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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 22, 2026 has been entered.
Response to Amendment
Those rejections not repeated in this Office Action have been withdrawn.
Claims 1, 4, 6, 8, 9, 17-22 are currently pending and rejected.
Claim Objections
Applicant is advised that should claims 8, 9 and 19 be found allowable, claims 17, 18 and 20 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Nakamura (US 4337276) in view of Pan (US 20040131736) and Motoyama (US 4820442) and in further view of and Shepard (US 20040131731), Shaw (US 3370780) and Gong (US 20010008677).
Regarding claim 1, Nakamura discloses a fruit and vegetable package comprising at least one fruit and/or vegetable (see column 5, lines 53-57, which discloses a closed container comprising fruit and/or vegetable) and at least one atmosphere conditioner package (see column 5, lines 53-54 which discloses a freshness keeping agent in a permeable bag that is within the container). Nakamura further discloses that the atmosphere conditioner package (i.e. the freshness keeping agent) can absorb oxygen (see column 5, line 62) and can absorb carbon dioxide for maintaining the freshness of the particular fruit and/or vegetable that has been packaged (see column 2, lines 23-35 and column 3, lines 31-45). Nakamura also discloses that the atmosphere conditioner package can include a carbon dioxide absorber such as calcium hydroxide which would produce moisture upon absorption of carbon dioxide gas (see column 3, line 36-46).
Nakamura further discloses that the atmosphere modifying device can be a packaging material that comprises an oxygen scavenger, a carbon dioxide absorber and a moisture generator within a permeable bag. That is, Nakamura discloses that the freshness keeping agent, which can comprise an oxygen and carbon dioxide absorber that can generate moisture can be placed into a permeable bag (see column 5, lines 42-57; column 3, lines 36-46) and therefore reads on the claim because the limitation of, “the atmosphere conditioner package includes an atmosphere conditioner package having an oxygen absorption capacity, a carbon dioxide generation capacity and a moisture generation capacity” has been construed to mean that there is a package comprising the above three capacities.
Nakamura discloses that the atmosphere conditioner package also comprises an iron-based self-reactive atmosphere conditioner, because the reference teaches using iron salts such as iron II sulfate, which would have been electrolytic iron (see column 3, line 48 to column 4, line 11), a metal halide such as calcium chloride (see column 4, line 55-60) and water (see column 4, line 6-7) would appear to suggest an iron-based self-reactive atmosphere conditioner. Nakamura also teaches using a carrier such as activated clay (see column 2, lines 33-35).
If it could have been construed that Nakamura was not clear on the iron-based atmosphere conditioner comprising iron powder as a main agent, and further comprises a metal halide, a carrier and water, then it is noted that Pan teaches an atmosphere conditioner package which can comprise an iron-based reactive atmosphere conditioner such as iron powder or combinations of iron powder with ferrous carbonate, together with a metal halide such as sodium chloride and moisture within the container to activate the reaction to scavenge oxygen (see paragraph 52). Pan also discloses the inclusion of activated carbon or zeolite (see paragraph 54), which can be construed as a carrier. Applicant’s specification at paragraph 35 as filed also discloses that water is supplied as moisture to iron and at paragraph 37, Applicant’s specification as filed discloses that water is a component necessary for proceeding a deoxygenation reaction of iron. In view of this, Pan’s teachings are also seen to teach an iron based self-reactive atmosphere conditioner.
Motoyama (US 4820442) also teaches an oxygen scavenging composition for food (column 1, lines 5-13) which includes iron powder (see column 2, lines 36), a metal halide (see column 2, line 39-41), a carrier, such as activated carbon (see column 2, lines 57-61) and water (column 2, line 42-50).
Nakamura also teaches that multiple oxygen scavenging components can be used together (see column 3, lines 63-65). To therefore modify Nakamura and to include an iron-based self-reactive atmosphere conditioner, as taught by Pan and as further taught by Motoyama, would have been obvious to one having ordinary skill in the art for combining known oxygen scavenging compositions or as a substitution of one type of iron-based atmosphere conditioner for another, both recognized for advantageously removing oxygen from a fruit and vegetable package.
Nakamura teaches containers that need not be air tight (see column 5, lines 53-57) and therefore suggests an air-permeable package but claim 1 differs from Nakamura in specifically reciting, “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.”
Nakamura does not provide any specificity with respect to the particulars of the packaging material of the fruit and vegetable package.
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.
It is noted that Shepard 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). 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). Shepard also teaches that the packaged food can be lettuce (see paragraph 49).
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.
To therefore modify Nakamura who already suggests a non-airtight package but is not specific as to the type of container being used and 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 74 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 (see page 20, line 1-2 as filed). 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.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1 above, which relies on Nakamura (US 4337276) as the primary reference, and further view of Maeda (JP S63-317039).
Regarding claim 4, Nakamura teaches packaging fruit and/or vegetables.
Claim 4 differs from Nakamura in specifically reciting that the fruit and/or vegetable is a lettuce.
At paragraph 120, Pan teaches packaging of an atmosphere conditioner and lettuce within a packaging material (see paragraph 120 and Table 6). Shepard also teaches that the packaged food can be lettuce (see paragraph 49).
It is additionally noted that Maeda also teaches packaging lettuce as the fruit and/or vegetable in combination and an atmosphere conditioner for the purpose of keeping packaged fruits and vegetables such as lettuce fresh (see the abstract, and page 5 of the machine translation “lettuce”. Maeda also teaches using iron powder (see the abstract) in combination with a metal halide such as calcium chloride and an absorbent such as silica gel as well as zeolite (see page 5 of the machine translation), as an oxygen absorbing composition, which are similar to those disclosed on paragraph 112 of Applicant’s specification as filed. The prior art is teaching and suggesting that it has been conventional to package lettuce in a packaging material in combination with an atmosphere conditioner for preserving the freshness of lettuce.
To therefore modify Nakamura who is open to the particular type of fruit and vegetables (see the abstract and column 1, lines 8-30), and to package lettuce would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design based on the particular conventional type of vegetable to be packaged and which has been recognized to benefit from atmosphere control for extending the freshness.
Claims 6, 9 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Nakamura (US 4337276) in view of Pan (US 20040131736) and Motoyama (US 4820442) and in further view of Shepard (US 20040131731), Shaw (US 3370780) and Gong (US 20010008677).
Regarding claim 6, Nakamura a method for maintaining freshness of fruits and vegetables, the method comprising, obtaining a fruit and vegetable package by accommodating at least one fruit and/or vegetable (see column 5, lines 53-57, which discloses a closed container comprising fruit and/or vegetable) and at least one atmosphere conditioner package in a packaging material (see column 5, lines 53-54 which discloses a freshness keeping agent in a permeable bag that is within the container). and “maintaining” the fruit and vegetable package (i.e. storing).
Nakamura further discloses that during the maintaining of the fruit and vegetable package, the atmosphere conditioner package (i.e. the freshness keeping agent) can absorb oxygen (see column 5, line 62) and can absorb carbon dioxide for maintaining the freshness of the particular fruit and/or vegetable that has been packaged (see column 2, lines 23-35 and column 3, lines 31-45). Nakamura also discloses that the atmosphere conditioner package can include a carbon dioxide absorber such as calcium hydroxide which would produce moisture upon absorption of carbon dioxide gas (see column 3, line 36-46).
Nakamura further discloses that the atmosphere modifying device can be a packaging material that comprises an oxygen scavenger, a carbon dioxide absorber and a moisture generator within a permeable bag. That is, Nakamura discloses that the freshness keeping agent, which can comprise an oxygen and carbon dioxide absorber that can generate moisture can be placed into a permeable bag (see column 5, lines 42-57; column 3, lines 36-46) and therefore reads on the claim because the limitation of, “the atmosphere conditioner package includes an atmosphere conditioner package having an oxygen absorption capacity, a carbon dioxide generation capacity and a moisture generation capacity” has been construed to mean that there is a package comprising the above three capacities.
Nakamura discloses that the atmosphere conditioner package also comprises an iron-based self-reactive atmosphere conditioner, because the reference teaches using iron salts such as iron II sulfate, which would have been electrolytic iron (see column 3, line 48 to column 4, line 11), a metal halide such as calcium chloride (see column 4, line 55-60) and water (see column 4, line 6-7) would appear to suggest an iron-based self-reactive atmosphere conditioner. Nakamura also teaches using a carrier such as activated clay (see column 2, lines 33-35) and activated carbon (column 2, line 20-21).
If it could have been construed that Nakamura was not clear on the iron-based atmosphere conditioner comprising iron powder as a main agent, and further comprises a metal halide, a carrier that is calcinated diatomaceous earth or activated carbon, and water, then it is noted that Pan teaches an atmosphere conditioner package which can comprise an iron-based reactive atmosphere conditioner such as iron powder or combinations of iron powder with ferrous carbonate, together with a metal halide such as sodium chloride and moisture within the container to activate the reaction to scavenge oxygen (see paragraph 52). Pan also discloses the inclusion of activated carbon or zeolite (see paragraph 54), which can be construed as a carrier. Applicant’s specification at paragraph 35 as filed also discloses that water is supplied as moisture to iron and at paragraph 37, Applicant’s specification as filed discloses that water is a component necessary for proceeding a deoxygenation reaction of iron. In view of this, Pan’s teachings are also seen to teach an iron based self-reactive atmosphere conditioner.
Motoyama (US 4820442) also teaches an oxygen scavenging composition for food (column 1, lines 5-13) which includes iron powder (see column 2, lines 36), a metal halide (see column 2, line 39-41), a carrier, such as activated carbon (see column 2, lines 57-61) and water (column 2, line 42-50).
Nakamura also teaches that multiple oxygen scavenging components can be used together (see column 3, lines 63-65). To therefore modify Nakamura and to include an iron-based self-reactive atmosphere conditioner, as taught by Pan and as further taught by Motoyama, would have been obvious to one having ordinary skill in the art for combining known oxygen scavenging compositions or as a substitution of one type of iron-based atmosphere conditioner for another, both recognized for advantageously removing oxygen from a fruit and vegetable package.
Nakamura discloses inserting the fruit and/or vegetable and the atmosphere conditioner into a packaging material to an opening of the packaging material (see column 5, lines 56-57). Nakamura also teaches that the package need not be in an air-tight state (column 5, lines 56-57), thus suggesting a closed package with an air-permeable state.
Nakamura teaches containers that need not be air tight (see column 5, lines 53-57) and therefore suggests an air-permeable package but claim 1 differs from Nakamura in specifically reciting, “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.”
Nakamura does not provide any specificity with respect to the particulars of the packaging material of the fruit and vegetable package.
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.
It is noted that Shepard 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). 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). Shepard also teaches that the packaged food can be lettuce (see paragraph 49).
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.
To therefore modify Nakamura who already suggests a non-airtight package but is not specific as to the type of container being used and 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 74 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 (see page 20, line 1-2 as filed). 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 claims 9 and 18, Nakamura discloses that the fruit and vegetable package is maintained at temperature from about 20-25°C (see column 7, lines 4-5; column 8, lines 1-3 and 62-65; column 10, line 21 and 64 and column 11, line 35). While the examples which recite storage temperatures do not specifically discuss the inclusion of the oxygen absorber and the carbon dioxide absorber that can also generate moisture, Nakamura’s disclosure suggests that it would have been obvious to one having ordinary skill in the art to use such maintaining temperatures, such as 20-25°C based on the particular type fruit and/or vegetable to be stored.
Even further, 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. To therefore modify Nakamura and to maintain the package at a temperature such as 0-30°C would have been obvious to one having ordinary skill in the art, based on the particular fruit and/or vegetable that was desired to be packaged and maintained fresh.
Claim 8, 17, 19 and 20 rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claims 6 and 7 above, and in further view of Lidster (Commercial Storage of Fruits and Vegetables), McGill (US 3453119) and in further view of Ohl (US 20240198284).
Regarding claims 8 and 17, Nakamura teaches maintaining the fruit and vegetable package for more than one day (see for example, Table 3 and Table 4).
Claims 8 and 17 differ 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 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 10% or less; and- Requirement (iii): a humidity of 80% or more.
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 day or longer.
In view of paragraph 57 and 58, Pan is teaching and suggesting an atmosphere in the fruit and vegetable package after “accommodating” for within one to two days achieves the desired composition which can be 0.5-40% carbon dioxide and 2-21% oxygen, as a preference, commensurate with the type of produce to be preserved.
To therefore modify Nakamura who is already teaching maintaining a desired atmosphere within the package by using oxygen and carbon dioxide absorbers and to modify the atmosphere control to be achieve an atmosphere after one day or longer or two days or shorter would have been obvious to one having ordinary skill in the art as an obvious matter of engineering and/or design for achieving the desired atmosphere for maintaining the freshness of the fruit and/or vegetable.
Regarding the particular oxygen and carbon dioxide concentration and humidity, it is noted that Lidster teaches that lettuce can be advantageously stored at a humidity of 95-100% (see page 44 below the heading “Lettuce”) and where the oxygen concentration can be 2.5% and a carbon dioxide atmosphere of 2.5% (see page 44, last three lines). McGill teaches storage conditions for vegetables such as lettuce can benefit from a carbon dioxide content that is less than 5% (column 2, lines 66-69) with an oxygen concentration of about 1% (see column 3, lines 15-19) with a humidity of between 90-100% (see column 3, lines 42-43). 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 Nakamura who also teaches controlling the atmosphere to keep the fruit and/or vegetables fresh (see column 5, lines 58-66), and to provide an oxygen concentration such as 1% or 2.5% and a carbon dioxide concentration that is less than 10, such as 2.5% or less than 5%, as taught by Lidster and McGill and a humidity of 90-100% 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 lettuce.
Regarding claims 19 and 20, Nakamura discloses that the fruit and vegetable package is maintained at temperature from about 20-25°C (see column 7, lines 4-5; column 8, lines 1-3 and 62-65; column 10, line 21 and 64 and column 11, line 35). While the examples which recite storage temperatures do not specifically discuss the inclusion of the oxygen absorber and the carbon dioxide absorber that can also generate moisture, Nakamura’s disclosure suggests that it would have been obvious to one having ordinary skill in the art to use such maintaining temperatures, such as 20-25°C based on the particular type fruit and/or vegetable to be stored.
Even further, 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. To therefore modify Nakamura and to maintain the package at a temperature such as 0-30°C would have been obvious to one having ordinary skill in the art, based on the particular fruit and/or vegetable that was desired to be packaged and maintained fresh.
Claims 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1 above and in further view of Sugimoto (US 20060163534).
Regarding claims 21 and 22, the claims differ from the combination in specifically reciting that, the atmosphere conditioner package comprises the polyhydric alcohol-based atmosphere conditioner (claim 21) and the atmosphere conditioner package comprises the sugar alcohol-based atmosphere conditioner (claim 22).
However, Sugimoto teaches using combinations of atmosphere conditioners, such as polyhydric alcohols such as ethylene glycol, as well as sugar alcohols (see paragraph 28 and page 6, claim 8). Sugimoto further teaches that there can be an alkaline substance such as alkali or alkaline earth metal hydroxides for promoting deoxygenations well as a metal catalyst such as iron salts (see paragraph 21 and 29).
Sugimoto therefore teaches that it has been conventional to include combinations of oxygen absorbing compositions together and since Nakamura already teaches and suggests using iron salts together with ascorbic acid (see column 3, lines 63-65), it would have been obvious to one having ordinary skill in the art to have modified the combination and also included a polyhydric alcohol based or sugar alcohol based atmosphere conditioner into Nakamura’s atmosphere conditioner package based on combining known oxygen absorbing compositions together for the same purpose; or to substitute Nakamura’s oxygen absorbing composition for other known oxygen absorbing compositions used for the same purpose.
Response to Arguments
On page 8 of the response, Applicant urges that Nakamura does not fairly describe that a single atmosphere conditioner package simultaneously has oxygen absorption capacity, carbon dioxide absorption capacity and moisture generation capacity. Applicant urges that the Office Action combines multiple passages in Nakamura to identify these three functions but one skilled in the art would recognize that Nakamura does not show that these functions are realized simultaneously by the same freshness-preserving agent or within the same package.
This argument is not persuasive because "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." (MPEP 2123). In this regard, it is clear that Nakamura discloses absorbing carbon dioxide (see at least, column 3, lines 43-45) and removing (i.e. absorbing) oxygen (see column 3, lines 48-50). As shown at column 3, line 35, when calcium hydroxide absorbs carbon dioxide, moisture is generated. Therefore, the reference is suggesting the above recited functions as part of an atmosphere conditioning package to be inserted into a fruit and vegetable package.
On page 9 of the response, Applicant urges that Nakamura's statement that a carbon dioxide absorbent may generate moisture is only an isolated disclosure relating to a carbon dioxide absorbent and does not disclose the same freshness preserving agent or the same package as simultaneously having oxygen absorption capacity, carbon dioxide absorption capacity and moisture generation capacity.
This argument is not persuasive because the reference is teaching that the permeable package can clearly be used to absorb both carbon dioxide and oxygen and that the materials used for absorbing carbon dioxide would also generate moisture.
On page 9 of the response, Applicant urges that Pan does not teach the packaging material that accommodates the fruit and/or vegetable and the atmosphere conditioner package is a non-porous film having no air permeability.
This argument is moot in view of the new grounds of rejection necessitated by the amendment to the claims.
On pages 9-10 of the response, Applicant urges that Motoyama does not indicate moisture generation capability.
It is noted however, that the reference has not been relied on to specifically teach moisture generation, but rather to teach known forms of oxygen scavenging compositions that can be placed into fruit and vegetable packages.
On pages 10-11 regarding Wantanabe, Hayashi and Matsushima are moot as the references have not been relied on in the rejection as presented in this Office Action.
On pages 11-12 of the response, Applicant urges that the Office Action has not established that there would have been any proper reason and/or motivation to depart from Nakamura's configuration.
These arguments are not persuasive because Nakamura is already seen to teach and suggest an atmosphere conditioner comprising oxygen absorption capacity and carbon dioxide absorption capacity along with moisture generating capacity. The secondary references further teach and suggest known types of oxygen absorption materials that can be used in such atmosphere conditioner packages and known expedients for how to provide a sealed package that is in an air-permeable state.
Further on page 12 of the response, Applicant urges that examples 1 and 2 of Applicant's specification disclose that when using atmosphere conditioner package x, with the packaging material being a non-porous film having no air permeability and part of the packaging material is sealed in an air permeable state the package achieves a rapid establishment of the desired preservation atmosphere compared to comparative example 1 which lacks the packaging material and atmosphere conditioner package, comparative example 2 which lacks the atmosphere conditioner package and comparative example 3 which lacks the packaging material being sealed in an air-permeable state.
These arguments are not sufficient because the combination clearly teaches an atmosphere conditioner package that reads on the claimed atmosphere conditioner package while also providing permeability to the package. Claim limitations directed to the packaging material being non-porous film having no air permeability require further search and consideration.
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).
Herrly (US 1430551 already of record) evidences that ferrous salts can also react in air (see at least, page 1, lines 20-31). Ferrous Sulfate MSDS also evidences that ferrous sulfate can oxidize in air (see page 3, under “Stability and Reactivity”).
Wakabayashi (US 5328894 already of record) also teaches an oxygen absorbent that can comprise iron powder, calcium chloride as a metal halide, activated carbon as a carrier (see column 3, lines 64-67) and where the atmosphere conditioner package also comprises water (see column 4, lines 11-12).
Sugihara (US 5180518 already of record) discloses atmosphere conditioners that can include a sugar alcohol (column 3, lines 36-46), a polyhydric alcohol (column 3, lines 28-33), an alkaline substance (column 3, lines 47-63), a metal catalyst (column 4, lines 31-38)
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.
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.
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
Prosecution Insights