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 .
Request for Continued Examination
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant’s submission filed on 06/17/2025 has been entered.
Detailed action
Claims 1, 3-15, 23, 24 and 25 are pending in the Claim Set filed 6/17/2025.
Claims 23, 24 and 25 are newly added.
Claims 1 and 3-15 have been amended.
Claims 2 and 16-22 are cancelled.
Herein, claims 1, 3-15, 23, 24 and 25 are for examination.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 2/08/2024 has been considered by the examiner and an initialed copy of the IDS is included with the mailing of this office action. Non-Patent Literature Documents on page 11 at Cite No. 39 and Cite No. 40 have been lined through because they do not have proper dates assigned to them. Appropriate correction is required.
Withdrawn Rejections
The rejection of claims 1, 3-15, 21 and 22 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention is withdrawn in view of the claim amendments.
The rejection of claims 1, 3, 5, 6, 8, 21 and 22 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Almas (US 20180179059, of record) [Almas ‘059] in view of DiLiberto (US 2016/0023834) [DiLiberto] is withdrawn in view of the claim amendments.
The rejection of claim 4 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Almas (US 20180179059, of record) [Almas ‘059] in view of DiLiberto (US 2016/0023834) [DiLiberto] as applied to claims 1, 3, 5, 6, 8, 21 and 22 above and further in view of Almas (US 20170266227, of record) [Almas (‘227)] is withdrawn in view of the claim amendments.
The rejection of claim 7 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Almas (US 20180179059, of record) [Almas ‘059] in view of DiLiberto (US 2016/0023834) [DiLiberto] as applied to claims 1, 3, 5, 6, 8, 21 and 22 above and further in view of Almas (US 20170266227, of record) [Almas (‘227)] and Panicheva et al (US 20160143944) [Panicheva] is withdrawn in view of the claim amendments.
The rejection of claims 9-12 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Almas (US 20180179059, of record) [Almas ‘059] in view of DiLiberto (US 2016/0023834) [DiLiberto] as applied to claims 1, 3, 5, 6, 8, 21 and 22 above and further in view of Almas (US 20160271171, of record) [Almas (‘171)] is withdrawn in view of the claim amendments.
The rejection of claims 13-15 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Almas (US 20180179059, of record) [Almas ‘059] in view of DiLiberto (US 2016/0023834) [DiLiberto] as applied to claims 1, 3, 5, 6, 8, 21 and 22 above and further in view of Kang et al (US20180010080) is withdrawn in view of the claim amendments.
Claim Objection
Claim 1 is objected to because of the following informalities:
Claim 1 recites from 1 to 10 ‘halogenated’ carbon atoms. This appears to be a typo since the correct word is ‘hydrogenated’ carbon atoms. Applicants are referred to page 6 of Instant Specification, lines 1-2, where its states: between 1 and 10 hydrogenated carbon atoms. Appropriate correction is required.
New Grounds of Rejections
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or
nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention
Claims 1, 3-6, 8, 23 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Almas (US 20170266227, cited in IDS filed 2/8/2024) [Almas (‘227)] in view of Almas (US20180179059, cited in IDS filed 2/8/2024) [Almas (‘059)] as evidenced by PubChem. "Calcium Chlorite'" CID 61757, Create Date: 2005-08-08; accessed at https://pubchem.ncbi.nlm.nih.gov/compound/Calcium-chlorite; Retrieved 12/19/2025, pages 1-33 [PubChem, Calcium chlorite CID 61757].
Regarding claims 1 and 3-6,
Almas (‘227) teaches disinfecting compositions (i.e., formulation) comprising NaOCl (sodium hypochlorite, which is alkali metal salt of hypochlorous acid) and Ca(ClO2)2 (calcium chlorite), which is alkaline metal salt of chlorous acid (i.e., Ca(ClO2)2 is formed from calcium cation (Ca2+) and a chlorite anion (ClO2-) where the chlorine is in the +3 oxidation state) (reads on claim 4), of which are especially useful for treating biofilms in or on tissue, wherein microorganisms associated with biofilms include Candida albicans, coagulase-negative staphylococci, Enterococcus, Klebsiella pneumoniae, Pseudomonas aeruginosa, Staphylococcus aureus, and others, wherein treatment includes killing of microbes inhabiting the biofilm or removing a biofilm, inhibiting biofilm formation, and disrupting an existing biofilm (Abstract; [0006]; [0049]; [0087-0088]; [0090]; See entire document).
Almas (‘227) teaches acetic acid in water (Title; Abstract; [0003]; [0006]; [0007]; [0009]; [0012-0018]; [0033]; [0036-0038]; [0042-004]; [0045-0048]; [0049]; [0057]; [0090]; [0118]; [0120]; Claims 1-6); See entire document). Regarding the compound acetic acid: a compound cannot be separated from its properties, regardless of what it types of excipients it is classified as. A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present, for example, an activator. Further, Almas (‘227) teaches mixing comprises introducing water to the compound that generates the proton, e.g., acetic acid [0057].
Accordingly, it would have been obvious to one of ordinary skill in the art that the teachings of Almas (‘227) makes obvious an antimicrobial formulation comprising NaOCl (Mn+[Cl(O)x]nn- (M is Sodium (Na); n = 1); x = 1), i.e., alkali metal salt of hypochlorous acid (reads on claims 1 and 2); Ca(ClO2)2 (Mn+[Cl(O)x]nn- (M is Calcium (Ca); n = 2); x = 2), i.e., alkaline metal salt of chlorous acid (reads on claims 1 and 4); acetic acid (CH3CO2H): R1XOn(R2)m where R1 = hydrogenated carbon atom (C1); X = carbon; O is oxygen and n = 2; R2 = H) (i.e., acetic acid (activator) in water (reads on aqueous solution of an activator).
Moreover, it would be prima facie obvious that mixing (i.e., combining) an aqueous solution containing acetic acid (i.e., activator that is a source of proton H+) with (ClO2)2 (calcium chlorite), which is alkaline metal salt of chlorous acid (i.e., Ca(ClO2)2 is formed from calcium cation (Ca2+) and a chlorite anion (ClO2-) where the chlorine is in the +3 oxidation state) would produce a formulation comprising chlorine atoms in oxidation state of +3 ( e.g., O=ClOH: chlorous acid), wherein it would necessarily follow that the combination produces chlorine dioxide and would not generate chlorine gas. Moreover, it would be well within the purview of those skilled in the art to provide a formulation whereby the combination of the oxidized chlorine salt and activator produce a composition that comprising about 0.1-p.5 ppm of chlorine dioxide by routine optimization without undue experimentation, having a reasonable expectation of success, since there is no unobvious distinction between the structural and functional characteristics of the claimed formulation and the formulation as taught by Almas (‘227).
Almas (‘227) differs from the claims in that the document does not teach that the activator is in a second compartment separated from the solid oxidized chlorine salt, or that Ca(OCl)2 is a solid chlorine salt
However, Almas (‘059) as evidenced by PubChem, Calcium chlorite CID 61757 cure the deficiencies.
Almas (‘059) teaches (NaOCI) or Ca(OCl)2 and a compound that generates a proton (H+) in the presence of water, for example, acetic acid, that is provided in a multi-chamber container comprising a first compartment containing a compound, e.g., (NaOCI) or Ca(OCl)2, and a second compartment that contains a compound that generates a proton (H+), e.g., acetic acid, in water ([0009]; [0013]; [0022]; Figures 1-4; See entire document). Furthermore, Almas (‘059) teaches by providing the components in separate compartments the shelf-life of the formulations are prolonged, and the storage and preparation processes are performed under air-free environmental conditions within the container [0064].
Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to modify the teachings of Almas (‘227) in order to provide a formulation comprising (NaOCI) and/or Ca(OCl)2 in separate compartments in a container comprising aqueous acetic in order to prolong the shelf-life of the solid formulations wherein the preparation processes of mixing the components are performed under air-free environmental conditions.
Furthermore, as evidenced by PubChem, Calcium chlorite CID 61757, Calcium chlorite is a white granular solid (page 2: See Description). Therefore, calcium chlorite (Ca(OCl)2) used in Almas (‘227) is a dry solid oxidized chlorine salt, of which is identical to an oxidized chlorine salt, as instantly claimed. Thus, it would have been prima facie obvious to provide calcium chlorite in the form of a dry solid in a separate compartment from the activator, e.g., aqueous solution containing acetic acid, having a reasonable expectation of success that by doing so for prolong the shelf-life of the dry solid oxidized chlorine salt.
Regarding claim 8,
Almas (‘227) teaches the compositions have a pH of from about 4.5 to about 9 [0048], of which overlaps with the claimed pH range. Where the claimed ranges overlap with the disclosures of prior art, the claim is obvious. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003).
Regarding claim 23,
Almas (‘227) teaches disinfecting compositions (i.e., formulation) comprising Ca(ClO2)2 (calcium chlorite), which is alkaline metal salt of chlorous acid (i.e., Ca(ClO2)2 is composed of calcium cation (Ca2+) and a chlorite anion (ClO2-) where the chlorine atom is in the +3 oxidation state). Accordingly, it would necessarily follow that by mixing (i.e., combining) an aqueous solution of acetic acid (i.e., activator that is a source of proton H+) with calcium chlorite, which is alkaline metal salt of chlorous acid, would necessarily produce chlorous acid in oxidation state of +3 (e.g., O=ClOH: chlorous acid) and sodium acetate, i.e., since the chlorine atom is already in the +3-oxidation state.
Regarding claim 24,
Claim 24 is intended use of the claimed formation. A recitation of the intended use 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 intended use, then it meets the limitations of the claim. Notably, Specification at page 20, states: Use of the invention in aquaculture: The formulations in the present invention is even employed in special tanks to repeatedly treat e.g. bred salmon without harming the fish gills or any other parts of the bred species. Since there is no unobvious distinction between the structural and functional characteristics of the claimed solid oxidized chlorine salt and the calcium chlorite as taught by Almas (‘227), it would necessarily follow that the formulation as taught Almas (‘227) would produce a composition that kills waterborne pathogens and does not harm fish, having a reasonable expectation of success. Because the PTO has no means to conduct analytical experiments, the burden of proof is shifted to the Applicant to prove that the properties are not present in the prior art. Moreover, the discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art's functioning, does not render the old composition patentably new to the discoverer. Atlas Powder Co. v. lreco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Accordingly, the claiming of a new use, new function or unknown property which is present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977)." MPEP § 2112, I.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, in view of Almas (‘227) and Almas (‘059) as evidenced by PubChem, Calcium chlorite CID 61757.
Claim 7 is rejected under 35 U.S.C. 103(a) as being unpatentable over Almas (US 20170266227, cited in IDS filed 2/8/2024) [Almas (‘227)] in view of Almas (US20180179059, cited in IDS filed 2/8/2024) [Almas (‘059)] as evidenced by PubChem. "Calcium Chlorite'" CID 61757, Create Date: 2005-08-08; accessed at https://pubchem.ncbi.nlm.nih.gov/compound/Calcium-chlorite; Retrieved 12/19/2025, pages 1-33 [PubChem, Calcium chlorite CID 61757] as applied to claims 1, 3-6, 8, 23 and 24 above and further in view of Panicheva et al (US 20160143944, of record) [Panicheva] and Wiggins (USP 6,060,233) [Wiggins].
The teachings of Almas (‘227) and Almas (‘059) as evidenced by PubChem, Calcium chlorite CID 61757.are described above.
Almas (‘227), Almas (‘059) as evidenced by PubChem, Calcium chlorite CID 61757 differ from the claims in that the documents do not teach that the formulation has an osmolality in the range of about 0.1 mOsm to about 500 mOsm.
Firstly, Almas (‘227) teaches the carrier is an aqueous solution of saline (NaCl solution) and the composition is isotonic with respect to blood [0124].
Regarding claim 7,
However, Panicheva and Wiggins, as a whole, cure the deficiency
Panicheva teaches a disinfectant composition comprising oxidized chlorine salt, e.g., NaOCl, and saline (sodium chloride (NaCl) and water). Particularly, Panicheva teaches that the disinfectant composition can be made isotonic with respective to physiological fluids by the addition of sodium chloride (NaCl) at varying concentrations (Abstract; [0005-0016]).
Wiggins teaches cells in an isotonic solution neither shrink nor swell substantially, wherein an osmolality between about 280-320 for solutions is preferably for preservation mammalian biological materials (col.5, lns.28-40; See entire document).
Thus, one skilled in the art would have recognized the benefit of providing a formulation having an osmolality in the range of about 280-320, e.g., cells in an isotonic solution neither shrink nor swell substantially, in accordance with the guidance provided by the teachings of Wiggins.
Accordingly, it would have been well within the purview of one of ordinary skill in art to optimize an amount of saline (sodium chloride (NaCl) solution) to provide an antimicrobial composition that is an isotonic solution, wherein one skilled in the art would have been motivated to optimize a solution to provide an osmolality in the range of about 280-320 mOsm to provide a formulation comprising an oxidized chlorine salt and an activator, e.g., acetic acid, that does not substantially shrink or swell cells having a reasonable expectation of success. Optimization of parameters is a routine practice that would be obvious to a person of ordinary skill in the art to employ and reasonably expect success; See In re Aller, 220 F.2d 454, 456, 105 USPQ 233,235 (CCPA 1955). As MPEP 2144.05 recites 'where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine optimization. Moreover, it would have been customary for an artisan of ordinary skill to determine the optimal osmolality to best achieve the desired results. Also, Furthermore, a formulation having an osmolality in the range of about 280-320 mOsm lies within the claimed range of 0.1 mOsm to about 500 mOsm. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ 90 (CCPA 1976); In re Woodruff, 91 9 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05. Moreover, there is no unobvious distinction between the structural and functional characteristics of the claimed formulation and the prior art formulation composition as taught by Almas (‘227) and Almas (‘059) as evidenced by PubChem, Calcium chlorite CID 61757, Panicheva and Wiggins, as a whole.
Claims 9-12 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Almas (US 20170266227, cited in IDS filed 2/8/2024) [Almas (‘227)] in view of Almas (US20180179059, cited in IDS filed 2/8/2024) [Almas (‘059)] as evidenced by PubChem. "Calcium Chlorite'" CID 61757, Create Date: 2005-08-08; accessed at https://pubchem.ncbi.nlm.nih.gov/compound/Calcium-chlorite; Retrieved 12/19/2025, pages 1-33 [PubChem, Calcium chlorite CID 61757] as applied to claims 1, 3-6, 8, 23 and 24 above and further in view of Almas (US 20160271171, cited in IDS filed 2/8/2024) [Almas (‘171)].
The teachings of Almas (‘227), Almas (‘059) as evidenced by PubChem. "Calcium Chlorite'" CID 61757 are described above.
Almas (‘227), Almas (‘059) as evidenced by PubChem. "Calcium Chlorite'" CID 61757 differ from the claims in that the documents do not teach that the formulation device further comprises a viscosity-enhancing agent.
However, Almas (‘171) cures the deficiencies.
Regarding claims 9-12,
Almas (‘171) teaches the disinfectant composition further contains excipients including acrylate copolymers including polyacrylic acid polymers ([0013], [0052], [0062]; claims 9 and 24), thereby meeting the claims ‘viscosity-enhancing agent’ of claims 9-12. The excipients are added to impart the desired viscosity for pumping and handling of the product, see paragraph [0052]. Notably, polyacrylic acid is recited in claim 12 and is defined in claims 9-11 as a viscosity enhancing agent that is resistant to oxidation by the oxidized chlorine salt. Accordingly, a compound cannot be separated from its properties, regardless of what type of compound it is classified as, e.g., viscosity-enhancing agent is resistant to oxidation by the oxidized chlorine salt. Applicant's attention is directed to MPEP 2112.01 II, which discloses ‘Products of identical chemical composition cannot have mutually exclusive properties.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this case, ‘polyacrylic acid’ will retain its properties as a viscosity-enhancing agent that would necessarily be resistant to oxidation by the oxidized chlorine salt, wherein the viscosity-enhancing agent comprises a water-soluble gelling agent such that the skilled artisan would expect that its functionality would remain consistent.
It would have been prima facie obvious to provide polyacrylic acid with the device of Almas (‘059). One of ordinary skill in the art would have been motivated to do so in view of the teachings of Almas (171) which teaches that excipients including polyacrylic acid are typically added to impart the desired viscosity for pumping and handling of the product.
All the claimed elements herein are known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
Thus, it would have been obvious for one of ordinary skill in the art to provide instantly claimed invention and one of ordinary skill would have had a reasonable expectation of success in producing the claimed invention. Therefore, in the absence of evidence to the contrary, the invention as a whole would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by Almas (‘227), Almas (‘059) as evidenced by PubChem. "Calcium Chlorite'" CID 61757 and Almas (‘171).
Claims 13-15 is rejected under 35 U.S.C. 103(a) as being unpatentable over Almas (US 20170266227, cited in IDS filed 2/8/2024) [Almas (‘227)] in view of Almas (US20180179059, cited in IDS filed 2/8/2024) [Almas (‘059)] as evidenced by PubChem. "Calcium Chlorite'" CID 61757, Create Date: 2005-08-08; accessed at https://pubchem.ncbi.nlm.nih.gov/compound/Calcium-chlorite; Retrieved 12/19/2025, pages 1-33 [PubChem, Calcium chlorite CID 61757] as applied to claims 1, 3-6, 8, 23 and 24 above and further in view of Kang et al (US20180010080, cited in IDS) [Kang].
The teachings of Almas (‘227), Almas (‘059) as evidenced by PubChem. "Calcium Chlorite'" CID 61757 are described above.
Almas (‘227), Almas (‘059) as evidenced by PubChem. "Calcium Chlorite'" CID 61757 differ from the claims in that the documents do not teach that the formulation device further comprises a further comprises a colorimetric dye.
However, Kang cures the deficiencies.
Regarding claims 13-15,
Kang teaches an aqueous disinfectant comprising an oxidized chlorine salt, e.g., (NaOCl), acetic acid, and water, wherein the disinfectant further contains a water-soluble pigment (dye) such a methylene blue (a reduction-oxidation dye), which provides a visual indicator of the presence of an oxidized chloride compound, as well as, color stability to the aqueous disinfectant (Abstract; [00014]-[0020], [0024], [0032]-[0035], [0040]-[0053], [0087], [0152], [0196], [0200], [0202], [0204]; claims 1-15 and 23).
It would have been prima facie obvious to one of ordinary skill in the art to include a dye such as methylene blue in the disinfectant formulation as taught by Almas (‘227), Almas (‘059) as evidenced by PubChem. "Calcium Chlorite'" CID 61757, and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because Kang provides the guidance to do so by teaching that a dye such as methylene blue can be added to a disinfectant composition, wherein the dye can function as a visual indicator for the presence of an oxidized chlorine compound, e.g., Ca(ClO2)2 is formed from calcium cation (Ca2+) and a chlorite anion (ClO2-) where the chlorine is in the +3 oxidation state, as well as, color stability to the disinfectant. Thus, an ordinary artisan seeking to produce a disinfectant composition that has visual indication of the presence of oxidized chlorine. as well as, color stability, would have looked to including a dye, e.g., methylene blue, in the formulation as taught by Almas (‘227), Almas (‘059) as evidenced by PubChem. "Calcium Chlorite'" CID 61757, having a reasonable expectation of success.
Claim 25 is rejected under 35 U.S.C. 103(a) as being unpatentable over Almas (US 20170266227, cited in IDS filed 2/8/2024) [Almas (‘227)] in view of Almas (US20180179059, cited in IDS filed 2/8/2024) [Almas (‘059)] as evidenced by PubChem. "Calcium Chlorite'" CID 61757, Create Date: 2005-08-08; accessed at https://pubchem.ncbi.nlm.nih.gov/compound/Calcium-chlorite; Retrieved 12/19/2025, pages 1-33 [PubChem, Calcium chlorite CID 61757] as applied to claims 1, 3-6, 8, 23 and 24 above and further in view of Kross et al (USP5,389,390) [Kross].
The teachings of Almas (‘227), Almas (‘059) as evidenced by PubChem. "Calcium Chlorite'" CID 61757 are described above.
Almas (‘227), Almas (‘059) as evidenced by PubChem. "Calcium Chlorite'" CID 61757 differ from the claims in that the documents do not teach the solid oxidized chlorine salt and the activator combine to produce a composition comprising about 0.1 to about 5 ppm of the chlorine dioxide.
However, Kross cures the deficiencies.
Kross teaches a process for removal of bacteria from fresh poultry and fresh meat products comprising contacting the meat products with an aqueous solution containing a metal chlorite and sufficient acid to maintain the chlorite ion concentration in the form of chlorous acid to not more than about 35% by weight of the total amount of chlorite ion concentration in the solution and to minimize chlorine dioxide generation that is associated discoloration of the meat, wherein no more than about 2 ppm chlorine dioxide are generated (Abstract; col.2, lns.31-54; col.3, lns.11-15; See entire document)/ Kross teaches color changes occur from a combination of the oxidation of blood hemoglobin, the oxidation of caretenoid colorants in poultry fat , and the reaction of chlorine dioxide with the amino acids tyrosine and tryptophan to form colored species. As a small molecule, chlorine dioxide can diffuse into tissues such as capillary walls and fat to effect oxidative changes. While a major reduction in Salmonella organisms was observed, a bleaching of the skin was noted (col.2, lns.55-67).
Kross teaches an object of the invention is to provide a method for efficaciously removing microorganisms from meat products without discoloring the meat surfaces, wherein this is accomplished by maintaining the chlorite ion concentration in the form of chlorous acid to not more than about 35% by weight of the total amount of chlorite ion concentration in the solution, and to minimize the degradation of that chlorous acid through the formation of chlorine dioxide generation. Kross, teaches that acid is provided to generate no more about 2 ppm chlorine dioxide (col.3, lns.20-33). Kross teaches high bacteriocidal effectiveness of acidic chlorine dioxide generating meat disinfectant solutions derives from the chlorous acid component, and that the undesirable skin effects observed with meat products are attributable to the levels of chlorine dioxide in the solutions. Kross teaches that fresh meat products can be treated with metal chlorites in an acid solution to remove microorganisms during processing without discoloring the meat (col.4, lns.18-33). Kroos teaches any protic acid can be used for converting chlorite to the disinfecting chlorous acid species, provided that the formation of undesirable levels of chlorine dioxide are not generated (col.6. lns.1-19). Particularly, Kross teaches that as a guide to the acceptability of an acid, the acid is preferably selected to generate no more than about 2 ppm, and, in some cases, no more than about 1 ppm, of chlorine dioxide when mixed with a sodium chlorite solution (col.6, lns.41-62). Kross teaches that an advantage of the process is that microorganisms can be efficiently and rapidly removed from meat surfaces without discoloring them (col.8, lns.62-67).
It would have been prima facie obvious to one of ordinary skill in the art to modify the formulation as taught by Almas (‘227), Almas (‘059) as evidenced by PubChem. "Calcium Chlorite'" CID 61757 so that the chlorine dioxide does exceed more about 2 ppm in view of the teachings of Kross. One skilled in the art would have been motivated to do so in to minimize and/or inhibit the discoloration of the meat products, e.g., fish provided in a commercial manufacturing process, having a reasonable expectation of success.
All the claimed elements herein are known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
Thus, it would have been obvious for one of ordinary skill in the art to provide instantly claimed invention and one of ordinary skill would have had a reasonable expectation of success in producing the claimed invention. Therefore, in the absence of evidence to the contrary, the invention as a whole would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by Almas (‘227), Almas (‘059) as evidenced by PubChem. "Calcium Chlorite'" CID 61757 and Kross (USP5,389,390).
Response to Arguments
Applicants argue that none of the asserted prior art teaches or suggest any solid oxidized chlorine salt, so that the asserted prior art does not teach or suggest such a salt in one compartment with an aqueous activator kept separated in a second compartment.
Applicant’s arguments have been fully considered but they are not persuasive, because the deficiency is cured by the cited prior art references. Especially, in regards to Applicants’ argument, as evidenced by PubChem, Calcium chlorite CID 61757, Calcium chlorite is a white granular solid (page 2: See Description). Therefore, calcium chlorite used in Almas (‘227) is a dry solid oxidized chlorine salt, of which is identical to an oxidized chlorine salt, as instantly claimed. Thus, it would have been prima facie obvious to provide calcium chlorite in the form of a dry solid in a separate compartment from the activator, e.g., aqueous solution containing acetic acid, having a reasonable expectation of success that by doing so for prolong the shelf-life of the dry solid oxidized chlorine salt, having a reasonable expectation of success.
The test for obviousness is not whether the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Conclusions
No claim is allowed.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THURMAN WHEELER whose telephone number is (571)-207-1307. The examiner can normally be reached Monday-Friday 10:00am-6:00pm EST.
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/T.W./ Examiner, Art Unit 1619
/SARAH ALAWADI/ Primary Examiner, Art Unit 1619