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 .
Response to Amendment
Those rejections and objections not repeated in this Office Action have been withdrawn.
Claims 1, 3-45 and 54-67, 69, 70, 71 are pending.
Claims 1, 3,11-16,19,20,24,25,27,31-34,37,40-42,44, 45, 67, 69, 70, and 71 are rejected.
Claims 4-10, 17-18, 21-23, 26, 28-30, 35-36, 38-39, 43 and 54-66 are withdrawn from consideration as being directed to a nonelected invention and to nonelected species.
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, 3, 11-16, 19, 20, 24, 25, 27, 31-34, 37, 40-42, 44, 45, 67, 69, 70, and 71 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.
Claim 1 recites the limitation, “receiving, from an input, a selected treatment of the batch of the perishable product” and “receiving, via a controller, the sensed one or more characteristics of the batch” on lines 6 and 9. It is not clear where a selected treatment of the batch of perishable product and the sensed one or more characteristics of the batch are received.
Claims 3,11-16,19,20,24,25,27,31-34,37,40-42,44, 45, 67, 69, 70, and 71 are rejected based on their dependence to a rejected 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, 3, 11-13, 20, 27, 31, 33, 34, 37, 40, 67 and 69 are rejected under 35 U.S.C. 103 as being unpatentable over Krebs (US 20180360077) in view of Bowden (US 20130205717) and Markesbery (US 20190091360) and in further view of Shur (US 20160058020) and James (US 20130302490).
Regarding claim 1, Krebs teaches a method of treating a batch of perishable product after harvesting of the perishable product (see paragraph 29, “fruit”; paragraph 227,231 “harvest inspection”) and prior to packaging of the batch of the perishable product there can be a plurality of functional treatment steps (see figure 2 and 10 and paragraph 27 and 54), which occur before packaging (see figure 2, item 202 and paragraph 198 where post processing can include packaging).
Krebs teaches a plurality of functional treatments (see paragraph 27, 54) that can be applied at different locations along a product processing line because paragraph 171 teaches that one nozzle 119 can deliver an air assisted induction charged electrostatic spray at a first location, such that the second nozzle 120 need not deliver an electrostatic spray. This is teaching and suggesting a first treatment at a first location and a second treatment at a second treatment location, both of which have a device (119, 120) that is configured to apply one of the plurality of functional treatments to the batch of the perishable product.
Krebs further teaches directly applying a first functional treatment such as the electrostatic spray at a first treatment location to contact or coat a surface of the product, such as by using modified atmosphere (paragraph 27) and an air assisted induction charged electrostatic spray (paragraph 171) for application of a sanitizer (see paragraph 54). By using an air assisted induction charged electrostatic spray and by using modified atmosphere, Krebs is suggesting that the first functional treatment at least dry washes the surface of the perishable product, the first functional treatment being directly applied by a dry delivery system using a first carrier comprising at least one of air or gas, such that the first functional treatment results in a dry functional treatment would also minimize residual surface liquid on the surface of the perishable product without saturating the perishable product.
Additionally, since Krebs teaches one or more antimicrobial treatments including an antimicrobial modified atmosphere treatment (see paragraph 27, 67, 69 and 119), Krebs is also teaching and suggesting directly applying a second functional treatment of the plurality of functional treatments at a second treatment location to the surface of the perishable product using a second carrier. That is, at paragraph 67, Krebs teaches that air or an inert gas together with carbon dioxide can be used as the antimicrobial modified atmosphere treatment. In view of this, the carbon dioxide can be construed as the second functional treatment using a second carrier such as air.
Since Krebs suggest a first treatment with an electrostatic spray and a second treatment that can be a modified atmosphere treatment or a treatment without an electrostatic spray, the reference is teaching and suggesting the first functional treatment is applied separate from the second functional treatment with the first functional treatment being a pretreatment. At paragraph 28, Krebs is also thus suggesting that the first and second functional treatment applied to the batch of the perishable product together provide a synergistic effect to “improve” “a quality” of the batch of the perishable product prior to packaging because both the various antimicrobial treatments suggested by Krebs are all designed for the purpose of preserving the food with respect to properties such as spoilage, texture, taste and appearance (see paragraph 93).
If it could have been construed that Krebs was not clear on the first functional treatment being applied separate to the application of the second functional treatment, then it is further noted that Bowden (US 20130205717) teaches serially applying functional treatments (see paragraph 178: “serially”) to fruit (see paragraph 2, 14 and 18) such as a sanitizing treatment using gas such as ozone in combination with other functional components such as peracetic acid (see paragraph 173), which application can be a dry treatment that has been applied electrostatically to the surface of the food product in the form of a gas (see paragraph 173 and see paragraph 174, last sentence) and then subsequently applying another functional treatment such as gaseous essential oils (see paragraph 174; see paragraph 175 which also teaches that this can occur after sanitization). Bowden teaches using ozone and peracids as sanitizing treatments with subsequent treatments with essential oils, which would thus have provided some synergistic effect to improve a quality such as the degree of sanitization of the produce. Additionally, Markesbery (US 20190091360) teaches that it has been desirable when treating perishable products such as fruit and vegetables (paragraph 76) to use a dry delivery system (using electrostatic spraying using a gas carrier such as air (see the abstract and paragraph 39-40 and paragraph 87: “suspended in air”) to apply a sanitizer such as an essential oil and spices together with a peroxide compound (see the abstract and paragraphs 5, 32 and 84), where the peroxide compound can be construed as another functional treatment and where a subsequent, second functional treatment can be applied to the surface of the perishable produce using a second carrier, to provide a synergistic effect to improve a quality of the perishable product (see the abstract, paragraph 14, 32-33, where the second composition can react with the peracid of the first composition to disinfect the surface of the fruit).
Since Krebs is not limiting as to the antimicrobial treatment and even suggests multiple treatments and further teaches that nozzles 119 and 120 can be used for delivering different treatments, to thus modify Krebs and to use a dry delivery system using a carrier gas as a first functional treatment for treating the perishable fruit by contacting and coating Krebs’s perishable product with a sanitizer using a dry delivery system as a pretreatment and to subsequently apply a second functional treatment that uses a second carrier, as taught by Bowden and Markesbery would have been obvious to one having ordinary skill in the art for the purpose of providing multiple treatments which therefore would have provided a synergistic effect between the two treatments for the purpose of preserving the qualities of the food.
Claim 1 differs from the above combination in specifically reciting that the step of “sensing, via one or more sensors, one or more characteristics of the batch of the perishable product and outputting the sensed one or more characteristics;
receiving, from an input, a selected treatment of the batch of the perishable product, the selected treatment including at least one of sanitization, protection or enhancement of the batch of perishable product and outputting the received selected treatment;
receiving, via a controller, the sensed one or more characteristics of the batch of the perishable product that are output and the received selected treatment based on the input;
determining via the controller a program that includes a plurality of functional treatments.”
However, Shur teaches sterilization of objects such as fruit (see paragraph 68) by sensing via a sensor a characteristic of the batch of the perishable product (see paragraph 47, where a camera is a sensor). The camera outputs image data (i.e. outputting the sensed characteristics) which is received via a controller (i.e. the computer)(see paragraph 47). Schur further teaches that different treatments can be input into the controller (see figure 2, item 50A, 50B, 50C) which are then received by the control 20 and therefore input to the controller. The controller then determines and outputs a selected treatment (see figure 2, item 12). The controller further evaluates the surface of the food to be treated and can determine a treatment from the plurality of treatments that would be required (see paragraph 47, “determine a treatment required based on the change”). The controller can also control the type of treatment to be applied via a selected operating configuration (see paragraph 40), which further teaches and suggests receiving from an input a selected treatment. That is, Shur teaches based on whether one desires sterilization, preservation or condition monitoring, to accordingly tailor and input the particular treatment. The controller therefore includes a plurality of functional treatments to be disposed on the food and determines how to tailor the treatment of the perishable product (see paragraph 47: determine a treatment required”; see figure 3A and 3B). At paragraph 55, Shur teaches that the products can be on a conveyor and that there can be a radiation treatment as well as an additional gas or chemical treatment (see paragraph 55, 2nd to last sentence; see also paragraph 71). At paragraph 66, Shur also teaches that the controller can adjust application, intensity and frequencies of ultraviolet radiation, for example, for achieving the desired type of treatment. At paragraph 66, Shur also teaches that the controller can adjust where the treatment has been applied to the perishable product (see figure 12 and paragraph 65; see also paragraph 66, last sentence).
James (US 20130302490) teaches conveying of food (see paragraph 39, “raw food product 14”) through multiple treatment zones for the purpose of imparting multiple treatments to the food product (see figure 3, item 36 and 36b and paragraph 39, “one or more modular treatment units”). James further teaches that the treatment units 36 and the food being transported through the device are monitored by a controller that is utilizes to adjust as necessary the operational parameters of the apparatus, through the use of probes and other monitors (see paragraph 55 and 61).
Since Krebs is already directed to controlling the treatment (see paragraph 68, 87, 172, 175) and where the treatment can be applied to any type of product (paragraph 29) and where the treatment can occur along a processing line via two devices (119, 120) to modify Krebs and to use a sensor to sense a characteristic of the food, output the characteristic to a controller and input a selected treatment to the controller, which controller would then determine a particular treatment regimen, as taught by Schur, would have been obvious to one having ordinary skill in the art for tailoring and automating the application of the treatment commensurate with the specific food product being treated.
Regarding claim 3, in view of Bowden and Markesbery teaching that the dry delivery system can use ozone as well as peroxy compounds, the combination teaches that the first functional treatment includes a sanitizer. In view of Bowden and Markesbery the combination also teaches a second treatment that can apply essential oils as discussed above with respect to claim 1, which would obviously have provided some degree of coating.
Regarding claim 11, Krebs teaches that the application of the first functional treatment occurs in a treatment area that is a partially contained environment with an opening configured to allow the perishable product to enter and exit the treatment area (see figure 1, where there is a conveyor 103 that brings the food into a partially contained environment (101) via an opening (see near 106); and can exit the contained environment (101) near 110).
Regarding claim 12, Krebs teaches that the direct application of the first functional treatment can be construed to be continuous or pulsed, because Krebs teaches that there can be a fan (figure 11, item 1102) that is used to evacuate the processing atmosphere either continuously or periodically at regular or irregular intervals (see paragraph 299). At paragraph 300 and 315, Krebs teaches supplying gas in an on/off way, thus suggesting a pulsed or intermittent flow.
Regarding claim 13, Krebs teaches that the antimicrobial treatment can comprise peroxygen compounds such as peracetic acid (see paragraph 54 and 173).
In view of Markesbery teaching applying an additional substance with the second composition, the combination teaches that the functional treatment, such as the peroxy compound treatment would have been activated by the additional substance to produce a peracid, such that the activation creates a new substance or a different form of the additional substance that would improve a quality of the perishable product due to additional disinfection of the product. Since the combination as applied to claim 1 teaches the use of a controller to determine the desired sterilization treatment, it would have been obvious to one having ordinary skill in the art to have active the first or second functional treatment depending on the selected program.
Regarding claim 20, the combination as applied to claim 1 teaches that the first functional treatment comprises a coating substance, as discussed above with respect to claim 1.
Regarding claim 27, it is noted that a treatment comprising essential oils as part of the second functional treatment would have been reasonably expected to reduce some amount of moisture loss because the oil coating would have provided a hydrophobic layer on the surface of the fruit. Furthermore, by preserving the produce, it would have been obvious to one having ordinary skill in the art that this would have extended the shelf life and therefore have also reduced some amount of moisture loss over some period of time by the perishable product.
Regarding claim 31, Krebs teaches that the perishable product can be fresh fruits, as discussed above with respect to claim 1. That is, a rinsed fruit can be construed as a fresh fruit.
Regarding claim 32, it would have been obvious to one having ordinary skill in the art to have evaluated (i.e. inspected or observed) the surface of the perishable product, for any number of conventional reasons, such as for observing freshness, ripeness, color or spoilage, for instance. Additionally however, Shur teaches evaluating the surface of the perishable product via the controller and based on data (i.e. signals) received by the controller from the sensors (see paragraph 47), in order to also determine the required treatment.
Regarding claims 33 and 34, the combination applied to claim 1 in view of Bowden, Markesbery and Shur teaches that the first functional treatment, the second functional treatment can be determined by a controller. Regarding applying of a third functional treatment that includes a coating, that provides a synergistic effect to improve the quality of the perishable product prior to packaging, and which coating inhibits discoloration, change in visual, sensory or organoleptic properties of the surface of the perishable product or controls moisture or gas transmission to or from the product, it is noted that since Bowden and Markesbery teach application of essential oils, it would have been obvious to one having ordinary skill in the art to repeat the application of the essential oils as a third coating, as an obvious repetition of steps for ensuring the requisite coverage of the product with the essential oil. It is further noted however, that Bowden (paragraph 174) and Markesbery (paragraph 33) further teach application of coloring substances and antimicrobial substances and the coating provide a synergistic effect to improve the quality of the perishable product prior to packaging such as inhibiting change in organoleptic properties of the surface of the product.
Regarding claim 40, Krebs teaches that the concentration of the functional treatment can be controlled (see paragraph 170, 229). Krebs also teaches that the first carrier can be a recirculated air (see paragraph 175 – “gas is fully or partly re-circulated in the second processing enclosure”; see paragraph 137 – “air assisted induction charged electrostatic spray”). Regarding controlling a dwell time and concentration of the first functional treatment, it is noted that by controlling a concentration of the functional treatment, it would have been obvious to one having ordinary skill in the art that the amount of dwell time that a substance remains active on the perishable product would also have been controlled.
Regarding claim 67, Krebs does not disclose that the first functional treatment applied with the antimicrobial solution thermally processes the fruit and therefore is construed as a non-thermal functional treatment. (see for example paragraph 167,171 and 174 which teach that the water can be at 1-30°C and the functional treatment can be the same temperature as the water).
Regarding claim 69, in view of Shur at paragraph 47, the prior art is teaching that the one or more characteristics of the batch of perishable product can comprise “quality conditions” of the perishable product, such as mold and discoloration.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Krebs (US 20180360077) as the primary reference, and in further view of Garwood (US 20020122856), Talley (US 6033704), Tokarskyy (“Sanitizer applicability in a laboratory model strawberry hydrocooling system”) and Thippareddi (US 20170013849).
Regarding claim 14, Krebs teaches that the method can be performed in a cooling tunnel, because Krebs teaches that the second processing enclosure (i.e. the enclosure 102) is also configured to perform rapid surface chilling of the food product (see paragraph 115-118). Because the second processing enclosure can dry deliver an antimicrobial agent toward the food products from all sides of the food (see Krebs paragraph 178-179), the combination thus suggests that the antimicrobial agent is directed across the surface of the perishable product. At paragraph 184, Krebs also teaches that the second processing enclosure comprises a drain (see figure 2, item 126) that collects drainage of the antimicrobial agent (see paragraph 176).
Claim 14 differs in specifically reciting that “the substance is recirculated back into the cooling tunnel.”
Garwood teaches that it has been desirable to recirculate antimicrobial agents for reuse (see figure 1 and paragraph 20: “..influent 102, 110 and 128, and effluent 106, 114 and 130 lines having lines 116, 118, 120, 133 and 132 with valves connecting the influent and effluent lines to provide transfer of fluids in any manner indicated by direction arrows on lines 116, 118, 120, 133 and 130…”; see paragraph 21: “Fluid stream 106 leaving separating block 104 can be recycled as stream 116 into the incoming fluid stream 102…”; paragraph 21 also teaches that the fluid can be gaseous or solid and gaseous; see paragraph 22, last sentence: “spent neutralizing fluid 114 may be diverted to incoming neutralizing fluid stream 110.” See paragraph 23: “The spent antioxidant fluid 130 can be recycled to the incoming fresh antioxidant fluid 128 via line 132.”).
Talley teaches the use of fans for providing circulation (column 1, lines 64-66), and which circulation can comprise a functional antimicrobial treatment also being recirculated in the enclosure (see column 2, lines 9-50) and back across the perishable product.
Tokarskyy teaches recirculation of a sanitizer, where the recirculation can be useful for conserving energy and reducing cost (see page 103, right column, last paragraph).
Thippareddi teaches delivery of multiple antimicrobials via an electrostatic dry delivery system (see paragraph 49) which can include collectors for recirculating any excess treatment (see paragraph 71).
To therefore modify the combination in view of the teachings of Garwood, Talley, Tokarskyy and Thippareddi and to have recirculated the substance directed across the surface of the perishable product back into the cooling tunnel would have been obvious to one having ordinary skill in the art, for the purpose of conserving energy and reducing cost by being able to reuse the sanitizer.
Claims 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Krebs (US 20180360077) as the primary reference, and in further view of Talley (US 6033704) and Jeong (US 20140072682).
Regarding claims 15 and 16, Krebs teaches the addition of the first functional treatment, such as the antimicrobial agent, to a cooling chamber (see paragraph 115-117, 175) and where the first functional treatment is directed across the surface of the perishable product using air as the carrier (see figure 12, “pressurized air 124” and therefore reads on air as a carrier; see also paragraph 137 where the atomizing nozzle is an air assisted spray).
Krebs also teaches the use of an automatic controller that controls the temperature in the second processing enclosure by fully or partly recirculating the gas, such as air, in the second processing enclosure so as to maintain a desired temperature within the second processing enclosure (see paragraph 175, 191), and therefore suggests the functional treatment is added while cooling of the perishable product is in progress, as recited in claim 16.
While Krebs does not specifically discuss that this enclosure and recirculation is a forced air enclosure, Krebs suggests forced air cooling because it would have been obvious to one having ordinary skill in the art that fully recirculating of the gas/air in the second processing enclosure would have required some form of forced air.
Nonetheless, Talley teaches the use of fans for providing circulation (column 1, lines 64-66), and which circulation can comprise a functional antimicrobial treatment also being recirculated in the enclosure (see column 2, lines 9-50) and back across the perishable product. Jeong teaches the use of fans for circulating air (see paragraph 35) and where a cooling device has also been used in combination with the fan for maintaining a controlled temperature in the chamber (see paragraph 74). The references thus teach the use of forced air circulation.
Therefore, it would leave been obvious to one having ordinary skill in the art to have modified the combination and used forced air, as taught by Talley and Jeong, for the purpose of controlling the cooling temperature of the product via recirculating of the air comprising the antimicrobial gas; and where such a modification would have been advantageous for ensuring the desired antimicrobial effect while achieving the desired cooling.
Claims 19 and 71 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Krebs (US 20180360077) as the primary reference, and in further view of Lidster (US 20160057998), Sharma (US 2054392) or Brogden (US 1693575).
Regarding claim 19, the combination teaches that the functional treatment can be applied to the entirety of the surface of the food (see Krebs paragraph 178-179).
Claim 19 differs in specifically reciting, detecting a defect on the surface of the perishable product and depending on the detected defect and the determined program, directly applying a third functional treatment on the defect on the surface of the perishable product.
It is noted that in view of Shur as applied to claim 1, the prior art is teaching detecting via a controller a defect on the surface of the product and according treating the defect (paragraph 47) and can use multiple treatments (paragraph 40 and figure 2). Additionally, Lidster teaches applications of antimicrobial agents (see the abstract) on scarred portions of fruits (see paragraph 54, “stem scar,” “punctured skin” and table 7) for the purpose of preventing the scarred portions from propagating bacteria to the remainder of the fruit. Lidster is thus teaching the detection of a defect on the surface of the fruit and applying the functional, antimicrobial treatment to the defect.
Similarly, Sharma teaches application of an antimicrobial agent to scarred fruit for the purpose of preventing mold growth at the scarred portion and the areas surrounding the scarred portion (see page 3, left column, lines 9-25, 30-52).
Brogden teaches detecting defects such as cuts, scratches, bruises on fruit, and applying a mold inhibiting agent to the above defects, for the purpose of preventing the bruises from further forming mold or other forms of rot or decay (see page 3, lines 96-115).
The prior art thus teaches that defects in the food can form mold or develop bacteria that can spread to the food and teaches applications of a functional, antimicrobial treatment to these regions of the fruit. In view of this, it would have been obvious to one having ordinary skill in the art to have modified the combination and to have detected defects in the fruit and ensured that a third functional treatment was applied to the defects to ensure that the defects did not develop bacterial, mold, or other forms of rot that could propagate to the remainder of the fruit.
Regarding claim 71, it is noted that the claims do not provide any specificity on the particulars of the program. In view of this, the combination as applied to claim 19 above, teaches and suggests directly applying a third functional treatment after one of the first or second functional treatments.
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Krebs (US 20180360077) as the primary reference, and in further view of Lary (US 20150174277), Fliss (US 20150072920) and Kuethe (US 20040018284).
Claim 24 differs from the combination in specifically reciting, detecting contamination present on the surface of the perishable product or within an environment around the perishable product and depending on the detected contamination and the determined program, applying an additional amount of the first functional treatment to the surface of the perishable product when the contamination detected is above a specified amount.
Lary teaches identifying contamination on processing equipment associated with foods and on food surfaces (see paragraph 10, 34 and 44). That is, at paragraph 34, Lary teaches that after application of an antimicrobial onto a food surface, the food surface can be evaluated to see how sanitary the food surface is and if the performance of the antimicrobial is inadequate the appropriate steps can be taken to make sure that the food surfaces are properly sanitized (paragraph 34: “…the resulting compositions…can be applied to improve sanitation…while providing a means to measure performance on the surface of inanimate equipment or foods”). Lary also teaches that if contamination is detected, cleaning the surface where contamination is detected and then reapplying the composition to visually inspect if contamination is detected via fluorescence (see page 17, claim 23; figure 4 and paragraph 25). Therefore, Lary suggests that it has been desirable to control contamination by measuring contamination and applying additional amounts of a function treatment to reduce levels of contamination.
Fliss further teaches measuring contaminants on food surfaces (see paragraph 63, last sentence) based on differing applications of an antimicrobial composition (see figure 3A and paragraph 82 for instance, which teaches that the log reduction of contaminants is based on applications of an antimicrobial substance). Fliss further teaches that coating of fruits and vegetables (see paragraph 64 and 66) and where the reduction in contamination is “at least” a 1-log reduction (see paragraph 71). Fliss is therefore teaching an antimicrobial treatment, detecting contaminants and then applying more of the antimicrobial treatment to increase the log reduction in microbes. Therefore, it would have been obvious to one having ordinary skill in the art to have applied additional amounts of an antimicrobial composition as part of the first functional treatment to lower the contaminants on the food surface.
Kuethe also teaches providing an antimicrobial treatment to foods (see paragraph 21-22 and figure 2, “Antimicrobial treatment”), then using a marking agent to assess complete coverage and thus inactivation of pathogenic contamination (see paragraph 36) and where additional antimicrobial treatment can be applied to ensure inactivation of pathogenic contamination (see paragraph 46 – “if sufficient antimicrobial solution has not been added….”).
Therefore, as a whole, the prior art teaches testing the application of a functional treatment to determine contamination levels and further teaches using additional amounts of a functional treatment to lower the levels of contamination. In view of this, it would have been obvious to one having ordinary skill in the art to have modified Krebs to have measured contamination levels after application of the functional treatment and to subsequently apply additional functional treatments to ensure that the contamination remained below the desired levels.
It is further noted that the claim limitation of, applying an additional amount of the functional treatment…when the contamination is above a specified amount, is seen to be a contingent limitation such that the broadest reasonable interpretation of the claimed steps only requires detecting contamination present on the surface of the perishable product or within an immediate environment of the perishable product. (see MPEP 2111.04(II)).
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Krebs (US 20180360077) as the primary reference, and in further view of Garwood (US 20020122856) and Ho (US 20110318461).
Regarding claim 25, Krebs has been relied on as discussed above, where the atomized antimicrobial solution has been construed as the direct application of a first functional treatment.
Regarding claim 25, Krebs teaches determining a dwell time of the first functional treatment (see paragraph 55; also see paragraph 246 where Krebs teaches that processing can be adjusted by routine experimentation). Furthermore, by controlling the concentration of the functional treatment, it would have been obvious to one having ordinary skill in the art that this would also have affected the dwell time of a substance remaining active on the perishable product.
Claim 25 differs from Krebs in reciting, “deactivating the functional treatment when the dwell time of the functional treatment is reached.”
Garwood teaches using a sanitizing/oxidizing agent, such as ozone in solution (see the abstract) and subsequently neutralizing the ozone after a period of time (see the abstract and paragraph 22). Garwood teaches that this can be advantageous for removing the oxidizing effect of the sanitizing agent (see at least, paragraph 9, 10 and 22).
Ho also teaches treatment of produce with a sanitizing agent, and where after a given dwell time, the sanitizing agent can be removed after achieving the desired sanitization (see paragraph 62).
It would have been obvious to one having ordinary skill in the art that the removing of the sanitizing solution has been desirable to prevent the sanitizing solution from imparting any added flavor or texture to the food as well as removing the effects of the sanitizing solution after the desired sanitization has been achieved (see paragraph 71, 83). Like Garwood, Krebs also teaches that the functional treatment can be ozone in solution, as well as chlorine dioxide (see paragraph 54).
To therefore modify Krebs and to deactivate the functional treatment would have been obvious to one having ordinary skill in the art, for the purpose of removing the oxidizing effect of the sanitizing agent after the desired functional effect has been achieved.
Claim 32 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Krebs (US 20180360077) as the primary reference, and in further view of Khoje (“Appearance and characterization of fruit image textures for quality sorting using wavelet transform and genetic algorithms”).
Regarding claim 32, Krebs teaches grading of the perishable product (see paragraph 231). It would have been obvious to one having ordinary skill in the art, that the grading of products such as fruit would also have encompassed evaluating the surface of the fruit.
Nonetheless, the claim further recites that the control evaluates the surface based on signals received by one or more sensors. In this regard, Shur already suggests sensors such as cameras to evaluate a surface of the article (see paragraph 47). Further in this regard, Khoje teaches that evaluations of the surface of the fruit have been conventionally used for grading and classifying fruit (see at least the abstract: “Images of four qualities of mangoes and guavas are evaluated for color and textural features to characterize and classify them, and to model the fruit appearance grading”; see also page 66, left column, 2nd and 3rd full paragraph; see figure 1) via a computer (see page 76, section 4.3, second bullet point; see page 73 figure 3, disclosing using artificial neural networks to classify the surface of the fruit).
To therefore modify the combination and to evaluate the surface of the fruit via the controller using data from the camera, would have been obvious to one having ordinary skill in the art for the purpose of using evaluating and grading the fruit.
Claims 33, 34 and 37 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Krebs (US 20180360077) as the primary reference, and in further view of Nussinovitch (US 6299915).
Further regarding claims 33, 34 and 37, if it could have been construed that the combination as applied to claim 1 did not teach further applying a third functional treatment that is a coating to the surface of the treated perishable product, then it is noted that Nussinovitch teaches applying an aqueous solution to the fruit that already has the functional treatment applied thereto (see the abstract). That is, the aqueous solution is used to gel the first treatment and therefore form a gelled coating, which can be construed as a coating being applied to the surface of the treated perishable product, especially because gelation results in the coating being a peelable and therefore durable coating (see column 6, lines 4-10; column 8, lines 56-61).
Regarding claim 34, the durable coating, as taught by Nussinovitch can control moisture (see column 6, lines 42-46; column 8, lines 9-14).
Regarding claim 37, Nussinovitch teaches that the durable coating comprises alginate (that is, the formed coating comprises a gelled alginate) (see column 3, line 28).
To thus modify the combination and to apply a third functional treatment to the produce after the second functional treatment to as to provide a coating, as taught by Nussinovitch would have been obvious to one having ordinary skill in the art for providing additional protection to the produce.
Claim 41 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Krebs (US 20180360077) as the primary reference, and in further view of Rogers (US 20180368427) and in further view of Belzowski (US 20130011525) and Miyashita (US 20200230631).
Regarding claim 41, the combination as applied to claim 1 teaches a dry delivery of a sanitizer, which has been construed as an amount of a substance.
Regarding the step of determining via the control and the one or more sensors a target surface area of the perishable product, Krebs teaches that the target area can spray from above and/or from the sides and also can be arranged below so as to reach the various surfaces of the fruit and therefore teaches “determining” a “target surface area” such as the entirety of the perishable product.
Regarding the step of, “determining via the controller an amount of a substance for the first functional treatment to be applied to the surface of the perishable product based on the substance and the target surface area of the perishable product,” it would have been obvious to one having ordinary skill in the art to have selected an amount of the substance to be applied so as to ensure that the spray was able to achieve desired coverage and antimicrobial effect to the perishable product. This is further supported by Krebs teaching variation in the flow rates of the antimicrobial substance (paragraph 172).
Regarding the step of determining via the controller a treatment time, Krebs teaches spraying at a substantially constant rate throughout normal operation of the processing line (see paragraph 168). Krebs also teaches at paragraph 246 that the processing in the first and second processing enclosures can be adjusted without undue experimentation to achieve effective sanitizing of the food items. Krebs also recognized that contact time also plays a role in allowing sufficient sanitization of an article (see paragraph 9) and to therefore modify Krebs so as to determine a desired treatment time would have been obvious to one having ordinary skill in the art, for the purpose of ensuring that the requisite sterility was achieved.
Regarding the step of “directly applying the determined amount of the substance to the surface of the perishable product for the treatment time at the distance from the surface,” it is noted that as shown in figure 1, there would have been some distance between the product surface and the application (i.e. nozzles 119, 120). The step of directly applying an amount of the substance for a given period of time would have been obvious to one having ordinary skill in the art, for ensuring the requisite coverage of the food with the sanitizing composition.
Claim 41 differs from Krebs in specifically reciting, that the determining of the target area, the amount of the substance, the treatment time occur via the controller and also differs in specifically reciting “determining, via the controller and one or more sensors a distance from the surface of the perishable product for application of the substance.”
It is noted that Shur as discussed above with respect to claim 1 also teaches determining a target area of the perishable product via sensor and a controller (see paragraph 47). Shur also teaches at paragraph 50 that the controller is capable of accordingly adjusting the treatment intensity and duration (see the last sentence). Therefore, since Shur also teaches how one can use a controller and sensors to evaluate a food product and to then use the data from the sensors together with a controller such that the controller can determine the desired treatment program, it would have been obvious to modify Krebs in view of Shur and to similarly use the controller to determine the application to a target surface area, determine the amount of the substance for the first functional treatment to be applied and determine the treatment time for the purpose of automating and tailoring the application of the first functional treatment commensurate with the particular food being treated.
Regarding the controller and sensors also determining a distance from the surface for application of the substance, it is initially noted that Rogers teaches applying a coating (see the abstract) to a food such as fruit (see paragraph 4) and where the concentration of the coating, the amount of time the coating has been applied, the distance between the spray head and the sample can be varied for achieving the desired type of coating, such as thickness, permeability (see paragraph 115). Rogers teaches that such factors can result in a coating that is too thick or too thin which can affect the efficacy of the coating (see paragraph 115).
Additionally, Belzowski teaches using sensors (figure 3, item 44) which sends data to a controller (figure 4, item 56) that determines a pattern and an amount of spray to be applied to a food (see figure 4, item 62a, 62b and paragraph 8 and 11). Belzowski also teaches controlling of the dispensing head (see paragraph 11; see paragraph 12, step “b” and “c”). Belzowski further teaches the spray of the functional treatment can be disturbed by gravity and air currents, such that the controlled droplet dispensing should also be from a suitable distance and with sufficient speed to prevent such disturbances (see paragraph 33).
Miyashita (US 20200230631) also teaches treatment of foods (see paragraph 113) where the apparatus includes a controller, that can control the distance of a spray that has been applied to the food (see paragraph 68, 70).
In view of this, it would have been obvious to have used the controller and a sensor to also determine the distance from the surface of the perishable product, because the prior art teaches that the particular distance can affect the specific application as being too thick or too thin, and can disturb the particular application due to gravity or air current disturbances.
Therefore it would have been obvious to one having ordinary skill in the art to have modified the combination and to have “determined” via the sensors, the distance of application of the substance to ensure the requisite degree of coating of the food with the substance.
Claim 42 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Krebs (US 20180360077) as the primary reference, and in further view of Kuethe (US 20040018284).
Regarding claim 42, the claim differs from the combination in specifically reciting, “measuring via the one or more sensors, an amount or effect of the first functional treatment on the surface of the perishable product; and reapplying the first functional treatment when the amount or effect of the functional treatment on the surface of the perishable product is below a predetermined value.”
However, Kuethe teaches providing an antimicrobial treatment to foods (see paragraph 21-22 and figure 2, “Antimicrobial treatment”), and using a marking agent to assess complete coverage and thus inactivation of pathogenic contamination (see paragraph 36) and where additional antimicrobial treatment can be applied to ensure inactivation of pathogenic contamination (see paragraph 46 – “if sufficient antimicrobial solution has not been added….”). Kuethe further teaches using a sensor to measure the flow of the treatment solution to a predetermined value so as to evaluate the particular application of the functional treatment (see paragraph 46).
In view of this, it would have been obvious to one having ordinary skill in the art to have modified Krebs to have measured via the controller and sensors, an amount of the antimicrobial treatment and then reapply the antimicrobial treatment for ensuring that the amount of the antimicrobial treatment was adequate for sanitizing the surfaces of the fruit to the desired level.
Claims 44-45 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Krebs (US 20180360077) as the primary reference, and in further view of Nussinovitch (US 6299915), Dosoky (“Biological Activities and Safety of Citrus spp. Essential Oils”) and Kuethe (US 20040018284).
Regarding claim 44, the claim differs from the combination, as applied to claim 1, in specifically reciting, “measuring via the one or more sensors a level of a component within the perishable product; wherein the first functional treatment comprises the component and applying the functional treatment increases or adjusts the level of the component to a target amount.”
The combination as applied to claim 1 also teaches that the first functional treatment can comprise essential oils, as taught by Markesbery who teaches using a dry delivery system (using electrostatic spraying using a gas carrier such as air (see the abstract and paragraph 39-40 and paragraph 87: “suspended in air”) to apply a sanitizer such as an essential oil and spices (see the abstract and paragraphs 5, 32 and 84),.
Dosoky teaches measuring essential oils in fruits, including essential oils such as limonene (see page 3, Table 1). Kuethe further teaches using sensors and therefore a controller to measure the flow of an applied functional treatment so as to evaluate whether the requisite amount of the functional treatment has been added to the surface of the food (see paragraph 46). In view of this measurement and as Nussinovitch teaches the inclusion of essential oils to provide an additional protective element to the coating of food such as fruit and oranges (see column 4, lines 39-43; column 8, lines 64-66), it would have been obvious to one having ordinary skill in the art to measure a level of essential oils so as to know how much essential oil is in the fruit. Nussinovitch’s application of the essential oil as part of the functional treatment would have adjust the level of the essential oil associated with fruit, such as orange.
To therefore modify the combination, which is not limiting as to the particular fruit to be treated and to measure the essential oil in the fruit and to adjust the essential oil content via the coating, as taught by Nussinovitch would have been obvious to one having ordinary skill in the art, for the purpose of providing an additional protective element to the coating around the fruit.
Regarding claim 45, in view of Nussinovitch, the combination teaches that the compound is an essential oil compound such as limonene.
Claim 70 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1 above, and in further view of Belzowski (US 20130011525), Kuethe (US 20040018284) and Affeldt (US 5620519).
Regarding claim 70, Shur teaches at paragraph 47 that the sensors can also be used to detect a change in the product due to the presence of mold or discoloration by analyzing a change in color over a period of time. Thus suggest detecting via the controller receiving signals from one or more sensors, information about the treatment of the batch.
Schur further teaches that there is a feedback component (i.e. a feedback loop) used for adjusting the operation of one or more sensing devices, and in response to data received from the feedback component, the controller can adjust and control the treatment (see paragraph 49).
Claim 70 differs in specifically reciting that based on the feedback loop, applying a third functional treatment to the surface of the perishable product.
However, since Krebs already teaches multiple functional treatments (see paragraph 27 and 50) and since Shur teaches that the controller can accordingly adjust the treatment via data generated from a feedback control loop, it would have been obvious to one having ordinary skill in the art to have similarly modified Krebs to also use a feedback control loop to provide additional functional treatments.
Nonetheless, it is additionally noted that Belzowski further teaches using feedback control loops to prevent or correct processing mistakes and errors during application of the functional treatment (see paragraph 61-62).
Kuethe further teaches using sensors and therefore a controller to measure the flow of an applied functional treatment so as to evaluate whether the requisite amount of the functional treatment has been added to the surface of the food (see paragraph 46) and to then use this data to determine whether another functional treatment should be applied. The claim reads on the same functional treatment being applied twice.
Affeldt also teaches applying functional treatments to foods (see the abstract) where sensors such as flowmeters can be added to monitor the application of the functional treatment (see column 15, lines 1-10) that can be used for feedback control of valves that supply the functional treatment or can control the flow of different types of functional treatment for optimal and continuously or selectively changing blends (see column 15, lines 11-19). Therefore, Affeldt teaches using data generated by a feedback loop to further control additional applications of a function treatment. and where feedback control is used to generate data regarding how much of the functional treatment has been applied.
To therefore modify the combination and to use sensors to detect information about the treatment of the perishable product and use this information to generate a feedback loop that allows the controller to determine whether another (third) functional treatment should be applied, would have been obvious to one having ordinary skill in the art, for the purpose of ensuring the requisite coverage of Kreb’s food product via application of a third functional treatment.
Response to Arguments
The obviousness type double patenting rejections in view of U.S. Patent Application No. 16811862 have been withdrawn in view of the ‘862 Application now being abandoned.
On page 23 of the response, Applicant urges that Krebs only provides example preprogrammed treatments but these treatments are in no way dependent on evaluation of a particular batch of food product before entering the first processing enclosure and therefore does not teach sensing via one or more sensors, one or more characteristics of the batch of perishable product and outputting the sensed one or more characteristics” and “determining via the controller, a program that includes a plurality of functional treatments at a plurality of treatment locations of the batch of the perishable product.
These arguments have been considered but are not persuasive because the rejection does not rely on Krebs to teach these limitations. Rather, it is noted that Krebs teaches multiple functional treatments (see paragraph 27 and 54), and Krebs is also open to the particular type of foods to be treated. Therefore, it would have been obvious to one having ordinary skill in the art to vary the particular type of treatment based on the particular products to be treated. Further in this regard, the prior art teaches using sensors that provide data that is input into a controller and further where data regarding a particular type of treatment program is also input to a controller and where the controller can accordingly determine and adjust the particular type of treatment, as suggested by Shur. To therefore modify Krebs and to use Shur’s disclosure to provide one or more sensors to evaluate a food product prior to entering Kreb’s conveying enclosure, and which data is then transmitted to a controller for determining a particular treatment program would have been obvious to one having ordinary skill in the art for the purpose of being able to automate and provide greater flexibility and efficiency when using Krebs’ to treat perishable foods.
On page 24 of the response, Applicant urges that the reliance on Bowden, Markesbery, Golkowski and Shur relies on impermissible hindsight.
These arguments are not persuasive in view of the rejection as presented int his Office action. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). In this instance, the prior art itself teaches and suggests the use of sensors and controllers for being able to automatically adjust and tailor a functional treatment of a batch of perishable food products based on evaluation of the particulars of the food product. Because Krebs is also open to the particular type fo food and treatments that have been applied to the food product, it would have been obvious to one having ordinary skill in the art to have used sensors and controllers as taught by the secondary references, for the same purpose at taught in the secondary references for evaluating and accordingly tailoring the types of treatments applied to the food product based on the initial evaluation. Obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that 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).
The remainder of Applicant’s remarks on pages 25-29 reiterate those remarks presented above and therefore are not sufficient to overcome the rejections as presented in this Office Action, necessitated by the amendment to the claims.
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 VIREN THAKUR whose telephone number is (571)272-6694. The examiner can normally be reached M-F: 10:30-7:00pm.
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 on 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.
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
Prosecution Insights