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 .
Election/Restrictions
Claims 42-68 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 2/5/2026. Claims 1-41 are currently pending and have been considered below.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 12/22/2023, 12/4/2024, 12/31/2024, 10/17/2025, and 4/21/2026 have been considered by the examiner.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“sealing mechanisms” in claims 1-3, 19, 33, and 41,
“vertical sealing device[s]” and “horizontal sealing device[s]” in claims 2 and 3,
“treatment delivery mechanism” in claims 1, 6, 8, and 9.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
Applicant’s disclosure describes the “sealing mechanisms” as follows: “the one or more sealing mechanism comprise (i) at least one vertical sealing device and (ii) at least one horizontal sealing device. According to another embodiment, the one or more sealing mechanism comprise (i) two vertical sealing devices and (ii) two horizontal sealing devices” [0006], and “According to an embodiment, the one or more sealing mechanisms include at least one of pressure rollers, arc loop baffles, wing baffles, angled baffles, belts, louvers, shutters, ducting, plastic, fabric, or metal guides, or similar devices for channeling and containing air flow. According to another embodiment, the one or more sealing mechanisms include combinations of air dependent, spring-loaded, and other devices that are mechanically controlled and activated” [00018].
The “vertical sealing device[s]” and “horizontal sealing device[s]” are interpreted as having the structure of the sealing mechanisms as described in [00018], or equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-41 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 1, 6, 8, and 9 recite the limitation “treatment delivery mechanism,” which invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. “Merely restating a function associated with a means-plus-function limitation is insufficient to provide the corresponding structure for definiteness. See, e.g., Noah, 675 F.3d at 1317, 102 USPQ2d at 1419; Blackboard, 574 F.3d at 1384; Aristocrat, 521 F.3d at 1334, 86 USPQ2d at 1239. It follows therefore that such a mere restatement of function in the specification without more description of the means that accomplish the function would also likely fail to provide adequate written description under section 112(a) or pre-AIA section 112, first paragraph.” MPEP § 2181-IV.
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 1-41 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 1, 6, 8, and 9 recite the limitation “treatment delivery mechanism,” which invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The disclosure is devoid of any structure that performs the function in the claim. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claims 15 and 23 recite the term “quickly.” The term “quickly” is a relative term which renders the claim indefinite. The term “quickly” 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. It is unclear what the maximum amount of time is that could be spent performing the task such that the task would be accomplished “quickly.”
Claim 20 recites, “similar devices.” It is unclear what devices are included in “similar devices,” thus rending the scope of the claim unclear.
Claim 21 recites, “wherein the one or more sealing mechanisms include combinations of air dependent, spring-loaded, and other devices that are mechanically controlled and activated.” It is unclear what devices are included in “other devices,” thus rending the scope of the claim unclear.
Claim 34 recites, “further comprising cooling coils and related refrigeration equipment to reduce a temperature of the perishable product.” It is unclear what equipment is included in “related refrigeration equipment,” thus rending the scope of the claim unclear.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 4-14, 24-27, 31-38, and 40-41 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bowden et al. (WO 2021/222753).
Regarding claim 1, Bowden discloses a mobile, modular pass-through system for treating and/or cooling a perishable product to its intended condition (“Modular mobile treatment and precooling apparatus, methods, & systems” [Title]), the system comprising:
(a) at least one plenum (Figs. 4A, 4B, “air flow plenum (120)” [00138]);
(b) at least one axial fan (Figs. 4A, 4B, “fans (122)” [00138]) attached to the at least one plenum (Figs. 4A, 4B), the at least one axial fan configured to recirculate forced air through one or more pallets of perishable product and across perishable products contained on the one or more pallets of perishable product (“fans (122) and cooling coils (124) are placed along the side of one wall to create an air flow plenum (120) to force air (horizontal and/or vertical arrows in FIGS. 4A and 4B) through the adjacent pallets (150)” [00138]);
(c) one or more sealing mechanisms configured to contain and channel the forced air being recirculated between the at least one plenum and through the one or more pallets of perishable product and across the perishable products contained on the one or more pallets of perishable product (“a mechanism is further provided to move pallet closure-sealing pads to meet the pallets that have been loaded into the one of (i) a mobile container or (ii) a semi-trailer, to create a seal to create a positive air flow plenum and thus force air through the pallets instead of around. According to one embodiment, the mechanism to move the pallet closure-sealing pads may be operated by at least one of hydraulic means (cylinders), at least one mechanical device or drive (such as a pulley or servo motor), or air pressure (inflatable pads or cushions)” [0046]);
(d) at least one treatment delivery mechanism (“FIG. 4B, a treatment sprayer (140) can be included to provide this gaseous, very small micron substance, or vaporized sanitizer to the air flow plenum (120) to be recirculated through the pallets (150)” [00138]);
(e) one or more conveyors configured to move the one or more pallets of perishable product through the pass-through system (“shuttle conveyor system (160) that moves pallets (150) in and then back out of the container (100)” [001139]); and
(f) a treatment chamber configured to provide a sealed environment for treating and/or cooling the perishable product (Figs. 4A, 4B, container (100); [00138]; [00157]).
Regarding claim 4, Bowden discloses wherein the forced air is cooled (“fans (122) and cooling coils (124) are placed along the side of one wall to create an air flow plenum”; “the modified container or semi-trailer of the invention is modified to add supplemental air flow and cooling capacity that is adjacent to each pallet” [00138]).
Regarding claim 5, claim 5 recites, “[t]he system according to claim 1, wherein the one or more pallets of perishable product includes at least one of (i) a secured top sheet or top cap, (ii) a bottom sheet or cap, or (iii) a combination of (i) and (ii), to contain and/or channel the forced air being recirculated through the one or more pallets of perishable product and across the perishable products contained on the one or more pallets of perishable product via the at least one axial fan.”
“[T]he one or more pallets” is not a positively-recited element of the claimed invention. Rather, the claimed invention is the mobile, modular pass-through system, while the one or more pallets is an article worked upon by the claimed system. “A claim is only limited by positively recited elements. Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).” MPEP § 2115. Bowden discloses all of the positively-recited structure of the claim, and therefore, anticipates the claim.
Regarding claim 6, Bowden discloses wherein the at least one treatment delivery mechanism is configured to provide a small micron, gaseous, vaporized, and/or atomized functional substance treatment to the perishable product contained on the one or more pallets of perishable product via recirculated air (“FIG. 4B, a treatment sprayer (140) can be included to provide this gaseous, very small micron substance, or vaporized sanitizer to the air flow plenum (120) to be recirculated through the pallets (150)” [00138]).
Regarding claim 7, claim 7 recites, “wherein the substance treatment does not saturate the perishable product with excess moisture.” This is a functional limitation drawn toward the intended use or manner of operating the claimed apparatus. When the cited prior art teaches all of the positively recited structure of the claimed apparatus, it will be held that the prior art apparatus is capable of performing all of the claimed functional limitations of the claimed apparatus. The courts have held that: (1) "apparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990), and (2) a claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). MPEP § 2114.
Regarding claim 8, claim 8 recites, “[t]he system according to claim 6, wherein the perishable product is within containers having two or more vents and/or an uncovered open top in order for the perishable product to be treated with the substance treatment provided by the at least one treatment delivery mechanism, by allowing airflow to contact the perishable product.”
“[T]he perishable product” is not a positively-recited element of the claimed invention. Rather, the claimed invention is the mobile, modular pass-through system, while the perishable product is an article worked upon by the claimed system. “A claim is only limited by positively recited elements. Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).” MPEP § 2115. Bowden discloses all of the positively-recited structure of the claim, and therefore, anticipates the claim.
Regarding claim 9, Bowden discloses wherein the at least one treatment delivery mechanism is configured to provide substance treatments that include one or more of hydration, sanitizing, conditioning, neutralization of fungicide/pesticide/herbicide chemicals on a surface of the perishable product, and other protective, preservative, and functional substances or treatments (“treatment sprayer (140) can be included to provide this gaseous, very small micron substance, or vaporized sanitizer to the air flow plenum (120) to be recirculated through the pallets (150)” [00138]; furthermore, treatment sprayer 140 is structurally capable of providing the above substances).
Regarding claim 10, Bowden discloses wherein the substance treatments include one or more of (i) sanitizers/oxidizers that comprise one or more of ozone, hydrogen peroxide, ionized hydrogen peroxide, peracetic acid, ionized water, acidified water, alkaline water, sulfur dioxide, chlorine compounds and derivatives, (ii) ethylene, (iii) 1-MCP, (iv) water/humidity, or (v) combinations thereof (“wherein the sanitizing substances include at least one of ozone, hydrogen peroxide, ionized hydrogen peroxide, ozonated water, ionized water, peracetic acid, sodium hypochlorite, ionized chlorinated water, electrochlorinated water, oxidizing materials, and any other form(s) (including ionized and oxidized forms) of these substances” [claim 23]; furthermore, treatment sprayer 140 is structurally capable of providing the above substances).
Regarding claim 11, Bowden discloses wherein the substance treatments are (i) selected from the group consisting of a sanitizer, an antifungal, an essential oil, a reducing agent, a surfactant, a humectant, a photosensitizer, a buffering agent, a mineral salt, an aroma, a sweetener or flavoring agent, a sealing or coating substance, an anti-browning substance, an ethylene scavenger, ethylene blocking compound, a ripening agent, a nutritional substance, a probiotic, a coloring, nano particles, phages, enzymes, sugar substance, an absorbent, a neutralizing agent, and an oxidizing agent, or (ii) selected from the group consisting of chlorine dioxide, hydrogen peroxide, peracetic acid, ozone, ionized water, ethephon, ethrel, and lauryl alcohol, lemon oil, orange oil, grapefruit oil, rosemary oil, sunflower oil, other fruit-derived oils, tea tree oil, cinnamon oil, eucalyptus oil, potassium oleate, sodium dodecyl sulfate (SDS), ascorbic acid, citric acid, sodium bicarbonate, calcium phosphate, esters, linear terpenes, cyclic terpenes, alcohols, aldehydes, esters, ketones, lactones, thiols, rose oil, rose essence, air, and fruit essence (“wherein a functional treatment is applied, the functional treatment comprising a substance selected from the group consisting of: a sanitizer, a preservative, an antifungal, an essential oil, a reducing agent, a surfactant, a humectant, a buffering agent, a mineral salt, alkali metal salts, an aroma, a flavoring agent, a sealing or coating substance, an anti-browning substance, an ethylene scavenger, hydrocolloid, cyclodextrins, lipids, metallic compounds, ethylene reducing compound, ethylene blocking compound, ethylene scavenging compound, a conditioning agent, a ripening agent, a nutritional substance, a probiotic, de greening or coloring substances, nanoparticles, phages, enzymes, and a sugar substance” [claim 41]; furthermore, treatment sprayer 140 is structurally capable of providing the above substances).
Regarding claim 12, Bowden discloses wherein the treatment chamber is configured to treat the perishable product (i) before the perishable product is cooled, (ii) while the perishable product is being cooled, or (iii) after the perishable product is cooled (“the sanitization can occur before cooling. The sanitization treatment within the container could also occur after cooling” [00144]).
Regarding claim 13, Bowden discloses wherein the treatment chamber is configured to treat the perishable product without applying heat (the disclosure of Bowden indicates that heat is not applied during the treatment process; additionally, Bowden discloses all of the positively-recited structure of the claim).
Regarding claim 14, claim 14 recites, “[t]he system according to claim 1, wherein the perishable product includes one or more of (i) pre-packed product after harvesting, (ii) bulk packed product into a harvest container to supply to a packing line, and (iii) product packed into a partial container that needs additional handling/processing steps to complete packing of harvested product.”
“[T]he perishable product” is not a positively-recited element of the claimed invention. Rather, the claimed invention is the mobile, modular pass-through system, while the perishable product is an article worked upon by the claimed system. “A claim is only limited by positively recited elements. Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).” MPEP § 2115. Bowden discloses all of the positively-recited structure of the claim, and therefore, anticipates the claim.
Regarding claim 24, Bowden discloses wherein the pass-through system comprises a modified shipping container, a semi-trailer, a prefabricated room, or one or more fabricated chambers/modules (“a mechanism is further provided to move pallet closure-sealing pads to meet the pallets that have been loaded into the one of (i) a mobile container or (ii) a semi-trailer, to create a seal to create a positive air flow plenum and thus force air through the pallets instead of around. According to one embodiment, the mechanism to move the pallet closure-sealing pads may be operated by at least one of hydraulic means (cylinders), at least one mechanical device or drive (such as a pulley or servo motor), or air pressure (inflatable pads or cushions)” [0046]).
Regarding claim 25, Bowden discloses one or more sensors configured to measure conditions within the treatment chamber, including properties of any treatment substances (“at least one sensor is included with the one of (i) a mobile container or (ii) a semi-trailer, wherein the at least one sensor performs the following step (a) measuring the concentration of the sanitizing substances in the air to achieve a prescribed treatment, (b) measuring a presence of at least one airborne microorganism to determine when to conclude a sanitizing treatment cycle, (c) measuring a pulp temperature of the perishable product to determine when to conclude a precooling cycle, (d) measuring the environment to determine when to conclude a venting and scrubbing of container gasses to enable removal of the product, and (e) measuring liquid condensate to determine treatment for wastewater removal” [0048]).
Regarding claim 26, Bowden discloses a control system configured to control the treating and/or cooling of the perishable product based on the conditions measured by the one or more sensors (“wherein the at least one sensor is configured to supply data to a control program of a controller in which a prescribed recipe is saved and the controller will adjust one or more parameters of the process to achieve at least one of a target cooling rate, relative humidity, atmosphere level, substance treatment level, and microorganism count reduction” [claim 68]).
Regarding claim 27, claim 27 recites, “[t]he system according to claim 1, wherein the perishable product includes one or more types of perishable product in the one or more pallets of perishable product.”
“[T]he perishable product” is not a positively-recited element of the claimed invention. Rather, the claimed invention is the mobile, modular pass-through system, while the perishable product is an article worked upon by the claimed system. “A claim is only limited by positively recited elements. Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).” MPEP § 2115. Bowden discloses all of the positively-recited structure of the claim, and therefore, anticipates the claim.
Regarding claim 31, Bowden discloses wherein the at least one axial fan is configured (i) to apply forced air pressure to distribute substance treatment through the one or more pallets, and (ii) to create air flow that is reversible to either force air through the one or more pallets or suck air back through it (“ the pallets are cooled and sanitized/treated within the mobile container (“forced air cooling/sanitize”)” [00159]; Fig. 4A shows at least one axial fan 122 with supply air flow in one direction and return air flow in the opposite direction).
Regarding claim 32, claim 32 recites, “[t]he system according to claim 31, wherein the one or more pallets of perishable product includes at least one of (i) a secured top sheet or top cap, (ii) a bottom sheet or cap, or (iii) a combination of (i) and (ii), to contain and/or channel the air flow being created by the at least one axial fan.”
“[T]he one or more pallets” is not a positively-recited element of the claimed invention. Rather, the claimed invention is the mobile, modular pass-through system, while the one or more pallets is an article worked upon by the claimed system. “A claim is only limited by positively recited elements. Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).” MPEP § 2115. Bowden discloses all of the positively-recited structure of the claim, and therefore, anticipates the claim.
Regarding claim 33, Bowden discloses wherein the one or more sealing mechanisms achieve a seal when the at least one axial fan operates in either a forced air or suction air flow (the sealing mechanism is described as follows: “a mechanism is further provided to move pallet closure-sealing pads to meet the pallets that have been loaded into the one of (i) a mobile container or (ii) a semi-trailer, to create a seal to create a positive air flow plenum and thus force air through the pallets instead of around. According to one embodiment, the mechanism to move the pallet closure-sealing pads may be operated by at least one of hydraulic means (cylinders), at least one mechanical device or drive (such as a pulley or servo motor), or air pressure (inflatable pads or cushions)” [0046]; this sealing mechanism is capable of achieving a seal when the fan operates in either a forced air or suction air flow).
Regarding claim 34, Bowden discloses cooling coils (Fig. 4B, “cooling coils (124)” [00138]) and related refrigeration equipment to reduce a temperature of the perishable product (since cooling coils 124 provide cool air to “cool each pallet” [00138], it is understood that related refrigeration equipment is provided to achieve this; please see also the 112(b) rejection associated with this limitation).
Regarding claim 35, claim 35 recites, “[t]he system according to claim 1, wherein the perishable product is treated with sanitizing substances that include at least one of ozone, hydrogen peroxide, ionized hydrogen peroxide, ozonated water, ionized water, peracetic acid, sodium hypochlorite, ionized chlorinated water, electrochlorinated water, oxidizing materials, and any other form(s) (including ionized and oxidized forms) of these substances.”
“[T]he perishable product” is not a positively-recited element of the claimed invention. Rather, the claimed invention is the mobile, modular pass-through system, while the perishable product is an article worked upon by the claimed system. “A claim is only limited by positively recited elements. Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).” MPEP § 2115. Bowden discloses all of the positively-recited structure of the claim, and therefore, anticipates the claim.
Regarding claim 36, claim 36 recites, “[t]he system according to claim 35, wherein the sanitizing substances are mixed with a carrier that includes one of air or water.
“[T]he sanitizing substances” is not a positively-recited element of the claimed invention. Rather, the claimed invention is the mobile, modular pass-through system, while sanitizing substance, with which the perishable product is treated, is an article worked upon by the claimed system. “A claim is only limited by positively recited elements. Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).” MPEP § 2115. Bowden discloses all of the positively-recited structure of the claim, and therefore, anticipates the claim.
Regarding claim 37, Bowden discloses wherein sanitizing substances are added to recirculating air continually, intermittently, in stages, steps, cycles, or pulses (“The delivery of the treatments via the improved system and apparatus may be continual, intermittent, pulsed, sequential, or otherwise staged to effect maximum anti-microbial efficacy” [0001]).
Regarding claim 38, claim 38 recites, “[t]he system according to claim 1, wherein the perishable product includes one or more of tomatoes, berries, cherries, fresh cut flowers, cannabis products, hemp products, or other fruits and vegetables.”
“[T]he perishable product” is not a positively-recited element of the claimed invention. Rather, the claimed invention is the mobile, modular pass-through system, while the perishable product is an article worked upon by the claimed system. “A claim is only limited by positively recited elements. Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).” MPEP § 2115. Bowden discloses all of the positively-recited structure of the claim, and therefore, anticipates the claim.
Regarding claim 40, Bowden discloses wherein components of the system comprise specialized materials of construction that are used to protect surfaces and mechanical components from damaging effects of any oxidizers and sanitizers used (“special coatings can be applied to the surface of the interior of the container or semi-trailer and/or construction materials such as, e.g., stainless steel are used that are resistant to damage from strong sanitizers can be used to allow for these types of sanitizing treatments for certain types of products” [00138]).
Regarding claim 41, Bowden discloses wherein the one or more sealing mechanisms permit movement of the one or more pallets during operation either by releasing if air flow is stopped or mechanical components pull material back, or rotate, roll with, or are directionally aligned with the movement of the one or more pallets while air is still flowing (“ mechanism is further provided to move pallet closure-sealing pads to meet the pallets that have been loaded into the one of (i) a mobile container or (ii) a semi-trailer, to create a seal to create a positive air flow plenum and thus force air through the pallets instead of around. According to one embodiment, the mechanism to move the pallet closure-sealing pads may be operated by at least one of hydraulic means (cylinders), at least one mechanical device or drive (such as a pulley or servo motor), or air pressure (inflatable pads or cushions). When loading or unloading the container, the mechanism releases the pads and backs away from the pallets” [0046]).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 2-3 are rejected under 35 U.S.C. 103 as being unpatentable over Bowden et al. (WO 2021/222753) in view of Azzopardi (US 2017/0102178).
Regarding claim 2, Bowden does not expressly disclose wherein the one or more sealing mechanisms comprise (i) at least one vertical sealing device and (ii) at least one horizontal sealing device.
Azzopardi is directed to a dual trailer cooling unit [Title]. Azzopardi discloses one or more sealing mechanisms comprising (i) at least one vertical sealing device and (ii) at least one horizontal sealing device (“vertical seals 178 and horizontal seals 180” [0054]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the one or more sealing mechanisms comprise (i) at least one vertical sealing device and (ii) at least one horizontal sealing device. This is a known means for forming a seal around perishable items, applied to a known device, to achieve predictable results.
Regarding claim 3, Bowden / Azzopardi does not expressly disclose wherein the one or more sealing mechanism comprise (i) two vertical sealing devices and (ii) two horizontal sealing devices.
However, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the one or more sealing mechanism comprise (i) two vertical sealing devices and (ii) two horizontal sealing devices, since the courts have held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced. MPEP § 2144.04-VI-B.
Claims 15-18 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Bowden et al. (WO 2021/222753) in view of Camalez (US 2018/0027832).
Regarding claim 15, Bowden does not expressly disclose wherein the one or more conveyors are configured to move the one or more pallets quickly into and out of the treatment chamber and hold them in place, move them at a deliberate rate through, or pause for a specified treatment dwell time within individual treatment zones of the treatment chamber or the treatment chamber of the pass-through system.
Camalez is directed to a “Method and conveyor belt apparatus for the continuous gasification of cranberries with SO2 gas” [Title]. Camalez discloses wherein a conveyor is configured to pause for a specified treatment dwell time within individual treatment zones of a treatment chamber or the treatment chamber of a pass-through system (“The conveyor belt is electronically and automatically activated to advance and halt alternately. Each advance covers the distance of one module, before then halting for a pause” [0006]; “ The process then advances to a third module (8) (open or in a tunnel) where the recently chilled fruit will condense humidity on its skin. (If the relative ambient humidity is very low, a source of water vapour could be implemented at this station.) Upon completion of the humidification pause, the belt will automatically advance to the fourth station (9), implemented with a tunnel for gasification (with SO.sub.2 gas). This station comprises a very narrow tunnel (with little free space), such that a dose of gas is injected half-way along its length when the belt halts (at the start of the pause). According to our experience, the SO.sub.2 gas is powerfully attracted (hydrophilia) by the frozen humidity (close to 0° C.) applied to the skin of the fruit in the processes of the previous two stations (pre-chilling and humidification)” [0022]-[0023]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the one or more conveyors are configured to move the one or more pallets quickly into and out of the treatment chamber and hold them in place, move them at a deliberate rate through, or pause for a specified treatment dwell time within individual treatment zones of the treatment chamber or the treatment chamber of the pass-through system. Pausing the conveyor for a treatment dwell time allows a treatment solution to be applied such that a desired result, such as sanitization, can be achieved.
Regarding claim 16, Bowden does not expressly disclose wherein each of the individual treatment zones within the treatment chamber or the treatment chamber is configured and programmed to deliver a product specific treatment and/or a defined substance treatment with a defined dwell time, wherein the one or more conveyors pause the one or more pallets to achieve the product specific treatment and/or the defined substance treatment for the defined dwell time within the individual treatment zones within the treatment chamber or the treatment chamber of the pass-through system.
Camalez discloses wherein each of individual treatment zones within a treatment chamber or the treatment chamber is configured and programmed to deliver a product specific treatment and/or a defined substance treatment with a defined dwell time, wherein the one or more conveyors pause one or more elements to achieve the product specific treatment and/or the defined substance treatment for the defined dwell time within the individual treatment zones within the treatment chamber or the treatment chamber of the pass-through system (“The conveyor belt is electronically and automatically activated to advance and halt alternately. Each advance covers the distance of one module, before then halting for a pause” [0006]; “The process then advances to a third module (8) (open or in a tunnel) where the recently chilled fruit will condense humidity on its skin. (If the relative ambient humidity is very low, a source of water vapour could be implemented at this station.) Upon completion of the humidification pause, the belt will automatically advance to the fourth station (9), implemented with a tunnel for gasification (with SO.sub.2 gas). This station comprises a very narrow tunnel (with little free space), such that a dose of gas is injected half-way along its length when the belt halts (at the start of the pause). According to our experience, the SO.sub.2 gas is powerfully attracted (hydrophilia) by the frozen humidity (close to 0° C.) applied to the skin of the fruit in the processes of the previous two stations (pre-chilling and humidification)” [0022]-[0023]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein each of individual treatment zones within a treatment chamber or the treatment chamber is configured and programmed to deliver a product specific treatment and/or a defined substance treatment with a defined dwell time, wherein the one or more conveyors pause the one or more pallets to achieve the product specific treatment and/or the defined substance treatment for the defined dwell time within the individual treatment zones within the treatment chamber or the treatment chamber of the pass-through system. This allows a treatment solution to be applied such that a desired result, such as sanitization, can be achieved.
Regarding claim 17, Bowden discloses wherein the one or more conveyors are configured to move the one or more pallets into and out of the treatment chamber (“shuttle conveyor system (160) that moves pallets (150) in and then back out of the container (100)” [00139]), wherein the one or more conveyors reverse direction so treated pallets exit the treatment chamber (“The shuttle conveyor can be either an “in-and-out” design from one end, or a pass-thru design where the pallets are loaded at one end and removed from the other end” [00151]).
Bowden does not expressly disclose wherein the one or more conveyors are configured to hold the one or more pallets in place for a specified treatment dwell time within individual treatment zones of the treatment chamber or the treatment chamber of the pass-through system.
Camalez discloses wherein one or more conveyors are configured to hold one or more elements in place for a specified treatment dwell time within individual treatment zones of a treatment chamber or the treatment chamber of the pass-through system (“The conveyor belt is electronically and automatically activated to advance and halt alternately. Each advance covers the distance of one module, before then halting for a pause” [0006]; “The process then advances to a third module (8) (open or in a tunnel) where the recently chilled fruit will condense humidity on its skin. (If the relative ambient humidity is very low, a source of water vapour could be implemented at this station.) Upon completion of the humidification pause, the belt will automatically advance to the fourth station (9), implemented with a tunnel for gasification (with SO.sub.2 gas). This station comprises a very narrow tunnel (with little free space), such that a dose of gas is injected half-way along its length when the belt halts (at the start of the pause). According to our experience, the SO.sub.2 gas is powerfully attracted (hydrophilia) by the frozen humidity (close to 0° C.) applied to the skin of the fruit in the processes of the previous two stations (pre-chilling and humidification)” [0022]-[0023]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the one or more conveyors are configured to hold the one or more pallets in place for a specified treatment dwell time within individual treatment zones of the treatment chamber or the treatment chamber of the pass-through system. This allows a treatment solution to be applied such that a desired result, such as sanitization, can be achieved.
Regarding claim 18, Bowden does not expressly disclose wherein the one or more conveyors hold the one or more pallets in place for (i) a short duration treatment dwell time of less than one minute to treat the perishable product within individual treatment zones of the treatment chamber or the treatment chamber of the pass-through system, (ii) a medium duration treatment dwell time of one minute to 15 minutes to treat the perishable product within individual treatment zones of the treatment chamber or the treatment chamber of the pass-through system, and/or (iii) a prolonged duration treatment dwell time when adding one or more cooling chambers of from 15 minutes to 120 minutes to treat the perishable product within individual treatment zones of the treatment chamber or the treatment chamber of the pass-through system.
However, Camalez discloses a pause / dwell time as described above. Additionally, Bowden discloses, “this system leverages the one hour or more of precooling time to provide an extended exposure period for sanitization” [0007].
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the one or more conveyors hold the one or more pallets in place for (i) a short duration treatment dwell time of less than one minute to treat the perishable product within individual treatment zones of the treatment chamber or the treatment chamber of the pass-through system, (ii) a medium duration treatment dwell time of one minute to 15 minutes to treat the perishable product within individual treatment zones of the treatment chamber or the treatment chamber of the pass-through system, and/or (iii) a prolonged duration treatment dwell time when adding one or more cooling chambers of from 15 minutes to 120 minutes to treat the perishable product within individual treatment zones of the treatment chamber or the treatment chamber of the pass-through system. This is the use of a known means of operating a conveyor to provide a dwell time, applied to a known system that can provide sanitization for “one hour or more,” to achieve predictable results.
Regarding claim 39, Bowden does not expressly disclose multiple contained treatment zones in which one or more different treatments can be applied to accomplish multiple benefits and/or enhancements to the perishable product.
Camalez discloses multiple contained treatment zones in which one or more different treatments can be applied to accomplish multiple benefits and/or enhancements to the perishable product (“This conveyor belt (5) is devised to travel through the “stations” or modules (6) where the different processes are implemented as required. Each module is allocated to a specific process” [0019]; [0020]-[0025] describe each zone).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include multiple contained treatment zones in which one or more different treatments can be applied to accomplish multiple benefits and/or enhancements to the perishable product. This allows for providing different treatments to the product, each having a different purpose.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Bowden et al. (WO 2021/222753) in view of Kimrey (US 2019/0124731).
Regarding claim 22, Bowden does not expressly disclose wherein the pass-through system has transition zones that are present just before and just after treatment zones of the treatment chamber where pallets can collect and stage before entry and after exit to provide containment of any treatment substances from exiting the pass-through system.
Kimrey is directed to temperature-controlled processing system [Abstract]. Kimrey discloses wherein a pass-through system has transition / holding zones (“passing said article in said carrier through a holding zone, wherein a temperature of a coldest portion of said article is maintained at or above a target temperature for a period of time in said holding zone” [0174]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the pass-through system has transition zones that are present just before and just after treatment zones of the treatment chamber where pallets can collect and stage before entry and after exit to provide containment of any treatment substances from exiting the pass-through system. This allows for proving a location for an article to be held before it is treated.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Bowden et al. (WO 2021/222753) in view of Kimrey (US 2019/0124731), further in view of Windecker (US 6,405,644).
Regarding claim 23, Bowden / Kimrey does not expressly disclose wherein the transition zones use one or more of rollup, side swing, or sliding doors to quickly open and close for pallet movement and substance containment.
Windecker is directed to an “Environmentally Controlled Storage And Ripening Apparatus” [Title]. Windecker discloses utilizing a sliding door (“Although access is allowed to several pallets at a time, the slab door 10 does not protrude into the aisle, therefore the aisles may be more narrow. Additionally, the design of the door aids in a reduction in potential damage to the door. In a preferred embodiment, the door opening of the palletized cabinet is framed in metal to tolerances, which ensure a good seal. In a further preferred embodiment, the doors are constructed to slide in an accordion manner” [Col. 7, lines 49-57]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the transition zones use one or more of rollup, side swing, or sliding doors to quickly open and close for pallet movement and substance containment. This is the use of a known type of door, applied to a known device, to achieve predictable results.
Claims 28-29 are rejected under 35 U.S.C. 103 as being unpatentable over Bowden et al. (WO 2021/222753) in view of Whitman et al. (US 2021/0082022).
Regarding claim 28, Bowden does not expressly disclose one or more sensors configured to identify the one or more types of perishable product in the one or more pallets of perishable product to thereby control the treating and/or cooling of the perishable product.
Whitman is directed to systems and methods for generating visual disposition data [Title]. Whitman discloses one or more sensors configured to identify one or more types of perishable product (“micro-climate sensors 212 may be designed to measure local environmental data for a specific SKU, a type of item (e.g., strawberries or berries where there may be more than a single SKU)” [0120]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include one or more sensors configured to identify the one or more types of perishable product in the one or more pallets of perishable product to thereby control the treating and/or cooling of the perishable product. This would allow for proper identification of the perishable product.
Regarding claim 29, Bowden discloses a control system configured to control the treating and/or cooling of the perishable product (“programmable controller” [00166]), and utilizing sensors with the controller [00166]).
Bowden does expressly disclose wherein control is based on the one or more types of perishable product identified by the one or more sensors.
However, Whitman discloses a sensor for identifying one or more types of perishable product as described above.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein control is based on the one or more types of perishable product identified by the one or more sensors, in order to apply appropriate cooling and or treatment specific to a particular perishable product.
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Bowden et al. (WO 2021/222753) in view of Whitman et al. (US 2021/0082022), further in view of Bowden et al. (US 2020/0281233), hereinafter Bowden ‘233.
Regarding claim 30, Bowden does not expressly disclose wherein the control system is configured to control the treating and/or cooling of the perishable product based on machine learning related to treating and/or cooling of a previously-treated perishable product based on a type of the previously-treated perishable product.
Bowden ‘233 is directed to systems for applying treatments to perishable goods [Title]. Bowden ‘233 discloses wherein the control system is configured to control the treating and/or cooling of the perishable product based on machine learning related to treating (“Aspects of the invention relate to an overall systems approach for determining the best and appropriate substances and treatments for each perishable product. According to embodiments, the system to define process needs may include determining points in the process where substance treatments can be inserted, determining optimal methods for substance addition, providing other enhancements such as reduced dehydration and cross-contamination, and combinations thereof. Aspects of the invention include determining and integrating process management and controls. According to embodiments, process management and controls may include options for automatic or manual over-ride, integrating computer/PLU software-based processes, local and remote control, sensors used to direct treatment conditions and achieve target results (including vision technology, microorganism detection and measurement), and feedback loops, and use of artificial intelligence/machine learning” [0043]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the control system is configured to control the treating and/or cooling of the perishable product based on machine learning related to treating and/or cooling of a previously-treated perishable product based on a type of the previously-treated perishable product. The use of machine learning is a known tool, applied to a known device, to achieve predictable results.
Allowable Subject Matter
Claim 19 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims. The prior art of record does not teach, disclose, or suggest wherein the one or more sealing mechanisms engage with the one or more pallets of perishable product to create a seal around contact points on the one or more pallets and the at least one plenum for channeling the forced air being recirculated through the one or more pallets of perishable product and across the perishable products contained on the one or more pallets of perishable product during treatment. Claims 20-21 would also be allowable by virtue of their dependence on claim 19.
Conclusion
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/ELIZABETH M KERR/Primary Examiner, Art Unit 3761
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