DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2 and 4-12 are rejected under 35 U.S.C. 103 as being unpatentable over Bompeix et al. (herein referred to as Bompeix, US 6723364 B1) in view of Rogers (“GRAS Notification for Apeel Sciences), and Dennis et al. (herein referred to as Dennis, US 20040071797 A1)
With regard to Claim 1, Bompeix teaches a treatment process for treating fruits and vegetables by means of a coating composition (Abstract, Col 1 lines 34-37). Bompeix teaches thermal fogging of the composition at a temperature between 200°C and 280°C (Claim 1). See MPEP 2144.05 Obviousness of similar and overlapping ranges, amounts, and proportions. Bompeix teaches an aerosol of the composition is produced and applied (Claim 1 and Claim 5, Bompeix reads such that a thermal fogging mist is formed from the composition and applied). Bompeix teaches the composition contains a nonionic surfactant and a solvent (Col 3, lines 51-54, Col 3/4 lines 66-6). Bompeix teaches the surfactants which can be used according to the invention are the nonionic surfactants usually indicated for the treatment of fruit and vegetables (Col 4 , lines 4-6)
However, Bompeix is silent to the composition comprising one or more glycerides of dietary fatty acids and where the glycerides are selected from the group consisting of mono- and diglycerides of dietary fatty acids.
Rogers teaches a mixture of mono- and diglycerides (3. Summary, paragraph 2) for the use as a surface-finishing agent and/or texturizer creating a thin and edible physical barrier against moisture loss and oxidation to protect the freshness and extend the shelf-life of agricultural products such as fruits (D. Conditions of use). Rogers teaches mono- and diglycerides are safe to consume (2.1.2. Cosmetic ingredient Review). Rogers teaches using monoacylglycerides which one with ordinary skill in the art would recognize is a nonionic surfactant (E. Basis for GRAS determination)
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Bompeix to utilize monoacylglycerides, a monoglyceride of a dietary fatty acid, as the nonionic surfactant because monoacylglycerides has been shown to be used for the treatment of fruits and vegetables. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious. In addition Rogers shows it is advantageous to utilize mono- and diglycerides of fatty acid monoesters of glycerol in the composition as a surface-finishing agent and/or texturizer creating a thin and edible physical barrier against moisture loss and oxidation to protect the freshness and extend the shelf-life of agricultural products such as fruits.
In addition, Bompeix is silent to the solvent having a boiling temperature between 150 and 260°C and the solvent being monopropylene glycol.
Dennis teaches a mold suppressant for airborne administration (abstract). Dennis teaches a particularly effective embodiment which uses monopropylene glycol ([0014], [0017]). The boiling temperature of monopropylene glycol is 188°C. See 2112.01(I) product and apparatus claims — when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent.
Therefore, Dennis imparts reasoning for obviousness because the teaching shows that monopropylene glycol was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill one with ordinary skill the art to select monopropylene glycol, which has a boiling temperature at 188°C, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 2, Bompeix is silent to the mono- and diglycerides of dietary fatty acids are the mono- and di-oleate of glycerol.
Rogers teaches a mixture of mono- and diglycerides (3. Summary, paragraph 2) for the use as a surface-finishing agent and/or texturizer creating a thin and edible physical barrier against moisture loss and oxidation to protect the freshness and extend the shelf-life of agricultural products such as fruits (D. Conditions of use). Rogers teaches reacting polyglycerol fatty acid esters with oleic acid and these mono- and diglycerides made from oleic acid are GRAS for a variety of use in food (2.1.1. FDA GRAS review). Thus, Rogers reads that the mono- and diglyceride can be mono-oleate and di-oleate of glycerol because the fatty acid esters from the polyglycerol are reacted with oleic acid which would thus result in mono-oleate and di-oleate of glycerol.
Therefore, It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Bompeix is view of Rogers to utilize of mono- and diglycerides made from oleic acid (i.e., mono-oleate and di-oleate glycerol) in the composition because it is safe to consume and Rogers imparts reasoning for obviousness because the teaching shows that monoglycerides made from oleic acid (i.e., mono-oleate and di-oleate of glycerol) were known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill one with ordinary skill the art to monoglycerides made from oleic acid (i.e., mono-oleate glycerol), because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 4, Bompeix teaches the composition can comprise a solvent from 1 to 50% by weight (Col 3, Lines 46-50). Bompeix teaches it may be desirable to add up to 40% of a nonionic surfactant. Bompeix teaches using fatty acids as the nonionic surfactant (Col 3/4 lines 66-6 Col 4 lines 25-33). ). See MPEP 2144.05 Obviousness of similar and overlapping ranges, amounts, and proportions.
However, Bompeix is silent to the fatty acid being one or more mono- diglycerides.
Rogers teaches a mixture of monoglycerides or fatty acid monoesters of glycerol for the use as a surface-finishing agent and/or texturizer creating a thin and edible physical barrier against moisture loss and oxidation to protect the freshness and extend the shelf-life of agricultural products such as fruits (D. Conditions of use). Rogers teaches monoglycerides are metabolized to free fatty acids and glycerol, both of which are available for the resynthesis of triglycerides, make them safe to consume (2.1.2. Cosmetic ingredient Review).
Therefore, It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Bompeix is view of Rogers to utilize of monoglycerides or fatty acid monoesters of glycerol in the composition because it is safe to consume and Rogers imparts reasoning for obviousness because the teaching shows that monoglycerides of dietary fatty acids were known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill one with ordinary skill the art to select monoglycerides or fatty acid monoesters of glycerol, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 5, Bompeix teaches the composition further comprises one or more emulsifier(s) (Example 7, Col 12 lines 19-39).
With regard to Claim 6, Bompeix teaches the coating composition in addition comprises ethanol (Example 7, Col 12 lines 19-39).
With regard to Claim 7, Bompeix teaches thermal fogging wherein the composition is at a temperature range between 200°C and 280°C (Claim 1).
With regard to Claim 8, Bompeix teaches the application of 50 to 250 g of composition per ton of treated fruits and vegetables (Col 6, lines 12-14). Bompeix teaches The amount of treating composition which has to be applied to the fruit and vegetables depends on the nature of the fruit and vegetables concerned and on the method of application selected (Col 6, lines 8-11). See MPEP 2144.05 Obviousness of similar and overlapping ranges, amounts, and proportions.
With regard to Claim 9, Bompeix teaches application of the composition within a storage room (Col 6, lines 15-21).
With regard to Claim 10, Bompeix teaches the process can be used for treating fruit, but is silent to the fruit being strawberries and pears.
Rogers teaches applying the composition containing mono- and diglycerides of fatty acids to strawberries (A. Edipeel Application Instructions- Strawberry treatment).
Therefore, Rogers imparts reasoning for obviousness because the teaching shows that the claimed composition was known for such a thing (i.e., being applied to strawberries) to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select strawberries to be treated by this process, because it would have been obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 11, Bompeix teaches a treatment process for treating fruits and vegetables by means of a coating composition (Abstract, Col 1 lines 34-37). Bompeix teaches thermal fogging of the composition at a temperature between 200°C and 280°C (Claim 1). See MPEP 2144.05 Obviousness of similar and overlapping ranges, amounts, and proportions. Bompeix teaches an aerosol of the composition is produced and applied (Claim 1 and Claim 5, Bompeix reads such that a thermal fogging mist is formed from the composition and applied). Bompeix teaches the composition contains a nonionic surfactant and a solvent (Col 3, lines 51-54, Col 3/4 lines 66-6). Bompeix teaches the surfactants which can be used according to the invention are the nonionic surfactants usually indicated for the treatment of fruit and vegetables (Col 4 , lines 4-6)
However, Bompeix is silent to the composition comprising one or more glycerides of dietary fatty acids and where the glycerides are selected from the group consisting of mono- and diglycerides of dietary fatty acids and wherein the mono- and diglycerides of dietary fatty acids are the mono- and di-oleate of glycerol.
Rogers teaches a mixture of mono- and diglycerides (3. Summary, paragraph 2) for the use as a surface-finishing agent and/or texturizer creating a thin and edible physical barrier against moisture loss and oxidation to protect the freshness and extend the shelf-life of agricultural products such as fruits (D. Conditions of use). Rogers teaches reacting polyglycerol fatty acid esters with oleic acid and these mono- and diglycerides made from oleic acid are GRAS for a variety of use in food (2.1.1. FDA GRAS review). Thus, Rogers reads that the mono- and diglyceride can be mono-oleate and di-oleate of glycerol because the fatty acid esters from the polyglycerol are reacted with oleic acid which would thus result in mono-oleate and di-oleate of glycerol.
Therefore, It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Bompeix is view of Rogers to utilize of mono- and diglycerides made from oleic acid (i.e., mono-oleate and di-oleate glycerol) in the composition because it is safe to consume and Rogers imparts reasoning for obviousness because the teaching shows that monoglycerides made from oleic acid (i.e., mono-oleate and di-oleate of glycerol) were known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill one with ordinary skill the art to monoglycerides made from oleic acid (i.e., mono-oleate glycerol), because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
In addition, Bompeix is silent to the solvent having a boiling temperature between 150 and 260°C and the solvent being monopropylene glycol.
Dennis teaches a mold suppressant for airborne administration (abstract). Dennis teaches a particularly effective embodiment which uses monopropylene glycol ([0014], [0017]). The boiling temperature of monopropylene glycol is 188°C. See 2112.01(I) product and apparatus claims — when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent.
Therefore, Dennis imparts reasoning for obviousness because the teaching shows that monopropylene glycol was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill one with ordinary skill the art to select monopropylene glycol, which has a boiling temperature at 188°C, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 12, Bompeix teaches a treatment process for treating fruits and vegetables by means of a coating composition (Abstract, Col 1 lines 34-37). Bompeix teaches thermal fogging of the composition at a temperature between 200°C and 280°C (Claim 1). See MPEP 2144.05 Obviousness of similar and overlapping ranges, amounts, and proportions. Bompeix teaches an aerosol of the composition is produced and applied (Claim 1 and Claim 5, Bompeix reads such that a thermal fogging mist is formed from the composition and applied). Bompeix teaches the composition contains a nonionic surfactant and a solvent (Col 3, lines 51-54, Col 3/4 lines 66-6). Bompeix teaches the surfactants which can be used according to the invention are the nonionic surfactants usually indicated for the treatment of fruit and vegetables (Col 4 , lines 4-6)
However, Bompeix is silent to the composition comprising one or more glycerides of dietary fatty acids and where the glycerides are selected from the group consisting of mono- and diglycerides of dietary fatty acids and wherein the mono- and diglycerides of dietary fatty acids are the mono- and di-oleate of glycerol.
Rogers teaches a mixture of mono- and diglycerides (3. Summary, paragraph 2) for the use as a surface-finishing agent and/or texturizer creating a thin and edible physical barrier against moisture loss and oxidation to protect the freshness and extend the shelf-life of agricultural products such as fruits (D. Conditions of use). Rogers teaches reacting polyglycerol fatty acid esters with oleic acid and these mono- and diglycerides made from oleic acid are GRAS for a variety of use in food (2.1.1. FDA GRAS review). Thus, Rogers reads that the mono- and diglyceride can be mono-oleate and di-oleate of glycerol because the fatty acid esters from the polyglycerol are reacted with oleic acid which would thus result in mono-oleate and di-oleate of glycerol.
Therefore, It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Bompeix is view of Rogers to utilize of mono- and diglycerides made from oleic acid (i.e., mono-oleate and di-oleate glycerol) in the composition because it is safe to consume and Rogers imparts reasoning for obviousness because the teaching shows that monoglycerides made from oleic acid (i.e., mono-oleate and di-oleate of glycerol) were known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill one with ordinary skill the art to monoglycerides made from oleic acid (i.e., mono-oleate glycerol), because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
In addition, Bompeix is silent to the solvent having a boiling temperature between 150 and 260°C and the solvent being monopropylene glycol.
Dennis teaches a mold suppressant for airborne administration (abstract). Dennis teaches a particularly effective embodiment which uses monopropylene glycol ([0014], [0017]). The boiling temperature of monopropylene glycol is 188°C. See 2112.01(I) product and apparatus claims — when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent.
Therefore, Dennis imparts reasoning for obviousness because the teaching shows that monopropylene glycol was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill one with ordinary skill the art to select monopropylene glycol, which has a boiling temperature at 188°C, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Response to Arguments
Applicant's arguments filed 02 March 2026 have been fully considered but they are not persuasive.
First, applicant argues that the claimed temperature range is critical and the prior art does not disclose or suggest the claimed range but teaches away from it. This argument is not found to be persuasive because Bompeix teaches a temperature between 200°C and 280°C (Bompeix, Claim 1) which clearly overlaps with the claimed range of 260-330°C. See MPEP 2144.05 In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); Applicant further sates that the range is critical and points to the comparative examples wherein the applicant states at a conventional temperature of 240°C the process was a “complete failure”. The comparative example is not sufficient to show the criticality of the claimed range. First, the example has other elements not stated in the claim that add additional variables to evaluating the temperature. For example, the comparative example teaches the additive with ethyl alcohol which is not stated in the claim. One with ordinary skill in the art would recognize the addition of any alcohol would impact the temperature at which the additive would be nebulized. In addition, it is unclear if the applicant is comparing their example to Bompiex which is the closest prior art. In this case, the example from the applicant uses only a solvent and specifically ethyl alcohol while Bompiex teaches using a solvent, which in some embodiments can be ethyl alcohol, and a surfactant. Therefore, the differences between the examples and the reference makes it is unclear if the example is being compared to the closest prior art. Continuing, on page 6 of applicant specification the applicant states, “having a boiling point between 150-260℃ such as monopropylene glycol”. This statement is unclear because it does not mean that monopropylene glycol was actually used for the examples. Therefore it is still unclear how the examples presented are being compared to the closest prior art. Next, the examiner would like to point to MPEP 716.02(d)(II) To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). IN this case, the applicant provides only one point that is inside the range (295℃) and one point at the low end of the range (240℃) as such at least one point outside the high end of the range is missing to establish unexpected results. Therefore, to recap, applicants argument is not found to be persuasive because the prior art teaches a temperature range that significantly overlaps with the claimed range and therefore a prima facie case of obviousness exists. And additionally the data presented by the applicant is not sufficient to show criticality.
Next, applicant argues the examiner equating “spraying” with “thermal fogging” is an error. Specifically the applicant points to Rogers and argues the examiner’s assertion that “spraying is a form of aerosolization” is an error and thus there is no motivation to combine with Bompiex’s thermal fogging. In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that 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). In this case, Bompiex and Rogers are analogous art in the fact they both teach coating fruits and vegetables with an aerosol treatment. One with ordinary skill in the art would considering “spraying” an aerosol treatment. In addition Rogers provides motivation to combine because the teaching shows it is advantageous to utilize mono- and diglycerides of fatty acid monoesters of glycerol in the composition as a surface-finishing agent and/or texturizer creating a thin and edible physical barrier against moisture loss and oxidation to protect the freshness and extend the shelf-life of agricultural products such as fruits. Therefore, applicant’s argument is not found to be persuasive.
Continuing, applicant argues that the applicant’s selection of monopropylene glycol is not an obvious substitution but instead is critical and provides unexpected synergistic results. Applicant again points to the comparative example on page 7 of the instant specification and argues that using a common solvent like ethanol results in a failure. This comparative example is not sufficient to show criticality of a synergistic effect but merely shows a comparison between the preparation with monopropylene glycol and ethanol. This disclosure is not sufficient to highlight criticality of a synergistic relationship in addition because there is no actual data presented, the applicant merely states that ethyl alcohol was used and the nebulization was “unsuccessful”. Therefore, the comparative example is insufficient for teaching a critical synergistic relationship. Also, Dennis is analogous art that teaches a mold suppressant for airborne administration (abstract) wherein a particularly effective embodiment uses monopropylene glycol ([0014], [0017]). Thus Dennis teaches monopropylene glycol would be obvious to one of skill in the art to utilize on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious. Thus, applicants argument is not found to be persuasive.
Lastly, applicant argues that the examiners argument with regard to In re Clemens is now traversed. Applicant argues that based on the amendments, the applicants specification demonstrates that the unexpected results are a function of the critical process parameters. As discussed above, the comparative example highlighted by the applicant is not sufficient to show the criticality of the claimed range or a critical synergistic relationship. Therefore, applicants argument is not found to be persuasive.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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