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 .
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 2 and 3 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “powdery” in claim 2 is a relative term which renders the claim indefinite. The term “powdery” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For the purposes of examination, the term “powdery” will be interpreted as meaning a powdered composition.
The term “bag-shaped” in claim 2 is a relative term which renders the claim indefinite. The term “bag-shaped” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For the purposes of examination, the term “bag-shaped” will be interpreted to mean a container made of flexible material.
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 (i.e., changing from AIA to pre-AIA ) 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, 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Parry et al. (US 2007/0154600 A1) in view of Duck (KR 102044122 B1).
Citation with respect to Duck (KR 102044122 B1) correlate to translation performed by Espace.net and provided with office action.
With respect to Claim 1, Parry et al. teaches a method of filling a flexible container comprising filling a container with an inert gas, introducing the food into the container, and sealing the container. [0006-9] Parry et al. teaches the inert gas can be nitrogen, [0030] and the resulting product reads on a container-packed composition wherein the container-packed composition is sealed in a container in which internal air is replaced with nitrogen. Parry et al. is silent to the composition containing green vegetables.
Duck teaches a method of processing young barley leaf into a fine powder, [0013] comprising a step of packaging the barley leaf powder. [0014] Duck teaches the barley leaf powder is beneficial for dieting and disease prevention. [0013] Barley leaf powder reads on a green vegetable.
Parry et al. and Duck exist within the same field of endeavor in that they teach methods and composition of packaging foodstuff. Where Parry et al. teaches a method of filling a flexible container utilizes nitrogen gas to replace the air in the package, Duck teaches a green vegetable that can be powdered and packaged.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Parry et al. in view of Duck to produce a container-packed composition containing a green vegetable, wherein the container-packed composition is sealed in a container in which the internal air is replaced with nitrogen, thereby rendering claim 1 obvious.
With respect to Claims 2 and 4, Parry et al. in view of Duck teaches the invention recited in claim 1, as described above. Additionally, Duck teaches the use of powdered, young barley leaves. [0013] Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Parry et al. in view of Duck to use a powdered composition and young barley leaves in the invention recited in claim 1, thereby rendering claim 2 and 4 obvious.
With respect to Claim 3, Parry et al. in view of Duck teaches the invention recited in claim 1, as described above. Additionally, Parry et al. teaches a flexible container, [0006] which reads on a “bag-shaped” container. Therefore, claim 3 is rendered obvious.
With respect to Claim 5, Parry et al. in view of Duck teaches the invention recited in claim 1, as described above. Additionally, Parry et al. teaches a method of filling a flexible container comprising filling a container with an inert gas, introducing the food into the container, and sealing the container. [0006-9] Parry et al. teaches the inert gas can be nitrogen, [0030] but is silent to the foodstuff being green vegetables.
Duck teaches a method of processing young barley leaf into a fine powder, [0013] comprising a step of packaging the barley leaf powder. [0014] Duck teaches the barley leaf powder is beneficial for dieting and disease prevention. [0013] Barley leaf powder reads on a green vegetable.
Parry et al. and Duck exist within the same field of endeavor in that they teach methods and composition of packaging foodstuff. Where Parry et al. teaches a method of filling a flexible container utilizes nitrogen gas to replace the air in the package, Duck teaches a green vegetable that can be powdered and packaged.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Parry et al. in view of Duck to devise a method of producing a container-packed composition containing a green vegetable, wherein the container-packed composition is sealed in a container in which the internal air is replaced with nitrogen, thereby rendering claim 5 obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH CULLEN MERCHLINSKY whose telephone number is (571)272-2260. The examiner can normally be reached Monday - Friday 9:00am - 5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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