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
Applicant’s election of group I in the reply filed on 3/4/26 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claim 12 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group, there being no allowable generic or linking claim.
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 1-11 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.
The claims are generally narrative and indefinite, failing to conform with current U.S. practice. They appear to be a literal translation into English from a foreign document and are replete with grammatical and idiomatic errors.
Claim 1 recites “dehydrated or dried products”. It is not clear how one would differentiate between dried and dehydrated products.
Claim 1 recites “receive of the contaminated and partially or totally dehydrated product, whether due to natural or induced dehydration”. The term “the contaminated and partially or totally dehydrated product” lacks antecedent basis. It is not clear if “totally dehydrated” would require 0% moisture, or not. It is not clear what forms of dehydration would be considered “natural” and “induced”.
Claim 1 recites “it”. It is not clear what “it” is.
Claim 1 recites “conventional analysis techniques”. It is not clear if this is an admission that the analysis techniques were known and used in the art, or not.
The term “high” in claim 1 is a relative term which renders the claim indefinite. The term “high” 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 not clear what temperature levels would be considered “high”.
Claim 1 recites “product.”. It is not clear if the claim should end here, or not.
Claim 1 recites the limitation "the results". There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites “the parameters acceptable by the Safety Standards”. It is not clear which “Safety Standards” this refers to. It is not clear what level of decontamination is required.
Claim 1 recites the limitation "the dehydrated product already cleaned and/or decontaminated". There is insufficient antecedent basis for this limitation in the claim. It is not clear if the product must be decontaminated, or whether this is an optional step if it was also cleaned. It is not clear what would constitute a “cleaned” product since there are no steps for cleaning in the claim.
Claim 2 lists “baskets” twice. It is not clear if different types of baskets were intended to be claimed.
Claim 3 recites the limitation "the treatment that reduces chemical and/or biological contamination”. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites “0.3 to 3.5 bar pressure”, as well as “a vacuum of -1 to -29 mm Hg”. It is not clear if these pressure values are describing the same medium, or not. It is not clear how a single medium could possess two different pressure values.
Claim 6 recites “it”. It is not clear what “it” is.
Claim 7 recites “personal objects”. It is not clear what types of objects would be considered “personal”.
Claim 9 recites an “agricultural-livestock product”. It is not clear if this would require a product made from a livestock animal, or simply an agricultural product, or both. Child claim 10 recites “the agricultural product is an agricultural product”. There is insufficient antecedent basis for this limitation in the claim. It is not clear how this phrase would further limit the parent claim.
Claim 11 recites “the agricultural product is a dried chili type of “chile de arbol” (Capsicum spp.)”. It is not clear what type of product is required here. There is insufficient antecedent basis for “the agricultural product” in the claim.
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 1-5, 8-11 are rejected under 35 U.S.C. 103 as being unpatentable over Linaberry et al [US 3,973,047] in view of Shim et al [US 2002/0086099A1], Jian et al [US 10,582,713B2] and Imagawa [US 4,716,676].
Linaberry et al teach a process for dehydrating vegetables (title) by first partial dehydration of vegetables with hot air (column 8, line 16), subsequently killing bacteria with hot humid air in a decontamination step (column 8, line 19) wherein the bacteria is a biological contaminant, the decontamination using a wet bulb temperature range of 120-180F for up to 12 minutes (column 8, line 20-24), further drying with less humid hot air to reach a moisture content of about 8% (column 8, line 45), a preliminary step of washing and trimming the vegetables (column 6, line 15), the vegetables including an agricultural product such as carrots, bell peppers, spinach, cabbage, asparagus, celery, beans, and onions (column 1, line 19),
Linaberry et al do not explicitly recite analyzing and detecting contaminating agents, containers made from material resistant to temperature and pressure, and packaging (claim 1), the container being an open-top box/basket (claim 2), a pressure of 0.3-3.5 bar and vacuum of -1 to -29 mm Hg for 15-90 minutes (claim 3), removal of pesticides (claim 4), a metal detector and reducing metal contamination (claim 8), and the product being a dried chile de arbol (claim 11).
Shim et al teach a method for hygienically preparing dried pepper (title) by washing the peppers (Figure 2, #2), the washing resulting in removal of pesticides, dust, and foreign material (paragraph 0035), steam sterilizing the washed peppers to remove E coli (Figure 2, #5; paragraph 0037), drying the peppers (Figure 2, #6-7), analyzing the dried peppers by detecting foreign matter (ie physical contaminant) with a laser and separating the material (Figure 2, #8; paragraph 0023), separating iron particles (Figure 2, #10), and packaging the dried pepper (Figure 2, #11).
Imagawa teaches an insect killing system (title) comprising a chamber (Figure 2, A) with high temperature moist air and open-top boxes holding the food products (Figure 4, #24) and the food being green peppers (column 1, line 14).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed open-top boxes into the invention of Linaberry et al, in view of Imagawa, since both are directed to methods of decontaminating vegetables, since Linaberry et al already included killing bacteria with hot humid air in a decontamination step (column 8, line 19) but simply did not describe the physical device used, since biological decontamination systems commonly used high temperature moist air and open-top boxes holding the food products (Figure 4, #24) as shown by Imagawa, and since the claimed open-top boxes would have provided a convenient and effective means for holding the food during the heat treatment step of Linaberry, et al, in view of Imagawa.
It further would have been obvious to one of ordinary skill in the art to incorporate the claimed analyzing and detection of contaminating agents, packaging, and metal detection into the invention of Linaberry et al, in view of Shim et al, since both are directed to methods of decontaminating vegetables, since Linaberry et al already included removal of biological contamination such as bacteria with hot humid air, since food decontamination systems commonly included analyzing the dried peppers by detecting foreign matter (ie physical contaminant) with a laser and separating the material (Figure 2, #8; paragraph 0023), separating iron particles (Figure 2, #10), and packaging the dried pepper (Figure 2, #11) as shown by Shim et al; since an analyzing and detection step would be beneficial to Linaberry et al as different types and quantities of biological contaminants would require different temperatures and times for full decontamination, since packaging would help to better preserve the decontaminated foods before they reach the consumer, and since metal detection and metal removal would have prevented potentially harmful metal contaminants from being consumed by the end user of Linaberry et al, in view of Shim et al.
It further would have been obvious to one of ordinary skill in the art to incorporate the claimed pressure and time values, as well as chile de arbol, into the invention of Linaberry et al, in view of Shim et al and Imagawa, since all are directed to methods of decontaminating food products, since Linaberry et al already included bell peppers and other vegetables, since Linaberry et al also included hot humid air, since the claimed pressure and time values would have been used during the course of normal experimentation and optimization procedures due to factors such as the type, size, and quantity of vegetables used, the targeted type of contamination, the desired degree of removal of the contamination, and/or the temperature of the hot humid air used in the method of Linaberry et al, and since the substitution of one known vegetable (ie chile de arbol) for another (ie bell pepper) would have yielded predictable results to one of ordinary skill in the art.
Claims 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Linaberry et al, in view of Shim et al and imagawa, as applied above, and further in view of Panaioli et al [US 2005/0037118A1].
Linaberry et al, Shim et al, and Imagawa teach the above mentioned concepts. Linaberry et al do not explicitly recite countercurrent airflow at 10-35 m/s, 20C, for 1-10 seconds to remove foreign matter (claim 6), and foreign matter including stones, sand, gravel, earth, etc… (claim 7). Panaioli et al teach a method for blanching vegetables (title) including washing with air to remove dirt and insects (paragraph 0010), and air jets operating at a speed of 5-30 m/s (paragraph 0012). It would have been obvious to one of ordinary skill in the art to incorporate the claimed countercurrent airflow parameters into the invention of Linaberry et al, in view of Panaioli et al, since both are directed to methods of decontaminating food products, since Linaberry et al already included a step of washing the vegetables (column 6, line 15), since washing was a commonly used means for removing debris, since food decontamination systems commonly used washing with air to remove dirt and insects (paragraph 0010) and air jets operating at a speed of 5-30 m/s (paragraph 0012) as shown by Panaioli et al, since countercurrent air would have blown the debris away from the previously cleaned produce and prevented further contamination, since high speed air jets would have been more effective at removing stubborn foreign debris, and since a quick step of blowing off debris from the vegetables of Linaberry et al, in view of Panaioli et al, would have better ensured a safe and uncontaminated product for the consumer.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-11 (particularly claim 1) are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 (particularly claim 2) of copending Application No. 18/831,200 (reference application). The ‘200 application also claims treatment of a dried/dehydrated product (claim 2), analyzing/determining/detecting contamination of the product (claim 1, step i), placing the product in a container (claim 1, step ii), a decontamination treatment (claim 1, step iii), , and packaging (claim 1, step v). Although the claims at issue are not identical, they are not patentably distinct from each other because all of the limitations of present claim 1 are also present in claim 2 of ‘200.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Jian teaches detection of insects in grain via a heat treatment (column 3, line 46-66). Gunawardena et al teach a method for controlling food pasteurization with hot humid air (paragraph 0005). Syed et al teach a method for processing red chilies including air separation of impurities, washing, steam sterilization, and removal of metals (Figure 1-2). Williamson et al teach a disinfestation treatment with hot humid air in open-top baskets (Figure 4). Bell et al teach surface pasteurization of bulk foods at high temperatures (abstract). Gervais et al teach decontamination of dry foods, like raisins, by heated air (abstract, Description). Inagaki teaches sterilization of fruits in a open-top container with steam (Figure 2). James teaches reduction of food pathogens and other contaminants (title). Tsuji et al teach disinfestation of fruit with ho humid air and open-top containers (Figure 1).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DREW E BECKER whose telephone number is (571)272-1396. The examiner can normally be reached 8am-5pm Monday-Friday.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DREW E BECKER/Primary Examiner, Art Unit 1792
Prosecution Insights