DETAILED ACTION
Amendments made December 24, 2025 have been entered.
Claims 23-40 are pending;
Claims 23-30 and 39-40 have been withdrawn.
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 .
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.
Election/Restrictions
Applicant's oral election with traverse of Group II, claims 31-38 and fruit and vegetable species in the reply filed on September 15, 2025 is acknowledged. The traversal made December 24, 2025 is on the ground(s) that the subject matter of all claims and species are sufficiently related such that a search for one would encompass the other. This is not found persuasive because the application is a 371 application, and was properly restricted based on lack of unity, wherein the common technical was taught or obvious over the prior art. Regardless, it is noted that the search for a product and method, and for different species does require different search techniques, key words, and queries, and thus applicant’s arguments are further not convincing. For example, a search for a fruit versus other perishable products, such as meat would require different search terms, and likely result in different references for consideration. Similarly, a search for a product does not require particular application or storage steps, so also results in a different search and considerations.
The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The previous rejection of claim 36 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made December 24, 2025.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Notes: The term “about” is defined as to be varied up to plus or minus 10% (instant specification page 11 lines 14-21).
“Sucrose monoesters” consist of a sucrose molecule with one fatty acid ester on it, while “sucrose polyesters” comprise all sucrose molecules having more than one fatty acid ester on it (including diesters, triesters, etc.) (instant specification page 16 lines 16-19).
The term “natural” is used to refer to a non-synthetic material (instant specification page 10 line 30).
Claims 31, 33-35, 37, and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Jung et al (US 2019/0364916 A1) in view of Tan et al (US 4,338,342) and Sarathchandraprakash et al (“Emulsions and emulsifiers” The Asian Journal of Experimental Chemistry, Volume 8, Issue 1 & 2, 2013, pages 30-45).
Jung et al (Jung) teaches a preservative coating for post-harvest fruits and vegetables (abstract and paragraphs 3, 81, and 87). Jung teaches that the coating is an oil in water emulsion, i.e. an emulsion with oil dispersed in water (paragraph 66 and 78, and 79). Jung teaches that the coating contains 0.03-5% surfactant which is sucrose esters of fatty acids; 0.1-5% hydrophobic agent selected from the group including vegetable oil, olive oil and combinations thereof; water; and fungicides (paragraphs 64, 66, 68, 70, and 94).
Jung is silent to the sucrose esters of fatty acids as a mixture of two nonionic sucrose fatty acid emulsifiers with an HLB value of about 12.9 (11.61-14.19) and consisting of 30-70% sucrose monoester and 30-70% sucrose polyester wherein the fatty acids are selected from stearic acid (C18) and palmitic acid (C16) and mixtures thereof as recited in claim 31, preferably wherein the percentage of sucrose monoester is 60% and the HLB value of the esters is 13 as recited in claim 34; to the natural vegetable oils as a mixture of two vegetable oils selected from canola, olive, and sunflower as recited in claim 33; to the average particle size distribution of the oil droplets as around 20um in diameter as recited in claim 37; or to the fungicide as a natural fungicide as recited in claim 38.
Regarding the sucrose esters of fatty acids as a mixture of two sucrose fatty acid emulsifiers consisting of 30-70% sucrose monoester and 30-70% sucrose polyester as recited in claim 31, preferably wherein the percentage of sucrose monoester is 60% as recited in claim 34, and wherein the fatty acids are selected from stearic acid (C18) and palmitic acid (C16) and mixtures thereof as recited in claim 31, as discussed above Jung teaches of an emulsion comprising fatty acid esters as a preservative coating for fruits and vegetables. Tan et al (Tan) teaches of coating fruits and vegetables to increase their shelf life with an emulsion comprising 0.2-5% sucrose fatty acid esters gives good results (abstract and column 3 lines 4-15). Tan teaches that the sucrose esters are mono and di esters of fatty acids, preferably 16-20 carbon atoms including palmitic and stearic, wherein a relatively large proportion of monoesters, such as more than 60% is especially preferred (column 3 lines 16-28). Thus, it would have been obvious for the coating of Jung to comprise over 50% sucrose monoesters, i.e. a large proportion, including about 60% and above, of fatty acid esters derived from C16-20 carbon fatty acids including palmitic and stearic in order to obtain particularly good results in view of Tan. To use a preferred form of a disclosed ingredient would have been obvious to one of ordinary skill in the art. The prior art discloses an overlapping range. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed range including the instantly claimed ranges from the range disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05. It is noted that as the composition claimed comprises a mixture consisting of two components, the formation of a mixture consisting of the two components is a considered a product by process limitation and thus is considered only as it affects the final product. As the composition comprises the claimed mixture, the product by process step only results in the final product as comprising the claimed elements of the mixture.
Regarding the sucrose fatty acid esters as nonionic as recited in claim 31, as discussed above, Jung teaches an emulsion comprising emulsifiers, i.e. sucrose fatty acid esters. Jung is silent to if the esters as ionic or nonionic. Sarathchandraprakash et al (Sarathchandraprakash) teaches that non-ionic surfactants do not possess any electrical charges which can make them resistant to water hardness deactivation, and make them less of an irritant than other surfactants (page 38, Non-ionic emulsifiers). It would have been obvious for the sucrose fatty acid esters of Jung to be non-ionic in order to make them resistant to water hardness deactivation and/or to be less of an irritant in view of Sarathchandraprakash.
Regarding the HLB value of the fatty acid emulsifiers as about 12.9 (11.61-14.19) as recited in claim 31, preferably as 13 as recited in claim 34, as discussed above Jung teaches of oil in water emulsions comprising fatty acid emulsifiers, i.e. sucrose fatty acid esters. Sarathchandraprakash teaches that in oil in water emulsions HLB values of 7-20 are used (page 36, Hydrophobic lipophilic balance (HLB) scale for emulsions). Thus, it would have been obvious for the sucrose fatty acid esters in the oil in water emulsion of Jung to have an HLB value of 7-20 as Sarathchandraprakash teaches that in oil in water emulsions HLB values of 7-20 are used. The prior art discloses an overlapping range. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed range including the instantly claimed ranges from the range disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding the natural vegetable oils as a mixture of two vegetable oils selected from canola, olive, and sunflower as recited in claim 33, as discussed above, Jung teaches the coating comprises a hydrophobic agent selected from the group including vegetable oil, olive oil and combinations thereof. The Examiner takes official notice that the term “vegetable oil” encompasses the use of canola oil. Thus, the teachings of Jung encompass a mixture of canola and olive oil. The oil would necessarily be natural or synthetic. As Jung does not teach the oils as synthetically modified, the teachings of Jung are further considered to encompass, or at least make obvious the use of natural oils as claimed. To use a known form of a disclosed ingredient would have been obvious and well within the purview of one of ordinary skill in the art. Alternatively, as Sarathchandraprakash teaches natural products are easily available, cost effective, biocompatible, can function biologically, and suppress anti-inflammatory response (page 41, column 2), it would have been obvious for the food components of Jung to be natural.
Regarding the average particle size distribution of the oil droplets as around 20um in diameter as recited in claim 37, as discussed above, Jung teaches of an oil in water emulsion, and thus oil droplets within the water. Jung teaches that the dried coating has a thickness of greater than 0-50um, such as 1-30um (paragraph 89). Thus, the oil droplets of Jung would necessarily be less than 50um, including less than 30um. Additionally, Sarathchandraprakash teaches that emulsions are a system with one liquid dispersed in another in the form of droplets usually exceeding 0.1um in diameter (abstract). Thus, the composition of Jung would have an overlapping range of average particle size for the oil droplet diameter, i.e. between 0.1-30um. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed range including the instantly claimed ranges from the range disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding the fungicide as a natural fungicide as recited in claim 38, as discussed above, Jung teaches the coating comprises fungicide. The fungicide would necessarily be natural or synthetic. As Jung does not teach synthetic modification, the teachings of Jung are considered to encompass or alternately make obvious a natural fungicide as claimed. To use a known form of a disclosed ingredient would have been obvious and well within the purview of one of ordinary skill in the art. Alternatively, as Sarathchandraprakash teaches natural products are easily available, cost effective, biocompatible, can function biologically, and suppress anti-inflammatory response (page 41, column 2), it would have been obvious for the food components of Jung to be natural.
Claim 32 is rejected under 35 U.S.C. 103 as being unpatentable over Jung et al (US 2019/0364916 A1) in view of Tan et al (US 4,338,342) and Sarathchandraprakash et al (“Emulsions and emulsifiers”), further in view of Gea (“Oils from A to Z” https://gea.si/en/oils-from-a-to-z/ September 19, 2020 pages 1-18).
As discussed above, Jung teaches a preservative coating for post-harvest fruits and vegetables comprising vegetable oils. Jung is silent to the oils as cold pressed as recited in claim 32.
Gea teaches that cold pressed oils are the highest quality vegetable oils that have been placed onto a throne of excellence due to their possession of vitally important components, such as vitamins, minerals, and natural antioxidants (page 4).
Regarding the oils as cold pressed as recited in claim 32, it would have been obvious to one of ordinary skill in the art for the oils as taught by Jung to be cold pressed as they were the highest quality oils with vital components including vitamins, minerals, and antioxidants as taught by Gea.
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Jung et al (US 2019/0364916 A1) in view of Tan et al (US 4,338,342) and Sarathchandraprakash et al (“Emulsions and emulsifiers”), further in view of Sisterna (“Sucrose-esters – General information” June 16, 2018 pages 1-15).
As discussed above, Jung teaches a preservative oil in water coating for post-harvest fruits and vegetables, wherein it would have been obvious for the sucrose esters of fatty acids to be non-ionic sucrose fatty acid esters derived from palmitic and stearic acid, i.e. to be palmitates and stearates. The references are silent to the two nonionic sucrose fatty acid esters as a mixture of a first sucrose ester of stearic and palmitic acids having an HLB of 15 and comprising about 70% monoesters and a second sucrose ester of stearic and palmitic acids having an HLB of about 6 comprising about 30% monoesters as recited in claim 36.
Sisterna teaches nonionic sucrose esters of fatty acids which are high quality, edible, approved for use in foods, neutral in taste and odor, and are exceptional in performance (page 2). Sisterna teaches that the water solubility of mono-esters is good, while that of sucrose diesters and higher is not (page 5 solubility). Sisterna additionally teaches that products with a high mono ester content decease the surface tension (page 4, Section 3). Sisterna teaches that the fatty acid esters can have an inhibiting effect on the growth of certain bacteria, yeast, and fungi (page 10 paragraph 1 and note page 13). Sisterna teaches that Sisterna SP30C (stearate SP30) was a first choice main emulsifier for oil in water emulsions that had anti-microbial activity and non-irritant properties, an HLB value of 6, 30% mono-esters, and was partially soluble in water; that Sisterna SP70-C (stearate SP70) was a first choice co-emulsifier for oil in water emulsions that had non-irritant properties, an HLB value of 15, 70% mono-esters, and was soluble translucent in water; and that Sisterna PS750-C (sucrose palmitate) was a first choice co-emulsifier for oil in water emulsions that had non-irritant properties, 75% mono-esters, and was soluble translucent in water (tables and figures on pages 3, 5, and 14). It would have been obvious to one of ordinary skill in the art for the sucrose fatty acid esters of Jung to be those disclosed by Sisterna for their known benefits, including high quality, edible, approved for use in foods, neutral in taste and odor, and are exceptional in performance.
It would have been further obvious to specifically include stearate SP70, a first sucrose ester of stearic and palmitic acids having an HLB of about 15 and comprising 70% monoesters, as it is a first choice main emulsifier for oil in water emulsions that had anti-microbial activity and non-irritant properties, and stearate SP30, a second sucrose ester of stearic and palmitic acids having an HLB of about 6 comprising about 30% monoesters as Sisterna teaches that it was a first choice co-emulsifier for oil in water emulsions that had non-irritant properties and was soluble translucent. It would have been further obvious to adjust the amounts of the known esters based on the desired properties, such as including surface tension, water solubility, etc. To use a known form of a disclosed ingredient would have been obvious and well within the purview of one of ordinary skill in the art.
Response to Arguments
Applicant's arguments filed December 24, 2025 have been fully considered but they are not persuasive.
Applicant argues that Jung fails to provide a reasonable expectation of success in arriving at the claimed limitations because Jung discloses a large paragraph with multiple embodiments to choose from. This argument is not convincing. First it is noted that US patents are assumed valid and one of ordinary skill in the art would have a reasonable expectation of success in forming the compositions disclosed by Jung regardless of the number of possible combinations. Furthermore, the argument does not consider the rejection as presented which also relies upon the prior art reference Tan for specific motivation for the combination of emulsifiers recited in claim 31.
Applicant argues that Jung is fundamentally related to complex systems based on cellulose which is distinct from the claimed invention which comprises a mixture of two nonionic sucrose fatty acid ester emulsifiers consisting of sucrose monoesters and sucrose polyesters as recited in claim 31. This argument is not convincing. First it is noted that Jung specifically teaches of sucrose esters of fatty acids (see at least paragraph 66). Furthermore, the argument is based on a product by process limitation. Although the composition claimed comprises a mixture consisting of two components, as the composition comprises the claimed mixture, other components are not excluded from the product composition as argued. This can also be seen in the dependent claims, for example, claim 38, in which an additional component is added to the coating composition. The claim does not exclude or limit cellulose from being contained therein as argued and the claimed product by process step only results in the final product as comprising the claimed elements of the mixture.
Applicant argues unexpected and superior results when a combination of sucrose esters are used with an HLB value of about 12.9 as seen in Tables 2-4 of the instant disclosure. This argument is not convincing as it is not commensurate in scope with the claim. Claim 31 is directed to a broad composition and is not limited to the one specific composition shown in Tables 2-4. Additionally, the evidence is not convincing as it does not compare the closest prior art of record which shows the claimed composition is obvious.
Applicant argues that the prior art does not disclose fine tunning a composition as claimed. This argument is not convincing because the claims are not directed to a method, let alone a method of reducing weight loss, but rather to a product which is considered obvious over the teachings of the prior art. Additionally, it is noted that the composition of Jung is specifically taught to enhance storage stability and provide protection from water loss (abstract and paragraph 74).
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 KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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.
KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792