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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 September 9, 2025 has been entered.
Response to Arguments
Applicant’s amendments to claims 3 and 7 overcome the prior rejections under 35 USC 112 of claims 3 and 7.
Applicant’s arguments, see pages 9-12, filed September 9, 2025, with respect to claims 1 and 13 have been fully considered and are persuasive. The rejection of the claims has been withdrawn.
In particular, the examiner finds persuasive applicant’s remarks on page 11,
Neither document Fujitani nor document Adar disclose that sex determination is performed within an incubation period of 9 to 15 days on the basis of predefined wavelength subranges of a transmission spectrum in the range from 700 to 900 nm. Both Fujitani and Adar fail to teach or suggest utilizing this specific combination of features. Adar merely relates to individual wavelengths such as 740 nm and 850 nm without defining or evaluating subranges of a continuous spectrum….
Fujitani relates to the earliest possible determination of sex to make an economically and ethically relevant selection as soon as possible whereas Adar relates to a later analysis at about the tenth day, as only then can the signals required for Adar's approach be measured with sufficient strength. Thus, a person of ordinary skill in the art would not have sought to combine the teachings for an earliest possible determination of information with teachings for later applicability.
Therefore the rejections under 35 USC 103 are withdrawn.
Claim Rejections - 35 USC § 112
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 the applicant regards as his invention.
Claim 15 is 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 (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 15, the claim is written as a contingent limitation “if the program is executed by the computer”. It is unclear what happens with step M5 if the program is not executed by the computer. If Step M5 is not executed, then the claim would be rejected as not including all the limitations of parent claim 1.
It is also unclear if claim 15 is properly dependent upon claim 1, as steps M1 to M4 of claim 1 are written separately from step M5 of claim 1.
It is suggested to write claim 15 as “The method of claim 1, wherein the step M5 is performed by a computer” or the like.
Allowable Subject Matter
Claim 1-13 and 16 are allowed.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 1, the prior art of record, taken either alone or in combination, fails to disclose or render obvious a non-invasive method of determining sex of an avian embryo inside an egg, the method comprising, among other essential elements, candling the egg with light having a spectrum extending at least over the range of wavelengths from ≥ 700 nm to ≤ 900 nm from a light source, acquiring a transmission spectrum of the transmitted light captured based on one or more distinctive wavelength ranges, wherein the one or more distinctive wavelength ranges are in each case predefined wavelength subranges of a range of wavelengths from ≥ 700 nm to ≤ 900 nm as defined in step M2, in combination with the rest of the limitations of the above claim. Claims 2-12 and 16 are dependent from claim 1 and therefore are also included in the allowed subject matter.
Regarding claim 13, the prior art of record, taken either alone or in combination, fails to disclose or render obvious a system for non-invasively determining the sex of a chicken embryo inside an egg, wherein the egg has been incubated for a period in the range from ≥ 9 to ≤ 15 days after laying, the system comprising, among other essential elements, a light source for candling the egg with light having a spectrum extending at least over the range of wavelengths from ≥ 700 nm to ≤ 900 nm, a spectrometer for acquiring a transmission spectrum of the captured transmitted light as defined in element S2), wherein the transmission spectrum is based on one or more distinctive wavelength ranges and the one or more distinctive wavelength ranges are in each case predefined wavelength subranges of the range of wavelengths from ≥ 700 nm to ≤ 900 nm, in combination with the rest of the limitations of the above claim.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Adar (US20160100557A1) teaches a method of egg determination, but does not use a range of spectrums as claimed, nor is there any reason to combine Adar with the prior art of record to render the claims obvious.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOMINIC J BOLOGNA whose telephone number is (571)272-9282. The examiner can normally be reached Monday - Friday 7:30am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kara E Geisel can be reached at (571) 272-2416. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DOMINIC J BOLOGNA/Primary Examiner, Art Unit 2877
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