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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 March 28, 2025 has been entered.
Response to Amendment
Those objections and rejections not repeated in this Office Action have been withdrawn.
Claims 1, 5, 8-10, 12, 13, 30, 31, 33, 34, 36, 39 are currently pending and rejected.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and coBntents 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, 5, 8-10, 12-13, 30, 31, 33, 34, 36 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Senaydin (WO2012173579) in view of Overholt (US 6409041), Blanchard (US 20090261092), Bodary (US 5121877), Jackson ("Growing to Retailing, A Global Perspective Australia's Position”), Raudalus (US 5556658) and Dowd (US 20100147840).
Regarding claim 1, Senaydin teaches an arrangement of plastic shipping containers (see figure 9; see at least, page 6, line 18 - “wooden or plastic case or corrugated cardboard box”; page 7, line 14-15; figure 9, item 50 - “wooden or plastic case…”). The arrangement comprises a pallet (figure 9, item 20, 30) having a top surface having a pallet length of about 48 inches and a pallet width of about 40 inches (see page 8, lines 14-16).
Senaydin further teaches eight layers of the plastic shipping containers, (see figure 9, which shows 8 tiers) each of the eight layers comprising six of the plastic shipping containers.
Regarding the limitation of, “each of the plastic shipping containers having a container length and a container width, the plastic shipping containers in each of the eight layers being arranged in two rows, each of the two rows having three of the plastic shipping containers, each of the six plastic shipping containers in each of the eight layers having a container width extending in the direction of the two rows and in the direction of the pallet width and having a container length extending in the direction of the pallet length, each of the plastic shipping containers having an exterior length that is about 24 inches, an exterior width that is about 13 inches, and an exterior height that is about 9.66 inches, a first of the eight layers disposed on the top surface of the pallet and seven of the eight layers arranged above the first layer,” it is noted that Senaydin teaches on page 8, that the dimensions of each container can be 23.62 x 13.11 inches (see the table: 600 x 333 mm), which thus reads on the about 24x13inch dimensions. For the above dimensions, the quantity per layer is shown as six (see page 8, “quantity per layer” for the row 600x333). It would thus have been obvious to one having ordinary skill in the art that in order for 6 containers having the above dimensions to fit on a 48 x 40 pallet, the width of each container would have to extend in the direction of the rows and in the direction of the pallet width, and the length of each container would have to extend in the direction of the pallet length. Figure 9 of Senaydin clearly teaches a first of the eight layers is disposed on the top surface of the pallet.
Claim 1 differs from Senaydin in reciting that the height of each container is about 9.66 inches and about 40 pounds of bananas being disposed in each container, the bananas disposed in a configuration consisting of three lines of bananas, the bananas having their crowns facing down.
Regarding bananas in each container, Senaydin is seen to be generic to any type of fruit, where the fruit continue to breath post-harvest (see page 1, line 10-11) and which require circulation of air for maintaining freshness, for example (see page 2, lines 1-4: “Poor circulation can have an effect on the commodity’s temperature…ethylene accumulation. If the conditioned air cannot circulate properly in the cold room, during transportation or retail display, shelf life of the product will be definitely affected.”).
While Senaydin is not specific to bananas, Overholt’041 teaches plastic containers (column 3, lines 54-65) for packaging bananas (column 3, line 60), that provide the requisite strength for stacking (column 1, lines 44-51) up to ten layers high (see column 5, lines 17-18) and which can have a similar footprint as Senaydin’s plastic containers (see column 6, lines 65-66 - 600mm x 333mm). Overholt’041’s containers also allow circulation of air and/or refrigerated gas to maintain the produce fresh (column 3, lines 60-65). Overholt’041 further teaches that the bananas can be placed into the plastic shipping containers in a “hands down” configuration, with the tips and crowns disposed downward (column 7, lines 40-41). This configuration reads on the claimed “crowns facing down configuration.” Overholt’041 is thus similar to Senaydin because Overholt’041 also teaches ventilated plastic containers, that can be stacked, and have a similar footprint to Senaydin; and where the containers can similarly be used for various fruits and vegetables, and also bananas (Overholt’041, column 3, lines 57-65). Blanchard further evidences that it has been desirable to provide stacking and ventilation of containers that are similar to those of Senaydin and Overholt’041, for the purpose of packaging and transporting bananas (see paragraph 2, 14, 16; figure 18). This is similar to Senaydin. As shown in figure 14, Blanchard also evidences that the stackable, plastic shipping containers can have bananas positioned in rows with the crowns facing down (see also paragraph 80). Blanchard further teaches that the crown down configuration has been useful for reducing damage to the bananas (see the abstract and paragraph 80 where the damage resistant portions 108 are referring to the crowns of the bananas - where the individual fingers meet). Additionally, Bodary clearly evidences that it has been conventional to package bananas on a pallet having eight tiers of containers (see figure 1-1B and column 5, lines 16-21).
Therefore, to modify Senaydin, in view of the teachings evidenced by Overholt’041, Blanchard and Bodary, and to package bananas in Senaydin’s containers when Senaydin is not limiting regarding the particular fruit in the containers, would have been obvious to one having ordinary skill in the art, based on similar types of containers recognized for the similar purpose of packaging and transporting respiring fruits including bananas so as to extend the shelf life of the bananas.
Regarding placing about 40 pounds of bananas in a configuration consisting of three lines of bananas with their crowns facing down, it is noted that Overholt’041 and Blanchard already evidence packaging bananas with their crowns facing down. Additionally, Jackson teaches packaging bananas in containers that can be 40 pound containers (see page 30, first bullet) and where bananas in the containers can have a configuration consisting of three lines of bananas with the crowns facing down (see figure 7 on page 31). While figure 7 shows 17kg (37.5lbs), the difference between 37.5 lbs. and 40 lbs. is so close that the difference between the two weights is seen to be prima facie obvious, especially since on page 30, Jackson already teaches 40 pound containers. In any case, Raudalus has only been relied on as further evidence that when packaging bananas in containers that are to be stacked on a pallet (see column 10, lines 25-28) that it has been conventional for the containers to contain 40 pounds of bananas (see column 10, line 66 to column 11, line 7).
Since Senaydin is teaching a similar concept of stacking containers onto a pallet, where the containers hold respiring fruit, to thus modify the combination and package 40 pounds of bananas as a three-row configuration with their crowns facing down within the containers would have been obvious to one having ordinary skill in the art, based on a known configuration for how bananas are conventionally positioned within the containers and based on conventional desired quantities of bananas within the containers. Further regarding the quantity of bananas, it would have been reasonable for one having ordinary skill in the art to conclude that Senaydin’s length and width dimensions would have been capable of holding 40 pounds of bananas, as Senaydin’s dimensions are similar to that of Applicant. Furthermore, in view of Blanchard, it would further have been obvious to one having ordinary skill in the art to modify Senaydin and to use the arrangement as shown in figure 7 on page 31 of Jackson for packaging bananas because Blanchard teaches that the crown-down configuration can be useful for reducing damage to the bananas (see Blanchard, figure 14; the abstract and paragraph 80 where the damage resistant portions 108 are referring to the crowns of the bananas - where the individual fingers meet; Figure 7 of Jackson also teaches that it is the crown of the banana clusters contacting the container).
The above combination is silent regarding the specific height of the containers being about 9.66 inches.
However, it is noted that Blanchard teaches that a conventional external height of the containers can be between 8.5-10.5 inches, thus encompassing the claimed height of “about 9.66 inches.” Specifically, on paragraph 20 and 82, Blanchard further teaches an external height of 9.66 inches (paragraph 20 and 82) and which height would obviously have been used for ensuring that the bananas remained within the bounds of the container (see figure 14), such as for protecting the contents from damage (see paragraph 18 and 88). Additionally, Overholt‘041 teaches that it has been conventional for containers for storage of bananas to have a length of 23.62 in (600mm) and a width of 13.11 inches (333 mm) and a height of 8.5in (216mm) but which dimensions are not seen to be limiting, thus suggesting modification of the dimensions (see column 6, lines 58-67). Dowd further teaches containers for bananas having a height of about 9.81 inches (see figure 6 which shows the container being 9 inches tall + each tray 12 having a thickness of 0.31 inches and the feet 64, 65 being 0.19 inches – paragraph 29). In view of the art teaching that the height of the containers can vary, and in view of about 9.66 inches being a conventional height to the containers and as Senaydin does not provide any specificity to the particular height of each container, to thus modify the height of Senaydin’s container and to use a height such as about 9.66inches as taught by Blanchard and Dowd, for example, been obvious to one having ordinary skill in the art for ensuring that the about 40 pounds of bananas are contained within the bounds of the container so as to prevent damage to the bananas when Senaydin’s containers are stacked.
Regarding limitation of, “each of the plastic shipping containers containing a first line of bananas along a bottom portion of the container, a second line of bananas along a top left portion of the container and a third line of bananas along a top right of the container, wherein each of the first line of bananas, the second line of bananas, and the third line of bananas extends in the direction of the container length and in the direction of the pallet length, and wherein the arrangement has a total of 144 lines of bananas in the plastic shipping containers arranged on the pallet,” it is noted that in view of Jackson, the combination teaches three lines of bananas in a container, where the lines extend the direction of the container length (see figure 7 of Jackson). In view of Senaydin the combination teaches eight layers of plastic shipping containers, and where each layer has two rows of three containers. Therefore, in view of Jackson, the combination further suggests the arrangement has a total of 144 lines of bananas (3 lines of bananas x 8 layers x 6 containers per layer = 144 lines of bananas).
Regarding the limitation of, “in each of the plastic shipping containers, the bananas in the first line of bananas, the bananas in the second line of bananas and the bananas in the third line of bananas being exposed to airflow from outside the plastic shipping containers” it is noted that Senaydin already teaches receiving airflow from outside the containers. It is also noted that Overholt’041 teaches plastic, stackable containers for ventilating fresh produce including bananas, and where the containers with the bananas are desirably ventilated. Blanchard similarly evidences stacked, plastic containers for bananas, where the stack allows for ventilation of the bananas and thus airflow therethrough (see at least figure 18 which shows air flow through the containers).
Regarding claim 5, Senaydin clearly teaches that each of the plastic shipping containers comprise a base, two endwalls and two sidewalls.
Regarding each of the two endwalls and each of the two sidewalls being movably connected to the base, and each of the two sidewalls is detachably coupled to the two endwalls to allow the plastic container to assume an erected configuration when the two sidewalls and the two endwalls are all upright, and a folded-down configuration when the two sidewalls and the two endwalls are all folded down, the claim differs from Senaydin in this regard.
However, Blanchard further teaches that each of the endwalls and each of the sidewalls being movably connected to the base, each of the sidewalls are detachably coupled to the two endwalls to allow the container to assume an erected configuration when the sidewalls and endwalls are all upright and a folded-down configuration when the sidewalls and endwalls are folded down for providing space efficient storage while providing a rigid structure for holding and protecting goods. (see figure 2 and paragraph 3).
To thus modify Senaydin’s plastic containers to have movable sidewalls and endwalls and where the sidewalls are connected to the end walls in an erected configuration and where the container can have a folded down configuration where all the walls are folded down, would have been obvious to one having ordinary skill in the art, for the purpose of providing space efficient storage of Senaydin’s containers when not in use.
Regarding claim 8, in view of Blanchard, the combination teaches the use of a plurality of hinges to connect the base to the two sidewalls and the two endwalls (see figures 2-6 and paragraph 7 of Blanchard) for the purpose of providing efficient storage when the containers are not in use.
Regarding claims 9-10, Senaydin appears to show the sidewall vent openings as aligned (see Figures 7-9, item 51-53), thus teaching a plurality of vent holes in each of the plastic shipping container’s two sidewalls and where at least one of the plastic hsipping containers is arranged so that at least some of the plurality of vent holes int eh two sidewalls completely or substantially align with at least some of the plurality of vent holes of the two sidewalls of at least one other of the plastic shipping containers.
If it could have been construed that Senaydin was not clear in this regard, then in view of the Blanchard, it would have been obvious to one having ordinary skill in the art that to have vent holes in the containers of Senaydin to be substantially or completely aligned with some of the vent holes in the sidewalls of one other of the plastic shipping containers for providing the requisite circulation and ventilation (see paragraph 23 of Blanchard).
To thus modify Senaydin who also desires air circulation, and to have the vent holes in the sidewalls or end walls align with at least one other container, would have been obvious to one having ordinary skill in the art for ensuring that the requisite air circulation through the entirety of the stack.
Regarding claim 12, Blanchard teaches each of the plastic shipping containers have a substantially flat and smooth interior and exterior floor (see figure 15; see paragraph 15-18) and where the smooth interior helps to reduce the incidence of damage to the products within the container (see paragraph 18).
Modification of Senaydin’s containers to have a substantially flat and smooth interior and exterior floor would have been obvious to one having ordinary skill in the art as a matter of engineer and/or design, as well as for preventing the container itself from damaging the bananas therein.
Further regarding claim 13, it is noted that since Senaydin teaches that the containers are plastic, that it would have been obvious to one having ordinary skill in the art that this would have included using thermoplastic materials. Nonetheless, Overholt ‘041 teaches that the container can be made of plastic or polymeric material by injection molding or other plastic molding processes (see Overholt ‘041, column 3, lines 54-57). As such, to use known plastics such as thermoplastics or resins would have been obvious to one having ordinary skill in the art as a matter of engineering and/or design choice.
Regarding claim 30, the combination as discussed above with respect to claims 1 and 5 is incorporated herein and teaches a shipping container for bananas comprising a base, two endwalls and two sidewalls that are moveably coupled to the base. The combination as applied to claim 5 above teaches that the container is able to assume an erected configuration in which the sidewalls and endwalls are upright and a folded-down configuration in which the sidewalls and endwalls are all folded down, as already discussed above (see also the figures).
Regarding the container being a plastic container Senaydin been relied on as already discussed above, with respect to claim 1, to teach similar containers being made from plastic.
Regarding the length, width and height dimensions of each container and the container having bananas in the container having a weight of about 40 pounds and being disposed in a three-line configuration, the combination and reasons for modification as applied to claim 1 has been incorporated herein to teach these same limitations.
Regarding claim 31, in view of Blanchard, the combination teaches that each of the two endwalls is detachably coupled to both of the two sidewalls for folding (see paragraph 66).
To thus modify Senaydin’s plastic containers to have each of the two endwalls and the two sidewalls be detachable and foldable would have been obvious to one having ordinary skill in the art for compact storage.
Regarding claim 33, in view of Blanchard as already discussed above with respect to claims 5 and 30, the combination teaches using hinges to couple each of the two sidewalls and the two endwalls to the base (see Blanchard paragraph 66).
Regarding claim 34, in view of Senaydin (figure 9) and figure 12 of Blanchard the combination teaches a plurality of vent holes defined in each of the two sidewalls.
Regarding claim 36, as discussed above with respect to claim 12, in view of Blanchard the combination teaches that the container has a substantially flat and smooth interior and exterior floor (see figure 17).
Modification of Senaydin’s containers to have a substantially flat and smooth interior and exterior floor would have been obvious to one having ordinary skill in the art as a matter of engineer and/or design, as well as for preventing the container itself from damaging the bananas therein.
Regarding claim 39, in view of Jackson, the combination teaches the three lines of bananas pile a maximum of two clusters high.
Response to Arguments
The Declaration filed on March 28, 2026 is acknowledged and has been carefully considered; however, it is respectfully noted that the Declaration is not seen to be sufficient to overcome the rejection for the reasons presented below.
On page 7, paragraph 10, the Declaration urges that the features as recited in independent claims 1 and 30 are both novel and nonobvious whether the documents cited in the claim rejection are considered individually or in combination, as evidenced by the repeated failures of others over the last several decades in attempting to develop a RPC suitable for shipping bananas and the unexpected success of the plastic shipping container and arrangement of plastic shipping containers as claimed in this Application.
It is initially noted that the failure to solve a long-felt need may be due to factors such as a lack of interest or lack of appreciation of an invention’s potential or marketability rather than want of technical know-how (see MPEP 716.04). It is further noted that Senaydin and Overholt’041 and Blanchard all teach and suggest using reusable plastic containers that are stackable, for respiring produce in general and specifically for bananas (Overholt’041 and Blanchard).
On pages 8-9, paragraphs 13-14 of the Declaration, it is urged that the difference between 37.5 (i.e. 17kg disclosed in Figure 7 of Jackson) and 40 pounds of bananas, of 2.5 pounds per container is significant because this would result in a shortfall of 120 pounds of bananas if 48 containers were loaded on a pallet. It is also urged that Jackson is directed to corrugated cardboard boxes for shipping bananas and does not teach or suggest any non-cardboard shipping container containing about 40 pounds of bananas in the claimed three line configuration and where each of the first, second and third line of bananas extends in the length direction of the shipping container.
These urgings have been considered but are not sufficient to overcome the rejection. It is noted that Applicant’s claims also recite “about 40 pounds of bananas” and therefore also allows for variation in the particular total weight of the bananas in the 48 container pallet. Applicant’s specification also does not provide any specificity as to the particular degree of variation that can be construed as “about 40” pounds of bananas. If the difference allowed was 1 pound, for example, it is not clear whether a difference of 48 pounds would have been deemed acceptable or unacceptable. Nonetheless, Jackson also clearly teaches on page 30 first bullet point, that it is conventional to package about 40 pounds of bananas because the reference teaches using a 40 pound corrugated box. Therefore, it would have been obvious to have similarly modified Senaydin’s container to be able to package about 40 pounds of bananas since Jackson and Raudalus teach that when providing stacked containers of bananas, that about 40 pounds per container is the conventional amount of bananas to package. Additionally, Senaydin and Overholt041 teach stackable, reusable plastic containers that have a footprint that is similar to the claimed length and width, such that it would have been obvious and reasonable for one having ordinary skill in the art to have expected that similarly dimensioned containers usable for packaging bananas would have also contained a similar total weight of bananas. Nonetheless, Raudalus evidences that a conventional amount of bananas for packaging in shipping containers is 40 pounds (see column 10, line 66 to column 11, line 1). Therefore the prior art is suggesting that a conventional amount of bananas packaged for shipping comprises about 40 pounds of bananas.
It is additionally noted that Jackson also teaches bananas in a three line configuration with a first line along a bottom portion of the container, and a second and third line along a respective top left and top right of the container (as shown in figure 7). Figure 7 further teaches that the bananas extend the length of the container. Regarding Jackson’s teachings of a cardboard container instead of plastic shipping containers, this is not seen to teach away from using Senaydin’s plastic shipping containers for providing a similar three row, crown down arrangement of bananas, because in view of Overholt’041 and Blanchard, the combination teaches and suggests the desirability of the crown down configuration and where plastic shipping containers have been recognized to be used for packaging of bananas; and because Senaydin also teaches that the container can be made from corrugated paper or plastic, thus teaching that either material of construction could have been used.
On page 9, paragraph 15, the Declaration urges that Dowd’s disclosure shows the actual nesting height of each container is about 9 inches rather than 9.66 inches.
It is noted however, that the claims recite that the container exterior height is about 9.66 inches and in this regard, Dowd’s disclosure of the sleeve (80) having a height of 9 inches (figure 9) together with a tray having feet with a height of 0.19 inches and a thickness of 0.31 inches, is suggesting a total external height of about 0.81 inches, or about 9.5 inches (if considering an open top). This meets the limitations of the claim, which only requires an external height of “about 9.66 inches.”
On pages 9-10, paragraph 16, the Declaration urges that it would not have been obvious to combine a RPC with the length and width dimensions disclosed for a shipping container in Senaydin with the height dimensions of a container having completely different length and width dimensions and then arrange bananas as shown by Jackson for a corrugated container to arrive at the claimed plastic shipping container. It is urged that the claimed invention was only arrived at after many unsuccessful attempts to come up with a RPC for shipping bananas while maximizing the use of the available shipping volume when transporting the bananas on RPCs, while meeting the industry accepted weight of 40 pounds of bananas per RPC on a pallet while also ensuring that the bananas were not packed too high in each container so that the quality of the bananas did not suffer from high pack damage while also receiving the proper ventilation for optimum quality and ripening.
It is noted however, that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Senaydin teaches containers having a footprint as claimed and can be corrugated or reusable plastic containers used for any type of respiring produce. Senaydin also teaches the claimed number of rows and layers of containers. While Senaydin is not specific as to the height of the containers and the amount of bananas in each container, it would have been reasonable for one having ordinary skill in the art to have expected that about 40lbs of bananas would have been capable of being placed into Senaydin’s container since the reference teaches the same footprint as claimed and since Jackson and Raudalus teach that 40lbs is a known and conventional quantity of bananas to be packaged in containers that are shipped. Further regarding the height, while Senaydin does not specifically discuss a particular height, it would have been obvious to one having ordinary skill in the art to have used a known height dimension, for the purpose of ensuring that the bananas were contained within the bounds of the container. That is, since Senaydin already teaches a stack of containers, if the produce within the containers extended beyond the height of the container, it would have been obvious to one having ordinary skill in the art to increase the height of the container to prevent the produce from being damaged as a result of stacking.
Furthermore, Senaydin together with Overholt041 already teaches the claimed footprint (length and width), while teaching packaging of bananas. Since the industry standard for packaging bananas is to package 40 pounds of bananas, it would have been obvious to one having ordinary skill in the art to have modified the height of the containers as taught by Senaydin (who does not suggest any specific container height) to ensure that the bananas were contained within the bounds of the container, especially as Blanchard even teaches that a container height of between 8.5-10.5 inches has been conventionally used for packaging of bananas in stackable, reusable plastic containers (see paragraph 20 and 82) for preventing damage to the bananas (see at least paragraph 18 and 88). That is, Blanchard teaches that even for a container with a varying footprint, that the height of the container can vary between 8.5-10.5 inches, and where it would have been obvious to one having ordinary skill in the art that the height of the container would have been beneficial for preventing bananas from extending beyond the bounds of the container. Therefore, while the prior art might not use one reference to specifically teach all of the dimensions of the container, since Senaydin and Overholt041 already teach the claimed external footprint of the containers, while also packaging of bananas, it would have been obvious to one having ordinary skill in the art to have modified Senaydin and to use a height of about 9.66 inches, for the purpose of ensuring that the conventional and industry standard amount of bananas were protected in their entirety during packaging and stacking.
On page 11, paragraph 18, of the Declaration, it is urged that the specifications for a corrugated cardboard HSC do not translate to successful specifications for RPCs because of the much greater rigidity and other defining characteristics of RPCs.
This urging is not sufficient because Senaydin teaches that the containers can either be plastic containers or cardboard containers. Therefore, it would have been obvious to one having ordinary skill in the art to have also used the teachings of Jackson, directed to cardboard containers, for Senaydin’s plastic containers.
On page 12, paragraph 19, the Declaration urges that for an alternative container to be economically viable in North America, it must achieve equivalence to the existing system in terms of total load of bananas on pallet loads in standard 40 foot refrigerated intermodal containers.
It is noted however, that the claims are directed to a product and not a method of using the product. Additionally, it is further noted that the prior art teaches container footprints that fall within the claimed range and can be used for known pallets that are 48x40in. While Senaydin and Overholt041 do not specifically recite the claimed height, since packaging 40lbs of bananas is the known quantity of bananas packaged in containers to be placed in pallets, it would have been obvious to one having ordinary skill in the art to have modified the height of Senaydin and Overholt041’s containers for obviously ensuring that the bananas did not extend beyond the bounds of the container.
On pages 13-17 of the Declaration, it is urged that all containers except for the Arena RPC, had an amount of high pack whereas the Arena RPC had no high pack and that such results would have been unexpected especially since the Arena RPC has the same nominal height as the IFCO 5425 RPC and the corrugated HSC box (see paragraph 28 of the Declaration).
It is initially noted that the data presented is acknowledged and appreciated. However, the data is not seen to overcome the rejection, because the bananas to extend beyond the height of the container, then it would have been obvious to one having ordinary skill in the art to have increased the height for ensuring that the bananas were contained within the bounds of the container, especially as Blanchard already teaches a known height of stackable containers for holding bananas is 8.5-10.5inches, such as 9.66 inches and as a height of about 9.66 inches has been taught by Dowd.
The data on pages 17-20 of the Declaration also urges that the Arena RPCs when compared with all other RPCs predicts lower bruising, reduced resultant sales loss and yield loss as a result of having the lowest average pressure and percentage area over 25psi on average.
This data is acknowledged and appreciated, however it is noted that the data is not commensurate in scope with the claims, which does not discuss average pressure imparted on the bananas. It is also noted that Applicant’s original disclosure does not specifically discuss the pressure imparted onto the bananas.
On pages 21-22 of the Declaration, at paragraph 31, it is urged that a retail specification of 40 lbs of bananas per container and a payload limit of 44000lbs per reefer container would not accommodate the 9 layers of the prototype RPCs having a height of 8.5.
It is noted however, that the claims are directed to the product and not the method of packaging or transporting the pallet using a reefer container. Therefore, these arguments are not commensurate in scope with the claims.
On page 23, paragraph 32 of the Declaration as filed indicates that the total payload of bananas that can be carried per fully loaded pallet and per cargo container is reduced by 6.25% using the disclosed IFCO RPCs compared to the Arena RPC.
These arguments are not persuasive because the prior art already teaches that the total number of RPCs on a fully loaded pallet can be 48 (see Senaydin) and the prior art is further teaching and suggesting adjusting the height of the prior art containers for the purpose of ensuring that the bananas remained contained within the bounds of the container.
On page 23, paragraph 33, the Declaration urges that packing the same net weight of bananas as carried in a standard commercial corrugated cardboard box HSC into each of the disclosed IFCO RPCs resulted in creating high pack resulting in unacceptable damage, as well as load instability as the interlocking features of the RPCs would not be able to engage.
These urgings are not sufficient to overcome the rejection for the reasons already discussed above. It is further noted that the arguments are not commensurate in scope with the claims, which do not refer to any interlocking specific features of the RPCs.
On page 24, paragraph 34, the Declaration urges that a total length of banana clusters in a standard corrugated cardboard box fit successfully in the Arena RPC with a total length that is shorter than that of standard corrugated cardboard HSC and therefore provides a further showing of unexpected results.
This urging is not sufficient in view of the prior art already teaching an RPC having a length and width within the claimed range (see Senaydin and Overholt041).
On page 24, paragraphs 35-36, the Declaration urges that the Prototype 1 and 2 RPCs resulted in substantial high pack and therefore resulted in a significant increase in high pack damage.
These urgings are not sufficient for the reasons as already presented in the rejection and remarks above. That is, in combination with the knowledge available to one having ordinary skill in the art and in view of the prior art teachings, it would have been obvious to one having ordinary skill in the art to have modified Senaydin’s container to have a height such as about 9.66inches, for the purpose of ensuring that the bananas did not extend beyond the bounds of the container and therefore were able to be stacked without damage.
Regarding Applicant’s remarks filed March 28, 2025, those remarks that reiterate the points presented in the Declaration, have been addressed above.
On page 13 of the response, Applicant urges that there is no suggestion that by simply knowing the length and the width dimensions of Senaydin’s container that the container would have been capable of holding 40 pounds of bananas.
It is noted however, that it would have been reasonable to conclude that Senaydin’s length and width dimensions would have been capable of holding 40 pounds of bananas, as Senaydin’s dimensions are similar to that of Applicant. That is, irrespective of whether the bananas would have been contained within the height of the container, it would have been reasonable for about 40lbs of bananas to fit within Senaydin’s container in three rows with the crowns facing down. In any case, the rejection is not solely relying on Senaydin’s length and width dimensions but rather, is relying on Senaydin’s length and width dimensions combined with the same dimensions suggested by Overholt’041 and in view of Jackson and Raudalus teaching that about 40 pounds of bananas has been a known amount of bananas to be packaged in three rows with the crowns facing down, and with each banana cluster being two clusters high.
On pages 13-14 of the response, Applicant urges that Blanchard does not teach the claimed length and width and Overholt’041 does not teach modification of the height of the container because the disclosure at column 6, lines 58-67 is not a teaching of routinely modifying the height.
It is noted however, that Overholt’041’s disclosure at column 6, lines 58-67 would have taught one having ordinary skill in the art that a plastic shipping container having a length of 600mm and a width of 333mm is not limiting as to the particular height, and Blanchard teaches that a known height of plastic shipping containers for bananas is between 8.5-10.5 inches, and specifically about 9.66inches (see paragraph 20), which encompasses the claimed height of 9.66 inches. That is, Blanchard teaches a height of 8.5 inches, as already taught by Overholt’041 but further teaches that this height can vary to be 10.5 inches, or even 9.66 inches. Dowd further teaches an exterior height of about 9.81 inches for a container used for packaging bananas. Therefore, it would have been obvious to one having ordinary skill in the art of packaging respiring foods, such as bananas in a stacked arrangement, to have ensured that the height of the container extended beyond the height of the bananas so as to ensure that the bananas are contained within the bounds of the container and not crushed or damaged when the containers are stacked. Therefore, it is maintained that one having ordinary skill in the art would have been routinely motivated to use a height between 8.5-10.5inches, such as 9.66 inches as taught by Blanchard for this same purpose.
Conclusion
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
