DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claims 1, 8, 10-11, 13, 15-17 and 19 are objected to because of the following informalities:
Claim 1 contains a period in line 11, the period should be deleted.
Claims 1 and 19 recites “at least one targeted whole or cut fruit or vegetable” and “the at least one targeted whole or cut fruit or vegetable”, after further consideration needs be changed to “at least one targeted whole or cut, fruit or vegetable” and “the at least one targeted whole or cut, fruit or vegetable”. Appropriate correction is required.
Claims 8, 10, 11, 13, 15, 16, 17 each recites “the at least one targeted whole or cut fruit or vegetable” and each recitation of “the at least one targeted whole or cut fruit or vegetable” should be changed to “the at least one targeted whole or cut, fruit or vegetable”. Appropriate correction is required.
Claims 10, 11 and 13 recite “the ascorbic acid fluid” however claim 1 recites “an ascorbic acid impregnation fluid” and therefore “the ascorbic acid fluid” should be changed to “the ascorbic acid impregnation fluid in order to remain consistent. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-6, 8, 10-11, 13-17 are rejected 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 applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 was previously amended to recite “reducing a temperature of the isochoric chamber to a temperature between 0 °C to -22 °C so that ice forms in the isochoric chamber, wherein the ice formation causes pressure in the isochoric chamber to increase to a pressure at or below 21 MPa…”. However, the specification recites that at the lowest temperature of -22 °C, the pressure is 210 MPa (see paragraph specification [0023]). Therefore, it appears that the specification does not support that pressures of 21 MPa or below are applicable to the entire range of temperatures of 0 °C to -22 °C (since for example at -22 °C the pressure would be 210 MPa which is a pressure outside of the range of 21 MPa or below).
Claims 2-6, 8, 10-11, 13-17 are rejected by virtue of their dependence on a rejected base claim.
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 1-6, 8, 10-11, 13-17 and 19 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 claim 1, claim 1 has been amended to recite “pouring an ascorbic acid impregnation fluid into a flexible and collapsible, sealed food container”. It is unclear how the ascorbic acid impregnation fluid can be poured into a “sealed” food container. In order to overcome the rejection, it is suggested the claim be changed to recite “(a) pouring an ascorbic acid impregnation fluid into a flexible and collapsible, food container; (b) adding at least one targeted whole or cut, fruit or vegetable to the flexible and collapsible food container so that the ascorbic acid impregnation fluid is in contact with the at least one targeted whole or cut, fruit or vegetable and said ascorbic acid impregnation fluid is in isotonic equilibrium with the at least one targeted whole or cut, fruit or vegetable and sealing the flexible and collapsible food container;…”
Regarding claim 1, claim 1 has been amended to recite “wherein the texture of the at least one targeted whole or cut fruit or vegetables obtained from step d as measured by its maximum stress values is similar to fresh samples”. The term “similar to” in claim 1 is a relative term which renders the claim indefinite. The term “similar to” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The metes and bounds of what is considered “similar to fresh samples” is unclear. Third, it is unclear what “fresh samples” is referring to, fresh samples of the at least one targeted whole or cut fruit or vegetable or something else. Because it is unclear what fresh samples is referring to, and because it is unclear what “similar to” encompasses, the limitation as a whole is indefinite because MPEP 2173.05(b).II recites “A claim may be rendered indefinite when a limitation of the claim is defined by reference to an object and the relationship between the limitation and the object is not sufficiently defined. That is, where the elements of a claim have two or more plausible constructions such that the examiner cannot readily ascertain positional relationship of the elements, the claim may be rendered indefinite.”
Regarding claim 17, claim 17 recites “wherein the at least one targeted whole or cut fruit or vegetable is a sweet cherry, subjected to a isochoric impregnation process of claim 1 increasing antioxidants by at least 10% in the at least one targeted whole or cut fruit or vegetable”. It is unclear if this means that a sweet cherry which has already been subjected to the isochoric impregnation process of claim 1, is again subjected to the process of claim 1 because “the at least one targeted whole or cut fruit or vegetable” is the starting material of the process of claim 1. In order to overcome the rejection, it appears the claim should be amended to language to clarify that the starting material (the at least one targeted whole or cut fruit or vegetable) is sweet cherry, and that the method of claim 1 carried out on the sweet cherry results in an increase of antioxidants by 10%.
Regarding claim 19, claim 19 has been amended to recite “pouring an ascorbic acid impregnation fluid into a flexible and collapsible, sealed food container”. It is unclear how the ascorbic acid impregnation fluid can be poured into a “sealed” food container. In order to overcome the rejection, it is suggested the claim be changed to recite: “(a) pouring an ascorbic acid impregnation fluid into a flexible and collapsible, food container; (b) adding at least one targeted whole or cut fruit or vegetable to the flexible and collapsible food container so that the bioactive impregnation fluid is in contact with the at least one whole or cut fruit or vegetable, wherein said bioactive impregnation fluid is in isotonic equilibrium with the at least one targeted whole or cut fruit or vegetable; (c) sealing the flexible and collapsible food container; (d) placing the sealed, flexible and collapsible food container in an isochoric chamber and filling the isochoric chamber with a water based solution; and (e) reducing a temperature….” .
Claims 2-6, 8, 10, 11, 13-16 are rejected by virtue of their dependence on a rejected base claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating
obviousness or nonobviousness.
Claims 1-4, 6, 8, 10-11, 13 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Lyu et al. (A comparison of freezing-damage during isochoric and isobaric freezing of the potato) in view of Amazon Corning in view of Sybridge in view of Zhao CN 109964921 (Espacenet Translation) in view of Liu US 4,879,127 in view of Mikus et al. (2016).
Regarding claim 1, Lyu discloses a method comprising the steps of:
(a) pouring a fluid into a food container (cryogenic vial filled with isotonic sucrose solution) (Pg. 5, Materials and Methods, Sample preparation)
(b) adding at least one targeted cut vegetable into the food container so that the fluid is in contact with the vegetable (in preparation for the experiments the samples were peeled, cut into cuboid, weighed and enclosed into cryogenic vials filled with the isotonic sucrose solution). (Pg. 5, Materials and Methods, Sample preparation). The fluid is in isotonic equilibrium with the targeted cut vegetable (we found that a solution of 9.09% w/w sucrose was isotonic with the potatoes) (Pg. 5);
(c) placing the food container in an isochoric chamber and filling the isochoric chamber with a water-based solution (A steel nut was dropped to the bottom of the isochoric chamber to ensure that ice formation started at the bottom of the chamber at a distance from the vials, which were on the top of the chamber. The isochoric chamber was filled with isotonic sucrose solution and sealed) (Pg. 6, Experimental protocol). And
(d) reducing the temperature of the isochoric chamber so that ice forms in the isochoric chamber to a temperature of -5 °C (the chamber was then completely immersed in a cooling bath and cooled to – 5 °C) (Pg. 6, Experimental protocol).
Regarding the flexibility of the food container, it is noted that the claim does not specify any particular flexibility of the food container and therefore the food container can have any degree of flexibility and the cryogenic vial of Lyu is reasonably expected to have a degree of a degree flexibility. Especially because Lyu discloses that the cryogenic vial is a corning 1.2ml cryogenic vial, and Amazon Corning discloses that the corning cryogenic vial is made from polypropylene (Pg. 2, product details) and Sybridge recognizes that polypropylene is flexible (Pg. 5).
Claim 1 differs from Lyu in the recitation that the flexible food container is collapsible.
Zhao discloses placing biological material in an elastic inner container for isochoric processing (Espacenet Translation [0008]-[0016], [0023], [0026]). Zhao discloses that the inner elastic container is sealed ([0107]). Zhao discloses that the elastic inner container is capable of transferring heat and pressure ([0015], [0044]). Zhao discloses that the inner elastic container has movable walls (abstract, [0015]). Since Zhao discloses that the inner container is an elastic container, has movable walls and is capable of transferring pressure, the elastic container of Zhao is considered to be capable of collapsing (i.e. moving inward), therefore Zhao is seen to teach a flexible and collapsible container. It would have been obvious to one of ordinary skill in the art to modify Lyu such that the flexible food container is collapsible, by substituting the container of Lyu with the elastic inner container taught by Zhao, thereby substituting one known container for isochoric processing of biological material with another known container for isochoric processing of biological material to allow a biological material to be suitably processed by isochoric processing (MPEP 2144.06.II).
Claim 1 differs from Lyu in the recitation that the fluid includes ascorbic acid and that the fluid including ascorbic acid is in isotonic equilibrium with the targeted whole or cut fruit or vegetable.
Liu discloses a storage fluid for a fruit or vegetable that is in isotonic equilibrium with the fruit or vegetable can include ascorbic acid (col. 2, lines 44-56). Liu discloses that the purpose of the ascorbic acid includes inhibiting oxidative browning (col. 5, lines 60-68). Liu discloses completely immersing the fruit or vegetable in the storage fluid in a closed container and maintained the stored fruit or vegetable at freezing temperatures (col. 7, lines 5-14). It would have been obvious to one of ordinary skill in the art modify the fluid in isotonic equilibrium with the targeted cut vegetable of Lyu to comprise ascorbic acid as suggested by Liu in order to inhibit oxidative browning of the targeted cut vegetable of Liu during the isochoric freezing process.
Claim 1 differs from Modified Lyu in the recitation that the ice formation causes pressure in the chamber to increase to a pressure at or below 21 MPa so that the ascorbic acid fluid penetrates the intercellular structure of the at least one targeted whole or cut fruit or vegetable, thereby infusing the at least one targeted fruit or vegetable with the ascorbic acid fluid without destroying the cellular tissue of the targeted fruit or vegetable and wherein the texture of the targeted whole or cut fruit or vegetable is similar to fresh samples, and therefore that the ascorbic acid fluid can be considered an ascorbic acid impregnation fluid.
Lyu discloses that in a previous study Mikus et al 2016, temperatures of -2 °C, -4 °C and -6 °C were studied to evaluate whether organisms can survive isochoric freezing and that -5 °C was chosen for the experiment in Lyu but that in the future studies need to be performed in the entire range of temperatures to the triple point (Pg. 7, Experimental protocol).
Mikus et al 2016 discloses that isochoric preservation can be carried out at -2 °C where the pressure is elevated to 20 MPa (Pg. 404-405, Fig. 4). Thus, Mikus recognizes that known parameters used for isochoric preservation include – 2 °C and 20 MPa.
It would have been obvious to one of ordinary skill in the art to modify the process of Lyu to reduce the temperature of the isochoric chamber to a temperature of – 2°C such that the ice formation causes pressure in the chamber to increase to a pressure of 20 MPa as suggested by Mikus et al., since Lyu already discloses that in the future studies need to be performed in the entire range of temperatures to the triple point, which would include a temperature of – 2 °C, and Mikus et al. shows that at -2 °C the ice formation causes pressure in the chamber to increase to a pressure of 20 MPa.
Since the prior art teaches the active method steps as claimed, the step of reducing a temperature of the isochoric chamber to a temperature of -2 °C so that ice forms in the isochoric chamber, wherein the ice formation causes pressure in the isochoric chamber to a pressure of 20 MPa is also obviously seen to obtain the result that the ascorbic acid fluid penetrates the intercellular structure of the at least one targeted whole or cut fruit or vegetable, thereby infusing the at least one targeted fruit or vegetable with the ascorbic acid fluid without destroying the cellular tissue of the targeted fruit or vegetable and wherein the texture of the targeted whole or cut fruit or vegetable obtained from step d as measured by its maximum stress values is similar to fresh samples, and therefore that the ascorbic acid fluid can be considered an ascorbic acid impregnation fluid. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, claimed properties or functions are presumed to be inherent (MPEP 2112.01).
Regarding claim 2, Modified Lyu discloses that in step (a), the ascorbic acid impregnation fluid also comprises sucrose (Lyu, Pg. 5, Materials and Methods, Sample Preparation).
Regarding claim 3, Modified Lyu discloses that in step (a) the ascorbic acid impregnation fluid comprises about 0.1% to about 0.25% ascorbic acid in solution (‘127, col. 2, lines 14-33, col. 5, 60-68, col. 6, lines 1-2).
Regarding claim 4, Modified Lyu discloses the ascorbic acid impregnation fluid comprises 9.09% sucrose (Lyu, Pg. 5, Materials and Methods, Sample Preparation). (MPEP 2144.05.I).
Regarding claim 6, as discussed above, Modified Lyu discloses that in step (d) the temperature is reduced to -2 °C.
Regarding claim 8, Modified Lyu discloses in step (d) that the vegetable is stored in the isochoric chamber at subfreezing temperatures in the time range of about 1 to about 5 hours (2 hours) (Lyu, Pg. 7, 1st paragraph, Pg. 9).
Regarding claims 10, 11, 13, Modified Lyu discloses performing the method steps as claimed, it is expected that the product obtained by the process of Modified Lyu would have the same properties as the product obtained by the claimed process (MPEP 2112.01 and MPEP 211.04(I)).
Regarding claim 15, Modified Lyu discloses that in step (b) the vegetable is white potatoes (Lyu, pg. 5, Materials and methods, sample preparation).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Lyu et al. (A comparison of freezing-damage during isochoric and isobaric freezing of the potato) in view of Amazon Corning in view of Sybridge in view of Zhao CN 109964921 (Espacenet Translation) in view of Liu US 4,879,127 in view of Mikus et al. in view of Rubinsky et al. US 2007/0042337.
Regarding claim 5, Modified Lyu discloses that the ascorbic acid impregnation fluid comprises about 7% sucrose (9.09% sucrose) (Lyu, Pg. 5, Materials and Methods, Sample Preparation). (MPEP 2144.05.I) obviously in water.
Claim 5 differs from Modified Lyu in the recitation that the ascorbic acid storage solution comprises about 4% ascorbic acid, However Liu discloses that edible acids amount is adjusted to match the particular fruit or vegetable being held in the solution (‘127, col. 5, lines 5-23), therefore it would have been obvious to one of ordinary skill in the art to routinely adjust the ascorbic acid content of the ascorbic acid impregnation fluid, including to values presently claimed to match the particular fruit or vegetable, based the particular fruit or vegetable being held in the fluid (MPEP 2144.05.II).
Claim 5 differs from Modified Lyu in the recitation that the water is specifically distilled water. However, Rubinsky teaches that water used in an isochoric freezing process can be pure water ([0017]). It would have been obvious to one of ordinary skill in the art to modify the water of Modified Lyu to be distilled water (pure water) as taught by Rubinsky, since the selection of a known material based on its suitability for its intended use supports a conclusion of obviousness (MPEP 2144.07).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Lyu et al. (A comparison of freezing-damage during isochoric and isobaric freezing of the potato) in view of Amazon Corning in view of Sybridge in view of Zhao CN 109964921 (Espacenet Translation) in view of Liu US 4,879,127 in view of Mikus et al. in view of Bilbao-Sainz et al. (Effect of isochoric freezing on quality aspects of minimally processed potatoes) in view of Rubinsky et al. US 2007/0042337.
Regarding claim 14, claim 14 differs from Modified Lyu in the recitation that the water-based solution that fills the isochoric chamber is specifically distilled water or a mixture of food grade polyethylene glycol and distilled water.
Bilbao-Sainz, discloses placing a vegetable into a flexible food container (potato cubes in vacuum package) and placing the food container in an isochoric chamber and filling the isochoric chamber with water and reducing the temperature of the isochoric chamber to at least -3 °C and the maximum pressure inside the isochoric chamber is equal to about 30 MPA (Pg. 2657, Materials and Methods, 2.1, 2.2., 2.3).
It would have been obvious to one of ordinary skilled in the art to modify the water-based solution of Modified Lyu to be water as taught by Bilbao-Sainz, thereby substituting one known water based solution for filling an isochoric chamber with another known water based solution for filling an isochoric chamber (MPEP 2144.06.II, MPEP 2143.I.B), with a reasonable expectation of success, since Bilbao-Sainz shows it was known to fill the isochoric chamber with only water surrounding a container in an isochoric freezing process.
Claim 14 differs from Modified Lyu in view of Bilbao-Sainz in the recitation that the water is specifically distilled water. However, Rubinsky teaches that water used in an isochoric freezing process can be pure water ([0017]). It would have been obvious to one of ordinary skill in the art to modify the water of Modified Lyu in view of Bilbao-Sainz to be distilled water (pure water) as taught by Rubinsky, since the selection of a known material based on its suitability for its intended use supports a conclusion of obviousness (MPEP 2144.07).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Lyu et al. (A comparison of freezing-damage during isochoric and isobaric freezing of the potato) in view of Amazon Corning in view of Sybridge in view of Zhao CN 109964921 (Espacenet Translation) in view of Liu US 4,879,127 in view of Mikus et al. in view of Bilbao-Sainz et al. (Effect of isochoric freezing on quality aspects of minimally processed potatoes) in view of Bilbao-Sainz et al. (Preservation of sweet cherry by isochoric (constant volume) freezing - cited in IDS 06/30/2022).
Regarding claim 16, claim 16 differs from Modified Lyu in the recitation that the method further comprises storing the fruit or vegetable in an isochoric cold storage chamber at the temperature in step (d) for 30 days to extend its shelf life for at least 30 days.
Bilbao-Sainz (potatoes) discloses placing a vegetable into a flexible food container (potato cubes in vacuum package) and placing the food container in an isochoric chamber and filling the isochoric chamber with a water-based solution and reducing the temperature of the isochoric chamber to -3 °C and the maximum pressure inside the isochoric chamber is equal to about 30 MPA and discloses storing the vegetable in the isochoric chamber to extend its shelf life, for at least 30 days (the packets remained inside the chamber for 4 weeks) (Pg. 2657, Materials and Methods, 2.1, 2.2., 2.3). Thus, Bilbao-Sainz recognizes a known technique for preservation of food using isochoric processing includes storing the food in the isochoric chamber for at least 30 days. It would have been obvious to one of ordinary skill in the art to modify Modified Lyu in such that the method further comprises storing the fruit or vegetable in the isochoric chamber, for at least 30 days, to extend its shelf life for at least 30 days as additionally taught by Bilbao-Sainz (potatoes), since it has been held that the use of known techniques to improve similar products or processes in the same way supports a conclusion of obviousness (MPEP 2141.III.C).
Claim 16 differs from Modified Lyu in view of Bilbao-Sainz (potatoes) in the recitation that the at least one fruit or vegetable is a sweet cherry.
Bilbao-Sainz (sweet cherry) discloses processing sweet cherries using isochoric freezing. It would have been obvious to one of ordinary skill in the art to substitute the potatoes of Modified Lyu in view of Bilbao-Sainz (potatoes) with sweet cherries as taught by Bilbao-Sainz (sweet cherry) since it has been held that simple substitution of one known element for another to obtain predictable results supports a conclusion of obviousness (MPEP 2141.III.B) and since known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art (MPEP 2141.III.F).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Lyu et al. (A comparison of freezing-damage during isochoric and isobaric freezing of the potato) in view of Amazon Corning in view of Sybridge in view of Zhao CN 109964921 (Espacenet Translation) in view of Liu US 4,879,127 in view of Mikus et al. in view of Bilbao-Sainz et al. (Preservation of sweet cherry by isochoric (constant volume) freezing- cited in IDS 06/30/2022).
Regarding claim 17, claim 17 differs from Modified Lyu in the recitation that the at least one fruit or vegetable is a sweet cherry.
Bilbao-Sainz (sweet cherry) discloses processing sweet cherries using isochoric freezing. It would have been obvious to one of ordinary skill in the art to substitute the potatoes of Modified Lyu with sweet cherries as taught by Bilbao-Sainz (sweet cherry) since it has been held that simple substitution of one known element for another to obtain predictable results supports a conclusion of obviousness (MPEP 2141.III.B) and since known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art (MPEP 2141.III.F).
Regarding the remaining limitations, since Modified Lyu in view of Bilbao-Sainz (sweet cherry) discloses performing the method steps as claimed, the method of Modified Lyu in view of Bilbao-Sainz (sweet cherry) is seen to necessarily include increasing antioxidants by at least 10% (MPEP 2112.01 and MPEP 2111.04(I)).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Lyu et al. (A comparison of freezing-damage during isochoric and isobaric freezing of the potato) in view of Amazon Corning in view of Sybridge in view of Zhao CN 109964921 (Espacenet Translation).
Regarding claim 19, Lyu discloses a method comprising the steps of:
(a) pouring a bioactive fluid into a food container (cryogenic vial filled with isotonic sucrose solution) (Pg. 5, Materials and Methods, Sample preparation);
(b) adding at least one targeted cut vegetable into the food container so that the fluid is in contact with the vegetable (in preparation for the experiments the samples were peeled, cut into cuboid, weighed and enclosed into cryogenic vials filled with the isotonic sucrose solution). (Pg. 5, Materials and Methods, Sample preparation). Lyu discloses that the bioactive fluid is in isotonic equilibrium with the targeted cut vegetable cryogenic vial filled with isotonic sucrose solution) (Pg. 5, Materials and Methods, Sample preparation);
(c) placing the food container in an isochoric chamber and filling the isochoric chamber with a water-based solution (A steel nut was dropped to the bottom of the isochoric chamber to ensure that ice formation started at the bottom of the chamber at a distance from the vials, which were on the top of the chamber. The isochoric chamber was filled with isotonic sucrose solution and sealed) (Pg. 6, Experimental protocol). And
(d) reducing the temperature of the isochoric chamber to at least 0 °C so that ice forms in the isochoric chamber (the chamber was then completely immersed in a cooling bath and cooled to – 5 °C) (Pg. 6, Experimental protocol).
Regarding the flexibility of the food container, it is noted that the claim does not specify any particular flexibility of the food container and therefore the food container can have any degree of flexibility and the cryogenic vial of Lyu is reasonably expected to have a degree of a degree flexibility. Especially because Lyu discloses that the cryogenic vial is a corning 1.2ml cryogenic vial, and Amazon Corning discloses that the corning cryogenic vial is made from polypropylene (Pg.2, product description) and Sybridge recognizes that polypropylene is flexible (Pg. 5).
Claim 19 differs from Lyu in the recitation that the flexible food container is collapsible.
Zhao discloses placing biological material in an elastic inner container for isochoric processing (Espacenet Translation [0008]-[0016], [0023], [0026]). Zhao discloses that the inner elastic container is sealed (Espacenet Translation [0107]). Zhao discloses that the elastic inner container is capable of transferring heat and pressure ([0015], [0044]). Zhao discloses that the inner elastic container has movable walls (abstract, [0015]). Since Zhao discloses that the inner container is an elastic container, has movable walls and is capable of transferring pressure, the elastic container of Zhao is considered to be capable of collapsing (i.e. moving inward), therefore Zhao is seen to teach a flexible and collapsible container. It would have been obvious to one of ordinary skill in the art to modify Lyu such that the flexible food container is collapsible, by substituting the container of Lyu with the elastic inner container taught by Zhao, thereby substituting one known container for isochoric processing of biological material with another known container for isochoric processing of biological material to allow a biological material to be suitably processed by isochoric processing (MPEP 2144.06.II).
Since Lyu teaches the method steps as claimed and teaches providing a bioactive fluid that is in isotonic equilibrium with the vegetable (isotonic sucrose solution) and shows in Fig.4 that there is negative weight loss (i.e. weight gain), the bioactive fluid of Lyu can be considered an impregnation fluid, and the method of Lyu can be considered a method of infusing a bioactive fluid into the targeted cut vegetable, and when the temperature is reduced as claimed in step (d) that the ice formation causes pressure in the isochoric chamber to increase so that the so that the bioactive impregnation fluid penetrates the intercellular structure of the vegetable thereby infusing the vegetable with the bioactive impregnation fluid without destroying the cellular tissue of the fruit or vegetable. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, claimed properties or functions are presumed to be inherent (MPEP 2112.01).
Response to Arguments
Applicant’s remarks filed 08/18/2025 have been fully considered however Zhao has been relied upon to teach the newly required limitations.
On pg. 6 Applicant argues that Applicant traverses the 112a rejection.
Applicant’s remarks have been considered, but the cited portions in the remarks still do not show that pressures of 21 MPa or below are applicable to the entire range of temperatures of 0°C to -22°C. For example, the specification recites that at the lowest temperature of -22 °C, the pressure is 210 MPa (see paragraph specification [0023]). It is not clear that at -22 °C the pressure can be 21MPa or less. Therefore, it appears that the specification does not support that pressures of 21 MPa or below are applicable to the entire range of temperatures of 0 °C to -22 °C (since for example at -22 °C the pressure would be 210 MPa which is a pressure outside of the range of 21 MPa or below). It is noted that the specification at paragraph [0044] recites that the increase in pressure during temperature decrease follows the liquidus curve in the phase diagram of water. It is noted that Rubinsky US 2020/0178518 shows in Fig. 4 a phase diagram showing the process of freezing in a constant volume system occurs along the liquidus line to the triple point ([0031]), the phase diagram shows that for pure water, the pressure and temperature at the triple point are -21.985 °C and 209.9 MPa.
On pg. 7 Applicant discusses amendments to the claims to overcome the 112b rejections, and while the 112b for claim 1 has been partially overcome, 112b issues still remain, as discussed in the 112b rejection above.
Regarding Applicant’s remarks to reconsider the declaration filed 06/06/2024, since Zhao has now been relied upon for teaching the use of a flexible and collapsible container for isochoric processing, it appears that in light of the teachings of Zhao that the Applicant has recognized another advantage which would flow naturally from following the suggestion of the prior art, and the fact that the Applicant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). “Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention.” (MPEP 2145.II.)
Conclusion
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 ASHLEY AXTELL whose telephone number is (571)270-0316. The examiner can normally be reached M-F 9:00- 5:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ERIK KASHNIKOW can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792