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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 07/03/2025 has been entered.
Status of Claims
Claims 1-16 are pending in this application. Claims 1-14 and 16 are under examination. Claim 15 is withdrawn. Any objections or rejections not repeated below have been withdrawn.
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 1-5, 7, 9-14 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Zhao et al. (US 20160002483, cited on IDS 03/07/2023), in view of Williams et al. (US 20160324172), Li (CN 1891058) and in further view of Petcavich (US 20080026120).
Regarding independent claim 1, Zhao teaches an edible formulation (edible coatings/films; Abstract, [0010]) for the application to fruit (i.e. capable of application to fruit; claim 14, [0010], [0030]).
Zhao teaches additive agents such as emulsifiers/surfactants and does not limit the type of emulsifiers that can be used [0162]. However, Zhao does not specifically teach sucrose esters of fatty acids.
Williams teaches an edible formulation (coating; Abstract, [0028]) for the application to fruit (i.e. capable of application to fruit; claim 1, [0025]). Williams teaches the edible formulation comprises sucrose esters of fatty acids from 0.001-5% (surfactant/emulsifier; Claim 7, [0032]), which encompasses the claimed amount of 0.05%. 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). Williams states that sucrose esters of fatty acids has good solubility in water, as well as high adherence and coating uniformity on the surface of produce [0096] [0111], [0120].
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 Zhao in view of Williams to include the claimed amount of sucrose esters of fatty acids because it has good solubility in water, as well as high adherence and coating uniformity on the surface of produce, as recognized by Williams [0096] [0111], [0120].
Zhao teaches the edible formulation comprises 0-2% a cellulose derivative (methyl cellulose, carboxymethyl cellulose or other cellulose derivatives; [0163]), which encompasses the claimed amount of 0.02% cellulose derivative. See MPEP 2144.05(I).
Zhao discloses the formulation comprises glycol from 0-10% (plasticizers such as glycerin and propylene glycol; [0162-0163]), which encompasses the claimed amount of 0.05%. See MPEP 2144.05(I).
Zhao discloses the formulation comprises an alcohol but does not state the amount [0162].
Li teaches an edible formulation (film; Abstract) for the application to fruit (i.e. capable of application to fruit; claim 1, Abstract). Li teaches the edible formulation comprises 0-10% alcohol (claim 1, Abstract), which encompasses the claimed amount of 0.05%. See MPEP 2144.05(I). Li recognizes the claimed amount of alcohol as having good water-solubility, easy to wash off and if directly eaten by mistake will not affect the digestive tract but can be discharged from the body wholly (Abstract).
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 Zhao in view of Williams and Li by adding the claimed amount of alcohol because it has good water-solubility, is easy to wash off and if directly eaten by mistake will not affect the digestive tract but can be discharged from the body wholly, as recognized by Li (Abstract).
Zhao further teaches the formulation comprises 0.02-10% glucose polymer (cellulose nanomaterial; [0163]), which encompasses the claimed amount of 0.03%. See MPEP 2144.05(I).
Zhao discloses 0.01-0.5% potassium sorbate (claim 11, [0162], [0237], [0268]) in the formulation, which has the same endpoint as the claimed amount of 0.01%.
Zhao discloses the formulation containing a defoamer but does not state the amount [0162].
Petcavich teaches an edible formulation (coating; Abstract, [0001], [0019]) for the application to fruit (i.e. capable of application to fruit; [0019]). Petcavich teaches the edible formulation comprises 0.02% defoamer (antifoaming agent; Claim 6, [0025]), which is the claimed amount of 0.02%. Petcavich recognizes that the defoamer reduces foaming and eliminates delay when blending the ingredients of the formulation [0030].
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 Zhao in view of Williams, Li and Petcavich by adding the claimed amount of defoamer, to reduce the foaming and eliminate delay when blending the ingredients of the formulation, as recognized by Petcavich [0030].
Zhao teaches the composition comprises a phospholipid (additive agent such as an emulsifier/surfactant; [0073], [0162]). Zhao discloses the phospholipid (additive agent such as an emulsifier/surfactant) in the composition can be modified as necessary and may be in an amount ranging from about 0.01% to about 100% of the amount of the cellulose nanomaterial used, or can be in the range of about 0.1% to about 10% phospholipid (additive agent such as an emulsifier/surfactant) in the composition [0071], [0163]. This overlaps the claimed range of about 1-30% phospholipid in the composition. See MPEP 2144.05(I).
Zhao further discloses water in the formulation (dispersing components in water; [0180-0181]).
Regarding claim 2, Zhao’s teaching of glycerin and propylene glycol as discussed above with respect to claim 1, reads on glycol as claimed.
Regarding claim 3, Zhao’s teaching of methyl cellulose and carboxymethyl cellulose as discussed above with respect to claim 1, reads on cellulose derivative as claimed.
Regarding claim 4, Zhao teaches an antioxidant [0073], [0145].
Regarding claim 5, Zhao teaches the formulation can include butylated hydroxyanisole (BHA) and butylated hydroxytoluene (BHT) [0157].
Regarding claims 7 and 9, Zhao teaches an antifungal agent from a natural extract of cinnamon and clove (antimicrobial agents from essential oils, cinnamon and clove oil; [0162]).
Regarding claim 10, Zhao teaches the formulation can include butylated hydroxyanisole (BHA) and butylated hydroxytoluene (BHT) [0157], which are considered anti-scald agents, see Applicant’s specification pg. 6 lines 13-16, which discloses anti-scald compounds, such as butylated hydroxyanisole (BHA) and butylated hydroxytoluene (BHT).
Regarding claim 11, Zhao teaches the formulation comprises at least one biocide or disinfectant (antimicrobial agent; [0087], [0162]).
Regarding claim 12, the claim recites “wherein the edible formulation is further diluted in water at a concentration comprised between 0.1% to 10%” is construed to be directed towards the intended use of the claimed formulation. As long as the prior art formulation is capable of performing the intended use, then it meets the claim. The composition of Zhao in view of Williams, Li and Petcavich is a liquid, as shown by the rejection above, and is capable of being further diluted in water at any concentration including a concentration between 0.1-10% (v/v). Therefore, the composition of Zhao in view of Williams, Li and Petcavich is considered to meet the claim.
Nevertheless, Zhao teaches the formulation is diluted in water (dissolution in deionized water; [0213] at a concentration ranging from 0.188-2% (Table 4 pg. 20, Table 8 pg. 22 [0213]), which is in the claimed range of diluting in water at a concentration between 0.1% to 10%.
Regarding claims 13 and 14, the claim recitations “is applied via a drencher, basin, loader or preparation water lines” and “is applied via spray, pulverization or fumigation” are construed to be directed towards the intended use of the claimed formulation. As long as the prior art formulation is capable of performing the intended use, then it meets the claim. The composition of Zhao in view of Williams, Li and Petcavich is further diluted, as shown in rejection 12 above, and is capable of being applied by all methods recited in claims 13 and 14. Therefore, the composition of Zhao in view of Williams, Li and Petcavich is considered to meet the claim
Further, regarding claim 13, even though claim 13 is considered met since it is capable of being applied by all methods recited in claim 13, regardless, Zhao discloses the diluted formula, which is in liquid form because of the addition of water as recited claims 1 and 12, is applied (i.e. capable of application) via a basin (dipping; [0077]). The dipping of the fruit of Zhao would occur or is capable of occurring in a basin.
Further, regarding claim 14, even though claim 14 is considered met since it is capable of being applied by all methods recited in claim 14, regardless, Zhao discloses the diluted formulation is in aerosol form (i.e. is a liquid capable of being aerosolized) and is applied (i.e. capable of application) via a spray [0077].
Regarding claim 16, Zhao teaches the phospholipid (additive agent such as an emulsifier/surfactant) is lecithin [0162].
Claims 6 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Zhao et al. (US 20160002483), in view of Williams et al. (US 20160324172), Li (CN 1891058), Petcavich (US 20080026120) as applied to claims 1, 4 and 7 above, and further in view of Sardo (US 20060228458, cited on IDS 03/07/2023).
Regarding claim 6, Zhao does not teach the antioxidant comprises diphenylamine, methyldiphenylamine, ethoxyquin or a combination thereof.
Sardo teaches an edible formulation (composition; [0001], [0018]) for the application to fruit (i.e. capable of application to fruit; [0001], [0018-0019]). Sardo teaches the edible formulation comprises the antioxidants diphenylamine and ethoxyquin to delay degradation of the fruit to the greatest possible extent (claim 11, [0005], [0027]).
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 Zhao in view of Williams, Li, and Petcavich to incorporate the teachings of Sardo by adding diphenylamine and ethoxyquin, to delay degradation of the fruit to the greatest possible extent with these commonly used antioxidants, as recognized by Sardo [0005].
Regarding claim 8, Zhao does not teach the antifungal agent comprises imazalil, tiabendazole, pyrimethanil, fludioxonil, benzimidazoles, imidazoles, strobilurins, phthalimides, iprodione, vinclozolins, carboximides or a combination thereof.
Sardo teaches the edible formulation comprises imazalil, which delays degradation of the fruit to the greatest possible extent with this commonly used fungicidal substance (claim 11, [0005], [0027]).
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 Zhao in view of Williams, Li, and Petcavich to incorporate the teachings of Sardo by adding imazalil, to delay degradation of the fruit to the greatest possible extent with this commonly used fungicidal substance, as recognized by Sardo [0005].
Response to Arguments
Applicant's arguments filed July 3, 2025 have been fully considered but they are not persuasive.
Claim Rejections Under 35 U.S.C. § 103
Applicant argues, on pgs. 6-7 of their remarks, that the references are silent to any teaching of a phospholipid. Applicant states that none of the references disclose or suggests incorporating a phospholipid, let along lecithin at the claimed range. However, the Office disagrees for the following reasons.
As shown in the rejection above, Zhao teaches the composition comprises a phospholipid (additive agent such as an emulsifier/surfactant) where the phospholipid is lecithin [0162]. Zhao also teaches the phospholipid overlaps the claimed range; the phospholipid can be in the range of about 0.1% to about 10% phospholipid (additive agent such as an emulsifier/surfactant) in the composition [0071], [0163]. See MPEP 2144.05(I).
Applicant argues, on pg. 7 of their remarks, that a reference is analogous only if it is from the same field of endeavor or it addresses the same problem. Applicant states the compositions of Li, Zhao and Petcavich are not in the same field nor do they address the same technical problem. However, the Office disagrees for the following reasons.
Zhao is directed to a composition that relates to the field of protective coatings, particularly coatings for plants, plant parts and foodstuffs [0002]. Li teaches a composition for coating fruit and vegetables (Heading Technical Field 1st paragraph). Petcavich teaches a composition that coats the exterior surface of fresh produce (Abstract). The instant specification teaches an edible coating composition that coats fruits and vegetables (pg. 1 L14-21). All three references, Zhao, Li and Petcavich, and the instant specification teach a composition that is used for coating plants. Thus, all the references are considered analogous since they are from the same field of endeavor, namely a composition for the coating of plants.
Conclusion
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759