Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Reissue Applications
For reissue applications filed before September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the law and rules in effect on September 15, 2012. Where specifically designated, these are “pre-AIA ” provisions.
For reissue applications filed on or after September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the current provisions.
Status of the Claims
Original claims 1-9 and newly added claims 34-118 are pending with claim 1 amended.
Oath or Declaration
The declarations filed 1/18/2023 by inventors Michael Harvey and Jonathan Howarth are proper because they do identify one error correctable by reissue. Of note, the error statements in the declarations appear to be incomplete as they end mid-sentence.
Improper Amendment
The amendment filed 1/18/2023 proposes amendments to the claims that do not comply with 37 CFR 1.173(b), which sets forth the manner of making amendments in reissue applications. A supplemental paper correctly amending the reissue application is required.
Double bracketing in reissue amendments is improper. See MPEP 1453 for proper formats for amendment in reissue.
The claim numbering is also incorrect. What should be new claim 109 is incorrectly listed as 1090.
Election/Restrictions
Newly submitted claims 90-105 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: claims 90-105 are directed to a system for chilling and sanitizing a poultry carcass, the specifics of which are not required by the originally presented method claims.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 90-105 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 109-116 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claims 109-111 require 2 different locations for introduction of combined solution (peroxyacetic acid and the alkalinity source) into the reservoir, however, nowhere in the specification or drawings does the disclosure set forth or suggest two separate introduction locations. Claims 112-116 depend from claim 109 and are thus included in this rejection as they require all of the limitations of the claim from which they depend.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-9, 34-89 and 106-118 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over U.S. patent No. 7,381,439 to Hilgren et al., (hereinafter “Hilgren”) in view of U.S. patent No. 7,547,421 to McSherry et al., (hereinafter referred to as “McSherry”) and U.S. patent No. 7,887,641 to Man et al., (hereinafter referred to as “Man”).
Hilgren teaches a method of treating poultry carcasses such as by immersion in a peroxycarboxylic acid solution in a chilling tank/reservoir. The peroxycarboxylic acid is preferably peroxyacetic acid together with peroxyoctanoic acid. An antimicrobial amount of the peroxycarboxylic acid is used in a solution diluted with water, the amounts being about 2 to about 300 ppm peroxyacetic acid and about 0.1 to about 200 ppm peroxyoctanoic acid, with a preferred embodiment for poultry treating in a chill tank of about 2 to about 100ppm as a mixture of peroxyacetic acid and peroxyoctanoic acid (see column 2, line 63 – column 3, line 49; column 4, lines 5-20; column 8, lines 35-67; column 9, lines 29-32; column 16, lines 27-45 and 50-65; column 18, line 44 – column 19, line 5; Example 3 and claims 10-11). Hilgren further teaches recycling of the used peroxycarboxylic acid treatment solution. The recovered solution may be reused with the addition of more peroxycarboxylic acid to raise the concentration back to the preferred antimicrobial level (see column 3, lines 50-64 and claims 1 and 5).
McSherry teaches methods of making and using peroxycarboxylic acid, which acid may be primarily short chain peroxycarboxylic acids (see column 36, lines 1-15), preferably peracetic acid (PAA, see column 6, lines 60-64), with some medium chain peroxycarboxylic acids, such as peroxyoctanoic acid. Medium chain peroxycarboxylic acids are recognized as having reduced or lacking in offensive odor in comparison to equal concentrations of short chain peroxycarboxylic acids (see column 2, line 65 – column 3, line 23). McSherry teaches treating poultry carcasses with a solution of the peroxycarboxylic acid with that solution added to chilling tanks for treating carcasses immersed therein (see column 4, lines 8-30 and 43-65; column 33, lines 30-45; column 65, line 57 – column 66, line 10; column 67, lines 5-12 and column 69, lines 13-17). McSherry further teaches controlling the concentration of the use solution as well as other parameters such as temperature and pressure. Specifically, McSherry teaches measuring the concentration of the peroxycarboxylic acid solution delivered to the point of use and measuring the concentration of the solution in use. If the levels of peroxycarboxylic acid are below or above the preferred concentration range then more solution or more diluent is added to bring the concentration into the preferred range (see column 26, line 31 – column 27, line 25; column 32, lines 30-45). McSherry teaches similar measurement and adjustments for other parameters such as temperature and pressure in the peroxycarboxylic acid generating system.
Man teaches the use of a neutral or alkaline peroxycarboxylic acid solution for cleaning and reducing the microbe population on a soiled objects, those objects including food products (see column 7, lines 64-66; column 20, line 65 – column 21, line 24). The preferred pH range for use is between about 6 to about 14, and ranges within that such as about 7 to about 13 or about 10 (see column 8, lines 15-28). The method of contact with the object may include contact with an acid pH peroxycarboxylic composition and contacting with a source of alkalinity to adjust the solution pH in use, or providing a mixed solution of the two with the pH in the desired range of 6-14 upon initial contact (see column 1, line 49 – column 2, line 23; column 7, line 35- column 8, line 28). The preferred peroxycarboxylic acid includes a medium chain peroxycarboxylic acid, such as peroxyoctanoic acid, but also includes a greater portion of a short chain peroxycarboxylic acid, such as peroxyacetic acid. The two are preferably used such that an odor is limited (see column 3, lines 10-35; column 6, lines 4-10; column 15, lines 10-37 and column 43, line 60). Man teaches that the neutral or alkaline composition of use provides better efficacy as compared to antimicrobial compositions at the same level, produces less or no VOC’s and has a higher flash point and improved storage as compared to conventional peroxycarboxylic acid compositions (see column 16, lines 47-60) The preferred compositions including 1 or more parts of medium chain peroxycarboxylic acid (peroxyoctanoic acid) to 8 or more parts of peroxyacetic acid giving a level insufficient to cause an offensive odor (see column 14, lines 51-60 and column 42, lines 25-32). Formation of the use composition is performed with dilution by water with effective antimicrobial use compositions including 2 to 500ppm medium chain carboxylic acid (see column 43, lines 1-55). Man further teaches that compositions of use demonstrated effective antimicrobial activity with substantially reduced corrosion and increased stability at neutral or alkaline pH (see column 64, lines 36-67).
Hilgren is silent regarding use of peroxycarboxylic acids at a neutral or alkaline pH and is silent as to measurement and control aspects for the application of peroxycarboxylic acids.
McSherry is also silent regarding use of peroxycarboxylic acids at a neutral or alkaline pH, however, clearly teaches the known and expected use of measuring parameters such as concentration and providing control means to adjust to achieve desired levels of such parameters. It would have been obvious to implement measuring and control, as set forth in McSherry, in use of the compositions and recycling of Hilgren in order to ensure the efficacy of the use of those compositions.
Hilgren and McSherry both teach peroxycarboxylic acid compositions including both medium and short chain peroxycarboxylic acids in ratios as taught in Man, although, as noted above, neither disclose the use of such compositions at neutral or alkaline pH.
It would have been obvious to one of ordinary skill in the art to utilize the peroxycarboxylic acids solutions of the combination of Hilgren and McSherry at neutral or alkaline pH as taught in Man because they provide enhanced efficacy with few/lowered safety risks of VOC release, low flash points or unstable storage.
It would further have been obvious to employ the measurement and control of McSherry to determine and adjust for the desired pH taught by Man, to ensure the proper range is maintained as desired.
With respect to claims 1, 34, 36, 38, 40, 42, 51-56, 58-60, 66-73, 76, 79, 84, 86-89 and 106-108, all of Hilgren, McSherry and Man teach the use of an antimicrobial amount of a solution of peroxyacetic acid. As noted above McSherry clearly teaches monitoring and adjusting the concentration of the peroxyacetic acid solution in use and Man teaches a preferred pH range of from about 6 to about 14, including about 7 to about 13 or about 10. It would have been obvious to perform the monitoring and adjusting steps for pH in use as McSherry does for concentration in order to ensure the optimized pH range taught in Man is maintained. The preferred range of Man clearly encompasses the claimed range and is taught to provide enhanced efficacy without the release of VOC’s and with higher flash points and greater stability.
With respect to claims 2-3, 43-44 and 59-60, Man clearly teaches modes of introduction including first introducing the peroxyacetic acid solution and then introducing an alkalinity source or introducing them together in combination.
With respect to claims 4, 35, 37, 39, 41, 45, 57, 77 and 85, Hilgren explicitly teaches use of an antimicrobial concentration of peroxyacetic acid which substantially encompasses the claimed range of about 1 to about 99ppm or about 0.54 to about 99ppm.
With respect to claims 5-6, 9, 46-47, 50, 61-64, 74, 80-81 and 83, McSherry clearly teaches monitoring and adjusting the concentration of the peroxyacetic acid solution in use throughout the use process. It would have been obvious to one of ordinary skill in the art to do the same with the pH in order to maintain the pH in the effective range taught in Man during use. McSherry does not explicitly state that monitoring and adjusting are continuous, however, it would have been obvious to continuously monitor and adjust to ensure that the efficacy of the process is consistent throughout the extent thereof.
With respect to claims 7-8, 48-49, 65, 75, 78, 82 and 117-118, both Hilgren and McSherry teach removing and recycling peroxyacetic acid solution from the use tank. McSherry further clearly teaches that removal and recycle or introduction of new solution is used for maintaining the preferred parameters for the use solution.
With respect to claim 109-116, while the references are silent as to explicitly introducing the use solution at two different locations of a reservoir, both Hilgren and McSherry teach recycling of the use solution and it would have been obvious to introduce recycled/refreshed solution and newly created solution at two different location so that the potential for contamination of the newly created solution is prevented.
Further with respect to claim 112, Hilgren explicitly teaches use of an antimicrobial concentration of peroxyacetic acid which substantially encompasses the claimed range of about 0.54 to about 99ppm.
With respect to claims 114-116, Man teaches choosing an alkaline source of an alkali metal hydroxide such as sodium hydroxide or potassium hydroxide (see column 11, lines 7-22).
Related Proceedings
Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to timely apprise the Office of any prior or concurrent proceeding in which Patent No. 10,912,321 is or was involved. These proceedings would include any trial before the Patent Trial and Appeal Board, interferences, reissues, reexaminations, supplemental examinations, and litigation.
Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is material to patentability of the claims under consideration in this reissue application.
These obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1442.01 and 1442.04.
Communication
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KRISANNE M JASTRZAB whose telephone number is (571)272-1279. The examiner can normally be reached on 6:30-5pm (MT) Mon-Thurs.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisors, Jean Witz or Timothy Speer can be reached on 571-272-0927 or 313-446-4825 respectively. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained at https://patentcenter.uspto.gov/. Should you have questions on access to the Patent Center system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KRISANNE M JASTRZAB/Patent Reexamination Specialist
CRU 3991
Conferees:
/ELIZABETH L MCKANE/Specialist, Art Unit 3991
/T.M.S/Supervisory Patent Examiner, Art Unit 3991
Prosecution Insights