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 .
Applicant’s response filed 01/29/2026 is acknowledged. Claims 1-20 are pending.
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.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over US 6,112,429 to Mitchell et al. (“Mitchell”) in view of US 2008/0274263 to Mazin (“Mazin”).
Regarding claim 20, Mitchell teaches a food washing system (abstract) useful for washing fresh produce, comprising: a short-term wash treatment solution (col. 4, line 64 – col. 5, line 12, note Fig. 7B, right side, fluid in ref. 220); a short-term wash device (Fig. 7B, right side, incl. ref. 220, col. 4, line 64 – col. 5, line 12) configured to apply the short-term wash treatment solution to the fresh produce; and a wash device (Fig. 7B, left side, incl. ref. 222, col. 4, line 64 – col. 5, line 12) coupled to the short-term wash device and configured to apply a wash treatment to the fresh produce after the short-term wash treatment solution is applied to the fresh produce.
Mitchell does not explicitly teach that the short-wash treatment solution comprises an acidulant and glycerin, and that the short-term wash device is configured to apply the short-term wash treatment solution to the fresh produce for a shorter duration than the wash treatment is applied to the fresh produce; and the short-term wash treatment solution is chemically different from the wash treatment. Initially, it is noted that the recited fresh produce and wash treatment are not positively claimed and are not understood to be required structural features of the claimed system. Mazin teaches a system for washing food (abstract, para [0019]) including a washing treatment comprising an acidulant such as phosphoric acid (para. [0040]), which is disclosed as advantageously enhancing the permeability of the food and serving as a preservative (para [0036]), and glycerin, which is disclosed as useful for enhancing flavor (para [0034]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the Mitchell system in view of Mazin wherein the short-wash treatment solution comprises an acidulant and glycerin, with a reasonable expectation, in order to enhance the permeability, preservation and flavor of the food. The Mitchell/Mazin system appears to be fully capable of being operated in the manner recited, i.e. the short-term wash treatment solution is applied to the fresh produce for a shorter duration than the wash treatment is applied to the fresh produce, and the short-term wash treatment solution is chemically different from the wash treatment, since it includes the claimed structural features.
Mitchell does not explicitly teach the system being operated in a manner wherein the short-term wash device is configured to avoid damage to the fresh produce when applying the short-term wash treatment solution to the fresh produce. However, Mitchell discloses a desire to inhibit damage to the fresh produce (abstract, col. 3, lines 21-36, 54-63). Thus, in the absence of a teaching of a step of intentionally damaging the fresh produce with the short-term wash device, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the Mitchell system wherein the short-term wash device is configured to avoid damage to the fresh produce when applying the short-term wash treatment solution to the fresh produce, with a reasonable expectation of success, in order to inhibit waste of fresh produce and the labor of damaged fresh produce removal and disposal. Further, the Mitchell system appears to be fully capable of being operated in the manner recited since it includes the claimed structural features.
Claims 1-3 and 8-19 are rejected under 35 U.S.C. 103 as being unpatentable over US 6,112,429 to Mitchell et al. (“Mitchell”) in view of US 2008/0274263 to Mazin (“Mazin”) and in further in view of US 2006/0276541 to Tautvydas et al. (“Tautvydas”).
Regarding claim 1, Mitchell teaches a food washing system (abstract) useful for washing fresh produce, comprising: a short-term wash treatment solution (col. 4, line 64 – col. 5, line 12, note Fig. 7B, right side, fluid in ref. 220); a short-term wash device (Fig. 7B, right side, incl. ref. 220, col. 4, line 64 – col. 5, line 12) configured to apply the short-term wash treatment solution to the fresh produce; and a wash device (Fig. 7B, left side, incl. ref. 222, col. 4, line 64 – col. 5, line 12) coupled to the short-term wash device and configured to apply a wash treatment to the fresh produce after the short-term wash treatment solution is applied to the fresh produce.
Mitchell does not explicitly teach that the short-wash treatment solution comprises an acidulant and propylene glycol, and that the short-term wash device is configured to apply the short-term wash treatment solution to the fresh produce for a shorter duration than the wash treatment is applied to the fresh produce; and the short-term wash treatment solution is chemically different from the wash treatment. Initially, it is noted that the recited fresh produce and wash treatment are not positively claimed and are not understood to be required structural features of the claimed system. Mazin teaches a system for washing food (abstract, para [0019]) including a washing treatment comprising an acidulant such as phosphoric acid (para. [0040]), which is disclosed as advantageously enhancing the permeability of the food and serving as a preservative (para [0036]). Tautvydas teaches a food disinfectant (abstract) including propylene glycol as a vehicle (para [0005], [0008]), which is disclosed as advantageously inhibiting microbe levels (abstract). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the Mitchell system in view of Mazin wherein the short-wash treatment solution comprises an acidulant, and in further view of Tautvydas wherein the short-wash treatment solution comprises propylene glycol, with a reasonable expectation, in order to enhance the permeability and preservation of the food and to serve as an effective vehicle for food disinfection, respectively. The Mitchell/Mazin/Tautvydas system appears to be fully capable of being operated in the manner recited, i.e. the short-term wash treatment solution is applied to the fresh produce for a shorter duration than the wash treatment is applied to the fresh produce, and the short-term wash treatment solution is chemically different from the wash treatment, since it includes the claimed structural features.
Mitchell does not explicitly teach the system being operated in a manner wherein the short-term wash device is configured to avoid damage to the fresh produce when applying the short-term wash treatment solution to the fresh produce. However, Mitchell discloses a desire to inhibit damage to the fresh produce (abstract, col. 3, lines 21-36, 54-63). Thus, in the absence of a teaching of a step of intentionally damaging the fresh produce with the short-term wash device, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the Mitchell system wherein the short-term wash device is configured to avoid damage to the fresh produce when applying the short-term wash treatment solution to the fresh produce, with a reasonable expectation of success, in order to inhibit waste of fresh produce and the labor of damaged fresh produce removal and disposal. Further, the Mitchell system appears to be fully capable of being operated in the manner recited since it includes the claimed structural features.
Regarding claim 2, Mitchell does not explicitly teach the system wherein the acidulant comprises lactic acid. However, Tautvydas discloses that lactic acid is useful as an enhancer for a formulation for reducing microorganism levels (para [0004] – [0005]). The skilled artisan would have found it obvious to further modify the Mitchell/Mazin/Tautvydas system in view of Tautvydas wherein the acidulant comprises lactic acid, with a reasonable expectation of success, since it is disclosed as an enhancer for a formulation for reducing microorganism levels.
Regarding claim 3, Mitchell/Mazin/Tautvydas disclose a system wherein the lactic acid is between 0.1% to 10% by weight of the short-term wash treatment solution (Tautvydas, para [0005], claim 14), but does not explicitly teach that the propylene glycol is from 0.1% to 10% by weight of the short-term wash treatment solution. However, since too little propylene glycol risks insufficient conveyance of the solution, while too much propylene glycol risks waste, the weight percent of the propylene glycol is a result-effective variable and the skilled artisan would have found it obvious to optimize the weight percent of propylene glycol through routine experimentation with predicable results.
Regarding claim 8, Mitchell does not explicitly teach the system wherein the acidulant comprises phosphoric acid. Mazin further discloses that phosphoric acid is an effective acidulant (para [0040]). The skilled artisan would have found it obvious to modify the Mitchell/Mazin/Tautvydas system wherein he acidulant comprises phosphoric acid, with a reasonable expectation of success, since it was known as an effective acidulant.
Regarding claim 9, Mitchell/Mazin/Tautvydas disclose a system wherein an acid acidulant is between 0.1% to 10% by weight of the short-term wash treatment solution (Mazin, para [0026]), but do not explicitly teach the system wherein the phosphoric acid is about 6% by weight of the short-term wash treatment solution. However, overlapping ranges are prima facie obvious. Note MPEP 2145.05(I).
Regarding claim 10, Mitchell/Mazin/Tautvydas disclose a system wherein an acid acidulant is between 0.1% to 10% by weight of the short-term wash treatment solution (Mazin, para [0026]), and wherein the proplylene glycol is in a range overlapping the claimed range (Mazin, para [0008]), but do not explicitly teach the system. It is noted that overlapping ranges are prima facie obvious. Note MPEP 2145.05(I).
Regarding claim 11, Mitchell does not explicitly teach the system being operated in a manner wherein the short-term wash treatment solution has greater microbial lethality than the wash treatment. However, the Mitchell system appears to be fully capable of being operated in the manner recited since it includes the claimed structural features.
Regarding claim 12, Mitchell does not explicitly teach the system being operated in a manner wherein the short-term wash treatment solution provides a supplemental wash lethality of greater than 1 log against microbes found on the fresh produce as compared to a lethality of the wash treatment in the wash device alone. However, the Mitchell system appears to be fully capable of being operated in the manner recited since it includes the claimed structural features.
Regarding claim 13, Mitchell does not explicitly teach the system being operated in a manner wherein the short-term wash device is configured to apply the short-term wash treatment solution to the fresh produce between 3 seconds and 1.5 minutes at a temperature between 30° F and 50° F. However, the Mitchell system appears to be fully capable of being operated in the manner recited since it includes the claimed structural features.
Regarding claims 14 and 15, Mitchell does not explicitly teach the system being operated in a manner wherein the wash treatment comprises: free active chlorine from 2 to 40 ppm by weight of the wash treatment; a compatible acidulant selected from a group consisting of phosphoric acid, citric acid, and lactic acid, wherein the compatible acidulant is from 10 to 1000 ppm by weight of the wash treatment; and a polyol selected from a group consisting of glycerin and propylene glycol, wherein the polyol is from 2 to 500 ppm by weight of the wash treatment, or wherein the wash treatment further comprises: chloride from 1 to 100 ppm by weight of the wash treatment; and peroxyacetic acid from 1 to 100 ppm by weight of the wash treatment. However, the Mitchell system appears to be fully capable of being operated in the manner recited since it includes the claimed structural features.
Regarding claim 16, Mitchell discloses a food washing system wherein: the short-term wash device comprises at least one from a group consisting of a rotating drum short-term wash device, an air column short-term wash device, a slicer/dicer short-term wash device, a spray curtain, a shaker, and a timing belt (ref. 212 and 228, col. 4, lines 51-63, col. 5, lines 21-33); and to apply the short-term wash treatment solution, the short-term wash device is configured to spray, with a spray device (any of spray bars ref. 218 and/or spray jets ref. 223, 224, or spray bars ref. 240, col. 4, line 64 – col. 5, line 20, col. 5, lines 39-54) integrated with the at least one from the group, the short-term wash treatment solution on the fresh produce. It is noted that the recited spray device is not positively claimed and is not understood to be a required structural feature of the claimed system.
Regarding claim 17, Mitchell discloses a food washing system wherein to apply the short-term wash treatment solution to the fresh produce, the short-term wash device is configured to: submerse the fresh produce into the short-term wash treatment solution (note tank ref. 220); and sift the fresh produce out of the short-term wash treatment solution (at the region of spray bars ref. 240).
Regarding claim 18, Mitchell discloses a food washing system wherein to apply the short-term wash treatment solution, the short-term wash device is configured to spray the short-term wash treatment solution on the fresh produce (note Fig. 7B, spray bars ref. 218, 240).
Regarding claim 19, Mitchell discloses a pre-rinse device (via spray bars ref. 218, note Fig. 7B) coupled to the short-term wash device and configured to apply a pre-rinse with wash water to the fresh produce before the short-term wash device applies the short-term wash treatment solution, wherein the food washing system is configured to dispose of the wash water directly after the pre-rinse is applied.
Claims 4-7 are rejected under 35 U.S.C. 103 as being unpatentable over US 6,112,429 to Mitchell et al. (“Mitchell”) in view of US 2008/0274263 to Mazin (“Mazin”) and US 2006/0276541 to Tautvydas et al. (“Tautvydas”) and in further view of US 2008/0319062 to Arata (“Arata”).
Regarding claim 4, Mitchell/Mazin/Tautvydas do not explicitly teach the system wherein the short-term wash treatment solution further comprises silver dihydrogen citrate. Arata teaches a disinfectant for consumable products (abstract) and discloses silver dihydrogen citrate as effective for inhibiting bacteria on a food product (para [0043] and [0047], claims 8 and 10)). The skilled artisan would have found it obvious to modify the Mitchell/Mazin/Tautvydas system in view of Arata wherein the short-term wash treatment solution further comprises silver dihydrogen citrate, with a reasonable expectation of success, in order to inhibit bacteria on the fresh produce.
Regarding claim 5, Mitchell/Mazin/Tautvydas/Arata discloses a system wherein the silver dihydrogen citrate is between 10 and 50 ppm of the short-term wash treatment solution (Arata, para [0162]).
Regarding claim 6, Mitchell/Mazin/Tautvydas/Arata disclose a system wherein the lactic acid is between 0.1% to 10% by weight of the short-term wash treatment solution (Tautvydas, para [0005], claim 14), but does not explicitly teach that the propylene glycol is from 0.1% to 10% by weight of the short-term wash treatment solution. However, since too little propylene glycol risks insufficient conveyance of the solution, while too much propylene glycol risks waste, the weight percent of the propylene glycol is a result-effective variable and the skilled artisan would have found it obvious to optimize the weight percent of propylene glycol through routine experimentation with predicable results.
Regarding claim 7, Mitchell/Mazin/Tautvydas/Arata disclose a system wherein the short-term wash treatment solution applied to the fresh produce comprises water (Mitchell, col. 4, line 64 — col. 5, line 12, and col. 5, lines 54-56) but do not explicitly teach that the water is chloride-free. However, lacking a teaching to include chloride with the water, the skilled artisan would have found it obvious to modify the Mitchell/Mazin/Tautvydas/Arata system wherein the water is chloride-free, with a reasonable expectation of success.
Response to Arguments
Applicant's arguments filed 01/29/2026 have been fully considered but they are not persuasive.
Regarding applicant’s argument generally that US 2008/0274263 to Mazin is nonanalogous art (remarks, page 8, para beginning “Applicant respectfully”), it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). Here, both applicant’s invention and the Mazin apparatus are in the field of food treatment (see the present abstract and the Mazin abstract).
Applicant argues that Mazin fails the first prong since, it is alleged, Mazin is entitled “System and Method for Producing a Dehydrated Food Product”, its abstract begins with “process and apparatus for preparing a dried food product”, its Field of Invention sections states “The present invention relates to the field of dehydrated food products” (remarks, page 8, last full para), whereas the present application’s stated field of endeavor is for fresh produce, and that these two contemplated uses of the claimed apparatus and prior art apparatus are very different fields of endeavor (remarks, para bridging pages 8-9). Initially, applicant is remined that the Mazin reference was cited by the applicant in applicant's information disclosure statement filed 02/08/2024. Further, applicant's contemplated use of the claimed apparatus is not so narrowly drawn, but is more broadly disclosed as useful with a "food product" (the present specification, abstract). The contemplated use with fresh produce is disclosed as an embodiment, but it is not applicant's only contemplated use embodiment (see the present specification at, inter alia, para [0012]). Neither is the contemplated use of the Mazin apparatus so narrowly drawn. Mazin explicitly teaches that it’s use of the word “dried” is “not intended to require any particular moisture reduction or maximum moisture level unless particularly noted” (para [0006]). Further, although Mazin contemplates its apparatus being “typically” used with a dehydrated food (para [0019]), this suggests that Mazin contemplates other scenarios where it is used with something that is not dehydrated food.
Further, both Mazin and the present invention are concerned with cleaning food (see, e.g., the present specification, abstract, and Mazin, para [0019}, [0024], [0025] and [0048]). Even if, arguendo, applicant contemplates its apparatus being used to clean food that is typically fresh, and Mazin contemplates its apparatus being used to clean food that is typically dehydrated, it is not clear how these contemplated uses are so different as to render Mazin nonanalogous art, especially since both are cleaning food.
Regarding applicant’s assertion that the Office has failed to consider the explanation of the presently claimed invention’s subject matter in the patent application (remarks, page 9, last full para), applicant’s attention is directed to the Office action mailed 09/29/2025, para bridging 11-12) where the Office refers to the present specification abstract and para [0012]).
Regarding applicant’s assertion that applicant has not intended for its citation of Mazin in an information disclosure statement to indicate that Mazin is in the same field of endeavor or even material to the issue of patentability (remarks, para bridging pages 9-10), it is certainly common that a applicant doesn’t necessarily consider such a citation to be material to patentability. It is somewhat less common for an applicant to cite references that applicant considers to be nonanalogous art. After all, if an applicant considers such a reference to be nonanalogous art, why ask the Office to consider the reference in an information disclosure statement?
Applicant argues that the test for nonanalogous art is not based upon the broader present specification disclosure of use with a “food product”, but rather on the present claim preamble wherein the claimed apparatus is “for washing fresh produce” (remarks, page 10, first full para). However, the preamble recitation of “for washing fresh produce” was not the claim language until the amendment filed 09/15/2025. Prior to that date, in the claims listings filed 10/30/2023, 05/19/2025, and 08/15/2025, the preamble recitation was “for washing a food product”. While it is common for claim amendments to be used to avoid the structural features of applied prior art, it is something else to consider that such a claim amendment renders the applied prior art to be nonanalogous art. It seems such an understanding would lead to situation where, e.g., a reference to a truck, that otherwise reads on a presently claimed truck, could be rendered nonanalogous art by an applicant amending a preamble to recite that their truck is “for transporting fresh produce”.
Applicant’s remarks regarding the second prong, i.e. reasonably pertinent to the particular problem with which the inventor was concerned (remarks, page 10, para beginning “With respect to the second prong”) are noted. However, the position of the Office is based on the first prong.
Conclusion
THIS ACTION IS MADE FINAL. 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 ERIC GOLIGHTLY whose telephone number is (571)270-3715. The examiner can normally be reached M-F: 10 am - 7 pm.
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/ERIC W GOLIGHTLY/Primary Examiner, Art Unit 1714