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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 3/2/2026 has been entered.
Election/Restrictions
Claims 42-44 are withdrawn pursuant to applicant’s election with traverse of group I in the reply filed 9/3/2025. The status of the claims should be amended to indicate the claims are withdrawn.
New claim 55 depends from non-elected claim 43, and is therefore withdrawn. The status should also recite “withdrawn” in the following response.
The subject matter of the above claims is not considered herein.
Claim Objections
Claims 1, 7, 12, 45-46, and 53 are objected to because of the following informalities:
Regarding claim 1, in line 5 delete “agents” and insert “compounds” for consistency with the language of step a).
Regarding claim 7, delete “depressurization step” and insert “depressurizing” for consistency.
In line 2, insert “minutes” after “10”.
Regarding claim 12, delete “the” after “wherein”.
Regarding claim 45, in line 2 insert “delicate” after “fresh or frozen” for consistency.
Regarding claim 46, in line 2 insert “delicate” after “fresh or frozen” for consistency.
Regarding claim 53, in line 2 insert “minutes” after “10”.
Appropriate correction is required.
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 48 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 48, the limitation “a natural color of the fruit, flavor of the fruit, or both” renders the claim indefinite since it is unclear what substance(s) are encompassed by “natural color” and “flavor.” The specification does not provide a definition for interpretation, and it is unclear if a single substance can be encompassed by both simultaneously.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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, 7-8, 12, 14, 45-49 and 51-54 are rejected under 35 U.S.C. 103 as being unpatentable over Garwood (US 2005/0260311 A1) in view of Bader et al. (US 2009/0148565 A1), Favreau et al. (US 2012/0288614 A1) and Berndt Briceno (US 2013/0171306 A1), hereon referred to as “Berndt”.
Regarding claim 1, Garwood teaches a method for decontamination of solid goods using carbon dioxide at high pressure (abstract), said goods including “soft fruits” (paragraph 74), comprising combining the goods with liquid carbon dioxide, water, and any salt or solution thereof (paragraphs 95 and 97) and exposing the mixture to elevated pressure in processing vessel 312 without separating the mixture components (figure 3; paragraph 96) for a duration that ensures a desirable number of microorganisms are destroyed e.g., greater than 5 log destruction (paragraph 102). The microorganisms include E. coli and Listeria (paragraphs 149 and 230). After treatment, the pressure within the vessel is reduced “gradually” (paragraph 99).
Regarding exposing mixture to supercritical carbon dioxide at a pressure of 74-150 bar and a temperature greater than 31oC up to 60oC, Garwood further teaches a process of removing fat from meat by exposing to supercritical carbon dioxide for a sufficient time (paragraphs 170-171), where the supercritical carbon dioxide is a “powerful solvent and will dissolve fats…dissolves the bacteria cell walls thereby, selectively, killing these pathogens” (paragraph 230). The process can be performed at a temperature of 28.5-109oF, or about -2-43oC, and a pressure up to 2000 psig, or about 138 Bar (paragraph 169) to reduce the number of bacteria including E. coli and Listeria while providing simultaneous fat separation (paragraphs 168 and 173).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Garwood to use supercritical carbon dioxide at the claimed temperature and pressure ranges since the prior art recognizes overlapping ranges, since there is no evidence of record indicating criticality of the ranges, and since the claimed values would have been used during routine experimentation and optimization based on factors such as degree and rate of fat removal and bacteria reduction.
Garwood does not teach the soft fruit is a “fresh or frozen delicate fruit” as claimed. The limitation “fresh or frozen delicate fruit” is interpreted in view of the definitions provided in the specification (paragraphs 42 and 44-45).
Bader et al. teaches extraction of desired nutrients from a target using supercritical carbon dioxide (paragraph 9), where the food includes “any part of a plant that can be consumed by humans, such as…strawberries” and other delicate fruit (paragraphs 7 and 13). The desired components include fats from fruit seeds (paragraphs 10-12).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Garwood to process delicate fruits since the reference suggests “soft fruits” (paragraph 74), since the prior art recognizes fat extraction from seeds of delicate fruit such as strawberry using supercritical carbon dioxide, since the seeds of strawberries are located at the fruit exterior, and therefore to simultaneously extract desired fatty components from the skin and decontaminate the fruit.
Garwood does not teach depressurization from -15 bar/minute to -1 bar/minute.
Favreau et al. teaches a process for treating solid foods to reduce microorganisms by exposing the food to supercritical carbon dioxide (abstract), the food including fruit (paragraph 27), where the food is exposed to carbon dioxide at a pressure between 500-10,000 psi / 34.5-689.5 bar and a temperature of 40oC for 1 to 180 minutes (paragraphs 11-12), followed by exhausting (depressurizing) the supercritical carbon dioxide at a rate to maintain organoleptic integrity (flavor, fragrance, texture, appeal and palatability) of the food (paragraph 9). The reference teaches gradually releasing accumulated pressure (paragraph 29) over a specified exhaust time of 10 to 120 minutes at a rate to maintain organoleptic integrity of the food (paragraphs 11-12). Since the operating pressure can be from 500-10,000 psi, the rate of depressurization suggested by Favreau et al. encompasses that of the claimed range. For example, 1000 psi exhausted over 30 minutes (as shown in paragraph 34 table “apples”) yields a depressurization rate of -2.3 bar/minute.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Garwood to use the claimed depressurization rate since the reference suggests gradual decompression but does not specify rates, in order to prevent damage to the fruit caused by rapid depressurization, since the evidence of record does not indicate criticality associated with the range, and since the claimed values would have been used during the course of routine experimentation and optimization due to factors such as desired degree of microbial destruction and retention of organoleptic qualities.
Garwood does not teach combining the goods with one or more fruit firming compounds. The limitation “firming compounds” is interpreted in view of the specification to include sugars and calcium chloride (paragraph 50).
Berndt teaches a method to stabilize and impart color to fresh strawberries (abstract), where additives can be incorporated into the strawberries at any point in the process to improve shelf life and palatability thereof (paragraph 54). The additives can include sugars such as sucrose and honey (paragraph 59) and firming agents such as calcium chloride (paragraph 60). The combined strawberry and additives are subsequently treated in a preservation process, where said process is not particularly limited and can include high pressure treatments (paragraph 62).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Garwood to include a fruit firming compound in the mixture since the reference does not limit further additives, teaches “any salt or solution thereof” can be added to the mixture (paragraphs 95 and 97) and the salt solution assists in obtaining a desired pH (paragraph 120) and specific density of the fluid (paragraph 162), and in order to obtain a processed fruit having desired flavor and texture/mouthfeel.
Garwood does not explicitly teach the treated fruit having “a shelf life at 4oC that is extended substantially beyond untreated fresh fruit of the same kind.” The limitation “extended substantially beyond” is interpreted in view of the specification to be “at least 20%” of the shelf life (paragraph 47).
However, Garwood teaches reduction of bacteria using supercritical carbon dioxide (paragraphs 142 and 230), the reduction exceeding 5 log (paragraph 102). One of ordinary skill in the art would have reasonably expected, given known preservation technologies, significantly increased shelf life based on said reduction. Further, the process of the prior art combination above appears to be the same as that of the claimed process. Absent evidence to the contrary, one of ordinary skill would have expected similar increase in shelf life of the fruit treated by said prior art process.
Regarding claim 7, the combination of Garwood and Favreau et al. applied to claim 1 teaches gradual depressurization and varying duration/rate thereof as explained for said claim.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Garwood to depressurize over a period of 10-60 minutes for the same reasons stated for claim 1.
Regarding claim 8, Garwood teaches pressure is lowered to atmospheric pressure (paragraph 86).
Regarding claim 12, Garwood teaches a carrier fluid such as water or salt solution as stated for claim 1.
Regarding claim 14, the combination applied to claim 1 teaches the firming compound includes sugar such as honey, as well as calcium chloride as taught by Berndt.
Regarding claims 45-46, it is noted the scale of the terms “firmness” and “crispness” are interpreted in view of the specification to be measurable by the disclosed TA.XT plus texture analyzer (paragraphs 51 and 53). Likewise, “color intensity” is interpreted to be measurable by spectrophotometer as “chroma” (paragraph 58).
The combination of references applied to claim 1 above appears to be the same process as applicant’s claimed process. Berndt explicitly recognizes calcium chloride as a firming agent. Bader et al. teaches exposing “delicate fruit” to supercritical carbon dioxide. Favreau teaches thermal methods suffer shortcomings including deleteriously affecting the organoleptic features of the food (paragraph 2), whereas a process using supercritical carbon dioxide maintains such organoleptic features (paragraph 11), and destroys unwanted enzymes that cause browning (paragraphs 4 and 30). One of ordinary skill in the art would have reasonably expected that the process of the prior art combination would result in similar effects to that of the claimed process, and therefore expected the treated fruit to have “increased firmness or increased crispness” and “increased color intensity” as compared to a control fresh or frozen delicate fruit as claimed.
Regarding claim 47, Garwood further teaches the pressure vessel can be drained of water at station 1718 after treatment (figure 26; paragraph 131) for further processing and packaging (paragraph 132). Additionally, the water content of the processed food can be controlled by drying in order to adhere to desired standards (paragraph 167).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Garwood to separate the carrier fluid from the treated fruit for the same reasons, thereby ensuring optimal conditions for desired flavor, texture/mouthfeel, color, and shelf life.
Regarding claims 48-49, the combination applied to claims 1 and 47 teaches extraction of fat-soluble components using supercritical carbon dioxide and separating the carrier fluid from the treated fruit. One of ordinary skill in the art would have reasonably expected at least some fat-soluble coloring and flavor substances to be extracted from the fruit during the process.
Bader et al. further teaches extraction components include proteins, phytochemicals, fatty acids, etc. (paragraph 10) and concentrating by drying (paragraph 34). The concentrated extract is used as a flavoring agent free of non-natural components (paragraph 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Garwood to extract and concentrate a natural color or flavor of the fruit to add the same to a food product since the prior art recognizes the process for obtaining color and flavor extract from fruits, to minimize waste, to provide an “all natural” product, and for an additional revenue stream.
Regarding claims 51-52, the combination applied to claim 1 teaches strawberries and calcium chloride.
Regarding claim 53, the combination of Garwood and Favreau et al. applied to claim 1 teaches gradual depressurization and varying duration/rate thereof as explained for said claim.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Garwood to depressurize over a period of 10-30 minutes for the same reasons stated for claim 1.
Regarding claim 54, Garwood further teaches the apparatus can include a port 2174 attached to a vacuum source to enable removal of gas carried with the goods after treatment (figure 30; paragraph 151), which would have necessarily “depressurized to a pressure below atmospheric pressure.”
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Garwood in view of Bader et al., Favreau et al. and Berndt as applied to claim 1 above, and further in view of Shimek et al. (US 2013/0183420 A1).
Regarding claim 4, Garwood does not teach whole fruit.
Shimek et al. teaches a process for treating whole or cut botanical ingredients to reduce the load of food-contaminating organisms using high pressure processing (abstract) in order to retain the fresh, characteristic flavor of fruit that are harvested at or near the peak of their ripeness (paragraph 48), where the botanical ingredient includes fruits (paragraph 25). The processed fruit is stable at 4oC for days, weeks, months or years (paragraph 21). The fruit can be berries, tomatoes, peppers, apples, oranges, mangoes, and cherries (paragraph 25) and microbial populations occur substantially only on natural surface of produce (paragraph 77).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Garwood to use whole fruit as a matter of manufacturing preference for the particular state of the fruit during processing and/or the particular state of the product to be sold, and in order to minimize the surface area on which microbial populations exist as taught by Shimek, thereby facilitating and/or similarly minimizing processing requirements for desired microbial reduction.
Claim 50 is rejected under 35 U.S.C. 103 as being unpatentable over Garwood in view of Bader et al., Favreau et al. and Berndt as applied to claim 1 above, and further in view of Nafisi-Movaghar et al. (US 2012/0276258 A1), hereon referred to as “Nafisi”.
Regarding claim 50, the combination applied to claim 1 does not teach exposing the firming mixture to vacuum prior to step b).
Nafisi teaches a method for preserving delicate fruits using a high-pressure method (abstract; paragraph 28), comprising deaerating fruit to evacuate internal void regions and treating the fruit with a solution containing stabilizers, colors, flavors, anti-oxidants, firming agents, etc. while applying low pressure or vacuum to facilitate infusion of the solution into the deaerated fruit (paragraphs 59-60). The infused fruit is then subjected to a high-pressure process (paragraph 65).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Garwood to subject the firming mixture to vacuum prior to step b) since the prior art recognizes such a feature for fruits exposed to treatment solutions and then treated under high-pressure conditions, and therefore to similarly facilitate infusion of desired substances into the fruit, thereby minimizing process time and maximizing desired effect.
Response to Arguments
Applicant's arguments filed 3/2/2026 have been fully considered but the instant Office Action relies on new grounds of rejection.
Favreau is no longer relied upon as the primary reference and is replaced with Garwood which teaches destroying bacteria on goods using high pressure treatment with supercritical carbon dioxide followed by “gradual” depressurization, where the treatment includes combining the goods with a solution as a carrier fluid, where the goods include fruits as stated for claim 1. Garwood further teaches the solution can include “any salt” to facilitate obtaining a desired pH and fluid density, providing suggestion to include a salt such as calcium chloride. Bader is relied on to teach delicate fruits such as strawberries can be treated with supercritical carbon dioxide to extract components thereof. Shimek, Rasanayagam and Davis are no longer relied upon for claim 1.
Applicant’s argument against the dependent claims and Nafisi as applied to claim 17 have been considered but claim 1 now relies on new grounds of rejection as stated above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached on 9:30-6.
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/BRYAN KIM/Examiner, Art Unit 1792
