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 .
The amendment filed 2/20/2026 has been entered. Claims 1, 3-5, 7-9, and 12-17 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3-5, 7-9, and 12-17 are rejected under 35 U.S.C. as being unpatentable over Campano (US 2013/0171314) in view of NCHFP.uga.edu (“ Ensuring Safe Canned Foods”, https://nchfp.uga.edu/how/can/general-information/ensuring-safe-canned-foods, hereinafter NCHFP, and “Preparing and Using Syrups for Canned Fruit”, https://nchfp.uga.edu/how/can/canning-fruits-and-fruit-products/preparing-and-using-syrups-for-canning-fruit/, hereinafter NCHFP (2), and “Apples – Sliced”, https://nchfp.uga.edu/how/can/canning-fruits-and-fruit-products/apples-sliced/, hereinafter NCHFP (3) ), taken with evidentiary reference of Clemson.edu (https://www.clemson.edu/extension/food/canning/canning-tips/39available-moisture.html,).
Regarding Claims 1, 3, 15 and 17, Campano teaches a method for inhibiting bacterial growth in foods (Abstract).
Regarding part b), the method comprises a solution of acetate salts and acetic acid [0036]. The solution may have a pH of 5-5.5 [0059], which lies within the claimed range.
Campano does not specifically teach that the solution is “buffered”. However, Campano teaches the addition of acetate salts and acetic acid [0036] in an aqueous environment [0046], which is a buffered solution of acetic acid.
Campano does not teach a specific application towards a fruit composition.
Regarding lines 1-3 and parts a), NCHFP (3) teaches a recipe for e.g. sliced apples that comprises 5 pounds of fruit and 1 pint of medium syrup. Note that NCHFP (2) teaches that medium syrup contains a water:sugar ratio of 5.25 cups of water:2.25 cups of sugar, which is 1.24 kg of water and 0.450 kg of sugar (note that white sugar weights about 200 grams per cup). Additionally, note that apples are 84% water (see evidentiary reference of Clemson.edu, Page 1). NCHFP therefore teaches a preserved fruit composition which is 0.36 kg dry fruit matter (5 lbs = 2.27 kg * 16%), 13.14 kg of water (1.24 kg from syrup + 2.27 kg* 84% from apples), and 0.45 kg of sugar, which is 9% dry fruit matter and 79% water, which lies within the claimed range. Additionally, the dry matter content (0.45 kg of sugar and 0.36 kg of dry fruit matter) is 0.45 kg of sugar, which is 55% of the dry matter, which lies within the claimed range of sugar, and 0.36 kg of dry fruit matter, which is 45% of the dry matter, which lies within the claimed range of non-sugar dry fruit matter.
Regarding Part c), NCHFP (2) teaches that fruits can be canned in syrups that are 10-50% sugar, which is 10-50 degree Brix, which lies within the claimed range (Table 1). NCHFP (2) teaches that this sugar range helps retain flavor, color, and shape. Examiner notes that the instant Specification specifies that the Brix value of the composition refers to the liquid phase (Page 5, Paragraph 1). NCHFP teaches that canned fruits have a pH of below 4.6, which encompasses the claimed range. NCHFP teaches that this pH range prevents botulism growth (“Food Acidity and Processing Methods”, Paragraph 1). NCHFP (3) teaches a recipe for e.g. sliced apples that comprises 5 pounds of fruit and 1 pint of medium syrup. Note that NCHFP (2) teaches that medium syrup contains a water:sugar ratio of 5.25 cups of water:2.25 cups of sugar, which is 1.24 kg of water and 0.450 kg of sugar (note that white sugar weights about 200 grams per cup). Additionally, note that apples are 84% water (see evidentiary reference of Clemson.edu, Page 1). NCHFP therefore teaches a preserved fruit composition which is 0.36 kg dry fruit matter (5 lbs = 2.27 kg * 16%), 13.14 kg of water (1.24 kg from syrup + 2.27 kg* 84% from apples), and 0.45 kg of sugar, which is 9% dry fruit matter and 79% water, which lies within the claimed range.
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize the composition of Campano in a preserved fruit composition with the Brix, water content, pH, and sugar content as taught by NCHFP. One would have been motivated to make such a modification to improve microbial safety in a fruit product with a safe pH and good flavor and to utilize a known recipe for canned fruit.
Regarding the limitation that the method is for “preventing or retarding growth of mold and/or yeast”, note that mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. See MPEP 2145 II. Since modified Campano teaches the limitations of the claimed method, modified Campano therefore teaches a method for preventing or retarding growth of mold and/or yeast in a fruit composition, as claimed.
Regarding Claims 4 and 5, Campano teaches a composition comprising, e.g. potassium and sodium cations. Campano teaches that the acid may be substituted for the corresponding salt [0036]. Campano therefore teaches, e.g. a solution comprising acetic acid and potassium acetate.
Campano teaches an amount of lactate:acetate:diacetate in a ratio of, e.g., 1.2:1.25:1.5 [0044]. Campano teaches that potassium acetate may be used instead of potassium diacetate [0041]. Campano therefore teaches a ratio of acetic acid to potassium acetate in a ratio of 1:1.2, as claimed.
Regarding Claims 7 and 12, Campano teaches that the solution may comprise at least 10% of a lactate salt [0039] such as lactic acid [0038], which overlaps the claimed range.
Regarding Claims 8 and 9, Campano teaches the addition of, e.g. a ratio of about 2.1:1.54:1.5 of lactic acid:acetic acid:sodium diacetate ([0044], note that the lactate component may be lactic acid [0038]), which is a weight ratio of 0.4:0.3:0.29. Ten grams of the composition of Campano therefore provides 4.08 grams of sodium lactate, 3.00 grams of acetic acid and 2.91 grams of sodium diacetate, which provides 91 mmoles of acetate anion (3 grams acetic acid/ 60.05 g/mol = 50.05 mmoles of acetate), 2.9 grams sodium diacetate / 142.09 g/mol * 2= 41.02 mmoles of acetate) and 45.3 moles of lactate (4.08 grams lactic acid / 90.08 g/mol), which provides for a molar ratio of acetate:lactate of 2.01:1, which lies within the claimed ranges.
Regarding Claim 13, modified Campano teaches the addition of 1 wt% of the composition [0024], which is 10 grams per kilogram. Note that Campano teaches the addition of, e.g. a ratio of about 2.1:1.54:1.5 of sodium lactate:acetic acid:sodium diacetate, which is a weight ratio of 0.4:0.3:0.29.
Ten grams of the composition of Campano therefore provides 4.08 grams of sodium lactate, 3.00 grams of acetic acid and 2.91 grams of sodium diacetate, which provides 91 mmoles of acetate anion (3 grams acetic acid/ 60.05 g/mol = 50.05 mmoles, 2.9 grams sodium diacetate / 142.09 g/mol = 41.02 mmoles), which lies within the claimed range.
Regarding Claim 14, modified Campano teaches the addition of 1 wt% of the composition [0024], which is 1 part per 100, which lies within the claimed range.
Regarding Claim 16, NCHFP (3) teaches the use of “sliced” apples (Procedure, Paragraph 1), which one of ordinary skill would interpret to mean pieces of apple weighing more than 0.1 grams, as claimed.
Response to Arguments
Applicant’s arguments filed 2/20/2026 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues that the feature of “preventing or retarding growth and/or yeast in a preserved fruit composition” is not inherent in Campano (Page 5 of Remarks).
This argument is not convincing. The instant Specification teaches that an acetate buffer is used to extend shelf life (Page 1, Line 18), and prevents microbial spoilage by e.g. yeast (Page 1, Line 30 and Page 12, Table 2). Where Campano teaches the acetate buffer as claimed, the method of Campano has the features as claimed. Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. "The fact that appellant 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." Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985) See MPEP 2145 II.
Applicant additionally argues (Page 6 of Remarks) that Campano’s disclosure is limited to bacterial pathogens, and additionally that Campano teaches that antimicrobial effectiveness is microbe dependent [0045 of Campano], and that small differences in pH lead to differences in antimicrobial performance [0076-0079 of Campano]. Applicant argues that inherent fungal (i.e. mold/yeast) inhibition therefore cannot be presumed and is not “necessarily present”.
This argument is not convincing. First, the inhibition of antimicrobial and/or fungal growth is not a binary state, i.e. different compositions may be more or less effective at microorganism growth inhibition while still providing the feature of microorganism growth inhibition. Applicant has not claimed a specific degree of microorganism growth inhibition. Secondly, where Applicant teaches in the instant Specification that the acetate buffer prevents yeast growth compared to a non-preserved composition (e.g. Page 12, Table 2), and where Campano teaches the use of the buffer as claimed in foods, the method of Campano has the features as claimed. Further, as stated above, where the combination of the prior art provides a method as claimed, any effects on the fungal growth are considered to be present. See MPEP 2145 II.
Applicant additionally argues that the data shows that fungal inhibition is not inherent (Page 7 of Remarks). Applicant cites the data of Tables 2 and 3 of the instant Specification as evidence that fungal inhibition is “not inherent to acidic fruit systems” and “is not a universal consequence of preservation”.
This argument is not convincing. The Office has not taken the position that fungal inhibition is inherent to acidic fruit systems, nor that fungal inhibition is a universal consequence of preservation. Campano teaches an acetate buffer according to the Claim for use in foods. Where NCHFP provides sufficient motivation to utilize the acetate buffer of Campano in a preserved fruit system, it would have been obvious to utilize the acetate buffer of Campano in a preserved fruit system. Where Applicant teaches in the instant Specification that the acetate buffer prevents yeast growth compared to a non-preserved composition (e.g. Page 12, Table 2), and where Campano teaches the use of the buffer as claimed in foods, the method of Campano has the features as claimed, and the method of Campano applied to the preserved fruit of NCHFP additionally has the fungal growth inhibition features as claimed.
Applicant additionally argues (Page 8 of Remarks) that the Office has not shown a reasonable expectation of success. Applicant argues that one having ordinary skill would not predict that the method of Campano, which is directed towards preventing bacterial growth, would also prevent yeast and/or mold growth.
This argument is not convincing. One having ordinary skill would have sufficient motivation to modify Campano in view of NCHFP (i.e. to utilize a known antimicrobial in a known recipe for a fruit product) without consideration for yeast and/or mold growth inhibition. Note that the motivation to combine Campano and NCHFP, and provide an acetate buffer in a preserved fruit composition, is not required to be the same motivation as those of the instant Application.
Applicant additionally argues (Page 9 of Remarks) that the disclosure of NCHFP does not teach or suggest the “combining” and “adding” steps, i.e., combining the composition with an acetate buffer and adding water and/or acidulant to the buffered fruit composition.
This argument is not convincing. First, Campano teaches the addition of the acetate buffer to foods. The modification of Campano to utilize a fruit composition meets the limitations of part b). Second, where NCHFP teaches the addition of e.g. a sugar syrup, which comprises water, to yield a composition which meets the limitations of part c), NCHFP therefore teaches the “adding” steps as claimed.
Conclusion
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.
/D.L./
Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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