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 .
Election/Restrictions
Applicant's election with traverse of Group I (claims 1, 4, 7-8, 11-12, 14, 16-18, and 45-46) in the reply filed on 9/3/2025 is acknowledged. The traversal is on the grounds that the shared technical feature makes a contribution over the prior art. This is not persuasive since the shared technical feature is rendered obvious by the prior art combination stated for the restriction requirement in the previous Office Action.
Claims 42-44 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 9/3/2025.
The requirement is still deemed proper and is therefore made FINAL.
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, 4, 7-8, 11-12, 14, 16, 18 and 45-46 are rejected under 35 U.S.C. 103 as being unpatentable over Favreau et al. (US 2012/0288614 A1) in view of Shimek et al. (US 2013/0183420 A1), Rasanayagam et al. (US 2008/0171116 A1), Davis et al. (US 2013/0052318 A1) and Berndt Briceno (US 2013/0171306 A1), hereon referred to as “Berndt”. Reyes (US 6,159,512 A) is relied on as evidence for claim 46.
Regarding claim 1, 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).
Regarding the claimed carbon dioxide pressure between 74 bar and 150 bar for 10 to 20 minutes, Favreau teaches fruits such as apples processed at a pressure of between 1000-4350 psi (68.95-300 bar) for 30 minutes to achieve varying degrees of browning enzyme inactivation i.e., color during storage (paragraphs 30 and 34 table). Favreau further teaches example exposure times of 10-30 minutes (paragraph 32; paragraph 34 “soaking time” for apples) and the supercritical carbon dioxide inactivates enzymes and microbes without subjecting the foods to damaging side-effects (paragraph 28).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Favreau to treat the fruit using the claimed range of pressures and durations in order to similarly inactivate enzymes and microbes that degrade the fruit during storage, thereby facilitating retention of organoleptic integrity, since the values taught by the prior art overlap those of the claimed range, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as type of fruit, desired degree of enzyme and microbial inactivation, risk of damage during processing due to pressure, and desired organoleptic characteristics of the fruit during/after storage.
Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is the normal desire of scientists or artisans to improve upon what is already generally known that provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages. In re Peterson, 315 F.3d at 1330, 65 USPQ2d 1379, 1382.
Regarding depressurizing at a rate of from -15 bar/minute to -1 bar/minute, Favreau does not teach these specific values. However, 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 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 at the time of the invention to modify the process of Favreau to use the claimed depressurization rate in order to prevent damage to the fruit caused by rapid depressurization, since the values taught by the prior art lies within the range of the claimed values, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as desired operating pressure and exhaust duration, type of fruit being treated, and desired degree of microbial and enzyme inactivation.
Favreau does not specify that the fruit is a fresh or frozen delicate fruit, where the treated fruit has a shelf life at 4oC that is extended beyond untreated fruit as claimed. The limitation “fresh” is interpreted to mean fruit that is whole, cut, wash or unwashed, but has not otherwise been processed (paragraph 44). The limitation “delicate fruit” is interpreted to mean a soft fruit lacking hard skin, fruits that exhibit a soft, delicate interior, and edible plant parts that exhibit a soft, delicate interior (paragraph 42).
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), which are fruits disclosed by applicant (paragraph 42). Therefore Shimek et al. is construed to teach “delicate fruits”.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Favreau to process fresh delicate fruit, where the treated fruit has an extended shelf life at 4oC as claimed, since Favreau already teaches all fruits can be treated and the prior art acknowledges that fresh delicate fruit can be treated using a pressurization process at ambient or near ambient temperatures, and therefore as a matter of manufacturing preference for the type of fruit being processed, since Favreau teaches significant microorganism reduction is achieved by the process (paragraph 33; paragraph 34 table), and therefore in order to similarly preserve the particular type of fruit, and since the claimed shelf life values resulting from the process would have been used during the course of normal experimentation and optimization procedures due to factors such as duration of transport and/or storage, type of fruit being processed, and product safety.
Favreau teaches the process results in various log reduction in E. coli (paragraphs 33 and 34 table), where the processing parameters such as pressure, soaking time, and temperature affect the reduction, but does not recite at least a 3-log reduction in E. coli and Listeria for delicate fruit specifically.
Shimek et al. further teaches E. coli and Listeria are known human food pathogens (paragraph 6).
Rasanayagam et al. teaches a process to pasteurize food using supercritical carbon dioxide (abstract), where supercritical carbon dioxide of a pressure at or above 1,040 psig is used to treat the food at said pressure and a desired temperature for a given time to pasteurize the food (paragraphs 9-10). The duration of treatment can be from 6 seconds to 60 minutes, and the pathogen reduction is greater than 3 log (paragraph 14).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process to be applied to fruit, and therefore have at least a 3 log reduction of E. coli and Listeria since Favreau suggests that the reduction is a result effected by the parameters stated above, and that the process can be applied to fruits (paragraph 27), since pressures above 1,040 psig and processing times of 6 seconds to 60 minutes are sufficient for a 3 log reduction as taught by Rasanayagam et al., in order to ensure safety of the product, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as treatment temperature, pressure, and soaking time, as well as desired degree of extended shelf life (larger reduction would be expected to yield longer shelf life as the microorganisms require more time to proliferate) and consumer safety.
The combination applied above teaches treating fruit, but does not teach the fruit includes one or more fruit firming compounds to form the “firming mixture” for the exposing step of Favreau.
Davis et al. teaches a method of treating individual quick frozen (IQF) fruits (abstract), including “delicate” fruits (paragraph 23), where thermal processing of fruits after IQF is recognized to substantially degrade texture and firmness (paragraph 21). The method comprises enhancing texture by soaking the fruit in a calcium solution such that the calcium ions cross-link with pectin to enhance firmness (paragraph 21), the soak solution including sucrose, calcium lactate, calcium chloride, and/or pectin methyl esterase (paragraphs 13 and 26). It is noted that said substances are disclosed in applicant’s specification to be considered “firming compounds” (paragraph 50). The soaked IQF fruits are subsequently drained to remove excess calcium and processed under normal commercial processing conditions to reach end products (paragraphs 14 and 29).
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 in order 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 at the time of the invention to modify the process of Favreau to include a fruit firming compound since the reference is concerned with deterioration of texture (paragraph 7) and does not particularly limit the methods capable of achieving such objectives (paragraphs 10 and 36-38), since the prior art recognizes that heat treatment of delicate fruits yields undesired texture loss, where the method of Favreau employs elevated temperatures e.g., 50oC (paragraph 35), since the prior art teaches “delicate fruit” can be combined with firming compounds and subsequently treated using high pressure processes, and therefore to combine prior art elements according to known methods to yield predictable results and in order to similarly improve shelf life, palatability, and firmness in the treated product, thus providing further firming and/or texture features based on the type and desired characteristics of the treated fruit.
Regarding claim 4, Favreau does not specifically teach whole fruit, however Shimek teaches whole fruits (abstract), and also teaches 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 to modify the process of Favreau 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.
Regarding claim 7, Favreau teaches the depressurization step is done over a period of 10-120 minutes (paragraph 12).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Favreau to depressurize over a period of 10-60 minutes since the time period taught by Favreau overlaps with the claimed range, and since the claimed value would have been used during the course of normal experimentation and optimization due to factors such as type of fruit, desired degree of microorganism reduction, and desired texture of the processed product.
Regarding claim 8, Favreau teaches applying a pressure of between 500-10,000 psi followed by exhaust (depressurization) over 10-120 minutes (paragraph 12). The treated fruit would have naturally been depressurized to at least atmospheric pressure after treatment when the fruit is removed from the processing device.
Regarding claim 11, Favreau teaches the temperature is 40oC during exposure to the carbon dioxide at the elevated pressure (paragraph 12), and further teaches the temperature and pressure can be adjusted until the carbon dioxide reaches the supercritical state (paragraph 28). Therefore, the temperature would have been achieved at least during a portion of exposing the fruit to carbon dioxide.
Regarding claim 12, Favreau does not teach the firming compound is included in a carrier fluid.
Davis et al. teaches the firming compounds are included in a carrier fluid such as water (paragraph 26).
It would have been obvious to one of ordinary skill in the art at the time of the invention to similarly provide the firming compounds in a carrier fluid in order to facilitate exposure of the fruit to the compounds e.g., a solution carrying the firming compounds can be evenly distributed throughout the entirety of the surface of fruits to be treated.
Regarding claim 14, The combination applied to claim 1 teaches the firming compound includes sugar such as sucrose, as well as pectin methyl esterase and calcium chloride as taught by Davis et al. The same combination is applied to claim 14 and would have been obvious for the same reasons.
Regarding claim 16, the combination applied to claims 1 and 12 teaches exposing the fruit to one or more firming compounds in a carrier fluid, and draining the fruit in order to remove excess calcium prior to further processing. The same combinations are applied to claim 16 and would have been obvious for the same reasons.
Regarding claim 18, Favreau teaches the process maintains texture (paragraph 9), and the combination applied to claims 1 and 45 (see below) teaches foods treated at elevated pressure and with firming substances such as sucrose, methyl pectin esterase, calcium lactate and calcium chloride also retain desired texture (Shimek abstract; paragraphs 21 and 49, Davis et al. paragraphs 13, 21 26, and Berndt abstract; paragraphs 5-7, 54, and 60). The same combination is applied to claim 18 and would have been obvious for the same reasons stated for claim 1.
Regarding claims 45-46, the combination of references applied to claim 1 above teaches the same process as applicant’s claimed process. 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. This is particularly since the prior art recognizes firming agents can be used with “delicate fruits” prior to preservation treatment as taught by Davis and Berndt and stated above. Favreau teaches thermal methods suffer shortcomings including deleteriously affecting the organoleptic features of the food (paragraph 2), whereas the process of Favreau maintains such organoleptic features (paragraph 11).
Reyes is relied on as evidence to show that calcium chloride, present in the firming solution of the combination applied to claim 1, is recognized to perform a dual function of acting as both an anti-browning and firming agent (column 5 lines 18-19). Reduction of browning would necessarily yield a treated fruit having more “color intensity”, relative to the untreated fruit (e.g., more “red” color in strawberries or more “blue” color in blueberries), than the same fruit that has not been exposed to the anti-browning agent.
Thus, one of ordinary skill in the art would have expected the fruit of the prior art combination to exhibit, as compared to “control fresh or frozen fruit” as claimed, “increased firmness” or “increased crispness” after a treatment with known anti-browning and firming compounds disclosed by the prior art. Absent persuasive evidence to the contrary, it would have been reasonable to expect that the fruit treated by the process of the prior art combination would have at least similarly improved firmness and color intensity compared to a control fruit processed using thermal treatment alone or thermal treatment and a firming treatment over the claimed shelf life at 4oC.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Favreau et al. in view of Shimek et al., Rasanayagam et al., Davis et al., and Berndt as applied to claims 1 and 16 above, and further in view of Nafisi-Movaghar et al. (US 2012/0276258 A1), hereon referred to as “Nafisi”.
Regarding claim 17, the combination applied to claim 16 does not teach the exposing step is performed under vacuum.
Nafisi teaches a method for preserving 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 at the time of the invention to modify the process of Favreau et al. to perform the exposing step under vacuum 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.
Response to Arguments
Applicant's arguments filed 9/3/2025 have been fully considered but they are not persuasive.
Applicant argues Davis and Berndt do not remedy the deficiencies pointed out by Applicant since one of ordinary skill would not have modified Favreau with a firming compound, where since such an additional step would unnecessarily increase costs. Applicant argues one of ordinary skill in the art would have understood the process of Favreau to result in fruit exhibiting improved texture without the use of any such firming compound.
This is not persuasive since Favreau is concerned with deterioration of texture (paragraph 7) and does not particularly limit the methods capable of achieving such objectives (paragraphs 10 and 36-38). One of ordinary skill in the art would have modified Favreau based on the teachings of Davis and Berndt in order to obtain predictable results of a desired degree of firmness in the processed fruit. Further, the motivation to modify stems from not just firmness retention, but other advantages recognized by the prior art such as increased shelf life and palatability as taught by Berndt (paragraphs 54 and 59-60). The “fruit firming compound” is disclosed in Applicant’s specification to include e.g., calcium lactate/chloride, pectin methyl esterase, and sugars such as sucrose and honey (paragraph 50), which are the same substances taught by Davis and Berndt. One of ordinary skill in the art would have understood that incorporating sugars into fruit would have caused a sweeter flavor profile in said fruit. One of ordinary skill in the art would have similarly been motivated to expose the sugars to the fruit prior to HPP in order to facilitate infusion thereof, and to prevent recontamination after HPP. Additionally, a modification requiring “increased costs” is not necessarily considered to be teaching away.
Applicant argues one of ordinary skill would not have been led to perform the firming treatment before the supercritical CO2 treatment of Favreau since the sterilization of Davis involves elevated temperatures.
This is not persuasive since the sterilization method of Davis is not incorporated into the combination. Rather, the HPP method disclosed by Favreau is modified to exposed delicate fruits to “one or more fruit firming compounds”, where exposure prior to sterilization is obvious for the reasons stated above. Therefore, the combination does not expose the fruit to the temperatures disclosed by Davis. Regardless, the prior art recognizes additives, including those disclosed by Applicant, can be added at any point in the process, including before HPP preservation as taught by Berndt (paragraphs 52 and 62).
Applicant argues one of ordinary skill would not have modified Favreau to include a fruit firming compound since the process does not expose the product to temperatures above 50oC, and therefore would not be subjected to texture degradation.
This is not persuasive since adding fruit firming compounds yields predictable results, and one of ordinary skill would have been motivated to include sugars for advantages such as improved shelf life and palatability as stated above.
Applicant argues Davis teaches away from the method of claim 1 since the reference teaches soaking the fruit includes maintaining a temperature of 32-52oF, which is less than the range of 31-60oC as claimed.
This is not persuasive since the range cited by Applicant includes “about 52oF or more” (paragraph 28), and therefore the range is not limited to 52oF. Regardless, the reference also states that the soak solution should be kept at a degree that prevents the IQF fruits from refreezing, where the temperature of the solution can be from about 50-150oF (paragraph 27).
Arguments against the dependent claims and their respective references are not persuasive for the same reasons stated above.
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 BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached on 9:30-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571)-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/B.K/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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