DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This office action is in regard to the application filed on October 12, 2022 and in response to a Request for Continued Examination filed on February 24, 2026. The earliest effective filing date of the application is October 13, 2021.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 24, 2026 has been entered.
Status of Application
The amendment filed February 24, 2026 has been entered. Claims 1, 2, 4, and 12-28 are currently pending in the application; claims 3 and 5-11 are canceled; claims 1, 12, and 27 have been amended. Claims 1, 2, 4, and 12-28 are hereby examined on the merits.
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, 2, 4, and 12-28 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.
Claims 1, 12, and 27 have been amended to recite that the antimicrobial composition kills or deactivates the microbes without leading to microbial resistance and without requiring an immune response from an animal. While there is support for the “without leading to microbial resistance” limitation, no support is found in the specification or claims as originally filed for the “without requiring an immune response from an animal” limitation. While applicant points to paragraphs [0101]-[0106] of the instant specification as support for this amended limitation, this example does not contemplate immune response, or even mention it, in any way, and as such, there is nothing to support the claimed properties and lack of immune response.
Therefore, applicant is not considered to have support for amended claims 1, 12, and 27.
Claims 2-4, 12-6, and 28 are rejected as being dependent on a rejected base claim.
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.
Claims 1, 4, and 12-26 are rejected under 35 U.S.C. 103 as being unpatentable over Niedermeyer (US PG Pub. 2016/0081346) in view of Calderon-Nieva et al. (“Veterinary vaccine nanotechnology: pulmonary and nasal delivery in livestock animals,” Drug Delivery and Translational Research, vol. 7, pp. 558-570; 2017), herein after referred to as Niedermeyer and Calderon-Nieva respectively.
Regarding claims 1 and 4, Niedermeyer teaches a method of controlling microbes (Abstract) in animals ([0083]; [0086]) comprising:
introducing an antimicrobial nanoparticle composition [0039] into an animal ([0083]; [0086]), the antimicrobial composition including:
a carrier [0083]; and
a plurality of nonionic metal nanoparticles [0042] dispersed within the carrier [0039], the metal nanoparticles comprising spherical-shaped or coral-shaped nanoparticles having no external bond angles or edges ([0043]; [0047]) and having a particle size and a particle size distribution selected so as to selectively and preferentially kill one of a bacterium, a fungus, or a virus [0040]; and
applying the antimicrobial nanoparticle composition onto or into a substrate containing microbes, the antimicrobial composition killing or deactivating the microbes [0025].
Niedermeyer teaches that the coral-shaped nanoparticles are formed by the method disclosed in U.S. Provisional Application 62/054,126 [0049] – the method of which is laser ablation. Therefore, where Niedermeyer incorporates this provisional application by reference, Niedermeyer teaches that the plurality of nonionic metal nanoparticles are formed by laser ablation.
Alternatively, the claim limitation of “nonionic metal nanoparticles formed by laser ablation” can been construed as a product by process limitation such that the claim is not limited to the manipulations of the steps but only the implied structure. See MPEP 2113. As such, the implied structure is a plurality of nonionic metal nanoparticles. Moreover, absent a clear showing that the method of forming the component (e.g., nonionic metal nanoparticles) is critical, the manner in which the claimed composition is prepared is not considered to contribute to the overall patentability of the claimed composition as the nanoparticles of the prior art is considered to be the same nanoparticles as claimed.
Niedermeyer is silent as to that the antimicrobial composition kills or deactivates the microbes without leading to microbial resistance and without requiring an immune response from an animal.
However, where the claimed and prior art products are substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01. Since the method and composition of Niedermeyer are substantially identical to that of the claimed method and composition, the prior art product must necessarily possess the same properties and characteristics as the composition claimed. Therefore, the method and composition taught by Niedermeyer are considered to possess the property that the microbes are killed and deactivated without leading to microbial resistance and without requiring an immune response from an animal as claimed because the method and composition are substantially the same and thus must necessarily exhibit the same properties.
Niedermeyer is silent as to that introducing the antimicrobial nanoparticle composition includes spraying or dispensing the antimicrobial nanoparticle composition into the air of the animal living area.
Calderon-Nieva, in the same field of invention, teaches dispensing vaccines to poultry through coarse spray vaccines (i.e., aerosol administration) (p. 560, beginning of last sentence in left column to line 3 in right column), where it is delivered into the poultry housing facilities (i.e., into the air of a poultry living area) (p. 560, right column, second full paragraph, lines 3-7). The subject of Calderon-Nieva is that of food animals for human consumers (p. 558, second paragraph under “Introduction”); broiler chickens (chickens specifically raised for meat) are also discussed (p. 563, left column, second paragraph), thus the poultry discussed is poultry for slaughter. Calderon-Nieva also teaches coarse spray administration (i.e., aerosol administration) for nanoparticles vaccines to poultry (Table 1, fifth down), as well as nanoparticle vaccines via spray in general (p. 565, left column, second full paragraph, lines 1-7).
Therefore, as it was known in the art to dispense nanoparticle compositions into the living area of an animal, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have dispensed the claimed composition into the living area as claimed, since Calderon-Nieva teaches that nanoparticle compositions are known to be dispensed into the air of the living areas of animals.
Regarding claims 12 and 14, Niedermeyer teaches a method of controlling microbes (Abstract) in animals ([0083]; [0086]) comprising:
introducing an antimicrobial nanoparticle composition [0039] into an animal ([0083]; [0086]), the antimicrobial composition including:
a carrier [0083]; and
a plurality of nonionic metal nanoparticles [0042] dispersed within the carrier [0039], the metal nanoparticles comprising spherical-shaped or coral-shaped nanoparticles having no external bond angles or edges ([0043]; [0047]);
wherein the antimicrobial nanoparticle composition kills or deactivates the microbes [0025].
Niedermeyer teaches that the coral-shaped nanoparticles are formed by the method disclosed in U.S. Provisional Application 62/054,126 [0049] – the method of which is laser ablation. Therefore, where Niedermeyer incorporates this provisional application by reference, Niedermeyer teaches that the plurality of nonionic metal nanoparticles are formed by laser ablation.
Alternatively, the claim limitation of “nonionic metal nanoparticles formed by laser ablation” can been construed as a product by process limitation such that the claim is not limited to the manipulations of the steps but only the implied structure. See MPEP 2113. As such, the implied structure is a plurality of nonionic metal nanoparticles. Moreover, absent a clear showing that the method of forming the component (e.g., nonionic metal nanoparticles) is critical, the manner in which the claimed composition is prepared is not considered to contribute to the overall patentability of the claimed composition as the nanoparticles of the prior art is considered to be the same nanoparticles as claimed.
Niedermeyer is silent as to that the antimicrobial composition kills or deactivates the microbes without leading to microbial resistance and without requiring an immune response from an animal.
However, where the claimed and prior art products are substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01. Since the method and composition of Niedermeyer are substantially identical to that of the claimed method and composition, the prior art product must necessarily possess the same properties and characteristics as the composition claimed. Therefore, the method and composition taught by Niedermeyer are considered to possess the property that the microbes are killed and deactivated without leading to microbial resistance and without requiring an immune response from an animal as claimed because the method and composition are substantially the same and thus must necessarily exhibit the same properties.
Niedermeyer is silent as to that introducing the antimicrobial nanoparticle composition into the stage of the food processing chain includes spraying or dispensing the antimicrobial nanoparticle composition into the air of the animal living area.
Calderon-Nieva, in the same field of invention, teaches dispensing vaccines to poultry through coarse spray vaccines (i.e., aerosol administration) (p. 560, beginning of last sentence in left column to line 3 in right column), where it is delivered into the poultry housing facilities (i.e., into the air of a poultry living area) (p. 560, right column, second full paragraph, lines 3-7). The subject of Calderon-Nieva is that of food animals to human consumers (p. 558, second paragraph under “Introduction”); broiler chickens (chickens specifically raised for meat) are also discussed (p. 563, left column, second paragraph), thus the poultry discussed is poultry for slaughter. Calderon-Nieva also teaches coarse spray administration (i.e., aerosol administration) for nanoparticles vaccines to poultry (Table 1, fifth down), as well as nanoparticle vaccines via spray in general (p. 565, left column, second full paragraph, lines 1-7).
Therefore, as it was known in the art to dispense nanoparticle compositions in the living area of an animal, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have dispensed the claimed composition into the living area as claimed, since Calderon-Nieva teaches that nanoparticle compositions are known to be dispensed into the air in the living areas of animals.
Regarding claim 13, modified Niedermeyer is silent as to that the nonionic metal nanoparticles prevent antimicrobial resistance to a greater degree than ionic metal nanoparticles formed by chemical synthesis so as to have external bond angles and edges.
However, where the claimed and prior art products are substantially identical in structure or composition, a prima facie case of obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Since the method and composition of modified Niedermeyer is substantially identical to that as claimed, the prior art product must necessarily possess the same properties and characteristics as the method and composition claimed. Therefore, the nonionic metal nanoparticles taught by modified Niedermeyer is considered to possess the prevention of antimicrobial resistance as claimed because the methods and compositions are substantially the same and thus must necessarily exhibit the same properties.
Regarding claims 15-23, the claims are met through the rejection of claim 12 as set forth above with regard to introducing the antimicrobial nanoparticle composition into the stage of the food processing chain. Claim 12 requires the optional selection of applying the nanoparticle composition to a feeding apparatus, applying the nanoparticle composition to animal food and/or water, applying the nanoparticle composition to an animal prior to, during, or after being slaughtered, incorporating the nanoparticle composition into food processing water, applying the nanoparticle composition to food processing equipment as a disinfectant incorporating the nanoparticle composition into food packaging, or applying the nanoparticle composition directly to a food product; by not selecting the any option in order to meet claim 12, claims 15-23 are also considered to be met.
Regarding claim 24, Niedermeyer teaches that the metal nanoparticles comprise gold or silver nanoparticles [0024].
Regarding claim 25, Niedermeyer teaches that the metal nanoparticles comprise spherical-shaped nanoparticles, and wherein at least 99% of the spherical-shaped nanoparticles have a diameter within ± 3 nm of the mean diameter or within 30% of the mean diameter [0022].
Regarding claim 26, Niedermeyer teaches that the coral-shaped nanoparticles have a particle size of about 15-100 nm [0048], each coral-shaped metal nanoparticle having a non-uniform cross section and a globular structure formed by multiple, non-linear strands joined together without right angles [0023].
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Niedermeyer (US PG Pub. 2016/0081346) in view of Calderon-Nieva et al. (“Veterinary vaccine nanotechnology: pulmonary and nasal delivery in livestock animals,” Drug Delivery and Translational Research, vol. 7, pp. 558-570; 2017), as applied to claim 1 above, and further in view of Weeden (US PG Pub. 2018/0364742).
Modified Niedermeyer teaches the method of controlling microbes in a food processing chain as set forth above.
Modified Niedermeyer is silent as to that the antimicrobial nanoparticle composition is introduced by a cooling system dispersing the antimicrobial nanoparticles composition into the air of the animal living area.
Weeden, in the same field of invention, teaches a sprinkler cooling system for a poultry house (Abstract) that has additives added to the water that is sprayed in the house [0029].
Therefore, as it was known in the art to spray poultry houses by a cooling system with additives added to the water, it would have been obvious to have introduced the antimicrobial nanoparticle composition as claimed, as Weeden teaches that additives are known to be introduced into poultry houses via cooling systems.
Claims 27 and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Niedermeyer (US PG Pub. 2016/0081346) in view of Calderon-Nieva et al. (“Veterinary vaccine nanotechnology: pulmonary and nasal delivery in livestock animals,” Drug Delivery and Translational Research, vol. 7, pp. 558-570; 2017) and Reuter et al. (US PG Pub. 2015/0257400; listed on IDS dated April 4, 2023).
Regarding claim 27, Niedermeyer teaches a method of controlling microbes (Abstract) in animals ([0083]; [0086]) comprising:
introducing an antimicrobial nanoparticle composition [0039] into an animal ([0083]; [0086]), the antimicrobial composition including:
a carrier [0083]; and
a plurality of nonionic metal nanoparticles [0042] dispersed within the carrier at a concentration of 10 ppb to 100 ppm [0077], wherein the metal nanoparticles comprise spherical-shaped nanoparticles [0043], wherein the metal nanoparticles comprises gold or silver nanoparticles [0024], and wherein at least 99% of the spherical-shaped nanoparticles have a diameter within ± 3 nm of the mean diameter or within 30% of the mean diameter [0022],
wherein the antimicrobial nanoparticle composition kills or deactivates the microbes [0025], and
wherein the antimicrobial nanoparticle is introduced into a living organism [0025].
Niedermeyer is silent as to that the antimicrobial composition kills or deactivates the microbes without leading to microbial resistance and without requiring an immune response from an animal.
However, where the claimed and prior art products are substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01. Since the method and composition of Niedermeyer are substantially identical to that of the claimed method and composition, the prior art product must necessarily possess the same properties and characteristics as the composition claimed. Therefore, the method and composition taught by Niedermeyer are considered to possess the property that the microbes are killed and deactivated without leading to microbial resistance and without requiring an immune response from an animal as claimed because the method and composition are substantially the same and thus must necessarily exhibit the same properties.
Niedermeyer is silent as to that introducing the antimicrobial nanoparticle composition into the stage of the food processing chain includes spraying or dispensing the antimicrobial nanoparticle composition into the air of the animal living area.
Calderon-Nieva, in the same field of invention, teaches dispensing vaccines to poultry through coarse spray vaccines (i.e., aerosol administration) (p. 560, beginning of last sentence in left column to line 3 in right column), where it is delivered into the poultry housing facilities (i.e., into the air of a poultry living area) (p. 560, right column, second full paragraph, lines 3-7). The subject of Calderon-Nieva is that of food animals to human consumers (p. 558, second paragraph under “Introduction”); broiler chickens (chickens specifically raised for meat) are also discussed (p. 563, left column, second paragraph), thus the poultry discussed is poultry for slaughter. Calderon-Nieva also teaches coarse spray administration (i.e., aerosol administration) for nanoparticles vaccines to poultry (Table 1, fifth down), as well as nanoparticle vaccines via spray in general (p. 565, left column, second full paragraph, lines 1-7).
Therefore, as it was known in the art to dispense nanoparticle compositions in the living area of an animal, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have dispensed the claimed composition into the living area as claimed, since Calderon-Nieva teaches that nanoparticle compositions are known to be dispensed into the air in the living areas of animals.
Niedermeyer is silent as to that the antimicrobial nanoparticle composition is applied directly to a food product.
Reuter, in the same field of invention, teaches applying antimicrobial compositions to a living animal, a dressed carcass, or a cut of meat (i.e., a food product) in order to inhibit foodborne pathogens (i.e., microbial growth in a food processing chain) (Abstract).
Therefore, as it was known in the art to apply antimicrobial compositions to a food product, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have applied the antimicrobial composition to an animal as claimed, since Reuter teaches that antimicrobial compositions are known to be applied to food products in order to control microbes in a food processing chain.
Regarding claim 28, modified Niedermeyer is silent as to that the nonionic metal nanoparticles prevent antimicrobial resistance to a greater degree than ionic metal nanoparticles.
However, where the claimed and prior art products are substantially identical in structure or composition, a prima facie case of obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Since the method and composition of modified Niedermeyer is substantially identical to that as claimed, the prior art product must necessarily possess the same properties and characteristics as the method and composition claimed. Therefore, the nonionic metal nanoparticles taught by modified Niedermeyer is considered to possess the prevention of antimicrobial resistance as claimed because the methods and compositions are substantially the same and thus must necessarily exhibit the same properties.
Response to Arguments
Applicant's arguments filed February 24, 2026 have been fully considered but they are not persuasive.
The prior art rejection has been amended in light of applicant’s amendments to the claims; however, the essential prior art rejection has been maintained by the examiner for the following reasons.
Applicant argues that the conventional silver and chemically synthesized nanoparticles have a known problem of microbial resistance development and that the references do not recognize this problem nor do the references teach that the nanoparticles avoid such antimicrobial resistance (remarks, p. 8).
This argument is not persuasive. First, as explained above in the rejection, where the claimed and prior art products are substantially identical in structure or composition, a prima facie case of obviousness has been established, and are considered to possess the same properties; the method and composition are substantially the same and thus must necessarily exhibit the same properties. Applicant has not shown that the particles taught by Neidermeyer are different from the claimed particles. Second, the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See MPEP 2144.IV. Lastly, the nanoparticles of Niedermeyer are not chemically synthesized and they can be made from other metals than silver, and as such, there would be little to no reason for Niedermeyer to recognize the problems with silver and chemically synthesized nanoparticles.
Applicant argues that Calderon-Nieva does not teach or suggest a method for killing or deactivating microbes without requiring an immune response and that Calderon-Nieva does not disclose the use of nanoparticles to kill or deactivate microbes (remarks, p. 8-9).
This argument is not persuasive. Calderon-Nieva is used only to teach the spray/dispersion of a vaccine/antimicrobial nanoparticles, it does not need to also teach the nanoparticles as claimed where Niedermeyer already teaches that.
Applicant argues that there is not a proper motivation to combine the references and the combination relies on impermissible hindsight reconstruction (remarks, p. 9-10).
This argument is not persuasive. The prior art references are in the same field of invention and the motivation to combine is indeed proper, as it is rationale A of the KSR rationales as outlines in MPEP 2143.I.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant argues that the prior art references fail to teach the limitations of claims 27 and 28 and that there is not proper motivation to combine the references (remarks, p. 10-11).
This argument is not persuasive. The combined references do teach the limitations of claims 27 and 28 as set forth above with regard to the rejection. There is proper motivation to combine as all three references are in the same field of invention and teach different aspects of specific steps to limit microbial growth. They each differ in teaching the what (the nanoparticles), how (spray delivery), and where (living animal, etc.). The motivation is rationale A of the KSR rationales as outlines in MPEP 2143.I.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAURA E SWEENEY whose telephone number is (571)272-0244. The examiner can normally be reached M-F 9:00-6:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571)-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
