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
Claim 10 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 7/20/26.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 6-9 and 11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tsurumoto et al. (20220039437).
Tsurumoto teaches with respect to Independent claim 1, a freshness preservation method for fruits (par. 0067), the method comprising:
irradiating fruits (par. 0067) within 24 hours after harvest (par. 0209 last line; on harvest date) with light having a peak wavelength in a range from 256 nm to 297 nm (par. 0090, 0074; 275-295nm).
With respect to thereby extending, by equal to or greater than 25% compared to when the fruits or the vegetables are not irradiated by the light, time for preserving equal to or greater than 95% of a weight of the fruits or the vegetables before light irradiation.
Applicant has described the product with parameters which cannot be measured by the office for prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability purposes. As the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ430, 433 (CCPA 1977).
Burden shift to applicant to provide evidence the same fruit as taught and same range encompassed, does not encompass applicants broadly claimed extending, by equal to or greater than 25% compared to when the fruits or the vegetables are not irradiated by the light, time for preserving equal to or greater than 95% of a weight of the fruits or the vegetables before light irradiation.
A same fruit and same irradiated wavelength and its properties are inseparable. Therefore, if the prior art teaches the identical type, the properties applicant discloses and/or claims are necessarily present.
Tsurumoto teaches the method as provided above with respect to independent claim 1, the reference, however, fails to explicitly disclose extending, by equal to or greater than 25% compared to when the fruits or the vegetables are not irradiated by the light, time for preserving equal to or greater than 95% of a weight of the fruits or the vegetables before light irradiation.
Since Tsurumoto discloses the same “fruit” as claimed, if there is any difference and that of the instant claims, the difference would have been minor and obvious insofar as because “Products of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. See MPEP 2112.01(1), In re Best, 562 F2d at 1255, 195 USPQ at 433, Titanium Metals Corp v Banner, 778 F2d 775, 227 USPQ 773 (Fed Cir 1985), In re Ludtke, 441 F2d 660, 169 USPQ 563 (CCPA 1971) and Northam Warren Corp v D F Newfield Co, 1 F Supp 773, 22 USPQ 313 (EDNY 1934).
Claim 6, wherein the fruits are strawberries (par. 0051 14th from last line).
With respect to claim 7-9, as noted above Tsurumoto teaches irradiating fruits (par. 0067) within 24 hours after harvest (par. 0209 last line; on harvest date) with light having a peak wavelength in a range from 256 nm to 297 nm (par. 0090, 0074; 275-295nm) and thus since claims 7-9 are relative to properties compared to without irradiation, where Tsurumoto teaches such.
As the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ430, 433 (CCPA 1977).
A same fruit and same irradiated wavelength and its properties are inseparable. Therefore, if the prior art teaches the identical type, the properties applicant discloses and/or claims are necessarily present.
Thus Tsurumoto is taken to encompass, the irradiating with the light includes irradiating the strawberries with the light so that fisetin content in the strawberries after the light irradiation is greater than fisetin content in the strawberries before the light irradiation.
Claim 8, wherein the irradiating with the light includes irradiating the strawberries with the light so that a DPPH radical scavenging activity value of the strawberries after the light irradiation is greater than a DPPH radical scavenging activity value of the strawberries before the light irradiation.
Claim 9, wherein the irradiating with the light includes irradiating the strawberries with the light so that nitrate nitrogen concentration in the strawberries after the light irradiation is less than nitrate nitrogen concentration in the strawberries before the light irradiation.
With respect to Independent claim 11, a freshness preservation system comprising:
an irradiation space (par. 0082) that includes a light irradiation device configured to irradiate fruits (par. 0067) within 24 hours after harvest, where it is noted within 24 hours after harvest is intended use, with light having a peak wavelength in a range from 256 nm to 297 nm. (par. 0090, 0074; 275-295nm).
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 1-9 and 11-14 are rejected under 35 U.S.C. 103 as being unpatentable over Shur et al. (20150165079) in view of Tsurumoto (20220039437).
Shur teaches with respect to Independent claim 1, a freshness preservation method for fruits and vegetables (par. 0071), the method comprising:
irradiating fruits (par. 0071) with light having a peak wavelength in a range from 256 nm to 297 nm (par. 0060; 250-290nm).
Shur teaches irradiating fruit at a UV-C wavelength and thus one of ordinary skill in the art would have been motivated to look to the art of UV-C treatments of fruits as taught by Tsurumoto.
More specifically Tsurumoto teaches irradiating fruits (par. 0067) within 24 hours after harvest (par. 0209 last line; on harvest date) with light having a peak wavelength in a range from 256 nm to 297 nm (par. 0090, 0074; 275-295nm).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to irradiate the fruit within 24 hours after harvest (par. 0209 last line; on harvest date) as taught by Tsurumoto thus providing the light at germicidal wavelength and achieving sterilization of the product prior to pathogen formation as desired by Shur (par. 0005).
With respect to thereby extending, by equal to or greater than 25% compared to when the fruits or the vegetables are not irradiated by the light, time for preserving equal to or greater than 95% of a weight of the fruits or the vegetables before light irradiation.
Applicant has described the product with parameters which cannot be measured by the office for prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability purposes. As the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ430, 433 (CCPA 1977).
Burden shift to applicant to provide evidence the same fruit as taught and same range encompassed, does not encompass applicants broadly claimed extending, by equal to or greater than 25% compared to when the fruits or the vegetables are not irradiated by the light, time for preserving equal to or greater than 95% of a weight of the fruits or the vegetables before light irradiation.
A same fruit and same irradiated wavelength and its properties are inseparable. Therefore, if the prior art teaches the identical type, the properties applicant discloses and/or claims are necessarily present.
Shur teaches the method as provided above with respect to independent claim 1, the reference, however, fails to explicitly disclose extending, by equal to or greater than 25% compared to when the fruits or the vegetables are not irradiated by the light, time for preserving equal to or greater than 95% of a weight of the fruits or the vegetables before light irradiation.
Since Shur discloses the same “fruit” as claimed, if there is any difference and that of the instant claims, the difference would have been minor and obvious insofar as because “Products of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. See MPEP 2112.01(1), In re Best, 562 F2d at 1255, 195 USPQ at 433, Titanium Metals Corp v Banner, 778 F2d 775, 227 USPQ 773 (Fed Cir 1985), In re Ludtke, 441 F2d 660, 169 USPQ 563 (CCPA 1971) and Northam Warren Corp v D F Newfield Co, 1 F Supp 773, 22 USPQ 313 (EDNY 1934).
Where applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection under both 35 USC 102 and 103. “There is nothing inconsistent in concurrent rejections for obviousness under 35 USC 103 and for anticipation under 35 USC 102.” See MPEP 2112(111) and In re Best, 562 F2d at 1255, 195 USPQ at 433.
With respect to Independent claim 11, a freshness preservation system comprising:
an irradiation space (fig. 9a) that includes a light irradiation device configured to irradiate fruits (par. 0071) within 24 hours after harvest, where it is noted within 24 hours after harvest is intended use, with light having a peak wavelength in a range from 256 nm to 297 nm. (par. 0060; 250-290nm).
The recitation in the claims “within 24 hours after harvest” is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Shur teaches irradiation of fresh produce as presently claimed, it is clear Shur would be capable of performing the intended use, i.e. within 24 hours after harvest, as presently claimed as required in the above cited portion of the MPEP, and thus, one of ordinary skill in the art would have arrived at the claimed invention.
Claims 2 and 12, wherein the irradiating with the light includes irradiating the light with an integrated light amount of the light being in a range from 5 mJ/cm2 to 100 mJ/cm2 (par. 0060)
Claims 3 and 13, wherein the irradiating with the light includes irradiating the light with an integrated light amount of the light being in a range from 5 mJ/cm2 to 60 mJ/cm2 (par. 0060).
Claims 4 and 14, wherein the irradiating with the light includes emitting the light in a state where the fruits or the vegetables are placed on a placement member having a placement surface with an average reflectance of the light of equal to or greater than 20% (par. 0047 “at least 30%)
Claim 5, wherein the irradiating with the light includes emitting the light to the fruits or the vegetables in a state where the fruits or the vegetables are put in a translucent case (par. 0013).
Claim 6, wherein the fruits are strawberries (par. 0071).
With respect to claim 7-9, as noted above Shur teaches irradiating fruits (par. 0071) with light having a peak wavelength in a range from 256 nm to 297 nm (par. 0060; 250-290nm) and thus since claims 7-9 are relative to properties compared to without irradiation, where Shur teaches such.
As the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ430, 433 (CCPA 1977).
A same fruit and same irradiated wavelength and its properties are inseparable. Therefore, if the prior art teaches the identical type, the properties applicant discloses and/or claims are necessarily present.
Thus Shur is taken to encompass, the irradiating with the light includes irradiating the strawberries with the light so that fisetin content in the strawberries after the light irradiation is greater than fisetin content in the strawberries before the light irradiation.
Where applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection under both 35 USC 102 and 103. “There is nothing inconsistent in concurrent rejections for obviousness under 35 USC 103 and for anticipation under 35 USC 102.” See MPEP 2112(111) and In re Best, 562 F2d at 1255, 195 USPQ at 433.
Thus Shur is taken to encompass, the irradiating with the light includes irradiating the strawberries with the light so that fisetin content in the strawberries after the light irradiation is greater than fisetin content in the strawberries before the light irradiation.
Claim 8, wherein the irradiating with the light includes irradiating the strawberries with the light so that a DPPH radical scavenging activity value of the strawberries after the light irradiation is greater than a DPPH radical scavenging activity value of the strawberries before the light irradiation.
Claim 9, wherein the irradiating with the light includes irradiating the strawberries with the light so that nitrate nitrogen concentration in the strawberries after the light irradiation is less than nitrate nitrogen concentration in the strawberries before the light irradiation.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
20170135359, 20150054007, 20140311359 directed to UV food irradiation for preservation.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Steven Leff whose telephone number is (571) 272-6527. The examiner can normally be reached on Mon-Fri 8:30 - 5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEVEN N LEFF/Primary Examiner, Art Unit 1792
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