DETAILED ACTION
Previous Rejections
Applicant’s arguments, filed September 3, 2025, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Rejections - 35 USC § 103 (Maintained)
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.
Claims 1-2 and 7-17 are rejected under 35 U.S.C. 103 as being as being obvious over Fujiwara et al. (WO 2020/138246 A1), in view of Emami et al. (Published July, 2021. https://doi.org/10.1016/j.psj.2021.101167).
Fujiwara discloses a method where poultry are provided with drinking water containing gas ultrafine nanobubbles (claim 1; English translation, pg. 3, paragraph 5), where the water is administered enterally (claim 7), and the gas is oxygen (claim 3).
Fujiwara does not disclose that the method is used for reducing or eliminating the incidence of woody breast in a poultry.
Emami discloses that hypoxia (low oxygen) is a cause of woody breast myopathy in poultry (pg. 7, right column). Emani teaches that this disease leads to many adverse economic impacts including (1) on-farm culling and mortality, (2) lower meat yield due to decreased protein content, and increased fat and collagen content, (3) down-grading and condemnation at processing, (4) reduced protein functionality in further processed products, and (5) rejection from human consumption due to negative effects on visual appearance and overall consumer acceptance (Emani, pg 2, left column, lines 6-15).
It would have been prima facie obvious to a person having ordinary skill in the art to use the oxygen nanobubbles of Fujiwara to treat woody breast because hypoxia (low oxygen) is a known cause of woody breast myopathy (as taught by Emami, pg. 7, right column), and increasing oxygen through enterally administering oxygen nanobubbles (as taught by Fujiwara) would be reasonably expected to reduce it. An ordinarily skilled artisan would be motivated to use the oxygen nanobubbles to treat woody breast because this disease leads to many adverse economic impacts including (1) on-farm culling and mortality, (2) lower meat yield due to decreased protein content, and increased fat and collagen content, (3) down-grading and condemnation at processing, (4) reduced protein functionality in further processed products, and (5) rejection from human consumption due to negative effects on visual appearance and overall consumer acceptance (Emani, pg 2, left column, lines 6-15).
Claim 2 is rendered prima facie obvious because Fujiwara discloses that the poultry is chickens (claim 1).
Claims 7-9 are rendered prima facie obvious because Fujiwara discloses that in Test 1, test group 2 was fed water containing only the nanobubbles ([0111], English translation, pg. 14, bottom), with no additional components (i.e., 100 vol.% of the water made available to the chickens contained the nanobubbles).
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", a prima facie case of obviousness exists. MPEP 2144.05 A.
Claims 10 and 11 are rendered prima facie obvious because Fujiwara discloses that drinking water containing ultrafine bubbles may be fed from any time between when the chicken hatches and when it is introduced into the chicken house for egg collection ([0046], English translation, pg 3, bottom) which is at 120 days ([0003] English translation, pg. 2, paragraph 4).
A prima face case of obviousness exists because of overlap, as previously discussed.
Claims 12-14 are rendered prima facie obvious because Fujiwara discloses the diameter of the bubbles is 1 - 1000 nm ([0043] English translation, pg. 3, paragraph 5).
A prima face case of obviousness exists because of overlap, as previously discussed.
Claims 15-17 are rendered prima facie obvious because Fujiwara discloses the concentration of bubbles is 1×107 /mL or more, and the upper limit for the ease of production is 1012 /mL or less ([0044] English translation, pg. 3, paragraph 6).
A prima face case of obviousness exists because of overlap, as discussed above.
Response to Arguments
Applicant's arguments filed 09/03/2025 have been fully considered but they are not persuasive.
Applicant argues that the combination of Fujiwara and Emami does not teach or suggest the feature of claim 1 and the noted features would not have been obvious from the combination of Fujiwara and Emami because there is no suggestion from the references that feeding drinking water containing oxygen nanobubbles would reduce hypoxia.
The Examiner disagrees that this feature would not have been obvious from the teachings of the prior art. Hypoxia is known to be insufficient oxygen and one of ordinary skill in the art would reasonably expect that providing an animal with oxygen (as taught by Fujiwara) would improve oxygen levels (i.e., reduce hypoxia). However, as further evidence, studies have shown that enteric delivery of oxygenated water improves oxygen levels in animals. Fang et al. (Journal of Healthcare Engineering, 2020, doi:10.1155/2020/1323270) shows that giving oxygenated drinking water to rats enhances the rate of oxygen absorption (abstract). Schlenker (The Effectiveness of Embryonic Carbon Dioxide Exposure and Oxygenated Nanobubble Supplementation as Potential Methods for Alleviating Woody Breast, 2021) shows that when broiler chickens were given drinking water enriched with oxygenated nanobubbles, blood gas analysis showed significantly higher blood O2 levels (pg. 105). Therefore, as Fujiwara discloses enterally administering oxygen gas nanobubbles to poultry, Emami discloses that hypoxia (low oxygen) is a cause of woody breast myopathy in poultry, and one of ordinary skill in the art would reasonably expect that providing an animal with oxygen would improve oxygen levels (with further evidence provided by Fang and Schlenker) claim 1 is obvious over Fujiwara and Emami.
Applicant also argues that it would not have been obvious to use the egg production improving method of Fujiwara to treat woody breast.
The Examiner disagrees. Fujiwara and Emami are from the same field of endeavor (treatment of poultry) and one would be motivated to use the oxygen nanobubbles of Fujiwara to treat woody breast for the reasons discussed above.
Claims 3-6 are rejected under 35 U.S.C. 103 as being as being obvious over Fujiwara (WO 2020/138246 A1) in view of Emami et al. (Published July, 2021. https://doi.org/10.1016/j.psj.2021.101167) and further in view of Jung et al (KR 2014/0074482 A)
The 35 U.S.C. 103 rejection over Fujiwara in view of Emami was previously discussed.
Fujiwara does not disclose that the nanobubbles comprise 50-100 vol.% oxygen, as recited in claim 3, 90-100 vol.% oxygen as recited in claim 4, or at least 99 vol% oxygen, as recited in claim 5.
Jung discloses a method of producing a drinking water for livestock, including poultry ([0033] English translation, pg. 3, paragraph 2), wherein the drinking water contains a functional gas, such as oxygen (English translation, pg. 3, paragraph 4), as nano-bubbles (abstract) which can enhance immunity (English translation, pg. 2, paragraph 4). Jung discloses in Example 1 the production of oxygen-containing drinking water for livestock where only oxygen gas and no additional gases were supplied ([0047], English translation, pg 4, top).
Since Fujiwara generally teaches drinking water for poultry, it would have been prima facie obvious to one of ordinary skill in the art to include 100 vol. % oxygen nanobubbles, within the teachings of Fujiwara, because Jung teaches 100 vol. % oxygen nanobubbles in drinking water for poultry. An ordinarily skilled artisan would be motivated to use 100 vol. % oxygen nanobubbles because Jung teaches 100 vol. % oxygen as a functional gas for the drinking water to enhance immunity (abstract, English translation, pg. 3, paragraph 4; pg. 2, paragraph 4).
A prima face case of obviousness exists because of overlap, as previously discussed.
Regarding claim 6, Fujiwara does not disclose the pressure that the water containing nanobubbles is maintained at until it is administered to the chicken.
Jung discloses the pressure of the nanobubbles in the final production step is 1 to 2 atm (14.7-29.39 psig) ([0034], English translation, pg. 3 paragraph 3) so the nanobubble population can be maintained ([0048], English translation, pg. 4, paragraph 4).
It would have been prima facie obvious to a person having ordinary skill in the art to use a pressure of 1 to 2 atm (14.7-29.39 psig) as taught by Jung, within the teachings of Fujiwara, in order to maintain the nanobubble population as taught by Jung ([0048], English translation, pg. 4, paragraph 4).
A prima face case of obviousness exists because of overlap, as previously discussed.
Response to Arguments
Applicant did not traverse the rejection of Fujiwara in view of Emami and further in view of Jung.
Claims 18-20 are rejected under 35 U.S.C. 103 as being as being obvious over Fujiwara (WO 2020/138246 A1), in view of Emami et al. (Published July, 2021. https://doi.org/10.1016/j.psj.2021.101167) and further in view of Valela et al. (US 2002/0096792 A1).
The 35 U.S.C. 103 rejection over Fujiwara in view of Emami was previously discussed.
Fujiwara does not disclose the amount of oxygen in the water administered to the chicken in terms of milligrams of oxygen per liter of water, as recited in claims 18-20.
Valela discloses a method for increasing the oxygen content of water by introducing oxygen bubbles (abstract) where the amount of oxygen in the water is 48 mg of oxygen per liter of water (Claim 12). Valela teaches that the oxygenated water can be given to animals to bolster the immune system, treat infections and diseases, aid in vitamin absorption, and help the animal feel more energetic [0046]-[0050].
Since Fujiwara generally teaches oxygenated water for animals, it would have been prima facie obvious to one of ordinary skill in the art to include 48 mg of oxygen per liter of water, within the teachings of Fujiwara, because Valela teaches this amount of oxygen per liter of water in water to be given to animals. An ordinarily skilled artisan would be motivated to use this amount of oxygen per liter of water because Valela teaches that the oxygenated water is given to animals to bolster the immune system, treat infections and diseases, aid in vitamin absorption, and help the animal feel more energetic [0046]-[0050].
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists and similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05 A.
Response to Arguments
Applicant did not traverse the rejection of Fujiwara in view of Emami and further in view of Valela.
Terminal Disclaimer
The terminal disclaimer filed on 09/03/2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of 18/064,406 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ashlee E Wertz whose telephone number is (571)270-7663. The examiner can normally be reached Monday - Friday, 8 AM - 5 PM.
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/ASHLEE E WERTZ/Examiner, Art Unit 1612
/FREDERICK F KRASS/Supervisory Patent Examiner, Art Unit 1612