DETAILED ACTION
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of t/e previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 3/22/2026 has been entered.
Status of Application
The Examiner acknowledges receipt of the arguments 1/26/2026.
Claims 18-23 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s arguments filed 1/26/2026 regarding the rejection of claims 18-23 made by the Examiner under 35 USC 103 over Baier et al. (US 2014/0094369) in view of Lu et al. (US 200/0275101) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 10/17/2025.
In regards to the 103 rejection, Applicant asserts the following:
A) MPEP 2123 states that “a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art.” Based on this standard, there must be a suggestion in the reference to exchange exemplified polymers with other, non-exemplified polymers (e.g. polyvinylpyrrolidone). [0048] of Baier effectively lists a ‘universe’ of options with no suggestion to use polyvinylpyrrolidone.
In response to A, the Examiner acknowledges that [0048] of Baier teaches polyvinylpyrrolidone within a large list of possible polymers. The Examiner would lean towards Applicant’s argument if the only teaching of polyvinylpyrrolidone within Baier was from this large list of polymers. However, this is not the case as [0050] teaches that polyvinylpyrrolidone may be selected from a narrower selection of polymers (12 polymer species) and claim 54 specifically identifies polyvinylpyrrolidone alone as a polymer for use in the final composition. Applicant appears to be applying the standard set forth by MPEP 2123 much to narrowly. The Examiner maintains that one of ordinary skill in the art would select polyvinylpyrrolidone and then identify sizes suitable for achieving the goal of the teaching. To this end, Lu has been provided to show that polyvinylpyrrolidone with a molecular weight of 6000 is commonly used in producing films (as Baier is generally directed). The modification of Baier to employ polyvinylpyrrolidone with such a molecular weight would have been an obvious modification and the desired result of producing a film capable of carrying and delivering the 1-MCP complex would have been reasonably expected as Applicant has not provided any evidence to the contrary. As Applicant’s main argument for non-obviousness is the lack of ‘suggestion’ to select polyvinylpyrrolidone from within Baier’s teaching which the Examiner finds unpersuasive, the previously issued rejection is maintained.
Applicant’s approved terminal disclaimers filed 7/9/2025 overcome the rejection of claims 18-23 made by the Examiner under nonstatutory double patenting over claims 1-16 of US 10647834, claims 1-10 of US 10647834 and claims 1-20 of US 12043733. These rejections have been withdrawn.
Maintained Rejections, of Record
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 18-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Baier et al. (US 2014/0094369; of record) in view of Lu et al. (US 2007/0275101; of record).
Baier describes a delivery device comprising a substrate having a first surface which is provided with a coating (see [0129] wherein the coating layer comprises a composition comprising an encapsulation material, such as cyclodextrin (see [0038]), which serves to encapsulate the active ingredient 1-MCP (ethylene blocking agent) (see [0036]). The 1-MCP/cyclodextrin inclusion complex is intermingled with at least one degradable polymer (see [0019]) such as water-soluble polymers like polyvinylpyrrolidone and polyvinyl alcohol (see [0048]).
Regarding instant claim 18 and the ratio of polymer binder to the cyclodextrin complex, Baier teaches that the polymer comprises from 30-99% by weight of the total amount of polymer, ethylene blocking agent complex and dispersion stabilizing agent in the composition which encompasses the ranges set forth by the noted claims, e.g. a ratio of polymer binder to complex from about 1:2 to 4:1, 1:1, etc.
Regarding instant claims 19 and 20, Baier teaches that 1-MCP is to be present from 0.05-0.5 percent by weight. Although not overlapping with instant claim 31, the concentrations are sufficiently close that one of ordinary skill in the art would expect similar results. It is also noted that where the general conditions of a claim are described, it is not considered inventive to identify optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
In all, the teaching suggests a substrate having a first and second surface, a layer on a first surface comprising a complex of 1-methylcyclopropene (1-MCP) and cyclodextrin intermingled with a hydrophilic polymer, e.g. polyvinylpyrrolidone.
Baier fails to teach the molecular weight of the polyvinylpyrrolidone as being between at least 5000.
Lu is directed to antimicrobial film formulations. Polyvinylpyrrolidone is exemplified as a desirable film forming polymer. Lu teaches that polyvinylpyrrolidone useful in the film possesses a molecular weight of from 6,000-15,000 (PVP K-15) (see [0079]) (see instant claims 18 and 21-23). Thus, it would have been obvious to use the polyvinylpyrrolidone polymers having a weight of 6,000-15,000 in the formulation of Baier with a reasonable expectation for success in yielding a composition having suitable film-forming properties. See MPEP 2143(I)(A). It is noted that the resulting PVP polymer composition comprising the MCP/cyclodextrin inclusion complex would be ‘capable of releasing the 1-methylcyclopropene in the form of a gas when exposed to moisture’ as the formulation comprises the same materials/structure as that required by instant claim 18.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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 KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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