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 .
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 2 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 2, claim 2 recites “said initiating ripening of the ripenable produce comprises establishing the O2 content level in the structure from an O2 content level for the controlled atmosphere to 5-21% before the dosing of the ripening agent”. There is insufficient antecedent basis for the first recitation of “the O2 content level” in line 2. Additionally, regarding the recitation of “an O2 content level for the controlled atmosphere”, claim 1 already recites “the controlled atmosphere having an O2 content of 1-10%”. It is unclear if “an O2 content level for the controlled atmosphere” recited in claim 2 is the same as or different from “the controlled atmosphere having an O2 content of 1-10%”, because claim 2 does not recite “the O2 content level for the controlled atmosphere”.
It is noted that in the previously filed remarks 3/19/2025, Applicant recites that the “from an O2 content level for the controlled atmosphere to 5-21%” refers to the O2 content level going “from the controlled atmosphere” level of 1-10% initially “to” the subsequent O2 content level for initiating ripening, i.e. “to 5-21%”. Thus, in order to overcome the rejection and in light of Applicant’s previous remarks, it appears that the claim should be changed to recite “said initiating ripening of the ripenable produce comprises establishing an O2 content of 5-21% in the structure from the O2 content for the controlled atmosphere, before the dosing of the ripening agent”.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating
obviousness or nonobviousness.
Claims 1, 2, 8-9, 12-13, 15-16, 23 are rejected under 35 U.S.C. 103 as being unpatentable over Herdeman US 5,658,607 in view of Vejdani et al. US 5,566,608 in view of De Bortoli US 2019/0166862 in view of Savur US 2018/0220665 in view of Cromwell US 0246664 as evidenced by Mir US 2005/0266129.
Regarding claim 1, Herdeman discloses a method of ripening perishable products during transport in a structure comprising a controlled atmosphere system (combination shipping and ripening container 20 having an internal volume capable of receiving and maintaining a controlled atmosphere) (col. 3, lines 62-67, col. 4, lines 1-5) which method provides variable ripening time (adjustments to the controlled atmosphere and temperature within the internal volume can be utilized to tune or adjust the ripening process as desired to provide ripened products for delivery within a range of timing schedules) (col. 4, lines 15-21) (the time period in days for the ripening procedure of the present invention can be increased or decreased to meet market conditions) (col. 10, lines 61-65) the processes comprising:
establishing a controlled atmosphere within the structure with ripenable produce loaded, the controlled atmosphere having an O2 content of 3-5% and a CO2 content of 0% (the freshly harvested products are loaded into the container and stabilized at the desired holding temperature…ethylene initiation can be delayed for several days…in such case it is contemplated that a controlled low oxygen atmosphere (e.g. 3-5% oxygen, and 97-95% nitrogen) would be provided to suppress the ripening process until uniform exposure to the ethylene gas) (col. 7, lines 45-59).
maintaining the ripenable produce in said controlled atmosphere until a ripening start time (the freshly harvested products are loaded into the container and stabilized at the desired holding temperature…ethylene initiation can be delayed for several days…in such case it is contemplated that a controlled low oxygen atmosphere (e.g., 3-5% oxygen, and 97-95% nitrogen) would be provided to suppress the ripening process until uniform exposure to the ethylene gas) (col. 7, lines 45-59).
initiating ripening of the ripenable produce at the ripening start time, wherein initiating ripening of the ripenable produce comprises dosing a ripening agent (ethylene) to the controlled atmosphere (col. 7, lines 45-67).
when a predetermined ripening state is achieved the temperature in the structure is changed to a transport temperature for the ripenable produce and maintaining the ripenable produce at the predetermined ripening stage under controlled atmosphere conditions (if the delivery of the products were to be held off for a number of days for whatever reason, the products could be maintained within the low oxygen cooled temperature controlled atmosphere for a longer period of time than originally planned) (col. 8, lines 30-42, col.10, lines 36-38).
Claim 1 differs from Herdeman in the recitation that the method specifically comprises obtaining a ripening start time based on a scheduled ripening finalization for the ripenable product.
Vejdani discloses that the ripening of fresh produce may be controlled in accordance with a predetermined ripening schedule such that the fruit is properly ripened at the time it is scheduled for delivery to retail outlets and that to assist in this ethylene gas is dispersed into a room at a preselected time to facilitate ripening of the produce (col. 1, lines 17-22). It would have been obvious to one of ordinary skill in the art to modify Herdeman such that the method specifically comprises obtaining a ripening start time based on a scheduled ripening finalization for the ripenable product as suggested by Vejdani, in order to ensure that the ripening is carried out in a desired time for a desired delivery schedule, especially since Herdeman already discloses adjusting the ripening of the produce based on delivery schedules (col. 4, lines 15-21).
Claim 1 differs from Herdeman in the recitation that the method comprises checking if a ripening rate is increasing or decreasing.
De Bortoli discloses that ripening of fruits can be guided and/or controlled as a function of respiration of the fruit via a CO2, an O2 concentration ([0014]) and discloses measuring the carbon dioxide release of the fruit to determine the onset of ripening ([0024]). De Bortoli discloses that preferably the constant increase in the CO2 concentration marks the starting point of an intermediate phase in which active fumigation with ethylene takes place ([0024]). De Bortoli discloses that when the CO2 respiration rate is rising (first phase), a ripening model is calibrated using input of timing for a start of ripening (table 1, first phase) based on a scheduled delivery ([0013], [0024]).
It would have been obvious to one of ordinary skill in the art to modify Herdeman such that the method comprises checking if a ripening rate is increasing or decreasing as taught by De Bortoli in order to determine the appropriate time of starting fumigation with ethylene.
Claim 1 differs from Herdeman in the recitation that the method comprises determining a ripening stage of the ripenable produce by measuring a CO2 respiration rate and when the ripening stage determined by measuring the CO2 respiration rate is a predetermined ripening stage, changing the temperature in the structure to a transport temperature for the ripenable produce.
Savur teaches that the respiration rate of fruit is a good pointer to maturity of the fruit (665, [0076]) and indication of the ripening state (665, [0125]). Savur teaches performing monitoring and analysis of cargo conditions allows the calculation of the respiration rate of goods at points throughout the shipment which thus provides a dynamic indication of the ripening state (‘665, [0125], [0121]-[0122]). Savur teaches calculating the respiration rate based at least on levels of oxygen and carbon dioxide (665, [0121]-[0122]). Savur discloses that the respiration rate may be used as direct feedback into the dynamic CA operation. Savur discloses that in this form the controller calculates the respiration rate in real time and adjusts the atmosphere to maintain a desired respiration rate throughout the voyage ([0128]). Savur discloses that the respiration rate can be calculated as ml O2/Kg-hr consumed or ml CO2/Kg-hr produced ([0121]).
It would have been obvious to one of ordinary skill in the art to modify Herdeman such that the method comprises determining a ripening stage of the ripenable produce by measuring a CO2 respiration rate as taught by Savur in order to enhance the monitoring of the ripening process of Herdeman. It has been held that “Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results” supports a conclusion of obviousness (MPEP 2143.D) and “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness.
Claim 1 differs from Herdeman in the recitation that when the ripening stage determined by measuring a CO2 respiration rate is a predetermined ripening stage, changing the temperature in the structure to a transport temperature for the ripenable produce.
It is noted that as discussed above Herdeman does teach that when a predetermined ripening state is achieved the temperature in the structure is changed to a transport temperature for the ripenable produce and maintaining the ripenable produce at the predetermined ripening stage under controlled atmosphere conditions (if the delivery of the products were to be held off for a number of days for whatever reason, the products could be maintained within the low oxygen cooled temperature controlled atmosphere for a longer period of time than originally planned) (col. 8, lines 30-42, col.10, lines 36-38).
It is also noted that as discussed above Savur teaches that the respiration rate may be used as direct feedback into the dynamic CA operation. Savur discloses that in this form the controller calculates the respiration rate in real time and adjusts the atmosphere to maintain a desired respiration rate throughout the voyage ([0128]). Thus, Savur teaches adjusting the atmosphere to maintain a desired respiration rate/ ripening stage.
Cromwell discloses ripening bananas at a ripening temperature (68-70°F) and that once the bananas are properly colored (i.e. a desired ripening stage has been reached) that the temperature may be gradually diminished to 55°F and maintained at that as the proper temperature to preserve the ripened fruit in good condition until sold (Pg. 1, left col. Lines 50-51, 70-75).
Mir provides evidence that the respiration rate of the banana fruit is slow in green and earlier states of ripening (color stage <3.5), and it increases approximately 5-fold post color stage 3.5 ([0034]). Mir discloses ripening of banana to the preferred distribution color stage of 3.0 to 3.5 ([0032]).
Therefore, based on the teachings of the art above as a whole, it would have been obvious to one of ordinary skill in the art to modify Herdeman such that when the ripening stage determined by measuring a CO2 respiration rate is a predetermined ripening state (i.e. desired ripeness has been reached), changing the temperature in the structure to a transport temperature for the ripenable product as suggested by Savur and Cromwell in order to preserve the ripened fruit in good condition until sold.
Regarding claim 2, Modified Herdeman discloses establishing an O2 content level in the structure from an O2 content level for the controlled atmosphere to 5% before dosing of the ripening agent (the freshly harvested products are loaded into the container and stabilized at the desired holding temperature…ethylene initiation can be delayed for several days…in such case it is contemplated that a controlled low oxygen atmosphere (e.g. 3-5% oxygen, and 97-95% nitrogen) would be provided to suppress the ripening process until uniform exposure to the ethylene gas) (‘607, col. 7, lines 45-59). Since the O2 content level can be maintained at 5% until exposure to ethylene, Herdeman teaches establishing an O2 content level in the structure from an O2 content level for the controlled atmosphere to 5% before dosing of the ripening agent.
Regarding claim 8, Modified Herdeman discloses that ripening of the ripenable produce is controlled on basis of correlations of ripening time, temperature O2, CO2, and ripening agent dosing (‘607, col. 9, table, col. 8, lines 20-42, col. 10, lines 10-65).
Regarding claim 9, Modified Herdeman discloses that the ripening rate is controlled by regulating O2 content inside the atmosphere of the structure to achieve a specific CO2 production or O2 consumption per mass unit of the ripenable produce (‘607, col. 8, lines 30-42, col. 10, lines 4-9).
Regarding claim 12, Modified Herdeman discloses further monitoring the ripening stage by using an electronic color sensor that measures colors within an infrared spectrum (‘862, [0030]- [0032]).
Regarding claim 13, Modified Herdeman discloses measuring an amount of chlorophyll using an electronic color sensor (‘862, [0030]-[0032]).
Regarding claim 15, Modified Herdeman discloses that the ripening of the ripenable produce is adjusted based on an updated ripening finalization time (adjustments to the controlled atmosphere and temperature within the internal volume can be utilized to tune or adjust the ripening process as desired to provide ripened products for delivery within a range of timing schedules) (‘607, col. 4, lines 15-21) (the time period in days for the ripening procedure of the present invention can be increased or decreased to meet market conditions) (‘607, col. 10, lines 61-65).
Regarding claim 16, Modified Herdeman discloses that the ripening agent is ethylene (‘607, col. 7, lines 46-61).
Regarding claim 23, Modified Herdeman discloses that the structure is a reefer container (shipping container) (‘607, col. 4, lines 61-65).
Claims 2 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Herdeman US 5,658,607 in view of Vejdani et al. US 5,566,608 in view of De Bortoli US 2019/0166862 in view of Savur US 2018/0220665 in view of Cromwell US 0246664 as evidenced by Mir US 2005/0266129 in view of Clarke US 2002/0127305.
Regarding claim 2, as discussed above Modified Herdeman discloses establishing an O2 content level in the structure of 5% before dosing of the ripening agent.
Additionally, Modified Herdeman discloses storing the fruit in a controlled atmosphere prior to dosing of the ripening agent (‘607, col. 7, lines 46-61). It is noted that Herdeman already discloses that ripening rate can be increased by increasing the oxygen level to 5-8% (‘607, col. 10, lines 38-41).
Clarke discloses that the preferred oxygen content during storage of unripe fruits is substantially lower than the preferred oxygen content during subsequent ripening at a higher temperature ([0004]). Clarke discloses that an increased O2 content assists unripe fruit in ripening (‘305, [0064]). Since Herdeman discloses storing unripe fruits at 3-5% oxygen and Herdeman already discloses that ripening rate can be increased by increasing the oxygen level to 5-8% (‘607, col. 10, lines 38-41), and since Clarke recognizes that the preferred oxygen content during storage of unripe fruits is substantially lower than the preferred oxygen content during subsequent ripening at a higher temperature, it would have been obvious to one of ordinary skill in the art to modify the initiating ripening of the ripenable produce to additionally include establishing the oxygen content to 5-8%, as suggested by Herdeman and Clarke as a whole in order to increase the ripening rate as desired. Regarding the oxygen content level being increased before dosing of the ripening agent, it is noted that the oxygen content level being increased is for assisting unripe fruit in ripening and the addition of ethylene is also for assisting unripe fruit in ripening, thus the oxygen level increase and the ethylene addition are being utilized for similar purposes and the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results (MPEP 2144.04.C). See additionally Herdeman ‘607 Figs 3 and 4 show that oxygen influences rate of ripening and ethylene influences rate of ripening.
Regarding claim 24, claim 24 is rejected for the same reasons given above as for claim 2.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Herdeman US 5,658,607 in view of Vejdani et al. US 5,566,608 in view of De Bortoli US 2019/0166862 in view of Savur US 2018/0220665 in view of Cromwell US 0246664 as evidenced by Mir US 2005/0266129 in view of McDonnell 3,620,765.
Regarding claim 3, claim 3 differs from Modified Herdeman in the recitation that the initiating of the ripenable produce comprises maintaining the O2 content level in the structure above the O2 content level for the controlled atmosphere for a period of 12-48 hours after dosing of the ripening agent.
McDonnell discloses that it has been discovered that longer shelf life is obtained when fruit was initiated to ripening in air and ethylene concentration (col. 12, lines 44-46), and McDonnell discloses that ripening can be initiated for 24 hours (col. 9, lines 4-15), thus McDonnell suggests an increased oxygen content relative to the controlled atmosphere oxygen content, for 24 hours following dosing with ripening agent, because McDonnell’s disclosure of the ethylene ripening agent being present with air for 24 hours reads on an oxygen content of 21% for 24 hours. It would have been obvious to one of ordinary skill in the art to modify Modified Herdeman such that the oxygen content in the structure is increased for a period of 24 hours after dosing of the ripening agent as taught by McDonnell in order to obtain a longer shelf life of the fruit.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Herdeman US 5,658,607 in view of Vejdani et al. US 5,566,608 in view of De Bortoli US 2019/0166862 in view of Savur US 2018/0220665 in view of Cromwell US 0246664 as evidenced by Mir US 2005/0266129 in view of Fernandez et al. US 2007/0144638.
Regarding claim 6, claim 6 differs from Modified Herdeman in the recitation that the controlled atmosphere has a carbon dioxide content of 3- 7%, it is noted that Modified Herdeman already discloses that the controlled atmosphere has a low oxygen concentration of 3-5% (the freshly harvested products are loaded into the container and stabilized at the desired holding temperature…ethylene initiation can be delayed for several days…in such case it is contemplated that a controlled low oxygen atmosphere (e.g. 3-5% oxygen, and 97-95% nitrogen) would be provided to suppress the ripening process until uniform exposure to the ethylene gas) (col. 7, lines 45-59).
Fernandez discloses that to prevent early ripening of bananas in a container it is necessary to maintain the gas medium in the container with an oxygen content of about 2-4% and carbon dioxide content of about 4-7% ([0034]). Therefore, it would have been obvious to one of ordinary skill in the art to modify Modified Herdeman such that the controlled atmosphere has a carbon dioxide content of about 4- 7% as taught by Fernandez since Fernandez shows this was a suitable atmosphere composition for suppressing the ripening of fruit such as bananas and since it has been held that the use of known techniques to improve similar products or processes in the same way supports a conclusion of obviousness.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Herdeman US 5,658,607 in view of Vejdani et al. US 5,566,608 in view of De Bortoli US 2019/0166862 in view of Savur US 2018/0220665 in view of Cromwell US 0246664 as evidenced by Mir US 2005/0266129 in view of Jedermann et al.
Regarding claim 7, Modified Herdeman discloses controlling the rate of heat buildup in the container by controlling the atmosphere in the structure in relation to oxygen (‘607, col. 10, lines 4-9).
Claim 7 differs from Modified Herdeman in the recitation that the method comprises keeping specific heat production from the ripenable produce below 300 watt/ton by controlling the atmosphere within the structure in relation to oxygen, carbon dioxide, ripening agent concentration and/or temperature.
Jedermann discloses controlling the heat production of ripenable produce below 300 watt/ton by controlling the atmosphere in relation to temperature (as long as a temperature of 15 °C is maintained the generated heat stays between 70 and 115 W per tonne) (Pg.17). It would have been obvious to one of ordinary skill in the art to modify Modified Herdeman such the method comprises keeping specific heat production from the ripenable produce below 300 watt/ton by controlling the atmosphere within the structure temperature as taught by Jedermann since it has been held that the use of known techniques to improve similar products or processes in the same way supports a conclusion of obviousness.
Claims 10 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Herdeman US 5,658,607 in view of Vejdani et al. US 5,566,608 in view of De Bortoli US 2019/0166862 in view of Savur US 2018/0220665 in view of Cromwell US 0246664 as evidenced by Mir US 2005/0266129 in view of Imamura JP S5914779 Espacenet Translation.
Regarding claim 10, Modified Herdeman discloses that the ripening stage is defined from accumulated CO2 production per mass unit of ripenable produce during the method (the ripening process of the method comprises a plurality of phases which are characterized by the gas concentrations and/or temperatures in the ripening room) (‘862, [0023]) (ripening is measured during the ripening on the basis of respiration) (‘862, [0032], [0030]) (the respiration parameters (CO2, C2H4 and O2) can be an indication of the degree of ripeness) (‘862, [0016]).
Additionally, Imamura discloses determining the ripening degree of a banana by detecting an accumulated amount of carbon dioxide gas emitted from the banana (Abstract). Thus, further making obvious defining a ripening stage of fruit from accumulated CO2 production per mass unit of ripenable produce.
Regarding claim 14, Modified Herdeman discloses that the ripening of the produce is controlled based on accumulated CO2 production (‘862, claim 2, [0014], [0017], [0049], [0050]). De Bortoli discloses measuring accumulated CO2 production ([0017], [0023], [0024], [0053]-[0058], [0062]). De Bortoli suggests that the ripening of the ripenable produce is started when there is a steady and even release of carbon dioxide within a period of time for all the fruits ([0023], [0024]). De Bortoli discloses measuring the carbon dioxide release of the fruits, and discloses that only when a steady and even release of carbon dioxide within a period of time for all the fruits take place, a steady increase in carbon dioxide concentration can be measured in the ripening chamber ([0024]).
Additionally, Imamura discloses determining the ripening degree of a banana by detecting an accumulated amount of carbon dioxide gas emitted from the banana (Abstract) and controlling the ripening based on the measured accumulated CO2 production ([0001]). Thus, further making obvious controlling the ripening of the ripenable produce based on measured accumulated CO2 production per mass unit of ripenable produce.
Claim 14 differs from Modified Herdeman in the recitation that the measuring of accumulated CO2 production is started specifically when the carbon dioxide respiration rate evaluated against a moving average or rolling average of carbon dioxide respiration rate in an interval of between 4 hours and 48 hours, exceeds two times a standard deviation calculated based on readings of carbon dioxide respiration measured within the last/preceding 12 hours
As discussed above, De Bortoli suggests that the ripening of the ripenable produce is started when there is a steady and even release of carbon dioxide within a period of time for all the fruits ([0023], [0024], [0050]). De Bortoli discloses measuring the carbon dioxide release of the fruits, and discloses that only when a steady and even release of carbon dioxide within a period of time for all the fruits take place, a steady increase in carbon dioxide concentration can be measured in the ripening chamber ([0024]). It is noted both De Bortoli and Imamura disclose measuring CO2 production during ripening (‘862, claim 1, [0055]- [0058], [0062]) (‘779, Espacenet Translation, [0001]). Therefore, De Bortoli suggests determining the start of respiration for all of the produce and measuring CO2 production following the start of respiration (‘862, [0024], [0025]).
Savur discloses measuring respiration rate using measurements of a 4 hour moving average ([0115], [0124], Figs 4 and 5). Absent compelling evidence of criticality once it was known to obtain respiration data over an extended period of time to confirm the accuracy of the measurements and to confirm that the respiration rate is increasing it is seen that the particular method of confirming accuracy and increase in the respiration rate to confirm the start of ripening is a matter of design choice.
Response to Arguments
Applicant's arguments filed 10/15/2025 have been fully considered but have not been found persuasive.
On Pg. 7 of the remarks, Applicant argues that Herdeman does not teach modifying conditions in a container in real time during transport based on sensed conditions in the container during transport. On Pg. 7-8 of the remarks, Applicant argues that the proposed modification to Herdeman’s process would require a substantial change to Herdeman’s operation. Applicant argues that Herdemans process is entirely about setting a temperature and/ or condition in advance of a container being in transport, not changing conditions in real time while in transport. Applicant argues that to modify Herdeman’s method to include real-time monitoring during transport would fundamentally change the principle mode by which Herdeman operates.
This argument has not been found persuasive. First Herdeman does not specifically recite that Herdemans process is entirely about setting a temperature and/ or condition in advance of a container being in transport. It is noted that Herdeman discloses that an object of the invention includes precisely control the ripening process and speed of maturation, wherein adjustment of the contents of the controlled atmosphere and temperature within the ripening container can be utilized to provide a uniformly ripened shipment of products for a wider range of delivery dates (col. 3, lines 28-53). Herdeman discloses that “once the loaded products have been stabilized at the desired holding temperature and exposed to the ethylene atmosphere to initiate ripening procedures, adjustments to the controlled atmosphere and temperature can be utilized to “tune” or adjust the ripening process as desired to provide ripened products for delivery within a range of timing schedules” (col. 4, lines 15-21). Therefore, Herdeman does not teach away from monitoring and changing ripening conditions in real time since “adjustments to the controlled atmosphere and temperature can be utilized to “tune” or adjust the ripening process as desired to provide ripened products for delivery within a range of timing schedules” suggests ripening conditions can be changed in real time, and changed as desired. Additionally, it is noted that Herdeman already teaches providing monitoring means such as various sensors for monitoring particular constituents of the controlled atmosphere within the container, such as oxygen, carbon dioxide, ethylene and the like, and temperature and pressure (col. 5, lines 33-51). Herdeman discloses that the means for monitoring the atmospheric condition within the storage volume comprises a signaling device to indicate to a controller of the controlled atmosphere information such as…current atmospheric conditions (col. 5, lines 40-47). Therefore, Herdeman actually already teaches real time monitoring of conditions during transport and to modify Herdemans method to additionally include real-time monitoring during transport of the CO2 respiration rate as taught by Savur is not seen to fundamentally change the principle mode by which Herdeman operates.
On Pg. 8 of the remarks, Applicant argues that changing Herdeman’s process as proposed in the office action would materially change how Herdeman’s process was designed to operate and appears to be a rationale based on improper hindsight.
This argument has not been found persuasive, as discussed above Herdeman already teaches real time monitoring of conditions during transport and to modify Herdeman’s method to additionally include real-time monitoring during transport of the CO2 respiration rate as taught by Savur is not seen to fundamentally change the principle mode by which Herdeman operates. The motivation to combine the references has been derived from the prior art and KSR rationale (See MPEP 2143). Savur already recognizes that the respiration rate of fruit is a good pointer to maturity of the fruit (665, [0076]) and indication of the ripening state (665, [0125]). Savur teaches performing monitoring and analysis of cargo conditions allows the calculation of the respiration rate of goods at points throughout the shipment which thus provides a dynamic indication of the ripening state (‘665, [0125], [0121]-[0122]). Savur teaches calculating the respiration rate based at least on levels of oxygen and carbon dioxide (665, [0121]-[0122]). Savur discloses that the respiration rate may be used as direct feedback into the dynamic CA operation. Savur discloses that in this form the controller calculates the respiration rate in real time and adjusts the atmosphere to maintain a desired respiration rate throughout the voyage, and therefore minimize stress on the produce ([0128]). Savur discloses that the respiration rate can be calculated as ml O2/Kg-hr consumed or ml CO2/Kg-hr produced ([0121]). Thus, Savur teaches it was a known technique in the art to measure the CO2 respiration rate and use the respiration rate to control dynamic CA operation. It would have been obvious to one of ordinary skill in the art to modify Herdeman such that the method comprises determining a ripening stage of the ripenable produce by measuring a CO2 respiration rate as taught by Savur in order to enhance the monitoring of the ripening process of Herdeman and minimize stress on the produce of Herdeman. It has been held that “Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results” supports a conclusion of obviousness (MPEP 2143.D) and “Combining prior art elements according to known methods to yield predictable results” (MPEP 2143.I.A) supports a conclusion of obviousness.
On Pg. 8-9 of the remarks, Applicant argues that the office action’s acknowledgement of multiple missing features missing from Herdeman’s process (i.e. citing four additional secondary references) is further evidence that the proposed modification would require a substantial change to Herdeman’s operation.
In response to applicant’s argument above, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention.
On Pg. 9 of the remarks, Applicant argues that the office action provides little reasoned explanation of how the alleged teachings in Savur would have been implemented in Herdeman without fundamentally changing Herdeman’s method.
This argument has not been found persuasive. Herdeman specifically discloses that the invention is directed to a shipping and ripening container that enables simultaneous shipping and ripening in controllable manner, thus Herdeman generally recognizes that the ripening is carried out in a controllable manner. As discussed above, Herdeman clearly does not teach away from monitoring and changing ripening conditions in real time since “adjustments to the controlled atmosphere and temperature can be utilized to “tune” or adjust the ripening process as desired to provide ripened products for delivery within a range of timing schedules” (col. 4, lines 15-21) suggests ripening conditions can be changed in real time, and changed as desired. Additionally, it is noted that Herdeman already teaches providing monitoring means such as various sensors for monitoring particular constituents of the controlled atmosphere within the container, such as oxygen, carbon dioxide, ethylene and the like, and temperature and pressure (col. 5, lines 33-51). Therefore, Herdeman already teaches real time monitoring of conditions during transport and to modify Herdeman’s method to additionally include real-time monitoring during transport of the CO2 respiration rate as taught by Savur is not seen to fundamentally change the principle mode by which Herdeman operates.
Regarding the explanation of how the teachings in Savur would have been implemented in Herdeman, "It is well-established that a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements." In re Mouttet, 686 F.3d 1322, 1332, 103 USPQ2d 1219, 1226 (Fed. Cir. 2012) (citing In re Etter, 756 F.2d 852, 859, 225 USPQ 1, 6 (Fed. Cir. 1985) (en banc)) ("Etter's assertions that Azure cannot be incorporated in Ambrosio are basically irrelevant, the criterion being not whether the references could be physically combined but whether the claimed inventions are rendered obvious by the teachings of the prior art as a whole."). See also In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981) ("The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference.... Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art."); In re Sneed, 710 F.2d 1544, 1550, 218 USPQ 385, 389 (Fed. Cir. 1983) ("[I]t is not necessary that the inventions of the references be physically combinable to render obvious the invention under review."); and In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973) ("Combining the teachings of references does not involve an ability to combine their specific structures.").(MPEP 2145.III.). It is however noted that Herdeman is directed to a shipping and ripening container (20) (container 20 holds products for ripening) (col. 4, lines 61-67) and Savur is also directed to a shipping and ripening container (10) (reefer for holding cargo 16) (‘665, [0071]), and therefore teach similar structures for the transport and ripening of perishable products (fruit). Savur details how the respiration rate is determined for the transport container (see Savur paragraphs [0081]-[0088]). One of ordinary skill in the art could reasonably apply the teachings of how the respiration rate is determined as taught by Savur to Herdeman (MPEP 2143.02).
On Pg. 9 of the remarks Applicant argues that Applicant argued in an April 2024 response to Office Action that a previous proposed modification to Herdeman would have changed Herdeman's process in a manner rendering claim 1 non-obvious. Applicant argues that, that argument was with respect to only 2 references and how Herdeman's teaching of ethylene should be introduced as soon as possible and the proposed modification to that timing would change Herdemans operation.
In response to this argument, the previous response to this argument in the non-final rejected dated 07/19/2024 is maintained.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Saenz et al. US 2013/0271290 discloses the use of sensors for monitoring and/or modifying the cargo condition and/or microenvironments within the cargo space of a refrigerated transport container to measure, estimate or predict product specific outcomes such as product’s respirations rates and stage of ripeness ([0077]).
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792