DETAILED ACTION
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 (i.e., changing from AIA to pre-AIA ) 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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claims 14, 16, and 17 are objected to because of the following informalities:
Claims 14 and 16 have been cancelled but the text has been struck through and not deleted. A claim being canceled must be indicated as "cancelled" and the text of the claim must not be presented (MPEP § 714 II.C(C). A notice of non-responsive amendment has not been issued at this time.
Claim 17 recites “select from a group consisting of:”. The claim should recite “selected from the group consisting of”.
Appropriate correction is required.
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 – 13, 15, and 17 – 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, there is no antecedent basis for the term “the membrane” in line 8.
Claim 17 depends from cancelled claim 14 making applicant’s intention regarding the claim unknown.
Claim 18 depends from rejected base claim 17.
Claims 17 and 18 have therefore not been further examined on the merits at this time.
Claims 2 – 13, 15, 19, and 20 are rejected by virtue of their dependence on a rejected base claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 2, 4 – 12, 15, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Roe et al. US 4,817,391 in view of Applicant’s Admission of the Prior Art (AAPA) further in view of Loprete et al. WO 2018/209362 as further evidenced by Eriksen et al. US 5,191,151.
Regarding claims 1, 4, 10, 15, and 19, Roe discloses a method capable of removing ethylene from a container atmosphere surrounding an agricultural product (produce) that is in a storage container (storage area 1) which method comprises providing said container comprising said agricultural product configured, i.e., contained therein, and said container atmosphere, providing a membrane that is permeable to ethylene, and permeating ethylene from the container atmosphere using said membrane (col. 2, ln 26 – 45). Roe further discloses the controlled atmosphere would have an oxygen concentration that is less than atmospheric oxygen concentration of 20% (oxygen content below 2%) (col. 4, ln 29 – 30) and the container atmosphere would be refrigerated (col. 2, ln 35 – 36).
Claim 1 differs from Roe in the membrane being a facilitated-transport membrane comprising an ionomer layer containing silver ion or a silver salt that contains a silver ion.
First it is noted that AAPA admits that the use of facilitated transport membranes was well known in the art because they selectively facilitate the transport of ethylene gas across the membrane, which is to say applicant admits facilitated membranes are much more permeable to ethylene over other gases. AAPA further admits that facilitated membranes would incorporate more than one layer (multiple layers), comprise silver ions or silver salts that contain silver ions (paragraph [0018] of applicant’s specification) (paragraph [0021] of applicant’s specification).
Nevertheless Loprete discloses that facilitated transport membrane separation has proven to be very effective for use in the separation of ethylene in an atmosphere in order to retard ripening in an agricultural product (fruit) (paragraph [0005]) due to the very high selectivity of facilitated transport membranes for alkenes, i.e., ethylene and other compounds (abstract) and that the facilitated transport membrane would be a composite membrane having more than one layer (3 layers) (‘362, paragraph [0021]), would comprise a sliver salt (‘362, paragraph [0014]) (‘362, paragraph [0011] and [0013]). Eriksen provides further evidence (‘151, col. 1, ln 23 – 31) that the use of membranes comprising silver ions was well established and conventional in the art thereby making it an obvious matter of choice and/or design for the ordinarily skilled artisan given the art taken as a whole to choose to modify the method of Roe by choosing a facilitated transport membrane as admitted by AAPA, and as taught by Loprete and further evidenced by Eriksen due to the very high selectivity for ethylene gas when desiring to reduce the ethylene gas in a contained atmosphere to control fruit ripening.
Roe in view of AAPA in view of Loprete as further evidenced by Eriksen discloses contacting said container atmosphere with said facilitated transport membrane comprises recirculating the container atmosphere from exit 2 and outlet line 3 to the container (storage space 1) via valve 18 (‘391, col, 2, ln 63 – col. 3, ln 33 and fig. 1).
Regarding claim 2, Roe discloses that ethylene is permeated through the membrane using a gas separator unit which unit has two gas outputs. A fast gas output, i.e., a permeate output that allows the exit of ethylene to the outside atmosphere and a slow output, i.e., a non-permeate output. Since the “fast gas output” would create a pressure differential similar to a venturi effect to allow ethylene to permeate through the membrane and be vented, i.e., swept to the outside atmosphere it is seen as inherent that there would be a sweep conduit and a flow of sweep gas is being produced over the membrane (col. 3, ln 39 – 57).
Regarding claim 5, Roe discloses a compressor (compressor package 15) would compress said container atmosphere to produce a compressed container atmosphere (col. 3, ln 18 – 26).
Regarding claim 9, Roe in view of AAPA in view of Loprete as further evidenced by Eriksen discloses the facilitate transport membrane would be permeable to water vapour (‘362, paragraph [0032]).
Regarding claim 11, since Roe discloses that the oxygen content of the controlled atmosphere would be below 2% (col. 4, ln 29 – 30), that ethylene would be permeated from the atmosphere, and that the primary gas introduced into the container would then be nitrogen enriched air it is seen that a nitrogen concentration in the container would be higher than 80% (primary constituent . . . is clean dry nitrogen)(col. 3, ln 56 – 57).
Regarding claim 12, Roe discloses the container atmosphere would be less than 20º C (38º F = 3.3º C) (col. 4, ln 39).
Regarding claim 20, Roe discloses the agricultural product would be apples (col. 4, ln 34).
Claims 3 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Roe et al. US 4,817,391 in view of Applicant’s Admission of the Prior Art (AAPA) further in view of Loprete et al. WO 2018/209362 as further evidenced by Eriksen et al. US 5,191,151 further in view of Kubota JPH 5-18658.
Claim 3 differs from Roe in view of AAPA in view of Loprete as further evidenced by Eriksen in the membrane being located in the container.
Once it was known to remove ethylene from a container atmosphere surrounding an agricultural product that would be in a storage container it is not seen that patentability would be predicated on the specific configuration, that is the specific location of the membrane since the position of the membrane would not have modified the operation, that is the removal of ethylene from said container atmosphere (MPEP § 2144.04 VI.C).
In any event, Kubota discloses with respect to a method capable of removing ethylene from a container atmosphere surrounding an agricultural product (vegetables) that would be in a storage container (container 9), that the method would comprise providing said container having said agricultural product and a container atmosphere contained therein, providing a membrane (39) that is permeable to ethylene, and permeating ethylene from the container atmosphere using said membrane (paragraph [0016] and [0022]). Kubota further discloses the membrane permeable to ethylene would be configured, that is to say, located in the container (fig. 1 and 2) and therefore it would have been an obvious matter of choice and/or design to the ordinarily skilled artisan to have located said membrane in said container.
Claim 13 differs from Roe in view of AAPA in view of Loprete as further evidenced by Eriksen in in the container having an ethylene absorbent.
With respect to a method capable of removing ethylene from a container atmosphere Kubota discloses that the container would be a sealed container (refrigerator) and arranged with a cold air passage with an ethylene absorbent, that is an adsorber which absorbs and decomposes ethylene gas (paragraph [0011]) while maintaining a closed environment such that ethylene gas generated from fruits and vegetables would be selectively absorbed not just to suppress deterioration of the fruits and vegetables but to further circulate a clean atmosphere (gas) within the container (refrigerator) to further suppress deterioration of other foods stored within the container (paragraph [0012]). To therefore modify Roe in view of AAPA in view of Loprete as further evidenced by Eriksen in and further provide an ethylene absorber in the container as taught by Kubota would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Claims 6 - 8 are rejected under 35 U.S.C. 103 as being unpatentable over Roe et al. US 4,817,391 in view of Applicant’s Admission of the Prior Art (AAPA) further in view of Loprete et al. WO 2018/209362 as further evidenced by Eriksen et al. US 5,191,151 in view of Zupancic et al. US 4,627,859.
Regarding claim 6, Roe in view of AAPA in view of Loprete as further evidenced by Eriksen discloses that there would be a membrane (separator unit 23) that is permeable to oxygen which is seen to constitute an “enrichment membrane” since it enriches the oxygen content of the gases being vented to the outside atmosphere (‘391, col. 3, ln 39 – 52) and would be capable of being placed between the facilitated transport membrane and the container.
It is The Office’s position that the enrichment membrane would be configured to, that is capable of being placed between the facilitated transport membrane and the container. In the event that claim 6 can be seen as differing from Roe in view of AAPA in view of Loprete as further evidenced by Eriksen in the placement of the enrichment membrane with respect to the facilitated transport membrane Zupancic discloses that it was well established and conventional in the art of gas separations to provide facilitated transport membranes in combination with an enrichment membrane. Particular advantages of using said membranes together are high selectivity which will permit the use of said membranes for a relatively long period of time (col. 4, ln 66 – col. 5, ln 6). Zupancie further discloses that in combination further advantages would be the requirement of only small quantity of high value materials in the membranes and that the quantity of a gas carrier, i.e., sweep gas, can be minimized further making it obvious to the ordinarily skilled artisan to use a combination of facilitated transport membranes and enrichment membranes in the method of Roe in view of AAPA in view of Loprete as further evidenced by Eriksen as taught by Zupancie. Once it was known that the use of both a facilitated transport membrane and an enrichment membrane would provide the advantages as taught by Zupancie it is not seen that patentability would be predicated on the specific order in which said membranes would be provided as it is not seen that shifting the order of the membranes would have modified the removal of ethylene from a container atmosphere (MPEP § 2144.04 VI.C.).
Regarding claim 7, Roe discloses that ethylene is permeated through the membrane using a gas separator unit which unit has two gas outputs. A fast gas output, i.e., a permeate output that allows the exit of ethylene to the outside atmosphere and a slow output, i.e., a non-permeate output. Since the “fast gas output” would create a pressure differential similar to a venturi effect to allow ethylene to permeate through the membrane and be vented, i.e., swept to the outside atmosphere it is seen as inherent that there would be a sweep conduit and a flow of sweep gas is being produced over the membrane (‘391, col. 3, ln 39 – 57).
Regarding claim 8, Roe in view of AAPA in view of Loprete as further evidenced by Eriksen disclose it was common and conventional to provide facilitated transport membranes that would be permeable to and separate oxygen from other gaseous species (‘951, paragraph [0001]). Zupancie provides further evidence that it was quite old and well established in the art to employ facilitated transport membranes to separate oxygen from a gaseous atmosphere (col. 1, ln 29 – 40).
Response to Arguments
Applicant's arguments filed 11 September 2025 have been fully and carefully considered but they are not found persuasive.
Regarding claims 3 and 13 Applicant urges that neither Roe nor Kubota teach or suggest the use of a facilitated transport membrane. These urgings are not deemed persuasive.
Neither Roe nor Kubota were brought to teach the use of a facilitated transport membrane. In fact, Kubota was brought to teach that it was old, conventional, and well known in the art to use an ethylene absorbent to suppress deterioration of the fruits and vegetables as well as to further circulate a clean atmosphere within the container to further suppress deterioration of other foods stored within the container. That the membrane would be a facilitated transport membrane has clearly and unequivocally been taught by Loprete.
Applicant urges that Loprete does not disclose the use of facilitated transport membrane with silver ions with an agricultural product in a humid refrigerated environment. This urging is not found persuasive.
With respect to a humid environment applicant is urging limitations not found in the claims since the claims do not recite a level of humidity. Further with respect to the use of refrigeration applicant claims the container is to be at a temperature of less than 20º C and Loprete discloses the agricultural product would be treated in a container at a temperature of 20º C ± 2º C, that is 18º C which is less than 20º C as claimed. It is also noted that with respect to claim 12 in particular Roe the treatment of an agricultural product at less than 20º C (38º F) (col. 4, ln 37 – 40).
Applicant further urges that the rejections have be made over hindsight reasoning.
In response to applicant's urging 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).
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 CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 09 December 2025
/VIREN A THAKUR/Primary Examiner, Art Unit 1792