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
This is a first action on the merits for this regular application filed on 2023
Information Disclosure Statement
The information disclosure statement filed on 12/05/23 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because in the “NEWLY CITED LIST OF RELATED CASES” section Patent Publication No. are missing for some of the cited documents. It is respectfully requested that an updated IDS with the missing Patent Publication No. be submitted. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
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.
Claims 1-19 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.
In claim 1, lines 10 and 11; Applicant recites the acronyms “APC” and “YM”. The examiner is unable to clearly determine what the letters of each acronym represent. It is respectfully requested that the above shown acronyms be replaced with the complete spelled out words for each in order for the examiner to determine the metes and bounds of claim 1.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-19 are rejected under 35 U.S.C. 103 as being unpatentable over Von Rege et al. (US 2014/0227390 A1) in view of Velasquez (US 2008/0241269 A1).
Regarding claim 1, Von Rege et al. discloses a method of treating harvested grain or seeds to reduce the presence of harmful microorganisms [0005, 0047 and 0010] during a malting procedure, the method comprising;
performing a decontamination by contacting the grain or seeds with a sanitizing
solution comprising an aqueous solution of chlorine dioxide/additives [0010 and 0027], wherein:
a) said malting procedure comprises sequentially performing a steeping, a
germination and a kilning [0047];
b) said sanitizing solution comprises 50 ppm [0012] or 20 ppm of the chlorine dioxide solution [0078];
c) contact between the grains or seeds and the sanitizing solution is maintained for
a period [0032] sufficient to reduce a total microbial count (APC) of the grains or seeds and/or a yeast [0036] and mold count (YM) by at least 90% [0040-0041] compared to the same grains or seeds prior to contact with the sanitizing solution;
d) the grains or seeds are contacted with the sanitizing solution after steeping but
before germination; and/or after germination but before kilning [0010-0011]; and/or after
kilning;
and wherein the grains or seeds are not contacted [0011] with the sanitizing solution prior to
steeping.
Von Rege et al. appears silent to teach using a sanitizing solution comprising a peroxyacid and hydrogen peroxide. And also appears silent to teach that the peroxyacid/hydrogen peroxide composition having a concentration of 250-5000 ppm.
Velasquez discloses methods for applying antimicrobial treatment to foods [0009 and 0033] where known oxidizing agents such as per-acid solutions (peroxyacid) and hydrogen peroxide and chlorine dioxide solutions [0039] are combined where the concentration of the antimicrobial active in the treatment composition is less than 6 wt% ( 60,000 ppm) in order to provide an improved methods for the efficient application of antimicrobial treatment to foods than can be readily integrated within a processing plant [0009]. It is an obvious routine experimentation to choose either one antimicrobial agent (chlorine dioxide) as taught by Von Rege et al. or to combine the known antimicrobial agents (peroxyacid/hydrogen peroxide) as taught by Velasquez for their known and expected antimicrobial properties. 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 to substitute Von Rege et al. chlorine dioxide composition with Velasquez peroxyacid/hydrogen peroxide composition in order to provide an improved composition for the efficient application of antimicrobial treatment to foods than can be readily integrated within a processing plant.
Regarding claim 2, Von Rege et al. discloses that after contacting the grain or seeds with the sanitizing solution, the seeds or grains are washed to remove the sanitizing solution [0013] and/or the sanitizing solution is treated with a reducing agent to neutralize the hydrogen peroxide.
Regarding claim 3, Von Rege et al. discloses that the decontamination of the grains or seeds is carried out at a pH below 7 [0031].
Regarding claim 4, Von Rege et al. discloses that the contact between the grains or seeds and
the sanitizing solution does not last more than 10 minutes (TABLE 3).
Regarding claim 5, Von Rege et al. discloses that the decontamination of the grains or seeds is carried out at a pH of 7 or higher [0031].
Regarding claim 6, Von Rege et al. discloses that the contact between the grains or seeds and
the sanitizing solution does not last more than 60 minutes (TABLE 2).
Regarding claim 7, Von Rege et al. appears silent to teach using a sanitizing solution comprising a peroxyacid and hydrogen peroxide.
Velasquez discloses methods for applying antimicrobial treatment to foods [0009 and 0033] where known oxidizing agents such as per-acid solutions (peroxyacid) and hydrogen peroxide and chlorine dioxide solutions [0039] are combined where the concentration of the antimicrobial active in the treatment composition is less than 6 wt% ( 60,000 ppm) in order to provide an improved methods for the efficient application of antimicrobial treatment to foods than can be readily integrated within a processing plant [0009]. It is an obvious routine experimentation to choose either one antimicrobial agent (chlorine dioxide) as taught by Von Rege et al. or to combine the known antimicrobial agents (peroxyacid/hydrogen peroxide) as taught by Velasquez for their known and expected antimicrobial properties.
As to the limitation that the sanitizing solution has a peroxyacid to peroxide ratio in a range of 5.0 to 0.2; Velasquez appears silent to disclose ratio values for the peroxyacid/peroxide. However, depending on the amounts of foods to be decontaminated and the degree of decontamination; one of ordinary skill in the art would readily recognize that it is an obvious routine experimentation to adjust the amounts of the peroxyacid and peroxide (changing the ratio values) used in order to achieve the appropriate degree of decontamination for a given wight of foods. 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 to adjust the amounts of the peroxyacid and peroxide (changing the ratio values) used in order to achieve the appropriate degree of decontamination for a given wight of foods.
Regarding claim 8, Von Rege et al. discloses that the grain or seeds are at least one selected from the group consisting of barley, wheat, rye, millet, com (maize), rice, and oats [0010 and 0019].
Regarding claim 9, Von Rege et al. discloses that the sanitizing solution is applied by washing or spraying [0011 and 0040] the grains or seeds.
Regarding claim 10, Von Rege et al. discloses the amounts of the sanitizing solution used for contacting the amounts grains or seed [0014 and 0030].
Von Rege et al. appears silent to disclose that the amount of the sanitizing solution used for contacting the grains or seeds is 0.05 liters per kilogram of dry grains.
However, one of ordinary skill in the art would readily recognize and depending on the amount/type of the grains or seeds to be decontaminated and depending on the different degrees of contamination of the grains or seeds to be treated, then in order to ensure the complete destruction of microorganisms in treated grains or seeds, one would change Von Rege et al. amounts of the sanitizing solutions per mass of the grains and seeds to higher or to lower values in order to ensure the complete destruction of microorganisms in treated grains or seeds. 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 to change Von Rege et al. amounts of the sanitizing solutions per mass of the grains and seeds to be treated to higher or to lower values in order to ensure the complete destruction of microorganisms in treated grains or seeds.
Regarding claim 11, Von Rege et al. appears silent to teach using a sanitizing solution comprising a peroxyacid and hydrogen peroxide.
Velasquez discloses methods for applying antimicrobial treatment to foods [0009 and 0033] where known oxidizing agents such as per-acid solutions (peracetic acid) and hydrogen peroxide and chlorine dioxide solutions [0039] are combined in order to provide an improved methods for the efficient application of antimicrobial treatment to foods than can be readily integrated within a processing plant [0009]. It is an obvious routine experimentation to choose either one antimicrobial agent (chlorine dioxide) as taught by Von Rege et al. or to combine the known antimicrobial agents (peroxyacid/hydrogen peroxide) as taught by Velasquez for their known and expected antimicrobial properties. 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 to substitute Von Rege et al. chlorine dioxide composition with Velasquez peroxyacid/hydrogen peroxide composition in order to provide an improved composition for the efficient application of antimicrobial treatment to foods than can be readily integrated within a processing plant.
Regarding claim 12, Von Rege et al. discloses that the microorganisms in the grain or seeds that are reduced as a result of the decontamination comprise at least one mold, yeast, bacterium, or fungus [0015-0016].
Regarding claim 13, Von Rege et al. discloses contacting the grains or seeds with the sanitizing solution after steeping but before germination; and/or after germination but before kilning [0010-0011]; and/or after kilning; the grains or seeds are germinated.
Von Rege et al. appears silent to teach using a sanitizing solution comprising a peroxyacid and hydrogen peroxide.
Velasquez discloses methods for applying antimicrobial treatment to foods [0009 and 0033] where known oxidizing agents such as per-acid solutions (peroxyacid) and hydrogen peroxide and chlorine dioxide solutions [0039] are combined in order to provide an improved methods for the efficient application of antimicrobial treatment to foods than can be readily integrated within a processing plant [0009]. It is an obvious routine experimentation to choose either one antimicrobial agent (chlorine dioxide) as taught by Von Rege et al. or to combine the known antimicrobial agents (peroxyacid/hydrogen peroxide) as taught by Velasquez for their known and expected antimicrobial properties. 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 to substitute Von Rege et al. chlorine dioxide composition with Velasquez peroxyacid/hydrogen peroxide composition in order to provide an improved composition for the efficient application of antimicrobial treatment to foods than can be readily integrated within a processing plant.
Regarding claim 14, Von Rege et al. discloses that germination [0014] comprises maintaining the grains or seeds in a moist environment [0036] while in contact with the sanitizing solution.
Regarding claim 15, Von Rege et al. discloses that the germination comprises soaking the grains or seeds in the sanitizing solution, wrapping the grains or seeds in a material soaked in the sanitizing solution, or exposing [0014] the seeds to a mist [0011] of the sanitizing solution.
Regarding claims 16-17, Von Rege et al. discloses contacting the grains or seeds with the sanitizing solution after steeping but before germination; and/or after germination but before kilning [0010-0011]; and/or after kilning.
Von Rege et al. appears silent to disclose contacting the grains or seeds with the sanitizing solution during at least part of the kilning process. And also, Von Rege et al. appears silent to disclose that the sanitizing solution is applied to the grains or seeds within one minute of the start of kilning.
Von Rege et al. discloses the steeping, the germination, the kilning and the drying steps can be repeated [0011 0047]. However, one of ordinary skill in the art would readily recognize and depending on the intended use that different types of grains or seeds require different degrees of decontaminations and also different degrees of dryness. In addition, one of ordinary skill in the art would further recognize that if higher degree of decontamination is required for a certain type of grains or seeds, then in order to ensure the complete destruction of microorganisms in treated grains or seeds, one would employ additional sanitizing step during the kilning process either at the beginning (one minute of the start of kilning) or during the middle, or toward the end of the kilning process. 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 to add a sanitizing step to Von Rege et al. kilning step in order to ensure the complete destruction of microorganisms in treated grains or seeds.
Regarding claim 18, Von Rege et al. discloses that the decontamination of the grains or seeds is carried out at a pH of 3-5 [0031].
Regarding claim 19, Von Rege et al. discloses that the decontamination of the grains or seeds is carried out at a pH of 8-11 [0031].
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MONZER R CHORBAJI whose telephone number is (571)272-1271. The examiner can normally be reached M-F 5:30-12:00 and 6:00-9:00.
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, Jill J Warden can be reached at (571)272-1267. 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.
/MONZER R CHORBAJI/Primary Examiner, Art Unit 1799