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 .
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 56-58 and 61-62 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.
Claims 56-58 each recite “the additional layer” in line 1. There is insufficient antecedent basis for this limitation in these claims. Note, claim 55 from which claims 56-58 depend recites “one or more additional layers.”
Claim 61 recites “the food sample” in line 3 and claim 62 recites “the food sample” in line 2. There is insufficient antecedent basis for this limitation in these claims. Note, claim 53 from which claims 61-62 depends recites “a food product.”
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
1. Claims 53, 59-62, 65 and 66 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent Application Publication No. 2021/0150168 to Hsu et al.
Regarding applicant’s claim 53, Hus et al. discloses a label that can be used to determine the freshness of foods. The label includes a film 11 (“substrate”) that is attached to a food 20. A colorimetric sensor array 12 (“indicator composition”) is formed on the film 11. [0029]
The colorimetric sensor array changes color based on the freshness of the food.
I.) Regarding applicant’s claim 53, as noted above Hsu et al. teaches all the elements of claim 53.
Therefore, Hsu et al. anticipates claim 53.
II.) Regarding applicant’s claim 59, as noted above Hsu et al. anticipates claim 53 from which claim 59 depends.
Claim 59 recites that the spoilage is microbial related spoilage.
Hsu et al. teaches that the sensing material undergoes a chemical reaction with at least one metabolic molecule of the fresh food to change from an initial color to an indicating color. [0006]
Therefore. Hsu et al. anticipates claim 59.
III.) Regarding applicant’s claim 60, as noted above Hsu et al. anticipates claim 53 from which claim 60 depends.
Claim 60 recites that the at least one indicator is selected from microbial indicators, azo dye, food colors, natural food dyes, Thiazine dye, redox indicators, pH indicators, oxygen indicator, solvatochromic dye, or any combination thereof.
As noted above, Hsu et al. teaches that the sensing material undergoes a chemical reaction with at least one metabolic molecule of the fresh food to change from an initial color to an indicating color. [0006]
Therefore. Hsu et al. anticipates claim 60.
IV.) Regarding applicant’s claim 61, as noted above Hsu et al. anticipates claim 53 from which claim 61 depends.
Claim 61 recites that the at least one indicator is provided in a concentration such that it changes at least one detectable property in response to spoilage of the food sample, said property comprises spectroscopic, colorimetric, fluorometric and/or electrochemical property.
As noted above, Hsu et al. teaches an indicator that changes color in response to the freshness of foods. The indicator necessarily has to be provided in a suitable concentration to effect a color change related to freshness.
Therefore, Hsu et al. anticipates claim 61.
V.) Regarding applicant’s claim 62, as noted above Hsu et al. anticipates claim 53 from which claim 62 depends.
Claim 62 recites that the at least one indicator is provided in a concentration such that it changes its color in response to spoilage of the food sample.
As noted above, Hsu et al. teaches an indicator that changes color in response to the freshness of foods and is therefore provided in a concentration sufficient to change color
Therefore, Hsu et al. anticipates claim 62.
VI.) Regarding applicant’s claim 65, as noted above Hsu et al. anticipates claim 53 from which claim 65 depends.
Claim 65 recites that the indicator composition comprises a plurality of indicators.
Hsu et al. teaches a sensor array that can include a mixture of coloring reagents. [0030]
Therefore, Hsu et al. anticipates claim 65.
VII.) Regarding applicant’s claim 66, as noted above Hsu et al. anticipates claim 53 from which claim 66 depends.
Claim 66 recites that the substrate is associated with a plurality of indicator compositions.
As noted above, Hsu et al. teaches a sensor array that can include a mixture of coloring reagents (that are on/associated with film 11. [0030]
Therefore, Hsu et al. anticipates claim 66.
2. Claim 68 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hsu et al.
Regarding applicant’s claim 68, as noted above, Hus et al. discloses a label that can be used to determine the freshness of foods. The label includes a film 11 (“substrate”) that is attached to a food 20. A colorimetric sensor array 12 (“indicator composition”) is formed on the film 11. [0029]
The colorimetric sensor array changes color based on the freshness of the food.
In use, placing the label in contact with a food product would result in the indicator changing color when indicating a change in freshness/spoilage.
I.) Regarding applicant’s claim 68, as noted above Hsu et al. teaches all the elements of claim 68.
Therefore Hsu et al. anticipates claim 68.
3. Claims 53, 54, 60-62, 64 and 67 are rejected under102(a)(1) as being anticipated by Canadian Patent Application Publication No. CA2184677A1 to Gomariz.
Regarding applicant’s claim 53, Gomariz disclose a spoilage indicating device for food containers (Title) that includes a paper or plastic support strip that is impregnated with a pH-responsive indicator dye, and referred to as an indicator (“indicator composition). [0012]-[0013].
The indicator 3 is positioned against (”associated with”) membrane 4 (“substrate”) that is in contact with a food product as shown in Figs. 2 and 3. [0013].
I.) In regard to applicant’s claim 53, as noted above Gomariz teaches all the limitations of claim 53.
Therefore, Gomariz anticipates claim 53.
II.) Regarding applicant’s claim 54, as noted above Gomariz anticipates claim 53 from which claim 54 depends.
Claim 54 recites that the substrate comprises textile fibers, plastic, nylon, woven fibers, woven fabrics, non-woven fabrics, artificial polymers, mixed fibers, biodegradable polymers, cotton, wool, linen, oligo-sugars, polysaccharides, gels, modified starch, metals, aluminum, paper, carton, wood, silk, plant material, clay, adhesives, ointment, vax, oil, leather, carbon and graphite felt, carbon fibers, or any combination thereof.
Gomariz teaches that membrane 4 can be made of a composite material, cellulose, polypropylene (an artificial polymer), polyester, polyamide, polysulphon, polytetrafluoroethylene, or glass. [0012]
Therefore, Gomariz anticipates claim 54.
III.) Regarding applicant’s claim 60, as noted above Gomariz anticipates claim 53 from which claim 60 depends.
Claim 60 recites that the at least one indicator is selected from microbial indicators, azo dye, food colors, natural food dyes, Thiazine dye, redox indicators, pH indicators, oxygen indicator, solvatochromic dye, or any combination thereof.
Gomariz teaches pH indicators. [0012]-[0013]
Therefore, Gomariz anticipates claim 60.
IV.) Regarding applicant’s claim 61, as noted above Gomariz anticipates claim 53 from which claim 61 depends.
Claim 61 recites that the at least one indicator is provided in a concentration such that it changes at least one detectable property in response to spoilage of the food sample, said property comprises spectroscopic, colorimetric, fluorometric and/or electrochemical property.
Gomariz teaches that the indicator produces a color change in response to spoilage, indicating that a sufficient concentration of the indicator is provided. [0013]
Therefore, Gomariz anticipates claim 61.
V.) Regarding applicant’s claim 62, as noted above Gomariz anticipates claim 53 from which claim 62 depends.
Claim 62 recites that the at least one indicator is provided in a concentration such that it changes its color in response to spoilage of the food sample.
Gomariz teaches that the indicator produces a color change in response to spoilage, indicating that a sufficient concentration of the indicator is provided. [0013]
Therefore, Gomariz anticipates claim 62.
VI.) Regarding applicant’s claim 64, as noted above Gomariz anticipates claim 53 from which claim 64 depends.
Claim 64 recites that the at least one indicator is a bacterial indicator configured to provide a detectable indication in the presence of a bacterial population above a pre-determined threshold, presence of secreted volatile compounds above a threshold, presence of specific types of bacterial population, or any combination thereof.
Gomariz teaches one object of the present invention to provide a spoilage indicating device to be added to a food container in a way to provide a visual indication of bacterial spoilage of a food product. [0008]
Therefore, Gomariz anticipates claim 64.
VII.) Regarding applicant’s claim 67, as noted above Gomariz anticipates claim 53 from which claim 67 depends.
Claim 67 recites the indicator device is or is comprised with a food package configured to at least partially hold or wrap the food.
In Figs. 2 and 3 Gomariz shows the indicator device as being incorporating into a food package.
Therefore, Gomariz anticipates claim 67.
VIII.) Regarding applicant’s claim 67, as noted above Gomariz anticipates claim 53 from which claim 67 depends.
4. Claim 68 is rejected under102(a)(1) as being anticipated by Gomariz.
Regarding applicant’s claim 68, as noted above, Gomariz disclose a spoilage indicating device for food containers (Title) that includes a paper or plastic support strip that is impregnated with a pH-responsive indicator dye, and referred to as an indicator (“indicator composition). [0012]-[0013].
In use, the indicator 3 is positioned against (”associated with”) membrane 4 (“substrate”) that is in contact with a food product as shown in Figs. 2 and 3. [0013]. The membrane allows ions to reach the indicator. [0009]
As noted above, the indicator changes color to indicate food spoilage.
I.) Regarding applicant’s claim 68, as noted above Gomariz teaches all the limitations of claim 68.
Therefore, Gomariz anticipates claim 68.
5. Claims 69-72 are rejected under 35 USC 102(a)(1) as being anticipated by Gomariz.
As noted above, Gomariz disclose a spoilage indicating device for food containers (Title) that includes a paper or plastic support strip that is impregnated with a pH-responsive indicator dye, and referred to as an indicator (“indicator composition). [0012]-[0013].
In use, the indicator 3 is positioned against (”associated with”) membrane 4 (“substrate”) that is in contact with a food product as shown in Figs. 2 and 3. [0013]. The membrane allows ions to reach the indicator. [0009]
As noted above, the indicator changes color to indicate food spoilage.
As shown in Figs. 2 and 3 the indicator of Gomariz is incorporated into a food package.
I.) Regarding applicant’s claim 69, as noted above Gomariz teaches all the elements of claim 69.
Therefore, Gomariz anticipates claim 69.
II.) Regarding applicant’s claim 70, as noted above Gomariz anticipates claim 69 from which claim 70 depends.
Claim 70 recites that the food product is selected from fluid food product, liquid food product, soft food product, semi-hard food product, solid, hard food product and aqueous food product.
The food in Gomariz is yogurt, i.e., a soft food product. [0011]
Therefore, Gomariz anticipates claim 70.
III.) Regarding applicant’s claim 71, as noted above Gomariz anticipates claim 69 from which claim 71 depends.
Claim 71 recites that the food packaging is selected from a container, a vial, a box, a tray, a can and a palette, a bag, a wrap, or any combinations thereof.
Gomariz teaches that the food packaging can be a milk carton, which is interpreted as being a box. [0011]
Therefore, Gomariz anticipates claim 71.
IV.) Regarding applicant’s claim 72, as noted above Gomariz anticipates claim 69 from which claim 72 depends.
Claim 72 recites that the indicator device is integrally formed with the food packaging, or is permanently or transiently associated with the food packaging.
The indicator of Gomariz is shown as being permanently associated with the food package in Fig. 3 which would leak if the indicator was removed.
Therefore, Gomariz anticipates claim 72.
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.
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.
6. Claims 55-58 are rejected under 35 U.S.C. 103 as being unpatentable over Gomariz as applied to claim 53 above, and further in view of U.S. Patent Application Publication No. 2006/0057022 to Williams et al.
I.) Regarding applicant’s claim 55, as noted above Gomariz anticipates claim 53 from which claim 55 depends.
Claim 55 recites that the substrate further comprises one or more additional layers.
Gomariz does not teach that the substate comprises one or more additional layers.
Williams et al. discloses a food quality indicator having a food quality indicator impregnated cellulose paper layer porous substrate layer. In paragraph [0009] Wiliams et al. teaches that a membrane or barrier material can be provided over the indicator to prevent liquids from leaching the color-changing agent from the porous substrate.
It would have been obvious to one of ordinary skill in the art to modify Gomariz to provide the membrane (“substrate”) with one or more additional layers including a membrane or barrier material to prevent the indicator from leaching out as taught by Williams et al.
Therefore, Gomariz in view of Williams et al. renders claim 55 obvious.
II.) Regarding applicant’s claim 56, as noted above Gomariz in view of Williams et al. renders claim 55 obvious from which claim 56 depends.
Claim 56 recites that the additional layer comprises or is made of textile fibers, plastic, nylon, woven fibers, non-woven fibers, cotton, wool, silk, cellulose-starch chitosan-PVA, cellulose-PVA cross linked film, or any combination thereof.
Gomariz in view of Willimas et al. does not teach that the additional layer comprises or is made of textile fibers, plastic, nylon, woven fibers, non-woven fibers, cotton, wool, silk, cellulose-starch chitosan-PVA, cellulose-PVA cross linked film, or any combination thereof.
However, Williams et al. teaches that the porous substrate layer may also be constructed from plastic (e.g., polyester, polyethylene, polyvinyl chloride), or any other polymeric membrane, cotton, flax, resin, glass, fiber glass, or fabric.
It would have been obvious to one of ordinary skill in the art to provide the membrane (“substrate”) with an additional layer made from a material such as plastic, any other polymeric membrane, nylon, cotton, wool or silk that would not activate or cause a color change in the indicator or otherwise prevent leaching of the indicator.
Therefore, Gomariz in view of Williams et al. renders claim 56 obvious.
III.) Regarding applicant’s claim 57, as noted above Gomariz renders claim 55 obvious from which claim 57 depends.
Claim 57 recites that the additional layer is permanently or transiently associated with the substrate.
Gomariz in view of Williams et al. does not teach that the additional layer is permanently or transiently associated with the substrate.
It would have been obvious to one of ordinary skill in the art before applicant’s effective filing date to provide the additional layer permanently or transiently associated with the membrane in Gomariz in view of Williams et al. as a matter of design choice.
Therefore, Gomariz in view of Williams et al. renders claim 57 obvious.
IV.) Regarding applicant’s claim 58, as noted above Gomariz renders claim 55 obvious from which claim 58 depends.
Claim 58 recites that the additional layer is stitched, adhered and/or welded to the substrate.
Gomariz in view of Williams et al. does not teach that the additional layer is stitched, adhered and/or welded to the substrate.
It would have been obvious to one of ordinary skill in the art before applicant’s effective filing date to attach the additional layer to the membrane in Gomariz in view of Williams et al. using a suitable adhesive or glue.
Therefore, Gomariz in view of Williams et al. renders claim 58 obvious.
7. Claim 63 is rejected under 35 USC 103 as being unpatentable over Gomariz as applied to claim 53 above and further in view of U.S. Patent Application Publication No. 2020/0062456 to Granevitze et al. (cited by applicant).
I.) Regarding applicant’s claim 63, as noted above Gomariz anticipates claim 53 from which claim 63 depends.
Claim 63 recites that the at least one indicator is a pH indicator and wherein the indicator is configured to change color upon a change of pH smaller than about 0.5 pH unit.
Gomariz teaches using pH indicators, but does not teach the indicator is configured to change color upon a change of pH smaller than about 0.5 pH unit.
Granevitze et al. teaches devices for monitoring food freshness and the use of an indicator that changes color upon a change of pH smaller than 0.1 pH unit. [0026]
It would have been obvious to one of ordinary skill in the art before applicant’s effective filing date to modify Gomariz in view of Granevitze et al. to use an indicator that changes color upon a change of pH smaller than 0.1 pH unit for purposes of monitoring small changes of freshness.
Therefore, Gomariz in view of Granevitze et al. renders claim 63 obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL S. GZYBOWSKI whose telephone number is (571)270-3487. The examiner can normally be reached M-F 8:30-5:00.
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/M.S.G./Examiner, Art Unit 1798
/CHARLES CAPOZZI/Supervisory Patent Examiner, Art Unit 1798
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