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 .
Response to Amendment
Those rejections not repeated in this Office Action have been withdrawn.
Claims 12-14, 16, 23, 27-32, 34, 47, 48, 51, 53, 55-56 and 106-109 are currently pending and rejected.
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.
Claims 12-14, 16, 23, 27-32, 34, 47, 48, 51, 53, 55, 56 and 106-109 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.
Claim 12, line 31 recites, “the concentration of the chlorine dioxide gas.” This limitation lacks proper antecedent basis.
Claim 12, lines 32, 34, 37, 39 and claim 47, lines 41, 43, 45 and 47 recite the limitation, “the entrained polymer” which lacks proper antecedent basis.
Claims 13, 14, 16, 23, 27-32, 34 and 106-109 are rejected based on their dependence to a rejected claim.
Claims 48, 51, 53, 55 and 56 are rejected based on their dependence to a rejected claim.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 12-14, 16, 23, 27-30, 32 and 106 are rejected under 35 U.S.C. 103 as being unpatentable over Kibele (WO 2014152539) in view of Wellinghoff (US 6605304), Machado (US 20110253562), Speronello (US 6676850) and Hekal (US 6486231) and in further view of Annous (US 20170332674) and Bar-On (WO 2016020755) and in further view of Svoboda (US 4021585).
Regarding claim 12, Kibele teaches container defining an interior space therein (see figures 4, 6, 9). Kibele further teaches a closed container with a food product stored in the closed container because Kibele teaches embodiments such as in figure 9, where the container is closed, and where the closed container can be used for foods such as fruit and vegetable (paragraph 31, 42).
Regarding a headspace formed within a volume of the interior space that is not occupied by the food product, since Kibele teaches that the materials can release a gas there would have been a reasonable expectation of a headspace formed within the container that is not occupied by the product.
This would further have been obvious in view of Kibele teaching a closed package (see figure 9), and where the active agent interacts with external moisture via the channels of the entrained polymer, to generate and release gas (see paragraph 22, 26). This would have suggested some amount of headspace for the gas to release and moisture to travel into the channels of the figure 9 package.
If it could have been construed that Kibele was not specific in teaching a headspace that is not occupied by the product, then it is noted that Wellinghoff teaches sealed containers with a headspace (column 20, lines 21-28, which teaches modified atmosphere packaging) within which a chlorine dioxide gas can be released for eliminating / inhibiting bacteria and microorganisms from spoiling the food therein (see at least, column 6, lines 24-30; column 39, lines 11-13, 14-15, 19-22, 22-26). Machado also teaches sealed containers that have a headspace (see figure 5 and 8) and where an active agent that can release an antimicrobial gas is placed within the container (see paragraph 44 - “release at least one agent… and thus further modify the atmosphere of the MAP to gain the desired effect… Additionally, the releasing device… control a release of chlorine dioxide for sanitation of the contents…”). Machado also teaches moisture activation due to humidity in the container from the storage items in the container such as produce (see paragraph 48).
Since Kibele already teaches an active agent that can release an antimicrobial agent in the form of a gas and where the release is due to moisture (paragraph 22, 26, 28); and since Kibele also teaches packaging respiring fruits and vegetables (paragraph 31), to thus modify Kibele and to provide a headspace that is not occupied by the food product would have been obvious to one having ordinary skill in the art, for the purpose providing the space for allowing the gas to be distributed throughout the container so as to provide disinfection to the contents within the package as well as for using the headspace to activate the ingredient that is to be released due to water vapor within the headspace.
Kibele also teaches, an entrained polymer composition (see the abstract) comprising a base polymer (see at least, paragraph 5), which can be used at 24-60% (see page 29, claim 49) thus overlapping with the claimed range; a channeling agent (see at least paragraph 5, “channeling agent”) used at 2-10% (see page 29, claim 48), thus falling within the claimed range. Kibele further teaches an active agent that can release an antimicrobial gas (see paragraph 22, 34 and 36: “an antimicrobial agent” “releasing material could be in the form of a … gas”), which can be used at 50% or 10-80% (paragraph 39) thus encompassing and falling within the claimed range.
As Kibele teaches the use of a base polymer, channeling agent and active agent that falls within and overlaps with the claimed range, where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima face case of obviousness exists.
To modify Kibele and to use an amount of the channeling agent at 10% for example, with active agent being used at 50% and the remainder, being the base polymer at 40% for instance would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design based on factors such as the desired size and channeled structure for the entrained polymer.
Kibele also teaches that the active agent can react with a selected material (see the abstract); and where the selected material can be moisture (see for example, paragraph 26 which states that moisture can travel through the channels in the entrained polymer to the particles of an active agent that would react with the moisture).
Kibele also teaches that the channeling agent forms a plurality of channels through the base polymer (see figure 2 and 10, item 45; paragraph 24 - “the channeling agent forms interconnecting channels through the entrained polymer”). The channels are shown in figures 2 and 10 to penetrate through the base polymer and are interconnected with each other and allow for transport of moisture and gas.
Claim 12 differs from Kibele in specifically reciting that the active agent used at “about 35% to about 55%” is “a chlorine dioxide gas releasing agent comprising an alkaline metal chlorite, a catalyst and a humidity trigger, wherein the chloride dioxide gas releasing agent forms chlorine dioxide gas by reaction with moisture.”
However, as discussed above, Kibele already teaches that the releasing agent can release an antimicrobial gas used at 50% (see paragraph 39, where the active agent can be used at 50%).
Speronello teaches compositions for controlled release of chlorine dioxide gas, at 0.001-1000ppm (see the abstract) for killing microbes (see column 1, lines 43-46) where the releasing agent comprises an alkaline metal chlorite (see the abstract and at least, column 4, line 55), acidified clays (which can be a catalyst) (column 5, lines 3-6, 13, 15; column 9, lines 42-47) and a humidity trigger such as calcium chloride (column 5, lines 8-10; column 5, lines 26-27; column 6, lines 65-66), and where the chlorine dioxide is released due to the reaction of the metal chlorite in the presence of water vapor (see the abstract). Since Speronello is teaching packaging of foods, it would have been obvious to one having ordinary skill in the art that Speronello encompasses a closed container (see for example, column 8, lines 8-17).
Wellinghoff also teaches sodium chlorite (see column 19, line 59 to column 20, line 9) that can include clays (see column 27, lines 30-42) and calcium chloride (see column 35, line 47-49) and which can be part of a co-continuous network (see figure 18,19 and column 34, line 53 to column 35, line 5), and which co-continuous network can also comprise a base polymer such as ethylene vinyl acetate (column 35, line 16) together with a channeling agent (percolating agent such as polyethylene glycol (see column 36, line 49 to column 37, line 17) which can contain passages that are capable of transmitting moisture to the gas-generating material to release a gas (see column 5, line 61 to column 6, line 15) and where such activation can be delayed if desired (column 8, lines 4-15). Wellinghoff further teaches that the sodium chlorite has been used to release gas and where such activation can be controlled due to moisture (see column 3, lines 44 to column 4, line 33). Wellinghoff’s entrained polymer as shown in figures 18 and 19 is similar to that already suggested by Kibele. Annous has been further relied on to teach that it has been desirable to release chlorine dioxide into sealed packages (see paragraph 2) for killing microorganisms on a food item (see paragraph 2), where gaseous chlorine dioxide has the ability to penetrate and inactivate human pathogens, such as salmonella (see paragraph 10), attached to hard-to-reach sites on produce surfaces (see paragraph 4). Annous further teaches active packaging that releases chlorine dioxide as desired (see paragraph 8, 9) and where the chlorine dioxide gas releasing agent comprises an alkaline metal chlorite (see at least, the abstract “sodium chlorite”).
Since Kibele already teaches the desirability of providing antimicrobial releasing agents in the channels of the polymer used for packaging foods, to thus modify Kibele and to use another conventional antimicrobial release agent such as a chlorine dioxide gas generating release agent, as taught by Speronello and Wellinghoff, would have been obvious to one having ordinary skill in the art, for the purpose of using the advantageous disinfecting properties of chlorine dioxide gas to reach hard to reach sides on the food surface to inhibit microbial growth.
Regarding the limitation of, “after a span of 5 days following the food product being placed within the interior space, and under storage conditions of 7°C, the antimicrobial releasing agent is structured to control release of chlorine dioxide gas to effectuate at least a 2 log base 10 reduction in CFU/g of at least one type of pathogen selected from Salmonella, E.Coli, Listeria and Geotrichum, without the food product being visibly bleached or otherwise discolored” it is noted that since the prior art teaches a similar entrained polymer composition, it would have been reasonable to conclude that the entrained polymer composition as taught by the prior art would have performed similarly.
That is, in view of Speronello, the combination further teaches that the antimicrobial releasing agent comprising sodium chlorite, catalysts such as acidified clays (column 5, lines 3-6, 13 and 15; column 9, lines 42-47) together with a humidity trigger, such as calcium chloride (column 5, lines 8-10; column 5, lines 26-27; column 6, lines 65-66) and therefore teaches a similar chlorine dioxide releasing agent as disclosed in Applicant’s specification. Speronello also teaches that factors such as the amount of the alkaline metal chlorite as well as the amount of moisture for activation can affect the amount of chlorine dioxide generated and thus the time for generation (see at least, column 6, line 29-59). Speronello teaches that the concentrations produced can be 0.001-1000ppm and where the gas can be released for 13 days (see the figures which show a span of about 350 hours (i.e. 14.5 days)).
Also, Wellinghoff suggests using clays similar to Speronello (see Wellinghoff column 27, lines 32-40), together with sodium chlorite and a humectant (i.e. humidity trigger) such as calcium chloride (see column 35, line 47-49). Wellinghoff further teaches that the release of chlorine dioxide can be delayed (column 8, lines 4-10) and where the delay can be days or weeks (see also column 4, lines 3-6: “within days or weeks…after being activated…”; column 15, lines 27-55 and figures 15-16). Therefore, Wellinghoff encompasses that the antimicrobial releasing agent can provide antimicrobial protection after a span of 5 days following the food product being placed within the container.
Even further, Hekal teaches entrained polymers (see figures 1-8) which can comprise an ethylene vinyl acetate base polymer (see column 7, lines 66-67; column 8, lines 3-4; column 9, lines 47-53) at 38%(see column 19, line 56), about 50% of a gas releasing agent (see column 7, line65-66; column 8, lines 9-10, 13, 17, 46-51 and 63; column 19, line 54-55) and about 12% of a channeling agent such as polyethylene glycol (see column 6, lines 36-38; column 7, line 67; column 8, line 6; and column 19, lines 55-56). Example 1 on column 15, line 3 of Hekal suggests that using 12% polyethylene glycol has been conventional in the art for providing the requisite pathways for allowing gas to migrate from the entrained polymer to outside the polymer (see column 2, lines 35-50). Hekal is therefore teaching a similar entrained polymer as suggested by Kibele and Wellinghoff.
In view of these teachings, it would have been reasonable to conclude that the entrained polymer composition as taught by the prior art would have performed similarly.
While Kibele, Speronello and Wellinghoff do not specifically discuss a particular degree of reduction in at least one of Salmonella, E.Coli, Listeria and Geotrichum, after the span of 5 days following the food product being placed within the interior space, Annous also suggests that it has been known to provide at least a 2 log reductions of salmonella using chlorine dioxide (see for example, paragraph 10, 12, 58, 59). Machado similarly teaches that the release of chlorine dioxide can provide a 3.4log reduction in E.Coli and 4.3 log reduction in Salmonella (see paragraph 51). Bar-On also evidences that it has been known in the art to release chlorine dioxide gas, which can provide a 2-10 log reduction in microbes, such as E.coli (see paragraph 7, 214: “total eradication of 103; see also paragraph 1087) and where the gas concentrations are known to be variable (see at least, figure 25).
Furthermore, the art has recognized providing gas activation due to moisture from the product, as suggested by Machado and Annous. Therefore, it would have been obvious to one having ordinary skill in the art to have modified the Kibele/Speronello/Wellinghoff combination and tailored the particular concentrations of chlorine dioxide to provide at least a 2 log base 10 reduction in pathogens within 5 days following placement of food within the interior space for the known purpose of ensuring the requisite reduction in pathogens and storage life of the packaged food.
Since the combination already teaches the use of chlorine dioxide gas for treating foods, it would have been within the normal practice of one having ordinary skill in the art to experiment with the concentrations to prevent visible bleaching or otherwise discoloration, especially as the prior art teaches that the purpose of using chlorine dioxide gas is to maintain the product freshness (see Annous paragraph 18; paragraph 13 of Machado). Additionally however, it is noted that Svoboda teaches that it has also been recognized that chloride dioxide gas at concentrations such as 5-25ppm can successfully provide antimicrobial properties while also not bleaching a food product (see column 3, lines 55-62; column 4, lines 36-57). Therefore, it would have been reasonable for one having ordinary skill in the art to have experimented and ensured that chlorine dioxide gas was provided at concentrations that prevented altering of the food within the container while providing the desired degree of antimicrobial properties.
Regarding the limitation of, “the concentration of the chlorine dioxide gas is measured using either of the following test conditions:(i) a 2 g piece of the entrained polymer is placed in a 2.1 L mason jar where a piece of filter paper saturated with 1 mL water is placed such that the filter paper is not in direct contact with the entrained polymer, the mason jar being enclosed by a lid; or (ii) a 2 g piece of the entrained polymer is placed in a 2.1 L mason jar where a sponge that has absorbed 10 mL water is placed within the mason jar such that the sponge is not in direct contact with the entrained polymer, the mason jar being closed by a lid, and the entrained polymer composition provides, on a per gram of the entrained polymer basis, a concentration of at least 3 ppm of ClO2 5 hours after initiation” it is noted that this is seen to be an intended use of the entrained polymer composition. Since the prior art teaches and suggests the claimed entrained polymer composition, the prior entrained polymer composition is also seen to be capable of the claimed intended use.
Further regarding the above limitations and providing a concentration of at least 3 ppm of ClO2 5 hours after initiation, Speronello already teaches that the particular concentrations can be varied (see at least, the abstract and column 6, lines 7-11,18-28) and thus teaches providing an extended antimicrobial effect via the generation of chlorine dioxide gas. Wellinghoff also teaches controlling the rate of gas release (see column 17, lines 1-17). It is further noted that since the prior art combination suggests the claimed entrained polymer composition as part of a closed container, that the prior art would also have been capable of the intended function.
Alternatively, it would have been obvious to one having ordinary skill in the art to have accordingly modified the release characteristics for achieving the requisite chlorine dioxide concentrations for achieving the desired antimicrobial properties to the package. For example, Figure 25 of Bar-On also evidences the desirability of providing a chlorine dioxide concentration that is at least 3ppm 5 hours after initiation (see Figure 25, model 1 and models 2-4 and 6). As already discussed above, Wellinghoff also suggests a delayed generation of the chlorine dioxide gas that can occur within hours or days. To therefore modify the combination such that 5 hours after initiation the chlorine dioxide concentration is at least 3ppm would have been obvious to one having ordinary skill in the art, as a result effective variable, routinely determined through experimentation for achieving the desired chlorine dioxide concentration for providing the desired antimicrobial properties to the package.
Regarding claim 13, in view of Speronello, the combination teaches the alkaline metal chlorite is sodium chlorite or potassium chlorite (see Speronello, column 4, line 55)
Regarding claim 14, Kibele teaches the channeling agent can be polyethylene glycol (see paragraph 6, 75 and 80, for example; page 29, claim 48).
Regarding claim 16, in view of Speronello as discussed above with respect to claim 12, the combination teaches calcium chloride as a humidity trigger.
Regarding claim 23, as discussed above with respect to claim 12, Kibele teaches the base polymer can be ethylene vinyl acetate (see paragraph 40) and used in amounts can overlap with the claimed amount of the ethyl vinyl acetate base polymer and the combination encompasses the claimed amount of the chlorine dioxide gas releasing agent. Regarding the channeling agent, Kibele teaches 10% channeling agent such as polyethylene glycol (see paragraph 6, page 24, claim 2), which can be construed to be “about 12% by weight.” As Kibele teaches the channeling agent to be used for forming channels through the entrained polymer and for transport of a gas phase substance (see paragraph 16) the specific amount of channeling agent would have been obvious to one having ordinary skill in the art for achieving the desired quantity of channeling and degree of gas phase transport. Nonetheless, in view of Hekal, as applied to claim 12 above, the combination teaches the claimed amounts of ethylene vinyl acetate, polyethylene glycol and 50% by weight of the chlorine dioxide gas releasing agent. To thus modify the combination to use 50% of a chlorine dioxide releasing agent; 12% of a channeling agent and thus 38% of base polymer, would have been obvious to one having ordinary skill in the art, for achieving a desired release profile of chlorine dioxide gas through the channels formed in the base polymer.
Regarding claim 27, in view of Kibele (figures 4, 6 and 9), the combination teaches a container (i.e. enclosure) having a base, a top opening, one or more sidewalls, an interior space formed by the sidewalls and a cover to close the enclosure, as taught by Kibele, Machado and Wellinghoff.
Regarding claim 28, as discussed above with respect to claims 12 and 23, Kibele teaches the base polymer comprising ethyl vinyl acetate and the channeling agent comprises polyethylene glycol. In view of Speronello, the combination teaches a sulfuric acid clay as an acid catalyst (see column 5, line 13-18 which discloses acidified clays contacted with acids such as sulfuric acid; see column 9, lines 42-47 where sulfuric acid is added to metakaolin).
Regarding claim 29, Kibele also suggests on paragraph 62 that the container can be closed (when the container 61 is closed). Figure 9 of Kibele teaches an upper surface of the package that contains the entrained polymer article. Figure 9 could be construed as teaching a “cover” having the entrained polymer, and thus being a lidding film.
If it could have been construed that Kibele did not suggest a lid cover or lidding film having the entrained polymer incorporated therein, then Machado further teaches on figure 8, item 222 that a cover provided to close the container can have the gas generating article (figure 8, item 240) thereon; and where said gas generating article can produce chlorine dioxide (paragraph 44). As shown in Kibele’s figures, the entrained polymer article is seen to be incorporated into the packaging walls. In view of these teachings, and since Kibele essentially teaches that the entirety of the interior surface of the closed package can have the entrained polymer article, to thus modify Kibele and to also include the entrained polymer article on the cover would have been obvious to one having ordinary skill in the art for the purpose of providing the gas generating article around the entirety of the product and package interior space.
Regarding claim 30, the combination applied to claims 12 and 27 has been incorporated herein to teach an entrained polymer composition provided in an article disposed into the interior space of the container (see Kibele figure 4, item 55 for example; and see Kibele who teaches a plug of the entrained polymer within a container; paragraph 10, 42) .
Regarding claim 32, as shown in figure 9, Kibele teaches a flexible plastic bag.
Regarding claim 106, Kibele as applied to claim 12 teaches, an entrained polymer composition (see the abstract) comprising a base polymer (see at least, paragraph 5), which can be used at 24-60% (see page 29, claim 49) thus encompassing the claimed range of 38-53. Kibele also teaches a channeling agent (see at least paragraph 5, “channeling agent”) used at 2-10% (see page 29, claim 48); an active agent that can release an antimicrobial gas (see paragraph 22, 34 and 36: “an antimicrobial agent” “releasing material could be in the form of a … gas”), which can be used at 50% or 10-80% (paragraph 39).
As Kibele teaches the use of a base polymer, channeling agent and active agent that falls within and overlaps with the claimed range, where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima face case of obviousness exists.
Since Kibele teaches using for example, 10 % of the channeling agent and 50% of the active agent, it would have been obvious to one having ordinary skill in the art that the remainder of the entrained polymer composition would have been the base polymer at 40% for instance would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design based on factors such as the desired size and structure for the entrained polymer.
Even further, Hekal teaches entrained polymers (see figures 1-8) which can comprise an ethylene vinyl acetate base polymer (see column 7, lines 66-67; column 8, lines 3-4; column 9, lines 47-53) at 38%(see column 19, line 56), about 50% of a gas releasing agent (see column 7, line65-66; column 8, lines 9-10, 13, 17, 46-51 and 63; column 19, line 54-55) and about 12% of a channeling agent such as polyethylene glycol (see column 6, lines 36-38; column 7, line 67; column 8, line 6; and column 19, lines 55-56). Example 1 on column 15, line 3 of Hekal suggests that using 12% polyethylene glycol has been conventional in the art for providing the requisite pathways for allowing gas to migrate from the entrained polymer to outside the polymer (see column 2, lines 35-50). Hekal is therefore teaching a similar entrained polymer as suggested by Kibele and Wellinghoff and it would therefore have been obvious to one having ordinary skill in the art to have used the base polymer at 38% as taught by Hekal based on known entrained polymer compositions used to produce channels through which an antimicrobial gas can be released for preservation purposes.
Claims 47, 48, 55 and 56 are rejected under 35 U.S.C. 103 as being unpatentable over Kibele (WO 2014152539) in view of Machado (US 20110253562), Speronello (US 6676850), Wellinghoff (US 6605304), Hekal (US 6486231), Annous (US 20170332674) and Bar-On (WO 2016020755) and in further view of Harrison (US 20120070508).
Regarding claim 47, the combination applied to claim 12 teaches a method that can inhibit growth of microbes, because the combination teaches a closeable package with a headspace and further teaches an entrained polymer composition that can be moisture activated to release chlorine dioxide gas into the package headspace to disinfect hard to reach sites on the product surfaces. In view of this, it would have been obvious to one having ordinary skill in the art, for the combination to teach placing a product into the interior space of an enclosure, the enclosure having some form of headspace.
Further regarding the step of placing a food product that exudes liquid, it is noted that foods such as fruit and vegetables, as taught by Kibele (see paragraph 31) are known to exude liquid. Furthermore, it is noted that Annous teaches that moisture released from produce can be used for releasing chlorine dioxide gas (see paragraph 17). Machado also teaches the humidity in the container to trigger the release of chlorine dioxide can be via the moisture released from the produce (see paragraph 48). Kibele also teaches using moisture for activating gas release, as does Speronello and Wellinghoff. Wellinghoff also teaches packaging of produce (column 20, lines 50-54).
Therefore, it would have been obvious to one having ordinary skill in the art to have placed food that exudes moisture and to use this moisture to initiate the generation of chlorine dioxide for the purpose of initiating the preservation of the food via the moisture generated by the food.
Regarding the particular structure of the entrained polymer composition, the combination as applied to claims 12 is seen to suggest this structure.
Closing the enclosure so as to allow the chlorine dioxide releasing agent to initiate generation of chlorine dioxide from gaseous moisture exuded from the food product would have been obvious to one having ordinary skill in the art, especially as the combination teaches the release of chlorine dioxide gas within a closed space that is triggered via the release of moisture vapor from the food product (see Annous paragraph 17 - moisture released from respiration of fresh produce; see Machado paragraph 48; see Wellinghoff column 4, lines 16-17 - critical humidity; column 20, lines 50-54; see Speronello the abstract of disclosing water vapor activation; Kibele in figure 9 teaches a closed package).
Since the prior art teaches that the purpose of the chlorine dioxide gas is for preserving the food product, it would have been obvious to one having ordinary skill in the art to store the food for a period of time to allow chlorine dioxide to accumulate in the package and therefore headspace, for the purpose of providing antimicrobial protection. Wellinghoff teaches food storage containers and modified atmosphere packaging thus suggesting storage of the closed container (see column 1, lines 44-56; column 39, lines 19-22). Machado also teaches storage for a period of time (see the abstract). Annous also teaches storage of the closed package (see the abstract, “inside a package”; figure 5).
Regarding the chlorine dioxide gas being effective to provide a sufficient antimicrobial effect prior to dissolution of the chlorine dioxide gas in water to improve the shelf life of the food product for a two week period, it is noted that since the combination teaches a similar entrained polymer composition, that it would have been reasonable to conclude that a similar composition would have provided similar results. Additionally however, Wellinghoff also teaches that the purpose of the chlorine dioxide producing agent, which can be part of an entrained polymer composition (see figure 18-19) can be useful for providing extended release of chlorine dioxide, which can occur for weeks for achieving the desired antimicrobial effect (see column 14, lines 66 to column 15, lines 23 - see specifically, column 15, lines 19-23). Therefore, the prior art is seen to teach chlorine dioxide gas that is effective to provide a sufficient antimicrobial effect for a two week period and where it would alternatively have been obvious to have modified the release characteristics to provide an antimicrobial effect for a two week period.
Regarding the limitation of, “the entrained polymer composition is further characterized in that when evaluated using either of the following test conditions:(i) a 2 g piece of the entrained polymer is placed in a 2.1 L mason jar where a piece of filter paper saturated with 1 mL water is placed such that the filter paper is not in direct contact with the entrained polymer, the mason jar being enclosed by a lid; or (ii) a 2 g piece of the entrained polymer is placed in a 2.1 L mason jar where a sponge that has absorbed 10 mL water is placed within the mason jar such that the sponge is not in direct contact with the entrained polymer, the mason jar being closed by a lid, the entrained polymer composition provides, on a per gram of the entrained polymer basis, at least 3 ppm of ClO2 5 hours after initiation,” the combination as applied to claim 12 above has been incorporated herein.
It is further noted that the prior art suggests using similar amounts of the entrained polymer composition as recited in claim 47. Therefore, it would have been reasonable to conclude that the prior art entrained polymer would have performed similarly, absent a showing of how the claimed entrained polymer differs structurally from that suggested by the prior art. In any case, it is further noted that Speronello also teaches and suggests testing by placing the chlorine dioxide emitting material into a sealed jar with and without humidity (see column 9, line 65 to column 10, line 7; column 11, lines 40-45). While Speronello does not specifically discuss the claimed size to the jar and either of a filter paper or sponge impregnated with water, it is noted that Harrison teaches sealing a chlorine dioxide producing agent into a sealed container which also includes a filter paper impregnated with a liquid, which is used for establishing a desired humidity within the container, so as to determine the chlorine dioxide concentrations that can be developed (see example 11 and paragraphs 118-129). It is also noted that Figure 25 of Bar-On for example, also evidences the desirability of providing a chlorine dioxide concentration that is at least 3ppm 5 hours after initiation (see Figure 25, model 1 and models 2-4 and 6).
Therefore, one having ordinary skill in the art would have been routinely motivated to test the concentrations of chlorine dioxide gas that can be produced by the entrained polymer based on conventional techniques for generating a humid environment to trigger the development of chlorine dioxide gas from a chlorine dioxide producing agent. While Harrison does not specifically discuss 2 grams of the entrained polymer in a 2.1L mason jar with the filter paper saturated with 1mL of water, it is not seen that the relative proportions of the test conditions would have provided a patentable significance absent a sufficient showing of criticality. It is also noted that the term “when” (see claim 47, line 39) means that the particular step need not occur within the claimed process but that when such testing has been performed, the claimed concentration would have been reached.
Regarding claim 48, the claim is rejected for the reasons similarly discussed above with respect to claim 12 and 23 above.
Regarding claims 55-56, which recite that the concentration is no longer detectable after a particular period of time, it is noted that Speronello further teaches that the reaction to produce the chlorine dioxide gas can last for several minutes to many hours based on the relative amounts of the constituents in the chlorine dioxide gas releasing agent (see column 7, lines 56-67). Bar-On also evidences no detectable chlorine dioxide gas concentration after 16 hours (see figure 25 and Model 1 for instance and paragraph 7 where the 2 log reduction in microbes can be between 1-60 minutes). This is seen to suggest that the concentration of gas present can be released for several minutes, such that it would have been obvious for the concentration to not have been detectable after 16 hours or after inhibiting the growth of microbes, especially since the combination teaches similar amounts of the channeling agent and chlorine dioxide gas releasing agent.
Claims 31 and 51 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 30 and 47, above, which relies on Kibele (WO 2014152539) as the primary reference and in further view of Wellinghoff (US 20080026029).
Regarding claims 31 and 51, Kibele teaches that the entrained polymer can be part of the construction of rigid containers, as a plug inserted into the interior of the container (paragraph 42), and can also be a liner that can conform to an interior of the container, or can be simultaneously co-molded with the container body (see paragraph 43). Paragraph 44 teaches that the entrained polymer can be used to form an entrained polymer sheet. This is seen to suggest that the entrained polymer can be provided as a film. In view of figure 9, Kibele is seen to teach
Claims 31 and 51 differ in specifically reciting that the film has a thickness of 0.1mm to 1mm.
However, Wellinghoff’029 teaches that pellets having a gas releasing powder (paragraph 111) can be formed into a film that has a thickness of 10 mil (see paragraph 112). Wellinghoff’029 teaches powders incorporated into forming various thermoplastic articles (paragraph 59) and where the powders can generate gas (see paragraph 64) for releasing chlorine dioxide sufficient to eliminate bacteria fungi, molds etc (paragraph 9). Wellinghof’029’s teachings of a film a thickness of 10 mil equates to a thickness of 0.25mm.
To thus modify Kibele who already teaches various forms of the entrained polymer provided as a film, and to use a thickness of 0.25mm for instance, would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design based on conventional thicknesses of films that can generate and release gas therefrom.
Claim 34 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 30 above, which relies on Kibele (WO 2014152539) as the primary reference and in further view of Shelley (US 20090067760).
Regarding claim 34, Kibele (figures 4-6) teaches the container having at least one sidewall, the at least one sidewall having a sidewall midline. The liner that comprises the entrained polymer as shown in figure 6 is seen to be disposed on the container sidewall and therefore, teaches a film disposed above the midline on at least one of the side-walls.
If it could have been construed that Kibele did not teach the entrained polymer film as above the midline, then it is further noted that Machado teaches in figure 8, that the gas generating agent (see paragraph 44 - “release at least one agent… and thus further modify the atmosphere of the MAP to gain the desired effect… Additionally, the releasing device… control a release of chlorine dioxide for sanitation of the contents…”) can be positioned on the container sidewall, near a midpoint of the container sidewall (see figure 8, item 226 and at least, paragraph 69). Additionally, Shelley teaches chlorine dioxide generating (paragraph 98) articles (see figure 2, item 50; paragraph 73) where the gas generating structure is positioned higher on the container sidewall such that it would have been obvious to one having ordinary skill in the art that the gas generating article would have had a midline that would have been at least as high as the sidewall midline, or higher. Therefore, positioning Kibele’s film on the container sidewall such that the film is above the midline of the container sidewall would have been obvious to one having ordinary skill in the art as a matter of engineering and/or design based on conventional positioning of a gas generating article on a container sidewall.
Claim 53 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 47 above and in further view of Barenberg (US 5980826) and in further view of Svoboda (US 4021585).
Regarding claim 53, which recites, “wherein the product and the chlorine dioxide gas is provided in a headspace concentration over a determined time period to effectuate after a span of 2 days from initiation and under storage conditions of 7°C, at least a 1 log base 10 reduction in CFU/g of microbes present on the food, without the food product being visibly bleached or otherwise discolored,” it is noted that the prior art teaches a similar composition and thus there would have been a reasonable expectation for such a combination to behave similarly.
That is, in view of Speronello, the combination further teaches that the antimicrobial releasing agent comprises hydrous clays such as bentonite (see column 5, lines 3-6) and acidified clays (column 5, line 13; column 9, lines 42-47) contacted with acids such as sulfuric acid (column 5, lines 15). Speronello also teaches the powder (column 7, lines 48-55) can include a humidity trigger, such as calcium chloride (column 5, lines 8-10; column 5, lines 26-27; column 6, lines 65-66) and therefore teaches a similar chlorine dioxide releasing agent. Speronello also teaches that factors such as the amount of the alkaline metal chlorite as well as the amount of moisture for activation can affect the amount of chlorine dioxide generated and thus the time for generation (see at least, column 6, line 29-59).
Also, Wellinghoff suggests using clays similar to Speronello (see Wellinghoff column 27, lines 32-40), together with sodium chlorite and a humectant (i.e. humidity trigger) such as calcium chloride (see column 35, line 47-49). Wellinghoff further teaches that the release of chlorine dioxide can be delayed (column 8, lines 4-10) and where the delay can be days or weeks (see also column 4, lines 3-6: “within days or weeks…after being activated…”; column 15, lines 27-55 and figures 15-16). Therefore, Wellinghoff encompasses that the antimicrobial releasing agent can provide antimicrobial protection after a span of 5 days following the food product being placed within the container.
Thus it would have been reasonable to conclude that the entrained polymer composition as taught by the prior art would have performed similarly.
While Kibele, Speronello and Wellinghoff do not specifically discuss a particular degree of reduction in at least one of Salmonella, E.Coli, Listeria and Geotrichum, after a span of 5 days following the food product being placed within the interior space, Annous also suggests that it has been known to provide at least a 2 log reductions of salmonella using chlorine dioxide (see for example, paragraph 10, 12, 58, 59). Machado similarly teaches that the release of chlorine dioxide can provide a 3.4log reduction in E.Coli and 4.3 log reduction in Salmonella (see paragraph 51). Bar-On has been relied on as already discussed above with respect to claim 12 to evidence that it has been known to use concentrations of chlorine dioxide gas for a 2-10 log reduction of microbes, such as E.coli (see paragraph 7, 214: “total eradication of 103; see also paragraph 1087) and where the gas concentrations are known to be variable (see at least, figure 25).
Furthermore, the art has recognized providing gas activation due to moisture from the product, as suggested by Machado and Annous. It is further noted that Barenberg also teaches that the chlorine dioxide gas could be released over one to 200 days (see column 12, lines 57-63). Barenberg also teaches a maximum initial loading of 10-20ppm chlorine dioxide where higher loadings can be used to increase the maximum initial concentration and prolong the release (see column 27, lines 44-57). Barenberg also suggests storage of fruits and vegetables, similar to Kibele, Annous and Machado (see Barenberg column 13, lines 9-14) and also suggests known storage conditions such as 8°C, which can propagate bacterial growth (see column 28, lines 17-21). The prior art also teaches room temperature storage (see Machado paragraph 51) as well as refrigerated storage (Annous paragraph 51).
Since the combination already teaches the use of chlorine dioxide gas for treating foods, it would have been within the normal practice of one having ordinary skill in the art to experiment with the concentrations of chlorine dioxide gas in the headspace to effectuate after 5 days from initiation and under storage conditions of 7°C at least a 2 log base reduction in microbes for the known purpose of extending storage of the product.
Regarding the limitation of “without the food product being visibly bleached or otherwise discolored,” it is also noted that it would have been obvious to one having ordinary skill in the art to ensure that the treatment of the product using chlorine dioxide gas did not unduly affect the properties of the product, especially as the prior art teaches that the purpose of using chlorine dioxide gas is to maintain the product freshness (see Annous paragraph 18; paragraph 13 of Machado). Additionally however, it is noted that Svoboda teaches that it has also been recognized that chloride dioxide gas at concentrations such as 5-25ppm can successfully provide antimicrobial properties while also not bleaching a food product (see column 3, lines 55-62; column 4, lines 36-57). Therefore, it would have been reasonable for one having ordinary skill in the art to have experimented and ensured that chlorine dioxide gas was provided at concentrations that prevented altering of the food within the container while providing the desired degree of antimicrobial properties.
Claims 107-109 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 106 above, which relies on Kibele (WO 2014152539) as the primary reference, and in further view of Harrison (US 20120070508).
Regarding the limitation to claims 107-109 of, “wherein the entrained polymer composition provides, on a per gram of the entrained polymer basis, at least 10 ppm of ClO2 for a period of at least 24 hours as recited in claim 107; at least 30ppm for at least 12 hours, as recited in claim 108 and at least 30ppm for at least 24 hours as recited in claim 109), it is noted that this is seen to be an intended use of the entrained polymer composition. Since the prior art teaches and suggests the claimed entrained polymer composition, the prior entrained polymer composition is also seen to be capable of the claimed intended use.
Furthermore, it is noted that as the prior art teaches a similar entrained polymer composition, the prior art would have been reasonably expected to perform similarly. This is further evidenced by Table 4 of Applicant’s specification which appears to use 50% the antimicrobial releasing agent as taught by Speronello, together with 38% of a base polymer, EVA and 12% of what appears to be the channeling agent. The combination similarly teaches 50% of an antimicrobial releasing agent, together with 12% of a channeling agent and 38% of a base polymer.
In any case, Kibele, Wellinghoff and Speronello have been relied on as already discussed above to teach varying the sodium chlorite concentrations for achieving a desired chlorine dioxide concentration and thus desired antimicrobial effect for a given period of time. Furthermore, it would have been obvious to one having ordinary skill in the art to have accordingly modified the release characteristics for achieving the requisite chlorine dioxide concentrations for achieving the desired antimicrobial properties to the package. Additionally however, Figure 25 of Bar-On evidences the desirability of providing a chlorine dioxide concentration that is at least 10ppm for a period of at least 12 hours (see for example, figure 25, Model 4). Figure 11 of Harrison teaches chlorine dioxide release concentrations such as at least 30 ppm for about 24hours (see figure 11, 0.5g at 85%RH).
To therefore modify the combination such that the chlorine dioxide concentration is at least 10 or 30 ppm for at least 12 or 24 hours would have been obvious to one having ordinary skill in the art, as a result effective variable, routinely determined through experimentation for achieving the desired chlorine dioxide concentration for providing the desired antimicrobial properties to the package.
Response to Arguments
On pages 14-15 of the response regarding Kibele, Applicant urges that there is no mention of a path that includes the interaction of moisture and the releasing agent to produce a gas such as an antimicrobial gas and therefore does not disclose moisture-triggered release of an antimicrobial gas by the active agent.
This urging is not seen to be sufficient to overcome the rejection. At paragraph 13, Kibele teaches that an active agent may include but is not limited to materials that absorb or release the selected materials, and at paragraph 22, the term selected material includes a gas. Therefore, Kibele encompasses that the active agent can release a gas. At paragraph 22, Kibele further discloses that the selected material may be an agent released by the releasing material, such as an antimicrobial agent and this is further supported by paragraph 34. At paragraph 22, an active agent can also react with a selected material, such as moisture and at paragraphs 33-34, Kibele teaches that the active agent can release materials through the channels and which material released can be an antimicrobial gas. Since moisture can also be taken in through the channels (see paragraph 26) to then react with an active agent, as a whole, Kibele encompasses or at minimum is suggesting an active agent can be an antimicrobial gas that has been released by the entrained polymer. Nonetheless, in view of Speronello, Wellinghoff and Annous, the prior art further teaches a known and desirable gas generating agent that reacts with moisture for producing a preserving chlorine dioxide. Therefore, it would have been obvious to one having ordinary skill in the art to have incorporated a chlorine dioxide gas generating agent as taught by Speronello, Wellinghoff and Annous, because these references teach that chlorine dioxide gas has advantageous disinfecting properties while being able to reach hard to reach sides on the food surface to inhibit microbial growth.
Further on page 15 of the response, Applicant urges that there is no disclosure in Kibele related to an actual effect of an antimicrobial agent in the entrained polymer nor generation of an antimicrobial gas, and all examples in Kibele are directed to a desiccant such that there would be no motivation nor reasonable expectation of success for one having ordinary skill in the art to utilize the entrained polymer of Kibele to achieve an antimicrobial gas release in a closed and/or sealed container, as claimed.
These arguments are not sufficient to overcome the rejection because Kibele’s examples are not seen to be limiting to the reference’s broader disclosure. Additionally, Wellinghoff, for example, teaches generating chlorine dioxide via an entrained polymer, and where the entrained polymer creates passages that are capable of transmitting moisture to the gas generating material to generate and release a gas (see column 5, line 67 to column 6, line 4). Wellinghoff teaches that the generated gas can be chlorine dioxide (see column 3, lines 59-61) as part of food packaging (see column 3, lines 44-51; column 39, lines 14-34). Speronello similarly supports using water vapor to activate an antimicrobial agent to release chlorine dioxide gas (see at least, the abstract). Speronello further teaches preventing the premature release of chlorine dioxide (see column 2, lines 56-67) and is applicable to treatment on and around foodstuffs (see column 1, lines 30-40). Therefore, the prior art is teaching and suggesting a closed container comprising an entrained polymer that can selectively trigger the generation of chlorine dioxide gas for improved antimicrobial efficacy.
On pages 16-17 of the response, regarding Speronello, Applicant urges that Speronello’s example 1 does not teach or suggest a concentration of at least 3 ppm of ClO2 5 hours after initiation and there would not have been any motivation to combine Kibele with Speronello to achieve the claimed invention because Speronello’s “best” data from the test shows a peak concentration of 2 ppm at about 50 hours post initiation.
These arguments are not sufficient to overcome the rejection. It is initially noted that the release profile as claimed is associated with a test condition using a 2.1 L mason jar and not with the claimed closed and/or sealed container having a food product stored in the closed container. It is also noted that Applicant’s specification refers to the antimicrobial releasing agent of Speronello (US 6676850) as a suitable releasing agent (see paragraph 64 as filed). Furthermore, Speronello also teaches and suggests modifying the particular amounts of the chlorine dioxide gas releasing agent (see column 1, lines 20-28; column 6, lines 7-47), thus teaching and suggesting adjusting how the chlorine dioxide gas can be generated. Wellinghoff also teaches that the chlorine dioxide gas generated material can be part of an entrained polymer, as shown in figures 18 and 19, while also suggesting controlling the gas release (see for example, column 8, lines 54-64 which teaches changing or controlling the humidity for activation to release chlorine dioxide gas; see column 17, lines 1-17). Therefore, the rejection is not relying on bodily incorporation of Speronello’s example but rather, relies on what Speronello and Wellinghoff teach about chlorine dioxide gas releasing agents usable for providing antimicrobial protection and which chlorine dioxide gas releasing agents can be moisture activated and incorporated into an entrained polymer for controlling the activation and generation of chlorine dioxide gas.
Further on pages 17-18 of the response, Applicant urges that Kibele’s data directed to a moisture uptake/adsorption desiccant together with Speronello who teaches requiring absorption, reaction and release would not have provided the ordinarily skilled artisan to reasonably expect that entraining the Speronello material within the polymer matrix of Kibele would have resulted in the claimed burst of chlorine dioxide at 5 hours post initiation - which claimed burst is several times higher on a per gram basis than that of Speronello’s “best” data. Applicant urges that the ordinarily skilled artisan would have expected the proposed combination to perform worse than Speronello and not significantly better.
These arguments are not sufficient for the reasons already presented above with respect to Kibele’s and Speronello’s example and because the claim limitation is directed to the release profile of an entrained polymer in a specific mason jar and not the claimed closed and/or sealed container. That is, Kibele’s example directed to a desiccant does not provide sufficient clarity as to the reaction kinetics when using an active agent that generates chlorine dioxide gas. Furthermore, it would have been obvious to one having ordinary skill in the art that the gas release kinetics would also have been a function of the particular concentrations of the chlorine dioxide releasing agents. That is, it would have been reasonable for one having ordinary skill in the art to expect that combining differing amounts of a chlorine dioxide gas releasing agent with the entrained polymer composition as taught by the prior art can modify the amount of gas release by the chlorine dioxide gas releasing material.
Additionally, it is unclear as to how the prior art teachings of a similar entrained polymer composition would have reacted differently from that recited by the claims, especially as Applicant’s specification appears to suggest using the Speronello chlorine dioxide gas releasing material and since the prior art teaches the combination of the claimed entrained polymer composition together with Speronello’s chlorine dioxide gas releasing material. It is noted that Applicant’s specification at figure 9 and paragraphs 156-157, 173 as filed appears to rely on using 50% of an antimicrobial releasing agent, 38% of a base polymer that is ethyl vinyl acetate and 12% of polyethylene glycol as a channeling agent in order to achieve the claimed 3ppm of ClO2 5 hours after initiation (specifically, composition X-2597). In this regard, Wellinghoff teaches that the chlorine dioxide generating agent can be part of an entrained polymer composition that uses ethylene vinyl acetate as a base polymer, with polyethylene glycol as a channeling agent; and Hekal teaches entrained polymers that can use 38% ethylene vinyl acetate, 12% polyethylene glycol and 50% of a gas releasing agent. Therefore, the prior art is teaching and suggesting using an entrained polymer composition similar to that disclosed in Applicant’s specification and as recited in claim 23.
On pages 18-19 of the response, Applicant urges that Wellinghoff does not teach or suggest a ClO2 concentration release as recited in claims 12 and 47 but rather, shows a ClO2 concentration over a time period of days in figures 14-16 and cannot teach the claimed ClO2 release as recited in claims 12 and 47.
These arguments are not persuasive because Wellinghoff teaches that it has been known to modify the particular release kinetics of chlorine dioxide gas (see column 8, lines 54-64 and column 17, lines 1-17) and because Bar-On teaches that it has been desirable to provide a ClO2 concentration of at lest 3ppm 5 hours after initiation (see figure 25, Models 1, 2-4 and 6). Therefore it would have been obvious to one having ordinary skill in the art to adjust the amount of chlorine dioxide that as released based on achieving the desired preservation of the contents.
Further on page 19 of the response, regarding Annous, Applicant urges that there would be no motivation or reasonable expectation of success to combine Annous with the other prior art references to achieve the claimed invention because the reference is directed to a multilayer label of pectin and gelatin which is a different release mechanism than Kibele, Speronello, Wellinghoff and the claimed invention and because the reference does not teach or suggest a concentration of at least 3 ppm of ClO2 5 hours after initiation.
These arguments are not sufficient because the reference has not been relied on to teach a specific release profile, but rather, has been relied on to teach that it has been desirable to provide at least a 2 log reduction of bacteria such as salmonella within a food package, using chlorine dioxide gas.
Further on page 19 of the response, regarding Svoboda, Applicant urges that there is no motivation to combine Svoboda with the other references and would not have taught the claimed invention because the reference is directed to using chlorine dioxide to eliminate the bleaching effect of a bactericidal spray and the results in Svoboda would not be reasonably attributed to the cited prior art references nor the claimed invention of claim 12.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes 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, Svoboda has only been relied on to teach that chlorine dioxide gas at up to 25ppm did not produce bleaching (see column 3, lines 55-62) while still successfully providing antimicrobial properties, thus teaching and suggesting that it has been known for certain concentrations of chlorine dioxide to bleach foods and which bleaching is not desirable. Therefore, it would have been obvious to one having ordinary skill in the art to provide concentrations of chlorine dioxide gas that provided the requisite antimicrobial protection while preventing undesirable bleaching.
The remainder of Applicant’s remarks on pages 20-21 reiterate those remarks presented above, and are not seen to be sufficient for the reasons already discussed above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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