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 Arguments
Applicant’s arguments with respect to all pending claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for all teaching or matter specifically challenged in the argument.
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 1 and 28 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.
As to Claim 1, the instant claim recites the limitation “in response to the quality of the plurality of plants or plant parts” in lines 10 – 11. It is vague/unclear as to what the aforementioned limitation is referring to in regards to the “in response to the quality”. It appears that “the quality” (line 10) is referring to “a quality” (line 8), which in this case is being used with the correlation step (lines 7 – 9) and not necessarily an assessment or determination step. Note that the aforementioned limitation “in response to” implies that “the quality” is somehow determined or assessed beforehand i.e., before the “initiating” step of line 11. Therefore, it is vague/unclear as to what is meant by the aforementioned limitation.
Similarly, Claim 28 is also rejected, since the instant claim recites “in response to the quality” (line 3).
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.
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 - 7, 15, 21, 27 - 29 are rejected under 35 U.S.C. 103 as being unpatentable over KR 20100012752 U (hereinafter “’752”) in view of U.S. Patent Application Publication No. 2014/0121110 A1 to Dhingra et al. (hereinafter “Dhingra”) in view of U.S. Patent Application Publication No. 2014/0214714 A1 to Minvielle (hereinafter “Minvielle”).
Regarding Claim 1, as best understood, ‘752 teaches a method of controlling delivery of a remediation agent to a plurality of plants or plant parts (see abstract at page 1 and last 5 lines at page 1 – first paragraph at page 2 describing the invention which relates to a quality control device for ripening, fumigation etc. of fruits and vegetables comprising a flow distribution that forces air or gaseous chemicals to circulate through the vents of the box so that the products in the box can be uniformly treated, see also Figs. 1 – 4, thus by uniformly treating the products, the delivery of gaseous chemicals are controlled, hence reading on the invention as claimed) comprising:
enclosing a plurality of plants or plant parts in one or more storage rooms (see Fig. 1 illustrating reservoir 100 having a partition wall 110 which partitions the mediation control room 130 and the flow path 120, the device as illustrated at Fig. 1 includes boxes 20 which hold the fruits/vegetables, see description at page 3 last three paragraphs).
Even though ‘752 teaches quality control of fruits and vegetables including generator 50, Fig. 1 which generates 1-MCP for ripening control and as an ethylene inhibitor, ‘752 is silent regarding detecting levels of one or more biological compounds or biofeedback components present in the air of the one or more storage rooms, the atmosphere of the one or more storage rooms, or both.
Dhingra, in the field of control of ripening and senescence in pre-harvest and post-harvest plants and plant materials, teaches that it is known to detect levels of one or more biological compounds or biofeedback components present in the air of the one or more storage rooms, the atmosphere of the one or more storage rooms, or both (see Example 1 and Results at paragraphs [0046] – [0052] and in particular at paragraph [0052] which describes measuring the ethylene levels that is released when the fruit is ripening, see also Figs. 6A, 6B).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the detection of one or more biological compounds such as ethylene of Dhingra into ‘752, in order to accurately and efficiently control the maturity of plants and/or plant products. The modification further provides advantages including optimizing ripening process which directly impacts shelf life and quality of the products.
‘752 in view of Dhingra as modified above further teaches;
correlating the detected level of the one or more biological compounds or biofeedback components in the one or more storage rooms with a quality of the plurality of plants or plant parts (see paragraphs [0050] – [0052] of Dhingra and/or see page 4 second paragraph of ‘752 and modification above),
in response to the determined quality of the plurality of plants or plant parts, initiating a dose of one or more remediation agents to the air or atmosphere of the one or more storage rooms (see page 4, second paragraph and claims at page 6 of ‘752 describing the fruit and vegetable quality control device comprises a 1-MCP generator 50 as an ethylene inhibitor along with the air circulation system that allows the mixed flow to flow into the box such that the box having the products is uniformly treated, see also abstract at page 1 and last 5 lines at page 1 – first paragraph at page 2, and last paragraph at page 2 of ‘752 describing the invention which relates to a quality control device for ripening, fumigation etc. of fruits and vegetables by adjusting the maturation of the product through air flow, in addition, see paragraphs [0004] – [0010] of Dhingra, hence reading on the invention as claimed), wherein the one or more remediation agents are different than the one or more biological compounds or biofeedback components (see modification above, see 1-MCP generator 50, Fig. 1 of ‘752 and/or paragraphs [0048] – [0052] of Dhingra describing pears treated with 1-MCP, H2S etc., while the biological compounds are different (i.e., carbon monoxide and ethylene as described at paragraphs [0051] – [0052] of Dhingra) and wherein the one or more remediation agents are selected from the group consisting of i) 1-methylcyclopropene (see , ii) oxaborole, iii) imazalil, iv) fludioxonil, v) thiabendazole, vi) a fungicide, wherein the fungicide is a benzoxaborole, or vii) any combination thereof (see modification above, see 1-MCP generator 50, Fig. 1 of ‘752 and/or paragraphs [0048] – [0052] of Dhingra describing pears treated with 1-MCP, H2S etc., hence reading on the invention as claimed), and
controlling the delivery of the dose of the remediation agent to the plurality of plants or plant parts comprised in the one or more storage rooms (see abstract at page 1 and last 5 lines at page 1 – first paragraph at page 2 of ‘752 describing the invention which relates to a quality control device for ripening, fumigation etc. of fruits and vegetables comprising a flow distribution that forces air or gaseous chemicals which includes 1-MCP which is generated by the 1-MCP generator 50, Fig. 1 of ‘752, to circulate through the vents of the box so that the products in the box can be uniformly treated, see also Figs. 1 – 4 of ‘752, thus by uniformly treating the products, the delivery of 1-MCP is controlled).
Even though ‘752 in view of Dhingra as modified above teaches a method of controlling delivery of a remediation agent to a plurality of plants or plant parts comprising the steps of enclosing plants in storage rooms, detecting the levels and correlating the detected levels with a quality and initiating a dose of remediation agents as described above, ‘752 in view of Dhingra may be construed as not explicitly teaching the order of method including detecting levels…. “then correlating”…… “then initiating”…… “then controlling”….. (lines 7, 11 and 17).
Dhingra, however teaches that the delivery may be executed in several ways including instantaneous, or single applications which “may be repeated as necessary to achieve a desired effect, e.g. once per day or every few days for a designated period of weeks or months; or once per week for a designated period of weeks or months; or without a defined schedule as needed” (see paragraph [0043] of Dhingra).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to recognize the delivery of the remediation agent after the detection and correlation is performed since the methods of Dhingra does disclose the delivery of agents at user’s desired time to achieve the desired effect. The modification allows for a more controlled and efficient delivery of remediation agents to the plants/plant product, thus improving overall shelf-life of the product.
In addition, Minvielle, in the field of preservation systems for storage and logistic transport of nutritional substances such as plants, teaches that it is known to use a method of determining the ethylene levels of fruits or plans inside a container including correlation to a quality value, then control adding of specific cases or taking other corrective actions to achieve a desired ethylene levels based on the sensed values (see paragraphs [0135] – [0136].
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the methodology of Minvielle into ‘752 in view of Dhingra, in order to efficiently and effectively enhance the shelf life of the agricultural products.
Regarding Claim 27, ‘752 teaches a method of controlling delivery of a remediation agent to a plurality of plants or plant parts (see abstract at page 1 and last 5 lines at page 1 – first paragraph at page 2 describing the invention which relates to a quality control device for ripening, fumigation etc. of fruits and vegetables comprising a flow distribution that forces air or gaseous chemicals to circulate through the vents of the box so that the products in the box can be uniformly treated, see also Figs. 1 – 4, thus by uniformly treating the products, the delivery of gaseous chemicals are controlled, hence reading on the invention as claimed) comprising:
enclosing a plurality of plants or plant parts in one or more storage rooms (see Fig. 1 illustrating reservoir 100 having a partition wall 110 which partitions the mediation control room 130 and the flow path 120, the device as illustrated at Fig. 1 includes boxes 20 which hold the fruits/vegetables, see description at page 3 last three paragraphs).
Even though ‘752 teaches quality control of fruits and vegetables including generator 50, Fig. 1 which generates 1-MCP for ripening control and as an ethylene inhibitor, ‘752 is silent regarding detecting levels of ethylene present in the air of the one or more storage rooms, the atmosphere of the one or more storage rooms, or both.
Dhingra, in the field of control of ripening and senescence in pre-harvest and post-harvest plants and plant materials, teaches that it is known to detect levels of ethylene present in the air of the one or more storage rooms, the atmosphere of the one or more storage rooms, or both (see Example 1 and Results at paragraphs [0046] – [0052] and in particular at paragraph [0052] which describes measuring the ethylene levels that is released when the fruit is ripening, see also Figs. 6A, 6B).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the detection of one or more biological compounds such as ethylene of Dhingra into ‘752, in order to accurately and efficiently control the maturity of plants and/or plant products. The modification further provides advantages including optimizing ripening process which directly impacts shelf life and quality of the products.
‘752 in view of Dhingra as modified above further teaches;
correlating the detected level of ethylene in the one or more storage rooms with a quality of the plurality of plants or plant parts (see paragraphs [0050] – [0052] of Dhingra and/or see page 4 second paragraph of ‘752 and modification above),
initiating a dose of one or more remediation agents to the air or atmosphere of the one or more storage rooms (see page 4, second paragraph and claims at page 6 of ‘752 describing the fruit and vegetable quality control device comprises a 1-MCP generator 50 as an ethylene inhibitor along with the air circulation system that allows the mixed flow to flow into the box such that the box having the products is uniformly treated, hence reading on the invention as claimed), wherein the one or more remediation agents are selected from the group consisting of i) 1-methylcyclopropene, ii) oxaborole, iii) imazalil, iv) fludioxonil, v) thiabendazole, vi) a fungicide, wherein the fungicide is a benzoxaborole, or vii) any combination thereof (see modification above, see 1-MCP generator 50, Fig. 1 of ‘752 and/or paragraphs [0048] – [0052] of Dhingra describing pears treated with 1-MCP, H2S etc., hence reading on the invention as claimed), and
controlling the delivery of the dose of the remediation agent to the plurality of plants or plant parts comprised in the one or more storage rooms (see abstract at page 1 and last 5 lines at page 1 – first paragraph at page 2 of ‘752 describing the invention which relates to a quality control device for ripening, fumigation etc. of fruits and vegetables comprising a flow distribution that forces air or gaseous chemicals which includes 1-MCP which is generated by the 1-MCP generator 50, Fig. 1 of ‘752, to circulate through the vents of the box so that the products in the box can be uniformly treated, see also Figs. 1 – 4 of ‘752, thus by uniformly treating the products, the delivery of 1-MCP is controlled).
Even though ‘752 in view of Dhingra as modified above teaches a method of controlling delivery of a remediation agent to a plurality of plants or plant parts comprising the steps of enclosing plants in storage rooms, detecting the levels and correlating the detected levels with a quality and initiating a dose of remediation agents as described above, ‘752 in view of Dhingra may be construed as not explicitly teaching the order of method including detecting levels…. “then correlating”…… “then initiating”…… “then controlling”….. (lines 7, 11 and 17).
Dhingra, however teaches that the delivery may be executed in several ways including instantaneous, or single applications which “may be repeated as necessary to achieve a desired effect, e.g. once per day or every few days for a designated period of weeks or months; or once per week for a designated period of weeks or months; or without a defined schedule as needed” (see paragraph [0043] of Dhingra).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to recognize the delivery of the remediation agent after the detection and correlation is performed since the methods of Dhingra does disclose the delivery of agents at user’s desired time to achieve the desired effect. The modification allows for a more controlled and efficient delivery of remediation agents to the plants/plant product, thus improving overall shelf-life of the product.
In addition, Minvielle, in the field of preservation systems for storage and logistic transport of nutritional substances such as plants, teaches that it is known to use a method of determining the ethylene levels of fruits or plans inside a container including correlation to a quality value, then control adding of specific cases or taking other corrective actions to achieve a desired ethylene levels based on the sensed values (see paragraphs [0135] – [0136].
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the methodology of Minvielle into ‘752 in view of Dhingra, in order to efficiently and effectively enhance the shelf life of the agricultural products.
Regarding Claim 2, ‘752 as modified above teaches wherein the plurality of plants or plant parts comprise fruit (see abstract at page 1 of ‘752).
Regarding Claim 3, ‘752 in view of Dhingra in view of Minvielle as modified above teaches wherein the one or more biological compounds are selected from the group consisting of ozone, carbon dioxide, oxygen, ethylene and nitrogen (see paragraphs [0051] - [0052] of Dhingra describing detection of carbon dioxide and ethylene, see also 1-MCP generator 50, Fig. 1 of ‘752 which used as ethylene inhibitor, see also paragraph [0136] of Minvielle).
Regarding Claim 4, ‘752 in view of Dhingra in view of Minvielle as modified above teaches wherein the quality of the plurality of plants and plant parts is assessed by fruit immaturity, proper maturity, or over maturity (see abstract at page 1 of ‘752 describing quality control device for ripening and maturation control of fruits and vegetables and/or paragraphs [0050] – [0052] of Dhingra and/or see paragraph [0136] of Minvielle)
Regarding Claim 5, ‘752 as modified above teaches wherein the one or more storage rooms is a contained environment (see contained environment at reservoir 100, mediation control room 130 comprising the box 20, Fig. 1).
Regarding Claim 6, ‘752 in view of Dhingra in view of Minvielle as modified above teaches wherein the fruit is selected from the group consisting of apples, pears, avocados, bananas, carambolas, cherries, oranges, lemons, limes, mandarins, grapefruits, coconuts, figs, grapes, guavas, kiwifruits, mangos, nectarines, cantaloupes, muskmelons, watermelons, olives, papayas, passionfruits, peaches, persimmons, pineapples, plums, pomegranates, strawberries, blackberries, blueberries, and raspberries (see abstract of ‘752 describing fruits and/or see paragraphs [0010], [0022], [0031], [0046] of Dhingra and/or see paragraphs [0013], [0078] of Minvielle).
Regarding Claim 7, ‘752 in view of Dhingra in view of Minvielle as modified above teaches wherein the fruit is selected from the group consisting of apples and pears (see abstract of ‘752 describing fruits and/or see paragraphs [0010], [0022], [0031], [0046] of Dhingra describing the fruits such as apples, pears etc. and/or see paragraphs [0013], [0078] of Minvielle).
Regarding Claim 15, ‘752 in view of Dhingra in view of Minvielle as modified above teaches wherein the one or more biofeedback components are selected from the group consisting of carbon dioxide, heat, and oxygen consumption (see paragraph [0051] of Dhingra describing detection of carbon dioxide, hence reading on the invention as claimed).
Regarding Claims 21 and 29, ‘752 in view of Dhingra in view of Minvielle as modified above teaches wherein the remediation agent is 1-methylcyclopropene (see modification above, see 1-MCP generator 50, Fig. 1 of ‘752 and/or paragraphs [0048] – [0052] of Dhingra describing pears treated with 1-MCP, H2S etc.)
Regarding Claim 28, as best understood, ‘752 in view of Dhingra in view of Minvielle as modified above teaches wherein the step of initiating the dose of one or more remediation agents to the air or atmosphere of the one or more storage rooms is in response to the determined quality of the plurality of plants or plant parts (see modification of claim 27 above, see paragraphs [0135] – [0136] of Minvielle and/or see modification of claim 27 above, see abstract at page 1 and last 5 lines at page 1 – first paragraph at page 2, and last paragraph at page 2 of ‘752 describing the invention which relates to a quality control device for ripening, fumigation etc. of fruits and vegetables by adjusting the maturation of the product through air flow, see also page 4, second paragraph and claims at page 6 of ‘752 describing the fruit and vegetable quality control device comprises a 1-MCP generator 50 as an ethylene inhibitor along with the air circulation system that allows the mixed flow to flow into the box such that the box having the products is uniformly treated, hence reading on the invention as claimed).
Claims 11 – 14, 22, 30, 31 are rejected under 35 U.S.C. 103 as being unpatentable over ‘752 in view of Dhingra in view of Minvielle and further in view of U.S. No. 5,880,188 to Austin et al. (hereinafter “Austin”).
Regarding Claim 11, ‘752 in view of Dhingra in view of Minvielle as modified above teaches tine invention except for wherein the benzoxaborole has the structure of formula (IV).
Austin, in the field of a method of protection of a medium by use of oxaboroles as industrial biocides, teaches the use of oxaborole, benzoxaborole as remediation agent and wherein the benzoxaborole has the structure of formula IV (see Col. 1, lines 6 - 45, describing remediation agent such as oxaborole, see Col. 1, lines 6 - 10 describing the use of fungicides, and furthermore, see Col. 1, lines 16 - 45 and Col. 3, lines 1 - 12 describing benzoxaborole).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use remediation agent of Austin into ‘752 in view of Dhingra in view of Minvielle in order to inhibit the growth of micro-organisms and further provide highly effective anti-fungal activity of the medium to be protected (see also Col. 7, lines 57 - 60).
Austin further teaches wherein the benzoxaborole has the structure of formula (IV) (see Col. 1, formula (1) at line 60 of Austin):
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wherein A and D together with the carbon atoms to which they are attached form a 5-, 6-, or 7-membered fused ring which may be substituted by C1-C6 -alkyl, C1-C6 - alkoxy, hydroxy, halogen, nitro, nitrile, amino, amino substituted by one or more C1-C6 - alkyl groups, carboxy, acyl, aryloxy, carbonamido, carbonamido substituted by C1-C6 - alkyl, sulfonamido or trifluoromethyl or the fused ring may link two oxaborole rings (see Col. 1, line 65 - Col. 2, lines 1 - 3 of Austin);
X is a group -CR7R8 wherein R7 and R8 are each independently hydrogen, C1-C6 - alkyl, nitrile, nitro, aryl, arylalkyl or R7 and R8 together with the carbon atom to which they are attached form an alicyclic ring (see Col. 2, lines 4 - 8 of Austin); and
R6 is hydrogen, C1-Cis -alkyl, C1-Cis -alkyl substituted by C1-C6 -alkoxy, C1-C6 - alkylthio, hydroxy, amino, amino substituted by C1-Cis -alkyl, , carboxy, aryl, aryloxy, carbonamido, carbonamido substituted by C1-C6 -alkyl, aryl or arylalkyl, arylalkyl, aryl, heteroaryl, cycloalkyl, Ci-Cis -alkyleneamino, C1-Cis -alkyleneamino substituted by phenyl, C1-C6 -alkoxy or C1-C6 -alkylthio, carbonyl alkyleneamino or a radical of formula (V) (see Col. 2, lines 9 - 18 and Formula (2) of Austin):
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wherein A, D and X are as defined herein; and
pharmaceutically acceptable salts thereof (see Col. 1, line 53 - Col. 3, line 14, of Austin describing the preferred class of oxaborole as a benzoxaborole of formula 1 as indicated above, which also comprises salts, hence reading on the invention as claimed).
Regarding Claim 12, ‘752 in view of Dhingra in view of Minvielle in view of Austin as modified above teaches wherein the benzoxaborole has the structure of formula (VI) (see for instance Examples 59 - 78 described and illustrated at Col. 15 - 16 and corresponding tables of Austin)
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wherein each R is independently hydrogen, alkyl, alkene, alkyne, haloalkyl, haloalkene, haloalkyne, alkoxy, alkeneoxy, haloalkoxy, aryl, heteroaryl, arylalkyl, arylalkene, arylalkyne, heteroarylalkyl, heteroarylalkene, heteroarylalkyne, halogen, hydroxyl, nitrile, amine, ester, carboxylic acid, ketone, alcohol, sulfide, sulfoxide, sulfone, sulfoximine, sulfilimine, sulfonamide, sulfate, sulfonate, nitroalkyl, amide, oxime, imine, hydroxylamine, hydrazine, hydrazone, carbamate, thiocarbamate, urea, thiourea, carbonate, aryloxy, or heteroaryloxy;
n = 1, 2, 3, or 4;
B is boron;
X = (CR2)m where m = 1, 2, 3, or 4;
Y is alkyl, alkene, alkyne, haloalkyl, haloalkene, haloalkyne, alkoxy, alkeneoxy, haloalkoxy, aryl, heteroaryl, arylalkyl, arylalkene, arylalkyne, heteroarylalkyl, heteroarylalkene, heteroarylalkyne, hydroxyl, nitrile, amine, ester, carboxylic acid, ketone, alcohol, sulfide, sulfoxide, sulfone, sulfoximine, sulfilimine, sulfonamide, sulfate, sulfonate, nitroalkyl, amide, oxime, imine, hydroxylamine, hydrazine, hydrazone, carbamate, thiocarbamate, urea, thiourea, carbonate, aryloxy, or heteroaryloxy;
with a proviso that R is not aryloxy or heteroaryloxy when Y is hydroxyl; and
pharmaceutically acceptable salts thereof (see for instance Examples 59 - 78 described and illustrated at Col. 15 - 16 and corresponding tables of Austin).
Insofar as Austin may be construed as not explicitly illustrating the claimed structure/formula, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the claimed structure, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960).
Regarding Claim 13, ‘752 in view of Dhingra in view of Minvielle in view of Austin as modified above teaches wherein the benzoxaborole has a structure of
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(see multiple derivatives of benzoxaborole described in Austin, see for instance Examples 23 to 58 at Col. 22, Examples 59 to 78 at Col. 23 and Examples 79, 80 Col. 25, of Austin illustrating and describing the formula for the benzoxaboroles along with corresponding tables, thus reading on the invention as claimed).
Insofar as Austin may be construed as not explicitly illustrating the claimed structure/formula, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the claimed structure, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960).
Regarding Claim 14, ‘752 in view of Dhingra in view of Minvielle in view of Austin as modified above teaches wherein the benzoxaborole has a structure of (see multiple derivatives of benzoxaborole described in Austin, see for instance Examples 23 to 58 at Col. 22, Examples 59 to 78 at Col. 23 and Examples 79, 80 Col. 25, of Austin illustrating and describing the formula for the benzoxaboroles along with corresponding tables, thus reading on the invention as claimed).
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Insofar as Austin may be construed as not explicitly illustrating the claimed structure/formula, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the claimed structure, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960).
Regarding Claims 22 and 31, ‘752 in view of Dhingra in view of Minvielle teaches the claimed invention except for wherein the remediation agent is oxaborole, imazalil, fludioxonil, thiabendazole, or any combination thereof. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use fungicide/benzoxaborole as a remediation agent, since it has been held to be within the general skill of a worker in the art to select a known material or element on the basis of its suitability for the intended use as a matter of obvious choice.
Austin, in the field of a method of protection of a medium by use of oxaboroles as industrial biocides, teaches the use of oxaborole as remediation agent (see Col. 1, lines 6 - 45, describing remediation agent such as oxaborole, see Col. 1, lines 6 - 10 describing the use of fungicides).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use remediation agent of Austin into ‘752 in view of Dhingra in view of Minvielle in order to inhibit the growth of micro-organisms and further provide highly effective anti-fungal activity of the medium to be protected (see also Col. 7, lines 57 - 60).
Regarding Claim 30, ‘752 in view of Dhingra in view of Minvielle teaches the claimed invention except for wherein the one or more remediation agent is a fungicide, wherein the fungicide is a benzoxaborole. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use fungicide/benzoxaborole as a remediation agent, since it has been held to be within the general skill of a worker in the art to select a known material or element on the basis of its suitability for the intended use as a matter of obvious choice.
In addition, Austin, in the field of a method of protection of a medium by use of oxaboroles as industrial biocides, teaches the use of fungicides, benzoxaborole as remediation agent (see Col. 1, lines 6 - 10 describing the use of fungicides, and furthermore, see Col. 1, lines 16 - 45 and Col. 3, lines 1 - 12 describing benzoxaborole).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use remediation agent of Austin into ‘752 in view of Dhingra in view of Minvielle in order to inhibit the growth of micro-organisms and further provide highly effective anti-fungal activity of the medium to be protected (see also Col. 7, lines 57 - 60).
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over ‘752 in view of Dhingra in view of Minvielle and further in view of U.S. Patent No. 6,001,773 to de Vries (hereinafter “de Vries”).
Regarding Claim 26, ‘752 in view of Dhingra as modified above teaches initiating the dose of one or more remediation agents to the air or atmosphere of the one or more storage rooms (see page 4, second paragraph and claims at page 6 of ‘752 describing the fruit and vegetable quality control device comprises a 1-MCP generator 50 as an ethylene inhibitor along with the air circulation system that allows the mixed flow to flow into the box such that the box having the products is uniformly treated, hence reading on the invention as claimed).
‘752 in view of Dhingra in view of Minvielle as modified above teaches the claimed invention except for wherein the step of initiating the dose of one or more remediation agents to the air or atmosphere of the one or more storage rooms is via a fog administration.
de Vries, in the field of anti-fungal composition for potatoes/plants, teaches wherein the step of initiating the dose of one or more remediation agents to the air or atmosphere of the one or more storage rooms is via a fog administration (see Col. 2, lines 55 – 65 of de Vries describing “ the sprout inhibiting and/or anti-fungal composition can also be contacted with the potatoes at a later stage during the storage period by misting or spraying in the storage space, with the support of fans in that space”, hence reading on the invention as claimed).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use fog administration method of de Vries into ‘752 in view of Dhingra in view of Minvielle, in order to effectively and efficiently administer the composition over the plant products including efficient distribution onto hard-to-reach areas as well as reducing potential stress on plants.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892 form accompanying this office action comprising the following relevant art:
Shvets et al. (WO 2008002194 A2) teaches a method for storing agricultural products, including treating by gaseous 1-MCP and further storage of the product in a controlled atmosphere (see translated document attached to this office action). Furthermore, see abstract at page 1 and description at page 3, line 3 – end describing the invention in which the content of ethylene is determined before processing of the agricultural products, and processing being carried out by contacting the crop of agricultural products with the atmosphere with concentrations of 1-MCP.
St. Onge et al. (U.S. 2004/0022679 A1) teaches decontamination system for chemical and biological agents. The invention further teaches an automated system for controlling ozonation devices and the delivery, in a controlled manner.
Boyraz Pinar et al. (WO 2014154563 A1) teaches a home appliance (1) comprising a chamber (10), where a produce is placed, and an ozone source (20) in connection with the chamber (10) and is a method to keep a produce as fresh for a long time. The chamber (10) comprises an ethylene sensor (30) detecting ethylene gas in the chamber (10); a humidity sensor (40) detecting humidity amount in the chamber (10); a passage (50) allowing air exchange between inside and outside of the chamber (10) in a controllable manner; and a controller (60) controlling the ozone source (20) according to ethylene detection in the chamber (10) and controlling the passage (50) according to humidity amount in the chamber (10).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/MARRIT EYASSU/Primary Examiner, Art Unit 2855