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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 17.
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities:
Page 1, line 20, of the submitted specification has a sentence that says “Partially” with no closing punctuation. Appropriate correction is required.
On page 9, line 14, of the submitted specification, “an utilization” should be “a utilization.”
Claim Objections
Claims 2–19 are objected to because of the following informalities:
Claim 2 recites “a gas-tight ripening room” (l. 3), which should employ the definite article since antecedent basis has already been provided for the term.
Claim 4 recites “fumigating with ethylene for a period, in a period,” where the second “a period” should be “the period” since it refers to the same period previously mentioned.
Each of claims 4, 5, 9–12, and 19 recite one or both of “CO2” and “O2” instead of “CO2” and “O2” as elsewhere in the claims and specification. For stylistic conformity, the claims should be amended to employ subscripts for the chemical formulae.
Claim 12 recites, “wherein one or more of an absolute CO2 concentration or a change in CO2 concentration is regulated by one or more of addition of ethylene, addition of O2, addition of nitrogen, or removal of CO2 and temperature.” Firstly, the claim should be amended to recite “a change in a CO2 concentration.” Secondly, the grammar of this claim is off because the claim seems to end by expressing “a removal of . . . temperature.” It seems instead that the claim is supposed to be understood as saying “is regulated by [additional or removal of gases] and temperature,” i.e. wherein temperature regulation is required. If this understanding is correct, Applicant should amend the end of the claim to recite “removal of CO2, and is regulated by temperature.”
Claims 3, 6–8, and 13–18 are objected to due to dependency upon an objected-to claim.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f). The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f). The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f), except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f), except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
The algorithm to determine a degree of ripeness in claim 15.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f), it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f), applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f).
Comment: Although the “control unit” of claim 3 is formulated as a limitation to be interpreted under § 112(f), it is not, since one of ordinary skill in the art would readily understand it to be a computer or microprocessor or the like. See MPEP § 2181.I.C.: “Examiners will apply 35 U.S.C. 112(f) to a claim limitation that uses the term ‘means’ or generic placeholder associated with functional language, unless that term is (1) preceded by a structural modifier, defined in the specification as a particular structure or known by one skilled in the art, that denotes the type of structural device (e.g., ‘filters’), or (2) otherwise modified by sufficient structure or material for achieving the claimed function.”
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.
Claims 2–19 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Independent claim 2 is indefinite because it is both directed to an apparatus and a method. See MPEP § 2173.05(p).II. In particular, the claim is indefinite because, although arranging fruits and measuring respiration activity could be performed in a gas-tight ripening room of a ripening chamber, the room or chamber itself cannot perform these functions. The claim should preferably be amended to strike the concept of the method being performed, and replace it with structure that would have the function to perform the method. This indefiniteness issue carries through further to each of dependent claims 4–19.
Claim 9 recites, “wherein in an intermediate phase, the method includes one or more of a fumigation with ethylene takes place, as soon as in the first phase, a constant increase in a CO2 concentration, or a constant decrease in an O2 concentration is measured.” Firstly, the claim contradicts itself by providing an intermediate phase (and details thereof), but following by mentioning that during this phase, it may be that “a fumigation with ethylene takes place, as soon as the first phase.” It’s unclear here whether a separate intermediate phase is required, or if this fumigation taking place during the first phase would satisfy the claim. Secondly, the claim ends by reciting that “a constant decrease in an O2 concentration is measured,” but it’s not clear if this measurement is meant to apply to both the O2 concentration limitation and the CO2 concentration limitation, or only to the O2 concentration limitation. If the former, the term “is measured” should be added after “CO2 concentration”; and if the latter, the term “takes place” should be added after “CO2 concentration.”
Claim limitation “algorithm” in claim 15 invokes 35 U.S.C. 112(f). However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The disclosure recites the term “algorithm” once, and it does not seem to be in reference to the same algorithm of claim 15. (If this “algorithm” in the specification is different, Applicant should add the algorithm of claim 15 to the specification to provide specification antecedent basis therefor). Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claim 17 recites, “wherein when fumigated with ethylene, an ethylene concentration is set in a range of 80 to 250 ppm.” The language “when fumigated with ethylene” treats said fumigation as something which has already been mentioned, but there is no antecedent basis for that function at this point in the claim tree because claim 17 depends from claim 2, which doesn’t mention any fumigation. Applicant may amend the claim to introduce an apparatus–method step of this fumigation, or make another appropriate amendment to provide antecedent basis for the concept.
Claim 3 is rejected due to dependency upon a rejected claim.
Comment: Claim 13 provides that “wherein a guidance or control of an ambient temperature in the ripening room and thus of the fruits takes place.” The claim seems to contradict itself, because a guided or controlled temperature would, by its very nature, not be an ambient temperature. However, the claim is sufficiently clear, in that what the ambient temperature is prior to guidance or control is subject to said guidance or control.
Claim Rejections — 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 2, 3, 5, 12, 14, and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Peacock et al. (AU 200025232 A1).
Claim 2: Peacock discloses a ripening chamber (p. 13, l. 2, “sealed storage environment”) for ripening and storing fruits (claim 1, “fruit”) comprising a gas-tight ripening room (p. 13, l. 2, “sealed storage environment”), wherein the ripening chamber is arranged to carry out a method comprising:
arranging fruits to be ripened in a gas-tight ripening room (plainly evident from abstract, “fruit storage environments”); and
measuring respiration activity of the fruits to be ripened during ripening in the gas-tight ripening room (p. 11, l. 20, “ethylene or acetylene sensitive sensor”).
Claim 3: Peacock discloses a sensor (p. 11, l. 20, “ethylene or acetylene sensitive sensor”; p. 8, ll. 13–14, “ethylene controller . . . capable of detecting the following fault conditions,” ll. 19–24, “ethylene concentration”) for measuring one or more of an ethylene concentration (ibid.), a CO2 concentration (p. 11, l. 29), an O2 concentration (p. 14, ll. 1–2), or a temperature inside the ripening room (p. 11, l. 32); and
a control unit (p. 12, ll. 7–22) for evaluating measured values from the sensor.
Claim 5: Peacock discloses guiding or controlling ripening as a function of a respiration of the fruits over one or more of a CO2 concentration, an O2 concentration, or an ethylene concentration in the gas-tight ripening room (see p. 11, l. 18 to p. 12, l. 22).
Claim 12: Peacock discloses that one or more of an absolute CO2 concentration or a change in CO2 concentration is regulated by one or more of addition of ethylene, addition of O2, addition of nitrogen, or removal of CO2 and temperature (p. 6, ll. 24–27; p. 7, ll. 26–29).
Claim 14: Peacock discloses that the measurement of parameters is carried out continuously or at intervals (p. 16, l. 7, “continuous monitoring”).
Claim 15: Peacock discloses that a color impression is measured manually or automatically or optionally assigned by an algorithm to a degree of ripeness described by a ripening number (these features seem to be the result of a user’s actions, especially the manual measurement, which puts the claim further into the issues raised in the § 112(b) rejection above; that the algorithm is not disclosed makes interpreting that limitation difficult; Peacock is such that a user would be able to manually determine a degree of ripeness of fruit in the room by observation).
Claim Rejections — 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
Claims 6–11, 13, 17, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Peacock as applied to claims 2 and 5 above, and further in view of Jeong (US Pub. 2014/0072682).
Claim 6: Peacock does not disclose that the ripening room a predetermined ethylene concentration is set or regulated, which is varied over a duration of the method.
However, Jeong discloses a similar apparatus, where a predetermined ethylene concentration is set or regulated, which is varied over a duration of the method (see the times and ethylene levels described in ¶ 43).
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to implement the varying ethylene levels taught by Jeong into Patrick as it aids in accelerating the ripening of bananas.
Claim 7: Modified as per claim 6 above, Jeong discloses that after a predetermined period of time, the ethylene concentration at a lower level is kept constant, at most at a concentration of 50 ppm (¶ 43 describes that its latter phases involve the removal of ethylene, up to the removal of 99.999% of total ethylene, which would bring that value below 50 ppm given the ethylene ppm values discussed earlier in the paragraph).
Claim 8: Modified as per claim 6 above, Jeong discloses that the method further comprises a plurality of phases (see ¶ 43), which are characterized by their gas concentrations (ibid.), wherein in a first phase, a steady increase is measurable (the apparatus of Peacock modified by Jeong would be capable of measuring a steady increase at such a first phase; as discussed in the § 112(b) rejection, this apparatus claim is not limited by intended method steps, only the structure required to perform the function in the method steps).
Claim 9: Modified as per claim 6 above, Jeong discloses that in an intermediate phase (¶ 43 discloses at least one phase which can be considered intermediate; see also the § 112(b) rejection above), the method includes one or more of a fumigation with ethylene takes place, as soon as in the first phase (¶ 43, “first treating the bananas with exogenous ethylene gas”), a constant increase in a CO2 concentration, or a constant decrease in an O2 concentration is measured (the apparatus of Peacock modified by Jeong would be capable of measuring a constant increase in a CO2 concentration or a constant decrease in an O2 concentration; as discussed in the § 112(b) rejection, this apparatus claim is not limited by intended method steps, only the structure required to perform the function in the method steps).
Claim 10: Modified as per claim 6 above, Jeong discloses that the method further comprises a plurality of phases (see ¶ 43), which are characterized by their gas concentrations (ibid.), wherein in a final phase, no increase in a CO2 concentration in the ripening room is measurable (¶ 43 discloses a phase which may be considered a final phase; the apparatus of Peacock modified by Jeong would be capable of measuring no increase in a CO2 concentration; as discussed in the § 112(b) rejection, this apparatus claim is not limited by intended method steps, only the structure required to perform the function in the method steps).
Claim 11: Modified as per claim 6 above, Jeong discloses discloses that, in the final phase, one or more of the CO2 concentration or an O-2 concentration is kept constant (¶ 43, “during the storage the bananas are periodically ventilated to remove excess CO2 and help maintain O2 levels”).
Claim 13: Modified as per claim 6 above, Jeong discloses that a guidance or control of an ambient temperature in the ripening room and thus of the fruits takes place (¶ 43 clearly discloses temperature control).
Claim 17: Modified as per claim 6 above, Jeong discloses that when fumigated with ethylene, an ethylene concentration is set in a range of 80 to 250 ppm (¶ 43 provides numerous ethylene fumigation ppm values between 80 and 250 ppm).
Comment: This limitation is technically non-limiting because it is a contingent limitation. See MPEP § 2111.04.II. The limitation also has its own indefiniteness aspect related to the § 112(b) rejection above, in that the claim is unclear what is doing the fumigation.
Claim 18: Modified as per claim 6 above, Jeong discloses that after a predetermined period of time, the ethylene concentration at a lower level is kept constant, at most at a concentration of 30 ppm (¶ 43 describes that its latter phases involve the removal of ethylene, up to the removal of 99.999% of total ethylene, which would bring that value below 30 ppm given the ethylene ppm values discussed earlier in the paragraph).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Peacock as applied to claim 2 above, and further in view of Gäbler (US Pub. 2003/0150334)
Peacock does not disclose that the measurement of the degree of ripeness is part of a control loop within the method.
However, Gäbler discloses a similar system, and discloses that a measurement of a degree of ripeness is part of a control loop (see abstract, and ¶ 41, “a mean degree of ripeness of parts of the load in the storage space is determined continually or intermittently”).
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to employ the ripeness determination and feedback control taught by Gäbler into Peacock to provide a system with improved automatic control of the ripening process.
Allowable Subject Matter
Claims 4 and 19 would be allowable if rewritten to overcome the objections, as well as the rejections under 35 U.S.C. 112(b), set forth in this Office action, and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
The prior art of record does not disclose or suggest, alone or in combination, a gas-tight ripening room with structure configured to vary a concentration of ethylene depending on an increase in CO2 concentration or a decrease in O2 concentration.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to John J. Norton whose telephone number is (571) 272-5174. The examiner can normally be reached 9:00 AM to 5:00 PM EST.
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/JOHN J NORTON/ Primary Examiner, Art Unit 3761
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