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 .
Status of Claims
Claims 1-7 are pending and under examination in this application. Any objections or rejections not repeated below have been withdrawn.
Claim Objections
Claim 6 is objected to because of the following informalities:
Claim 6 line 7 and 15 recite, “at room temperature for 2min.” A space should be added between the number 2 and min. The claim should be amended to recite, “at room temperature for 2 min.” Appropriate correction 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 (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-2 and 4-6 are rejected under 35 U.S.C. 103 as being unpatentable over Huang et al. (CN 110810500) in view of Chang et al. (CN 107821581), Yang (CN 103444849) and Busch et al. (US 20130137732).
Please note the rejection below is based off of paragraph numbers added to the WIPO English translation of Huang and the rejection of Chang and Yang are based of the English translation of the PE2E Derwent Record, supplied with the rejection.
Regarding claims 1 and 2, Huang teaches a preservation method for fresh fruit (fruit; [0001]), as required by claim 1. Huang specifically looks at the preservation of fresh strawberries as the fruit and not blueberries [0001]. However, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang to preserve any fruit, including blueberries, with the preservation method as taught by Huang.
Huang teaches step (1) of applying an aqueous sodium alginate solution to fresh fruit (spraying the fruit with preservative solution A, which contains sodium alginate; [0006-0007]), as required by claim 1.
Huang teaches a drying step (the fruit is aired; [0007]). However, Huang does not teach a drying step after step (1). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang to use any order of steps, including drying after applying the sodium alginate solution and before applying the solution in step (2). “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.” See MPEP 2144.04(IV). Thus, modified Huang teaches drying the fresh blueberries after taking out the fresh blueberries from the sodium alginate solution and before applying the solution in step (2).
Huang teaches step (2) of applying the fresh fruit treated in step (1) with an aqueous solution containing chitosan (applying preservative solution B, which contains chitosan; [0006-0007]) and then drying (the fruit is aired; [0007]), as required by claim 1.
Huang does not teach soaking the fresh fruit in step (1) and step (2), as required by claim 1, where the soaking time and soaking temperature in step (1) are 2 min and room temperature respectively, as required by claim 2.
Chang teaches a fruit preservative method where the composition used for preservation contains alginate and carboxymethyl chitosan (fresh-preservation of fruit using preservative; Novelty paragraph, Description (2) paragraph). Chang teaches soaking the fruit, that is at room temperature in a preservative for 1-3 minutes, which provides an easy operating procedure (Description (2) paragraph, Advantage paragraph). This is the same as the claimed temperature of room temperature and compasses the claimed time of 2 minutes, as required by claim 2. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang to have incorporate the teachings of Chang to have soaked the fresh fruit in the different solutions, the solution in step (1) and the solution in step (2), as required by claim 1, and to have the claimed soaking time and temperature for step (1), as required by claim 2, since this provides an easy operating procedure for coating the fruit, as recognized by Chang (Advantage paragraph).
Huang does not teach adding sodium alginate at a concentration of 1.5%, as required by claim 1. Yang teaches a fruit preservative method where the solution used for preservation comprises chitosan and sodium alginate, and where the sodium alginate is in the concentration from 0.1-10% (Novelty paragraph), and when used within this range preserves good freshness, prolonging the storage period and shelf life of the fruit (Advantage paragraph). This encompasses the claimed amount of 1.5 wt% of sodium alginate, as required by claim 1. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang to have incorporated the teachings of Yang to have the sodium alginate be at the claimed amount, since when the sodium alginate is used at this amount it preserves good freshness, prolonging the storage period and shelf life of the fruit, as recognized by Yang (Advantage paragraph).
Huang does not teach the composition comprises ε-poly-L-lysine (ε-PL), as required by claim 1. Busch teaches a method of treating fruit to increase the shelf life where the composition for treating fruit comprises ε-PL, where ε-PL is an antimicrobial component the prevents microorganism growth, viability or survival for a broad range of microorganisms helping to increase shelf life (Abstract; [0006], [0097]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang and Yang to have incorporate the teachings of Busch to have the composition comprise ε-PL, because it is an antimicrobial component the prevents microorganism growth, viability or survival for a broad range of microorganisms helping to increase shelf life, as recognized by Busch (Abstract; [0006], [0097]).
Huang teaches chitosan oligosaccharide in the composition but does not teach N,O-carboxymethyl chitosan, as required by claim 1.
Chang teaches the chitosan in their composition is N,O-carboxymethyl chitosan, which is a safe and non-toxic preservative (Advantage paragraph, Food paragraph).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang, Yang and Busch to have further incorporate the teachings of Chang to have the composition comprise N,O-carboxymethyl chitosan, because it is a safe and non-toxic preservative, as recognized by Chang (Advantage paragraph, Food paragraph).
Huang does not teach repeating steps (1)-(2). However, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang, Yang and Busch, to have repeated steps (1)-(2) to apply more than one layer of each coating depending on how thick you would like the build-up of coatings to be on the fruit.
Regarding claim 4, Huang in view of Chang, Yang and Busch teach the aqueous solution in step (2) comprises ε-PL, as described above in claim 1. Busch teaches the composition comprises 0.01-15% ε-PL [0080], where ε-PL is added in an amount to be an effective antimicrobial component that prevents microorganism growth and the viability or survival for a broad range of microorganisms, helping to increase shelf life (Abstract; [0006], [0097]). This encompasses the claimed amount of 4.0 wt. % of ε-PL. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang, Yang and Busch to have further incorporate the teachings of Busch to have the solution comprise ε-PL within the claimed amount, because it is an amount that is effective as an antimicrobial component that prevents microorganism growth and the viability or survival for a broad range of microorganisms, helping to increase shelf life, as recognized by Busch (Abstract; [0006], [0097]).
Huang in view of Chang, Yang and Busch teach the aqueous solution in step (2) comprises N,O-carboxymethyl chitosan, as described above in claim 1. Yang teaches the solution comprises 1-20% chitosan (Novelty paragraph), where chitosan is added in an amount to provide good freshness and to prolong storage and overall shelf-life of the fruit (Advantage paragraph). This encompasses the claimed amount of 4.0 wt. %. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang, Yang and Busch to have further incorporate the teachings of Yang to have the solution comprise chitosan within the claimed amount, because it is an amount that is effective at providing good freshness, prolonging storage and extending overall shelf-life of the fruit, as recognized by Yang (Advantage paragraph).
Regarding claim 5, Huang in view of Chang teaches step (2) of soaking the fresh fruit treated in step (1) with an aqueous solution of step (2), as shown above in claim 1.
Huang does not teach soaking the fresh fruit where the soaking time and soaking temperature in step (2) are 2 min and room temperature respectively.
Chang teaches soaking the fruit, that is at room temperature in a preservative for 1-3 minutes, which provides an easy operating procedure (Description (2) paragraph, Advantage paragraph). This is the same as the claimed temperature of room temperature and compasses the claimed time of 2 minutes. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang, Yang and Busch to have further incorporate the teachings of Chang to have the claimed soaking time and temperature for step (2), since this provides an easy operating procedure for coating the fruit, as recognized by Chang (Advantage paragraph).
Regarding claim 6 Huang teaches a preservation method for fresh fruit (fruit; [0001]). Huang specifically looks at the preservation of fresh strawberries as the fruit and not blueberries [0001]. However, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang to preserve any fruit, including blueberries, with the preservation method as taught by Huang.
Huang teaches step 1 of applying an aqueous sodium alginate solution to fresh fruit (spraying the fruit with preservative solution A, which contains sodium alginate; [0006-0007]).
Huang teaches a drying step (the fruit is aired; [0007]). However, Huang does not teach drying the fresh blueberries after applying the sodium alginate solution and before applying the chitosan solution in step 2. It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang to use any order of steps, including drying after applying the sodium alginate solution and before applying the solution in step 2. “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.” See MPEP 2144.04(IV). Thus, modified Hang teaches drying the fresh blueberries after taking out the fresh blueberries from the sodium alginate solution.
Huang teaches step 2 of applying to the first dried fresh blueberries (the fresh fruit) obtained in step 1, an aqueous solution containing chitosan (applying preservative solution B, which contains chitosan; [0006-0007]) and then drying (the fruit is aired; [0007]).
Huang does not teach soaking the fresh fruit in step 1 and step 2, where the soaking time and soaking temperature in step 1 and step 2 are 2 min and room temperature respectively.
Chang teaches a fruit preservative method where the composition used for preservation contains alginate and carboxymethyl chitosan (fresh-preservation of fruit using preservative; Novelty paragraph, Description (2) paragraph). Chang teaches soaking the fruit, that is at room temperature in a preservative for 1-3 minutes, which provides an easy operating procedure (Description (2) paragraph, Advantage paragraph). This is the same as the claimed temperature of room temperature and compasses the claimed time of 2 minutes. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang to have incorporate the teachings of Chang to have soaked the fresh fruit in the different solutions, the solution in step 1 and the solution in step 2, and to have the claimed soaking time and temperature for step 1, since this provides an easy operating procedure for coating the fruit, as recognized by Chang (Advantage paragraph).
Huang does not teach adding sodium alginate at a concentration of 1.5%. Yang teaches a fruit preservative method where the solution used for preservation comprises chitosan and sodium alginate, and where the sodium alginate is in the concentration from 0.1-10% (Novelty paragraph), and when used within this range preserves good freshness, prolonging the storage period and shelf life of the fruit (Advantage paragraph). This encompasses the claimed amount of 1.5 wt% of sodium alginate, as required by claim 1. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang to have incorporate the teachings of Yang to have the sodium alginate be at the claimed amount, since when the sodium alginate is used at this amount it preserves good freshness, prolonging the storage period and shelf life of the fruit, as recognized by Yang (Advantage paragraph).
Huang does not teach the composition comprises ε-poly-L-lysine (ε-PL), as required by claim 1. Busch teaches a method of treating fruit to increase the shelf life where the composition for treating fruit comprises ε-PL, where ε-PL is an antimicrobial component the prevents microorganism growth, viability or survival for a broad range of microorganisms helping to increase shelf life (Abstract; [0006], [0097]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang and Yang to have incorporate the teachings of Busch to have the composition comprise ε-PL, because it is an antimicrobial component the prevents microorganism growth, viability or survival for a broad range of microorganisms helping to increase shelf life, as recognized by Busch (Abstract; [0006], [0097]).
Huang teaches chitosan oligosaccharide in the composition but does not teach N,O-carboxymethyl chitosan, as required by claim 1.
Chang teaches the chitosan in their composition is N,O-carboxymethyl chitosan, which is a safe and non-toxic preservative (Advantage paragraph, Food paragraph).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang, Yang and Busch to have further incorporate the teachings of Chang to have the composition comprise N,O-carboxymethyl chitosan, because it is a safe and non-toxic preservative, as recognized by Chang (Advantage paragraph, Food paragraph).
It is noted that step 3 and step 4 are repeat steps of step 1 and step 2, respectively, but also contain the previously added coatings from step 1 and step 2. Huang does not teach repeating step 1, which is viewed as step 3, or repeating step 2, which is viewed as step 4. However, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang, Yang and Busch, to have repeated step 1, to obtain step 3 in the process, and to have repeated step 2, to obtain step 4 in the process, as this would apply more than one layer of each coating to build-up the protective coatings on the fruit, which is viewed as a duplication of parts (duplication of coatings). Although the reference did not disclose a plurality of coatings, the mere duplication of parts has no patentable significance unless a new and unexpected result is produced. See MPEP 2144.04(VI)(B). Thus, the method of modified Huang obtains blueberries with a two-layer self-assembled sodium alginate/ε-PL.
Claims 3 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Huang et al. (CN 110810500) in view of Chang et al. (CN 107821581), Yang (CN 103444849) and Busch et al. (US 20130137732) as applied to claims 1 and 6 above, and further in view of Jung et al. (US 20190364916).
Regarding claim 3, modified Huang teaches the preservative method for fresh blueberries, as described above in claim 1. Huang does not teach that the aqueous sodium alginate solution in step (1) contains glycerol at a concentration of 0.5%.
Jung teaches a method for extending the self-life of various fruits, where the composition used in the method contains sodium alginate (Abstract, [0059], [0067]). Jung also teaches the composition contains glycerol as a plasticizer to help maintain the plasticity of the film [0004], [0064]. Jung discloses the glycerol is in the solution at a concentration of 0.1 to 3% [0070]. This encompasses the claimed amount of 0.5%. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang, Yang and Busch to have incorporate the teachings of Jung to have the composition comprise glycerol with the claimed amount, because glycerol is a plasticizer [0064], as recognized by Jung, which helps maintain the plasticity of the film.
Regarding claim 7, teaches the preservative method for fresh blueberries, as described above in claim 6. Huang does not teach that the aqueous sodium alginate solution contains glycerol at a concentration of 0.5%.
Jung teaches a method for extending the self-life of various fruits, where the composition used in the method contains sodium alginate (Abstract, [0059], [0067]). Jung also teaches the composition contains glycerol as a plasticizer to help maintain the plasticity of the film [0004], [0064]. Jung discloses the glycerol is in the solution at a concentration of 0.1 to 3% [0070]. This encompasses the claimed amount of 0.5%. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang, Yang and Busch to have incorporate the teachings of Jung to have the composition comprise glycerol with the claimed amount, because glycerol is a plasticizer [0064], as recognized by Jung, which helps maintain the plasticity of the film.
Huang in view of Chang, Yang and Busch teach the aqueous solution in steps 2 and 4 contain ε-PL, as described above in claim 6. Busch teaches the composition comprises 0.01-15% ε-PL [0080], where ε-PL is added in an amount to be an effective antimicrobial component that prevents microorganism growth and the viability or survival for a broad range of microorganisms, helping to increase shelf life (Abstract; [0006], [0097]). This encompasses the claimed amount of 4.0 wt. % of ε-PL. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang, Yang and Busch to have further incorporate the teachings of Busch to have the solution comprise ε-PL within the claimed amount, because it is an amount that is effective as an antimicrobial component that prevents microorganism growth and the viability or survival for a broad range of microorganisms, helping to increase shelf life, as recognized by Busch (Abstract; [0006], [0097]).
Huang in view of Chang, Yang and Busch teach the aqueous solution in step (2) comprises N,O-carboxymethyl chitosan, as described above in claim 6. Yang teaches the solution comprises 1-20% chitosan (Novelty paragraph), where chitosan is added in an amount to provide good freshness and to prolong storage and overall shelf-life of the fruit (Advantage paragraph). This encompasses the claimed amount of 4.0 wt. %. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Huang in view of Chang, Yang and Busch to have further incorporate the teachings of Yang to have the solution comprise chitosan within the claimed amount, because it is an amount that is effective at providing good freshness, prolonging storage and extending overall shelf-life of the fruit, as recognized by Yang (Advantage paragraph). Thus, modified Huang teaches the mass concentrations of ε-PL and N,O-carboxymethyl chitosan in the aqueous solution are the same and of the mass concentrations of ε-PL and N,O-carboxymethyl chitosan are 4.0 wt%.
Response to Arguments
Applicant's arguments filed 05/23/2025 have been fully considered but they are not persuasive.
Applicant argues, on pgs. 5-7 of their remarks, that amended claim 1 teaches drying is performed after each soaking step. Applicant states that Huang does not teach that drying is performed after spraying the sodium alginate solution (preservative solution A). Applicant also notes the secondary references used in the rejection do not use the drying step after each solution is applied. Applicant concludes that there is no technical enlightenment for a person skilled in the art to use the two types of aqueous solutions to sequentially soak the fresh blueberries, and after each soaking, drying is performed. However, the Office disagrees for the following reasons.
As shown in the above rejection, repeating a process step, i.e. drying the blueberries after each solution is applied, is obvious and not new or inventive. “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.” See MPEP 2144.04(IV). The instant specification compares soaking blueberries in water (Group CK), soaking in only the sodium alginate solution (comparative example 1, Group 1), soaking in only the ε-PL and N,O-carboxymethyl chitosan solution (comparative example 2, Group 2), and soaking in the sodium alginate solution and drying and then soaking in the ε-PL and N,O-carboxymethyl chitosan solution and drying (embodiment 1, Group 3), see Figures 1-10 and pgs. 4-13. Applicant has not shown that if the solutions, sodium alginate solution and the ε-PL and N,O-carboxymethyl chitosan solution, are applied together and dried or applied separately and dried that there is a significant difference in the preservation of the blueberries. Thus, absent any new or unexpected results, selection of any order of performing process steps is prima facie obvious.
Applicant argues, on pgs. 6-7 of their remarks, that none of the references teach each component of both solutions at the required amount. The applicant breaks down each reference individually and the ingredients contained in each solution or solutions used to preserve the fruit to show that none of these references on their own teach the first or second aqueous solutions in claim 1. However, the Office disagrees for the following reasons.
The rejection above, is based on a combination of references. Even though one reference does not show all the ingredients in the amounts needed for the solutions used in step 1 or step 2, it would have been obvious to combine the references in the rejection to achieve the solutions used in step 1 and step 2. Additionally, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant argues, on pg. 7 of their remarks, that the blueberries obtained from amended claim 1 have a better overall blueberry quality and the applicant also references several quality attributes which are improved. Applicant then states that amended claim 1 yields unpredictable effects. However, the Office disagrees for the following reasons.
It is noted that the method of modified Huang is substantially identical to the claimed method and would yield substantially identical results of better overall blueberry quality. Additionally, as shown by Figures 1-10 in the instant specification, the results from amended claim 1, as shown as Group 3 in the Figures, would be expected based on the results from Group 1, which only has the solution from step 1, and from the results of Group 2, which only has the solution from step 2. Therefore, nothing unpredictable has been achieved by combining two fruit coatings that are already known to help with preservation of blueberries.
Applicant argues, on pg. 7 of their remarks, that the preservation method as claimed uses fewer ingredients, but that each of the cited references “uses more compositions to treat fruit,” resulting in an increase in cost. However, the Office disagrees for the following reasons.
The method of modified Huang uses aqueous solutions that are substantially identical to the claimed solutions, as shown by the rejection above. While other ingredients could possibly be present within the solutions of modified Huang, which may result in increased production cost, the fact that the claimed method may cost less than modified Huang is not a case for patentability. Moreover, in response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., reduced production cost) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
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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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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