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 .
Claim Interpretation
Applicant’s claims use comprising language which is open-ended and does not exclude anything including other agents or other steps from their method. For example, the comprising transitional phrase does not exclude a spike of hydrogen peroxide initially from the claimed device or a different device, e.g. the sachets of Erickson.
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 122-139 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 122, 129, 131 all recite wherein the hydrogen peroxide is substantially free of ozone, plasma species, and organic species. The term “substantially” in claims 122, 129, and 131 is a relative term which renders the claim indefinite. The term “substantially” 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. Thus it is unclear what it meant by substantially free of ozone, plasma species, and organic species. Do applicants mean for the hydrogen peroxide to comprise less than 30% of these (ozone, etc.) or less than 20% of these things (ozone, etc.) or less than 1% of ozone, etc.? Thus, the metes and bounds of applicant’s claims are unclear.
Claims 123-128, 130, and 132-139 are also rejected because they depend either directly or indirectly from the above claims and do not resolve the ambiguities in those claims.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 122-127, 129-130, 135-138 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 18-19 of U.S. Patent No. 9808013 (‘013) in view of Erickson (WO2015139075), Lee (US8168122), The kitchn (https://www.thekitchn.com/food-science-ethylene-gas-130275, 2010), and grower direct (https://www.growerdirect.com/flower-care-ethylene-gas, cached wayback machine 08/20/2010), and McVey et al. (WO2005094909).
‘013 teaches methods of providing a dilute hydrogen peroxide gas at final concentrations of at least 0.1 ppm and/or up to 5 ppm to a shipping container and maintaining the purified hydrogen peroxide gas during shipping of the container and controlling arthropods in agricultural products during this time, wherein said agricultural products which are being treated with the same PHPG/DHP hydrogen peroxide gas instantly claimed are selected from fruits, vegetables, and nuts which read on the instantly claimed fruits and vegetables, and wherein the hydrogen peroxide gas is at the same concentration as instantly claimed and wherein the hydrogen peroxide gas is provided to the shipping container and the agricultural products contained therein in amounts effective for controlling pests/arthropods, and wherein these amounts are the same amounts that are instantly disclosed as being effective for inhibiting an ethylene response, specifically ripening, senescence, abscission, etc. during storage/shipping or in cut flowers in storage/shipping.
‘013 does not teach wherein their application of hydrogen peroxide gas to fruits and vegetables and nuts or cut flowers in shipping containers is for inhibiting an ethylene response, specifically ripening, senescence, abscission, etc. during storage/shipping. ‘013 also does not claim wherein their method comprises the claimed steps (a), (b), etc. exactly as claimed.
However, ‘013 teaches wherein the same concentrations of dilute hydrogen peroxide gas are applied to the same enclosed areas containing fruits and vegetables which broadly read on the specific fruits and vegetables that are instantly claimed. Thus, the method of ‘013 is already accomplishing applicants claimed inhibiting the ethylene response, specifically ripening, and specifically preventing premature aging of crops whether or not the prior art recognized this feature as this would be a result effective of applying the claimed concentration of dilute hydrogen peroxide gas to the same enclosed containers containing the same agricultural products which are instantly claimed. However, these deficiencies in ‘013 are further addressed by Erickson, Lee, The kitchn, and grower direct, and McVey.
Erickson teaches that it was known in the art to vaporize hydrogen peroxide (produced from absorption of water in the air which reacts with the percarbonate in the sachet) wherein the vaporized hydrogen peroxide vapor is present in amounts of less than 1 ppm, specifically <0.5 ppm, which reads on the claimed between 0.05 and 0.1 ppm and which is known to break down ethylene in the air/environment of a closed room/cool room and thereby inhibit ripening and/or senescence by destroying/removing any ethylene release from the agricultural products/fruits/vegetables and stored horticultural products (which broadly includes the claimed plants, cut flowers, edible potted plants, etc. claimed) and that ethylene can be removed and/or reduced from plants by application of hydrogen peroxide which would also obviously inhibit ripening and/or senescence of the plants/fruits/vegetables present in the cool room/refrigerated space/ambient room such as food storage or handing areas, shipping containers, etc. (See entire document; [0043]; [0052]; [0059-0060]; [0038-0044]; [0059-0062]; abstract; [0001]; Claims; [0008]; [0019]; [0016]) which reads on instant claims 1, 4-5, 10, 15, 17-18 (See pg. 11, left col. first 6 lines and figure 2; abstract; etc. entire document). Erickson further teaches wherein the hydrogen peroxide vapor can be used to treat fruits/vegetables which are stored at room temperature or in a cold storage and which are in shipping containers, (See entire document; [0043]; [0052]; [0059-0060]; [0038-0044]; [0059-0062]; abstract; [0001]; Claims; [0008]; [0019]; [0016];) and as discussed above teaches wherein the hydrogen peroxide destroys/removes any ethylene present thereby obviously inhibiting ripening and/or decay/senescence of the fruit/vegetables/agricultural and horticultural products contained therein (because ethylene is known to induce ripening/senescence as is taught by Erickson).
Erickson teaches methods of protecting fruits or vegetables comprising providing dilute hydrogen peroxide vapor in concentrations of less than <1 ppm, specifically even <0.5 ppm ([0043]; [0052]) to an enclosed environment, e.g. refrigerator, cold storage rooms, storage containers, etc. and wherein ethylene is removed.
Lee teaches PHPG producing/generating devices which can continuously provide/introduce a steady dilute stream purified hydrogen peroxide gas that is same as is instantly claimed and are capable of output of 240 cubic feet/minute, etc. and wherein the PHPG/DHP is not hydrated and comprises less than 0.015 ppm and is substantially free of organic species, plasma species, and is used in amounts up to/a final concentration of up to 0.10 ppm that is effective for disinfecting surfaces and/or the air and does not limit what these surfaces are (see entire document; abstract; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; figures; Examples e.g. Col 10-13). Lee also teaches using their device to produce DHP gas is done at relative humidity of greater than about 1% (See Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35; etc.). Because Lee’s device continuously provides a dilute stream of PHPG in the claimed concentrations to an enclosed environment it is obviously generating a steady state dilute stream of PHPG from the device which is released into the enclosed environment. Lee further teaches wherein there is a fan associated with their PHPG producing device which is used to at least partially discharge the hydrogen peroxide gas as claimed in claims 135, 137-138 and wherein the PHPG producing device is a stand-alone device with an enclosure and a fan disclosed in the enclosure and/or associated with the PHPG producing device and because the device can be continuously used in occupied areas the concentration of up to 10 ppm can be maintained for at least 15 minutes (specifically they teach treating for hours) as is now claimed since the device can continuously produce the PHPG/DHP (see entire document; figures; claims; Col. 12, ln. 32-42; Col. 4, ln. 8- Col.6, ln. 62; Col. 11, ln. 3-35; Col. 12, ln. 66-Col. 13, ln. 10, tables in Col. 13; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; Examples e.g. Col 10-13; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35).
Lee teaches PHPG producing devices which can continuously generate and introduce/provide dilute purified hydrogen peroxide gas (e.g. the claimed steady-state dilute stream) that is same as is instantly claimed and are capable of output of 240 cubic feet/minute, etc. and wherein the PHPG/DHP is not hydrated and comprises less than 0.015 ppm and is substantially free of organic species, plasma species, and is used in amounts up to/a final concentration of up to 0.10 ppm that is effective for disinfecting surfaces and/or the air and does not limit what these surfaces are (see entire document; figures; abstract; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; figures; Examples e.g. Col 10-13). Lee also teaches using their device to produce DPHP gas is done at relative humidity of greater than about 1% (See Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35; etc.).
McVey teaches that it was known to install hydrogen peroxide gas/vapor producing devices into a HVAC system for circulation with the HVAC fans using the ductwork, so that the HVAC system and its ductwork and its fans can be used to deliver the gas into the area/enclosed area having the HVAC system for decontamination where needed/required/desired (see pg. 8, ln. 11-15; pg. 9, ln. 30-pg. 10, ln. 3).
It would have been obvious to one of ordinary skill in the art at the time of the instant invention to use the methods of ’013 to inhibit an ethylene response (e.g. ripening), and/or inhibit the ripening process in fruits and vegetables using the claimed method because ’013 teaches the exact same method steps comprising the exact same concentrations of hydrogen peroxide gas (which would read on the dilute H2O2 gas instantly claimed) and wherein the gas is applied to the exact same closed environments and the exact same fruits/plants/agricultural products instantly claimed and wherein the concentration of H2O2 gas is the same as the instantly claimed concentrations. Thus, one of ordinary skill in the art would conclude that the claimed methods were already known and being accomplished in the prior art especially since Erickson teaches that it was known in the art to use hydrogen peroxide to reduce or remove ethylene from fruits and vegetables, agricultural products, horticultural products in storage to inhibit ripening/senescence (e.g. rotting/spoilage), and as evidenced by The kitchn it would be obvious to use the claimed device to remove the ethylene from storage areas with apples, tomatoes, avocados, etc. because they produce ethylene which will trigger ripening senescence/deterioration/spoilage/rotting in any fruits/vegetables also stored with them (e.g. asparagus, cabbage, etc.) (see entire document), and to remove ethylene that is present in the environment containing cut flowers because cut flowers such as carnations are sensitive to ethylene which causes petal drop, premature death, irregular bud opening, etc. and causes huge losses of flowers in the industry as is taught by grower direct (See grower direct entire document; ethylene and its effect on flowers section; what flowers are effected, etc.), and Lee and McVey together teach using the claimed devices providing applicant’s claimed (a)-(c), etc. in HVAC to provide an easy way to continuously provide the hydrogen peroxide to enclosed areas in need thereof.
Thus, it would have been obvious that U.S. Patent No. 9808013 (‘013) in view of the combined references discussed above is already accomplishing the claimed method when the agricultural products including fruits and vegetables, etc. of US9808013 are being treated/contained in the enclosed environment to control arthropods when taken in view of the combined references above.
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, 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 122-127, 129-130, 135, 137-138 is/are rejected under 35 U.S.C. 103 as being unpatentable over Erickson et al. (WO2015139075, with priority to 03/18/2014), in view of Lee (US8168122), Kendall et al. (https://web.archive.org/web/20120204121707/https://nchfp.uga.edu/how/dry/csu_dry_fruits.pdf), Bob’s Market (https://www.bobsmarket.com/blog/bsmarketblog.com/2011/08/benefits-of-hydrogen-peroxide.html), The kitchn (https://www.thekitchn.com/food-science-ethylene-gas-130275, 10/21/2010), grower direct (https://web.archive.org/web/20100820105856/https://www.growerdirect.com/flower-care-ethylene-gas, cached wayback machine 08/20/2010).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 122-124, 126-127, 129-130, Erickson teaches that it was known in the art to vaporize hydrogen peroxide (produced from absorption of water in the air which reacts with the percarbonate in the sachet) wherein the vaporized hydrogen peroxide vapor/gas is present in amounts less than 1 ppm, which reads on the claimed up to 10 ppm and which is known to break down/remove ethylene in the air/environment of a closed room/enclosed space (e.g. cool room, shipping container, storage container, etc.) which reads on the claimed reducing ethylene levels and thereby inhibits ethylene response in agricultural products e.g. ripening and/or senescence by destroying/removing any ethylene release from the agricultural products/fruits/vegetables and stored horticultural products (which broadly includes the claimed plants, cut flowers, edible potted plants, etc. claimed) and that ethylene can be removed and/or reduced from plants by application of hydrogen peroxide which would also obviously inhibit ripening and/or senescence of the plants/fruits/vegetables present in the cool room/refrigerated space/ambient room such as food storage or handing areas, shipping containers, etc. (See entire document; [0043]; [0052]; [0059-0060]; [0038-0044]; [0059-0062]; abstract; [0001]; Claims; [0008]; [0019]; [0016]; Examples). Erickson teaches wherein the hydrogen peroxide destroys/removes any ethylene present thereby obviously inhibiting the ethylene responses by inhibiting ripening and/or decay/senescence of the fruit/vegetables/agricultural and horticultural products contained therein (because ethylene is known to induce ripening/senescence/spoiling/rotting as is taught by Erickson).
Regarding claims 129-130, Erickson teaches methods of protecting fruits or vegetables comprising providing dilute hydrogen peroxide vapor/gas in concentrations of <1 ppm and even < 0.5 ppm ([0043]; [0052]) to an enclosed environment, e.g. refrigerator, cold storage rooms, storage containers, etc. and wherein ethylene is removed (See entire document; [0043]; [0052]; [0059-0060]; [0038-0044]; [0059-0062]; abstract; [0001]; Claims; [0008]; [0019]; [0016]; Examples). Erickson does not specifically teach that the protecting comprises converting ethylene gas produced by the fruits or vegetables to carbon dioxide and water before the ethylene gas can promote decay. However, as Erickson teaches treating vegetables/fruits, agricultural and horticultural products and/or enclosed environments which contain these products (e.g. reads on treating the environment prior to introducing the agricultural product to the treated enclosed environment) with dilute hydrogen peroxide vapor/gas in the same concentrations as are instantly claimed and because Erickson specifically teaches wherein the ethylene is removed and as such would inhibit ripening and senescence (decay) (because Erickson teaches that ethylene promotes ripening and spoilage) it would have been obvious that the claimed method for protecting a fruit or vegetable of claim 129 is already being accomplished in Erickson which teaches treating/releasing dilute hydrogen peroxide vapor in the instantly claimed concentrations to enclosed environments to remove ethylene. Erickson further teaches wherein the protection provided by the dilute hydrogen peroxide gas/vapor released in compositions which read on those instantly claimed also includes preventing/inhibiting bacterial, mold, and fungal contamination of agricultural products/horticultural products which broadly reads on preventing or inhibiting contamination of said fruit or vegetable growing in said enclosed environment by a virus or bacterium or fungi which reads on claim 130 ([0003]; [0004]; [0015]; [0019]; [0043]; [0052]; [0059-0062]; [0038-0044]; [0059-0062]; abstract; [0001]; Claims; [0008]; [0016]).
Regarding claims 122, 129-130, Erickson teaches using/releasing dilute hydrogen peroxide vapor of the claimed concentrations in enclosed environments at ambient temperature, e.g. food storage facilities, storage containers, etc. which contain agricultural products including fruits and vegetables and wherein the dilute hydrogen peroxide vapor removes the ethylene present from the fruits and vegetables and thereby inhibit senescence/rotting/spoiling (see [0038-0044]; [0003]; [0004]; [0017-0019]; [0043]; [0052]; [0059-0060]; [0059-0062]; abstract; [0001]; Claims; [0008]; [0019]; [0016]; abstract).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Regarding claims 122-127, 129-130, 135, and 137-138, Erickson does not teach wherein the hydrogen is provided as dilute purified hydrogen peroxide (DHP) gas or wherein the DHP concentration in the enclosed environment is maintained nor do they specifically teach that their hydrogen peroxide generates a steady-state dilute stream as claimed in new steps (a), (b), or the discharging is done at least partially by a fan associated with the PHPG device or wherein the agricultural product is one of the specifically claimed products, etc. However, these deficiencies in Erickson are addressed by Lee and The kitchn. The examiner also notes that the instant claims use comprising language and as such do not exclude additional steps e.g. an intial spike/burst of hydrogen peroxide gas/vapor as is used in Erickson.
Lee teaches PHPG producing/generating devices which can continuously provide/introduce a steady dilute stream purified hydrogen peroxide gas that is same as is instantly claimed and are capable of output of 240 cubic feet/minute, etc. and wherein the PHPG/DHP is not hydrated and comprises less than 0.015 ppm and is substantially free of organic species, plasma species, and is used in amounts up to/a final concentration of up to 0.10 ppm that is effective for disinfecting surfaces and/or the air and does not limit what these surfaces are (see entire document; abstract; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; figures; Examples e.g. Col 10-13). Lee also teaches using their device to produce DHP gas is done at relative humidity of greater than about 1% (See Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35; etc.). Because Lee’s device continuously provides a dilute stream of PHPG in the claimed concentrations to an enclosed environment it is obviously generating a steady state dilute stream of PHPG from the device which is released into the enclosed environment. Lee further teaches wherein there is a fan associated with their PHPG producing device which is used to at least partially discharge the hydrogen peroxide gas as claimed in claims 135, 137-138 and wherein the PHPG producing device is a stand-alone device with an enclosure and a fan disclosed in the enclosure and/or associated with the PHPG producing device and because the device can be continuously used in occupied areas the concentration of up to 10 ppm can be maintained for at least 15 minutes (specifically they teach treating for hours) as is now claimed since the device can continuously produce the PHPG/DHP (see entire document; figures; claims; Col. 12, ln. 32-42; Col. 4, ln. 8- Col.6, ln. 62; Col. 11, ln. 3-35; Col. 12, ln. 66-Col. 13, ln. 10, tables in Col. 13; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; Examples e.g. Col 10-13; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35).
The kitchn teaches that it was known that ethylene causes ripening, over-ripening, senescence/rotting/spoilage of fruits and vegetables, and that fruits/vegetables that produce ethylene, e.g. peaches, avocados, etc. are routinely stored separately from fruits that are ethylene sensitive (cucumber, asparagus, etc.) so as not to cause them to prematurely ripen, over-ripen, senesce/spoil/rot (see entire document), and that if you need produce to ripen faster ethylene is used (See entire document).
Regarding claims 129-130, Erickson does not specifically teach wherein the protecting of the fruits and vegetables further comprises preventing or inhibiting contamination of said fruit or vegetable which are growing in said enclosed environment by a virus or bacterium with the DHP gas instantly claimed or the newly claimed steps of claims 129-130. These deficiencies are addressed by Lee, Kendall, and Bob’s Market.
Kendall teaches that it was known that traditional methods of disinfecting fruit/vegetables (e.g. apples, grapes, peaches, pears, tomatoes, bananas, etc.) prior to drying/air drying in order to control/remove/kill potentially harmful bacteria and/or prevent spoiling, etc. have been linked with intiating asthmatic reactions in people with asthma (See Kendall: selecting and pre-treating fruits pg. 1-2, particularly sodium metabisulfite pretreatment; Table 1).
Lee teaches PHPG producing/generating devices which can continuously provide/introduce a steady dilute stream purified hydrogen peroxide gas that is same as is instantly claimed and are capable of output of 240 cubic feet/minute, etc. and wherein the PHPG/DHP is not hydrated and comprises less than 0.015 ppm and is substantially free of organic species, plasma species, and is used in amounts up to/a final concentration of up to 0.10 ppm that is effective for disinfecting surfaces and/or the air and does not limit what these surfaces are (see entire document; abstract; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; figures; Examples e.g. Col 10-13). Lee also teaches using their device to produce DHP gas is done at relative humidity of greater than about 1% (See Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35; etc.). Because Lee’s device continuously provides a dilute stream of PHPG in the claimed concentrations to an enclosed environment it is obviously generating a steady state dilute stream of PHPG from the device which is released into the enclosed environment. Lee further teaches wherein there is a fan associated with their PHPG producing device which is used to at least partially discharge the hydrogen peroxide gas as claimed in claims 135, 137-138 and wherein the PHPG producing device is a stand-alone device with an enclosure and a fan disclosed in the enclosure and/or associated with the PHPG producing device and because the device can be continuously used in occupied areas the concentration of up to 10 ppm can be maintained for at least 15 minutes (specifically they teach treating for hours) as is now claimed since the device can continuously produce the PHPG/DHP (see entire document; figures; claims; Col. 12, ln. 32-42; Col. 4, ln. 8- Col.6, ln. 62; Col. 11, ln. 3-35; Col. 12, ln. 66-Col. 13, ln. 10, tables in Col. 13; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; Examples e.g. Col 10-13; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35).
Lee teaches devices which can continuously provide dilute purified hydrogen peroxide gas that is same as is instantly claimed e.g. is not hydrated and comprises less than 0.015 ppm and is substantially free of organic species, plasma species, and is used in amounts up to/a final concentration of up to 0.10 ppm that is effective for disinfecting surfaces and/or the air and does not limit what these surfaces are (see entire document; abstract; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7). Lee also teaches using their device to produce DPHP gas is done at relative humidity of greater than about 1% (See Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; etc.).
Bob’s Market teaches that it was known to treat soil and plants (by applying the dilute hydrogen peroxide to the soil mix or onto plants to kill harmful bacteria, viruses and fungi that can grow on plants or in the soil, and that it can be used in more concentrated amounts in growing areas (e.g. applying it to various surfaces in greenhouses which might become contaminated with pathogenic bacteria and fungi) in order to control and kill fungal pathogens, bacterial pathogens, etc. that might be present in the area thereby preventing or inhibiting contamination of the fruits or vegetables growing in the greenhouse/enclosed environment by a pathogenic fungi or bacteria (See entire document).
Regarding claim 127, Erickson does not specifically teach wherein the horticultural product is a cut flower, or wherein the hydrogen peroxide is provided as gas in the claimed concentrations and maintained for a period of time. However, these deficiencies in Erickson are addressed by Lee and Grower Direct.
Lee teaches PHPG producing/generating devices which can continuously provide/introduce a steady dilute stream purified hydrogen peroxide gas that is same as is instantly claimed and are capable of output of 240 cubic feet/minute, etc. and wherein the PHPG/DHP is not hydrated and comprises less than 0.015 ppm and is substantially free of organic species, plasma species, and is used in amounts up to/a final concentration of up to 0.10 ppm that is effective for disinfecting surfaces and/or the air and does not limit what these surfaces are (see entire document; abstract; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; figures; Examples e.g. Col 10-13). Lee also teaches using their device to produce DHP gas is done at relative humidity of greater than about 1% (See Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35; etc.). Because Lee’s device continuously provides a dilute stream of PHPG in the claimed concentrations to an enclosed environment it is obviously generating a steady state dilute stream of PHPG from the device which is released into the enclosed environment. Lee further teaches wherein there is a fan associated with their PHPG producing device which is used to at least partially discharge the hydrogen peroxide gas as claimed in claims 135, 137-138 and wherein the PHPG producing device is a stand-alone device with an enclosure and a fan disclosed in the enclosure and/or associated with the PHPG producing device and because the device can be continuously used in occupied areas the concentration of up to 10 ppm can be maintained for at least 15 minutes (specifically they teach treating for hours) as is now claimed since the device can continuously produce the PHPG/DHP (see entire document; figures; claims; Col. 12, ln. 32-42; Col. 4, ln. 8- Col.6, ln. 62; Col. 11, ln. 3-35; Col. 12, ln. 66-Col. 13, ln. 10, tables in Col. 13; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; Examples e.g. Col 10-13; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35).
Lee teaches PHPG producing devices which can continuously generate and introduce/provide dilute purified hydrogen peroxide gas (e.g. the claimed steady-state dilute stream) that is same as is instantly claimed and are capable of output of 240 cubic feet/minute, etc. and wherein the PHPG/DHP is not hydrated and comprises less than 0.015 ppm and is substantially free of organic species, plasma species, and is used in amounts up to/a final concentration of up to 0.10 ppm that is effective for disinfecting surfaces and/or the air and does not limit what these surfaces are (see entire document; abstract; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; figures; Examples e.g. Col 10-13). Lee also teaches using their device to produce DPHP gas is done at relative humidity of greater than about 1% (See Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35; etc.).
Grower direct teaches that even small amounts of ethylene present in the environment containing cut flowers can cause detrimental effects. For example, carnations are very sensitive to ethylene which causes petal drop, premature death, irregular bud opening, etc. and causes huge losses of flowers in the industry (See grower direct entire document; ethylene and its effect on flowers section; what flowers are effected, etc.).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have used the claimed DHP gas/PHPG in the claimed concentrations/amounts to maintain freshness/inhibit any ethylene response, e.g. ripening, in agricultural products, horticultural products, vegetables, fruits, etc. in enclosed storage because Erickson teaches that it was known in the art to treat enclosed spaces (storage containers, shipping containers, cold storage, refrigerators, food storage facilities, etc.) with dilute hydrogen peroxide vapors wherein the hydrogen peroxide is present in the same concentrations and is administered/released to these enclosed areas containing fruits, vegetables, agricultural products and horticultural products (e.g. cut flowers) removes ethylene from the environment and ethylene which is produced by the agricultural and horticultural products which inhibits ripening and/or senescence, rotting/spoiling, premature aging, etc. of the plants/fruits/vegetables/cut flowers, etc. as is taught by Erickson and the combined references above. One of ordinary skill in the art would be motivated to use the claimed DHP gas/PHPG device of Lee with the device of Erickson together to provide the hydrogen peroxide gas instantly claimed in the claimed concentrations together with the initial peak concentration provided by the sachet in Erickson because Lee teaches devices which provide dilute purified hydrogen peroxide gas that is same as is instantly claimed e.g. is not hydrated and comprises less than 0.015 ppm and is substantially free of organic species, plasma species, and is used in amounts up to/a final concentration of up to 0.10 ppm that is effective for disinfecting surfaces and/or the air and does not limit what these surfaces are and this device can safely continuously produce DHP from the air (See col. 12, ln. 32-42) and is easy to use. Thus, one of ordinary skill in the art would obviously place a PHPG/DHP continuously producing device or multiple devices of Lee in an enclosed location (storage container, cold storage, shipping containers, refrigerators, etc.) that holds fruits and vegetables, cut flowers, agricultural products, horticultural products and turn it on to continuously provide the desired/necessary concentrations of dilute DHP gas from the air in addition to the dilute hydrogen peroxide vapor of Erickson in order to provide a method of treating the enclosed environment to remove ethylene and thereby inhibit ripening, premature aging, senescence, rotting/spoiling of the claimed products, etc. with a gas. Further the DHP/PHPG is safe for workers to enter the location with the fruit and vegetables and provide antimicrobial and anti-ripening/senescence to fruit and vegetables by removing/reducing the ethylene from the fruits and vegetables because the DHP of Lee would behave the same as the dilute hydrogen peroxide vapor of Erickson when used in the claimed concentrations which are taught by Erickson because Erickson and Lee contain/use the same active hydrogen peroxide in the same concentrations. Further the device of Lee would allow for a machine which can be continuously used to provide the desired amount of DHP necessary to inhibit ripening/senescence of the fruits and vegetables and also provide antimicrobial effects to prevent disease and mold, etc. from contaminating the fruits and vegetables and would not need to be replaced and as such after the initial burst/spike release of Erickson the sachets can be removed and/or allowed to run out and effective levels of PHPG/DHP maintained by the device of Lee.
It also would have been obvious to one of ordinary skill in the art at the time of the instant filing to use the device of Lee in the claimed enclosed environment because as is taught by Erickson it was known to treat surfaces in enclosed storage facilities containing agricultural and horticultural products with the claimed concentrations of dilute hydrogen peroxide vapor in order to remove ethylene and inhibit microbial growth (e.g. bacteria and fungi) on the surfaces (which are not limited) which are treated with the vapor/gas.
It also would have been obvious to one of ordinary skill in the art use the DHP gas/PHPG device of Lee in enclosed spaces to provide hydrogen peroxide in addition to or in place of the devices taught by Erickson because the device of Lee can continuously produce the claimed concentrations of DHP gas/PHPG necessary to perform this method and because as is taught by Erickson it was known that dilute hydrogen peroxide vapors of the claimed concentrations can be used in enclosed environments containing horticultural products (Which includes cut flowers, vegetables, fruits, etc.) to remove the ethylene in the environment which thereby would prevent premature aging of a flower by preventing senescence/rotting and/or abscission, flowering, etc. as is instantly claimed. One of ordinary skill would want to do this because Grower direct teaches that even small amounts of ethylene present in the environment containing cut flowers can cause detrimental effects. For example carnations are sensitive to ethylene which causes petal drop, premature death, irregular bud opening, etc. and causes huge losses of flowers (and therefore money) in the industry as is discussed above.
It also would have been obvious to one of ordinary skill in the art to maintain the DHP gas/PHPG in the claimed concentrations, e.g. as a steady state concentration, as necessary during shipping/storage times, etc. to inhibit ripening, senescence, premature aging, etc. as is instantly claimed because Lee allows for continuous production of the DHP gas and PHPG, and Erickson teaches that their devices will continuously produce the dilute hydrogen peroxide vapors for an extended period of time. One of ordinary skill in the art would want maintain these levels of DHP gas/PHPG and have a steady state concentration in order to keep the agricultural products, horticultural products, fruits, vegetables, cut flowers, etc. fresh for as long as possible by substantially removing any/all ethylene present in the environment or produced by the products claimed so that there is less waste of the agricultural products due to premature aging, early ripening, senescence/rotting/spoiling which causes much loss of flowers, agricultural products, horticultural products, fruits, vegetables and is very costly to the growers, sellers, and consumers of these products. Because the presence of any hydrogen peroxide in the enclosed area would at least to some degree inhibit an ethylene response as claimed especially since even one molecule of ethylene being inhibited reads on the instantly claimed method as it is currently written.
It also would have been obvious for one of ordinary skill in the art to optimize the amount of DHP gas/PHPG being produced by the machine(s) of Lee for use in the methods Erickson and the combined references in order to develop the instantly claimed method because Erickson teaches that the instantly claimed concentrations were known in the art to be effective for removing ethylene from enclosed areas used for storing/shipping/keeping fruits, vegetables, other agricultural products and horticultural products such as cut flowers (as are taught by combined references) and thereby inhibiting ethylene response such as ripening and also inhibiting premature aging, and contamination by bacteria and fungi. Thus, the claimed method is rendered obvious by the combined references as is discussed above. Especially since the presence of any hydrogen peroxide at all in the enclosed area would at least to some degree inhibit an ethylene response as claimed especially since even one molecule of ethylene being inhibited reads on the instantly claimed method as it is currently written.
It also would have been obvious to develop the claimed method when looking to Erickson and Lee because these references together teach the claimed method steps and do not limit the hydrogen peroxide to only the steady-state release because of the comprising language and it would be obvious to use these steps to prevent or inhibit contamination, etc. of said fruit or vegetable which is growing in the enclosed environment because Bob’s market teaches that it was known to use hydrogen peroxide as a disinfectant in these types of applications to disinfect fruits and vegetables while growing, etc. to prevent contamination, etc. as claimed. Thus, the method of Erickson and Lee would merely provide alternate means of providing a known disinfectant to the growing fruits and vegetables and would have been obvious to one of ordinary skill in the art in order to form effective methods of killing harmful bacteria, viruses and fungi that can grow on plants or in the soil, and that it can be used in more concentrated amounts in growing areas (e.g. applying it to various surfaces in greenhouses which might become contaminated with pathogenic bacteria and fungi) in order to control and kill fungal pathogens, bacterial pathogens, etc. that might be present in the area thereby preventing or inhibiting contamination of the fruits or vegetables growing in the greenhouse/enclosed environment by a pathogenic fungi or bacteria.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Claim 128 is/are rejected under 35 U.S.C. 103 as being unpatentable over Erickson et al. (WO2015139075, with priority to 03/18/2014), in view of Lee (US8168122), Kendall et al. (https://web.archive.org/web/20120204121707/https://nchfp.uga.edu/how/dry/csu_dry_fruits.pdf), Bob’s Market (https://www.bobsmarket.com/blog/bsmarketblog.com/2011/08/benefits-of-hydrogen-peroxide.html), The kitchn (https://www.thekitchn.com/food-science-ethylene-gas-130275, 10/21/2010), grower direct (https://www.growerdirect.com/flower-care-ethylene-gas, cached wayback machine 08/20/2010) as applied to claims 122-127, 129-130, 135, 137-138 above and further in view of Sisler et al. (WO01/37663).
Determination of the scope and content of the prior art
(MPEP 2141.01)
The combined references together teach the methods of claims 122-127, 129-130, 135, 137-138 as discussed above and incorporated herein.
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
The combined references do not teach wherein the method further comprises cyclopropene or a cyclopropene derivative as a solid, a gas, a solution or a carrier composition. However, this deficiency in the combined references is addressed by Sisler.
Sisler teaches that cyclopropene derivatives are known in the art to be used to block ethylene receptors in plants, including fruits and vegetables such as grapes, apples, bananas, tomatoes, apricots, papaya, magoes, peaches, nectarines, kiwi, melons e.g. muskmelon, cantaloupe, strawberries, avocadoes, ornamental plants, cut flowers such as carnations, etc. and that by blocking the ethylene response in plants these compounds inhibit ripening, abscission, and prolong the life of cut flowers, etc. (abstract; claims; pg. 9. Ln. 2-6, ln. 10-pg. 11, ln. 18). Sisler also teaches wherein the cyclopropene derivatives are used in gaseous, solid or liquid forms by introducing the plant, cut flower, vegetable, fruit, etc. into an atmosphere infused with the cyclopropene derivative (pg. 3, ln. 11-17).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art to combine cyclopropene/cyclopropene derivatives of Sisler in solid, liquid or gas form which were known in the art to block ethylene receptors in various agricultural products including fruits and vegetables which inhibits ripening, abscission, etc. into the method using the dilute hydrogen peroxide gas/vapour taught by the combined prior art whereby both actives are introduced into the enclosed area as claimed and as is taught by the combined prior art in order to develop the instantly claimed method because it was known in the art to combine actives used for the same purpose in order to form new methods which are also to be used for the same purpose in this case it would be obvious to combine two known active agents for inhibiting ripening/inhibiting an ethylene response in order to form a new method which uses two known agents for inhibiting ethylene response in plants/crops/agricultural products to inhibit ripening etc. as claimed. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Claim 136 is/are rejected under 35 U.S.C. 103 as being unpatentable over Erickson et al. (WO2015139075, with priority to 03/18/2014), in view of Lee (US8168122), Kendall et al. (https://web.archive.org/web/20120204121707/https://nchfp.uga.edu/how/dry/csu_dry_fruits.pdf), Bob’s Market (https://www.bobsmarket.com/blog/bsmarketblog.com/2011/08/benefits-of-hydrogen-peroxide.html), The kitchn (https://www.thekitchn.com/food-science-ethylene-gas-130275, 10/21/2010), grower direct (https://web.archive.org/web/20100820105856/https://www.growerdirect.com/flower-care-ethylene-gas, cached wayback machine 08/20/2010) as applied to claims 122-127, 129-130, 135, 137-138 above and further in view of McVey et al. (WO2005094909).
Determination of the scope and content of the prior art
(MPEP 2141.01)
The combined references together teach the methods of claims 122-127, 129-130, 135, 137-138 as discussed above and incorporated herein.
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
The combined references do not teach wherein the PHPG device is located in an HVAC system and said fan is part of said HVAC system. However, this deficiency in the combined references is addressed by McVey.
McVey teaches that it was known to install hydrogen peroxide gas/vapor producing devices into a HVAC system for circulation with the HVAC fans using the ductwork, so that the HVAC system and its ductwork and its fans can be used to deliver the gas into the area/enclosed area having the HVAC system for decontamination where needed/required/desired (see pg. 8, ln. 11-15; pg. 9, ln. 30-pg. 10, ln. 3).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have placed the machines of Lee into an HVAC system to use the fans and ductwork to provide the PHPG of Lee via the HVAC fans and ductwork to the enclosed area because it was known to use HVAC systems to provide hydrogen peroxide gas to areas in need of decontamination and as such it would be obvious to install the devices of Lee into ductwork/HVAC systems of enclosed areas of Erickson and the combined references in the manner of McVey in order to provide an easy way to distribute the hydrogen peroxide gas into the enclosed area for treating the agricultural products since it was already known in the art to provide hydrogen peroxide gas via HVAC systems and it was known to use hydrogen peroxide gases and vapors to treat the claimed agricultural products to inhibit an ethylene response and to provide decontamination, etc. to fruits and vegetables and other agricultural products as claimed one of ordinary skill in the art would have been motivated to develop the claimed method when looking to the combined prior art in order to provide a more efficacious means of treating agricultural products in enclosed areas to provide the claimed inhibiting ethylene responses, etc. for the reasons discussed above and herein.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Claims 131-134, and 139 is/are rejected under 35 U.S.C. 103 as being unpatentable over Erickson et al. (WO2015139075, with priority to 03/18/2014), in view of Lee (US8168122), Kendall et al. (https://web.archive.org/web/20120204121707/https://nchfp.uga.edu/how/dry/csu_dry_fruits.pdf), Nafisi-Movaghar (US4948609), PartSelect (https://web.archive.org/web/20140903121306/https://www.partselect.com/JustForFun/Preserving-Food-by-Drying.aspx).
Regarding claims 131-134, Erickson teaches that it was known in the art to vaporize hydrogen peroxide (produced from absorption of water in the air which reacts with the percarbonate in the sachet) wherein the vaporized hydrogen peroxide vapor is present in amounts less than 1 ppm, specifically less than 0.5 ppm, which reads on the claimed up to 10 ppm and which is known to break down/remove ethylene in the air/environment of a closed room/enclosed space (e.g. cool room, shipping container, storage container, etc.) which reads on the claimed reducing ethylene levels and thereby inhibits ethylene response in agricultural products e.g. ripening and/or senescence by destroying/removing any ethylene release from the agricultural products/fruits/vegetables and stored horticultural products (which broadly includes the claimed plants, cut flowers, edible potted plants, etc. claimed) and that ethylene can be removed and/or reduced from plants by application of hydrogen peroxide which would also obviously inhibit ripening and/or senescence of the plants/fruits/vegetables present/placed in the cool room/refrigerated space/ambient room (enclosed area) such as food storage or handing areas, shipping containers, etc. (See entire document; [0043]; [0052]; [0059-0062]; [0038-0044]; abstract; [0001]; Claims; [0008]; [0019]; [0016]; Examples). Erickson further teaches wherein the hydrogen peroxide vapor in amounts of less than <1 ppm, specifically <0.5 ppm can be used to treated fruits/vegetables which are stored at room temperature or in a cold storage or shipping containers, etc. (See entire document; [0043]; [0052]; [0059-0060]; [0038-0044]; [0059-0062]; abstract; [0001]; Claims; [0008]; [0019]; [0016];) and as discussed above teaches wherein the hydrogen peroxide destroys/removes any ethylene present thereby obviously inhibiting the ethylene responses by inhibiting ripening and/or decay/senescence of the fruit/vegetables/agricultural and horticultural products contained therein (because ethylene is known to induce ripening/senescence/spoiling/rotting as is taught by Erickson).
Regarding claims 131-134, Erickson teaches methods of protecting fruits or vegetables comprising providing dilute hydrogen peroxide vapor in concentrations of <1 ppm and even < 0.5 ppm ([0043]; [0052]) to an enclosed environment, e.g. refrigerator, cold storage rooms, storage containers, etc. and wherein ethylene is removed (See entire document; [0043]; [0052]; [0059-0060]; [0038-0044]; [0059-0062]; abstract; [0001]; Claims; [0008]; [0019]; [0016]; Examples). Erickson does not specifically teach that the protecting comprises converting ethylene gas produced by the fruits or vegetables to carbon dioxide and water before the ethylene gas can promote decay. However, as Erickson teaches treating vegetables/fruits, agricultural and horticultural products and/or enclosed environments which contain these products with dilute hydrogen peroxide vapor and because Erickson specifically teaches wherein the ethylene is removed and as such would inhibit ripening and senescence (decay) (because Erickson teaches that ethylene promotes ripening and spoilage) it would have been obvious that the claimed method for protecting a fruit or vegetable is already being accomplished in Erickson which teaches treating/releasing dilute hydrogen peroxide vapor in the instantly claimed concentrations to enclosed environments to remove ethylene. Erickson further teaches wherein the protection also includes preventing/inhibiting bacterial, mold, and fungal contamination of agricultural products/horticultural products which broadly reads on preventing or inhibiting contamination of said fruit or vegetable growing in said enclosed environment by a virus or bacterium ([0003]; [0004]; [0019]; [0043]; [0052]; [0059-0060]; [0038-0044]; [0059-0062]; abstract; [0001]; Claims; [0008]; [0016]).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)/ Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Regarding claims 131-134, Erickson does not teach the newly claimed method steps (a)-(c) of preparing air dried fruits or vegetables wherein the enclosed environment has a relative humidity of less than 65% and maintaining the fruit or vegetable in the enclosed environment until the water content of the fruit or vegetable is reduced to a final moisture content of about 25% or less or wherein the fruit/vegetable/herb is selected from those listed. However, these deficiencies in Erickson are addressed by Lee, Kendall, PartSelect, Nafisi-Movaghar.
Lee teaches PHPG producing/generating devices which can continuously provide/introduce a dilute stream purified hydrogen peroxide gas that is same as is instantly claimed and are capable of output of 240 cubic feet/minute, etc. and wherein the PHPG/DHP is not hydrated and comprises less than 0.015 ppm and is substantially free of organic species, plasma species, and is used in amounts up to/a final concentration of up to 0.10 ppm that is effective for disinfecting surfaces and/or the air and does not limit what these surfaces are (see entire document; abstract; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; figures; Examples e.g. Col 10-13). Lee also teaches using their device to produce DHP gas is done at relative humidity of greater than about 1% (See Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35; etc.). Because Lee’s device continuously provides a dilute stream of PHPG in the claimed concentrations to an enclosed environment it is obviously generating a steady state dilute stream of PHPG from the device which is released into the enclosed environment. Lee further teaches wherein there is a fan associated with their PHPG producing device which is used to at least partially discharge the hydrogen peroxide gas and wherein the PHPG producing device is a stand-alone device with an enclosure and a fan disclosed in the enclosure and/or associated with the PHPG producing device and because the device can be continuously used in occupied areas the concentration of up to 10 ppm can be maintained for at least 15 minutes (specifically they teach treating for hours) as is now claimed since the device can continuously produce the PHPG/DHP at said equilibrium concentration (see entire document; figures; claims; Col. 12, ln. 32-42; Col. 4, ln. 8- Col.6, ln. 62; Col. 11, ln. 3-35; Col. 12, ln. 66-Col. 13, ln. 10, tables in Col. 13; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7; Examples e.g. Col 10-13; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 8, ln. 13-Col. 10, ln. 35).
Lee teaches devices which can continuously provide dilute purified hydrogen peroxide gas that is same as is instantly claimed e.g. is not hydrated and comprises less than 0.015 ppm and is substantially free of organic species, plasma species, and is used in amounts up to/a final concentration of up to 0.10 ppm that is effective for disinfecting surfaces and/or the air and does not limit what these surfaces are (see entire document; abstract; Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; Col. 6, ln. 24-38; Col. 6, ln. 57-Col. 7, ln. 7). Lee also teaches using their device to produce DPHP gas is done at relative humidity of greater than about 1% (See Col. 3, ln. 25-51; Col. 7, ln. 8-15; Col. 11, ln. 20-50; etc.).
Kendall teaches that it was known that traditional methods of disinfecting fruit/vegetables (e.g. apples, grapes, peaches, pears, tomatoes, bananas, etc.) prior to drying/air drying in order to control/remove/kill potentially harmful bacteria and/or prevent spoiling, etc. have been linked with initiating asthmatic reactions in people with asthma (See Kendall: selecting and pre-treating fruits pg. 1-2, particularly sodium metabisulfite pretreatment; Table 1).
Nafisi-Movaghar teaches drying plant products, specifically air dried agricultural products, more specifically fruits and vegetables, processed via air drying and maintains said fruit and vegetable product in an enclosed environment (chamber) until the water content of said agricultural product/fruit and/or vegetable until the moisture content is reduced, specifically wherein the water content is reduced to as low as 10 wt% moisture, which reads on the instantly claimed moisture contents (See Col.1, ln. 13-ln. 28).
PartSelect teaches that low humidity helps with the drying process (because drying involves extracting moisture from the food items and expelling it into the surrounding air. Thus, if the surrounding air is humid the foods will not dry effectively because low humidity allows moisture to move quickly from the food to the air) and they particularly prefer humidity of below 60% which reads on the less than 65% instantly claimed and the less than 50% instantly claimed because the ranges overlap which reads on claims 131-132 (see how drying preserves food; see drying foods out-of-doors second paragraph).
Thus, it would be obvious to one of ordinary skill in the art to try the worker safe hydrogen peroxide treatment instantly claimed for treating dried/drying fruits and vegetables based upon the combined teachings of Erickson, Lee, Kendall and PartSelect because this hydrogen peroxide treatment would allow for a different treatment from those known in the art to initiate asthmatic reactions and would still allow for effective decontamination of the fruit or vegetable that is being dried and would allow for the necessary low humidity levels for effective drying of fruits and vegetables.
It also would have been obvious to reduce the moisture content of the fruit, vegetable or herb to a final moisture content of about 15% or less because these were moisture content levels which were known in the art to be useful for preparing dried fruit and vegetables, etc. as is taught by Nafisi-Movaghar.
It also would have been obvious to one of ordinary skill in the art to air dry fruit, specifically apples, peaches, grapes, pears, etc. as is instantly claimed and to use the claimed DHP gas/PHPG which is provided by the device/devices of Lee with said fan(s) which makes the exact same DHP gas claimed to destroy or inhibit any phytopathogenic organisms from infecting/colonizing the dry fruit in the claimed concentrations because it was known in the art to dry these specific fruits and to treat dry fruit to prevent bacterial and fungal growth and Erickson teaches that dilute hydrogen peroxide vapors in the claimed concentrations inhibit bacterial and fungal growth as well as remove ethylene thereby preventing the fruit from decaying/spoiling while drying and these treatments would provide an alternative treatment to those previously used that are known to cause asthmatic reactions in susceptible populations since the DHP gas of Lee is known to be safe for workers and to do it by applicant’s steps which are taught by/rendered obvious by the combined references as discussed above.
Response to Arguments/Remarks
Applicant’s amendments to the claims and specification have overcome the previous objections. Applicant’s amendments to the claims have prompted the new grounds of rejection under 112, 103, and double patenting which are presented herein. Applicant’s arguments were fully considered but were not persuasive. Insofar as applicant’s arguments pertain to the revised/new grounds of rejection these arguments are addressed herein.
Applicants first argue that their method is not obvious because one of ordinary skill in the art at the time of the instant filing because there would have been no reasonable expectation of success and that it would not be obvious to modify Erickson with Lee. They argue that Erickson provides an initial burst of hydrogen peroxide and they argue that it was expected that this is required to knock down the amount of ethylene in the surrounding environment. The examiner respectfully disagrees because nothing in the instant claims requires the knock down of any specific amounts of ethylene and/or all or most of the ethylene to be “knocked down” as argued by applicants. The instant claims are to inhibiting an ethylene response in an agricultural product for instance thus if any ethylene response is inhibited to any degree even the most minute degree it reads on the instant claims. Hydrogen peroxide gas being released in the enclosed space in any amount will react with at least some of ethylene in the environment and as such will have some effect to even the most miniscule degree in inhibiting the ethylene response because there is less ethylene present once at least some of it reacts with the hydrogen peroxide and if the hydrogen peroxide is continuously produced then at least some level of the ethylene is being reacted in the enclosed atmosphere and therefore as discussed above will result in at least some effect to even the most miniscule degree in inhibiting the ethylene response in the agricultural products as claimed. Further, nothing in the instant claims actually excludes the initial burst of Erickson from the claimed method as other components and other steps are not excluded from the claimed method because of applicant’s use of comprising language.
Applicants then argue that Erickson requires this initial burst and they argue that they have provided a declaration which demonstrates that with these sachets is a large initial burst followed by a much lower equilibrium concentration and that this is required by Erickson. The examiner again respectfully argues that this initial burst is not excluded from the instantly claimed method due to the comprising language used in the instant claims.
Applicants argue that Erickson always leads to a large initial burst of release of hydrogen peroxide and then drops off to a lower equilibrium/constant level, which does not read on the newly claimed steady state level. The examiner respectfully disagrees that other levels/release profiles of the hydrogen peroxide, e.g. initial burst are not excluded from the instant claims because the claimed use comprising language and would not be useful in the methods of Erickson. Applicants assert that one of ordinary skill in the art would not have considered that such a device would be effective without the initial burst to control/inhibit ethylene. The examiner respectfully points out that the instant claims only require the smallest degree of inhibition of ethylene response, that is to say if 1 molecule of ethylene is inhibited it reads on the instant claimed method. Thus, the presence of any level of hydrogen peroxide would react with at least one molecule of ethylene gas and would therefore be inhibiting ethylene to even the smallest degree which is all that is required of the instant claims. The examiner maintains that it would be obvious to use the device of Lee in the method of Erickson, either in place of or in addition to the sachets of Erickson to provide some degree of inhibition of ripening etc. because it is known to use hydrogen peroxide to inhibit ethylene released by crops/fruits/vegetables as is taught by the references as cited and discussed above. As discussed above and herein, the examiner notes that absolute or high levels of inhibition of ethylene are not required by the instantly claimed method. The examiner recognizes that applicant’s experiments with respect to Erickson and these will be discussed further as they are in the declaration addressed below.
Applicants then further argue that the double patenting rejection is improper because US9808013 does not teach or suggest utilizing hydrogen peroxide in agricultural applications. The examiner respectfully disagrees because the method is clearly for treating agricultural products with the same amounts of the same PHPG gas in the same enclosed environments, e.g. shipping containers, and wherein the agricultural products are the same fruit and vegetables, etc. instantly claimed. Thus, contrary to applicant’s arguments the method of claims 18-19 of US9808013 when taken in view of secondary references as cited above does still render the instantly claimed method obvious at this time.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
The declaration will be more further addressed below.
Declaration under 1.132
Dr. David Schut provided a declaration under 1.132, filed 10/18/24. The Declaration meets the formal requirements. In the most relevant part, the Declaration presents data from experiments wherein sachet hydrogen peroxide producing/emitting devices are tested, e.g. similar to those in the prior art Erickson.
A Declaration is due full consideration and weight for all that it discloses. Declarations are reviewed for the following considerations: 1) whether the Declaration presents a nexus such as a side-by-side or single-variable comparison (In re Huang, 40 USPQ2d 1685, 1689 (Fed. Cir.
1996)), 2) whether the Declaration presents a comparison to the closest art, 3) whether the
Declaration is commensurate in scope with the scope of the claims (In re Kulling, 14 USPQ2d
1056, 1058 (Fed. Cir. 1990)), 4) whether the Declaration shows a difference in kind rather than
merely a difference in degree (In re Waymouth, 182 USPQ 290, 293 (C.C.P.A. 1974)), and 5)
whether the prima facie case is sufficiently strong that allegedly superior results are insufficient
to overcome the case for obviousness (Pfizer Inc. v. Apotex, Inc., 82 USPQ2d 1321, 1339 (Fed.
Cir. 2007)). The relevant criterion here is: 3) whether the
Declaration is commensurate in scope with the scope of the claims (In re Kulling, 14 USPQ2d
1056, 1058 (Fed. Cir. 1990)). The examiner has carefully reviewed the Declaration, including the data presented in the Declaration.
In the most relevant part of the included declaration Dr. Schut demonstrates that the sachet devices of Erickson have an initial burst/spike release of hydrogen peroxide and then the release rate lowers to an equilibrium/constant level, which is a different from the constant low level they argue is produced by their own devices. The examiner respectfully points out that while applicants have added claim limitations which are more focused to the characteristics of their devices the instant claims use comprising language which is open-ended and as such still does not exclude the initial burst/spike release of Erickson or the addition of the claimed devices of Lee into the methods taught by Erickson to provide a combination of release of hydrogen peroxide to control ethylene production from fruits/vegetables. Thus, contrary to applicants arguments, the instant claims are not actually commensurate in scope with the features they are arguing, nor to the claim amendments distinguish their method from that of the prior art at this time due to the use of comprising language as is discussed above and incorporated herein. As discussed above, nothing in the instant claims actually excludes the initial shocking/burst of hydrogen peroxide contrary to applicant’s arguments.
Thus for the above reasons, the examiner maintains that it would have been obvious to one of ordinary skill in the art at the time of the instant filing to have developed the claimed invention when looking to the combination of the prior art references as discussed above at this time.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Erin E Hirt whose telephone number is (571)270-1077. The examiner can normally be reached 10:30-7:30 ET M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at 571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ERIN E HIRT/Primary Examiner, Art Unit 1616
Prosecution Insights