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
The Amendment filed 05/07/2025 has been entered. Claims 42-57, 60, 62-68 remain pending in the application. Applicant’s amendments to the claims have overcome each and every objection, 112(a), and 112(b) rejections previously set forth in the Non-Final Office Action mailed 05/19/2025.
New grounds of rejections necessitated by amendments are discussed below.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “partitioned sampling bag” (claims 57, 64-66, and 68) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 45 and 64 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.
Regarding claims 45 and 64, the claims recites the limitation "the field". There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 42, 45-46, 48, 52-53, and 62 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Griesbach et al. (US 20040118410 A1).
Regarding claim 42, Griesbach teaches an apparatus (abstract; Fig. 1, surgical drape) for microbial sampling (interpreted as an intended use of the apparatus, see MPEP 2114; Fig. 1 teaches a surgical drape 10, which is structurally capable of being used for microbial sampling at a later time), comprising:
an aggregating sampler (Fig. 1, surgical drape; paragraph [0052], “nonwoven layer of the fabric”) configured to gather an aggregate microbial sample from a plurality of food items (interpreted as a functional limitation of the sampler, see MPEP 2114; Fig. 1 teaches a surgical drape 10, which is structurally capable of being used to gather an aggregate microbial sample from food items at a later time), wherein the aggregating sampler is configured for gathering the aggregate microbial sample by contacting the plurality of food items such that microorganisms are extracted from the aggregating sampler after sampling for subsequent testing (interpreted as a functional limitation of the sampler, see MPEP 2114; Fig. 1 teaches a surgical drape 10, which is structurally capable of being used to perform the functional limitations at a later time, e.g. using the surfaces and sponge of the sheets to gather the claimed sample by contacting food items such that microorganisms can be extracted at a later time);
wherein the aggregating sampler consists of a single sheet of an absorbent non-woven synthetic fabric (Fig. 1 and paragraphs [0045]-[0046] teaches a drape, i.e. single sheet, of nonwoven fabric 12; paragraphs [0045]-[0046] teaches “nonwoven fabric 12”; paragraph [0052] teaches the fabric comprises polyethylene, i.e. synthetic fabric; paragraphs [0045]-[0046] teaches the drape can absorb fluids) suitable for food contact (interpreted as an intended use of the aggregating sampler, see MPEP 2114; the nonwoven fabric 12 is a material structurally capable of food contact at a later time),
wherein the sheet is sterile (paragraph [0061] teaches “sterile field of the drape”, which implies the drape is sterile; paragraph [0001] establishes it is known for drapes to be sterile) thereby suited for obtaining microbial sampling and testing for food safety (interpreted as an intended use of the aggregating sampler, see MPEP 2114; Fig. 1 and paragraphs [0045]-[0046] teaches a drape, i.e. sheet, of nonwoven fabric 12, which is structurally capable of being used for obtaining microbial sampling and testing for food safety at a later time),
wherein the sheet is of suitable dimensions to facilitate manual handling and sampling with the sheet (interpreted as an intended use of the sheet, see MPEP 2114; Fig. 1 and paragraphs [0045]-[0046] teaches a drape, i.e. sheet, of nonwoven fabric 12 having dimensions, which is structurally capable of being used for facilitating manual handling and sampling at a later time), and
wherein the sheet is rectangular (Fig. 1) and has a lateral dimension of at least 8 inches (paragraph [0042] teaches the sheet is 65x100 cm, which includes a lateral dimension of at least 8 inches) to facilitate manual handling and sampling by contacting the plurality of food items (interpreted as an intended use of the sheet, see MPEP 2114; Fig. 1 and paragraphs [0045]-[0046] teaches a drape, i.e. sheet, of nonwoven fabric 12 having dimensions, which is structurally capable of being used for facilitating manual handling and sampling of food items at a later time).
Note that “microbial sampling”, “aggregate microbial sample”, and “food items” are not positively recited structurally and is interpreted as a functional limitation of the claimed system. A claim is only limited by positively recited elements; thus, inclusion of the material or article (“microbial sampling”, “aggregate microbial sample”, and “food items”) worked upon by a structure (aggregating sampler) being claimed does not impart patentability to the claims (see MPEP 2115).
Note that a functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the functional limitations, then it meets the claim. See MPEP 2114. The apparatus of Griesbach is identical to the presently claimed structure. As discussed above, Griesbach discloses the aggregating sampler as claimed and therefore, would have the ability to perform the functions recited in the claim. See MPEP 2112.01 (I).
Regarding claim 45, Griesbach further teaches wherein the sheet is configured to be coupled to a harvester such that the sampling contacts the plurality of food items during a harvesting process harvesting the plurality of food items growing in the field (interpreted as a functional limitation of the claimed sheet, see MPEP 2114; Fig. 1, the drape is structurally capable of being coupled to a harvester as claimed at a later time; note that “a harvester” and “plurality of food items growing in the field” are not positively recited structurally).
Note that “harvester”, “sampling”, “plurality of food items growing in the field”, “harvesting process” are not positively recited structurally and is interpreted as a functional limitation of the claimed system. A claim is only limited by positively recited elements; thus, inclusion of the material or article (“harvester”, “sampling”, “plurality of food items growing in the field”, “harvesting process”) worked upon by a structure (sheet) being claimed does not impart patentability to the claims (see MPEP 2115).
Note that a functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the functional limitations, then it meets the claim. See MPEP 2114. The apparatus of Griesbach is identical to the presently claimed structure. As discussed above, Griesbach discloses the sheet as claimed and therefore, would have the ability to perform the functions recited in the claim. See MPEP 2112.01 (I).
Regarding claim 46, Griesbach further teaches wherein the sheet is a broad flat piece of absorbent material (Fig. 1 shows a broad flat piece of the drape 10; paragraphs [0045]-[0046] teaches the drape can absorb fluids).
Regarding claim 48, Griesbach further teaches wherein the sheet is polyolefin (paragraph [0052] teaches the fabric comprises polyethylene, i.e. polyolefin).
Regarding claim 52, Griesbach teaches an apparatus (abstract; Fig. 1, surgical drape) for microbial sampling (interpreted as an intended use of the apparatus, see MPEP 2114; Fig. 1 teaches a surgical drape 10, which is structurally capable of being used for microbial sampling at a later time), comprising:
an aggregating sampler (Fig. 1, surgical drape; paragraph [0052], “nonwoven layer of the fabric”) configured to gather an aggregate microbial sample from a plurality of food items (interpreted as a functional limitation of the sampler, see MPEP 2114; Fig. 1 teaches a surgical drape 10, which is structurally capable of being used to gather an aggregate microbial sample from food items at a later time), wherein the aggregating sampler is configured for gathering the aggregate microbial sample by contacting the plurality of food items such that microorganisms are extracted from the aggregating sampler after sampling for subsequent testing (interpreted as a functional limitation of the sampler, see MPEP 2114; Fig. 1 teaches a surgical drape 10, which is structurally capable of being used to perform the functional limitations at a later time, e.g. using the surfaces and sponge of the sheets to gather the claimed sample by contacting food items such that microorganisms can be extracted at a later time);
wherein the aggregating sampler consists of a single sheet of an absorbent non-woven synthetic fabric (Fig. 1 and paragraphs [0045]-[0046] teaches a drape, i.e. single sheet, of nonwoven fabric 12; paragraphs [0045]-[0046] teaches “nonwoven fabric 12”; paragraph [0052] teaches the fabric comprises polyethylene, i.e. synthetic fabric; paragraphs [0045]-[0046] teaches the drape can absorb fluids) suitable for food contact (interpreted as an intended use of the aggregating sampler, see MPEP 2114; the nonwoven fabric 12 is a material structurally capable of food contact at a later time),
wherein the aggregating sample is configured such that the sheet of the microbial sampling material is exposed so as to obtain the aggregate microbial sample by directly contacting the plurality of food items (interpreted as a functional limitation of the sampler, see MPEP 2114; Fig. 1 and paragraphs [0045]-[0046] teaches a drape, i.e. sheet, of nonwoven fabric 12, which is structurally capable of being exposed to obtain the sample as claimed at a later time),
wherein the sheet is sterile (paragraph [0061] teaches “sterile field of the drape”, which implies the drape is sterile; paragraph [0001] establishes it is known for drapes to be sterile) thereby suited for obtaining microbial sampling and testing for food safety (interpreted as an intended use, see MPEP 2114; Fig. 1 and paragraphs [0045]-[0046] teaches a drape, i.e. sheet, of nonwoven fabric 12, which is structurally capable of being used for obtaining microbial sampling and testing for food safety),
wherein the sheet has dimensions to facilitate manual handling and sampling with the sheet for food safety (interpreted as an intended use of the sheet, see MPEP 2114; Fig. 1 and paragraphs [0045]-[0046] teaches a drape, i.e. sheet, of nonwoven fabric 12 having dimensions, which is structurally capable of being used for facilitating manual handling and sampling at a later time), and
wherein the sheet is rectangular (Fig. 1) and has a lateral dimension of at least 8 inches (paragraph [0042] teaches the sheet is 65x100 cm, which includes a lateral dimension of at least 8 inches) to facilitate manual handling and sampling by contacting the plurality of food items (interpreted as an intended use of the sheet, see MPEP 2114; Fig. 1 and paragraphs [0045]-[0046] teaches a drape, i.e. sheet, of nonwoven fabric 12 having dimensions, which is structurally capable of being used for facilitating manual handling and sampling of food items at a later time).
Note that “microbial sampling”, “aggregate microbial sample”, and “food items” are not positively recited structurally and is interpreted as a functional limitation of the claimed system. A claim is only limited by positively recited elements; thus, inclusion of the material or article (“microbial sampling”, “aggregate microbial sample”, and “food items”) worked upon by a structure (aggregating sampler) being claimed does not impart patentability to the claims (see MPEP 2115).
Note that a functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the functional limitations, then it meets the claim. See MPEP 2114. The apparatus of Griesbach is identical to the presently claimed structure. As discussed above, Griesbach discloses the aggregating sampler as claimed and therefore, would have the ability to perform the functions recited in the claim. See MPEP 2112.01 (I).
Regarding claim 53, Griesbach further teaches wherein the synthetic fabric is polyolefin (paragraph [0052] teaches the fabric comprises polyethylene, i.e. polyolefin).
Regarding claim 62, Griesbach teaches an apparatus (abstract; Fig. 1, surgical drape) for microbial sampling (interpreted as an intended use of the apparatus, see MPEP 2114; Fig. 1 teaches a surgical drape 10, which is structurally capable of being used for microbial sampling at a later time), comprising:
an aggregating sampler (Fig. 1, surgical drape; paragraph [0052], “nonwoven layer of the fabric”) configured to gather an aggregate microbial sample from a plurality of food items (interpreted as a functional limitation of the sampler, see MPEP 2114; Fig. 1 teaches a surgical drape 10, which is structurally capable of being used to gather an aggregate microbial sample from food items at a later time), wherein the aggregating sampler is configured for gathering the aggregate microbial sample by contacting the plurality of food items such that microorganisms are extracted from the aggregating sampler after sampling for subsequent testing (interpreted as a functional limitation of the sampler, see MPEP 2114; Fig. 1 teaches a surgical drape 10, which is structurally capable of being used to perform the functional limitations at a later time, e.g. using the surfaces and sponge of the sheets to gather the claimed sample by contacting food items such that microorganisms can be extracted at a later time);
wherein the aggregating sampler consists of a sheet of a microbial sampling material (Fig. 1 and paragraphs [0045]-[0046] teaches a drape, i.e. sheet, of nonwoven fabric 12, i.e. microbial sampling material; note that “microbial sampling” is interpreted as a functional limitation of the “material”, nonwoven fabric 12 is a material structurally capable of microbial sampling at a later time),
wherein the sheet is a sterile absorbent non-woven polyolefin cloth (paragraph [0061] teaches “sterile field of the drape”, which implies the drape is sterile; paragraph [0001] establishes it is known for drapes to be sterile; paragraphs [0045]-[0046] teaches “nonwoven fabric 12”; paragraphs [0045]-[0046] teaches the drape can absorb fluids; paragraph [0052] teaches the fabric comprises polyethylene, i.e. polyolefin),
wherein the sheet is suitably dimensioned, including a lateral dimension of at least 8 inches (paragraph [0042] teaches the sheet is 65x100 cm, which includes a lateral dimension of at least 8 inches), to facilitate manual handling and sampling with the sheet for food safety sampling and testing (interpreted as an intended use of the sheet, see MPEP 2114; Fig. 1 and paragraphs [0045]-[0046] teaches a drape, i.e. sheet, of nonwoven fabric 12 having dimensions, which is structurally capable of being used for facilitating manual handling and sampling for food safety sampling and testing at a later time).
Note that “microbial sampling”, “aggregate microbial sample”, and “food items” are not positively recited structurally and is interpreted as a functional limitation of the claimed system. A claim is only limited by positively recited elements; thus, inclusion of the material or article (“microbial sampling”, “aggregate microbial sample”, and “food items”) worked upon by a structure (aggregating sampler) being claimed does not impart patentability to the claims (see MPEP 2115).
Note that a functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the functional limitations, then it meets the claim. See MPEP 2114. The apparatus of Griesbach is identical to the presently claimed structure. As discussed above, Griesbach discloses the aggregating sampler as claimed and therefore, would have the ability to perform the functions recited in the claim. See MPEP 2112.01 (I).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 42, 45-46, 49-52, 54, 56, and 67 are rejected under 35 U.S.C. 103 as being unpatentable over Furgal et al. (US 3732652 A) in view of Perring et al. (US 8152929 B1) and Lockard et al. (US 5762716 A).
Regarding claim 42, Furgal teaches an apparatus (Fig. 5) for microbial sampling (interpreted as an intended use, see MPEP 2114; the structure of Fig. 5 is capable of microbial sampling at a later time since it comprises surfaces and a sponge), comprising:
an aggregating sampler (Fig. 5, non-woven sheets 64, 66 and sponge sheet 62) configured to gather an aggregate microbial sample from a plurality of food items (interpreted as a functional limitation of the sampler, see MPEP 2114; the non-woven sheets 64, 66 and sponge sheet 62 of Fig. 5 have a surface and sponge structure that are structurally capable of gathering an aggregate microbial sample from food items at a later time; note that “aggregate microbial sample” and “food items” are not positively recited structurally), wherein the aggregating sampler is configured for gathering the aggregate microbial sample by contacting the plurality of food items such that microorganisms are extracted from the aggregating sampler after sampling for subsequent testing (interpreted as a functional limitation of the sampler, see MPEP 2114; the non-woven sheets 64, 66 and sponge sheet 62 of Fig. 5 are structurally capable of being used to perform the functional limitations at a later time, e.g. using the surfaces and sponge of the sheets to gather the claimed sample by contacting food items such that microorganisms can be extracted at a later time);
wherein the aggregating sampler consists of a single sheet (Fig. 5, interpreted as the combined elements 62, 64, and 66, which forms a single sheet) of an absorbent non-woven synthetic fabric (column 1, lines 27-34, “non-woven synthetic fabric”; claims 1-2; column 2, lines 57-61 teaches sponge sheet 62, which is absorbent and non-woven sheet 64 is absorbent; column 2, lines 6-7 teaches the sponge is foam that is absorbent) suitable for food contact (interpreted as an intended use, see MPEP 2114; Fig. 5, non-woven sheets 64, 66 and sponge sheet 62 are sheets of materials structurally capable for food contact at a later time),
wherein the sheet is of suitable dimensions (Fig. 5 shows the combined elements 62, 64, and 66, which forms a single sheet has suitable dimensions) to facilitate manual handling and sampling with the sheet (interpreted as an intended use, see MPEP 2114; Fig. 5, non-woven sheets 64, 66 and sponge sheet 62 are sheets of materials structurally capable to facilitate manual handling and sampling at a later time), and
wherein the sheet is rectangular (Fig. 5 shows the sheet, i.e. non-woven sheets 64, 66 and sponge sheet 62, is rectangular).
Furgal fails to teach: wherein the sheet is sterile thereby suited for obtaining microbial sampling and testing for food safety; and the sheet has a lateral dimension of at least 8 inches to facilitate manual handling and sampling by contacting the plurality of food items.
Perring teaches cleaning products that are made with a non-abrasive fabric that is comprised of a multitude of non-woven polyester fibers which are bound together with an ethylene-vinyl chloride copolymer binder into the form of a sheet (abstract; Figs. 1-2). Perring teaches a wound cleaning cloth kit wherein the non-woven polyester fibers are sterilized and sealed in a pouch that is impervious to penetration by bacteria (column 2, lines 51-60).
Since Perring teaches a non-woven synthetic fabric, similar to Furgal, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the sheet of Furgal to incorporate the teachings of sterilizing a sheet of Perring (column 2, lines 51-60) to provide: wherein the sheet is sterile thereby suited for obtaining microbial sampling and testing for food safety. Doing so would have a reasonable expectation of successfully providing a sterilized apparatus for desired uses in sterilized environments or conditions, such as for wounds (Perring, column 2, lines 51-60).
While Furgal teaches a cloth for cleaning, dusting, or waxing (column 1, lines 3-4), modified Furgal fails to teach: the sheet has a lateral dimension of at least 8 inches to facilitate manual handling and sampling by contacting the plurality of food items.
Lockard teaches an invention for wiping contaminants from a surface (abstract), which is analogous to Furgal’s cloth for cleaning. Lockard teaches a wiping material may be a fabric, such as a cloth, which comprises a substance that absorbs, and is made of PVA, i.e. synthetic (column 2, lines 62-66). Lockard teaches the fabric can be fabricated into gloves (column 4, lines 1-4). Lockard teaches clothes comprising a non-woven PVA, i.e. synthetic, fabric (column 7, lines 15-19). Lockard teaches cloths are sized and shaped to best suit their particular cleaning application and the cloths are up to 24 inches wide and 50 feet in length (column 6, lines 55-61).
Since Lockard teaches non-woven synthetic fabric, similar to Furgal, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the sheet of modified Furgal to incorporate the teachings of dimensions of cloths of Lockard (column 6, lines 59-61) to provide the sheet has a lateral dimension of at least 8 inches to facilitate manual handling and sampling by contacting the plurality of food items. Doing so would have a reasonable expectation of successfully providing a size and shape of cloth best suited for a desired application as discussed by Lockard (column 6, lines 55-61).
Note that “microbial sampling”, “aggregate microbial sample”, and “food items” are not positively recited structurally and is interpreted as a functional limitation of the claimed system. A claim is only limited by positively recited elements; thus, inclusion of the material or article (“microbial sampling”, “aggregate microbial sample”, and “food items”) worked upon by a structure (aggregating sampler) being claimed does not impart patentability to the claims (see MPEP 2115).
Note that a functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the functional limitations, then it meets the claim. See MPEP 2114. The apparatus of modified Furgal is identical to the presently claimed structure. As discussed above, modified Furgal discloses the aggregating sampler as claimed and therefore, would have the ability to perform the functions recited in the claim. See MPEP 2112.01 (I).
Regarding claim 45, Furgal further teaches wherein the sheet is configured to be coupled to a harvester such that the sampling contacts the plurality of food items during a harvesting process harvesting the plurality of food items growing in the field (interpreted as a functional limitation of the claimed sheet, see MPEP 2114; Fig. 5, the sheet comprising non-woven sheets 64, 66 and sponge sheet 62 is structurally capable of being coupled to a harvester as claimed at a later time; note that “a harvester” and “plurality of food items growing in the field” are not positively recited structurally).
Note that “harvester”, “sampling”, “plurality of food items growing in the field”, “harvesting process” are not positively recited structurally and is interpreted as a functional limitation of the claimed system. A claim is only limited by positively recited elements; thus, inclusion of the material or article (“harvester”, “sampling”, “plurality of food items growing in the field”, “harvesting process”) worked upon by a structure (sheet) being claimed does not impart patentability to the claims (see MPEP 2115).
Note that a functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the functional limitations, then it meets the claim. See MPEP 2114. The apparatus of modified Furgal is identical to the presently claimed structure. As discussed above, modified Furgal discloses the sheet as claimed and therefore, would have the ability to perform the functions recited in the claim. See MPEP 2112.01 (I).
Regarding claim 46, Furgal further teaches wherein the sheet is a broad flat piece (Fig. 5 shows at least sheet 64 and 62 being a broad flat piece) of absorbent material (column 2, lines 57-61 teaches sponge sheet 62, which is absorbent and sheet 64 is absorbent; column 2, lines 6-7 teaches the sponge is foam that is absorbent; column 2, lines 29-30 teaches the combination of sheets are absorbent).
Regarding claim 49, modified Furgal fails to teach wherein the sheet 12x8 inches.
Lockard teaches an invention for wiping contaminants from a surface (abstract), which is analogous to Furgal’s cloth for cleaning. Lockard teaches a wiping material may be a fabric, such as a cloth, which comprises a substance that absorbs, and is made of PVA, i.e. synthetic (column 2, lines 62-66). Lockard teaches the fabric can be fabricated into gloves (column 4, lines 1-4). Lockard teaches clothes comprising a non-woven PVA, i.e. synthetic, fabric (column 7, lines 15-19). Lockard teaches cloths are sized and shaped to best suit their particular cleaning application and the cloths are up to 24 inches wide and 50 feet in length (column 6, lines 55-61).
Since Lockard teaches a range of dimensions of non-woven synthetic fabric of up to 24 inches wide and 50 feet in length (column 6, lines 55-61), which overlaps with the claimed dimension of 12x8 inches, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Furgal to provide wherein the sheet 12x8 inches. I.e., it would have been prima facia obvious to have selected the overlapping portion of the range (i.e. 12x8 inches) from the taught range of up to 24 inches wide and 50 feet in length (column 6, lines 55-61) (In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); see MPEP 2144.05 (I)).
Regarding claim 50, while Furgal teaches a cloth for cleaning, dusting, or waxing (column 1, lines 3-4), Furgal fails to teach: wherein the sheet is 24x8 inches.
Lockard teaches an invention for wiping contaminants from a surface (abstract), which is analogous to Furgal’s cloth for cleaning. Lockard teaches a wiping material may be a fabric, such as a cloth, which comprises a substance that absorbs, and is made of PVA, i.e. synthetic (column 2, lines 62-66). Lockard teaches the fabric can be fabricated into gloves (column 4, lines 1-4). Lockard teaches clothes comprising a non-woven PVA, i.e. synthetic, fabric (column 7, lines 15-19). Lockard teaches cloths are sized and shaped to best suit their particular cleaning application and the cloths are up to 24 inches wide and 50 feet in length (column 6, lines 55-61).
Since Lockard teaches a range of dimensions of non-woven synthetic fabric of up to 24 inches wide and 50 feet in length (column 6, lines 55-61), which overlaps with the claimed dimension of 24x8 inch, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Furgal to provide wherein the sheet 24x8 inch. I.e., it would have been prima facia obvious to have selected the overlapping portion of the range (i.e. 24x8 inch) from the taught range of up to 24 inches wide and 50 feet in length (column 6, lines 55-61) (In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); see MPEP 2144.05 (I)).
Regarding claim 51, Furgal further teaches wherein the sheet is configured for sample extraction within at least a 100-200 mls volume of extraction solution after collection (interpreted as a functional limitation of the sheet, see MPEP 2114; column 2, lines 57-61 teaches sponge sheet 62, which is absorbent and sheet 64 is absorbent; column 2, lines 6-7 teaches the sponge is foam that is absorbent; column 2, lines 29-30 teaches the combination of sheets are absorbent; therefore, the non-woven sheets 64, 66 and sponge sheet 62 of Fig. 5 are sized to be structurally capable of being used to perform the functional limitations of sample extraction within at least a 100-200 mls volume of extraction solution at a later time).
Note that “extraction solution” is not positively recited structurally and is interpreted as a functional limitation of the claimed system. A claim is only limited by positively recited elements; thus, inclusion of the material or article (“extraction solution”) worked upon by a structure (sheet) being claimed does not impart patentability to the claims (see MPEP 2115).
Note that a functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the functional limitations, then it meets the claim. See MPEP 2114. The apparatus of modified Furgal is identical to the presently claimed structure. As discussed above, modified Furgal discloses the sheet as claimed and therefore, would have the ability to perform the functions recited in the claim. See MPEP 2112.01 (I).
Regarding claim 52, Furgal teaches an apparatus (Fig. 5) for microbial sampling (interpreted as an intended use, see MPEP 2114; the structure of Fig. 5 is capable of microbial sampling at a later time since it comprises surfaces and a sponge), comprising:
an aggregating sampler (Fig. 5, non-woven sheets 64, 66 and sponge sheet 62) configured to gather an aggregate microbial sample from a plurality of food items (interpreted as a functional limitation of the sampler, see MPEP 2114; the non-woven sheets 64, 66 and sponge sheet 62 of Fig. 5 have a surface and sponge structure that are structurally capable of gathering an aggregate microbial sample from food items at a later time; note that “aggregate microbial sample” and “food items” are not positively recited structurally), wherein the aggregating sampler is configured for gathering the aggregate microbial sample by contacting the plurality of food items such that microorganisms are extracted from the aggregating sampler after sampling for subsequent testing (interpreted as a functional limitation of the sampler, see MPEP 2114; the non-woven sheets 64, 66 and sponge sheet 62 of Fig. 5 are structurally capable of being used to perform the functional limitations at a later time, e.g. using the surfaces and sponge of the sheets to gather the claimed sample by contacting food items such that microorganisms can be extracted at a later time);
wherein the aggregating sampler consists of a single sheet (Fig. 5, interpreted as the combined elements 62, 64, and 66, which forms a single sheet) of an absorbent non-woven synthetic fabric (column 1, lines 27-34, “non-woven synthetic fabric”; claims 1-2; column 2, lines 57-61 teaches sponge sheet 62, which is absorbent and non-woven sheet 64 is absorbent; column 2, lines 6-7 teaches the sponge is foam that is absorbent) suitable for food contact (interpreted as an intended use, see MPEP 2114; Fig. 5, non-woven sheets 64, 66 and sponge sheet 62 are sheets of materials structurally capable for food contact at a later time);
wherein the aggregating sample is configured such that the sheet of the microbial sampling material is exposed so as to obtain the aggregate microbial sample by directly contacting the plurality of food items (interpreted as a functional limitation of the sampler, see MPEP 2114; the non-woven sheets 64, 66 and sponge sheet 62 of Fig. 5 have surfaces that are structurally capable of being exposed to food items to obtain aggregate microbial samples at a later time; note that “aggregate microbial sample” and “food items” are not positively recited structurally),
wherein the sheet has suitable dimensions to facilitate manual handling and sampling with the sheet for food safety (interpreted as a functional limitation of the sheet, see MPEP 2114; the non-woven sheets 64, 66 and sponge sheet 62 of Fig. 5 is sized and has a surface and sponge structure that are structurally capable of facilitating manual handling and sampling with the sheet for food safety at a later time), and
wherein the sheet is rectangular (Fig. 5 shows the sheet, i.e. non-woven sheets 64, 66 and sponge sheet 62, is rectangular).
Furgal fails to teach: wherein the sheet is sterile thereby suited for obtaining microbial sampling and testing for food safety; and wherein the sheet has a lateral dimension of at least 8 inches to facilitate manual handling and sampling by contacting the plurality of food items.
Perring teaches cleaning products that are made with a non-abrasive fabric that is comprised of a multitude of non-woven polyester fibers which are bound together with an ethylene-vinyl chloride copolymer binder into the form of a sheet (abstract; Figs. 1-2). Perring teaches a wound cleaning cloth kit wherein the non-woven polyester fibers are sterilized and sealed in a pouch that is impervious to penetration by bacteria (column 2, lines 51-60).
Since Perring teaches a non-woven synthetic fabric, similar to Furgal, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the sheet of Furgal to incorporate the teachings of sterilizing a sheet of Perring (column 2, lines 51-60) to provide: wherein the sheet is sterile thereby suited for obtaining microbial sampling and testing for food safety. Doing so would have a reasonable expectation of successfully providing a sterilized apparatus for desired uses in sterilized environments or conditions, such as for wounds (Perring, column 2, lines 51-60).
While Furgal teaches a cloth for cleaning, dusting, or waxing (column 1, lines 3-4), modified Furgal fails to teach: wherein the sheet has a lateral dimension of at least 8 inches to facilitate manual handling and sampling by contacting the plurality of food items.
Lockard teaches an invention for wiping contaminants from a surface (abstract), which is analogous to Furgal’s cloth for cleaning. Lockard teaches a wiping material may be a fabric, such as a cloth, which comprises a substance that absorbs, and is made of PVA, i.e. synthetic (column 2, lines 62-66). Lockard teaches the fabric can be fabricated into gloves (column 4, lines 1-4). Lockard teaches clothes comprising a non-woven PVA, i.e. synthetic, fabric (column 7, lines 15-19). Lockard teaches cloths are sized and shaped to best suit their particular cleaning application and the cloths are up to 24 inches wide and 50 feet in length (column 6, lines 55-61).
Since Lockard teaches non-woven synthetic fabric, similar to Furgal, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the sheet of modified Furgal to incorporate the teachings of dimensions of cloths of Lockard (column 6, lines 59-61) to provide wherein the sheet has a lateral dimension of at least 8 inches to facilitate manual handling and sampling by contacting the plurality of food items. Doing so would have a reasonable expectation of successfully providing a size and shape of cloth best suited for a desired application as discussed by Lockard (column 6, lines 55-61).
Note that “microbial sampling”, “aggregate microbial sample”, and “food items” are not positively recited structurally and is interpreted as a functional limitation of the claimed system. A claim is only limited by positively recited elements; thus, inclusion of the material or article (“microbial sampling”, “aggregate microbial sample”, and “food items”) worked upon by a structure (aggregating sampler) being claimed does not impart patentability to the claims (see MPEP 2115).
Note that a functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the functional limitations, then it meets the claim. See MPEP 2114. The apparatus of modified Furgal is identical to the presently claimed structure. As discussed above, modified Furgal discloses the aggregating sampler as claimed and therefore, would have the ability to perform the functions recited in the claim. See MPEP 2112.01 (I).
Regarding claim 54, modified Furgal fails to teach wherein the single sheet has a length between 12 inches and 24 inches.
Lockard teaches an invention for wiping contaminants from a surface (abstract), which is analogous to Furgal’s cloth for cleaning. Lockard teaches a wiping material may be a fabric, such as a cloth, which comprises a substance that absorbs, and is made of PVA, i.e. synthetic (column 2, lines 62-66). Lockard teaches the fabric can be fabricated into gloves (column 4, lines 1-4). Lockard teaches clothes comprising a non-woven PVA, i.e. synthetic, fabric (column 7, lines 15-19). Lockard teaches cloths are sized and shaped to best suit their particular cleaning application and the cloths are up to 24 inches wide and 50 feet in length (column 6, lines 55-61).
Since Lockard teaches a range of dimensions of non-woven synthetic fabric of up to 24 inches wide and 50 feet in length (column 6, lines 55-61), which overlaps with the claimed range of a length between 12 inches and 24 inches, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Furgal to provide wherein the single sheet has a length between 12 inches and 24 inches. I.e., it would have been prima facia obvious to have selected the overlapping portion of the range (i.e. length between 12 inches and 24 inches) from the taught range of up to 24 inches wide and 50 feet in length (column 6, lines 55-61) (In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); see MPEP 2144.05 (I)).
Regarding claim 56, Furgal further teaches wherein the sheet is configured for sample extraction within at least a 100-200 mls volume of extraction solution after collection (interpreted as a functional limitation of the sheet, see MPEP 2114; column 2, lines 57-61 teaches sponge sheet 62, which is absorbent and sheet 64 is absorbent; column 2, lines 6-7 teaches the sponge is foam that is absorbent; column 2, lines 29-30 teaches the combination of sheets are absorbent; therefore, the non-woven sheets 64, 66 and sponge sheet 62 of Fig. 5 are sized to be structurally capable of being used to perform the functional limitations of sample extraction within at least a 100-200 mls volume of extraction solution at a later time).
Modified Furgal fails to teach the sheet is 24x8 inch.
Lockard teaches an invention for wiping contaminants from a surface (abstract), which is analogous to Furgal’s cloth for cleaning. Lockard teaches a wiping material may be a fabric, such as a cloth, which comprises a substance that absorbs, and is made of PVA, i.e. synthetic (column 2, lines 62-66). Lockard teaches the fabric can be fabricated into gloves (column 4, lines 1-4). Lockard teaches clothes comprising a non-woven PVA, i.e. synthetic, fabric (column 7, lines 15-19). Lockard teaches cloths are sized and shaped to best suit their particular cleaning application and the cloths are up to 24 inches wide and 50 feet in length (column 6, lines 55-61).
Since Lockard teaches a range of dimensions of non-woven synthetic fabric of up to 24 inches wide and 50 feet in length (column 6, lines 55-61), which overlaps with the claimed dimension of 24x8 inch, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Furgal to provide wherein the sheet 24x8 inch. I.e., it would have been prima facia obvious to have selected the overlapping portion of the range (i.e. 24x8 inch) from the taught range of up to 24 inches wide and 50 feet in length (column 6, lines 55-61) (In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); see MPEP 2144.05 (I)).
Note that “extraction solution” is not positively recited structurally and is interpreted as a functional limitation of the claimed system. A claim is only limited by positively recited elements; thus, inclusion of the material or article (“extraction solution”) worked upon by a structure (sheet) being claimed does not impart patentability to the claims (see MPEP 2115).
Note that a functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the functional limitations, then it meets the claim. See MPEP 2114. The apparatus of modified Furgal is identical to the presently claimed structure. As discussed above, modified Furgal discloses the sheet as claimed and therefore, would have the ability to perform the functions recited in the claim. See MPEP 2112.01 (I).
Regarding claim 67, Furgal teaches an apparatus (Fig. 5) for microbial sampling (interpreted as an intended use, see MPEP 2114; the structure of Fig. 5 is capable of microbial sampling at a later time since it comprises surfaces and a sponge), comprising:
an aggregating sampler (Fig. 5, non-woven sheets 64, 66 and sponge sheet 62) configured to gather an aggregate microbial sample from a plurality of food items (interpreted as a functional limitation of the sampler, see MPEP 2114; the non-woven sheets 64, 66 and sponge sheet 62 of Fig. 5 have a surface and sponge structure that are structurally capable of gathering an aggregate microbial sample from food items at a later time; note that “aggregate microbial sample” and “food items” are not positively recited structurally), wherein the aggregating sampler is configured for gathering the aggregate microbial sample by contacting the plurality of food items such that microorganisms are extracted from the aggregating sampler after sampling for subsequent testing (interpreted as a functional limitation of the sampler, see MPEP 2114; the non-woven sheets 64, 66 and sponge sheet 62 of Fig. 5 are structurally capable of being used to perform the functional limitations at a later time, e.g. using the surfaces and sponge of the sheets to gather the claimed sample by contacting food items such that microorganisms can be extracted at a later time);
wherein the aggregating sampler consists of a single sheet (Fig. 5, interpreted as the combined elements 62, 64, and 66, which forms a single sheet) of an absorbent non-woven synthetic fabric (column 1, lines 27-34, “non-woven synthetic fabric”; claims 1-2; claims 1-2; column 2, lines 57-61 teaches sponge sheet 62, which is absorbent and non-woven sheet 64 is absorbent; column 2, lines 6-7 teaches the sponge is foam that is absorbent) suitable for food contact (interpreted as an intended use, see MPEP 2114; Fig. 5, non-woven sheets 64, 66 and sponge sheet 62 are sheets of materials structurally capable for food contact at a later time),
wherein the sheet is of suitable dimensions to facilitate manual handling and sampling with the sheet (interpreted as a functional limitation of the sheet, see MPEP 2114; the non-woven sheets 64, 66 and sponge sheet 62 of Fig. 5 is sized and has a surface and sponge structure that are structurally capable of facilitating manual handling and sampling with the sheet at a later time).
Furgal fails to teach: wherein the sheet is sterile thereby suited for obtaining microbial sampling and testing for food safety; and wherein the sheet has a lateral dimension of at least 8 inches and a longitudinal dimension of at most 24 inches to facilitate manual handling and sampling by contacting the plurality of food items.
Perring teaches cleaning products that are made with a non-abrasive fabric that is comprised of a multitude of non-woven polyester, i.e. polyolefin, fibers which are bound together with an ethylene-vinyl chloride copolymer binder into the form of a sheet (abstract; Figs. 1-2). Perring teaches a wound cleaning cloth kit wherein the non-woven polyester fibers are sterilized and sealed in a pouch that is impervious to penetration by bacteria (column 2, lines 51-60). Perring teaches the non-woven polyester fibers are highly effective at removing foreign matter from a substrate surface without scratching or scuffing the surface of the substrate (column 1, lines 51-58).
Since Perring teaches a non-woven synthetic fabric, similar to Furgal, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the sheet of Furgal to i