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 .
DETAILED ACTION
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 86, 88, 90-92, 94-96, 98-105 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dehuff (With a waiting list at max capacity, Simply Good Jars is savoring success, phillyvoice.com) in view of Shahsavarani (US 2007/0059406 – cited in IDS filed 2 May 2023).
Regarding Claims 86, 88, 90-92, 98, Dehuff discloses a packaged salad, said packaged salad comprising:
a container defining a single central space enclosing a single atmosphere (clear container with black lid, image on page 1);
a plurality of food items positioned within said container, said plurality of food items including at least a salad dressing positioned lowermost in said container (lemon vinaigrette, page 3), a lettuce item positioned uppermost in said container (see image annotated below),
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and a grain food item (as per claim 88, ‘tabbouleh’ which contains bulgar wheat, page 3), a raw or cooked vegetable item (as per claim 90 and 91, roasted butternut squash, raw zucchini, page 3), or a protein item (as per claim 92, smoked turkey, page 3) positioned between said salad dressing and said lettuce item, each food item of said plurality of food items defining a layer within said single central space (see annotated image above where all ingredients are between the dressing item and the lettuce item in layers); wherein said container comprises:
a sidewall surrounding said single central space (transparent jar), said sidewall defining an opening at a first end (top of jar);
a bottom attached to a second end of said sidewall opposite to said first end (bottom of jar); and
a lid (black lid) removably attached to said sidewall, overlying said opening (as per claim 98).
Dehuff is silent to wherein the container closes a modified atmosphere and a gas permeable membrane covering said opening and attached to said sidewall thereby defining said single central space enclosing said single modified atmosphere; and wherein said container, said single modified atmosphere, and layering said plurality of food items promotes and extends freshness and edible life of said plurality of food items.
Shahsavarani is relied on to teach similar packaging for a plurality of food stuff, such as fruits and vegetable (paragraph 9-10) using a sidewall surrounding a central space having an open top at a first end, and a bottom at a second end opposite of the first end (see bowl 2, fig. 1), a modified atmosphere (paragraph 14), and a gas permeable membrane (bowl film 5, paragraph 36) covering said opening and attached to the sidewall thereby defining a single central space enclosing a single atmosphere to promote and extend freshness and edible life of said plurality of different food items (paragraphs 11 and 36); and a lid (lid 6, Fig. 1) covering said membrane and removably attached to said sidewall.
Since both Dehuff and Shahsavarani are directed to containers for storing perishable produce such as fresh vegetable, it would have been obvious to one of ordinary skill in the art to further provide a gas permeable membrane to promote and extend freshness of the plurality of food items.
Regarding Claim 94, the combination further teaches wherein said container comprises: a gas impermeable sidewall and bottom (clear plastic jars of Dehuff), said sidewall defining an opening oppositely disposed from said bottom (see image, page 1); a membrane attached to said container overlying and enclosing said opening (as taught by Shahsavarani as applied in the rejection of Claim 86). If it is construed that Dehuff does not disclose a gas impermeable sidewall and bottom, Shahsavarani is further relied on to teach an outer container that may have barrier properties (paragraph 24). Therefore, it would have been obvious to provide barrier properties to the container sidewalls and bottom for the purpose of controlling the modified atmosphere within the container.
Regarding Claim 95, Shahsavarani further teaches wherein said membrane comprises a gas permeable barrier film (bowl film 5, paragraph 36).
Regarding Claims 96 and 99, Shahsavarani further teaches comprising one or more gases within said container, wherein the gas comprises nitrogen, oxygen, and/or carbon dioxide (as per claim 99, paragraph 14).
Regarding Claim 100, Shahsavarani further teaches wherein said one or more gases comprise 5% by volume carbon dioxide (paragraph 47), which is within the claimed range of 0% to 40%.
Regarding Claim 101, Shahsavarani further teaches wherein said one or more gases comprise 90% by volume nitrogen (paragraph 47), which is within the claimed range of 60% to 100%.
Regarding Claim 102, Shahsavarani further teaches wherein said one or more gases comprise 5% by volume oxygen (paragraph 47), which is within the claimed range of 0.5% to 20%.
Regarding Claim 103, Shahsavarani further teaches comprising 5% oxygen by volume (paragraph 47), but is silent to specifically reciting 18% carbon dioxide and 77% nitrogen by volume. However, in addition to the gas composition presented above, Shahsavarani also discloses a gas composition comprising 50% by volume nitrogen, and 30% by volume carbon dioxide for non-respiring salad ingredients (paragraph 45). That is, Shahsavarani discloses compositions of nitrogen and carbon dioxide that are both below and above the claimed range (5% and 30% carbon dioxide, paragraph 47 and 45, respectively; 50% and 90% nitrogen, paragraph 47 and 45, respectively). This suggest that the particular composition is dependent on the type of food items being stored and thus varies in a range that encompasses the claimed composition of each gas (based on their rate of respiration). Therefore, it would have been obvious to one of ordinary skill in the art to modify the particular gas composition through routine optimization for the purpose of achieving the requisite extension of product shelf-life. “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical” (See MPEP 2144.05.II). In this case, since Shahsavarani also contemplates the composition of carbon dioxide, nitrogen, and oxygen to achieve an extended shelf-life for salad products, applicant’s claimed concentration does not supports patentability over the prior art.
Regarding Claim 104, as a result of Shahsavarani’s gas permeable membrane, the combination further teaches a space (interior of container) in communication with said opening, but is silent to specifically reciting wherein said gas permeable membrane has a permeability such that equilibrium between said central space and the ambient is achieved within 48 hours of sealing said membrane to said container. However, since Shahsavarani was relied on to teach the permeable membrane, and also use similar membrane material as applicant’s (LDPE, PVC, see Page 4, first paragraph of Applicant’s specification, and paragraph 37 of Shahsavarani), then the package of the combination would also exhibit similar properties. When the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent (see MPEP 2112.01).
Regarding Claim 105, while the combination discloses a permeable membrane that extends the shelf-life of the food (paragraph 47 of Shahsavarani), the combination not specifically recite wherein said gas permeable membrane has a permeability such that said food items maintain freshness for at least 10 days. However, since the combination teach all the structures of the claim, and also use similar membrane material as applicant’s (PVC, see Page 4, first paragraph of Applicant’s specification, and paragraph 37 of Shahsavarani), then the package of Bell would also exhibit similar properties. When the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent (see MPEP 2112.01).
Claim(s) 87, 89 and 93 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied in Claim 86, further in view of Grandnanny (Greek Pasta Salad in a Jar, grandnannyshouse.com).
Regarding Claims 87, 89 and 93, while Dehuff further teaches several food items positioned between said salad dressing and said lettuce item, Dehuff does not specifically recite wherein said plurality of food items further includes a pickled vegetable (Claim 87), a pasta food item (required by Claim 89), or a cheese item (required by Claim 93) item positioned between said salad dressing and said lettuce item.
Grandnanny is relied on to teach a salad product packaged within a container (jar, see page 2 first paragraph), comprising a pickled vegetable (kalamata olives, page 5, last paragraph), a pasta food item (cooked penne pasta, see ingredients, page 4), and a cheese item (crumbled feta cheese, see ingredients, page 4). Note that Grandnanny also places salad dressing at the bottom most position of said container (see page 7 first paragraph).
Therefore, since Dehuff and Grandnanny are directed to salad stored in a jar having multiple ingredients in respective layers, it would have been obvious to one of ordinary skill in the art to further comprise a pickled vegetable, or a pasta food item, or a cheese item, based on flavor preferences.
Claim(s) 97 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 96, further in view of Sullivan et al. (US 6,245,368).
Regarding Claim 97, the combination is silent to wherein said one or more gases are at a pressure below atmospheric pressure. Sullivan is relied on to teach a packaged food product comprising fresh perishable food such as egg salad, chicken salad, or tuna salad (Col. 2, Ln. 38-46) which are known to comprise fresh vegetables and dressing (i.e. mayonnaise). The package of Sullivan utilizes a gas permeable packaging material with modified atmospheres to provide barriers against moisture and oxygen sufficient to extend the shelf-life of the food product (see Col. 2, Ln. 4-17). Sullivan further notes that the package may be vacuum packaged to reduce the oxygen content thereby controlling bacteria growth (see Col. 3, Ln. 18-25).
Therefore, since Sullivan is also directed to packaged food products having a gas permeable membrane and a modified atmosphere, and Shahsavarani also desires reducing the oxygen content to control bacterial growth (5% oxygen, paragraph 47), it would have been obvious to one of ordinary skill in the art to package the food product in a vacuum to reduce the oxygen content thereby extending the shelf-life of the food product.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THANH H NGUYEN whose telephone number is (571)270-0346. The examiner can normally be reached 10am-6pm.
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/ Supervisory Patent Examiner, Art Unit 1792
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