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 .
Election/Restrictions
Applicant's election with traverse of Group I: Claims 1-11 and 16-20 in the reply filed on May 5, 2026 is acknowledged. The traversal is on the ground(s) that the set of claims appears to meet the requirements of 37 CFR 1.475(b) since the claims relate to a product and a process specially adapted for the manufacture of the product. Applicant contends the invention is defined by a combination of specific material choices of BOPE/MDOPE, a specific physical property haze ≤ 10, a structural feature of perforations, and an alleged critical package performance metric of CO2TRpack ≥ 1000 ml/24h/100g. Applicant argues the special technical feature is not simply a package made of a specific perforated polymer film for controlled atmosphere packaging as concluded by Examiner and rather is a combination of physical properties of the packaging material taking into account the density of the produce. Applicant contends that Brant et al. teaches a specific type of low haze BOPE film but does not teach using that film with perforations for controlled atmosphere packaging of the specific package carbon dioxide transmission rate of the claims. Applicant continues that Varriano-Marston et al. fails to identify a specific threshold such as a CO2TRpack of at least 1000 ml/24h/100g as a feature for the package. Applicant argues none of the cited references teaches or suggests the CO2TRpack threshold criteria or gives any indication of the importance of this parameter and that Brant et al. discloses intrinsic film properties of OTR in cc mil/100 in2/atm/day which is allegedly different from a package performance metric normalized by the weight of the respiring produce and Varriano-Marston provides a method to calculate the number of holes needed to hit a target flux but does not disclose that a CO2TRpack. This is not found persuasive because the independent Claims 1 and 12 do not recite a density of the produce as alleged by applicant. Also, Brant et al. teaches overlapping ranges of the carbon dioxide transmission rate to prevent dry rot of product (‘470, Page 5). Furthermore, modified Christie et al. as set forth in the obviousness rejections below render obvious the particular CO2TRpack as discussed below. Although Christie et al. does not explicitly teach the package having a package carbon dioxide transmission rate (CO2TRpack) in which the one or more perforations provide a perforation carbon dioxide transmission rate (CO2TRperf) such that the package carbon dioxide transmission rate (CO2TRpack) is a sum of the perforation carbon dioxide transmission rate (CO2TRperf) and a material carbon dioxide transmission rate (CO2TRmat) of the packaging material (CO2TRpack = CO2TRperf + CO2TRmat) and the CO2TRpack is at least 1000 ml/24 hrs per 100 gram of the respiring produce to be packed, differences in the package carbon dioxide transmission rate, perforation carbon dioxide transmission rate, and material carbon dioxide transmission rate of the packaging material will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such carbon dioxide transmission rates are critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Grah discloses a method of adjusting the gas transmission rate of a packaging film (‘089, Paragraph [0001]) used to package food (‘089, Paragraph [0118]) wherein the packaging film is made of low density polyethylene (‘089, Paragraph [0070]) wherein the film is perforated (‘089, Paragraph [0126]) and adjusting the carbon dioxide transmission rate of the packaging film (‘089, Paragraphs [0131]-[0132]). Mahajan et al. discloses the objective of MAP design is to define conditions that will create the atmosphere best suited for the extended storage of a given produce and to minimize the period of time to achieve this atmosphere wherein high perishable products may deteriorate before the recommended atmosphere is attained and if O2 and CO2 concentrations are not within the recommended ranges of O2 and CO2 concentrations the product may experience serious alterations and its storage life shortened (Mahajan et al., Page 119-2) wherein the success of MAP depends largely on the selected package material and thickness as well as the package surface area and the free volume inside the package which depend on the respiration rate of the product, weight to be packed, and temperature of the distribution chain wherein there is an optimum film to be used in packaging each type of product (Mahajan et al., Page 119-3) wherein control of respiration is an important effect of atmosphere modification on post harvest life of fruits and vegetables wherein high respiration rates are associated with rapid deterioration of the product (Mahajan et al., Page 119-4) wherein a wide range of permeabilities are required since there are many varieties of produce wherein high permeabilities are needed for rapidly respiring produce and low permeabilities are required for slowly respiring produce wherein the required permeability achieved by perforated films have higher permeability rates but lower ratio of CO2 and O2, approaching one wherein such perforated films are of interest for commodities tolerating simultaneously low O2 and high CO2 levels such as fresh cut products, strawberry and mushroom (Mahajan et al., Page 119-7). Mahajan et al. also discloses the best atmosphere to extend product shelf life varies from product to product (Mahajan et al., Page 119-4). Mahajan et al. shows a table in FIGURES 119.2-119.3 (Mahajan et al., Page 119-6) that different fresh fruits and different fresh vegetables have various recommended atmospheres depending on the particular type of respiring product of fresh fruits or fresh vegetables. It would have been obvious to one of ordinary skill in the art to adjust the carbon dioxide transmission rate pertaining to the package, perforation, and material of the package of Christie et al. wherein Grah teaches adjusting the carbon dioxide transmission rate of a food packaging film based upon the particular type of respiring produce of fruit or vegetable stored within the package since different fruits and vegetables have different minimum and maximum recommended CO2 levels as already suggested by Christie et al. (‘630, FIG. 2). Given that the particular type of respiring produce disposed in the packaging it not specified in Claim 1, it would also have been obvious to one of ordinary skill in the art at the time of the invention to modify the package of modified Christie et al. and adjust the carbon dioxide transmission rate of the packaging film based upon the particular type of fruit or vegetable stored within the package since Mahajan et al. teaches that each particular type of respiring produce of fruits or vegetables has a different recommended atmosphere depending on the product. Therefore, these arguments are not found persuasive.
The requirement is still deemed proper and is therefore made FINAL.
Claims 12-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
An action on the merits of elected Claims 1-11 and 16-20 is provided below.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on April 15, 2024 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 10-11 and 18 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 pre-AIA the applicant regards as the invention.
Claim 10 recites the limitation “a carbon dioxide transmission rate (CO2TRmat)” in line 2. It is unclear if this refers to “a material carbon dioxide transmission rate (CO2TRmat)” recited in Claim 1, lines 14-15 or to an entirely different (CO2TRmat).
Claim 11 recites the limitation “a Biaxially Oriented Polyethylene (BOPE) or a Mono Directed Oriented Polyethylene (MDOPE) containing polymer film” in lines 4-5. It is unclear if this refers to “a Biaxially Oriented Polyethylene (BOPE) or a Mono Directed Oriented Polyethylene (MDOPE) containing polymer film” recited in Claim 1, lines 4-5 or to entirely different BOPE and MDOPE containing polymer films.
Claim 18 recites the limitation “the package transmission ratio βpack” in line 1. There is insufficient antecedent basis for this limitation in the claim. It is also unclear how the package transmission ratio βpack is calculated.
Clarification is required.
Claim Rejections - 35 USC § 103
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 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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-10 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Christie et al. US 5,807,630 in view of Grah US 2007/0042089, Mahajan et al. “An Interactive Design of MA Packaging for Fresh Produce” (published January 2006) (herein referred to as “Mahajan et al.”) (cited on Information Disclosure Statement filed April 15, 2024), Chang et al. US 2011/0274892, Sherman “BOPE Takes Aim at BOPP & BOPET Films” <https://www.ptonline.com/blog/post/bope-takes-aim-at-bopp-bopet-films-> (published July 3, 2020) (herein referred to as “Sherman”) (cited on Information Disclosure Statement filed April 15, 2024), Sandford US 6,045,882, Longstreth “Clear Polyethylene Film” <https://brentwoodplastics.com/blog/clear-polyethylene-film> (published June 7, 2013) (herein referred to as “Longstreth”), and “SABIC Launches Innovative TF-BOPE Film For Frozen Food Packaging” <https://www.sabic.com/en/news/24224-sabic-launches-innovative-tf-bope-film-for-frozen-food-packaging> (published September 22, 2020) (herein referred to as “SABIC”).
Regarding Claim 1, Christie et al. discloses a package for preserving respiring produce contained in the package (‘630, Column 4, lines 65-67) (‘630, Column 5, lines 24-36). The package defines a package volume for containing a portion of the respiring produce (‘630, Column 4, lines 65-67) and a package atmosphere (‘630, Column 5, lines 66-67). The package comprises a packaging material comprising a polyethylene containing polymer film (‘630, Column 5, lines 49-59). The polymer film is provided with one or more perforations (microperforations) enabling gas exchange with the atmosphere surrounding the package (‘630, Column 3, lines 36-40) to form the package into a controlled atmosphere package (‘630, Column 5, lines 66-67).
Christie et al. discloses the package having a carbon dioxide concentration having different optimum carbon dioxide concentrations based upon the type of produce item (‘630, Column 5, lines 24-36) wherein the concentration of carbon dioxide is controlled by the respiration rate of the produce less the amount of CO2 released through the film (‘630, Column 5, lines 37-39) which minimum and maximum recommended CO2 levels are different depending on the type of fruit or vegetable stored (‘630, FIG. 2) (‘630, Column 7, lines 47-67) (‘630, Column 8, lines 1-15). Claim 1 does not specify the particular type of respiring produce disposed in the package. Although Christie et al. does not explicitly teach the package having a package carbon dioxide transmission rate (CO2TRpack) in which the one or more perforations provide a perforation carbon dioxide transmission rate (CO2TRperf) such that the package carbon dioxide transmission rate (CO2TRpack) is a sum of the perforation carbon dioxide transmission rate (CO2TRperf) and a material carbon dioxide transmission rate (CO2TRmat) of the packaging material (CO2TRpack = CO2TRperf + CO2TRmat) and the CO2TRpack is at least 1000 ml/24 hrs per 100 gram of the respiring produce to be packed, differences in the package carbon dioxide transmission rate, perforation carbon dioxide transmission rate, and material carbon dioxide transmission rate of the packaging material will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such carbon dioxide transmission rates are critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Grah discloses a method of adjusting the gas transmission rate of a packaging film (‘089, Paragraph [0001]) used to package food (‘089, Paragraph [0118]) wherein the packaging film is made of low density polyethylene (‘089, Paragraph [0070]) wherein the film is perforated (‘089, Paragraph [0126]) and adjusting the carbon dioxide transmission rate of the packaging film (‘089, Paragraphs [0131]-[0132]). Mahajan et al. discloses the objective of MAP design is to define conditions that will create the atmosphere best suited for the extended storage of a given produce and to minimize the period of time to achieve this atmosphere wherein high perishable products may deteriorate before the recommended atmosphere is attained and if O2 and CO2 concentrations are not within the recommended ranges of O2 and CO2 concentrations the product may experience serious alterations and its storage life shortened (Mahajan et al., Page 119-2) wherein the success of MAP depends largely on the selected package material and thickness as well as the package surface area and the free volume inside the package which depend on the respiration rate of the product, weight to be packed, and temperature of the distribution chain wherein there is an optimum film to be used in packaging each type of product (Mahajan et al., Page 119-3) wherein control of respiration is an important effect of atmosphere modification on post harvest life of fruits and vegetables wherein high respiration rates are associated with rapid deterioration of the product (Mahajan et al., Page 119-4) wherein a wide range of permeabilities are required since there are many varieties of produce wherein high permeabilities are needed for rapidly respiring produce and low permeabilities are required for slowly respiring produce wherein the required permeability achieved by perforated films have higher permeability rates but lower ratio of CO2 and O2, approaching one wherein such perforated films are of interest for commodities tolerating simultaneously low O2 and high CO2 levels such as fresh cut products, strawberry and mushroom (Mahajan et al., Page 119-7). Mahajan et al. also discloses the best atmosphere to extend product shelf life varies from product to product (Mahajan et al., Page 119-4). Mahajan et al. shows a table in FIGURES 119.2-119.3 (Mahajan et al., Page 119-6) that different fresh fruits and different fresh vegetables have various recommended atmospheres depending on the particular type of respiring product of fresh fruits or fresh vegetables. It would have been obvious to one of ordinary skill in the art to adjust the carbon dioxide transmission rate pertaining to the package, perforation, and material of the package of Christie et al. wherein Grah teaches adjusting the carbon dioxide transmission rate of a food packaging film based upon the particular type of respiring produce of fruit or vegetable stored within the package since different fruits and vegetables have different minimum and maximum recommended CO2 levels as already suggested by Christie et al. (‘630, FIG. 2). Given that the particular type of respiring produce disposed in the packaging it not specified in Claim 1, it would also have been obvious to one of ordinary skill in the art at the time of the invention to modify the package of modified Christie et al. and adjust the carbon dioxide transmission rate of the packaging film based upon the particular type of fruit or vegetable stored within the package since Mahajan et al. teaches that each particular type of respiring produce of fruits or vegetables has a different recommended atmosphere depending on the product.
Further regarding Claim 1, Christie et al. discloses the packaging material comprising a polyethylene containing polymer film such as a low density polyethylene (LDPE) film (‘630, Column 5, lines 49-65). However, Christie et al. modified with Grah and Mahajan et al. is silent regarding the packaging material comprising a biaxially oriented polyethylene (BOPE) or a mono directed oriented polyethylene (MDOPE) containing polymer film with a haze of at most 10 as determined by ASTM D 1003.
Chang et al. discloses a multilayered biaxially oriented film including a biobased polyolefin derived from non petroleum sourced monomers (‘892, Paragraph [0002]) wherein the laminate film surrounds a food product (‘892, Paragraph [0019]) which film is a biobased BOPE film and laminate (‘892, Paragraph [0045]) wherein biaxially oriented polyolefin films such as BOPE films are used for food packaging applications (‘892, Paragraph [0003]). Sherman discloses biaxially oriented polyethylene (BOPE) has emerged as a major potential contender in packaging designed for recyclability wherein SABIC launched a new LLDPE for BOPE films in 2019 of BOPE pouches suitable for frozen, fresh, and dried fruit and vegetables wherein BOPE boasts good printability, high mechanical properties and toughness as well as very high seal integrity and the BOPE film has a controlled, linear tear direction making the package easy to open (Sherman, Page 1) wherein the most significant benefit of BOPE over alternative materials is easier recyclability (Sherman, Page 4).
Christie et al., Chang et al., and Sherman are all directed towards the same field of endeavor of food packages made of polymer film. The food packages made of polymer film of Christie et al., Chang et al., and Sherman are polyolefin films. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food package of Christie et al. and construct the food package out of a biaxially oriented polyethylene (BOPE) containing polymer film since the selection of a known material (BOPE) based on its suitability for its intended use (as a material in constructing a food package) supports a prima facie determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Chang et al. teaches that there was known utility in the food package art to construct food packages out of a BOPE film. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food package made of low density polyethylene of Christie et al. and construct the food package out of a biaxially oriented polyethylene (BOPE) containing polymer film that is also made out of low density polyethylene since Sherman teaches that BOPE is a food packaging material designed for recyclability.
Further regarding Claim 1, Christie et al. modified with Grah, Mahajan et al., Chang et al., and Sherman is silent regarding the polymer film having a haze of at most 10 as determined by ASTM D 1003.
Sandford discloses a film used for packaging food products (‘882, Column 4, lines 61-65) wherein the film is a multilayer, thermoplastic, biaxially stretched, flexible film (‘882, Column 4, lines 9-26) wherein each of the layers comprises low density polyethylene (LDPE) (‘882, Column 10, lines 13-19) wherein the film has low haze of less than 5% (‘882, Column 6, lines 56-63) as measured by ASTM D-1003-52 (‘882, Column 14, lines 14-25), which falls within the claimed polymer film having a haze of at most 10.
Both modified Christie et al. and Sandford are directed towards the same field of endeavor of films used for packaging foods. Both food packaging films of Christie et al. and Sandford are made of low density polyethylene. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food packaging film of modified Christie et al. and construct the food packaging film to have the claimed haze range as taught by Sandford since where the claimed haze ranges encompasses haze ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, Longstreth discloses a low haze film allows the consumer to see the product at point of sale (Longsteth, Page 1). SABIC discloses a food package comprising a packaging material comprising a BOPE containing polymer film wherein a BOPE film having a lower haze results in better visibility of the packaged product (SABIC, Page 2).
It would also have been obvious to one of ordinary skill in the art at the time of the invention to adjust the haze of the polymer film of modified Christie et al. since differences in the haze of the polymer film will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such haze of the polymer film is critical. Where the general conditions of a claim are disclosed in the prior art, it Is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would adjust the haze of the polymer film of modified Christie et al. to be a low enough value to allow the consumer to view the contents of the polymer film packaging as suggested by Longstreth and SABIC.
Regarding Claims 2-3, Christie et al. discloses the respiring produce to be leafy greens of lettuce or spinach (‘630, Column 5, lines 16-23). Mahajan et al. discloses the leafy greens to be freshly cut (Mahajan et al., Pages 119-4 and 119-14).
Regarding Claims 2 and 4, Christie et al. discloses the respiring produce to be cauliflower or broccoli (‘630, Column 5, lines 16-23). Mahajan et al. discloses the vegetables to be freshly cut broccoli (Mahajan et al., Table 119.3 on Page 119-5).
Regarding Claims 2 and 5, Christie et al. discloses the respiring produce to be berries, apples, pears, bananas, and/or mangos (‘630, Column 5, lines 16-23).
Regarding Claims 2 and 6, Mahajan et al. discloses the respiring produce to be prepared salads to be freshly cut vegetables (cut Galega kale) (Mahajan et al., Page 119-14).
Regarding Claims 7 and 17, SABIC discloses the thickness of the polymer film being 20 micrometers (SABIC, Page 2), which falls within the claimed polymer film thickness of 5-200 micrometers or 15-50 micrometers. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the polymer film thickness of the package of modified Christie et al. to fall within the claimed polymer film thickness as taught by SABIC since where the claimed polymer film thickness encompasses polymer film thicknesses disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the polymer film thickness will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such polymer film thickness is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). SABIC teaches that a 20 micrometer BOPE polymer film has a reduced thickness that minimizes environmental impacts and reduces packaging material consumption (SABIC, Page 2).
Regarding Claims 8 and 18, Mahajan et al. discloses selection of a film having optimal β is necessary to achieve the optimum atmosphere in the package wherein use of a polymeric film with a high β of >4-6 results in an equilibrium atmosphere that is low in CO2 (Mahajan et al., Page 119-5) and that there are many varieties of produce which requires a wide range of permeabilities depending on the respiration rate of the produce wherein the CO2 permeability of polymeric films can be generally 3 to 6 times that of O2 permeability, which overlaps the claimed βpack = CO2TRpack/O2TRpack of at least 1.5 or at least 5. Where the claimed βpack ranges overlaps βpack ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Mahajan et al. also discloses there exists less CO2 tolerant commodities such as mango, banana, grapes, and apples (Mahajan et al., Page 119-7). Differences in the βpack package transmission ratio will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such βpack package transmission ratio is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Given that Claim 1 does not specify the particular type of respiring produce that is packaged, one of ordinary skill in the art would adjust the βpack package transmission ratio based upon the respiration rate of the produce that is to be packaged, which CO2 and O2 transmission rates are influenced by the particular type of produce.
Regarding Claims 9-10, 16, and 19-20, Christie et al. discloses different packaged produce products have different optimum carbon dioxide concentrations and oxygen concentrations and that the concentration of carbon dioxide is controlled by the respiration rate of the produce less the amount of CO2 released through the film and the concentration of oxygen is directly related to the permeance of the film to oxygen (‘630, FIG. 2) (‘630, Column 5, lines 24-48). Mahajan et al. discloses high permeabilities are needed for rapidly respiring produce and low permeabilities are needed for slowly respiring produce (Mahajan, Page 119-7) wherein the respiration rates for various respiring produce of fruits and vegetables varies depending on the type of produce (Mahajan et al., Table 119.3 on Page 119-5). Although Christie et al. modified with Grah, Mahajan et al., Chang et al., Sherman, Sandford, Longstreth, and SABIC does not explicitly state that the packaging material has an oxygen transmission rate (O2TRmat) of at least 2000 ml/m2x24hrs or a carbon dioxide transmission rate (CO2TRmat) of at least 15000 ml/m2x24 hrs or the CO2TRpack being at least 2500 ml/24hrs per 100 gram of the respiring produce to by packed or the package having an oxygen transmission rate (O2TRmat) of at least 5000 ml/m2x24 hrs) or the package having a carbon dioxide transmission rate (CO2TRmat) of at least 30000 ml/m2x24hrs, differences in the oxygen transmission rate and/or carbon dioxide transmission rate of the packaging material or the package will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such oxygen transmission rate and/or carbon dioxide transmission rate of the packaging material or the package are critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Grah discloses a method of adjusting the gas transmission rate of a packaging film (‘089, Paragraph [0001]) used to package food (‘089, Paragraph [0118]) wherein the packaging film is made of low density polyethylene (‘089, Paragraph [0070]) wherein the film is perforated (‘089, Paragraph [0126]) and adjusting the oxygen transmission rate of the packaging film (‘089, Paragraphs [0128]-[0129]) as well as the carbon dioxide transmission rate of the packaging film (‘089, Paragraphs [0131]-[0132]). Mahajan et al. discloses the objective of MAP design is to define conditions that will create the atmosphere best suited for the extended storage of a given produce and to minimize the period of time to achieve this atmosphere wherein high perishable products may deteriorate before the recommended atmosphere is attained and if O2 and CO2 concentrations are not within the recommended ranges of O2 and CO2 concentrations the product may experience serious alterations and its storage life shortened (Mahajan et al., Page 119-2) wherein the success of MAP depends largely on the selected package material and thickness as well as the package surface area and the free volume inside the package which depend on the respiration rate of the product, weight to be packed, and temperature of the distribution chain wherein there is an optimum film to be used in packaging each type of product (Mahajan et al., Page 119-3) wherein control of respiration is an important effect of atmosphere modification on post harvest life of fruits and vegetables wherein high respiration rates are associated with rapid deterioration of the product (Mahajan et al., Page 119-4) wherein a wide range of permeabilities are required since there are many varieties of produce wherein high permeabilities are needed for rapidly respiring produce and low permeabilities are required for slowly respiring produce wherein the required permeability achieved by perforated films have higher permeability rates but lower ratio of CO2 and O2, approaching one wherein such perforated films are of interest for commodities tolerating simultaneously low O2 and high CO2 levels such as fresh cut products, strawberry and mushroom (Mahajan et al., Page 119-7). Mahajan et al. also discloses the best atmosphere to extend product shelf life varies from product to product (Mahajan et al., Page 119-4). Mahajan et al. shows a table in FIGURES 119.2-119.3 (Mahajan et al., Page 119-6) that different fresh fruits and different fresh vegetables have various recommended atmospheres depending on the particular type of respiring product of fresh fruits or fresh vegetables. It would have been obvious to one of ordinary skill in the art to adjust the oxygen transmission rate and/or carbon dioxide transmission rate of the packaging material and the package of Christie et al. wherein Grah teaches adjusting the carbon dioxide transmission rate of a food packaging film based upon the particular type of respiring produce of fruit or vegetable stored within the package since different fruits and vegetables have different minimum and maximum recommended CO2 levels as already suggested by Christie et al. (‘630, FIG. 2). Given that the particular type of respiring produce disposed in the packaging it not specified in Claim 1, it would also have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaging material used to make the package of modified Christie et al. and adjust the oxygen transmission rates and carbon dioxide transmission rate of the packaging film and the package based upon the particular type of fruit or vegetable stored within the package since Mahajan et al. teaches that each particular type of respiring produce of fruits or vegetables has a different recommended atmosphere depending on the product.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Christie et al. US 5,807,630 in view of Grah US 2007/0042089, Mahajan et al. “An Interactive Design of MA Packaging for Fresh Produce” (published January 2006) (herein referred to as “Mahajan et al.”) (cited on Information Disclosure Statement filed April 15, 2024), Chang et al. US 2011/0274892, Sherman “BOPE Takes Aim at BOPP & BOPET Films” <https://www.ptonline.com/blog/post/bope-takes-aim-at-bopp-bopet-films-> (published July 3, 2020) (herein referred to as “Sherman”) (cited on Information Disclosure Statement filed April 15, 2024), Sandford US 6,045,882, Longstreth “Clear Polyethylene Film” <https://brentwoodplastics.com/blog/clear-polyethylene-film> (published June 7, 2013) (herein referred to as “Longstreth”), and “SABIC Launches Innovative TF-BOPE Film For Frozen Food Packaging” <https://www.sabic.com/en/news/24224-sabic-launches-innovative-tf-bope-film-for-frozen-food-packaging> (published September 22, 2020) (herein referred to as “SABIC”) as applied to claim 1 or claim 18 above in further view of Kuo et al. US 5,962,092.
Regarding Claim 9, Christie et al. modified with Grah, Mahajan et al., Chang et al., Sherman, Sandford, Longstreth, and SABIC renders obvious the limitations of Claim 9 as enumerated above. Christie et al. discloses different packaged produce products have different optimum carbon dioxide concentrations and oxygen concentrations and that the concentration of carbon dioxide is controlled by the respiration rate of the produce less the amount of CO2 released through the film and the concentration of oxygen is directly related to the permeance of the film to oxygen (‘630, FIG. 2) (‘630, Column 5, lines 24-48). Mahajan et al. discloses high permeabilities are needed for rapidly respiring produce and low permeabilities are needed for slowly respiring produce (Mahajan, Page 119-7) wherein the respiration rates for various respiring produce of fruits and vegetables varies depending on the type of produce (Mahajan et al., Table 119.3 on Page 119-5). In the event that it can be shown by applicant with objective evidence that the oxygen transmission rate of a packaging material used for packaging respiring produce of at least 2000 ml/m2x24 hrs is critical, Kuo et al. discloses a multilayer packaging film for cut vegetables which multilayer film has an oxygen permeability of from about 3000 to 6000 cc/m2/24 hr STP (‘092, Column 6, lines 8-39) or an oxygen transmission rate of from about 500 to 50000 cc/m2/24 hr STP (‘092, Column 11, lines 5-10), which overlaps the claimed oxygen transmission rate of at least 2000 ml/m2x24 hrs. It is noted that 1 cc is equivalent to 1 ml. Kuo et al. also discloses the outer layers contains polyethylene (‘092, Column 12, lines 28-47).
Both modified Christie et al. and Kuo et al. are directed towards the same field of endeavor of packaging films for containing respiring produce. Both packaging films of modified Christie et al. and Kuo et al. are made of polyethylene. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaging material of modified Christie et al. to have the claimed oxygen transmission rate as taught by Kuo et al. since where the claimed oxygen transmission rate of the packaging material suitable for storing respiring products ranges overlaps oxygen transmission rate of the packaging material suitable for storing respiring products ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Claims 9-10 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Christie et al. US 5,807,630 in view of Grah US 2007/0042089, Mahajan et al. “An Interactive Design of MA Packaging for Fresh Produce” (published January 2006) (herein referred to as “Mahajan et al.”) (cited on Information Disclosure Statement filed April 15, 2024), Chang et al. US 2011/0274892, Sherman “BOPE Takes Aim at BOPP & BOPET Films” <https://www.ptonline.com/blog/post/bope-takes-aim-at-bopp-bopet-films-> (published July 3, 2020) (herein referred to as “Sherman”) (cited on Information Disclosure Statement filed April 15, 2024), Sandford US 6,045,882, Longstreth “Clear Polyethylene Film” <https://brentwoodplastics.com/blog/clear-polyethylene-film> (published June 7, 2013) (herein referred to as “Longstreth”), and “SABIC Launches Innovative TF-BOPE Film For Frozen Food Packaging” <https://www.sabic.com/en/news/24224-sabic-launches-innovative-tf-bope-film-for-frozen-food-packaging> (published September 22, 2020) (herein referred to as “SABIC”) as applied to claim 1 above in further view of Vigano et al. US 2020/0163351.
Regarding Claim 9, Christie et al. modified with Grah, Mahajan et al., Chang et al., Sherman, Sandford, Longstreth, and SABIC renders obvious the limitations of Claim 9 as enumerated above. Christie et al. discloses different packaged produce products have different optimum carbon dioxide concentrations and oxygen concentrations and that the concentration of carbon dioxide is controlled by the respiration rate of the produce less the amount of CO2 released through the film and the concentration of oxygen is directly related to the permeance of the film to oxygen (‘630, FIG. 2) (‘630, Column 5, lines 24-48). Mahajan et al. discloses high permeabilities are needed for rapidly respiring produce and low permeabilities are needed for slowly respiring produce (Mahajan, Page 119-7) wherein the respiration rates for various respiring produce of fruits and vegetables varies depending on the type of produce (Mahajan et al., Table 119.3 on Page 119-5). In the event that it can be shown by applicant with objective evidence that the oxygen transmission rate of a packaging material used for packaging respiring produce of at least 2000 ml/m2x24 hrs is critical, Vigano et al. discloses a film comprising microperforations used for packaging fruit and vegetables (‘351, Paragraph [0061]) wherein the film comprises polyethylene (‘351, Paragraph [0069]). Vigano et al. further discloses the film having an oxygen transmission rate of 11500 cc/sqm day atm (‘351, Paragraph [0063]), which overlaps the claimed oxygen transmission rate of a packaging material used for packaging respiring produce of at least 2000 ml/m2x24 hrs. It is noted that 1 cc is equivalent to 1 ml.
Both modified Christie et al. and Vigano et al. are directed towards the same field endeavor of packaging films for containing respiring produce of fruits and vegetables. Both packaging films of modified Christie et al. and Vigano et al. are made of polyethylene. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaging material of modified Christie et al. to have the claimed oxygen transmission rate as taught by Vigano et al. since where the claimed oxygen transmission rate of the packaging material suitable for storing respiring products ranges overlaps oxygen transmission rate of the packaging material suitable for storing respiring products ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Regarding Claims 10 and 16 Christie et al. modified with Grah, Mahajan et al., Chang et al., Sherman, Sandford, Longstreth, and SABIC renders obvious the limitations of Claims 10 and 16 as enumerated above. Christie et al. discloses different packaged produce products have different optimum carbon dioxide concentrations and oxygen concentrations and that the concentration of carbon dioxide is controlled by the respiration rate of the produce less the amount of CO2 released through the film and the concentration of oxygen is directly related to the permeance of the film to oxygen (‘630, FIG. 2) (‘630, Column 5, lines 24-48). Mahajan et al. discloses high permeabilities are needed for rapidly respiring produce and low permeabilities are needed for slowly respiring produce (Mahajan, Page 119-7) wherein the respiration rates for various respiring produce of fruits and vegetables varies depending on the type of produce (Mahajan et al., Table 119.3 on Page 119-5). In the event that it can be shown by applicant with objective evidence that the carbon dioxide transmission rate of a packaging material used for packaging respiring produce of at least 15000 ml/m2x24 hrs or at least 2500 ml/24 hrs per 100 gram of the respiring produce to be packed, Vigano et al. discloses a film comprising microperforations used for packaging fruit and vegetables (‘351, Paragraph [0061]) wherein the film comprises polyethylene (‘351, Paragraph [0069]). Vigano et al. further discloses the film having a carbon dioxide transmission rate of between 25000 to 41000 cc/sqm day atm (‘351, Paragraph [0019]), which overlaps the claimed carbon dioxide transmission rate of a packaging material used for packaging respiring produce of at least 15000 ml/m2x24 hrs or at least 2500 ml/24 hrs per 100 gram of the respiring produce to be packed. It is noted that 1 cc is equivalent to 1 ml.
Both modified Christie et al. and Vigano et al. are directed towards the same field endeavor of packaging films for containing respiring produce of fruits and vegetables. Both packaging films of modified Christie et al. and Vigano et al. are made of polyethylene. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaging material of modified Christie et al. to have the claimed carbon dioxide transmission rate as taught by Vigano et al. since where the claimed carbon dioxide transmission rate of the packaging material suitable for storing respiring products ranges overlaps carbon dioxide transmission rate of the packaging material suitable for storing respiring products ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Regarding Claim 17, SABIC discloses the thickness of the polymer film being 20 micrometers (SABIC, Page 2), which falls within the claimed polymer film thickness of 5-200 micrometers or 15-50 micrometers. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the polymer film thickness of the package of modified Christie et al. to fall within the claimed polymer film thickness as taught by SABIC since where the claimed polymer film thickness encompasses polymer film thicknesses disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the polymer film thickness will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such polymer film thickness is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). SABIC teaches that a 20 micrometer BOPE polymer film has a reduced thickness that minimizes environmental impacts and reduces packaging material consumption (SABIC, Page 2).
Regarding Claim 18, Mahajan et al. discloses selection of a film having optimal β is necessary to achieve the optimum atmosphere in the package wherein use of a polymeric film with a high β of >4-6 results in an equilibrium atmosphere that is low in CO2 (Mahajan et al., Page 119-5) and that there are many varieties of produce which requires a wide range of permeabilities depending on the respiration rate of the produce wherein the CO2 permeability of polymeric films can be generally 3 to 6 times that of O2 permeability, which overlaps the claimed βpack = CO2TRpack/O2TRpack of at least 1.5 or at least 5. Additionally, Vigano et al. discloses the film having a ratio between the CO2 transmission rate and the oxygen transmission rate being between 2 and 3.8 (‘351, Paragraph [0062]), which also overlaps the claimed βpack = CO2TRpack/O2TRpack of at least 5. Where the claimed βpack ranges overlaps βpack ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Mahajan et al. also discloses there exists less CO2 tolerant commodities such as mango, banana, grapes, and apples (Mahajan et al., Page 119-7). Differences in the βpack package transmission ratio will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such βpack package transmission ratio is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Given that Claim 1 does not specify the particular type of respiring produce that is packaged, one of ordinary skill in the art would adjust the βpack package transmission ratio based upon the respiration rate of the produce that is to be packaged, which CO2 and O2 transmission rates are influenced by the particular type of produce.
Regarding Claims 19-20, in the event that it can be shown by applicant with objective evidence that the oxygen transmission rate of a packaging material used for packaging respiring produce of at least 5000 ml/m2x24 hrs or the carbon dioxide transmission rate of a packaging material used for packaging respiring produce of at least 30000 ml/m2x24 hrs is critical, Vigano et al. discloses a film comprising microperforations used for packaging fruit and vegetables (‘351, Paragraph [0061]) wherein the film comprises polyethylene (‘351, Paragraph [0069]). Vigano et al. further discloses the film having an oxygen transmission rate of between 8000 and 14000 cc/sqm day atm (‘351, Paragraph [0018]) and a carbon dioxide transmission rate of between 25000 to 41000 cc/sqm day atm (‘351, Paragraph [0019]), which overlaps the claimed oxygen transmission rate of at least 5000 ml/m2x 24 hrs and
carbon dioxide transmission rate of a packaging material used for packaging respiring produce of at least 30000 ml/m2x24 hrs, respectively. It is noted that 1 cc is equivalent to 1 ml.
Both modified Christie et al. and Vigano et al. are directed towards the same field endeavor of packaging films for containing respiring produce of fruits and vegetables. Both packaging films of modified Christie et al. and Vigano et al. are made of polyethylene. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaging of modified Christie et al. to have the claimed oxygen transmission rate and carbon dioxide transmission rate as taught by Vigano et al. since where the claimed oxygen transmission rate and carbon dioxide transmission rate of the packaging suitable for storing respiring products ranges overlaps oxygen transmission rate and carbon dioxide transmission rate of the packaging suitable for storing respiring products ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Christie et al. US 5,807,630 in view of Grah US 2007/0042089, Mahajan et al. “An Interactive Design of MA Packaging for Fresh Produce” (published January 2006) (herein referred to as “Mahajan et al.”) (cited on Information Disclosure Statement filed April 15, 2024), Chang et al. US 2011/0274892, Sherman “BOPE Takes Aim at BOPP & BOPET Films” <https://www.ptonline.com/blog/post/bope-takes-aim-at-bopp-bopet-films-> (published July 3, 2020) (herein referred to as “Sherman”) (cited on Information Disclosure Statement filed April 15, 2024), Sandford US 6,045,882, Longstreth “Clear Polyethylene Film” <https://brentwoodplastics.com/blog/clear-polyethylene-film> (published June 7, 2013) (herein referred to as “Longstreth”), and “SABIC Launches Innovative TF-BOPE Film For Frozen Food Packaging” <https://www.sabic.com/en/news/24224-sabic-launches-innovative-tf-bope-film-for-frozen-food-packaging> (published September 22, 2020) (herein referred to as “SABIC”) as applied to claim 1 above in further view of Van Nispen et al. US 2020/0122868, Siu et al. US 2014/0065398, and Tu et al. US 3,933,407.
Regarding Claim 11, Christie et al. modified with Grah, Mahajan et al., Chang et al., Sherman, Sandford, Longstreth, and SABIC renders obvious the limitations of the package for preserving respiring produce contained in the package of Claim 1 as enumerated in the rejections of Claim 1 above. However, Christie et al. modified with Grah, Mahajan et al., Chang et al., Sherman, Sandford, Longstreth, and SABIC is silent regarding the packaging material being formed into a tray and a lidding film sealed to the tray to close the package.
Van Nispen et al. discloses a package for preserving respiring produce contained in the package wherein the package defines a package volume for containing a portion of the respiring produce and a package atmosphere (‘868, Paragraphs [0001] and [0024]). The package comprises a packaging material comprising a polyethylene containing polymer film (‘868, Paragraph [0016]) wherein the polymer film is provided with one or more perforations (one or more microperforations) enabling gas exchange with the atmosphere surrounding the package to form the package into a controlled atmosphere package (‘868, Paragraph [0024]). Van Nispen et al. further discloses the packaging material being formed into a tray and a lidding film (lid and/or sealing film) sealed to the tray to close the package (‘868, Paragraph [0016]).
Both modified Christie et al. and Van Nispen et al. are directed towards the same field of endeavor of packages for preserving respiring produce. Both packages of modified Christie et al. and Van Nispen et al. are formed from a packaging material made of polyethylene. It would have been obvious to one of ordinary skill in the art at the time of the invention to form the package of modified Christie et al. from a polyethylene packaging material into a tray and a lidding filmed sealed to the tray to close the package as taught by Van Nispen et al. since the configuration of the claimed package is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed package container was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Van Nispen et al. teaches that there was known utility in the food packaging art to construct a package for storing respiring produce into a tray sealed with a lidding film which package is made of polyethylene. Furthermore, Van Nispen et al. teaches that a container in the form of a tray is particularly suitable for protecting large and/or delicate produce like mushrooms or fruits such as apricots or berries (‘868, Paragraph [0016]). Given that Claim 1 does not specify the particular type of respiring produce disposed within the package, one of ordinary skill in the art would shape the packaging film material into the desired form factor based upon the size of the particular respiring produce that is to be packaged.
Further regarding Claim 11, Chang et al. discloses using a BOPE film (‘892, Paragraphs [0012] and [0045]) for making a food package (‘892, Paragraphs [0019] and [0044]). Sherman discloses BOPE films are suitable materials for packaging fresh fruits and vegetables and BOPE boasts good printability, high mechanical properties and toughness, and high seal integrity (Sherman, Page 1). SABIC discloses BOPE films provide an easy unidirectional opening and offers better visibility of packaged products due to lower haze (SABIC, Page 2). However, Christie et al. modified with Grah, Mahajan et al., Chang et al., Sherman, Sandford, Longstreth, SABIC, and Van Nispen et al. is silent regarding using the BOPE containing polymer film to make a lidding film that closes the respiring produce tray.
Siu et al. discloses a lidding packaging article produced from biobased films and bio based extrusion coated sealants and a method for producing useful extrusion coated films using biobased biaxially oriented base layer and biobased polyethylene (‘398, Paragraph [0007]) to be used for food packaging lidding applications (‘398, Paragraph [0025]) wherein the biobased extrusion coated polyethylene includes biobased polyester copolymers and polyethylene (‘398, Paragraph [0012]). Tu et al. discloses a transparent film and container used as coverings for packaged foods such as a tray having a transparent top film of biaxially oriented irradiated polyethylene (‘407, Column 8, lines 34-38).
Modified Christie et al., Siu et al., and Tu et al. are all directed towards the same field of endeavor of food packages made from a polymer film. The polymer films used to make the food packages of modified Christie et al., Siu et al., and Tu et al. are formed from polyethylene. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the lidding film that seals the tray of modified Christie et al. (via Van Nispen et al.) and construct the lidding film out of a biaxially oriented polyethylene (BOPE) containing polymer film as taught by Siu et al. and Tu et al. since the selection of a known material (BOPE) based on its suitability for its intended use (as a material in constructing a lidding material for food packages) supports a prima facie determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Siu et al. and Tu et al. both teach that there was known utility in the food package art to construct lidding films that seals a food package out of a BOPE containing polymer film.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Mastromatteo et al. “A new approach to predict the mass transport properties of micro-perforated films intended for food packaging applications” (published May 27, 2012) discloses perforations affect the dynamics and steady state concentration of oxygen in modified atmosphere much stronger than those of water vapor (Mastromatteo et al., Page 41).
Groeneweg et al. US 2016/0009428 discloses a packaging of respiring product such as vegetables, fruits, and/or herbs (‘428, Paragraph [0001]) wherein the packaging comprises one or more openings comprising microperforations facilitating exchange of gases through the packaging material wherein the polymeric film may be devoid of openings if the film itself has sufficient transmission to achieve the desired transmission rate (‘428, Paragraph [0013]) wherein the one or more openings allow for increasing the transmission rate of a poorly transmitting material to establish the desired transmission rate (‘428, Paragraph [0011]) wherein a ratio between the determined respiration characteristics for first and second substances and a desired transmission rate are determined for a package of the packaging material containing an amount of produce from the batch and having a package atmosphere within the package wherein the desired transmission rate is the transmission rate for the first substance or the second substance and is determined based on the ratio to control a concentration of one of the first and second substances in the package atmosphere (‘428, Paragraph [0007]).
Mir US 2017/0303738 discloses a package for fresh produce such as fruits and vegetables which provide low oxygen and high carbon dioxide regimes which are able to maintain desired atmospheric conditions within the package throughout the distribution and storage of the fresh produce within the package wherein the presence of microperforations slows respiration, reduces decay, and/or extends the shelf life of the food products wherein the gas exchange performance of the perforation may be compromised if the diameter of the perforation is less than the thickness of the microwavable film (‘738, Paragraph [0012]).
Krijgsman et al. US 2010/0247725 discloses packaged respiring produce (‘725, Paragraph [0027]) wherein the packaging material has a permeability for oxygen of at least 40 cc mm/m2 day atm at 10°C (‘725, Paragraph [0023]) and a permeability for carbon dioxide of at least 600 cc mm/m2 day atm at 10°C (‘725, Paragraph [0024]) wherein the perm selectivity for gas A to gas B determines the levels of oxygen and carbon dioxide at steady state conditions in the container and is defined as the ratio of the permeability for gas A to the permeability to gas B wherein the perm selectivity is the ratio of the permeability for CO2 to the permeability of O2 wherein the packaging material has a perm selectivity of at least 10 at 10°C (‘725, Paragraph [0025]).
Doornheim US 2023/0119820 discloses a multilayer film food packaging comprising several layers to increase shelf life by controlling the transmission rate of oxygen, carbon dioxide, and moisture as well as the concentration of oxygen, carbon dioxide, nitrogen, and argon inside the package which is key in preserving the freshness of packaged products for longer periods of time (‘820, Paragraph [0003]).
Fujihara et al. US 2020/0344958 discloses a packaging container for packaging agricultural products such as fruits and vegetables (‘958, Paragraph [0025]) wherein modified atmosphere packaging has been known as packaging for agricultural products and the packaging adjusts the concentration of oxygen and carbon dioxide in order to control respiration (‘958, Paragraph [0003]) wherein the oxygen concentration and carbon dioxide concentration in a garlic package are within a predetermined range and the oxygen transmission rate, the carbon dioxide transmission rate, and the rate of the carbon dioxide transmission rate to the oxygen transmission rate is within a predetermined range (‘958, Paragraph [0005]).
Lin et al. US 2019/0126598 discloses a multilayer film comprising a first layer of a high density polyethylene, a second layer, and a third layer (‘598, Paragraph [0027]) wherein the oxygen and carbon dioxide transmission rates of the second layer are less than the oxygen and carbon dioxide transmission rates of the first layer and the third layer (‘598, Paragraph [0028])
Lee et al. US 2018/0215121 discloses a multilayer container comprising an agricultural food product of a fruit and/or a vegetable (‘121, Paragraph [0112]) wherein the multilayer film has a core component having stripes of alternating layer A and layer B exhibiting an increase in CO2TR while maintaining effective WVTR wherein the permeability of WVTR and CO2TR for packaging is selectively controlled and tailored to the biological variation for a given product item of fruit or vegetable for the benefit of extended shelf life (‘121, Paragraph [0124]).
Secchi et al. US 2018/0141737 discloses carbon dioxide properties generally correlate with oxygen barrier properties (‘737, Paragraph [0102]).
Davies US 9,457,953 discloses a produce bag with selective gas permeability wherein the produce bag stores respiring materials and the bags include two or more gas permeable walls with respective and different gas transmission rates that are selected so that the overall gas transmission rates for the bags are tailored for their contents wherein the types of films and laminates used for the gas permeable walls exhibit gas transmission rates for oxygen, carbon dioxide, and water that are favorable for different types of respiring materials wherein respiring biological materials like fresh fruits and vegetables consume oxygen and produce carbon dioxide wherein respiration can be slowed and freshness extended by refrigeration and/or by controlling the relative and absolute concentrations of oxygen and carbon dioxide in the packaging atmosphere surrounding the materials wherein too much oxygen results in rapid spoilage and too little can allow potentially dangerous anaerobic bacteria to thrive wherein an inside layer including a perforated sealant layer and a gas permeable membrane collectively determine the gas transmission rates, e.g. OTR and carbon dioxide transmission rate of the wall wherein the sealant layer is made of a non-woven polyethylene.
Hara et al. US 2015/0369720 discloses an apparatus for evaluating gas barrier properties of a gas barrier film for food packaging (‘720, Paragraph [0091]).
Mir et al. US 2015/0208679 discloses a MAP fruit bag (‘679, Paragraph [0138]) having a transmission rate of carbon dioxide of from 500 to 150000 cubic centimeters per day per kilogram of avocados (‘679, Paragraph [0021]) wherein one useful inherent characteristic of a polymeric film composition is a film beta ratio which is a quotient that is calculated by dividing carbon dioxide gas transmission rate by oxygen gas (‘679, Paragraph [0064]).
Lim et al. US 2010/0127059 discloses a storage container for the modified atmosphere preservation of fresh fruits, vegetables, and/or flowers using preferential relative humidity levels in a sealed container which permits the exchange of oxygen carbon dioxide and water vapor to maintain high levels of carbon dioxide, low levels of oxygen, and intermediate levels of relative humidity for optimum preservation of foods at refrigerated temperatures for extended storage (‘059, Paragraph [0001]) wherein modified atmosphere packaging is an application which uses the respiring food to reduce the oxygen level and accumulate the carbon dioxide levels within a package wherein the lower oxygen and higher carbon dioxide atmosphere slows the respiration rate and quality loss of the food and suppresses microbial vegetative growth (‘059, Paragraph [0005]).
Dobreski et al. US 2009/0286023 discloses a polymer composite film formed into packaging or consumer products having enhanced properties wherein the polymer material is treated with fillers (‘023, Paragraph [0002]) wherein the composite film displays a gas transmission or permeability rate of oxygen, carbon dioxide, or water vapor of at least 10% depending on the treated filler concentration than that of similar films made from filler free polymer thus resulting in corresponding longer product shelf life provided by the films (‘023, Paragraph [0060]).
Clarke US 2009/0104317 discloses a container for storing and transporting fruits and vegetables (‘317, Paragraph [0045]) wherein respiring biological materials such as fruits and vegetables consumer oxygen and produce carbon dioxide at rates which depend on the stage of their development, the atmosphere surrounding them and the temperature wherein the permeability to oxygen and carbon dioxide produces the desired packaging atmosphere wherein the atmosphere control member has an oxygen transmission rate OTR and a carbon dioxide transmission rate COTR such that the ratio of COTR to OTR is greater than 1 (‘317, Paragraph [0003]).
Wagner et al. US 2009/0045095 discloses a food packaging comprising a water dispersing material such as any antifog additive that disperses water that condenses during the heating and cooling cycle resulting from the produce being placed into and removed from a refrigerated space wherein the antifog additive is typically included in the inner and optionally middle layers of the film in amounts effective to disperse any moisture that condenses (‘095, Paragraph [0046]) wherein the film is designed to control the oxygen transmission rate OTR of oxygen as well as the carbon dioxide CO2 concentration in an environment of the packaging by utilizing selected polymers having a known solubility rate of O2 and CO2 to extend the useful life of the foodstuff wherein the film is designed to allow O2 to enter the enclosed environment of the packaging which allows the foodstuff to respire while allowing CO2 which is emitted during the respiration process to exit the enclosed environment wherein a desired equilibrium of O2 to CO2 is obtained in the enclosed environment of the packaging for a particular perishable foodstuff that extends the useful life of the perishable foodstuff (‘095, Paragraph [0026]).
Aubee et al. US 2008/0248228 discloses a gas permeable, non-perforated polyethylene film for use in sealed product packages wherein fresh cut vegetables including carrots, broccoli, spinach, lettuce, cauliflower, and mixtures thereof and fruits including blueberries, raspberries, cranberries, blackberries, strawberries, avocadoes, melons, and the like (‘228, Paragraph [0064]).
Grah et al. US 2005/0119364 discloses a method of increasing the gas transmission rate of a packaging film (‘364, Paragraph [0001]).
Moehlenbrock et al. US 2005/0058791 discloses a fruit or vegetable oxygen sensitive package (‘791, Paragraph [0110]) comprising a multilayer film having any total thickness which provides an acceptable level of physical properties of a desired rate of oxygen, carbon dioxide, and water vapor transmission having a total thickness of from about 0.5 to 10 mils (‘791, Paragraph [0095]) wherein gas transmission rates for vegetable packaging films are tailored to a desired level by varying the overall thickness of a continuous multilayer film wherein higher oxygen transmission rates are provided in such films by decreasing the film thickness (‘791, Paragraph [0009]) wherein the gas transport properties of oxygen transmission rates, carbon dioxide transmission rates, and moisture vapor transmission rates of film used in conjunction with foods such as vegetables, fruits is important (‘791, Paragraph [0003]).
DeMuse US 6,410,136 discloses an essentially clear polyolefin film based on polyethylene and polypropylene exhibiting an increased oxygen transmission property compared to conventional polypropylene films known in the art while achieving desired optical properties to render such films suitable for use in packaging perishable items of fresh fruits and vegetables wherein the film has a haze value in the range of 6-20% wherein the carbon dioxide transmission rate has a weight ratio of carbon dioxide to oxygen transmitted per unit of time of about 4:1.
Barmore et al. US 5,110,677 discloses lettuce is currently packaged in a variety of different materials including polyethylenes with and without ethylene/vinyl aceteate copolymer laminates wherein the oxygen and carbon dioxide transmission rates of such structures are important in the packaging of all types of produce wherein regulating the transmission of these two gases minimizes or prevents enzymatic browning of cut surfaces and avoids the damaging effects of product anaerobiosis.
Schreurs et al. US 2024/0083148 discloses a packaging comprising a bi-directionally oriented film (‘148, Paragraph [0001]) used to package frozen food materials (‘148, Paragraph [0013]) of frozen fruit and vegetables (‘148, Paragraph [0131]) wherein the film is a multilayer bi-directionally oriented polyethylene film (BOPE) (‘148, Paragraph [0132]) wherein bi-directionally oriented polyethylene films have mechanical film properties that are far superior to those of a polyethylene film having a similar thickness but produced via a conventional film production process such as cast extrusion or blown film production wherein the film is not subjected to stretching temperatures below the melting point of the film (‘148,Paragraph [0007]).
Watanabe US 2018/0049447 discloses a freshness preservation bag that preserves freshness of vegetable, fruit, or fresh flower for a long period by adjusting an amount of carbon dioxide and oxygen according to the breathing of the stored vegetable, fruit, or fresh flower (‘447, Paragraph [0002]) wherein the bag is perforated via vent holes (‘447, Paragraph [0016]) wherein the bag comprises a nonporous film having a single layer structure made of polyethylene or a laminated structure made of polyethylene and polypropylene and/or polyester and/or nylon (‘447, Paragraph [0019]) wherein the thickness of the nonporous film is not limited and is approximately 15 µm to 800 µm (‘447, Paragraph [0044]) wherein the bag is a low density polyethylene bag having a thickness of 0.2 mm (‘447, Paragraph [0050]).
Porchia et al. US 5,492,705 discloses a food packaging film and food storage bag made form said film for storing produce such as vegetables and fruits wherein the flexible produce storage bags have a pattern of microholes designed to allow produce contained in the bag to breathe in a controlled rate such that localized condensation is reduced to reduce microbial growth wherein the perforated bag also controls the weight loss of the stored produce (‘705, Column 1, lines 12-23).
Anderson US 4,842,875 discloses a controlled atmospheric storage package of fresh fruits and vegetables that controls the atmosphere surrounding the packaged fruit or vegetable product to improve retention of product freshness (‘875, Column 1, lines 10-14) wherein the maturation of produce is a complex series of biochemical and developmental changes such as respiration involving a carbohydrate molecule that is oxidized as the produce respires during maturation on storage wherein each produce type has an optimum range of concentrations of CO2 and O2 at which its respiration is retarded and quality is improved to the greatest extent, e.g. some produce such as strawberries and mushrooms benefit from relatively high levels of CO2 while others such as lettuce and tomatoes store better at lower levels of CO2 (‘875, Column 1, lines 28-44) and each produce type also has its own individual respiration rate which can be expressed as cubic centimeters of oxygen per kg/hour (‘875, Column 1, lines 45-47) wherein the container is capable of creating within it a preselected carbon dioxide and oxygen concentration in the presence of respiring fresh fruit, vegetables, or flowers that is constructed of a substantially gas impermeable material having a gas permeable panel in one or more of its walls to provide a controlled flow or flux of CO2 and O2 through its walls where the panel is a microporous plastic membrane wherein the permeance and area of the membrane is able to provide a flux of O2 approximately equal to the predicted O2 respiration rate for not more than 3.0 kg of the enclosed fruit, vegetable, or flower and the carbon dioxide permeance of the membrane is able to maintain the desired optimum ranges of carbon dioxide and oxygen for not more than the said 3.0 kg of enclosed produce (‘875, Column 2, lines 30-53) wherein the units applied to the flow of a particular gas through a film are “flux” expressed as cc/day and “permeance” expressed as cc/m2day atmosphere wherein the “permeability constant” of a particular film is expressed as ccmm/m2day atmosphere (‘875, Column 3, lines 7-18) wherein respiration rates and optimum storage conditions for several popular types of produce is provided (‘875, Column 3, lines 55-68).
Wang et al. US 2021/0316539 discloses a multilayer film used for food packages (‘539, Paragraph [0105] comprising a BOPE film formed from a polyethylene composition comprising at least two linear low density polyethylenes (‘539, Paragraph [0133]).
Wang et al. US 2021/0213721 discloses a multilayered BOPE film for use in frozen foods (‘721, Paragraph [0125]) wherein biaxially oriented polyethylene (BOPE) multilayer films has outstanding mechanical properties due to the high orientation in both the machine and cross direction of the polymer matrix wherein polyethylene resins are used in the structural or base layers to achieve a PE rich film structure (‘721, Paragraph [0002]).
Breese US 2005/0170194 discloses a polyethylene film having a haze of 20% or less (‘194, Paragraph [0007]) that is essentially transparent which haze is tested according to ASTM D 1003-92: Standard Test Method for Haze and Luminous Transmittance of Transparent Plastics (‘194, Paragraph [0022])
Sukhadia et al. US 6,355,359 discloses a film comprising at least one layer having a percent haze of no more than 10 wherein the polymer of the layer consists essentially of polyethylene (‘359, Column 1, lines 57-67) wherein good clarity in polyethylene blown film is indicated by low haze and high gloss wherein haze typically increases and gloss decreases as the polymer density and molecular weight distribution increases and there is usually a trade off between film clarity and stiffness in polyethylene blown films (‘359, Column 1, lines 26-37).
Bailey et al. US 6,368,545 discloses a film of high clarity made by raising the temperature of one or more core layers in a multilayer film and/or creating a density differential between the core and surface layer or layers, the core layer being of a higher density to achieve substantially better clarity, manifested in part in lower haze values (‘545, Column 1, lines 43-51) wherein the multilayer film exhibits improved optical properties over multilayer films made from generally the same or similar materials but fabricated in a conventional manner, e.g. with substantially the same melt temperature in all layers or with the same or similar density (‘545, Column 2, lines 15-21) wherein the film is made of low density polyethylene (LDPE) (‘545, Column 3, lines 51-60).
Fagan et al. US 2019/0085163 discloses the term “haze” refers to the scattering of light as it passes through a transparent article, resulting in poor visibility, reduced transparency, and/or glare wherein a greater percent value of haze indicates less clarity and reduced transparency (‘163, Paragraph [0032]) wherein controlling the degree of transesterification can improve or alter certain properties of the article wherein the amount of haze can be controlled through adjusting the degree of transesterification (‘163, Paragraph [0043]) wherein little or no amount of haze is desired for a PET containing article of a plastic wrap for food which haze ranges from 0 to 10% (‘163, Paragraph [0046]) wherein the bottle contains packaged fruits and vegetables (‘163, Paragraph [0071]) wherein haze is determined according to ASTM D-1003 and is reported as a percent which represents the amount of scattering of light through a sample in which the higher percent value, the greater the haze, indicating a sample is less transparent (‘163, Paragraph [0137]).
Malefyt et al. US 2015/0366230 discloses a polyethylene packaging (‘230, Paragraph [0005]) wherein the packaging material is for produce which packaging material comprises a first layer of at least one polymer of a low density polyethylene (LDPE) and at least one moisture modulating agent, a second layer comprising at least one polymer having a higher content of LDPE than the first layer and the third layer and at least one moisture modulating agent, and a third layer comprising at least one polymer of a LDPE (‘230, Paragraphs [0006]-[0009]) wherein the produce is a high respiring and/or moisture sensitive produce which has the potential to allow growth of resident spores or bacteria to proliferate during high water vapor or water accumulation environment wherein the high respiring and/or moisture sensitive produce is apricot, avocado, banana, cherry, melon, papaya, peach, nectarine, pear, plum, fig, cabbage, carrot, lettuce, pepper, and tomato (‘230, Paragraph [0012]) wherein the packaging is a multilayer film containing micro or macro perforations (‘230, Paragraph [0013]) having a CO2 transmission rate between 15000 and 120000 cubic centimeters per square meter per day (‘230, Paragraph [0014]).
Sephr US 2013/0142917 discloses a tray containing fruit pieces covered with a film layer which is shrunk down onto the fruit to reduce headspace in the package (‘917, FIGS. 6A-6D) (‘917, Paragraph [0054]).
Davidson et al. US 2012/0037271 discloses a produce tray container for agricultural produce such as fruits and vegetables (‘271, Paragraph [0003]).
Mulder US 2006/0255055 discloses food products such as salads or vegetables are often packaged in a container comprising a plastic tray with a transparent layer of plastics film covering the tray in the form of a lid that is clear so that the consumer can clearly see the food product at the time of purchase wherein the film incorporates an additive referred to as an antifog additive which assists in preventing moisture from a high moisture content of respiring product such as salad or vegetables from adversely affecting the clarity of the film (‘055, Paragraph [0002]).
Ruocco et al. US 2023/0406973 discloses a polyethylene composition as well as articles including or made from the composition (‘973, Paragraph [0002]) and a method of producing a biaxially oriented polyethylene film (‘973, Paragraph [0091]) wherein the article is a food tray (‘973, Paragraph [0109]).
Itaba et al. US 5,006,378 discloses a polyethylene composite film suitable for packaging wherein the polyethylene composite film comprises an oriented BOPE polyethylene film provided as a basic or substrate layer (‘378, Column 2, lines 25-65) wherein the composite film is used to make food trays having excellent gas barrier properties, moistureproofness, pinhole proofness, and clarity and further easily opened (‘378, Column 5, lines 13-26).
The prior art made of record, cited on a previous Information Disclosure Statement, and not relied upon is considered pertinent to applicant's disclosure.
Balasubramanian et al. US 2015/0321823 discloses an enclosure comprising a polymeric film comprising one or more copolymers of ethylene with a polar monomer wherein the oxygen transmission rate of the enclosure is 8000 to 16000 cm3 (‘823, Paragraph [0008]) wherein inherent gas transmission characteristics of a polymeric film are properties of the film itself in the absence of any perforations or other alterations (‘823, Paragraph [0025]) wherein the polymeric composition contains polyethylenes in addition to the copolymer (‘823, Paragraph [0030]) wherein the gas transmission rate of the enclosure has a rate of transmission of carbon dioxide of 5000 to 100000 cm3/hour (‘823, Paragraph [0023]).
Varriano-Marston US 6,441,340 discloses packaging for respiring or biochemically active agricultural products such as fresh fruits, fresh vegetables, fresh herbs, and flowers and microperforations in packaging materials for use in modifying or controlling the flow of oxygen and carbon dioxide into and/out of a fresh produce container wherein the units describing the flow of a particular gas through a film are flux expressed as cc/day atm.
Varriano-Marsten et al. US 7,803,837 discloses a microperforated packaging material for use in modifying or controlling the flow of oxygen and carbon dioxide into/out of a fresh produce container wherein the microperforations are specifically tailored in size, location, and number for the specific produce.
Almenar et al. US 2010/0151166 discloses a microperforated polylactic acid biobased polymeric material modifying its permeability and increased application for fresh product wherein the use of microperforated PLA films as the lidding material for semirigid containers reduces the water vapor transmission rate of the packaging system (‘166, Paragraph [0009]) for packaging and extending the quality and shelf life of respiring products such as fresh fruit, fresh vegetables, fresh herbs, and fresh flowers during storage and distribution (‘166, Paragraph [0011]).
Lim et al. US 2010/0221393 discloses a plastic storage container for the modified atmosphere preservation of fresh fruits and vegetables (‘393, Paragraph [0001]) wherein simultaneous control and regulation of water vapor transmission and oxygen and carbon dioxide transmission of food products held at refrigerated temperatures for extended storage periods of 5 to 20 days is provided (‘393, Paragraph [0010]) wherein a micro or macro perforated panel that engages a film with selected permeability for oxygen and carbon dioxide transmission which then form a hermetic seal (‘393, Paragraph [0018]) wherein the oxygen transmission rates and carbon dioxide transmission rates varies depending on the degree of barrier film (‘393, Paragraphs [0024]-[0036]).
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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