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 .
Election/Restrictions
Applicant's election with traverse of Group I: Claims 1-4 and 17-20 in the reply filed on August 29, 2025 is acknowledged. The traversal is on the ground(s) that applicant is advised that if any claim presented in a divisional application is anticipated by or includes all the limitations of a claim that is allowable in the present application such claim may be subject to provisional statutory and/or nonstatutory double patenting rejections over the claims of the instant application and takes the restriction requirement outside of 35 USC 121 read in light of 35 USC 131 and that the restriction requirement is allegedly rendered unlawful. Applicant continues the Director may require the application to be restricted to one of the inventions and that the statutory scheme for prosecution of a patent application does not charge the applicant with the burden of sorting out and reasserting in the present application any nonelected claims depending from or otherwise requiring all the limitations of elected claims subsequently found allowable noting that examiner required restriction between subcombinations usable together and that by imposing such a burden the advisement deprives applicant of enjoying the statutory entitlement to the luxury of 35 USC 121. This is not found persuasive because of the same reasons with respect to the restriction requirement mailed on July 29, 2025. Examiner maintains that the restriction for examination purposes is proper because the inventions have acquire a separate status in the art in view of their different classification, the inventions have acquired a separate status in the art due to their recognized divergent subject matter, the inventions require a different field of search, and the prior art applicable to one invention would not likely be applicable to another invention.
The requirement is still deemed proper and is therefore made FINAL.
Information Disclosure Statement
The information disclosure statements (IDSes) submitted on October 10, 2022 and October 13, 2023 were filed. The submissions are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Objections
Claims 3-4 and 19-20 are objected to because of the following informalities:
Claim 3 recites the limitation “A method for making an antimicrobe supermarket style display ware comprised of” in lines 1-2. It appears the claim should recite “A method for making an antimicrobe supermarket style display ware, the method comprised of” in order to directly refer to the term that the transitional phrase “comprising” modifies.
Claim 4 recites the limitation “A method for keeping food fresher for longer and shelf life extension to enhance food security and safety comprised of” in lines 1-3. It appears the claim should recite “A method for keeping food fresher for longer and shelf life extension to enhance food security and safety, the method comprised of” in order to directly refer to the term that the transitional phrase “comprising” modifies.
Claim 19 recites the limitation “A method for making an antimicrobe supermarket style display ware comprised of” in lines 1-2. It appears the claim should recite “A method for making an antimicrobe supermarket style display ware, the method comprised of” in order to directly refer to the term that the transitional phrase “comprising” modifies.
Claim 20 recites the limitation “A method for keeping food fresher for longer and shelf life extension to enhance food security and safety comprised of” in lines 1-3. It appears the claim should recite “A method for keeping food fresher for longer and shelf life extension to enhance food security and safety, the method comprised of” in order to directly refer to the term that the transitional phrase “comprising” modifies.
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 1-4 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 pre-AIA the applicant regards as the invention.
Claim 1 recites the limitation “a supermarket style display” in line 3. The term “style” is a relative term which renders the claim indefinite. The term “style” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what constitutes a supermarket “style” display. For purposes of examination Examiner interprets any display capable of storing food directly thereon or food packages disposed thereon reads on the claimed supermarket “style” display.
Claim 2 recites the limitation “supermarket style display” in line 1 as well as in line 2. The term “style” is a relative term which renders the claim indefinite. The term “style” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what constitutes a supermarket “style” display. For purposes of examination Examiner interprets any display capable of storing food directly thereon or food packages disposed thereon reads on the claimed supermarket “style” display.
Claim 2 recites the limitation “high oxygen flexible barrier bags” in lines 5-6. The term “high” is a relative term which renders the claim indefinite. The term “high” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what oxygen levels are “high.”
Claim 2 recites the limitation “low oxygen flexible barrier bags” in line 6. The term “low” is a relative term which renders the claim indefinite. The term “low” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what oxygen levels are “low.”
Claim 3 recites the limitation “an antimicrobe supermarket style display” in lines 1-2 as well as the limitations “a supermarket style display” in line 3. The term “style” is a relative term which renders the claim indefinite. The term “style” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what constitutes a supermarket “style” display. For purposes of examination Examiner interprets any display capable of storing food directly thereon or food packages disposed thereon reads on the claimed supermarket “style” display.
Claim 3 recites the limitation “a supermarket style display” in line 3. It is unclear if this refers to “an antimicrobe supermarket style display” recited in Claim 3, lines 1-2 or to an entirely different supermarket style display. For purposes Examiner interprets the claim to refer to the same supermarket style display.
Claim 3 recites the limitation “antimicrobe agent” in line 19. It is unclear if this refers to “antimicrobe agent” recited in Claim 3, line 5 or to an entirely different antimicrobe agent. For purposes of examination Examiner interprets the claim to refer to the same antimicrobe agent.
Claim 4 recites the limitation “a food” in line 4. It is unclear if this refers to “food” recited in Claim 4, line 1 or to an entirely different food. For purposes of examination Examiner interprets the claim to refer to the same food.
Claim 4 recites the limitation “an anitimicrobe supermarket style display ware of claim 1” in lines 6-7. It is unclear if this refers to “a supermarket style display ware” recited in Claim 4, line 5 or to an entirely different supermarket style display ware. For purposes of examination Examiner interprets the claim to refer to the same supermarket style display ware.
Claim 17 recites the limitation “a supermarket style display ware” in line 3. It is unclear if this refers to “An antimicrobe supermarket style display ware” recited in Claim 17, line 1 or to an entirely different supermarket style display ware. For purposes of examination Examiner interprets the claim to refer to the same supermarket style display ware.
Claim 17 recites the limitation “An antimicrobe supermarket style display ware” in line 1 as well as the limitation “a supermarket style display” in line 3. The term “style” is a relative term which renders the claim indefinite. The term “style” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what constitutes a supermarket “style” display. For purposes of examination Examiner interprets any display capable of storing food directly thereon or food packages disposed thereon reads on the claimed supermarket “style” display.
Claim 18 recites the limitation “The antimicrobe supermarket style display ware of claim 17” in lines 1-2 as well as the limitation “the supermarket style display” in line 2. The term “style” is a relative term which renders the claim indefinite. The term “style” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what constitutes a supermarket “style” display. For purposes of examination Examiner interprets any display capable of storing food directly thereon or food packages disposed thereon reads on the claimed supermarket “style” display.
Claim 18 recites the limitation “high oxygen flexible barrier bags” in lines 5-6. The term “high” is a relative term which renders the claim indefinite. The term “high” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what oxygen levels are “high.”
Claim 18 recites the limitation “low oxygen flexible barrier bags” in line 6. The term “low” is a relative term which renders the claim indefinite. The term “low” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what oxygen levels are “low.”
Claim 19 recites the limitation “an antimicrobe supermarket style display ware” in lines 1-2 as well as the limitation “a supermarket style display” in line 3. The term “style” is a relative term which renders the claim indefinite. The term “style” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what constitutes a supermarket “style” display. For purposes of examination Examiner interprets any display capable of storing food directly thereon or food packages disposed thereon reads on the claimed supermarket “style” display.
Claim 19 recites the limitation “a supermarket style display” in line 3. It is unclear if this refers to “an antimicrobe supermarket style display” recited in Claim 19, lines 1-2 or to an entirely different supermarket style display. For purposes Examiner interprets the claim to refer to the same supermarket style display.
Claim 19 recites the limitation “antimicrobe agent” in line 14. It is unclear if this refers to “antimicrobe agent” recited in Claim 19, line 5 or to an entirely different antimicrobe agent. For purposes of examination Examiner interprets the claim to refer to the same antimicrobe agent.
Claim 20 recites the limitation “a food” in line 4. It is unclear if this refers to “food” recited in Claim 20, line 1 or to an entirely different food. For purposes of examination Examiner interprets the claim to refer to the same food.
Claim 20 recites the limitation “an anitimicrobe supermarket style display ware of claim 17” in lines 6-7. It is unclear if this refers to “a supermarket style display ware” recited in Claim 20, line 5 or to an entirely different supermarket style display ware. For purposes of examination Examiner interprets the claim to refer to the same supermarket style display ware.
Clarification is required.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1, 3, 17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over DiBello et al. US 2011/0163172 in view of Elfersy et al. US 2006/0193816, Tyrrell et al. US 2015/0181863, and Ripberger et al. US 2017/0164612.
Regarding Claim 1, DiBello et al. discloses an antimicrobe supermarket “style” display ware (produce display or other product display case used in grocery stores) (‘172, Paragraphs [0003] and [0014]) comprising a supermarket “style” display ware (produce display or other product display case) having food contacting surfaces and situated on at least a portion of the food contacting surfaces is an antimicrobe agent (mist of biocidal solution) (‘172, Paragraph [0014]).
DiBello et al. discloses the antimicrobe agent (biocidal solution) of the misting system applied to the food to be any available biocidal solution (‘172, Paragraphs [0016]-[0017]). However, DiBello et al. is silent regarding the antimicrobe agent/biocidal solution being formulated as a composition comprising between about 0.25% w/w to about 0.75% w/w benzalkonium chloride, between about 0.02% w/w to about 1.00% w/w of a kill agent selected from the group consisting of hydrogen peroxide and phenoxyethanol, between about 0.25% w/w to about 0.75% w/w 3-(tri-methoxysilyl)propyldimethyl octadecyl ammonium chloride, and between about 97.50% w/w to about 99.48% deionized water with the sum of the percentage of all ingredients equaling 100%.
Elfersy et al. discloses an antimicrobial agent (antimicrobial or biocide compositions) (‘816, Paragraph [0020]) situated on at least a portion of food contacting surfaces used to disinfect food materials and processing of food prior to packaging and disinfecting food at an intermediate step of food processing (‘816, Paragraph [0160]). The antimicrobial agent (antimicrobial or biocide compositions) comprises hydrogen peroxide in a concentration range of about 1-5% (‘816, Paragraph [0153]), which overlaps the claimed kill agent of hydrogen peroxide concentration of between about 0.02% w/w to about 1.00% w/w. Elfersy et al. also discloses the antimicrobial agent (antimicrobial composition) comprising about 0.01-2% of an organosilane quaternary ammonium compound (‘816, Paragraph [0134]) such as 3-trimethoxysilyl propyloctadecyl ammonium chloride (‘816, Paragraphs [0044]-[0045]), which overlaps the claimed concentration of between about 0.25% w/w to about 0.75% w/w of an organosilane quaternary ammonium compound, e.g. tri-methoxysilyl propyldimethyl octadecyl ammonium chloride. Elfersy et al. also discloses an embodiment wherein the composition comprises about 80-98% water (‘816, Paragraph [0153]), which overlaps the claimed concentration of between about 97.50% w/w to about 99.48% water.
DiBello et al. discloses the antimicrobe agent/biocidal solution applied to the food to be any available biocidal solution (‘172, Paragraphs [0016]-[0017]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the antimicrobe agent/biocidal solution that can be any available biocidal solution of DiBello et al. and use an antimicrobe agent/biocidal solution comprising a kill agent of hydrogen peroxide, an organosilane quaternary ammonium compound containing 3-tri-methoxysilyl propyldimethyl octadecyl ammonium chloride, and water as taught by Elfersy et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Elfersy et al. teaches that the claimed ingredients were known components of antimicrobial or biocide compositions used in food processing applications. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of hydrogen peroxide, organosilane quaternary ammonium compound containing 3-tri-methoxysily propyldimethyl octadecyl ammonium chloride, and water of the generic antimicrobe agent/biocidal solution of DiBello et al. in the claimed concentrations as taught by Elfersy et al. since where the claimed concentration ranges of hydrogen peroxide, organosilane quaternary ammonium compound containing 3-tri-methoxysily propyldimethyl octadecyl ammonium chloride, and water of the antimicrobe agent/biocidal solution overlaps concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Further regarding Claim 1, DiBello et al. modified with Elfersy et al. is silent regarding the antimicrobe agent comprising between about 0.25% w/w to about 0.75% w/w benzalkonium chloride. DiBello et al. modified with Elfersy et al. is also silent regarding the water being deionized water.
Tyrrell et al. discloses an antimicrobe agent (antimicrobial composition) applied to a food contacting surface (‘546, Paragraph [0056]) wherein the antimicrobe agent (antimicrobial composition) comprises benzalkonium and hydrogen peroxide (‘546, Paragraph [0075]).
DiBello et al. discloses the antimicrobe agent applied to the food to be any available biocidal solution (‘172, Paragraphs [0016]-[0017]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the antimicrobe agent that can be any available biocidal solution of DiBello et al. and use an antimicrobe agent comprising benzalkonium chloride as taught by Tyrrell et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Tyrrell et al. teaches that the claimed ingredient of benzalkonium was a known component of antimicrobial or biocide compositions used in food processing applications. Although Tyrrell et al. does not teach the claimed concentration of benzalkonium chloride being between about 0.25% w/w to about 0.75% w/w benzalkonium chloride, differences in the concentration of benzalkonium chloride will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of benzalkonium chloride is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.). The particular concentration of any component(s) of the antimicrobe agent/biocidal solution is a parameter that would be adjusted to any suitable level so long as the antimicrobe agent/biocidal solution provides a biocidal property against unwanted microorganisms when applied to food and food contacting surfaces.
Further regarding Claim 1, DiBello et al. modified with Elfersy et al. and Tyrrell et al. is silent regarding the water being deionized water.
Ripberger et al. discloses a composition for use in sanitizing food contacting surfaces (‘612, Paragraph [0003]) wherein the composition comprises quaternary ammonium surfactants (‘612, Paragraph [0051]) and deionized water (‘612, Paragraph [0032]).
DiBello et al. discloses the antimicrobe agent/biocidal solution applied to the food to be any available biocidal solution (‘172, Paragraphs [0016]-[0017]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the antimicrobe agent/biocidal solution that can be any available biocidal solution of DiBello et al. and use an antimicrobe agent/biocidal solution comprising deionized water as taught by Ripberger et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ripberger et al. teaches that the claimed deionized water ingredient was a known component of antimicrobial or biocide compositions used in applying to food contacting surfaces.
Regarding Claim 3, the limitations with a method for making an antimicrobe supermarket style display comprising taking possession of a supermarket style display ware having food contacting surfaces and taking possession of a supply of antimicrobe agent reads on an antimicrobe supermarket style display ware. The antimicrobe agent composition recited in Claim 3 is identical to the antimicrobe agent composition recited in Claim 1. Therefore, Claim 3 is rejected for the same reasons enumerated with respect to the rejections of Claim 1 above.
Regarding Claim 17, DiBello et al. discloses an antimicrobe supermarket “style” display ware (produce display or other product display case used in grocery stores) (‘172, Paragraphs [0003] and [0014]) comprising a supermarket “style” display ware (produce display or other product display case) having food contacting surfaces and situated on at least a portion of the food contacting surfaces is an antimicrobe agent (mist of biocidal solution) (‘172, Paragraph [0014]).
DiBello et al. discloses the antimicrobe agent (biocidal solution) of the misting system applied to the food to be any available biocidal solution (‘172, Paragraphs [0016]-[0017]). However, DiBello et al. is silent regarding the antimicrobe agent/biocidal solution being formulated as a composition comprising about 0.50% w/w benzalkonium chloride, about 0.49% w/w of a kill agent selected from the group consisting of hydrogen peroxide and phenoxyethanol, about 0.50% w/w 3-(tri-methoxysilyl)propyldimethyl octadecyl ammonium chloride, and between about 98.51% deionized water with the sum of the percentage of all ingredients equaling 100%.
Elfersy et al. discloses an antimicrobial agent (antimicrobial or biocide compositions) (‘816, Paragraph [0020]) situated on at least a portion of food contacting surfaces used to disinfect food materials and processing of food prior to packaging and disinfecting food at an intermediate step of food processing (‘816, Paragraph [0160]). The antimicrobial agent (antimicrobial or biocide compositions) comprises hydrogen peroxide in a concentration range of about 1-5% (‘816, Paragraph [0153]), which is close to but does not overlap the claimed kill agent of hydrogen peroxide concentration of between about 0.49% w/w. Elfersy et al. also discloses the antimicrobial agent (antimicrobial composition) comprising about 0.01-2% of an organosilane quaternary ammonium compound such as 3-trimethoxysilyl propyloctadecyl ammonium chloride (‘816, Paragraph [0134]), which overlaps the claimed concentration of about 0.50% w/w of an organosilane quaternary ammonium compound, e.g. tri-methoxysilyl propyldimethyl octadecyl ammonium chloride. Elfersy et al. also discloses an embodiment wherein the composition comprises about 80-98% water (‘816, Paragraph [0153]), which is close to but does not overlap the claimed concentration of between about 98.51% water.
DiBello et al. discloses the antimicrobe agent/biocidal solution applied to the food to be any available biocidal solution (‘172, Paragraphs [0016]-[0017]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the antimicrobe agent/biocidal solution that can be any available biocidal solution of DiBello et al. and use an antimicrobe agent/biocidal solution comprising a kill agent of hydrogen peroxide, an organosilane quaternary ammonium compound containing 3-tri-methoxysilyl ammonium chloride, and water as taught by Elfersy et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Elfersy et al. teaches that the claimed ingredients were known components of antimicrobial or biocide compositions used in food processing applications. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of organosilane quaternary ammonium compound containing 3-tri-methoxysily ammonium chloride of the generic antimicrobe agent/biocidal solution of DiBello et al. in the claimed concentrations as taught by Elfersy et al. since where the claimed concentration ranges of organosilane quaternary ammonium compound containing 3-tri-methoxysily ammonium chloride of the antimicrobe agent/biocidal solution overlaps concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of hydrogen peroxide and water of the generic antimicrobe agent/biocidal solution of DiBello et al. to fall within the claimed concentrations as taught by the close ranges disclosed by Elfersy et al. since a prima facie case of obviousness exists where the claimed concentration of hydrogen peroxide and water ranges do not overlap with the prior art but are merely close in view of Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (MPEP § 2144.05.I.).
Further regarding Claim 17, DiBello et al. modified with Elfersy et al. is silent regarding the antimicrobe agent comprising between about 0.50% w/w benzalkonium chloride. DiBello et al. modified with Elfersy et al. is also silent regarding the water being deionized water.
Tyrrell et al. discloses an antimicrobe agent (antimicrobial composition) applied to a food contacting surface (‘546, Paragraph [0056]) wherein the antimicrobe agent (antimicrobial composition) comprises benzalkonium and hydrogen peroxide (‘546, Paragraph [0075]).
DiBello et al. discloses the antimicrobe agent applied to the food to be any available biocidal solution (‘172, Paragraphs [0016]-[0017]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the antimicrobe agent that can be any available biocidal solution of DiBello et al. and use an antimicrobe agent comprising benzalkonium chloride as taught by Tyrrell et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Tyrrell et al. teaches that the claimed ingredient of benzalkonium was a known component of antimicrobial or biocide compositions used in food processing applications. Although Tyrrell et al. does not teach the claimed concentration of benzalkonium chloride being about 0.50% w/w benzalkonium chloride, differences in the concentration of benzalkonium chloride will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of benzalkonium chloride is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.). The particular concentration of any component(s) of the antimicrobe agent/biocidal solution is a parameter that would be adjusted to any suitable level so long as the antimicrobe agent/biocidal solution provides a biocidal property against unwanted microorganisms when applied to food and food contacting surfaces.
Further regarding Claim 17, DiBello et al. modified with Elfersy et al. and Tyrrell et al. is silent regarding the water being deionized water.
Ripberger et al. discloses a composition for use in sanitizing food contacting surfaces (‘612, Paragraph [0003]) wherein the composition comprises quaternary ammonium surfactants (‘612, Paragraph [0051]) and deionized water (‘612, Paragraph [0032]).
DiBello et al. discloses the antimicrobe agent/biocidal solution applied to the food to be any available biocidal solution (‘172, Paragraphs [0016]-[0017]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the antimicrobe agent/biocidal solution that can be any available biocidal solution of DiBello et al. and use an antimicrobe agent/biocidal solution comprising deionized water as taught by Ripberger et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ripberger et al. teaches that the claimed deionized water ingredient was a known component of antimicrobial or biocide compositions used in applying to food contacting surfaces.
Regarding Claim 19, the limitations with a method for making an antimicrobe supermarket style display comprising taking possession of a supermarket style display ware having food contacting surfaces and taking possession of a supply of antimicrobe agent reads on an antimicrobe supermarket style display ware. The antimicrobe agent composition recited in Claim 19 is identical to the antimicrobe agent composition recited in Claim 17. Therefore, Claim 19 is rejected for the same reasons enumerated with respect to the rejections of Claim 17 above.
Claims 2, 4, 18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over DiBello et al. US 2011/0163172 in view of Elfersy et al. US 2006/0193816, Tyrrell et al. US 2015/0181863, and Ripberger et al. US 2017/0164612 as applied to claim 1 or claim 17 above in further view of Thomas et al. US 2015/0232252 and Nauth et al. US 2004/0175473.
Regarding Claims 2 and 18, DiBello et al. modified with Elfersy et al., Tyrrell et al., and Ripberger et al. renders obvious the limitations of Claim 1 and Claim 17 as enumerated above. However, DiBello et al. modified with Elfersy et al., Tyrrell et al., and Ripberger et al. is silent regarding the supermarket “style” display ware being pouches.
Nauth et al. discloses a method of applying antimicrobial compositions to a food product comprising mixing the antimicrobial composition with the food product, dipping the food product into the antimicrobial composition, spraying the food product with the antimicrobial composition including the antimicrobial composition in a package with the food product such that the antimicrobial composition effectively covers the outer surfaces of the food product (‘473, Paragraph [0027]). Thomas et al. discloses a food package comprising synthetic polymeric products having antimicrobial properties (‘252, Paragraph [0003]) presented in supermarkets to display the meat wherein the packaging also acts to prolong shelf life of the product and ease shipping and handling of the product (‘252, Paragraph [0048]) wherein the package is a pouch (‘252, Paragraph [0054]).
DiBello et al. discloses the antimicrobe agent applied to the food to be any available biocidal solution (‘172, Paragraphs [0016]-[0017]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food preservation system of DiBello et al. that does not explicitly disclose packaging the food and package the food into the antimicrobe supermarket “style” display ware as taught by Nauth et al. in order to further extend the shelf life of the food when disposed in a package and ease shipping and handling of the product as suggested by Thomas et al. (‘252, Paragraph [0048]). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the package of DiBello et al. of the supermarket “style” display ware in which the food is disposed to be pouches as taught by Thomas et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Thomas et al. teaches that there was known utility in the food packaging art to construct food packages having antimicrobial properties in pouches.
Regarding Claims 4 and 20, DiBello et al. modified with Elfersy et al., Tyrrell et al., and Ripberger et al. discloses the antimicrobe supermarket “style” display ware of Claim 1 as enumerated in the rejections of Claim 1 above. The limitations of Claims 4 and 20 with a method for keeping food fresher for longer and shelf life extension to enhance food security and safety are disclosed by the enhanced shelf life of food when any available biocidal solution is used in the system of DiBello et al. (‘172, Paragraph [0017]). DiBello et al. modified with Elfersy et al., Tyrrell et al., and Ripberger et al. is silent regarding the food being packaged into the antimicrobe supermarket “style” display ware.
Nauth et al. discloses a method of applying antimicrobial compositions to a food product comprising mixing the antimicrobial composition with the food product, dipping the food product into the antimicrobial composition, spraying the food product with the antimicrobial composition including the antimicrobial composition in a package with the food product such that the antimicrobial composition effectively covers the outer surfaces of the food product (‘473, Paragraph [0027]). Thomas et al. discloses a food package comprising synthetic polymeric products having antimicrobial properties (‘252, Paragraph [0003]) presented in supermarkets to display the meat wherein the packaging also acts to prolong shelf life of the product and ease shipping and handling of the product (‘252, Paragraph [0048]).
DiBello et al. discloses the antimicrobe agent applied to the food to be any available biocidal solution (‘172, Paragraphs [0016]-[0017]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food preservation system of DiBello et al. that does not explicitly disclose packaging the food and package the food into the antimicrobe supermarket “style” display ware as taught by Nauth et al. in order to further extend the shelf life of the food when disposed in a package and ease shipping and handling of the product as suggested by Thomas et al. (‘252, Paragraph [0048]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Woodbridge US 2010/0196215 discloses an apparatus and method for sanitizing grocery store display cases such as deli counters and meat, fish, and poultry display cases (‘215, Paragraph [0054]).
Chambers et al. US 2007/0119699 discloses an apparatus and method for sanitizing air and spaces of grocery store display cases such as deli counters and meat, fish, and poultry display cases (‘699, Paragraph [0070]).
Kuenzi et al. US 2021/0030029 discloses a method of sanitizing a package ready prequantified unit of food.
He et al. US 2003/0194347 discloses a process for sterilization and disinfecting of agriculture and botanic products.
James US 2013/0302490 discloses a system and method for treating food products to reduce pathogens and other contaminants
Turatti US 2007/0212457 discloses a process for washing and sterilizing food products.
Malkki et al. US 3,996,386 discloses a method for preventing microbial surface deterioration of foods and feeds.
Newman US 5,597,597 discloses a method of sterilizing an edible substrate with UV radiation.
Newman US 6,165,526 discloses a microbial decontamination of food
Lenz US 4,011,994 discloses a transportable ground spraying device.
Crisnel et al. US 6,162,477 discloses a process and apparatus for treating food products with ozone.
Denvir et al. US 6,120,822 discloses an apparatus and method of food decontamination by treatment with ozone.
Rosenthal US 5,405,631 discloses an apparatus and method for sanitizing fruits.
Perren et al. US 2010/0173060 discloses a method for the surface pasteurization and sterilization of pieces of food.
Perren et al. US 2010/0136192 discloses a method for roasting and surface pasteurization of food products.
Doona et al. US 2019/0161349 discloses a clamshell package made of PET typical of packaging used to contain fresh produce or berries as sold in supermarkets (‘349, Paragraph [0051]).
Schroeder US 2017/0334666 discloses PET bottles set up in supermarkets (‘666, Paragraph [0003]).
Hull US 2015/0290873 discloses a product sold in supermarkets requiring the use of flexible air tight packaging made of PET (‘873, Paragraph [0002]).
Ghezzi US 2012/0151879 discloses it is common for supermarkets to sell bundles formed with six PET bottles of water or soft drinks (‘879, Paragraph [0002]).
Maki et al. US 2011/0155686 discloses PET containers sized to fit on shelves of a supermarket or store (‘686, Paragraph [0044]).
Chikamori et al. US 2003/0148692 discloses chilled shelves used for displaying and storing foodstuffs in a supermarket using PET films and woven fabric as heat insulating sheets (‘692, Paragraph [0003]).
Burnett et al. US 2009/0246336 discloses a bacteriophage treatment well suited for packaged food products including any item packaged temporarily, e.g. during transportation to a supermarket or any food item that is intended to be packaged until opened by a consumer (‘336, Paragraph [0081]).
Moder et al. US 2008/0069928 discloses a preservative system for extending the shelf life of farinaceous food intermediates having a high water activity such as doughs wherein the preservative system comprises an antimicrobial acid (‘928, Paragraph [0001]) wherein when a preservative system is absent for products sold in supermarkets placed on shelves at room temperature or in refrigerated condition the products are prone to microbial failure and enzymatic failure (‘928, Paragraph [0003]).
Barrett US 2023/0149582 discloses a disinfection system and method to dynamically disinfect volumes in space in various environments to be protected including display spaces in retail outlets and the like wherein the system and method disinfects volumes of various sizes (‘582, Paragraph [0015]).
Bromberg et al. US 2007/0227930 discloses shelving and displays for marketing a combination of antimicrobial products using a retail shelf display arrangement and products having a common antimicrobial active (‘930, Paragraph [0002]) wherein one of the products is designed to clean, sanitize, or disinfect the air or a soft surface to remove or treat odors or allergens (‘930, Paragraph [0041]).
Diniaco US 2004/0226905 discloses a package suitable for retail in which devices are displayed ready for use wherein the devices are substantially sterilized both as to the contents of the reservoir to provide an appropriate shelf life (‘905, FIG. 6) (‘905, Paragraph [0016]).
Swofford et al. US 2004/0067290 discloses a display device in the form of a case, merchandiser, stand, or other display device for storing or displaying food products in a supermarket, kitchen, cafeteria, deli, restaurants, etc. wherein the display device is an open type display device such as those typically used for displaying product or a closed type display device such as those typically used for displaying meat or other food product wherein the display device interfaces with a fluid supply system for moisturizing and/or cleaning, e.g. disinfecting, deodorizing, decontaminating, etc. the components of the display device and/or food products displayed in the display device wherein the display device includes a piping system or piping network for receiving a cleaning agent fluid (‘290, Paragraph [0016]) including a cleaning agent supply device of an ozone generator (‘290, FIG. 4) (‘290,m Paragraph [0024]).
Ruzek US 5,989,610 discloses cut or sliced meat packaged in a display unit comprising a film wrapped package or display unit for a retail case wherein the display unit is packaged in temporary or permanent packaging wherein the packaging is designed for transportation, distribution, and presale storage in any arbitrary packaging which is included in a bag or container such as a sealed master container or bag.
Hei et al. US 5,858,443 discloses a process for effecting microbial control and reducing growth on hard surfaces in food processing equipment using inline ozonation.
Audy et al. US 2002/0025364 discloses food disinfection using ozone.
Jones US 6,651,901 discloses a produce case including a base connected to an upstanding front wall and an upstanding rear wall for storing product such as fruits and vegetables wherein the produce case comprises a misting system designed to selectively provide a fine mist.
Gillette et al. US 2003/0156978 discloses a sanitizing device and system of an ozone sanitation device for washing, sanitizing, an dehydrating various food products such as fruits and vegetables (‘978, Paragraph [0004]).
Godfrey US 2,386,208 discloses a produce display fixture.
Wales US 1,922,147 discloses an atomizing and evaporating device for vegetables.
Slaymaker US 1,860,600 discloses a display rack for fruits and vegetables.
White US 1,724,153 discloses a fruits and vegetable rack and vapor spray.
Corrigan et al. US 2005/0011372 discloses a system and method of introducing ozone treated humidified air into a refrigerated service display case or refrigerated storage room.
Sauter US 2005/0138946 discloses a refrigerated display case automatic cleaning system and method.
Yono et al. US 4,416,120 discloses a spray assembly for refrigerated display case.
Ibrahim US 4,315,414 discloses an automatic cleaning of refrigerated case interior surface.
Tripp US 3,320,964 discloses a chemical flush system for cleaning refrigerated cases in retail food stores.
Booth US 2,533,913 discloses a refrigerated vegetable display case and spray system.
Pandred GB 2 301 175 discloses a perishable product display refrigerated cabinet including a mist or fog of water droplets.
Pendred GB 2 326 095 discloses a moisture supply apparatus for delivering sterile airborne moisture into the interior of a refrigerated area comprising an airborne moisture generation means of a fog or mist generator or air spray humidifier.
Krawecyzk US 2021/0338872 discloses a disinfecting fogger device for releasing a disinfectant for eliminating airborne bacteria, viruses, germs, fungi, and the like within a confined or semiconfined area such as a restaurant wherein the fogger device is a spray or mist emitting device offering complete area coverage for disinfecting a room or enclosed space and eliminating substantially all of the germs, bacteria, viruses, etc. (‘872, Paragraph [0002]) wherein bacterial, fungal, viral, and microbial contamination of restaurants and other confined spaces has been a source of infection and disease for humans that adhere to surfaces after contact with foods and also linger in the air within a room (‘872, Paragraph [0003]).
Corrigan US 4,882,189 discloses a method and apparatus for providing aqueous spray mist onto produce and the like provided in an upwardly opening case space.
Corrigan US 4,179,900 discloses a method of preserving fresh produce such as garden vegetables wherein the produce articles are displayed to view and access to the public for sale such as in a grocery store wherein the articles are usually displayed in a refrigerator with an open top for access to the articles by the purchasers and applying moisture in an extremely fine mist made of up fine particles to the produce articles.
Demokritou et al. US 2020/0222566 discloses a method of reducing the microbial load on various substrates including the surface of foodstuffs, e.g. fresh produce, raw or minimally processed fruit or vegetables using engineered water nanostructures (EWNS) as nanocarriers to deliver active ingredients to a substrate/surface to reduce the microbial load on such surfaces/substrates (‘566, Paragraph [0023]) wherein the substrate is a surface of foodstuffs or surfaces employed during the processing of foods or gaseous substrates including air (‘566, Paragraph [0039]) wherein the EWNS is generated by any suitable method known in the art and using any suitable electro spray device known in the art (‘566, Paragraph [0056]) wherein the EWNS comprises a reactive oxygen species, at least one active ingredient, and a surface charge (‘566, Paragraph [0031]) wherein the active ingredient encompasses an antimicrobial active ingredient including but not limited to hydrogen peroxide (‘566, Paragraph [0037]).
Markesberry et al. US 2020/0306399 discloses food processing surfaces are found and employed in food antispoilage air circulation systems, aseptic packaging sanitizing, food refrigeration and cooler cleaners, and food packaging material (‘399, Paragraph [0116]).
Velasquez US 2008/0241269 discloses a method of applying antimicrobials or other active agents onto food products (‘269, Paragraph [0010]).
Kleinberger et al. US 2016/0151525 discloses a humidification and treatment system to clean and disinfect various equipment or materials such as display cases used in connection with perishable items such as produce, milk, vegetables, etc. by a misting or fogging system using disinfecting hydrogen water to the entire environment within, on or around a treated item or space to disinfect and clean (‘525, Paragraph [0030]).
Corrigan et al. US 2006/0273186 discloses a method of introducing ozone treated humidified air into a refrigerated service display case or refrigerated storage room.
Elfersy et al. US 5,954,869 discloses a method of antimicrobially treating a food articles or a method of antimicrobially coating a fluid container by treating a substrate or by mixing or contacting the substrate with a product, compound, or composition comprising an organosilane wherein food containers are provided with antimicrobial properties without separate surface treatment.
Anderson et al. US 2011/0028591 discloses antimicrobial nanoparticles and compositions to prepare antimicrobial surfaces wherein the article is a food preparation surface or food storage container.
Sengupta et al. US 7,459,167 discloses a coating produced form a composition suitable for any surface subject to deterioration or discoloration form microorganisms wherein the coating is applied to food trays.
Peterson et al. US 2005/0008613 discloses a stabilized aqueous organosilane solution composition used to coat a food article or a fluid container (‘613, Paragraph [0019]).
Francini et al. US 2020/0231773 discloses an antimicrobial coating applied on the surface of thermoplastic films (‘773, Paragraph [0011]) for packaging food products (‘773, Paragraph [0016]).
Benham US 2020/0129452 discloses in antimicrobial packaging food such as meat can be sprayed with an aqueous solution of a sulubilizate and packed in transparent films and exposed to light to keep the already packaged food germ free (‘452, Paragraph [0038]).
Ravishankar et al. US 2018/0092370 discloses an antimicrobial composition used as a food packaging film for packaging food products in addition to being spray treated onto meat to reduce the microorganism population and inhibit food spoilage (‘370, Paragraph [0021]).
Herdt et al. US 2009/0269324 discloses an antimicrobial composition applied to a surface of a food package by spraying.
Shimamoto et al. US 2010/0240600 discloses an antimicrobial agent comprising benzalkonium chloride for cooking and processing food (‘600, Paragraph [0003]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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