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 incorporate the teachings of a polyolefin cloth and sterilizing a sheet of Perring (column 1, lines 51-58; 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 improving removal of foreign matter from a substrate and providing a sterilized apparatus for desired uses in sterilized environments or conditions, such as for wounds (Perring, column 1, lines 51-58; 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 and a longitudinal dimension of at most 24 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 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 a lateral dimension of at least 8 inches and a longitudinal dimension of at most 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 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.. I.e., it would have been prima facia obvious to have selected the overlapping portion of the range (i.e. a lateral dimension of at least 8 inches and a longitudinal dimension of at most 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)).
Claims 43-44 and 64 are rejected under 35 U.S.C. 103 as being unpatentable over Furgal in view of Perring and Lockard as applied to claim 42 above, and further in view of Wu et al. (US 20150241401 A1; cited in the IDS filed 06/04/2024).
Regarding claim 43, Furgal further teaches wherein the sheet is configured to conform to a location in a product stream of the plurality of food products (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 are structurally capable of conforming to a location in a product stream of food products at a later time; note that “a location”, “a product stream of…food products” are not positively recited structurally). Modified Furgal fails to teach the sheet coupled to the location such that the sampling comprises passive contact of the plurality of food items with the sheet.
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).
Wu teaches an apparatus for microbial sampling (abstract; Fig. 1), comprising: an aggregating sampler (Fig. 1, an elongate sampling member 20, a sampling roller 30, and/or bunches of sampling filaments 40) configured to gather an aggregate microbial sample from a plurality of food items (paragraph [0004] teaches sampling for detecting of a target agent, such as pathogen or microbes; paragraph [0008] teaches sampling for E. coli from a batch of food products), 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 (paragraph [0004] teaches sampling for detecting of a target agent, such as pathogen or microbes; paragraph [0008] teaches sampling for E. coli from a batch of food products; abstract and paragraph [0007] teach a sampling member is readily removed after sampling and tested); wherein the aggregating sampler comprises a sheet of a microbial sampling material (paragraph [0007] teaches the sampling device includes a sampling medium, such as a cellulose sheet; paragraph [0040] teaches the sample devices is a fabric), and wherein the sheet is a fabric (paragraph [0040] teaches the sample devices is a fabric). Wu teaches the sampling member can be fabric and sponge, wherein the sponge can be sterilized (paragraph [0040]). Wu teaches the sample device comprises a sampling surface that includes a cloth (paragraph [0028]). Wu teaches a harvester (Fig. 1) configured for harvesting the food products being sampled (Fig. 1; paragraphs [0030]-[0031]), wherein sampling devices (40, 30, 20) are coupled to the harvester such that the sampling passively contacts the plurality of food items during a harvesting process of the plurality of food items with the harvester (Fig. 1; paragraphs [0030]-[0031]). Wu teaches the desire and need to provide sampling devices that allow for identification and removal of a greater percentage of contaminated meat from commerce, as well as improve cost, ease and efficiency of sampling (paragraph [0006]), such as by using a sampling device that contacts a batch of items with a sponge or cloth (paragraphs [0007]-[0008],[0028]).
Since Wu teaches a need for providing sampling devices that contact food items with a cloth (paragraphs [0006]-[0008],[0028]), and Perring teaches that 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), 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 apparatus of modified Furgal to incorporate the teachings of non-woven polyester fibers of Perring (column 1, lines 51-58) and the teachings of using cloths and fabric coupled to a harvester (Fig. 1; paragraphs [0007]-[0008],[0028]-[0031]) to provide: the sheet coupled to the location such that the sampling comprises passive contact of the plurality of food items with the sheet. Doing so would have a reasonable expectation of successfully improving efficiency of collecting foreign matter from items of a harvester, thus improving sampling of food items as desired by Wu (paragraph [0006]).
Furthermore, the claimed limitations are obvious because all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements (i.e. the sheet coupled to a location such that sampling comprises passive contact with food items) by known methods with no change in their respective functions (i.e. allowing for removal or sampling of foreign matter from a surface, such as from food items), and the combinations yielded nothing more than predictable results (i.e. the sheet coupled to a location such that sampling comprises passive contact with food items would yield nothing more than the obvious and predictable result of enabling efficient of collecting foreign matter from items of a harvester). See MPEP 2143(A).
Regarding claim 44, modified Furgal fails to teach: wherein the location comprises processing equipment and the sheet is removably coupled to the processing equipment.
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).
Wu teaches the sampling member can be fabric and sponge, wherein the sponge can be sterilized (paragraph [0040]). Wu teaches the sample device comprises a sampling surface that includes a cloth (paragraph [0028]). Wu teaches a harvester (Fig. 1) configured for harvesting the food products being sampled (Fig. 1; paragraphs [0030]-[0031]), wherein sampling devices (40, 30, 20) are coupled to the harvester such that the sampling passively contacts the plurality of food items during a harvesting process of the plurality of food items with the harvester (Fig. 1; paragraphs [0030]-[0031]). Wu teaches the desire and need to provide sampling devices that allow for identification and removal of a greater percentage of contaminated meat from commerce, as well as improve cost, ease and efficiency of sampling (paragraph [0006]), such as by using a sampling device that contacts a batch of items with a sponge or cloth (paragraphs [0007]-[0008],[0028]). Wu teaches the sampling member is easily removed and replaced from the system (paragraph [0035]).
Since Wu teaches a need for providing sampling devices that contact food items with a cloth (paragraphs [0006]-[0008],[0028]), and Perring teaches that 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), 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 apparatus of modified Furgal to incorporate the teachings of non-woven polyester fibers of Perring (column 1, lines 51-58) and the teachings of using cloths and fabric coupled to a harvester, i.e. processing equipment, (Fig. 1; paragraphs [0007]-[0008],[0028]-[0031]), and the teachings of easily removing the sampling member from the system of Wu (paragraph [0035]) to provide: wherein the location comprises processing equipment and the sheet is removably coupled to the processing equipment. Doing so would have a reasonable expectation of successfully improving efficiency of collecting foreign matter from items of a harvester, thus improving sampling of food items as desired by Wu (paragraph [0006]), and further improves removal and replacement of the sheet (Wu, paragraph [0035]).
Regarding claim 64, modified Furgal fails to teach the apparatus of claim 42, further comprising: a harvester configured for harvesting the food products being sampled, wherein the sheet is coupled to the harvester such that the sampling contacts the plurality of food items during a harvesting process that harvest the plurality of food items growing in the field with the harvester.
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).
Wu teaches an apparatus for microbial sampling (abstract; Fig. 1), comprising: an aggregating sampler (Fig. 1, an elongate sampling member 20, a sampling roller 30, and/or bunches of sampling filaments 40) configured to gather an aggregate microbial sample from a plurality of food items (paragraph [0004] teaches sampling for detecting of a target agent, such as pathogen or microbes; paragraph [0008] teaches sampling for E. coli from a batch of food products), 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 (paragraph [0004] teaches sampling for detecting of a target agent, such as pathogen or microbes; paragraph [0008] teaches sampling for E. coli from a batch of food products; abstract and paragraph [0007] teach a sampling member is readily removed after sampling and tested); wherein the aggregating sampler comprises a sheet of a microbial sampling material (paragraph [0007] teaches the sampling device includes a sampling medium, such as a cellulose sheet; paragraph [0040] teaches the sample devices is a fabric), and wherein the sheet is a fabric (paragraph [0040] teaches the sample devices is a fabric). Wu teaches the sampling member can be fabric and sponge, wherein the sponge can be sterilized (paragraph [0040]). Wu teaches the sample device comprises a sampling surface that includes a cloth (paragraph [0028]). Wu teaches a harvester (Fig. 1) configured for harvesting the food products being sampled (Fig. 1; paragraphs [0030]-[0031]), wherein sampling devices (40, 30, 20) are coupled to the harvester such that the sampling contacts the plurality of food items during a harvesting process of the plurality of food items with the harvester (Fig. 1; paragraphs [0030]-[0031]). Wu teaches the desire and need to provide sampling devices that allow for identification and removal of a greater percentage of contaminated meat from commerce, as well as improve cost, ease and efficiency of sampling (paragraph [0006]), such as by using a sampling device that contacts a batch of items with a sponge or cloth (paragraphs [0007]-[0008],[0028]).
Since Wu teaches a need for providing sampling devices that contact food items with a cloth (paragraphs [0006]-[0008],[0028]), and Perring teaches that 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), 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 apparatus of modified Furgal to incorporate the teachings of non-woven polyester fibers of Perring (column 1, lines 51-58) and the teachings of using cloths and fabric coupled to a harvester (Fig. 1; paragraphs [0007]-[0008],[0028]-[0031]) to provide: the apparatus of claim 42, further comprising: a harvester configured for harvesting the food products being sampled, wherein the sheet is coupled to the harvester such that the sampling contacts the plurality of food items during a harvesting process that harvest the plurality of food items growing in the field with the harvester. Doing so would have a reasonable expectation of successfully improving efficiency of collecting foreign matter from items of a harvester, thus improving sampling of food items as desired by Wu (paragraph [0006]).
Furthermore, the claimed limitations are obvious because all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements (i.e. the apparatus comprising a sheet of non-woven synthetic fabric and a harvester) by known methods with no change in their respective functions (i.e. allowing for removal or sampling of foreign matter from a surface, such as from food items), and the combinations yielded nothing more than predictable results (i.e. providing a harvester and the sheet coupled to the harvester would yield nothing more than the obvious and predictable result of enabling efficient of collecting foreign matter from items of a harvester). See MPEP 2143(A).
Claim 47 is rejected under 35 U.S.C. 103 as being unpatentable over Furgal in view of Perring and Lockard as applied to claim 42 above, and further in view of Brinkmann (US 6748605 B1).
Regarding claim 47, while Furgal teaches an embodiment (Fig. 6) wherein a glove or mitten is formed from a sponge layer between sheets of non-woven fabric (column 2, lines 62-67) and a cloth may be formed in a shape of a glove or mitten (column 1, lines 41-45), and wherein the sheet is a single sheet (Fig. 5 shows the non-woven sheets 64, 66 and sponge sheet 62, as a combination, is a single sheet or cloth as discussed in the abstract), modified Furgal fails to explicitly teach: wherein the single sheet is folded and attached to itself to form the pocket for receiving a tool or appendage to facilitating sampling.
Brinkmann teaches gloves with at least two sheets (abstract; Figs. 1-3). Brinkmann teaches the plastic sheets comprise a folding edge forming the top face of the glove in the region of fingertips of an inserted hand (column 4, lines 26-34), i.e. tool or appendage. Brinkmann teaches an especially effective closing function of the glove is to fold one end against the other end to be detachably fastenable to one another (column 5, lines 39-45). Brinkmann teaches sheets are joined by sealing permanently along the lateral border regions of the glove (column 9, lines 42-46). Brinkmann teaches sheet (Figs. 2-3, sheets 6,7) are folded to form a pocket (Figs. 2-3 shows a folded edge 14 and a pocket between elements 6 and 6).
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 folding of sheets to form a glove for receiving a hand of Brinkmann (Figs. 1-3; column 4, lines 26-34; column 5, lines 39-45; column 9, lines 42-46) and the teachings of the sheet being shaped as a glove of Furgal (Fig. 6; column 1, lines 41-45; column 2, lines 62-67) to provide wherein the single sheet is folded and attached to itself to form the pocket for receiving a tool or appendage to facilitating sampling. Doing so would have a reasonable expectation of successfully forming a structure of a glove to improve handling of the sheet by a user.
Claims 48 and 53 are rejected under 35 U.S.C. 103 as being unpatentable over Furgal in view of Perring and Lockard as applied to claims 42 and 52 above, and further in view of Schneider (US 20140303516 A1).
Regarding claim 48, modified Furgal fails to teach wherein the sheet is polyolefin.
Schneider teaches an apparatus for sample collection (abstract) comprising a nonwoven synthetic fabric (paragraph [0081]). Schneider teaches an absorbent layer comprises one or more materials, such as a cloth, sponge, and polypropylene, i.e. polyolefin (paragraphs [0027], [0028], [0066],[0081]).
Since Schneider 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 an absorbent layer of polypropylene, i.e. polyolefin, of Schneider (paragraphs [0027], [0028], [0066],[0081]) to provide: the sheet is polyolefin. Doing so would have a reasonable expectation of successfully absorbing desired materials as taught by Schneider (paragraphs [0027], [0028], [0066],[0081]).
Furthermore, 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 substitute one known element (Furgal’s sheet) with another known element (Schneider’s polyolefin fabric) to provide the sheet is polyolefin, and the results of the substitution (i.e.an absorbent material) would have been predictable. See MPEP 2143(I)(B).
Regarding claim 53, modified Furgal fails to teach wherein the synthetic fabric is polyolefin.
Schneider teaches an apparatus for sample collection (abstract) comprising a nonwoven synthetic fabric (paragraph [0081]). Schneider teaches an absorbent layer comprises one or more materials, such as a cloth, sponge, and polypropylene, i.e. polyolefin (paragraphs [0027], [0028], [0066],[0081]).
Since Schneider 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 an absorbent layer of polypropylene, i.e. polyolefin, of Schneider (paragraphs [0027], [0028], [0066],[0081]) to provide: wherein the synthetic fabric is polyolefin. Doing so would have a reasonable expectation of successfully absorbing desired materials as taught by Schneider (paragraphs [0027], [0028], [0066],[0081]).
Furthermore, 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 substitute one known element (Furgal’s sheet) with another known element (Schneider’s polyolefin fabric) to provide the sheet is polyolefin, and the results of the substitution (i.e.an absorbent material) would have been predictable. See MPEP 2143(I)(B).
Claim 55 is rejected under 35 U.S.C. 103 as being unpatentable over Furgal in view of Perring and Lockard as applied to claim 52 above, and further in view of Brinkmann (US 6748605 B1).
Regarding claim 55, while Furgal teaches an embodiment (Fig. 6) wherein a glove or mitten is formed from a sponge layer between sheets of non-woven fabric (column 2, lines 62-67) and a cloth may be formed in a shape of a glove or mitten (column 1, lines 41-45), and wherein the sheet is a single sheet (Fig. 5 shows the non-woven sheets 64, 66 and sponge sheet 62, as a combination, is a single sheet or cloth as discussed in the abstract), modified Furgal fails to explicitly teach: wherein the single sheet folded and attached to itself to form a pocket for the appendage of the user to facilitating sampling or a single sheet folded and attached to itself to form the pocket.
Brinkmann teaches gloves with at least two sheets (abstract; Figs. 1-3). Brinkmann teaches the plastic sheets comprise a folding edge forming the top face of the glove in the region of fingertips of an inserted hand (column 4, lines 26-34), i.e. appendage. Brinkmann teaches an especially effective closing function of the glove is to fold one end against the other end to be detachably fastenable to one another (column 5, lines 39-45). Brinkmann teaches sheets are joined by sealing permanently along the lateral border regions of the glove (column 9, lines 42-46). Brinkmann teaches sheet (Figs. 2-3, sheets 6,7) are folded to form a pocket (Figs. 2-3 shows a folded edge 14 and a pocket between elements 6 and 6).
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 folding of sheets to form a glove for receiving a hand of Brinkmann (Figs. 1-3; column 4, lines 26-34; column 5, lines 39-45; column 9, lines 42-46) and the teachings of the sheet being shaped as a glove of Furgal (Fig. 6; column 1, lines 41-45; column 2, lines 62-67) to provide wherein the single sheet folded and attached to itself to form a pocket for the appendage of the user to facilitating sampling or a single sheet folded and attached to itself to form the pocket. Doing so would have a reasonable expectation of successfully forming a structure of a glove to improve handling of the sheet by a user.
Claim 57 is 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), Schneider (US 20140303516 A1), and Sugiyama et al. (US 6599420 B2).
Regarding claim 57, 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);
Furgal fails to teach: wherein the aggregating sampler comprises a glove or mitten to facilitate manual sampling with the sheet, wherein the glove or mitten is made from a single sterile sheet of a non-woven synthetic fabric suitable for food contact and food safety sampling and testing, wherein the non-woven synthetic fabric comprises polyolefin; and a partitioned sampling bag in which the aggregating sampler made from a single sheet is individually stomached for subsequent food safety testing.
Furgal teaches an embodiment (Fig. 6) wherein a glove or mitten is formed from a sponge layer between sheets of non-woven fabric (column 2, lines 62-67). Furgal teaches a cloth may be formed in a shape of a glove or mitten (column 1, lines 41-45). Furgal teaches the sheet is a non-woven synthetic cloth (column 1, lines 27-34, “non-woven synthetic fabric”; claims 1-2).
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 sampler of Furgal to incorporate the embodiment of a glove and non-woven synthetic fabric of Furgal (Fig. 6; column 1, lines 27-34; column 1, lines 41-45; column 2, lines 62-67) to provide: wherein the aggregating sampler comprises a glove or mitten to facilitate manual sampling with the sheet, wherein the glove or mitten is made from a single sheet of a non-woven synthetic fabric suitable for food contact and food safety sampling and testing. Doing so would have a reasonable expectation of successfully improving handling and use of the sampler.
Modified Furgal fails to teach: wherein the glove or mitten is made from a single sterile sheet of a non-woven synthetic fabric; wherein the non-woven synthetic fabric comprises polyolefin; and a partitioned sampling bag in which the aggregating sampler made from a single sheet is individually stomached for subsequent food safety testing.
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). 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 incorporate the teachings of a cloth and sterilizing a sheet of Perring (column 1, lines 51-58; column 2, lines 51-60) to provide: wherein the glove or mitten is made from a single sterile sheet of a non-woven synthetic fabric. Doing so would have a reasonable expectation of successfully improving removal of foreign matter from a substrate and providing a sterilized apparatus for desired uses in sterilized environments or conditions, such as for wounds (Perring, column 1, lines 51-58; column 2, lines 51-60).
Modified Furgal fails to teach: wherein the non-woven synthetic fabric comprises polyolefin; and a partitioned sampling bag in which the aggregating sampler made from a single sheet is individually stomached for subsequent food safety testing.
Schneider teaches an apparatus for sample collection (abstract) comprising a nonwoven synthetic fabric (paragraph [0081]). Schneider teaches an absorbent layer comprises one or more materials, such as a cloth, sponge, and polypropylene, i.e. polyolefin (paragraphs [0027], [0028], [0066],[0081]).
Since Schneider 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 an absorbent layer of polypropylene, i.e. polyolefin, of Schneider (paragraphs [0027], [0028], [0066],[0081]) to provide: wherein the non-woven synthetic fabric comprises polyolefin. Doing so would have a reasonable expectation of successfully absorbing desired materials as taught by Schneider (paragraphs [0027], [0028], [0066],[0081]).
Furthermore, 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 substitute one known element (Furgal’s sheet) with another known element (Schneider’s polyolefin fabric) to provide the sheet is polyolefin, and the results of the substitution (i.e.an absorbent material) would have been predictable. See MPEP 2143(I)(B).
Modified Furgal fails to teach: a partitioned sampling bag in which the aggregating sampler made from a single sheet is individually stomached for subsequent food safety testing.
Sugiyama teaches a partitioned filter bag for food samples (Fig. 1; column 1, lines 5-7; claim 1), where the filter bag allows entry of food samples (column 2, lines 8-13). Sugiyama teaches the filter bag allows for food samples to be collected and processed for inspection with a microscope (column 4, lines 1-44).
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 apparatus of modified Furgal to incorporate the teachings of a partitioned sampling bag of Sugiyama (Fig. 1; column 1, lines 5-7; column 2, lines 8-13; column 4, lines 1-44; claim 1) to provide: a partitioned sampling bag in which the aggregating sampler made from a single sheet is individually stomached for subsequent food safety testing. Doing so would have a reasonable expectation of successfully allowing for collection of the aggregating sampler within a vessel, i.e. partitioned bag, for further processing and inspection as taught by Sugiyama.
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).
Claim 60 is rejected under 35 U.S.C. 103 as being unpatentable over Furgal in view of Perring, Schneider, and Sugiyama as applied to claim 57 above, and further in view of Brinkmann (US 6748605 B1).
Regarding claim 60, while Furgal teaches an embodiment (Fig. 6) wherein a glove or mitten is formed from a sponge layer between sheets of non-woven fabric (column 2, lines 62-67) and a cloth may be formed in a shape of a glove or mitten (column 1, lines 41-45), and wherein the sheet is a single sheet (Fig. 5 and abstract teaches the non-woven sheets 64, 66 and sponge sheet 62, as a combination, is a single sheet or cloth), modified Furgal fails to explicitly teach: wherein the a single sheet folded and attached to itself to form the pocket.
Brinkmann teaches gloves with at least two sheets (abstract; Figs. 1-3). Brinkmann teaches the plastic sheets comprise a folding edge forming the top face of the glove in the region of fingertips of an inserted hand (column 4, lines 26-34), i.e. appendage. Brinkmann teaches an especially effective closing function of the glove is to fold one end against the other end to be detachably fastenable to one another (column 5, lines 39-45). Brinkmann teaches sheets are joined by sealing permanently along the lateral border regions of the glove (column 9, lines 42-46). Brinkmann teaches sheet (Figs. 2-3, sheets 6,7) are folded to form a pocket (Figs. 2-3 shows a folded edge 14 and a pocket between elements 6 and 6).
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 folding of sheets to form a glove for receiving a hand of Brinkmann (Figs. 1-3; column 4, lines 26-34; column 5, lines 39-45; column 9, lines 42-46) and the teachings of the sheet being shaped as a glove of Furgal (Fig. 6; column 1, lines 41-45; column 2, lines 62-67) to provide wherein the a single sheet folded and attached to itself to form the pocket. Doing so would have a reasonable expectation of successfully forming a structure of a glove to improve handling of the sheet by a user.
Claim 62 is 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), Schneider (US 20140303516 A1), and Lockard et al. (US 5762716 A).
Regarding claim 62, Furgal teaches an apparatus (Fig. 5) for microbial sampling, comprising (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):
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 sheet (Fig. 5, interpreted as the combined elements 62, 64, and 66, which forms a sheet) of a microbial sampling material (Fig. 5, interpreted as comprising non-woven sheets 64, 66 and sponge sheet 62; note that “microbial sampling” is interpreted as a functional limitation of the “material”, wherein non-woven sheets 64, 66 and sponge sheet 62 are sheets of materials structurally capable of microbial sampling at a later time),
wherein the sheet is an absorbent non-woven synthetic cloth (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),
wherein the sheet is suitably dimensioned to facilitate manual handling and sampling with the sheet for food safety sampling and testing (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 sampling and testing at a later time).
Furgal fails to teach: the sheet is a sterile absorbent non-woven polyolefin cloth; and the sheet is suitably dimensioned, including a lateral dimension of at least 8 inches.
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). 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 incorporate the teachings of a cloth and sterilizing a sheet of Perring (column 1, lines 51-58; column 2, lines 51-60) to provide: the sheet is a sterile absorbent non-woven cloth. Doing so would have a reasonable expectation of successfully improving removal of foreign matter from a substrate and providing a sterilized apparatus for desired uses in sterilized environments or conditions, such as for wounds (Perring, column 1, lines 51-58; column 2, lines 51-60).
Furgal fails to teach: the sheet is a sterile absorbent non-woven polyolefin cloth; and the sheet is suitably dimensioned, including a lateral dimension of at least 8 inches.
Schneider teaches an apparatus for sample collection (abstract) comprising a nonwoven synthetic fabric (paragraph [0081]). Schneider teaches an absorbent layer comprises one or more materials, such as a cloth, sponge, and polypropylene, i.e. polyolefin (paragraphs [0027], [0028], [0066],[0081]).
Since Schneider 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 an absorbent layer of polypropylene, i.e. polyolefin, of Schneider (paragraphs [0027], [0028], [0066],[0081]) to provide: the sheet is a sterile absorbent non-woven polyolefin cloth. Doing so would have a reasonable expectation of successfully absorbing desired materials as taught by Schneider (paragraphs [0027], [0028], [0066],[0081]).
Furthermore, 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 substitute one known element (Furgal’s sheet) with another known element (Schneider’s polyolefin fabric) to provide the sheet is polyolefin, and the results of the substitution (i.e.an absorbent material) would have been predictable. See MPEP 2143(I)(B).
While Furgal teaches a cloth for cleaning, dusting, or waxing (column 1, lines 3-4), modified Furgal fails to teach: the sheet is suitably dimensioned, including a lateral dimension of at least 8 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 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 is suitably dimensioned, including a lateral dimension of at least 8 inches. 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).
Claim 63 is rejected under 35 U.S.C. 103 as being unpatentable over Furgal in view of Perring, Schneider, and Lockard as applied to claim 62 above, and further in view of Brinkmann (US 6748605 B1).
Regarding claim 63, while Furgal teaches an embodiment (Fig. 6) wherein a glove or mitten is formed from a sponge layer between sheets of non-woven fabric (column 2, lines 62-67) and a cloth may be formed in a shape of a glove or mitten (column 1, lines 41-45), and wherein the sheet is a single sheet (Fig. 5 and abstract teaches the non-woven sheets 64, 66 and sponge sheet 62, as a combination, is a single sheet or cloth), modified Furgal fails to explicitly teach: wherein the sheet includes seams that define a glove to facilitate manual sampling with the sheet.
Brinkmann teaches gloves with at least two sheets (abstract; Figs. 1-3). Brinkmann teaches the plastic sheets comprise a folding edge forming the top face of the glove in the region of fingertips of an inserted hand (column 4, lines 26-34), i.e. appendage. Brinkmann teaches an especially effective closing function of the glove is to fold one end against the other end to be detachably fastenable to one another (column 5, lines 39-45). Brinkmann teaches sheets are joined by sealing permanently along the lateral border regions of the glove, i.e. seams (column 9, lines 42-46). Brinkmann teaches sheet (Figs. 2-3, sheets 6,7) are folded to form a pocket (Figs. 2-3 shows a folded edge 14 and a pocket between elements 6 and 6).
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 folding and sealing of sheets to form a glove for receiving a hand of Brinkmann (Figs. 1-3; column 4, lines 26-34; column 5, lines 39-45; column 9, lines 42-46) and the teachings of the sheet being shaped as a glove of Furgal (Fig. 6; column 1, lines 41-45; column 2, lines 62-67) to provide wherein the sheet includes seams that define a glove to facilitate manual sampling with the sheet. Doing so would have a reasonable expectation of successfully forming a structure of a glove to improve handling of the sheet by a user.
Claim 65 is rejected under 35 U.S.C. 103 as being unpatentable over Furgal in view of Perring, Schneider, and Lockard as applied to claim 62 above, and further in view of Sugiyama et al. (US 6599420 B2).
Regarding claim 65, modified Furgal fails to teach the apparatus of claim 62, further comprising: a partitioned bag configured for containing an individual aggregating sampler as in claim 62 for stomaching and subsequent food safety testing.
Sugiyama teaches a partitioned filter bag for food samples (Fig. 1; column 1, lines 5-7; claim 1), where the filter bag allows entry of food samples (column 2, lines 8-13). Sugiyama teaches the filter bag allows for food samples to be collected and processed for inspection with a microscope (column 4, lines 1-44).
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 apparatus of modified Furgal to incorporate the teachings of a partitioned sampling bag of Sugiyama (Fig. 1; column 1, lines 5-7; column 2, lines 8-13; column 4, lines 1-44; claim 1) to provide: the apparatus of claim 62, further comprising: a partitioned bag configured for containing an individual aggregating sampler as in claim 62 for stomaching and subsequent food safety testing. Doing so would have a reasonable expectation of successfully allowing for collection of the aggregating sampler within a vessel, i.e. partitioned bag, for further processing and inspection as taught by Sugiyama.
Claim 66 is rejected under 35 U.S.C. 103 as being unpatentable over Furgal in view of Perring and Lockard as applied to claim 42 above, and further in view of Sugiyama et al. (US 6599420 B2).
Regarding claim 66, modified Furgal fails to teach the apparatus of claim 42, further comprising: a partitioned bag configured for containing an individual aggregating sampler as in claim 42 for stomaching and subsequent food safety testing.
Sugiyama teaches a partitioned filter bag for food samples (Fig. 1; column 1, lines 5-7; claim 1), where the filter bag allows entry of food samples (column 2, lines 8-13). Sugiyama teaches the filter bag allows for food samples to be collected and processed for inspection with a microscope (column 4, lines 1-44).
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 apparatus of modified Furgal to incorporate the teachings of a partitioned sampling bag of Sugiyama (Fig. 1; column 1, lines 5-7; column 2, lines 8-13; column 4, lines 1-44; claim 1) to provide: the apparatus of claim 42, further comprising: a partitioned bag configured for containing an individual aggregating sampler as in claim 42 for stomaching and subsequent food safety testing. Doing so would have a reasonable expectation of successfully allowing for collection of the aggregating sampler within a vessel, i.e. partitioned bag, for further processing and inspection as taught by Sugiyama.
Claim 68 is rejected under 35 U.S.C. 103 as being unpatentable over Furgal in view of Perring and Lockard as applied to claim 67 above, and further in view of Sugiyama et al. (US 6599420 B2).
Regarding claim 68, modified Furgal fails to teach the apparatus of claim 67, further comprising: a partitioned bag containing an individual aggregating sampler as in claim 67 for stomaching and subsequent food safety testing.
Sugiyama teaches a partitioned filter bag for food samples (Fig. 1; column 1, lines 5-7; claim 1), where the filter bag allows entry of food samples (column 2, lines 8-13). Sugiyama teaches the filter bag allows for food samples to be collected and processed for inspection with a microscope (column 4, lines 1-44).
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 apparatus of modified Furgal to incorporate the teachings of a partitioned sampling bag of Sugiyama (Fig. 1; column 1, lines 5-7; column 2, lines 8-13; column 4, lines 1-44; claim 1) to provide: the apparatus of claim 67, further comprising: a partitioned bag containing an individual aggregating sampler as in claim 67 for stomaching and subsequent food safety testing. Doing so would have a reasonable expectation of successfully allowing for collection of the aggregating sampler within a vessel, i.e. partitioned bag, for further processing and inspection as taught by Sugiyama.
Response to Arguments
Applicant’s arguments, see pages 9-11, filed 10/20/2025, with respect to the drawing objections, claim objections, and rejections under 112(a) and 112(b) have been fully considered and are persuasive. The drawing objections, claim objections, and rejections under 112(a) and 112(b) of 05/19/2025 have been withdrawn.
Applicant’s arguments, see pages 11-12, filed 10/20/2025, with respect to the rejection(s) of claims 42-45, and 48 under 35 U.S.C. 102 over Kshirsagar have been fully considered and are persuasive. Therefore, the rejection has been withdrawn.
Applicant's argument, see pages 12-14, filed 10/20/2025, with respect to the rejection of claim 42 over Griesbach have been fully considered but they are not persuasive.
In response to applicant’s argument that Griesbach fails to teach a sample sheet that consists of a single layer of absorbent non-woven fabric and wherein the sheet is rectangular and has a lateral dimension of at least 8 inches to facilitate manual handling and sampling, the examiner disagrees. Griesbach teaches 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) 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).
Applicant’s arguments, see pages 12-14, filed 10/20/2025, with respect to the rejection of claim 57 under 35 U.S.C. 102 over Griesbach have been fully considered and are persuasive. Therefore, the rejection has been withdrawn.
Applicant’s arguments, see pages 14-15, filed 10/20/2025, with respect to the rejection of at least claims 42, 52, 57, and 62 under 35 U.S.C. 102 over Perring, specifically regarding the limitation “at least 8 inches”, have been fully considered and are persuasive. Therefore, the rejections have been withdrawn.
Applicant’s arguments, see pages 15-17, filed 10/20/2025, with respect to the rejections of claims 42, 45-46, 48-49, 51-54, 56-59, and 62 over Furgal in view of Perring, specifically in regards to the new limitation of “at least 8 inches” have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Furgal et al. (US 3732652 A) in view of Perring et al. (US 8152929 B1) and Lockard et al. (US 5762716 A).
Applicant's argument, see page 15, filed 10/20/2025, with respect to the rejection of claim 42 over Furgal in view of Perring, specifically regarding the limitation of “consists of a single sheet”, have been fully considered but they are not persuasive.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., “consists of a single layer of an absorbent material…a single layer of absorbent non-woven synthetic cloth”) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Claim 42 recites the aggregating sampler consists of a “single sheet of an absorbent non-woven synthetic fabric”, wherein the BRI of “single sheet” includes a Furgal’s single sheet formed of multiple elements (Fig. 5): 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).
Further, note that “sheet” is interpreted as an element that is thin in comparison to its length and breadth. Additionally, the instant specification (paragraph [0078]) discloses that “a sheet” can include “non-woven synthetic fabrics”, therefore the BRI of “a sheet” includes multiple fabrics. Therefore, the claimed limitation of “the aggregating sampler consists of a single sheet an absorbent non-woven synthetic fabric” can include a fabric having multiple layers. In regards to the use of “consists of” within the body of the claim, there is an “exceptionally strong presumption that a claim term set off with ‘consisting of’ is closed to unrecited elements” (MPEP 2111.03(II)).
Applicant’s arguments, see pages 16-17, filed 10/20/2025, with respect to the rejection of claim 62 over Furgal in view of Perring, specifically in regards to the limitation of “polyolefin” have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration of the amended claim, a new ground(s) of rejection is made in view of Furgal et al. (US 3732652 A) in view of Perring et al. (US 8152929 B1), Schneider (US 20140303516 A1), and Lockard et al. (US 5762716 A).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Shim (US 20120100350 A1) teaches a sheet for a diaper and sanitary pad (abstract). Shim teaches an absorbent nonwoven material comprises polypropylene, i.e. polyolefin (paragraph [0015]).
Delmore et al. (US 5939339 A) teaches a wound dressing capable of absorbing fluids (abstract). Delmore teaches an absorbent layer of nonwoven material that includes polyolefin (column 2, lines 55-62).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HENRY H NGUYEN whose telephone number is (571)272-2338. The examiner can normally be reached M-F 7:30A-5:00P.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Maris Kessel can be reached at (571) 270-7698. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HENRY H NGUYEN/Primary Examiner, Art Unit 1758
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