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 .
The amendment and response filed on June 25, 2026 are received.
Claims 1-11 are pending, claims 4-9 are withdrawn from further consideration, and claims 1-3 and 10-11 are being examined (See Restriction/Election below).
Restriction/Election:
Applicant’s election without traverse of, Group I, claims 1-3 and 10-11, in the reply filed on 06/25/2026 is acknowledged.
Claims 4-9 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention (Group II), there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 06/25/2026
Objection(s):
Claims:
Claim 1 is objected to because of the following informalities:
In claim 1, line 2, delete “characterized by”, and line 5, before aqueous, insert –an--.
Appropriate correction is required.
Specification:
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code (See paragraphs [0002] and [0005]). Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
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.
Claim 2 is 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 pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
The invention appears to employ a specific strains: Rhodopseudomonas palustris CCTB 18, Lactobacillus plantarum CCTB27, Bacillus amyloliquefaciens CCTB06, Bacillus licheniformis CCTB07, and Saccharomyces cerevisiae CCTB 12.
It is not clear if the written description is sufficiently repeatable to avoid the need for a deposit.
Further it is unclear if the starting materials were readily available to the public at the time of invention.
However, it is not clear if the deposit meets all of the criteria set forth in 37 CFR 1.801-1.809. Applicant or applicant's representative may provide assurance of compliance with the requirements of 35 U.S.C § 112, first paragraph, in the following manner.
SUGGESTION FOR DEPOSIT OF BIOLOGICAL MATERIAL
A declaration by applicant, assignee, or applicant's agent identifying a deposit of biological material and averring the following may be sufficient to overcome an objection and rejection based on a lack of availability of biological material.
1. Identifies declarant.
2. States that a deposit of the material has been made in a depository affording permanence of the deposit and ready accessibility thereto by the public if a patent is granted. The depository is to be identified by name and address.
3. States that the deposited material has been accorded a specific (recited) accession number.
4. States that all restriction on the availability to the public of the material so deposited will be irrevocably removed upon the granting of a patent.
5. States that the material has been deposited under conditions that access to the material will be available during the pendency of the patent application to one determined by the Commissioner to be entitled thereto under 37 CFR 1.14 and 35 U.S.C § 122.
6. States that the deposited material will be maintained with all the care necessary to keep it viable and uncontaminated for a period of at least five years after the most recent request for the furnishing of a sample of the deposited microorganism, and in any case, for a period of at least thirty (30) years after the date of deposit for the enforceable life of the patent, whichever period is longer.
7. That he/she declares further that all statements made therein of his/her own knowledge are true and that all statements made on information and belief are believed to be true, and further that these statements were made with knowledge that willful false statements and the like so made are punishable by fine or imprisonment, or both, under section 1001 of Title 18 of the United States Code and that such willful false statements may jeopardize the validity of the instant patent application or any patent issuing thereon.
Alternatively, it may be averred that deposited material has been accepted for deposit under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the purpose of Patent Procedure (e.g. see 961 OG 21, 1977) and that all restrictions on the availability to the public of the material so deposited will be irrevocably removed upon the granting of a patent.
Additionally, the deposit must be referred to in the body of the specification and be identified by deposit (accession) number, date of deposit, name and address of the depository and the complete taxonomic description.
Copies of deposit receipts are required.
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.
Claims 1-3 and 10-11 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 (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In claim 1, line 5, the phrase “yeast-like fungus” is indefinite because it is not exactly cleat what applicant is trying to encompass by this recitation. As such the scope of the claim is not clearly set forth.
Suggestion to obviate the rejection: replace “yeast-like fungus” with –a yeast--.
Regarding claim 2, line 1, the phrase “preferred” and line 4, the phrase "preferably”, render the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Suggestion to obviate the rejection: delete “preferred” and "preferably”.
In claim 3, the recitation “characterized by being able to additionally have excipients, veterinary carriers and other products suitable to oral treatment of poultry with heat stress by feed supplements” is confusing and renders the claim indefinite because it is not exactly clear what applicant is trying to encompass by these recitations. In addition, “the other products suitable to oral treatment of poultry with heat stress by feed supplements” are not defined. As such the scope of the claim is not clearly set forth.
Suggestion to obviate the rejection: amend to better define the claimed limitations or cancel the claim.
Regarding claim 11, lines 2 and 3, the phrase "preferably” (both occurrences), render the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Suggestion to obviate the rejection: delete “preferably” (both occurrences).
Claims 10 and 11 are indefinite because they recite a “use” without reciting a particular step or steps, as such they are improper definition of a process and are indefinite.
Suggestion to obviate the rejection: cancel the claims.
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 10 and 11 are rejected under 35 U.S.C. 101 because;
the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because they recite a use without reciting any particular step or steps, as such they fail to fall within at least one of the four categories of patent eligible subject matter, i.e., process, machine, manufacture, or composition of matter.
Claim Rejections - 35 USC § 103
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 1-3 and 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Wood (WO 2019/178309, which is also cited in IDS filed on 11/22/2024).
Claim interpretation:
In claim 1, the phrase “for higher heat stress tolerance in poultry” and “directed to treating poultry at high temperature” are not given patentable weight because they only state the intended use of the claimed composition and the body of the claim defines a structurally complete invention.
Regarding claim 1, Wood teaches a probiotic composition for higher heat stress tolerance in poultry, characterized by comprising the microbiological combination of: 50.001% to 99.995% of Rhodopseudomonas palustris, 0.001% to 49.995% of Lactobacillus plantarum, 0.001% to 49.995% of Bacillus amyloliquefaciens, 0.001% to 49.995% of Bacillus licheniformis, as well as 0.001% to 49.995% of a species of yeast-like fungus, in aqueous carrier, directed to treating poultry at high temperature (Rhodopseudomonas palustris, Lactobacillus plantarum, Bacillus amyloliquefaciens, Bacillus licheniformis, and yeast/ Saccharomyces cerevisiae, … the composition is in liquid from comprising an aqueous suspension of components) (See for example, p. 6 paragraph [0025]- Continued on p. 7, p. 11 paragraph [0027], p. 16 paragraph [0042]). Regarding the claimed “%” amount of each microorganism in the composition of claim 1, Wood also teaches the microorganism in the composition is provided as a liquid and from about 1% and about 99% or more of the composition by weight (See p. 23 paragraph [0074]). As such, the % amount of each microorganism in the composition would have been optimized in the claimed composition as taught by Wood.
Regarding claim 3, Wood teaches additional excipients and carriers (for example, poultry feed additives, etc.) (See for example, p. 23 paragraph [0075]).
Regarding claims 10 and 11, Wood teaches feeding the animal the probiotic composition in order to maintain and improve health of the animal (See for example, p. 5 paragraph [0020)].
Regarding claim 2, although Wood does not teach the claimed designation numbers CCTB18, CCTB27, CCTB06, CCTB07 and CCTB 12, however the strains of Rhodopseudomonas palustris, Lactobacillus plantarum, Bacillus amyloliquefaciens, Bacillus licheniformis, and Saccharomyces cerevisiae taught by Wood appear to be the same as the claimed strains of Rhodopseudomonas palustris, Lactobacillus plantarum, Bacillus amyloliquefaciens, Bacillus licheniformis, and Saccharomyces cerevisiae
Moreover, a person of ordinary skill in the art before the effective filing date of the invention
knowing the health benefits of the probiotic strains Rhodopseudomonas palustris, Lactobacillus plantarum, Bacillus amyloliquefaciens, Bacillus licheniformis, and Saccharomyces cerevisiae as taught by Wood, would have been capable of obtaining deposit numbers for said probiotic strains Rhodopseudomonas palustris, Lactobacillus plantarum, Bacillus amyloliquefaciens, Bacillus licheniformis, and Saccharomyces cerevisiae, with a reasonable expectation of success in providing the claimed composition of claim 2.
Conclusion(s):
No claim(s) is allowed at this time.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KADE ARIANI whose telephone number is (571)272-6083. The examiner can normally be reached IFP, Monday - Friday, 8:00 AM -4:00 PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Melenie L. Gordon can be reached at (571)272-8037. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KADE ARIANI/Primary Examiner, Art Unit 1651
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