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/Arguments
The Amendment filed 9/30/2025 has been entered. Claims 1-22 remain pending on the application. Applicant’s amendments to the Claims have overcome each and every objection to the Claims previously set forth in the Non-Final Office Action mailed 6/11/2025.
Applicant argues that the instant invention addresses problems of thermal stratification, and that the secondary reference Cheng is irrelevant because it does not address thermal stratification. Examiner notes that the reason for making a modification to the primary reference does not have to be the same as the reason for having a feature of the instant invention. Cheng provides a separate, yet obvious and advantageous reason for one of ordinary skill in the art to add one of its features to Malmberg. Moreover, Applicant’s arguments concerning thermal stratification are a recitation of intended use; the claims recite an apparatus, and so long as the structure of the prior art is the same as that of the claimed invention, the prior art device would also be capable of addressing the same needs. Furthermore, Examiner reaffirms that Cheng in fact does teach a shelf rather than just rails, as Figure 4 shows shelf 41 and the abstract refers to a shelf (the chamber (40) being a shelf arranged therein (41)).
Applicant has also added claim limitations concerning the height of the shelf, which are addressed in the updated grounds of rejection for claim 1.
The declaration under 37 CFR 1.132 filed 9/30/2025 is insufficient to overcome the rejection of claim 1 based upon Malmberg in view of Cheng under 35 U.S.C. 103 as set forth in the last Office action because: as stated above, there is an independent reason for modifying Malmberg with Cheng that does not need to be related to the issue that the instant invention tries to address. In addition, the instant claims concern an apparatus, and as such any usage related to thermal stratification are a recitation of intended use. So long as the structure of the prior art is the same as that of the claimed invention, the prior art device would also be capable of addressing the issue of thermal stratification to the same degree of effectiveness. Furthermore, Examiner reaffirms that Cheng in fact does teach a shelf rather than just rails, as Figure 4 shows shelf 41 and the abstract refers to a shelf (the chamber (40) being a shelf arranged therein (41)).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1-4, 6, 8-10, 12, 15-16, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Malmberg (US 20180168201 A1, provided in Applicant’s IDS of 9/12/2022) in view of Cheng (DE 202020101053 U1, provided in Applicant’s IDS of 9/12/2022).
Regarding claim 1, Malmberg teaches A container for receiving and supporting products for high pressure processing (HPP) processing with a pressurized processing medium within a HPP chamber, the container constructed for addressing thermal stratification of the product in the container (par. 1: This invention generally relates to a load basket for high pressure processing) and addressing thermal stratification of the processing medium during high pressure processing in the HPP chamber with a pressurized processing medium filling the HPP chamber (NOTE: these are recitations of intended use and so long as the prior art structure is capable of being used with an HPP chamber, the prior art would read on the limitations), the container comprising:
a polygonal shaped body (par. 24: the body 12 could have different cross-sectional forms such as square, rectangular, triangular, or any other suitable polygonal shape) configured to be receivable into and removable from the HPP chamber (par. 2: The basket is then placed into a high pressure food processing chamber… The load basket with processed food product is then taken out of the chamber) having a plurality of holes for passage of the processing medium into and through the polygonal shaped body (Fig. 1: load basket 10, passage holes 50);
the polygonal shaped body defining an upper section forming a volume for receiving the products to be processed (Fig. 1: upper half of the load basket body); and teaches a lower section forming the bottom of the container for holding products during HPP processing (Fig. 2: lower half of the load basket body) but does not teach and
the polygonal shaped body also defining a truncated lower section forming the bottom of the container for holding the products during HPP processing, the truncated lower section positioned at an elevation of from 20 to 80% of the distance above the bottom of the polygonal shaped body to reduce the trapping of colder and denser processing medium at the bottom of the container.
In light of Specification pg. 6 lines 19-22, a truncated lower section is one that has a bottom well section of the basket/container sealed off by a floor (with the exception that the bottom portion of the load basket is truncated. A floor 62 extends across the lower portion of the load basket so as to eliminate the majority of the concave interior lower portion of the body portion 64 of the load basket as part of the volume for holding product during HPP processing).
Cheng teaches a cooking container (abstract: A cooking container (10); Fig. 1-2). Cheng teaches a shelf for holding products to be sterilized (Fig. 4: shelf 41) with holes for the passage of sterilant (Fig. 5: steam nozzles 45). A shelf in a non-rectangular sterilization container would be convenient for arranging sterilization targets on a flat surface so that they are not clumped together at the bottom and therefore better exposed to the sterilant.
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the bottom section of Malmberg to have a shelf with holes for the passage of sterilant, as taught by Cheng, in order to allow for the spaced apart arrangement of sterilization targets within the non-rectangular load basket.
Since the shelf takes up a portion of the interior space of the bottom of the load basket, the lower section is therefore interpreted to be truncated, especially given Applicant’s Specification pg. 9 lines 5-7 (however, a floor or partition 84 extends across the bottom portion of the interior 86 of the body portion 82 of the load basket so as to effectively truncate the interior volume of the load basket 80).
Malmberg modified by Cheng does not teach the truncated lower section positioned at an elevation of from 20 to 80% of the distance above the bottom of the polygonal shaped body to reduce the trapping of colder and denser processing medium at the bottom of the container.
However, a mere change in proportion, even if it leads to better results, holds no patentable significance:
MPEP 2144.05.II.A: Smith v. Nichols, 88 U.S. 112, 118-19 (1874) (a change in form, proportions, or degree "will not sustain a patent"); In re Williams, 36 F.2d 436, 438 (CCPA 1929) ("It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."
especially if it can be shown that the change in proportions can be done by one of ordinary skill in the art through routine optimization of a known result-effective variable (MPEP 2144.05.II.B: the presence of a known result-effective variable would be one, but not the only, motivation for a person of ordinary skill in the art to experiment to reach another workable product or process).
In this case, it is clear from Fig. 5 of Cheng that the height of the shelf is a result effective variable because it determines how the quantity and size of the items that can fit inside the container as well as how close the items are to the sterilant sprays. The lower the height, the more objects can fit, but the farther away the objects would be from the sprays. Another factor is how much water can be stored under the shelf in the water storage zone; the higher the height, the more water can be stored.
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the height of the shelf of Malmberg modified by Cheng to be 20-80% of the distance above the bottom of the container, with the reasonable expectation that the size of the storage in the container, the exposure of the sterilant sprays, and the amount of water stored can be optimized.
Regarding claim 2, Malmberg modified by Cheng teaches the container of claim 1, as set forth above, and teaches wherein the bottom of the container is defined by a floor or partition extending across the container (see Cheng modification in claim 1 rejection for adding a shelf, which reads on the floor/partition).
Regarding claim 3, Malmberg modified by Cheng teaches the container of claim 2, as set forth above, and teaches wherein the floor extends across the bottom of the container (see Cheng modification in claim 1 rejection for adding a shelf, which reads on the floor/partition).
Regarding claim 4, Malmberg modified by Cheng teaches the container of claim 2, as set forth above, and teaches wherein the floor or partition extends across the lower portion of the container (see Cheng modification in claim 1 rejection for adding a shelf, which reads on the floor/partition).
Regarding claim 6, Malmberg modified by Cheng teaches the container of claim 2, as set forth above, and teaches wherein the floor or partition includes passageways extending therethrough for passage of the high pressure processing medium (see Cheng modification in claim 1 rejection).
Regarding claim 8, Malmberg modified by Cheng teaches the container of claim 2, as set forth above, and teaches further comprising through openings formed in the load basket through which the processing medium may pass (Fig. 1: fluid passage holes 50).
Regarding claim 9, Malmberg modified by Cheng teaches the container of claim 1, as set forth above, and teaches wherein the container further comprising first orientation projections extending lengthwise of the container for serving as slides when the container is moved lengthwise (Fig. 1: longitudinal indentations 56).
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Regarding claim 10, Malmberg modified by Cheng teaches the container of claim 1, as set forth above, and teaches a second projection orientation projection or orientation indentation extending lengthwise extending lengthwise of the upper section of the container:
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But does not teach indentations because there is only one such indentation.
Malmberg teaches wherein the indentations serve to provide increased rigidity (par. 27: As shown, a plurality of longitudinal indentations 56 may extend along an exterior surface of the sidewall 18 between the first and second ends 14, 16, and may provide the basket 10 with increased stiffness and/or rigidity).
However, absent a showing of significant or unexpected results, the duplication of the indentation is prima facie obviousness and does not further modify the operation of the invention, and further does not add patentable significance. The Manual of Patent Examining Procedures discloses that in In re Harza, 274, F.2d 669, 124 USPQ 378 (CCPA 1960), a mere duplication of parts for a multiplied effect has no patentable significance unless a new and unexpected result is produced. As such, the duplication of the indentation does not create a patentable distinction over the reference of Malmberg modified by Cheng because the expected multiplied effect is increased rigidity. Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Malmberg modified by Cheng to have another indentation along the upper section of the load basket in order to provide further increased rigidity.
Regarding claim 12, Malmberg modified by Cheng teaches the container of claim 1, as set forth above, and teaches wherein the truncated lower section comprises a carrier portion disposed beneath the container upper section, said carrier portion defining the floor of the container and supporting the weight of the container (NOTE: the portion of the load basket located below the modified floor from Cheng reads on the carrier portion).
Regarding claim 15, Malmberg modified by Cheng teaches the container of claim 12, as set forth above, and teaches wherein passageways extend through the carrier portion to enable passage of the high pressure medium therethrough (Fig. 1: fluid passage holes 50).
Regarding claim 16, Malmberg modified by Cheng teaches the container of claim 12, as set forth above, and teaches wherein the floor of the carrier portion is contoured to increase the surface area of the floor (Fig. 1: portion of the load basket below the floor from Cheng is curved).
Regarding claim 19, Malmberg modified by Cheng and Mauzerall teaches the container of claim 1, as set forth above, and teaches wherein the openings are provided through which product is receivable into the container and removable from the container as well as providing access for the processing medium to enter and exit the container (Fig. 2: opening 32).
Claims 5, 7, 11, and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Malmberg modified by Cheng in view of Mauzerall (WO 2020005844 A1).
Regarding claim 5, Malmberg modified by Cheng teaches the container of claim 2, as set forth above, but does not teach wherein the floor or partition is constructed from the group consisting of: the same material from which the upper section of the container is formed; and a material that is more adiabatically active than the material from which the upper section of the container is formed, because Malmberg merely teaches that the load basket can be made of any materials suitable for high pressure processing (par. 24: The cylindrical body 12 may be constructed of any material suitable for high pressure processing) and Cheng does not teach a specific material for its floor.
Mauzerall teaches a sterilization cabinet for high pressure steam processing (abstract: A sterilization cabinet; par. 160: Because the sterilization cycle typically uses steam, high pressure). Mauzerall teaches wherein a suitable material for the entire cabinet, which includes the shelves, is formed of a polymer (par. 106: More particularly, the entire sterilization cabinet 105 may be formed out of a transparent material (e.g., glass, a transparent polymer, etc; Fig. 26 show shelves with passages in them). This fulfills the need outlined by Malmberg.
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the entire cabinet of Malmberg modified by Cheng to be composed of a polymer, as taught by Mauzerall, in order to provide a suitable material for forming a sterilization container for high pressure processing. This modification overlaps with the modification by Cheng so that both the floor and cabinet body are made of the same material.
Regarding claim 7, Malmberg modified by Cheng and Mauzerall teaches the container of claim 1, as set forth above, and teaches wherein the truncated lower section of the container is formed from a material selected from the group consisting of the material from which the upper section is formed; and, a material that is more adiabatically active than the material from which the upper section is formed (see Mauzerall modification in claim 6 rejection wherein the entire basket is composed of the same material).
Regarding claim 11, Malmberg modified by Cheng and Mauzerall teaches the container of claim 5, as set forth above, and teaches wherein the material that is more adiabatically active is composed of a material selected from LDPE, HDPE, and UHIMVWPE (of the grouping given in claim 5, the prior art reads on having the same material, and thus does not have to read on having a different material from the upper section nor have to read on what that material is).
Regarding claim 17, Malmberg modified by Cheng and Mauzerall teaches the container of claim 12, as set forth above, and teaches wherein the carrier portion is composed of a material selected from the group including the material from which the upper section of the container is formed (see Mauzerall modification in claim 5 rejection) and a material that is more highly adiabatically active than the material from which the upper section of the container is formed.
Regarding claim 18, Malmberg modified by Cheng and Mauzerall teaches the container of claim 17, as set forth above, and teaches wherein the material that is more adiabatically active is composed of a material selected from LDPE, HDPE and UHMWPE (of the grouping given in claim 5, the prior art reads on having the same material, and thus does not have to read on having a different material from the upper section nor have to read on what that material is).
Claims 13-14 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Malmberg modified by Cheng in view of Wyslotsky (WO 03011037 A1).
Regarding claim 13, Malmberg modified by Cheng teaches the container of claim 12, as set forth above, but does not teach wherein the carrier portion defining first orientation projections extending from and along the length of the carrier portion to assist in retaining the carrier portion beneath the upper section during high pressure processing.
Malmberg teaches indentations running along the length of the load basket for the purpose of rigidity (Fig. 4B: bottommost indentation 56; par. 27: As shown, a plurality of longitudinal indentations 56 may extend along an exterior surface of the sidewall 18 between the first and second ends 14, 16, and may provide the basket 10 with increased stiffness and/or rigidity), but does not teach projections.
Wyslotsky teaches a storage container for food (abstract: A sealed, controlled-atmosphere food packaging container (15) includes a self-supporting, substantially transparent, microwaveable, multilayer thermoplastic, cup-shaped body portion (120), and a thermoplastic closure portion (122) sealed to the body portion (120)). Wyslotsky teaches ribs running along the length of the cylindrical container in order to add rigidity (abstract: Preferably, the cup-shaped body portion (120) includes ribs (124) in the form of vertical flutes or crenelations. The ribs (124) are a functional feature of the cup (120) providing rigidity to the cup (120); Fig. 14-15: there are at least four ribs on a half of the cup).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the carrier portion/bottom half of the load basket of Malmberg modified by Cheng to have at least four ribs evenly spaced out and running along the length of the cylindrical load basket, as taught by Wyslotsky, in order to provide even more rigidity to the load basket. These ribs in turn are capable of being used to retain the carrier portion beneath the upper section during high pressure processing. The bottom-most pair of these ribs are interpreted to be the first orientation projections.
Regarding claim 14, Malmberg modified by Cheng and Wyslotsky teaches the container of claim 12, as set forth above, and teaches wherein the carrier portion comprising additional orientation projections extending from and lengthwise of the carrier portion at a position above the first orientation projections of the carrier portion (see Wyslotsky modification in claim 13 rejection, wherein the ribs adjacent to the bottommost pair of ribs would be of higher elevation than the bottommost pair and therefore read on the additional orientation projections).
Regarding claim 22, Malmberg modified by Cheng and Wyslotsky teaches the container of claim 1, as set forth above, and teaches further comprising a support selected from the group consisting of a shim, flange, a rail (see Wyslotsky projection modification in claim 13 rejection), a bar, a runner, a slide, a transverse ring section, a transverse hoop section protruding beneath the container or load basket for supporting the container or load basket during the HPP process.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Malmberg modified by Cheng in view of Lopez (CA 3109877 A1).
Regarding claim 20, Malmberg modified by Cheng teaches the container of claim 1, as set forth above, but does not teach further comprising a flexible, thin-walled bulk bag or bladder disposed within the container and occupying up to substantially the entire volume of the container, the bag or bladder configured to receive and hold pumpable products during high pressure processing and disgorge the pumpable product after high pressure processing.
Lopez teaches a “The invention relates to a system for protecting and securing bags for bulk high-pressure processing equipment” (abstract). Lopez teaches wherein having a bag within a sterilization container is advantageous because it increases the filling coefficient, which makes for more efficient sterilization (pg. 1 line 34-pg. 2 line 19: Given that the product is processed while already packaged, the filling coefficient of the vessels (relationship between the product volume to be processed and the useful volume of the vessel) is low, between 40% and 60%, depending on the geometry of the packaging and the diameter of the vessel. The main advantage of processing in batches is the absence of subsequent contamination of the product, since from the beginning it is in the final packaging thereof. On the other hand, the main disadvantage is that the low filling coefficient reached limits the productivity of traditional high pressure processing equipment. Other disadvantages of batch processing are the need to use flexible packaging that supports the effects of the high pressures, it not being possible to use materials such as glass, and the need to handle them for the loading and unloading of the HPP machine. Therefore, the need arises to search for an alternative to the current way of processing that successfully increases the filling coefficient of the vessel and avoids the restrictions of this type of packaging, ensuring that after the processing of the product no contamination is produced, this last one being the most complicated to accomplish. Over time, different solutions have been proposed, one of these consisting of processing liquids inside a bag or flexible membrane situated inside the vessel and which occupies the largest useful space possible).
In addition, Lopez teaches valving attached to the bag for delivering and discharging a pumpable substance (Fig. 1; pg. 2 lines 32-33: 1. Filling of the bag 2 with the pumpable substance, through the valve 5 and the plug 3a; pg. 3 line 11-12: Emptying of the bag, preferably aseptically and through the same filling valve 5).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Malmberg modified by Cheng to have a flexible membrane bag with valving attached to it configured to receive and discharge a pumpable substance, as taught by Lopez, in order to prevent contamination to the sterilization target while increasing sterilization productivity.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Malmberg modified by Cheng in view of Golkowski (WO 2019084203 A1).
Regarding claim 21, Malmberg modified by Cheng teaches the container of claim 1, as set forth above, but does not teach wherein the container is a closed flexible configuration to hold product during high pressure processing and to reduce in volume corresponding to the reduction in volume of the product occurring during high pressure processing.
Golkowski teaches a sterilization chamber (abstract: A sterilization, disinfection, sanitization, or decontamination system having a chamber) capable of withstanding high pressures (par. 260: In order to ensure that the device 2640 is sufficiently dry, the system 2600 can be configured to provide a drying process (e.g., high pressure, dried and/or heated air, etc). Golkowski teaches wherein the chamber can be a flexible bag (par. 65: In several embodiments, the chamber can comprise a flexible bag or other compliant container that can encompass items of irregular shapes (or shapes that are otherwise less desirable for a dedicated type of chamber) in order to encompass items of irregular shapes.
Malmberg already teaches that the load basket can be made of any material suitable for high pressure processing (par. 24: The cylindrical body 12 may be constructed of any material suitable for high pressure processing) and teaches wherein the load basket is closed (pg. 24: As set forth in further detail below, a removable end cap 30 is selectively attached to the cylindrical body 12 at the first end 14 to at least partially cover an opening 32 thereof).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the closed load basket of Malmberg modified by Cheng to be a closed flexible bag, as taught by Golkowski, in order to provide a suitable way of implementing a container for high pressure processing that also holds items of irregular shapes. A flexible bag would be capable of reducing in volume during high pressure processing since it is flexible.
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 CHANGRU CHEN whose telephone number is (571)272-1201. The examiner can normally be reached Monday-Friday 7:30-5:30.
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, Elizabeth A. Robinson can be reached on (571) 272-7129. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/C.C./Examiner, Art Unit 1796
/ELIZABETH A ROBINSON/Supervisory Patent Examiner, Art Unit 1796