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 Arguments
Applicant's arguments filed 11/24/2025 have been fully considered as follows:
Applicant’s arguments/amendments regarding the 35 USC §112 rejection have been fully configured and are persuasive.
Applicant’s arguments regarding the prior art rejection to Martin in view of Kaplan is not persuasive.
As to whether the tank of Martin is “stationary”. There is nothing in the structure of Martin which prevents it from being moved and as such it is considered “mobile”, i.e. capable of being moved.
Applicant’s argument states that Martin uses solid dry ice for the purposes of chilling and sparging. The Examiner agrees. Applicant’s invention is directed toward the safe storage and transport of raw milk via two primary functions: first chilling a tank and then subsequently sparging the tank. Martin accomplishes the chilling via dry ice which provides the chilling function and then later sublimates to provide the sparging functions. Therefore both required functions are present in Martin. Applicant states that the proposed modifications would “render the prior art [Martin] unsatisfactory for its intended purpose” but in fact these modifications are performing the core functions of Martin which is a cooling and subsequent sparging of the raw milk holding tank. Similarly there is no change in the “principle” of operation which is cooling and sparging. The fact that some additional engineering would be required to perform the primary functions of Martin with modern structures is not an indicium of non-obviousness as alleged. Contrary to Applicant’s assertion replacing elements with another known element to perform the same function is an indicium of obviousness (MPEP §2143).
As to Applicant’s allegations as to some of the deficiencies of Martin: Those relating to the sparging/sealing/pressurizing are met both within the context of the modification with Kaplan and directly suggested by Martin (page. 3 of Martin discloses both the cap and carbonization which will pressurize). As to suitable for “transport” Applicant has not provided any structural details beyond what is shown in Martin that would imply Martin is not suitable for transport. The device of Martin includes a lid and a sealing for the lid and it is not fixed in position therefore by any reasonable definition it is “suitable for transport”.
Applicant’s assertion that the “long felt need” for raw milk storage and distribution structures is a secondary indicium of non-obviousness is not persuasive. Martin alleges to have met this particular need nearly a century ago.
Applicant’s assertion that there is not a reasonable expectation of success. The functional principles are laid out by Martin, the modern technological principles to achieve them are found in Kaplan. This appears to be nothing more than Attorney argument without technical or factual basis.
With respect to claim 5 the factual basis for why such a teaching is inherent is clearly laid out. The gas must come from somewhere. By whatever means it is delivered would reasonably be considered a conduit. Since the inner tank is entirely within the outer tank by whatever means this gas is delivered must pass through the outer tank to the inner tank at least partially.
As to Applicant’s claim that the amount of carbon dioxide dilution has produced an unexpected result of preservation. This was already recognized by Martin (page 3. ll. 4-9 “for even slight percentages will have a valuable preservative tendency”). Merely optimizing within known conditions is an indicium of obviousness (MPEP §2115).
With respect to claim 3, substituting heat exchange structures to perform the known function of cooling with dry ice is an indicium of obviousness and well established (see MPEP §2113).
With respect to claim 8, Applicant provides no factual reason beyond attorney argument why the geometry of Strong would result in an unexpected result.
With respect to claim 20, substituting heat exchange structures to perform the known function of cooling with dry ice is an indicium of obviousness and well established (see MPEP §2113).
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.
Claim(s) 1,2, 4-7,9, 18 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 1825645 (hereinafter US ‘645) in view of USPUB 2002/0114872 (hereinafter USPUB ‘872).
Regarding claim 1, 2, 4 and 9
US ‘645 teaches:
A mobile (in as much as Applicant’s is mobile there is no structure holding it in place and thus it is capable of being moved) storage assembly for storing and transporting (intended use, but it is capable of transport) a perishable organic liquid, comprising: a tank (1) having a cavity defined by a wall (wall of tank which is the inner wall; and wall of 7 which is the outer wall), wherein the wall includes a sealable port (2) for receiving and storing a perishable organic fluid within the tank (i.e. milk),a heat exchange structure (interior cavity 10 of jacket 7 which is packed with dry ice in at least one embodiment see Col. 2, ll. 30-35) which is at least partially located between an inner (tank wall) and outer wall surface of the wall (wall of 7), wherein prior to receiving the perishable organic fluid the heat exchange structure is configured to chill the cavity (Col. 2, ll. 25-45); and a conditioning agent located within the tank (see dry ice cubes of Fig. 1), wherein a first portion of the conditioning agent is in the tank to purge the tank prior to receiving the perishable organic fluid (Page. 2, ll. 93-105 the dry-ice sublimated prior to the cover be applying); and sparge and pressurize the perishable organic fluid with a second portion of the conditioning agent (Page 2, ll 93-105 the portion of the dry-ice which remains after the cover is applied “so that the outflow of gas will exclude and, so to speak, wash out all of the air”) after transfer and sealing within the tank (by applying cap). Wherein the perishable organic fluid is raw milk (i.e. “unpasteurized” milk of page 1. ll. 1-32). Wherein the conditioning agent is carbon dioxide (by means of sublimated dry-ice).
US ‘645 teaches the carbonating functionality of the claimed invention. Specifically providing a portion of conditioning agent prior to sealing to pressurize and a portion of conditioning agent after sealing to purge atmospheric gases (see mapping above). US ‘645 accomplishing this carbonating functionality by means of solid “dry-ice” and thus does not teach a “sparging structure” within the tank and configured to transfer a first portion of the conditioning agent into the tank prior to receiving the perishable organic fluid and sparge and pressurize the perishable organic fluid with a second portion of the conditioning agent after transfer and sealing within the tank. The pressurization being between 1kPa to 400kPa above atmospheric pressure.
USPUB ‘872 teaches carbonating an organic fluid by means of a sparging structure for a tank and further teaches that this sparging structure is a typical way of carbonating well-known in the prior art and that typical usage pressures lie within the claimed range of 1kPa to 400 kPA (¶ [0025-0027]).
As such it would have been obvious to one of ordinary skill in the art to substitute the dry-ice carbonating of US ‘645 with a more modern sparging structure as taught by USPUB ‘645 as this is a well-known method of carbonating in modern industrial fluid treatment processes and would have yielded nothing more than the predictable result of supplying the required carbon dioxide to the organic fluid media. Further, there would be an obvious advantage in that it would eliminate the handling of dry-ice and allow for pressurized, i.e. compact, industrial tanks of CO2 to be utilized.
Regarding claim 5
While neither US ‘645 and USPUB ‘872 specifically teach that the sparging structure is in fluid communication with the source of the conditioning agent via further conduit which is at least partially located between the inner and outer surface of the wall of the tank these limitations are considered inherent for the following reasons. The carbon dioxide of USPUB ‘872 must come from somewhere. That somewhere is “the source”. Whatever means (however small) the carbon dioxide is delivered by may be considered a “conduit” as conduit does not imply anything more than a fluid guiding structure. Lastly within the context of the modified US ‘645 the tank which comprises the first wall is entirely within the outer wall and thus there would be no way to deliver the fluid without it at some point being between the outer wall and the inner wall (even in a theoretical bizarre scenario where the sparger and source and conduit are all entirely within the tank they would still be between the walls in the vertical direction).
Regarding claim 6
Martin as modified teaches applying dry-ice to chill the cavity to temperatures that are low enough to inhibit bacterial Martin does not specifically teach that this temperature is between 0 to 0.5 C prior to receiving the perishable organic fluid. However, it would have been obvious to one of ordinary skill in the art before the effective filing date to further modify Martin such that the heat exchange structure brings the temperature between 0 to 0.5 degrees C as this is a known result effective variable for controlling the growth rate of bacteria.
Regarding claim 7
The modified US ‘645 teaches all of the limitations as discussed above, but fails to teach that the sparging structure delivers carbon dioxide at a concentration between 0.06 grams/liter to 1.2 grams/liter. The amount of carbon dioxide sparged into the liquid is a result effective variable which determines the amount of carbon dioxide absorbed by the liquid. It would have been obvious to one of ordinary skill in the art before the effective filing date to provide the carbonation concentration in the amounts claimed in order to provide the desired anti-bacterial properties while preventing too much carbonation resulting in a fizzy texture of the milk.
Regarding claim 18,
Claim 18 requires the structure of claim 1 which is rejected above along with another duplicated tank structure “the mobile storage assembly”. The two tanks together are required to be “locatable substantially adjacent to and in fluid communication with the stationary storage assembly such that the perishable organic fluid stored within the stationary storage assembly is transferrable to and storage within the tank of the mobile storage assembly.”.
Addressing first the duplication. It would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify the storage assembly to include a mobile assembly as disclosed by the modified US ‘645 as this would have been nothing more than a duplication of parts allowing for the predictable result of more storage and maintaining the same function as the original. Note that it has been held that when the difference between the prior art and the claimed invention is nothing more than a duplication of parts that maintain the same function and provide no further synergistic or unexpected results a finding of prima facie obviousness is appropriate.
Addressing the new limitation “locatable substantially adjacent to and in fluid communication with the first storage assembly such that the perishable organic fluid stored within the first storage assembly is transferrable to and storage within the tank of the mobile storage assembly.” This appears to be a functional/intended use limitation which only requires the storage apparatuses be capable of being adjacent and in fluid communication with each other (see limitations “locatable” and “transferrable”) they meet the product limitations per the guidance of MPEP §2114.
It is also noted that the terms “stationary” and “mobile” are used within the context of product claims and as the product is not provided with any particular structure such as a locking base for the stationary tank or wheels for the mobile tank these are taken as functional use of the product. Since the tanks of the modified ‘645 are not constrained from being moved or left stationary they are capable of those functions and as such meet the claim language (see MPEP §2114).
Regarding claim 19
The modified US ‘645 further teaches wherein the perishable organic fluid is raw milk and the stationary storage assembly is located at a farm or milking facility (Page 1).
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 1825645 (hereinafter US ‘645) in view of USPUB 2002/0114872 (hereinafter USPUB ‘872) in further view of US 3,586,294 (hereinafter US ‘294)
The modified US ‘645 teaches all of the limitations as discussed above, but fails to teach any particular geometry for the sparging structure and as such does not teach that the sparging structure is a lattice structure inside of the tank. US ‘294 teaches a sparging structure for a liquid tank comprising a lattice (Fig. 2; abstract). As such it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention employ the sparging structure as a lattice inside of the tank as taught by US ‘294 as this geometry is known to provide excellent agitation (abstract).
Claim(s) 3 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 1825645 (hereinafter US ‘645) in view of USPUB 2002/0114872 (hereinafter USPUB ‘872) in further view of US US 1,954,883 (hereinafter US ‘883).
The modified US ‘645 teaches all of the limitations as discussed above, but teaches that the heat exchange structure is a void packed with dry-ice and thus does not teach that heat exchange structure is in communication with a heat exchange fluid source wherein an insulating material is located between the inner and outer surface of the wall to assist with maintaining a temperature of the perishable organic fluid within the tank after pressuring and sparging. US ‘883 teaches a liquid tank in which a cooling fluid is provided to a heat exchange structure in communication with the cooling fluid (refrigerant circulated via coils 50; page 2. Ll 126-140) and wherein an insulating material is located between the inner and outer surface of the wall to assist with maintaining a temperature of the perishable organic fluid (Page 1. Ll. 105-109).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify US ‘645 such that the dry ice and void is replaced with refrigerant/brine coils as taught by US ‘883 as this would allow for a constant recycling of the cooling medium and thus eliminate a need to constantly replace the dry ice. It also would have been obvious to one of ordinary skill in the art before the effective filing date to include an insulating material located between the inner and outer surface of the wall in order to help better maintain temperature, which is the well-known and typical reason insulation is deployed and is not a motivation derived from Applicant’s claim even though it is included therein.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WOODY A LEE JR whose telephone number is (571)272-1051. The examiner can normally be reached Monday - Friday 0800-1630.
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, Edward "Ned" Landrum can be reached at 571-272-5567. 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.
/WOODY A LEE JR/Primary Examiner, Art Unit 3761