DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 02/12/2025 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: the 35 U.S.C. §112(b) rejections of claims 1-3 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-3
Withdrawn claims: None
Previously cancelled claims: 4
(*claim 4 is considered to still be canceled despite the claim not being presented in the present claim amendment.*)
Newly cancelled claims: None
Amended claims: 1
New claims: None
Claims currently under consideration: 1-3
Currently rejected claims: 1-3
Allowed claims: None
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-3 are rejected under 35 U.S.C. 103 as being unpatentable over Shen (Shen et al., “The effect of indirect plasma-processed air pretreatment on the microbial loads, decay, and metabolites of Chinese bayberries”, June 2021, LWT – Food Science and Technology, 150, 111998; previously cited) in view of Mostini (US 6,732,865; previously cited), Sherizly (Sherizly, R., “Skeleton Packaging”, 2020, https://web.archive.org/web/20201029104103/https://roysherizly.com/Skeleton-Packaging; previously cited), Nutrochem (“Peracetic Acid used as fruit and vegetable wash benefits”, July 2021, Nutrochem, https://www.nutrochem.co.za/post/peracetic-acid-used-as-fruit-and-vegetable-wash-benefits; previously cited), and Chaplot (Chaplot et al., “Atmospheric Cold Plasma and Peracetic Acid-Based Hurdle Intervention to Reduce Salmonella on Raw Poultry Meat”, 2019, Journal of Food Protection, vol. 82, No. 5, pages 878-888; previously cited).
Regarding claim 1, Shen teaches a method for treatment for post-harvest preservation of bayberries (page 2, 1st paragraph under “2.1 Fruit materials”) comprising: dipping the bayberries in sodium hypochlorite solution; and performing an atmospheric plasma treatment on the bayberries treated with the sodium hypochlorite solution for five minutes (page 3, column 2, paragraph under “2.3.2. PPA pretreatment for test II”; page 2, column 2, paragraph under “2.2.1. PPA pretreatment for test I”), which falls within the claimed timeframe. Shen teaches performing the non-thermal atmospheric plasma treatment for five minutes, wherein the atmospheric plasma was delivered under a room temperature condition (corresponding to around 22°C) which gradually raised the temperature to about 40°C by the end of the treatment (page 4, column 2, paragraph under “3.1. Thermal change in chamber caused by PPA treatment”).
It does not teach alternately delivering atmospheric plasma under a room temperature condition and atmospheric plasma after a cryogenic treatment as recited in lines 13-22 of claim 1. However, the claim does not recite a temperature of the atmospheric plasma when it is delivered under a room temperature conditions; or a temperature of the atmospheric plasma after cryogenic treatment. As such, the temperature of the atmospheric plasma delivered to the bayberries under a room temperature condition or delivered after a cryogenic treatment may be any temperature so that the features regarding the alternating treatment recited in lines 13-22 of claim 1 do not meaningfully limit the claim; therefore, the treatment disclosed by Shen wherein the atmospheric plasma was delivered under a room temperature condition which gradually raised the temperature to about 40°C by the end of the treatment (page 4, column 2, paragraph under “3.1. Thermal change in chamber caused by PPA treatment”) is considered to render the claimed atmospheric plasma treatment obvious.
Shen teaches that the bayberries are picked when ripe (corresponding to harvested at the mature stage) (page 2, column 1, paragraph under “2.1. Fruit materials”), dipped in sodium hypochlorite, and subsequently washed with water prior to atmospheric plasma treatment (page 3, column 2, paragraph under “2.3.2. PPA pretreatment for test II”). It also teaches that the berries are prone to mechanical damage after picking, which leads to microbial growth on the surface of the berries, promoting fruit decay and health hazards to the consumer (Abstract). It does not teach that the picked berries are packed as recited in step (1) of the claimed method; that the berries are subjected to a low-concentration peroxyacetic acid solution treatment as recited in step (2) of the claimed method; or that the berries are stored at 4°C after atmospheric plasma treatment.
However, Mostini teaches a fruit tray comprising cells for receiving individual fruits (column 1, lines 29-32; Fig. 1), wherein the tray is formed by injection molding (column 1, lines 52 and 54). It teaches that the fruits are spaced apart (corresponding to not wedged together) (column 3, line 6) and evenly arranged in the package (Figs. 1-2).
It would have been obvious for a person of ordinary skill in the art to have modified the method of Shen by packaging the berries in injection-molded packaging after picking as taught by Mostini. Since Shen teaches that ripe bayberries are harvested (page 2, column 1, paragraph under “2.1. Fruit materials”) and that harvested bayberries are subject to damage (Abstract), but does not teach a suitable package for protecting the berries after harvest, a skilled practitioner would have been motivated to consult an additional reference such as Mostini in order to determine a suitable package for harvested berries which prevent them from being damaged, thereby rendering the claimed injection-molded package and evenly spacing the fruits apart as obvious.
The combination of Shen and Mostini does not teach that the injection-molded packaging is a skeletonized injection-molded package; that the berries are subjected to a low-concentration peroxyacetic acid solution treatment as recited in step (2) of the claimed method; or that the berries are stored at 4°C after atmospheric plasma treatment.
However, Sherizly teaches that skeleton packaging is a design which minimizes excess material in packaging for fragile objects, leading to less pollution (paragraphs 1-2).
It would have been obvious for a person of ordinary skill in the art to have modified the packaging of Shen and Mostini by skeletonizing the package as taught by Sherizly. Since Sherizly teaches that skeletonizing packaging minimizes excess material in traditional packaging for fragile objects, leading to less pollution (paragraphs 1-2), a skilled practitioner would readily recognize that skeletonizing the packaging of Mostini would be beneficial to the environment while still protecting the packaged product. Therefore, the claimed skeletonized injection-molded package is rendered obvious.
The combination of Shen, Mostini, and Sherizly does not teach that the berries are subjected to a low-concentration peroxyacetic acid solution treatment as recited in step (2) of the claimed method; or that the berries are stored at 4°C after atmospheric plasma treatment.
However, Nutrochem teaches that peroxyacetic acid (corresponding to peracetic acid) is one of the most widely used disinfectants for fruits (page 1, paragraphs 2-3). It teaches that sodium hypochlorite (corresponding to bleach) leaves a residue on food so that the bleach-treated food must be subsequently rinsed, while peroxyacetic acid does not leave a residue so that the treated food does not need to be subsequently rinsed, thereby saving processors water, time, and money (page 2, paragraphs 3-4). Nutrochem also discloses that the fruit may be washed with peroxyacetic acid by spraying the solution and dipping the fruit in the solution (page 1, pictures at bottom of page).
It would have been obvious for a person of ordinary skill in the art to have modified the method of Shen to spray peroxyacetic acid solution onto the surface of the berries as taught by Nutrochem. Since Nutrochem teaches that sodium hypochlorite leaves a residue on food so that the bleach-treated food must be subsequently rinsed, while peroxyacetic acid does not leave a residue so that the treated food does not need to be subsequently rinsed, thereby saving processors water, time, and money (page 2, paragraphs 3-4), a skilled practitioner would have been motivated to replace the sodium hypochlorite dip and subsequent water wash disclosed in Shen (page 3, column 2, paragraph under “2.3.2. PPA pretreatment for test II”) with a peroxyacetic acid wash. One would have been motivated to make this substitution because it is a simple substitution of one known element for another to obtain a predictable result (KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007)). See MPEP § 2143.I(B). Also, since Nutrochem discloses that the fruit may be washed with peroxyacetic acid by spraying the solution onto the surface of the fruit (page 1, pictures at bottom of page), the practitioner would also readily recognize that the bayberries may be sprayed with the peroxyacetic acid, thereby rendering the claimed spraying of peroxyacetic acid solution onto a surface of the bayberries obvious.
The combination of Shen, Mostini, Sherizly, and Nutrochem does not teach that the berries are stored at 4°C after atmospheric plasma treatment.
However, Chaplot teaches a method comprising peracetic acid treatment followed by atmospheric plasma treatment and storage at 4°C (corresponding to treatment for samples D3 and E3 in Table 3 on page 880). It teaches that peroxyacetic acid and plasma treatment have synergistic antimicrobial action (page 883, column 1) and that peroxyacetic acid has a dose-dependent effect (page 886, column 1, second paragraph) so that the effectiveness of peroxyacetic acid is mainly regulated by concentration of the peroxyacetic acid solution (page 887, column 1, first paragraph).
It would have been obvious for a person of ordinary skill in the art to have modified the method of Shen and Nutrochem by using a concentration of peroxyacetic acid as taught by Chaplot. Since Nutrochem discloses the use of peroxyacetic acid solution (page 1, paragraphs 2-3), but does not disclose a concentration of peroxyacetic acid in the solution, a skilled practitioner would have been motivated to consult an additional reference such as Chaplot in order to determine a suitable concentration of peroxyacetic acid in the solution. Since Chaplot teaches that peroxyacetic acid has a dose-dependent effect (page 886, column 1, second paragraph) so that the effectiveness of peroxyacetic acid is mainly regulated by concentration of the peroxyacetic acid solution (page 887, column 1, first paragraph), it discloses the concentration of peroxyacetic acid in the solution as being a result-effective variable.
As the effectiveness of the peroxyacetic acid solution is a variable that can be modified, among others, by adjusting the concentration of peroxyacetic acid in the solution, the concentration of peroxyacetic acid in the solution would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the invention. As such, without showing unexpected results, the claimed concentration of peroxyacetic acid in the solution cannot be considered critical. Accordingly, one of ordinary skill in the art before the effective filing date of the invention would have optimized, by routine experimentation, the concentration of peroxyacetic acid in the solution to obtain the desired synergy between peroxyacetic acid and atmospheric plasma treatment as taught by Chaplot (page 883, column 1) (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223). MPEP § 2144.05. II. Therefore, the claimed 0.1% concentration of peroxyacetic acid is rendered obvious. Since Chaplot also discloses that storing the treated product at 4°C for 60 minutes after atmospheric plasma treatment (Table 3 on page 880), the claimed temporary storage at 4°C after atmospheric plasma treatment is rendered obvious.
Regarding claim 2, modified Shen teaches the invention as described above in claim 1, including the bayberries are sprayed with peroxyacetic acid to cover all surfaces (Nutrochem, page 1, pictures at bottom of page; Chaplot, page 880, column 1, third paragraph). Although the prior art does not teach that the berries are sprayed once each from above, below, front, behind, left, and right for a total of six times, the prior art teaches that the outer surface of the berries are covered with the solution which is considered to be equivalent to the claimed spraying process, thereby rendering the claim obvious.
Regarding claim 3, Shen teaches the invention as described in claim 1, including the atmospheric plasma is plasma generated by injecting air as a working gas with a gas flow rate of 1.05 m3/min into an electrode tube in a discharge gap of 0.3 mm (page 2, column 2, paragraph under “2.2.1. PPA pretreatment for test I”) as presently claimed.
Response to Arguments
Claim Rejections – 35 U.S.C. §112(b) of claims 1-3: Applicant amended claim 1 to fully address the rejections; therefore, the rejections are withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1-3 over Shen, Mostini, Sherizly, Nutrochem, and Chaplot: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant stated that the phrase “the atmospheric plasma after the cryogenic treatment is obtained from atmospheric plasma cooled by an ice-water mixture” indicates that the temperature of the atmospheric plasma delivered to the berries in the first, third, and fifth minutes is around 0°C (i.e., around the temperature of ice-water). Applicant stated that “a room temperature condition” in the phrase “delivering atmospheric plasma under a room temperature condition” indications that the temperature of the atmospheric plasma delivered to the berries in the second and fourth minutes is around 20-25°C (i.e., room temperature). Applicant argued that none of the cited references disclose the claimed alternating delivery of atmospheric plasma at such temperatures recited in claim 1. Applicant also argued that Chaplot does not disclose a 0.1 wt.% peroxyacetic acid solution as recited in claim 1. Applicant stated that claims 2 and 3 are patentable by reason of dependency from claim 1 (Applicant’s Remarks, section II on pages 5-10).
However, in the rejections of the present claims, the phrase “the atmospheric plasma after the cryogenic treatment is obtained from atmospheric plasma cooled by an ice-water mixture” is interpreted as meaning that the ice-water mixture reduces the temperature of the atmospheric plasma. This interpretation is the broadest reasonable interpretation of the claim since the claim does not explicitly state that the plasma is cooled to the same temperature as the ice-water mixture; or recite a temperature of plasma entering the ice-water mixture and a temperature of plasma leaving the ice-water mixture. Therefore, Applicant’s assertion that the phrase may only be narrowly interpreted as meaning that the plasma is cooled down to the temperature of the ice-water is not supported.
In the rejections of the present claims, the phrase “delivering atmospheric plasma under a room temperature condition” is interpreted as meaning that the plasma is delivered into an environment, wherein the environment is at room temperature. The wording of the phrase does not allow the phrase to be interpreted as only meaning that the plasma itself is at room temperature; therefore, Applicant’s assertion of a singular meaning is not supported.
In regard to the assertion that Chaplot does not disclose the claimed mass concentration of peroxyacetic acid solution, Chaplot teaches that peroxyacetic acid has a dose-dependent effect (page 886, column 1, second paragraph) so that the effectiveness of peroxyacetic acid is mainly regulated by concentration of the peroxyacetic acid solution (page 887, column 1, first paragraph). Therefore, Chaplot discloses the concentration of peroxyacetic acid in the solution as being a result-effective variable, thereby rendering the claimed mass concentration of peroxyacetic acid solution obvious. MPEP §2144.05. II. Since the prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of the claims are maintained as written herein.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/K.P.K./Examiner, Art Unit 1791 /Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791