introduction of an additional changing variable (see MPEP § 2143.01).
Huisinga expressly teaches feedback control according to environmental setpoints and control of environmental variables within specified tolerances. Once a carbon-dioxide setpoint was selected, choosing a control band of ±10% would have been a routine control-system parameter, particularly because a ±10% band around 8000 ppm or 10,000 ppm permits variation of ±800 ppm or ±1,000 ppm, respectively. The record does not establish that ±10%, as distinguished from another ordinary feedback-control tolerance, produces a new or unexpected operating principle. Selecting a workable feedback-control tolerance for a recognized controlled variable constitutes routine optimization where the general operating condition and the variable to be controlled were known (see In re Aller, 220 F.2d 454, 456 (CCPA 1955)).
A reasonable expectation of success would have existed because Fernandes actually incubated broiler eggs at 8000 ppm and 10,000 ppm; Huisinga supplies programmable feedback-controlled external injection; Danilovich actually cycles the carbon-dioxide and fresh-air operating states of a poultry incubator; and Piestun actually subjected broiler embryos to repeated alternating treatment and control environments. The modification would require programming known operating states rather than constructing an unknown biological or mechanical system. Accordingly, instant claim 29 would have been obvious.
Instant claim 30 requires each exposure period and each intervening period to have a duration of 18-24 hours. Piestun expressly teaches environmental-treatment periods of 24 hours and an intermittent regimen employing repeated 12-hour treatment and 12-hour control periods. Huisinga expressly teaches that a set of environmental setpoints may be programmed and maintained for a single day. It would have been obvious to implement the repeated elevated-carbon-dioxide/no-feed regimen discussed for claim 29 using a 24-hour exposure period followed by a 24-hour intervening period because 24 hours was an expressly tested poultry-incubation environmental-exposure duration; Huisinga expressly identifies a single day as a period over which a set of environmental setpoints may be maintained; a 24-hour-on/24-hour-off cycle preserves the 50% cumulative treatment duty cycle of Piestun’s 12-hour-on/12-hour-off regimen over each 48-hour interval; use of calendar-day setpoints would simplify scheduling, recording, and controller programming; and it would reduce the number of environmental transitions relative to a 12-hour-on/12-hour-off schedule. The proposed 24-hour schedule represents a predictable selection from the expressly known daily environmental-treatment durations and the programmable daily setpoints taught by the references. Accordingly, instant claim 30 would have been obvious.
Instant claim 32 requires that the fertilized unhatched poultry egg be a chicken egg. Huisinga expressly identifies chicken eggs and a 21-day chicken-incubation cycle. Fernandes uses fertile broiler chicken eggs, and Piestun uses fertile Cobb broiler chicken eggs. Selection of chicken eggs therefore is expressly taught by multiple applied references. Accordingly, instant claim 32 would have been obvious.
Instant claim 33 depends from claim 32 and requires that each exposure period and each intervening period be 18-24 hours. Instant claim 33 would have been obvious for the reasons stated for instant claims 30 and 32. In particular, the combination expressly teaches chicken eggs, programmable single-day setpoints, 24-hour poultry-embryo environmental exposure, and repeated treatment/control cycling. Selecting 24-hour exposure and 24-hour intervening periods therefore falls within the scope of ordinary and predictable scheduling of the known incubation treatments.
Claims 1, 29, 32, and 35 are rejected under 35 U.S.C. § 103 as being unpatentable over Huisinga and Wreede (US20110094452A1; published 28 April 2011, hereinafter “Huisinga”), in view of Fernandes et al. (Single stage incubators and Hypercapnia during incubation affect the vascularization of the chorioallantoic membrane in broiler embryos. Poult Sci. 2017 Jan 1;96(1):220-225. Epub 2016 Sep 1, hereinafter “Fernandes”), and in further view of Danilovich et al. (RU2649346C1; published 02 April 2018, hereinafter “Danilovich”), Piestun et al. (Thermal manipulations during broiler embryogenesis: effect on the acquisition of thermotolerance. Poult Sci. 2008 Aug;87(8):1516-25, hereinafter “Piestun”), and Folsom (US3848569A; published 19 November 1974).
Huisinga, in view of Fernandes, and in further view of Danilovich and Piestun teach the limitations of instant claims 1, 29, and 32 as described above, from which instant claims 35 directly or indirectly depends, however do not explicitly teach the specific limitations of instant claims 35.
Folsom teaches a feedback-controlled incubator atmosphere in which a desired carbon-dioxide concentration is selected (Abstract; claim 1), actual carbon-dioxide concentration is continuously sensed and compared with the selected value (claim 5), a valve connected to an external carbon-dioxide canister is actuated (actuated relay 92); carbon dioxide is automatically added whenever the measured concentration falls below the selected value (claim 1); and addition is stopped when the desired level is reached (relay 92 shut off).
Folsom expressly characterizes the system as stabilizing at the selected carbon-dioxide percentage and teaches automatic adjustment of carbon-dioxide flow in both recirculating and conventional flow-through systems (Abstract; claim 1; fan assembly re-circulation, duct 34; “The fan assembly thus circulates air from the incubator up through passage 33 from the top of the incubator and into plenum chamber 24 where the carbon dioxide content is measured and additional carbon dioxide is added, if need be, to bring the carbon dioxide level up to a selected value. The gas is withdrawn from plenum chamber 24 by the fan and returned to the bottom of the incubator by way of duct 34. The system is thus recirculating and employs substantially less carbon dioxide than heretofore employed in conventional flowthrough systems…The systems according to the present invention can alternatively be employed, if desired, in combination with a conventional flow-through apparatus for selecting carbon dioxide concentration therein, rather than in a substantially closed apparatus. Thus the concentration of carbon dioxide is still sensed and the flow of carbon dioxide to the system is adjusted automatically.”) .
Folsom is reasonably pertinent to the problem addressed by instant claim 35 because it concerns maintaining a selected carbon-dioxide concentration in an incubator atmosphere using sensor feedback and an external carbon-dioxide supply.
Instant claim 35 requires 9-11 exposure periods and 9-11 intervening periods. As discussed for instant claim 30, it would have been obvious to employ 24-hour exposure and 24-hour intervening periods. Repeating that 48-hour cycle during an 18–21-day chicken-incubation period inherently or predictably produces the claimed number of periods 18 days provides nine 48-hour cycles, 20 days provides ten 48-hour cycles, and 21 days provides ten complete cycles plus an additional 24-hour period. Depending on whether the repeating profile begins with an exposure or an intervening period, an 18-21-day program therefore contains 9-11 exposure periods and 9-11 intervening periods. The instant claimed number is not an unrelated numerical selection, it follows directly from repeating the obvious daily alternating schedule over the known chicken-incubation period.
In addition, Fernandes expressly teaches set values of 8000 ppm and 10,000 ppm, both fall within the instant claimed narrower range of 7500-15,000 ppm. Piestun applies the same fixed treatment temperature and humidity during each repeated treatment period. Using the same selected Fernandes carbon-dioxide value during each repeated exposure period similarly provides a reproducible program and permits timing and cumulative exposure to be evaluated without confounding the result by changing concentration. Huisinga teaches programmable environmental setpoints, sensor feedback, real-time carbon-dioxide control, and control of incubation parameters to specified tolerances. Folsom teaches continuously comparing measured carbon-dioxide concentration with a selected desired concentration, automatically adding carbon dioxide below the desired value, and stabilizing the incubator at the selected percentage.
It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to configure the feedback controller with a ±5% control band around an 8000 ppm or 10,000 ppm setpoint. A ±5% band corresponds to ±400 ppm at 8000 ppm and ±500 ppm at 10,000 ppm. Selection of such a control tolerance would have been a routine matter of controller deadband, sensor resolution, valve actuation frequency, and desired process stability. The general condition, feedback maintenance of a selected carbon-dioxide concentration, was known. The accuracy or deadband with which that setpoint was maintained was also recognized as a controllable process parameter. In the absence of evidence that ±5% produces a result qualitatively different from ordinary close setpoint control, selection of that tolerance would have constituted routine optimization (see In re Aller, 220 F.2d at 456; In re Boesch, 617 F.2d 272, 276 (CCPA 1980)).
A reasonable expectation of success would have existed because the applied references collectively demonstrate successful broiler incubation at 8000 ppm and 10,000 ppm, programmable poultry-incubator profiles, external carbon-dioxide injection under sensor feedback, repeated carbon-dioxide-feed/no-feed cycles, repeated environmental-treatment/control periods in broiler eggs, and automatic stabilization of an incubator atmosphere at a selected carbon-dioxide value. Instant claim 35 therefore would have been obvious.
Claims 1, 47, and 48 are rejected under 35 U.S.C. § 103 as being unpatentable over Huisinga and Wreede (US20110094452A1; published 28 April 2011, hereinafter “Huisinga”), in view of Fernandes et al. (Single stage incubators and Hypercapnia during incubation affect the vascularization of the chorioallantoic membrane in broiler embryos. Poult Sci. 2017 Jan 1;96(1):220-225. Epub 2016 Sep 1, hereinafter “Fernandes”), and in further view of Folsom (US3848569A; published 19 November 1974).
Huisinga, in view of Fernandes, teaches the limitations of instant claim 1, as described above, from which instant claims 47 directly depends and instant claim 48 indirectly depends, however does not explicitly teach the specific limitations of instant claims 47 and 48.
Because instant claims 47 and 48 are also subject to a rejection under 35 U.S.C. § 112(b), the prior art is applied using the reasonable interpretation for examination wherein claim 47 requires operation of an external-air-exchange function that is not initiated or discontinued merely because external carbon dioxide is being fed or because measured carbon-dioxide concentration changes; and wherein claim 48 requires temperature and humidity to be controlled through control functions or setpoints that are not determined by measured carbon-dioxide concentration.
Huisinga teaches a fresh-air intake supplying air from outside the incubator, an exhaust vent discharging atmosphere from inside the incubator, proportional electronic valves controlling intake and exhaust, real-time controller operation of the fresh-air intake and exhaust (¶[0076]), carbon-dioxide sensors (¶[0025]), carbon-dioxide injectors connected to an external carbon-dioxide reservoir (¶[0065]), and an incubation profile in which air cycling and carbon-dioxide content are separately controlled parameters (¶[0104]). Huisinga further describes air cycling as continually controlled during incubation while carbon-dioxide content is controlled according to its own programmed range (¶[0078]).
Huisinga therefore teaches the physical equipment and separate control functions for exchanging outside air with the incubator atmosphere while separately supplying external carbon dioxide. Huisinga does not expressly state that the external-air-exchange schedule remains independent of carbon-dioxide-feed timing and carbon-dioxide concentration in every embodiment.
Folsom expressly teaches that its automatic carbon-dioxide-control system may be used with a conventional flow-through apparatus (claim 22). In that arrangement, gaseous flow continues through the controlled chamber (claim 14), the carbon-dioxide concentration is sensed, and the flow of carbon dioxide from an external source is automatically adjusted to maintain the selected concentration (claim 14).
Thus, it would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to apply Folsom’s flow-through carbon-dioxide-makeup control to the poultry incubator of Huisinga. A person of ordinary skill in the art seeking to incubate poultry eggs at the 8000 ppm or 10,000 ppm setpoint taught by Fernandes would have recognized that exchanging incubator atmosphere with fresh outside air tends to dilute the carbon dioxide. Folsom supplies the known solution, continue the desired flow-through gaseous exchange and independently operate the carbon-dioxide feedback loop to add carbon dioxide as needed to compensate for dilution.
Under the proposed combination the fresh-air intake and exhaust operate according to the ventilation or air-quality requirements of the incubation profile, air exchange does not cease merely because carbon dioxide is being injected, air exchange is not switched on and off as a direct response to carbon-dioxide concentration, and the separate carbon-dioxide controller varies carbon-dioxide feed to maintain the selected setpoint despite the continuing air exchange. Folsom affirmatively teaches automatic carbon-dioxide adjustment in a flow-through system, while Huisinga affirmatively teaches separately controlled external-air intake, exhaust, and carbon-dioxide injection.
A person of ordinary skill would have had reason to retain fresh-air exchange while maintaining the selected carbon-dioxide setpoint to preserve the ordinary functions of incubator ventilation and atmospheric quality while avoiding loss of the programmed elevated-carbon-dioxide condition. The modification applies a known flow-through carbon-dioxide-control technique to a poultry incubator already equipped with independently controllable ventilation and carbon-dioxide hardware. The result of continued air exchange with compensating carbon-dioxide addition, would have been predictable.
Although Folsom’s illustrated incubator is described in connection with biological culture growth rather than poultry eggs, Folsom is reasonably pertinent to the problem confronted by the inventors: maintaining a predetermined carbon-dioxide concentration in an incubator or controlled environmental chamber while gaseous flow continues. The proposed use does not depend on the particular biological material located in the chamber. Accordingly, instant claim 47 would have been obvious.
Instant claim 48 further requires that temperature and humidity in the gaseous atmosphere be controlled independently of carbon-dioxide concentration.
Huisinga teaches separate environmental sensors and separate conditioning components carbon-dioxide sensors provide carbon-dioxide feedback used to control external carbon-dioxide injectors, relative-humidity sensors provide moisture feedback used to control a moisture injector, and temperature sensors provide thermal feedback used to control heating and cooling heat-exchange elements (¶[0062]-[0068]). Huisinga treats temperature, relative humidity, carbon-dioxide content, and air cycling as separately programmable control parameters within the incubation profile.
Folsom likewise teaches carbon-dioxide sensing and carbon-dioxide-valve control, a separate humidity detector, humidity setpoint, comparator, and water-control solenoid, and a separate thermostat controlling heating and cooling elements (claims 5, 12, 13, and 14). Folsom’s temperature-control, humidity-control, and carbon-dioxide-control components each respond primarily to their respective sensed environmental variable.
Thus, iy would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to operate the disclosed temperature and humidity control loops according to their respective temperature and humidity setpoints rather than varying those setpoints as a function of carbon-dioxide concentration. Separate feedback control would permit each environmental parameter to be maintained at the value selected for embryo development while the carbon-dioxide controller independently compensates for ventilation and embryo-generated carbon dioxide.
The motivation is expressly supplied by the architecture of the references, each environmental variable has a separate sensor, programmed value, and conditioning component. Operating those loops separately is the ordinary and predictable use of that disclosed architecture. A reasonable expectation of success would have existed because both Huisinga and Folsom disclose operative systems in which temperature, humidity, and carbon dioxide are separately sensed and conditioned. Accordingly, instant claim 48 would have been obvious.
Claim Rejections – Nonstatutory 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).
Claims 1, 29, 30, 32, 33, 35, 47, and 48 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 47, 80, 102, and 103 of co-pending US Application No. 18/064,406 (originally published as US20240189344A1, but as amended as of 11 May 2026; hereinafter “co-pending reference”). Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons outlined below. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
The co-pending reference discloses and claims a method for reducing woody breast in broiler poultry. The method comprises two principal stages, incubating a fertilized unhatched broiler poultry egg under elevated CO₂ conditions for 18-21 days, and thereafter administering enterally to the hatched poultry water containing oxygen-enriched nanobubbles. The co-pending reference specifically describes and claims several incubation CO₂ regimens, including a constant elevated CO₂ regimen (Regimen 1), an alternating exposure/intervening period regimen (Regimen 3), and incubation methods in which air exchange continues independently of CO₂ feeding and CO₂ concentration, as well as independent temperature and humidity control.
Instant claim 1 claims a method of incubating a fertilized unhatched poultry egg to hatching, comprising incubating for 18-21 days in a gaseous atmosphere while feeding CO₂ from an external source so that for ≥12 hours the CO₂ concentration is 6,750–22,000 ppm. Co-pending reference claim 47 claims a method of reducing woody breast, comprising incubating a fertilized unhatched broiler poultry egg for 18–21 days while feeding CO₂ from an external source so that for ≥12 hours the CO₂ concentration is within 10% of 7,500 ppm to within 10% of 20,000 ppm (i.e., 6,750–22,000 ppm), and then administering water containing oxygen nanobubbles.
Instant claim 29 claims the method of claim 1, further comprising alternating throughout incubation: (A) exposure periods with CO₂ maintained within 10% of a constant set value (same for all exposure periods) between 7,500–20,000 ppm by feeding external CO₂, and (B) intervening periods with no external CO₂ feeding. Co-pending reference claim 80 claims the method of co-pending reference claim 47, further comprising the identical alternating exposure/intervening period regimen, with the same constant set value tolerance and range, and the same “no carbon dioxide is fed” intervening periods.
Instant claim 30 claims the method of instant claim 29, wherein each exposure period and each intervening period is 18-24 hours. The co-pending reference’s Regimen 3 disclosure and claim 80 read on these durations, and the co-pending application explicitly describes 18–24-hour periods as a preferred aspect. Thus instant claim 30 is not patentably distinct.
Instant claim 32 claims the method of instant claim 29, wherein the poultry egg is a chicken egg. The co-pending reference claim 81, dependent from co-pending reference claim 80, specifies the egg is a broiler chicken egg.
Instant claim 33 claims the method of instant claim 32, with 18–24-hour exposure and intervening periods. The co-pending reference’s claim 81 plus the explicitly described preferred 18-24-hour periods (Regimen 3) render this not distinct.
Instant claim 35 claims the method of instant claim 32, with 9-11 exposure and intervening periods, and the CO₂ maintained within 5% of a set value between 7,500-15,000 ppm. The co-pending reference’s Regimen 3 description includes 9-11 periods (the alternating cycle continuing to day 18 with 9 cycles of 48 hours) and the narrower tolerance is an obvious preference already described as a preferred embodiment (“within 5%”).
Instant claim 47 claims the method of instant claim 1, wherein air exchanges are conducted with outside air, and air exchanges continue independently of when external CO₂ is fed and independently of CO₂ concentration. The co-pending reference claim 102 claims the method of co-pending reference claim 47, with the identical independent air exchange limitations (i.e., “air exchanges continue independently from when carbon dioxide is fed … and air exchanges continue independently from carbon dioxide concentration.”).
Instant claim 48 claims the method of instant claim 47, wherein temperature and humidity are controlled independently of CO₂ concentration. The co-pending reference claim 103 claims the method of co-pending reference claim 102, with the identical limitation that “temperature and humidity in the gaseous atmosphere are controlled independently from carbon dioxide concentration.”
Thus, the only substantial difference between the instant claims and the corresponding claims of the co-pending reference is that the instant claims omit the post‑hatch step of “administering water comprising nanobubbles which comprise oxygen, enterally to the broiler poultry” that is present in each independent and dependent claim of the co-pending reference. The omission of this step does not render the instant claims patentably distinct.
The co-pending reference itself teaches that the incubation regimens alone are sufficient to reduce woody breast. The entire “Example 1” of the co-pending specification demonstrates incubation‑only experiments (Regimens 1, 2, and 3) and reports significant woody‑breast score improvements without any nanobubble‑water administration. For example, Regimen 1 at 10,000 ppm CO₂ reduced the percentage of birds scoring WB‑1 from 24% to 15%, Regimen 2 (ramp) reduced WB‑1 from 13% to 8%, and Regimen 3 (alternating) reduced WB‑1 from 23% to 17% and increased WB‑0 scores. The specification explicitly states that the incubation methods themselves “have been found to be successful in reducing Woody Breast”.
In view of this teaching, a person of ordinary skill in the art would have found it obvious that the incubation portion of the co-pending reference’s claimed method could be practiced alone (i.e., without the subsequent nanobubble water administration) to achieve a method of incubating poultry eggs that provides beneficial effects, including a reduction in woody breast. The additional nanobubble step is presented in the co-pending reference as a further enhancement to further reduce or prevent the incidence of woody breast, is not as an essential element of the incubation process. Because the reference itself treats the administration step as optional for obtaining the beneficial incubation results, the combination of the two steps (incubation with nanobubble water) would have been an obvious unified process, and the narrower incubation‑only claim is an obvious variant of the broader combination claim (see In re Larson, 340 F.3d 965 (CCPA 1965), wherein omission of a known, optional step does not impart patentable distinctness).
Thus, each instant claim is either identical to a co-pending reference claim except for the omission of the post‑hatch administration step, or is an obvious variation thereof. No instant claim adds a limitation that is not already present in or clearly suggested by the co-pending reference’s claims in view of the specification disclosure. The instant claims are therefore not patentably distinct.
To overcome this rejection, the applicant may amend the conflicting claims to be patentably distinct or file a terminal disclaimer in compliance with 37 C.F.R. § 1.321. Should the co-pending application be abandoned or its claims materially changed, this rejection may be withdrawn.
Response to Arguments
Applicant Arguments/Remarks of the reply, filed 19 June 2026, have been fully considered.
Regarding the prior 35 USC § 103 of claim 1, the combination of Danilovich, Everaert, and El‑Hanoun cannot be maintained against the amended claims, as this combination did not teach a CO₂ concentration within the now‑claimed 6750-22,000 ppm range (Danilovich ≤6,000 ppm, Everaert 4%, and El‑Hanoun 1%). The new Huisinga and Fernandes rejection directly fills that gap.
Huisinga provides the incubator infrastructure and feedback‑controlled external CO₂ supply and Fernandes provides the specific CO₂ concentration (8,000/10,000 ppm tested on broiler eggs) and demonstrates actual use on broiler eggs. The motivation to combine the references to arrive at the instant claimed invention, programming a known beneficial concentration into a programmable system, is logical, and a reasonable expectation of success exists both references operate in the same poultry incubation context.
Regarding the prior 35 USC § 103 of claim 29, 30, 32, 33, 35, the alternating exposure with the same constant setpoint, maintained within 10% over 18‑24-hour periods, is not taught or suggested by Danilovich’s simple 0.4% and 0.6% cycle, thus the claims are now rejected over the combined teachings of Huisinga, Fernandes, Danilovich, and Piestun, in view of Folsom for claim 35, as outlined above.
Regarding the prior 35 USC § 103 of claim 47 and newly added claim 48, the applicant correctly pointed out that the references describe non‑ventilated or closed‑incubator states during CO₂ enrichment. Concurrent ventilation and CO₂ feed is supported by the combined teachings of Huisinga and Fernandes, in view of Folsom, providing affirmative teaching of flow‑through operation with automatic CO₂ configuration.
Folsom adds the specific teaching that CO₂ can be automatically added while a gaseous flow is continuously maintained. Huisinga already separately controls ventilation (intake/exhaust) and CO₂, so the combination is a predictable extension. The motivation to combine the teachings, to maintain O₂, remove heat/moisture, yet keep CO₂ constant, is explicitly acknowledged in applicant’s own specification.
Folsom is reasonably pertinent to the atmospheric‑control problem. Even though Folsom may be directed to cell‑culture incubation, the problem of maintaining CO₂ concentration while exchanging air is the same, and a person of ordinary skill in the art would look to such general controlled‑environment literature.
Regarding the applicant’s arguments, the applicant argues that a skilled artisan would not have increased the carbon-dioxide concentration of Danilovich because the literature (Petracci, Bowker, Kang) correlates fast growth, increased bird weight, and increased corticosterone with increased incidence of woody breast. The evidence has been considered; however, the argument is unpersuasive.
The cited references do not evaluate the claimed incubation process or the specific combination. They are general reviews or studies on the etiology of woody breast in broilers grown under conventional commercial conditions. The art of egg incubation and the art of broiler myopathies are distinct; the mere existence of correlations in adult birds does not establish that altering embryonic CO₂ in the manner claimed would have been expected to worsen woody breast.
Second, and more fundamentally, even if a skilled artisan would have predicted an increase in woody breast, that does not constitute a teaching away from using higher CO₂ for other benefits. The references Danilovich, Everaert, and El‑Hanoun all emphasize positive outcomes (improved growth, hatchability, muscle development) from elevated CO₂. The prior art as a whole teaches that the claimed incubation steps are beneficial for overall poultry production.
Objective evidence of unexpected results must be considered and weighed with the evidence supporting the prima facie case. Such evidence, however, must possess a sufficient nexus to the claimed invention and must be reasonably commensurate in scope with the claim.
The applicant’s evidence establishes, at most, general relationships among growth rate, bird or fillet weight, physiological stress, corticosterone, and woody-breast incidence. It does not directly evaluate the presently claimed incubation method or demonstrate that a person of ordinary skill would have avoided all externally supplied carbon-dioxide treatments within 6,750-22,000 ppm for every possible period of at least 12 hours. The prior art itself demonstrates that skilled investigators did not categorically avoid such concentrations. Fernandes actually incubated fertile broiler eggs at 8,000 ppm and 10,000 ppm for the first ten days, and El-Hanoun maintained approximately 1% carbon dioxide during the first ten days of duck-egg incubation.
A reference or body of art “teaches away” when it criticizes, discredits, or otherwise discourages the claimed course of action. Disclosure of possible disadvantages, physiological tradeoffs, or an alternative preference does not necessarily amount to teaching away, particularly where the same field was actively conducting incubation experiments at the claimed concentrations (see MPEP § 2145).
Moreover, amended claim 1 does not require reducing woody breast, measuring woody breast, maintaining or reducing corticosterone, avoiding increased body weight, improving meat quality, or achieving any specified post-hatch result. The claim encompasses any poultry species, any carbon-dioxide concentration from 6,750 ppm to 22,000 ppm, any exposure period of at least 12 hours, and any timing of that exposure within an 18-21-day incubation period. The application’s experimental evidence is directed to particular chicken strains and particular treatment regimens, including a constant treatment, a ramp treatment, and a 7,500-ppm alternating treatment. That evidence has not been shown to establish an unexpected woody-breast result across the full breadth of amended claim 1. Accordingly, the general literature concerning woody-breast etiology does not outweigh the specific prior-art evidence that poultry eggs were actually incubated at concentrations within the claimed range using known controlled-incubation techniques.
Regarding claims 29, 30, 32, 33, and 35, while, combining the alternating scheme of Danilovich with the specific setpoints and precision of the secondary references would have been obvious, and the duration of 18‑24 hours per period is a straightforward optimization choice, the applicant’s arguments are persuasive as to explicit expressive teachings of the previously applied prior art. Accordingly, the prior § 103 rejection of claims 29, 30, 32, 33, and 35 based on the previously cited references is therefore withdrawn.
Regarding claims 47 and 48, the applicant argues that Danilovich, Everaert, and El‑Hanoun all rely on non‑ventilated states during CO₂ input. However, the references do not teach away from simultaneous ventilation and CO₂ feed. They merely describe one operational mode. Danilovich’s apparatus includes both ventilation and CO₂ valves, wherein there is no technical impediment to opening both simultaneously. The problem of maintaining a precise CO₂ concentration while ventilating to control temperature/humidity is a classic control problem. The proposed combination of Danilovich with the setpoint goals of Everaert/El‑Hanoun would naturally motivate a skilled artisan to operate ventilation continuously and adjust CO₂ addition to compensate, precisely what claim 47 recites.
The independent control of temperature and humidity of claim 48 is already present in Danilovich’s multi‑loop system. The fact that the references describe specific sequences does not teach away from obvious modifications, rather they simply reflect routine design choices (see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007), wherein a person of ordinary skill is not an automaton but applies common sense).
However, the applicant correctly notes that Danilovich, Everaert, and El-Hanoun do not themselves disclose the independent-control relationships now recited in claims 47 and 48. Therefore, the previous rejection is withdrawn and a new rejection of the claims is made wherein Huisinga expressly teaches separately controllable fresh-air intake, exhaust, carbon-dioxide injection, humidity conditioning, and temperature conditioning. Folsom expressly teaches automatic carbon-dioxide makeup during flow-through operation. The new combination therefore provides affirmative evidence and a reasoned basis for operating ventilation independently while the carbon-dioxide loop compensates for dilution.
These claims remain subject to the previous provisional nonstatutory double-patenting rejection on the ground of being unpatentable over co-pending US Application No. 18/064,406 claims (as amended), which now includes claims 47 and 48, as detailed above. Although the claims are not identical in scope because their respective base claims differ, the instant claims are not patentably distinct from the corresponding reference claims. The claimed subject matter of the reference application is fully encompassed by the instant claims, and no different process step or operating condition distinguishes the instant claims from the corresponding reference claims. This provisional rejection may be overcome by establishing that the respective claims are patentably distinct or, if otherwise proper under 37 C.F.R. § 1.321 and the applicable patent-term relationships, by filing a compliant terminal disclaimer.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REBECCA L. SCOTLAND whose telephone number is (571) 272-2979. The examiner can normally be reached M-F 9:00 am to 5:00 pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at: http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A. Wax can be reached at (571) 272-0623. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at (866) 217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call (800) 786-9199 (IN USA OR CANADA) or (571) 272-1000.
/RL Scotland/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
