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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on July 13, 2026 has been entered.
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Those rejections not repeated in this Office Action have been withdrawn.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.
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 1, 6, 8, 9, 19, 21 and 22 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.
Claim 1, lines 2-3 and claim 6, 4-5 recite the limitation, “a higher carbon dioxide concentration.” This limitation is not clear with respect to what is the carbon dioxide concentration higher, thus making the scope of what can be construed as “a higher” carbon dioxide concentration unclear.
Claims 8, 9, 19, 21 and 22 are rejected based on their dependence to a rejected claim.
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, 6, 9 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Pan (US 20040131736) in view of deWild (“The action side of carbon dioxide in relation to inhibition of ethylene production in tomato fruit”) and “Bryair - Control of Ethylene in fruits & vegetables warehouses and cold stores” and in further view of Shepard (US 20040131731), Shaw (US 3370780) and Gong (US 20010008677).
“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).
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).
Regarding the new limitation to claim 1 and 6 of, “at least one fruit and/or vegetable is a one in which the generation of ethylene gas is suppressed with a higher carbon dioxide concentration,” it is noted that Pan teaches packaging of apples and tomatoes, for example (see paragraph 120) but is not limiting in this regard.
De Wild evidences that high levels of carbon dioxide can inhibit ethylene production in tomatoes (see the abstract and page 277, figure 1). Bryair also teaches using controlled atmosphere storage to delay ethylene triggered changes by increasing carbon dioxide levels and decreasing oxygen levels (see page 4/6 under “Controlled Atmosphere Storage (CA)”).
Therefore, it would have been obvious to one having ordinary skill in the art that Pan is teaching obtaining and placing within the packaging, a fruit where the generation of ethylene gas would be suppressed with higher carbon dioxide concentrations.
Pan teaches that the container can be sealed (see paragraph 43) while still being in an air-permeable state (see paragraph 41), but claim 1 differs from Pan in specifically reciting, “wherein the packaging material is a non-porous film having no air permeability and wherein the packaging material is sealed in such a manner that a part of the packaging material is in an air-permeable state” and claim 6 differs in reciting “wherein the packaging material is a non-porous film having no air permeability”
Further regarding the limitation, “the packaging material is a non-porous film having no air permeability and wherein the packaging material is sealed in such a manner that a part of the packaging material is in an air-permeable state” it is also noted that this limitation can be construed as the packaging material comprises a non-porous film having no air permeability which can then be sealed using materials that result in the packaging material being sealed in such a manner that a part of the packaging material is in an air permeable state.
Nonetheless, it is noted that Shepard (US 20040131731) teaches a packaging material designed to allow gas exchange between the interior and exterior of the package for controlling respiration of fruit and vegetables (see paragraph 15) by using an air permeable seal to provide the packaging material in an air permeable state (see figure 1, item 20). Shepard is also teaching packaging fruit and vegetable such as apple and tomato (see paragraph 49). Since the air is only being exchanged through the seal and since the reference does not disclose providing porosity to the bag packaging material, it would have been obvious to one having ordinary skill in the art that Shepard is teaching a packaging material that is a non-porous film that does not have air permeability and is sealed in such a manner that a part of the packaging material is in an air-permeable state.
Shepard teaches sealable packages (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).
Shaw (US 3370780) also teaches packaging materials that are not perforated while still allowing air permeability via a seal (see column 2, lines 5-11). Shaw teaches that the permeability of the packaging material is via the taped seal, to allow for respiration of produce within the package (see column 4, lines 16-34). Since Shaw is teaching in figure 3 that there is a tape 24 that is secured to edge portions (18, 20) of the packaging material and which tape as secured areas 26 and unsecured areas 28 which seal but also allow for gas exchange (see column 3, line 58-75; column 4, lines 13-15). Since the reference is teaching that the air exchange is only through the seal (see column 5, lines 2-11 and column 5, line 15 to column 6, line 12), it would have been obvious to one having ordinary skill in the art that Shaw is teaching and suggesting a packaging material that does not have air permeability, especially as the reference also teaches on column 4, lines 31-34 that pressing of the bag can also force air out of the bag via the slit and seal.
Further regarding the packaging material having no air permeability, it is also noted that Gong (US 20010008677) also teaches non-porous, gas impermeable packaging material (see figure 4 item 48 and paragraph 32, 34) which is sealed in such a manner that a part of the packaging material is in an air-permeable state (see paragraph 39; see figure 4, item 10 that is used to seal the packaging material 48). At paragraph 34, Gong further teaches that the impermeable package as shown in figure 4, can also be a bag (see paragraph 34). Gong is also teaching packaging of respiring produce (see the abstract, “fruits, vegetables”) and teaches that any impermeable material can be used (paragraph 33). Thus, Gong teaches that it has been conventional to use packaging material that is non-porous and does not have air permeability and is only in an air permeable state via the manner in which it has been sealed. This is similar to Shepard and Shepard is not limiting regarding the specific materials of construction (see paragraph 64). Both Shepard and Gong thus teach a known expedient for controlling gas exchange is to seal a package in such a manner that it is only in an air permeable state via the seal, for the purpose of providing the desired control over the gas exchange.
Pan is not limiting regarding the specific packaging material and even suggests using a ZIPLOCK bag (see paragraph 43). This is similar to Shepard who also is suggesting a ZIPLOCK style bag. To therefore modify Pan to use packaging material that is non-porous and does not have air permeability but is sealed such that a part of the packaging material is in an air-permeable state, as taught by Shepard and Gong, would have been obvious to one having ordinary skill in the art based on another and known conventional expedient for ensuring that the package is in an air-permeable state for controlling the gas, heat and moisture within the package for extending the time that the fruit and/or vegetable remains fresh. That is, it would have been obvious to one having ordinary skill in the art that produce respire and to therefore ensure that the package is 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.
Further regarding the packaging material having no air permeability, it is noted that paragraph 66 of Applicant’s disclosure appears to also recite that an example of a non-porous film having no air permeability include a resin film and that examples of such resin film include polyethylene. In this regard, Shepard also teaches using polyethylene (see paragraphs 61, 62 and 64: “polyethylene” “polyethylene blends” “multiple layers”). Nonetheless, Gong teaches using gas impermeable materials, as already discussed above.
It is noted that Pan further teaches and suggests known gas impermeable packaging materials such as PVDC, nylon, PET, EVO (see paragraph 79) such that it would have been obvious to one having ordinary skill in the art to also have used such gas impermeable materials for the packaging as suggested by Shepard, Shaw and Gong.
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.
Regarding claim 21, Pan teaches an ascorbic acid based atmosphere conditioner, as discussed above with respect to claim 1.
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 Fan (US 4883674), Lim (US 20100127059) and Bender (“Inhibition of Ethylene Production in Mango Fruit by Elevated CO2 and Recovery During Subsequent Air Storage”) and in further view of Ohl (US 20240198284) and Paull (“Mango: Postharvest Quality-Maintenance Guidelines”).
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.
Fan (US 4883674) teaches that a desirable atmosphere for fruit such as apples can have an oxygen concentration of 1-3% and a carbon dioxide concentration of 13-15% while still maintaining good eating quality (see column 7, lines 20-30). Lim also teaches that it has been conventional to provide an atmosphere of carbon dioxide greater than 10% and an oxygen concentration of less than 10% and a relative humidity such as 90% (see paragraph 58, 88-89) and which concentrations are useful for preservation and inhibiting ethylene action (see paragraph 56).
Bender also teaches atmosphere conditions such as a carbon dioxide content greater than 10% and an oxygen concentration of less than 10% with a high relative humidity (see page 279, right column, 2nd paragraph under Materials and Methods”) is desirable for suppressing ethylene production (see the abstract). 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) and Paull teaches that it has been conventional to store fruit such as mangoes at 10-13°C at 85-90% relative humidity (see page 2, left column “Optimum Storage Conditions.”)
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%-3% or 5% and a carbon dioxide concentration that is 13-15% or 25% as well as a relative humidity greater than 80% such as 85-90% would have been obvious to one having ordinary skill in the art, for extending storage life of the fruit and also suppressing ethylene generation.
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. Fan teaches storage at refrigeration temperatures (see column 2, lines 55-65); Bender also teaches storage at 12°C (see page 279, right column 2nd paragraph under Materials and Methods); and Paull teaches storage at 10-13°C.
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 8 of the response, Applicant urges that Pan does not describe at least one fruit and/or vegetable in which the generation of ethylene gas is suppressed with a higher carbon dioxide concentration and a packaging material that is non-porous film having no air permeability.
These arguments are not persuasive in view of the rejection as presented in this Office Action.
Further on page 8 of the response, Applicant urges that Pan does not teach a packaging material sealed in such a manner that a part of the packaging material is in an air permeable state.
This argument is not persuasive in view of the rejection as presented in this Office Action.
Applicant’s arguments on pages 8-11 directed to Wantanabe, Hayashi, Maeda and Matsushima have been considered but are moot in view of this new grounds of rejection as presented in this Office Action.
On pages 9-11 of the response regarding Shepard, Applicant urges that Shepard does not teach the claimed atmosphere conditioner package do not provide any motivation to adopt the configuration of the present application for at least one fruit and/or vegetable in which the generation of ethylene gas is suppressed with higher carbon dioxide concentration, the packaging material being a non-porous film having no air permeability and is sealed in such a manner that a part of the packaging material is in an air-permeable state.
These urgings are not sufficient to overcome the rejection because Shepard has not been relied on to teach the specifically claimed atmosphere conditioner package but rather teaches packaging being sealed "in such a manner" that the package remains in an air permeable state and therefore would still allow for gas exchange, as already desired by Pan.
Applicant's arguments on page 11, Ohl not teaching the air permeable state of the sealed packaging material are not sufficient in view of the remarks presented above. The reference has only been relied on to teach that is has been known in the art to use humidity control devices so as to achieve a desired humidity within a package.
Applicant's arguments on page 12, directed to the advantageous effects of the claimed package and method have been considered but are not sufficient to overcome the rejection, because the prior art is teaching and suggesting fruit and vegetable packages comprising an atmosphere conditioner package that can absorb oxygen, generate carbon dioxide and moisture for the purpose of controlling the atmospheric conditions within the package and where such control can occur within one day. The combination further teaches known expedients for packaging respiring fruit and vegetables uses packaging that is non-porous and impermeable but would still allow for gas exchange with the exterior of the package via the type of sealing of the packaging material. It is further noted that Applicant’s example 1, for example appears to be directed to broccoli, whereas the claimed invention is now directed to fruit and/or vegetable where carbon dioxide levels can suppress ethylene gas generation.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Mir (US 20140326620) discloses that ZIPLOCK bags, such as disclosed by Pan at paragraph 43 are known to be impermeable to gas and moisture (see Mir paragraph 41, last sentence).
Weber (US 20080166458) teaches providing a packaging material that is gas impermeable (see paragraph 20, “gas-impermeable packaging”) and which can be any type of container and which packaging material can be sealed with a closure that allows for gas exchange (see paragraph 22 and 28).
Hunt (GB 2237553) discloses gas impervious packaging materials that are sealed in such a manner that a part of the packaging material is air permeable (see the abstract and figure 4 and 6).
“Reduced ethylene synthesis of mangoes under high CO2 atmosphere storage” discloses using carbon dioxide concentrations of 10 or 25% and oxygen concentration of 5% at 5, 8 or 12°C.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIREN THAKUR whose telephone number is (571)272-6694. The examiner can normally be reached M-F: 10:30-7:00pm.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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