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 .
Applicant's amendment and reply filed May 27, 2026 have been received and entered into the case. Claims 13 - 18 are pending and have been considered on the merits. All arguments have been fully considered.
Claim Objections
Previous objections are withdrawn due to minor grammatical corrections.
Claim Rejections - 35 USC § 112
Previous rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, are withdrawn due to the amendments clarifying the previously identified indefinite language.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 18 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
The claim recites forms of selenium which are already recited in the claim on which it depends (claim 13).
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
Previous rejections under 35 U.S.C. 103 as being unpatentable over He (CN 112956588 A), Li (CN 114470178 A) and Wang (CN 104547174 B) are withdrawn.
Applicant argues the references individually in that none of the cited references teach all 16 ingredients, three stream extraction methods, or fermentation conditions requiring 20% addition and two fermentations (e.g., step 5). Specifically, He, Li and Wang do not teach all of the claimed ingredients nor provide motivation to combine them; that the references do not teach or suggest a three stream extraction of the 16 ingredients; and that while He teaches adding 30% FOS and IMO with 3 fermentations, the reference does not suggest 20% FOS and IMO with two fermentations, and that the claimed steps are not an obvious difference based on routine experimentation. Applicant argues that this is supported by the fact that the claimed method reduces sugar percentage and still achieves 99.99% viral inactivation rate (Table 2).
Applicant's arguments are persuasive. Applicant additionally demonstrates that the claimed combination of components together in the claimed amounts yields superior and unexpected results compared to compositions that do not include all of the claimed components (Table 2).
Double Patenting
Claims 13 – 18 remain provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 20 of copending Application No. 18/534 574 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the reference applicant is drawn to an antiviral (claims 5 – 9, 15 – 18) animal feed additive made from the same active components in the same amounts (claims 1 – 2) that are made by the same methods (claim 2 – 4, 10 – 14, 19 – 20).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Previous provisional rejections on the ground of nonstatutory double patenting are withdrawn, there being no other pending rejections.
Please note, per MPEP 804 (I)(B)(1)(b)(ii):
Application under examination has the same patent term filing date
If both the application under examination and the reference application have the same patent term filing date, the provisional nonstatutory double patenting rejection made in each application should be maintained until it is overcome. Provisional nonstatutory double patenting rejections are subject to the requirements of 37 CFR 1.111(b). Thus, applicant can overcome a provisional nonstatutory double patenting rejection by filing a reply that either shows that the claims subject to the rejection are patentably distinct from the claims of the reference application, or includes a compliant terminal disclaimer under 37 CFR 1.321 that obviates the rejection. If the reply is sufficient, the examiner will withdraw the nonstatutory double patenting rejection in the application in which it was submitted.
No claims are allowed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUTH A DAVIS whose telephone number is (571)272-0915. The examiner can normally be reached Monday - Friday (8am - 4pm).
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, Fereydoun Sajjadi can be reached at 571-272-3311. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUTH A DAVIS/Primary Examiner, Art Unit 1699
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