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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Response to Amendment
Those rejections not repeated in this Office Action have been withdrawn.
Claims 1, 6, 8, 9, 19, 21 and 22 are currently pending and rejected.
Terminal Disclaimer
The terminal disclaimer filed on March 11, 2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of any patent granted on U.S. Application No. 18683587 has been reviewed and is accepted. The terminal disclaimer has been recorded.
In view of this, the obviousness type double patenting rejection over U.S. Application No. 18683587 has been withdrawn.
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.
Claims 1 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Pan (US 20040131736) in view of Wantanabe (KR 20200034687) and Maeda (JP S63-317039) and in further view of Hayashi (US 5698249) and Matsushima (JP H04-080869).
“The Chemical Company” and “Chemistry Stack Exchange” have been relied on as evidence.
Regarding claim 1, Pan discloses a fruit and vegetable package (see figure 3) comprising at least one fruit or vegetable (see at least the abstract: “produce”; paragraph 117, “fruit”), at least one atmosphere conditioner package (see paragraph 47, 56 and 60). Because Pan discloses that the produce is within a package as well as an atmosphere conditioner within the package, the reference is teaching a packaging material configured to accommodate the fruit and/or vegetable and the atmosphere conditioner package.
Pan discloses that the atmosphere conditioner package has oxygen absorption capacity and carbon dioxide generation capacity (see paragraph 47, “oxygen scavenger, carbon dioxide emitter). Further regarding the generation of moisture, it is initially noted that Pan discloses that the oxygen scavenger can comprise ascorbic acid (see paragraph 53) and “The Chemical Company” evidences that ascorbic acid scavenges oxygen by converting the oxygen to water, and therefore generates moisture (see page 2, 2nd to last paragraph below “Description”; “…ascorbic acid degrades upon exposure to air, converting the oxygen to water”). Additionally, Pan discloses that the carbon dioxide emitter comprise an organic acid and a carbonate compound such as a carbonate base (see paragraph 49 and 51). Therefore, it is inherent that the reaction of an organic acid with a carbonate base to generate carbon dioxide as disclosed on paragraphs 49 and 51 of Pan would have also generated water. This is further evidenced by “Chemistry Stack Exchange” which evidences that the reaction to produce carbon dioxide from an acid and a base (i.e. as taught by Pan) results in generating moisture (see page 2 and the reaction of ascorbic acid with sodium bicarbonate which produces carbon dioxide and water).
Regarding the atmosphere conditioner package comprising at least one selected from the group consisting of an ascorbic acid-based atmosphere conditioner and a polyhydric phenol-based atmosphere conditioner, Pan teaches that the atmosphere conditioner package comprises an ascorbic based atmosphere conditioner (see paragraph 53).
Claim 1 differs in specifically reciting that the fruit and/or vegetable is a broccoli.
Wantanabe teaches packages that condition the atmosphere of a fruit and vegetable package, using oxygen scavengers and carbon dioxide emitters that are similar to those already taught by Pan (see Wantanabe paragraph 96 and 97 of the machine translation). Wantanabe teaches packaging fruit and vegetables (see paragraph 6, 47, 87, 91 and figure 1, item 102) and where the vegetable can be broccoli (see paragraph 82 and 93). Maeda also teaches packaging broccoli as the fruit and/or vegetable in combination and an atmosphere conditioner for the purpose of keeping packaged fruits and vegetables such as broccoli fresh (see the abstract, and page 5 of the machine translation “broccoli”. Maeda also teaches using ascorbic acid (see page 4 of the machine translation: “ascorbic acid and its salts”) as an oxygen absorbing composition. Maeda also teaches including sodium bicarbonate, activated carbon (see page 5) as well as ferrous sulfate (see page 4). These components are similar to those disclosed on paragraph 103 of Applicant’s specification as filed.
To therefore modify Pan and to package a broccoli would have been obvious to one having ordinary skill in the art for the purpose of preserving the freshness of known produce that can benefit from conditioning the atmosphere of a package.
Regarding the limitation of, “wherein the packaging material is sealed in such a manner that a part of the packaging material is in an air-permeable state, Pan teaches that the container can be sealed (see paragraph 43) while still being in an air-permeable state (see paragraph 41). This is further supported by Wantanabe teaching that the outer container can be permeable (see paragraph 91) and Hayashi teaching a sealed package wherein it has been beneficial to allow gas exchange for maintaining a desired atmosphere within the package (see the abstract of Hayashi).
Additionally, Matsushima also teaches a sealed fruit and vegetable package (see figure 2; page 2-3 of the translation, “maintain freshness of fruits and vegetables”) that is also in an air-permeable state (see figure 2, item 5 and pages 10-11 of the translation).
To therefore modify Pan and to provide the packaging as sealed such that a part of the packaging material is in an air-permeable state, would have been obvious to one having ordinary skill in the art for ensuring that the broccoli or fruit and/or vegetable were maintained in the proper oxygen and carbon dioxide atmosphere for maintaining freshness. That is, it would have been obvious to one having ordinary skill in the art that produce such as broccoli respire and to therefore have the package in an air-permeable state would have been obvious to one having ordinary skill in the art for also controlling the atmosphere within the package so as to maintain the requisite gas concentration for maintaining freshness.
Regarding claim 21, Pan teaches an ascorbic acid based atmosphere conditioner, as discussed above with respect to claim 1.
Claims 6 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Pan (US 20040131736) in view of Shepard (US 20040131731) and in further view of Wantanabe (KR 20200034687) and Maeda (JP S63-317039).
“The Chemical Company” and “Chemistry Stack Exchange” have been relied on as evidence.
Regarding claim 6, Pan teaches a method for maintaining freshness of fruits and vegetables, comprising obtaining a fruit and vegetable package by accommodating a fruit or vegetable and an atmosphere conditioner in a packaging material (see figure 3, item 306 and item 301; paragraph 45, “atmosphere modifying device”). The fruit and vegetable package as disclosed by Pan is maintained so that the atmosphere conditioner package adjusts an atmosphere the package by absorbing oxygen and generating carbon dioxide (see paragraph 57-58) and Pan discloses that the package contains an oxygen absorber and a carbon dioxide emitter (see paragraph 47, “oxygen scavenger” “carbon dioxide emitter”, 56 and 60). Pan’s teachings of using ascorbic acid (see paragraph 53) would also have generated moisture because “The Chemical Company” evidences that ascorbic acid scavenges oxygen by converting the oxygen to water, and therefore generates moisture (see page 2, 2nd to last paragraph below “Description”; “…ascorbic acid degrades upon exposure to air, converting the oxygen to water”).
Pan’s teachings of generating carbon dioxide via an organic acid and carbonate base (paragraph 49 and 51) would also have generated moisture as evidenced by “Chemistry Stack Exchange” which discloses that the reaction to produce carbon dioxide from an acid and a base (i.e. as taught by Pan) results in generating moisture (see page 2 and the reaction of ascorbic acid with sodium bicarbonate which produces carbon dioxide and water).
Pan further teaches the obtaining of the fruit and vegetable package comprises, inserting the fruit and/or vegetable and the atmosphere conditioner package into the packaging material through an opening of the packaging material because the reference teaches bags and containers into which the fruit/vegetable and conditioner package are inserted (see paragraph 43 for example). Pan also teaches sealing the opening (see paragraph 58).
Claim 6 differs from Pan in specifically reciting that the sealing of the opening portion is in an air-permeable state.
Shepard teaches sealable bags (figure 1) which can comprise a seal (figure 1, item 12, 14) that are ventilated and therefore allow air permeability for controlling the gases and heat and moisture produced by fruit and vegetables (see paragraph 15). Shepard also teaches that the packaged food can be broccoli (see paragraph 49).
To therefore modify Pan who teaches similarly sealable bags (see paragraph 43) and to seal the opening in an air-permeable state, as taught by Shepard would have been obvious to one having ordinary skill in the art based on another conventional expedient by which the package can be air-permeable for controlling the gas, heat and moisture within the package for extending the time that the fruit and/or vegetable remains fresh.
Further regarding claim 6, Pan fruits and vegetables but claim 6 differs in specifically reciting that the fruit and/or vegetable is a broccoli.
Wantanabe teaches packages that condition the atmosphere of a fruit and vegetable package, using oxygen scavengers and carbon dioxide emitters that are similar to those already taught by Pan (see Wantanabe paragraph 96 and 97 of the machine translation). Wantanabe teaches packaging fruit and vegetables (see paragraph 6, 47, 87, 91 and figure 1, item 102) and where the vegetable can be broccoli (see paragraph 82 and 93). Maeda also teaches packaging broccoli as the fruit and/or vegetable in combination and an atmosphere conditioner for the purpose of keeping packaged fruits and vegetables such as broccoli fresh (see the abstract, and page 5 of the machine translation “broccoli”. Maeda also teaches using ascorbic acid (see page 4 of the machine translation: “ascorbic acid and its salts”) as an oxygen absorbing composition. Maeda also teaches including sodium bicarbonate, activated carbon (see page 5) as well as ferrous sulfate (see page 4). These components are similar to those disclosed on paragraph 103 of Applicant’s specification as filed.
To therefore modify Pan and to package a broccoli would have been obvious to one having ordinary skill in the art for the purpose of preserving the freshness of known produce that can benefit from conditioning the atmosphere of a package.
Regarding claim 9, Pan discloses that the fruit and vegetable package is maintained at a temperature of 0-30°C (see paragraph 101) and thus falls within the claimed range of 0°C or higher and 40° or lower.
Claim 8 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 6 above which relies Pan (US 20040131736) as the primary reference, and in further view of Lidster (Commercial Storage of Fruits and Vegetables), Hayashi (US 5698249) and in further view of Ohl (US 20240198284).
Regarding claim 8, Pan teaches that the maintaining of the fruit and vegetable package can include maintaining the fruit and vegetable package for one day or longer, because Pan teaches storage for more than one day as shown in the table below paragraph 112 and because on paragraph 58, Pan teaches that the desired modified atmosphere is achieved about 24 hours after the device and produce are placed in the container and closed - where “about 24 hours” also encompasses maintaining for one or more days.
In view of paragraph 57 and 58, Pan is teaching and suggesting an atmosphere in the fruit and vegetable package within one to two days after the accommodating of the at least one fruit and/or vegetable and the atmosphere conditioner, achieves the desired composition which can be 1-20% carbon dioxide and 2-15% oxygen commensurate with the type of produce to be preserved.
Nonetheless, claim 8 differs in specifically reciting, within one day or longer and two days or shorter after the accommodating of the at least one fruit and/or vegetable and at least one atmosphere conditioner in the packaging material, the atmosphere in the fruit and vegetable package after accommodating for one day or longer and two days or shorter satisfies the following Requirements (i) to (iii):- Requirement (i): an oxygen concentration of 1% or more and 10% or less;- Requirement (ii): a carbon dioxide concentration of more than 10%; and- Requirement (iii): a humidity of 80% or more.
Regarding the particular oxygen and carbon dioxide concentration and humidity, it is noted that Lidster teaches that broccoli can be stored at a humidity of 90-97% (see page 33, Table 5) and where the oxygen concentration can be 1% and a maximum carbon dioxide content of 20% (see page 36 under the heading “Broccoli”). Hayashi also teaches packaged broccoli having an oxygen concentration of 6.2% and a carbon dioxide concentration of 15.7% (see column 35, table E2). Ohl also teaches that it has been known to use humidity control devices that can control the humidity within a container (see the abstract) to provide a humidity within a package (see figure 9) such as 90% (see the abstract).
To therefore modify Pan, who already teaches that the humidity can be controlled to 91-100% (see paragraph 71) and where the amounts of the atmosphere conditioning components can be modified (see paragraph 56), and to provide an oxygen concentration such as 1% and a carbon dioxide concentration that is about 10% or greater, as taught by Lidster and a humidity of 90-97% would have been obvious to one having ordinary skill in the art, for achieving optimum conditions for extending the shelf life of the fruit and/or vegetable, such as broccoli.
Regarding claim 19, Pan discloses that the fruit and vegetable package is maintained at a temperature of 0-30°C (see paragraph 101) and thus falls within the claimed range of 0°C or higher and 40° or lower.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1, and in further view of Murai (JP 2016203043).
Claim 22 differs from the combination as applied to claim 1 in specifically reciting that the polyhydric phenol-based atmosphere conditioner is comprised in the atmosphere conditioner package.
Murai teaches oxygen absorbents that can be enclosed with a food (see paragraph 1 of the machine translation) and which oxygen absorbent can comprise ascorbic acid as well as gallic acid and catechol or combinations thereof (see paragraph 8). To therefore modify the combination and to either substitute ascorbic acid with a gallic acid or catechol based oxygen absorber to combine the ascorbic acid together with gallic acid or catechol based oxygen absorbers would have been obvious to one having ordinary skill in the art, based on combinations or equivalents recognized for performing the same purpose (see MPEP 2144.06) for achieving the desired oxygen absorption.
Response to Arguments
On page 7 of the response, Applicant urges that the Office Action has not established that the references fairly teach or suggest the atmosphere conditioner package comprises an ascorbic acid based atmosphere conditioner and a polyhydric phenol based atmosphere conditioner; that the fruit and/or vegetable is a broccoli and that the packaging material is sealed in such a manner that a part of the packaging material is in an air permeable state, as recited in claim 1; as well as the methodology as recited in claim 6.
These arguments are not persuasive because Pan already teaches and suggests an ascorbic acid based atmosphere conditioner, since the reference teaches using ascorbic acid as an oxygen absorber. Pan further teaches that the package can be used for fresh produce to keep the produce fresh using conditioners that can control the oxygen and carbon dioxide within the package. While Pan is not specific as to the fresh produce being broccoli, the prior art teaches, suggests and recognizes that broccoli is a known vegetable that can advantageously benefit from oxygen, carbon dioxide and moisture control, as taught by Wantanabe, Maeda and Hayashi, as well as from an air permeable package so as to control the particular gas atmosphere within the package.
Further on page 7 of the response, Applicant urges that Pan does not describe that the produce is broccoli and also does not describe that the packaging material is sealed such that a part of the packaging material is in an air-permeable state.
This argument is not persuasive because Pan generically teaches applicability to fresh produce, which would encompass broccoli; and because Wantanabe, Maeda and Hayashi further teach and suggest packaging of fresh produce such as broccoli within a package that provides atmosphere control. Regarding the air permeability, Pan teaches a sealed container that is still air permeable (see paragraph 41 which discloses that the container has holes that can make the package air permeable; see figure 3 where the package is closed (i.e. sealed) with a lid 305. Nonetheless, Wantanabe teaches a permeable container for allowing gas exchange; as do Hayashi and Matsushima. The art therefore teaches and suggests a sealed package that remains air permeable for allowing controlled exchange of gas and it would have been obvious to one having ordinary skill in the art to have modified Pan to use an air-permeable package for the known purpose of ensuring that the broccoli was contained within the proper atmosphere for maintaining freshness.
Applicant’s remarks on page 8 with respect to Etchells have been considered but are moot in view of the reference being withdrawn in light of the amendment to the claims.
Further on page 8 of the response, Applicant urges that Wantanabe and Maeda do not teach that the packaging material is sealed in such a manner that a part of the packaging material is in an air-permeable state and Hayashi does not teach atmosphere conditioners in the package.
These arguments are not sufficient to overcome the rejection, because the claim limitation of being sealed in such a manner that a part of the packaging is in an air permeable state does not specifically recite that the air permeability is through the seal. Rather, the limitation only requires for a package to be sealed and to have a portion of the packaging material be air permeable - which Wantanabe, Hayashi and Matsushima teach. Maeda has not been relied on to specifically teach the air permeability, which Pan already suggests, but rather has only been relied on to teach that broccoli has been a known to be packaged using atmosphere conditioners.
On page 9 of the response, Applicant urges that the product and method as claimed provide unexpectedly improved results and advantages as evidenced by comparing Example 1 with the comparative examples as presented in Table 2 of the Specification.
These arguments have been considered but are not persuasive because they are not commensurate in scope with the claims. Table 2 presents example 1, which is directed to a specific atmosphere conditioner package and packaging material neither of which has been claimed. It is additionally noted however, that comparative example 1 appears to also present results that are acceptable.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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