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 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 1-13 are rejected under 35 U.S.C. 103 as being unpatentable over COLOMBO (US 6269946 B1) in view of CHIANG et al (US 2001/0018480 A1) and GIDEWELL ( US 3,968,629).
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As to the packing step, COLOMBO teaches a packaging system for preserving meat (abstract and Column 2 lines 40-46). COLOMBO teaches that the master bag has a gas permeability for oxygen of less than 5 cubic centimeters per 100 square inches per 24 hours at 23C (Column 6 lines 3-15).
COLOMBO teaches that the packaging system comprises a retail meat tray (Column 2 lines 35-39) with an iron based oxygen scavenger sachet (Column 8 line 58 through Column 9 line 7) and an absorbent pad (Column 5 lines 5-8) over-wrapped with a gas permeable plastic film with holes permitting atmosphere exchange between the interior and exterior of the meat tray (Column 5 lines 9-37) and a sealed impermeable master bag overtop of at least one meat tray (Column 5 lines 46-62).
COLOMBO teaches an oxygen scavenger is sufficient to achieve a half-life for resident oxygen of less than 2 hours and reach a zero oxygen storage atmosphere within 24 hours of sealing (Figures 5 and 9). COLOMBO teaches that the oxygen scavengers can be placed outside the meat trays (Figure 8 characters 16 and 200).
As to the flushing step, COLOMBO teaches that the master bag is flushed prior to sealing to remove substantially all of the oxygen from the interior of the bag and injected with an inert gas which comprises carbon dioxide, nitrogen, or a mixture thereof (Column 11 lines 41-55); thus the inert gas comprises up to 100% nitrogen, up to 100% carbon dioxide, and as low as 0% carbon monoxide which encompasses the range of “less than 5%” and the oxygen level within the master bag would be expected to be less than 5%, including 0 ppm as COLOMBO teaches evacuating all of the gas from the package and additionally including oxygen scavengers to attack any residual oxygen.
As to the sealing step, a master bag can be sealed (col. 11, lines 55-60).
COLOMBO is silent as to a self-activating oxygen scavenger at a relative humidity of 70% or more.
However, CHIANG et al (CHIANG) teaches of improved oxygen scavenging compositions, for meat products, included in packets of powders or granules (abstract and paragraphs [0010], [0011], [0013] and [0078]). CHIANG teaches that moisture can increase the performance of oxygen absorption and even suggests including a water-absorbing binder to activate and enhance the oxygen scavenger. The oxygens scavengers are tested in a relative humidity of 100% (see Examples 1-10). Given the desire to add water to enhance/activate the oxygen scavenger and CHIANG teaches that the oxygen scavengers can perform in an environment up to 100% relative humidity, it would have been obvious a self-activating oxygen scavenger that performs at a relative humidity of 70% or more. The oxygen scavengers are of low cost and increase the shelf-life of oxygen-sensitive products ([0010]).
Thus, it would have been obvious to use the oxygen scavenger of CHIANG in COLOMBO, as CHIANG teaches are of low cost and increase the shelf-life of oxygen-sensitive products.
As to the storing step, COLOMBO and CHIANG are silent as to storing the master bag at the claimed temperatures.
GLIDEWELL teaches that processed packaged meat may be stored at refrigerating temperatures as about 35 to 50o F (this overlaps the claimed range of 28 to 42oC) for periods of time as much as forty-five days without adversely affecting the fresh red color of the fresh meat and without unduly increasing the bacteria count, whether aerobic or anaerobic bacteria are involved, beyond acceptable levels for human consumption.
Thus, it would have been obvious to store meat of the references above at a temperature of the claimed range, as GIDEWELL teaches that this temperature preserves the meat.
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COLOMBO teaches that a carbon dioxide generator is in bag 22 (see FIGS. 2D and 2E and col. 6, lines 50-65). COLOMBO teaches that generally a sufficient amount of carbon dioxide is used to generate at least about 1.5L of gaseous carbon dioxide per kilogram of perishable good (which is about 0.68 Liters of carbon dioxide or about 68% Liters of carbon dioxide per pound of meat which is the perishable food) (Column 6 line 54 through Column 7 line 6).
Regarding the gas as generated within 7 days of closure, it would have been obvious to one of ordinary skill in the art for the generation of the gas to be immediate so that the gas would be exposed to the meat in a quick time frame and the positive effects of the gas would be quickly experienced. To determine the time frame for the gas exposure would have been a result effective variable based on the desired effects from the gas.
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COLOMBO is silent as to injecting a pre-determined amount of water into a chemical containing sachet.
However, CHIANG et al (CHIANG) teaches of improved oxygen scavenging compositions, for meat products, included in packets of powders or granules (abstract and paragraphs [0010], [0011], [0013] and [0078]). CHIANG teaches that moisture (i.e., water) can increase the performance of oxygen absorption and even suggests including a water-absorbing binder to activate and enhance the oxygen scavenger. It would have bene obvious to inject a pre-determined amount of water into a chemical containing sachet to increase the performance.
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COLOMBO does teach using oxygen absorbers to eliminate oxygen (col. 9, lines 1-6). Thus, it would have been obvious to eliminate the oxygen. As to the how the reduction in oxygen is measured, applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
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COLOMBO does not limit the size of the absorber (col. 8 ,lines 58-63). The size of the material can be would have been a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.).
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COLOMBO teaches that the packaging system comprises a retail meat tray (Column 2 lines 35-39) with an iron based oxygen scavenger sachet (Column 8 line 58 through Column 9 line 7).
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COLOMBO teaches that the packaging can be used to preserve perishable items such as meat (col. 2, lines 40-46) by limiting oxygen (col. 1, lines ). This would naturally inhibit the oxidation of MRA enzyme.
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As to the packing step, COLOMBO teaches a packaging system for preserving meat (abstract and Column 2 lines 40-46). COLOMBO teaches that the master bag has a gas permeability for oxygen of less than 5 cubic centimeters per 100 square inches per 24 hours at 23C (Column 6 lines 3-15).
COLOMBO teaches that the packaging system comprises a retail meat tray (Column 2 lines 35-39) with an iron based oxygen scavenger sachet (Column 8 line 58 through Column 9 line 7) and an absorbent pad (Column 5 lines 5-8) over-wrapped with a gas permeable plastic film with holes permitting atmosphere exchange between the interior and exterior of the meat tray (Column 5 lines 9-37) and a sealed impermeable master bag overtop of at least one meat tray (Column 5 lines 46-62).
COLOMBO teaches an oxygen scavenger is sufficient to achieve a half-life for resident oxygen of less than 2 hours and reach a zero oxygen storage atmosphere within 24 hours of sealing (Figures 5 and 9). COLOMBO teaches that the oxygen scavengers can be placed outside the meat trays (Figure 8 characters 16 and 200).
As to the flushing step, COLOMBO teaches that the master bag is flushed prior to sealing to remove substantially all of the oxygen from the interior of the bag and injected with an inert gas which comprises carbon dioxide, nitrogen, or a mixture thereof (Column 11 lines 41-55); thus the inert gas comprises up to 100% nitrogen, up to 100% carbon dioxide, and as low as 0% carbon monoxide which encompasses the range of “less than 5%” and the oxygen level within the master bag would be expected to be less than 5%, including 0 ppm as COLOMBO teaches evacuating all of the gas from the package and additionally including oxygen scavengers to attack any residual oxygen.
As to the sealing step, a master bag can be sealed (col. 11, lines 55-60).
COLOMBO is silent as to chicken and a self-activating oxygen scavenger at a relative humidity of 70% or more.
However, CHIANG et al (CHIANG) teaches of improved oxygen scavenging compositions, for meat products such as chicken [0007], included in packets of powders or granules (abstract and paragraphs [0010], [0011], [0013] and [0078]). CHIANG teaches that moisture can increase the performance of oxygen absorption and even suggests including a water-absorbing binder to activate and enhance the oxygen scavenger. The oxygens scavengers are tested in a relative humidity of 100% (see Examples 1-10). Given the desire to add water to enhance/activate the oxygen scavenger and CHIANG teaches that the oxygen scavengers can perform in an environment up to 100% relative humidity, it would have been obvious a self-activating oxygen scavenger that performs at a relative humidity of 70% or more. The oxygen scavengers are of low cost and increase the shelf-life of oxygen-sensitive products ([0010]).
Thus, it would have been obvious to use the oxygen scavenger of CHIANG in COLOMBO, as CHIANG teaches are of low cost and increase the shelf-life of oxygen-sensitive products.
As to the storing step, COLOMBO and CHIANG are silent as to storing the master bag at the claimed temperatures.
GLIDEWELL teaches that processed packaged meat may be stored at refrigerating temperatures as about 35 to 50o F (this overlaps the claimed range of 28 to 42oC) for periods of time as much as forty-five days without adversely affecting the fresh red color of the fresh meat and without unduly increasing the bacteria count, whether aerobic or anaerobic bacteria are involved, beyond acceptable levels for human consumption.
Thus, it would have been obvious to store meat of the references above at a temperature of the claimed range, as GIDEWELL teaches that this temperature preserves the meat.
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CHIANG teaches that moisture can increase the performance of oxygen absorption and even suggests including a water-absorbing binder to activate and enhance the oxygen scavenger. The oxygens scavengers are tested in a relative humidity of 100% (see Examples 1-10). Given the desire to add water to enhance/activate the oxygen scavenger and CHIANG teaches that the oxygen scavengers can perform in an environment up to 100% relative humidity, it would have been obvious to add water ([0010].
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COLOMBO does not limit the size of the absorber (col. 8 ,lines 58-63). The size of the material can be would have been a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.).
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As to the packing step, COLOMBO teaches a packaging system for preserving meat (abstract and Column 2 lines 40-46). COLOMBO teaches that the master bag has a gas permeability for oxygen of less than 5 cubic centimeters per 100 square inches per 24 hours at 23C (Column 6 lines 3-15).
COLOMBO teaches that the packaging system comprises a retail meat tray (Column 2 lines 35-39) with an iron based oxygen scavenger sachet (Column 8 line 58 through Column 9 line 7) and an absorbent pad (Column 5 lines 5-8) over-wrapped with a gas permeable plastic film with holes permitting atmosphere exchange between the interior and exterior of the meat tray (Column 5 lines 9-37) and a sealed impermeable master bag overtop of at least one meat tray (Column 5 lines 46-62).
COLOMBO teaches an oxygen scavenger is sufficient to achieve a half-life for resident oxygen of less than 2 hours and reach a zero oxygen storage atmosphere within 24 hours of sealing (Figures 5 and 9). COLOMBO teaches that the oxygen scavengers can be placed outside the meat trays (Figure 8 characters 16 and 200).
As to the flushing step, COLOMBO teaches that the master bag is flushed prior to sealing to remove substantially all of the oxygen from the interior of the bag and injected with an inert gas which comprises carbon dioxide, nitrogen, or a mixture thereof (Column 11 lines 41-55); thus the inert gas comprises up to 100% nitrogen, up to 100% carbon dioxide, and as low as 0% carbon monoxide which encompasses the range of “less than 5%” and the oxygen level within the master bag would be expected to be less than 5%, including 0 ppm as COLOMBO teaches evacuating all of the gas from the package and additionally including oxygen scavengers to attack any residual oxygen.
As to the sealing step, a master bag can be sealed (col. 11, lines 55-60).
COLOMBO is silent as to a self-activating oxygen scavenger at a relative humidity of 70% or more.
However, CHIANG et al (CHIANG) teaches of improved oxygen scavenging compositions, for meat products, included in packets of powders or granules (abstract and paragraphs [0010], [0011], [0013] and [0078]). CHIANG teaches that moisture can increase the performance of oxygen absorption and even suggests including a water-absorbing binder to activate and enhance the oxygen scavenger. The oxygens scavengers are tested in a relative humidity of 100% (see Examples 1-10). Given the desire to add water to enhance/activate the oxygen scavenger and CHIANG teaches that the oxygen scavengers can perform in an environment up to 100% relative humidity, it would have been obvious a self-activating oxygen scavenger that performs at a relative humidity of 70% or more. The oxygen scavengers are of low cost and increase the shelf-life of oxygen-sensitive products ([0010]).
Thus, it would have been obvious to use the oxygen scavenger of CHIANG in COLOMBO, as CHIANG teaches are of low cost and increase the shelf-life of oxygen-sensitive products.
As to the storing step, COLOMBO and CHIANG are silent as to storing the master bag at the claimed temperatures.
GLIDEWELL teaches that processed packaged meat may be stored at refrigerating temperatures as about 35 to 50o F (this overlaps the claimed range of 28 to 42oC) for periods of time as much as forty-five days without adversely affecting the fresh red color of the fresh meat and without unduly increasing the bacteria count, whether aerobic or anaerobic bacteria are involved, beyond acceptable levels for human consumption.
Thus, it would have been obvious to store meat of the references above at a temperature of the claimed range, as GIDEWELL teaches that this temperature preserves the meat.
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COLOMBO is silent as to injecting a pre-determined amount of water into a chemical containing sachet.
However, CHIANG et al (CHIANG) teaches of improved oxygen scavenging compositions, for meat products, included in packets of powders or granules (abstract and paragraphs [0010], [0011], [0013] and [0078]). CHIANG teaches that moisture (i.e., water) can increase the performance of oxygen absorption and even suggests including a water-absorbing binder to activate and enhance the oxygen scavenger. It would have bene obvious to inject a pre-determined amount of water into a chemical containing sachet to increase the performance.
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COLOMBO does not limit the size of the absorber (col. 8 ,lines 58-63). The size of the material can be would have been a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791