Adrian Rivera

Patent Trials and Appeals Board

Mar 23, 2022

2021005519 (P.T.A.B. Mar. 23, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 16/378,558 04/08/2019 Adrian Rivera EZCPT34CIP 1335 49691 7590 03/23/2022 IP Strategies P.O. Box 6446 Asheville, NC 28816 EXAMINER DUNIVER, DIALLO IGWE ART UNIT PAPER NUMBER 3761 NOTIFICATION DATE DELIVERY MODE 03/23/2022 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): thomas.champagne@ipstrategiespc.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ADRIAN RIVERA Appeal 2021-005519 Application 16/378,558 Technology Center 3700 Before BENJAMIN D. M. WOOD, LISA M. GUIJT, and PAUL J. KORNICZKY, Administrative Patent Judges. GUIJT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-15. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as the inventor, Adrian Rivera. Appeal Br. 2. Appeal 2021-005519 Application 16/378,558 2 CLAIMED SUBJECT MATTER Appellant’s invention relates to “beverage brewers and in particular to a beverage brewer utilizing a stream of hot water through tamped ground brewing material.” Spec. 1:13-14. Claims 1 and 7 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A multi-mode beverage brewer, comprising: a body; a brewing chamber arranged in the body and configured to receive and contain beverage brewing material, to receive a flow of water from a water source and through the beverage brewing material, thereby brewing a beverage, and to release the brewed beverage through a brewing chamber outlet; a flow controller arranged in the body and configured to control the flow of water to the brewing chamber such that in a first mode a first quantity of water or in a second mode a second quantity of water is provided to the brew[ing] chamber; a selector configured to actuate the first mode or the second mode of the flow controller; and a tray, configured to support a brewed beverage container to receive the brewed beverage from the brewing chamber outlet; wherein the selector is configured as a magnetic element and a magnetic sensing element; wherein one of the magnetic element and the magnetic sensing element is arranged in the body; and wherein another of the magnetic element and the magnetic sensing element is arranged in the tray. Appeal 2021-005519 Application 16/378,558 3 THE REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Hoffman US 5,183,998 Feb. 2, 1993 Hustvedt US 5,540,263 July 30, 1996 Halliday US 7,328,651 B1 Feb. 12, 2008 THE REJECTIONS The following rejections are before us on appeal: I. Claims 1-3, 7, and 11-15 stand rejected under 35 U.S.C. § 103 as unpatentable over Halliday and Hustvedt. II. Claims 4-6 and 8-10 stand rejected under 35 U.S.C. § 103 as unpatentable over Halliday, Hustvedt, and Hoffman. OPINION Rejection I Independent claim 1 Regarding independent claim 1, the Examiner finds that Halliday discloses a multi-mode beverage brewer comprising, inter alia, a flow controller (i.e., three-way valve, pump 230, air compressor 235, one-way valve) configured to control the flow of water to a brewing chamber such that in a first mode a first quantity of water or in a second mode a second quantity of water is provided to the brew chamber, as claimed. Final Act. 2- 3 (citing Halliday 19:10-47, Figs. 35-43); see also Ans. 14 (finding that “water pump 230 delivers the total dispensed volumes of beverage” (citing Halliday 19:48-57)); id. at 16 (finding Halliday teaches “the three-way valve, pump 230 and air compressor 235 with one-way valve as structures to Appeal 2021-005519 Application 16/378,558 4 control the flow of water to and from the brewing chamber 250,” whereby Halliday discloses “at least one multi-mode flow controller that produces quantities of water that are different from one another”). The Examiner finds that a “second quantity of water [that] is different from the first volume quantity of water” meets the claim recitation of first and second modes. Id. at 14. Appellant argues that Halliday discloses “manual and automatic modes,” which are not modes defined by first and second quantities of water, as claimed. Appeal Br. 18; see also Reply Br. 7-8. Indeed, in addition to disclosing a pump (in combination with an air compressor and valving) for controlling the volume of water flowed to Halliday’s brewing chamber, as relied on by the Examiner supra, Halliday discloses manual and automatic operating modes corresponding to a user interface that receives a user’s manual volume adjustment and also a barcode reader that automatically receives a volume parameter from a barcode on a beverage cartridge, respectively. See, e.g., Halliday 18:9-33 (“[a] volume adjustment control may be provided to allow a user of the machine 201 to manually adjust the volume of the delivered beverage,” which may be, for example, “a rotary knob, a linear slider, a digital readout with increment and decrement buttons, or similar” or a “stop/start button”); 24:41-47 (“[t]he purpose of the cartridge recognition means 252 is to allow the machine 201 to recognize the type of beverage cartridge 1 that has been inserted and to adjust one or more operational parameters accordingly,” wherein “the cartridge recognition means 252 comprises an optical barcode reader which reads a printed barcode 320 provided on the laminate 5 of the beverage cartridge 1”); 19:59-20:35 Table I (“cartridge 1 comprises a code . . . Appeal 2021-005519 Application 16/378,558 5 representing the operational parameters required for optimal dispensation of the beverage in that cartridge 1,” including “Beverage volume” (Table I)). Halliday discloses that “[b]arcode 320 may be rescanned a number of times before an error message is presented to the consumer,” and that “[i]f the machine is unable to read the barcode the consumer is able to use the beverage cartridge 1 to dispense a beverage using a manual mode of operation.” Id. at 25:2-6. The Examiner, however, does not rely on Halliday’s manual and automatic modes for disclosing the first and second modes of first and second quantities of provided water as required by claim 1. Thus, Appellant’s argument does not address the rejection as articulated by the Examiner, or apprise us of error in the Examiner’s findings relative to Halliday and the claimed flow controller. Appellant also argues that Halliday’s air compressor 235 produces “two flow rates” but not “two different respective quantities of water.” Appeal Br. 18. Appellant’s argument, however, fails to address Halliday’s disclosure of a pump, in combination with the air compressor and valving, as relied on by the Examiner supra, which is configured to control the flow of water to a brewing chamber such that in a first mode a first quantity of water or in a second mode a second quantity of water is provided to the brewing chamber, as claimed. Notably, claim 1 does not require the flow controller (i.e., Halliday’s pump) to determine the first and second quantities of water, which define the first and second modes; rather, claim 1 requires the flow controller to be configured to control the flow of water according to the two modes. In other words, we construe claim 1 to recite a flow controller that Appeal 2021-005519 Application 16/378,558 6 has the ability to control the flow of water (i.e., start and stop the flow) to deliver at least two different quantities of water to a brewing chamber, and a preponderance of the evidence supports the Examiner’s finding that Halliday’s pump, air compressor, and valving are configured to provide such flow control.2 See, e.g., Halliday 18:57-19:7 (“water pump 230 . . . is controlled by the control processor” and “[t]he accuracy of the volume of water pumped is preferably + or -5% leading to a + or -5% accuracy in the final volume of the dispensed beverage,” wherein “[a] volumetric flow sensor . . . is preferably provided in the flow line either upstream or downstream of the water pump 230”). The Examiner also relies on Halliday’s machine user interface 240, and in particular, Halliday’s start/stop button 241, for disclosing a selector configured to actuate the first and second modes of the flow controller, as required by claim 1. Final Act. 2-3 (citing Halliday 18:9-24, 19:42-46). The Examiner finds that “various modes that produce different quantities of water to the brew[ing] chamber 250 within [Halliday’s] manual operating mode can be actuated by the user interface’s start/stop button 240-241.” Ans. 15. In addition, the Examiner finds that “the consumer operates the start/stop button 241 to start/stop the discharge cycle” in Halliday’s automatic operating mode, wherein the controller has read the volume parameter (i.e., mode) from the beverage cartridge, as discussed supra. Ans. 31 (citing Halliday 28:20-31 (“[t]o commence the operating cycle the 2 See Appeal Br. 18-19 (arguing that “nothing in the cited passages or elsewhere in [Halliday] suggests that the water pump is configured to control the flow of water to the brewing chamber such that in a first mode a first quantity of water or in a second mode a second quantity of water is provided to the brew chamber, as recited in claim 1”). Appeal 2021-005519 Application 16/378,558 7 consumer operates the start/stop button 241,” wherein “[t]he operating cycle comprises the steps of cartridge recognition and the discharge cycle”). Appellant argues that “although two modes are mentioned [in Halliday],” namely, the automatic and manual modes, Halliday fails to disclose “a selector configured to actuate a first mode in which a first quantity of water or a second mode in which a second quantity of water is provided to the brew[ing] chamber, as recited in claim 1.” Appeal Br. 20. This conclusory argument, however, does not apprise us of error in the Examiner’s reliance on Halliday’s start/stop button 241 to actuate the flow of water to the brewing chamber, which is controlled by Halliday’s flow controller (i.e., pump, et al.). Thus, Appellant’s argument does not apprise us of error in the Examiner’s reliance on Halliday’s start/stop button 241 for disclosing a selector3, as claimed. Notably, claim 1 does not recite a structure for determining the modes (i.e., first and second quantities of water), which are established, in Halliday, either manually by either the consumer manually or automatically by the 3 We decline to import into the claim term “selector” the function of selecting a mode (i.e., a quantity of water), wherein the claim expressly requires the selector to have the function of actuating or causing operation of, the mode of the flow controller. Cf., e.g., Spec. 2:24-25 (“The selector is configured to actuate the first mode or the second mode of the flow controller.”); 3:1-2 (“The selector is configured as a magnet and a magnetic sensing element.”); 33:25-34 (“brewer 100 allows the user to make a selectable amount of brewed beverage, . . . includ[ing] manually-operated controls 102 for selecting a volume of water” or “detect[ing] the presence of a single-cup adapter 118 and limit[ing] the volume of beverage produced to an amount appropriate . . . for example, as an override if a user accidentally selects a volume of beverage too large”); see Appeal Br. 7 (“according to the claim 1 brewer, one selection is made to automatically dispense a beverage in one of two quantities”). Appeal 2021-005519 Application 16/378,558 8 beverage cartridge code and reader. As agreed upon by Appellant, Halliday discloses “a start/stop button that the user can press to actuate the beverage preparation machine”-namely, the flow controller or pump-“to control the flow of water to the brewing chamber in a quantity determine by the user”-for example, in two modes having distinctly different volumes or quantities of water for flowing provision to the brewing chamber. Reply Br. 9. In other words, the claimed selector reads on Halliday’s start/stop button 241. The Examiner further determines that Halliday fails to disclose that the selector (i.e., start/stop button 241) is configured as a magnetic element and a magnetic sensing element, wherein one or the other of each pair arranged in the body and tray, as claimed, and the Examiner relies on Hustvedt for disclosing a selector having a magnet 156 arranged on Hustvedt’s body or housing 22, and also a sensor 152 arranged on Hustvedt’s tray 110, as claimed. Final Act. 3 (citing Hustvedt 9:34-58, Fig. 3). The Examiner reasons that it would have been obvious to modify Halliday “to incorporate the magnetic element and sensing element of the selector as taught by Hustvedt . . . for purposes of safe operation of the brewer that allows for the brewer body and the tray to be properly positioned via the magnets.” Id. at 4. More specifically, the Examiner reasons: Although Halliday . . . does not teach of a selector 241 including a magnetic element and a magnetic sensing element, it would have been obvious to one of ordinary skill in the art to add to the receptacle stand 271 as taught by Halliday . . . where the dispensation of beverage takes place to incorporate the magnetic element 156 and magnetic sensing element 152 of the tray 110 as taught by Hustvedt . . . for receiving a cup or a cup- like receptacle for the purpose of a safe operation of the brewer. Appeal 2021-005519 Application 16/378,558 9 Ans. 18. Thus, we understand that the Examiner is adding Husvedt’s automatic selector (i.e., magnetic element and magnetic sensing element), while maintaining Halliday’s manual selector (i.e., start/stop button 241). Cf. Halliday 25:2-6 (disclosing that both manual and automatic selectors can be used, alternatively, to actuate the flow controller, including an automatic barcode reader and a manual start/stop button: “barcode 320 may be rescanned a number of times before an error message is presented to the consumer,” wherein “[i]f the machine 201 is unable to read the barcode the consumer is able to use the beverage cartridge 1 to dispense a beverage using a manual mode of operation”). Appellant argues that, in Hustvedt, “[the] magnet/sensor arrangement ensures that water will not be dispensed unless a soup bowl is arranged in the proper place,” however, “claim 1 recites a selector configured as a magnetic element and a magnetic sensing element, to actuate a first mode or a second mode of a flow controller.” Id. at 21-22. In other words, Appellant argues that Hustvedt does not disclose “the claimed selector, which determines a volume of a beverage to be produced.” Id. at 22; see also Reply Br. 12, 13. First, we do not construe claim 1 as only determining a volume of a beverage to be produced by actuating a flow controller that controls the flow of water according to two modes. In other words, we do not construe claim 1 as requiring the selector to determine a volume of a beverage to be produced. Claim 1 is silent regarding the structure that determines the quantities of water corresponding to first and second modes. Appeal 2021-005519 Application 16/378,558 10 Second, the Examiner relies on Halliday, not Hustvedt, for disclosing a flow controller configured as claimed, and proposes modifying Halliday’s start/stop button 241 to be a magnetic element and magnetic sensing element, as claimed, to actuate Halliday’s flow controller (i.e., pump, et al.). In other words, when Halliday’s selector, as modified by Hustvedt, senses the presence of a receptacle, the selector actuates the flow controller, as claimed, rather than a user manually activating the start/stop button 241. According to the Examiner, such a selector would avoid spilling a hot beverage in the event a user starts the flow controller without a dispenser being present. Accordingly, we are not apprised of error in the Examiner’s rejection of independent claim 1 under 35 U.S.C. § 103 as unpatentable over Halliday and Hustvedt. Dependent claim 2 Dependent claim 2 depends from independent claim 1 and recites, in relevant part, “wherein the flow controller includes an electrically-controlled valve.” Appeal Br. 64 (Claims App.). As set forth supra, the Examiner relies on Halliday’s disclosure of a three-way valve, pump 230, and air compressor 235 with one-way valve as structures of a flow controller, and also on Hustvedt for disclosing “an electrically-controlled valve 136.”4 Final Act. 4. The Examiner reasons that 4 Although the Examiner cites Halliday for disclosing electrically-controlled valve 136, Hustvedt’s reference numeral corresponds to “sub-cooling valve 136,” while Halliday does not disclose a reference numeral 136. See, e.g., Hustvedt 8:47 (“sub-cooling valve 136”); 8:36-41 (“pipes or other suitable lines extending between the hot water tank 124 and each of the fill vent/steam outlet 132, the nozzle . . . 128 and the hot water drain 130 are Appeal 2021-005519 Application 16/378,558 11 “it would have been obvious to adapt the flow controller of Halliday with an electrically-controlled valve to effectively and accurately operate the valve as known in the art.” Id. See also Ans. 25 (noting that Halliday’s valves are controlled by a processor (citing Halliday 19:34-41, Fig. 43)); cf. Hustvedt 10:8-9 (disclosing that “microprocessor 140 outputs signals for effecting control of the various valves 134 and the sub-cooling valve 136 associated with the piping system”). Appellant argues that Halliday fails to disclose an electrically- controlled valve, as claimed. Appeal Br. 24-25; Reply Br. 19. Appellant’s argument, however, does not address Hustvedt’s disclosure of an electrically-controlled valve in the piping of a liquid product (i.e., soup) dispenser or the Examiner’s proposed modification of Halliday. Accordingly, we are not apprised of error in the Examiner’s rejection of dependent claim 2 under 35 U.S.C. § 103 as unpatentable over Halliday and Hustvedt. Dependent claim 11 Claim 11 depends from independent claim 1 and recites, in relevant part, wherein: the selector is an automatic selector, and the beverage brewer includes a manual selector configured to actuate the first mode or the second mode of the flow controller at the direction of a user if the automatic selector is not engaged to actuate the first mode or the second mode of the flow controller. each provided with electrically operated valves 134” (emphasis added)); 11:41-44 (“[w]hile hot water is flowing to the nozzle 92, the sub-cooling valve 136 is intermittently operated to deliver pulses of cold water”). Appeal 2021-005519 Application 16/378,558 12 Appeal Br. 67 (Claims App.). Claim 11 further requires, by dependency of claim 1, that the selector is configured as a magnetic element and a magnetic sensing element, which we understand functions automatically, or as an automatic selector: The body can include a passage, and the magnetic sensing element can be disposed in the body at a sensing distance of the passage. The tray can include a probe carrying the magnetic element. The probe can be configured to enter the passage such that the magnetic sensing element senses the magnetic element to actuate the first mode or the second mode of the flow controller. Spec. 3:5-9. Appellant argues that Halliday discloses “user interface 240 and manual and automatic modes,” however, Halliday fails to disclose “separate automatic and manual selectors configured to actuate modes related to quantities of water to be provided in a brewing process, as claimed.” Appeal Br. 40; see also Reply Br. 33-35. Appellant also relies on the arguments presented from claim 1, upon which claim 11 depends. Appeal Br. 41. As discussed supra, the Examiner’s proposed modification of Halliday’s start/stop button 241 to incorporate Hustvedt’s magnetic element and magnetic sensor element results in an automatic selector, as claimed, and maintaining the start/stop button 241 of Halliday, in addition to adding or incorporating Hustvedt’s automatic selector, results in the claimed further inclusion of a manual selector, if the automatic selector is not engaged. See, e.g., Halliday 25:2-6 (disclosing both manual and automatic selectors). Accordingly, we are not apprised of error in the Examiner’s rejection of dependent claim 11 under 35 U.S.C. § 103 as unpatentable over Halliday and Hustvedt. Appeal 2021-005519 Application 16/378,558 13 Dependent claim 12 Claim 12 depends from dependent claim 11 and recites, in relevant part, “wherein [the] automatic selector is configured to override the manual selector.” Appeal Br. 67 (Claims App.). The Examiner finds that “automatic selector 240 is configured to override the manual selector 241.” Final Act. 6 (citing Halliday 18:9-56, 19:34-47, Figs. 35-43). Appellant argues that “an automatic override of the manual mode is not disclosed or suggested by Halliday, neither in the cited passages nor elsewhere in the reference.” Appeal Br. 42. Appellant also relies on the arguments presented from claim 1, upon which claim 11 depends. Id. at 42- 43. We agree with Appellant that although Halliday discloses configuring the manual selector (i.e., start/stop button 241) to override an automatic selector (i.e., the barcode scanner, or as Halliday is modified by Hustvedt, the magnetic element and magnetic sensing element (see, e.g., Halliday 25:2-6)), the Examiner has not identified where, in Halliday, the opposite finding is disclosed. Nor does the Examiner propose modifying Halliday to reverse the override function relative to the manual and automatic selectors, for example, in view of Hustvedt’s teachings that “the mechanisms which effect the discharge of soup concentrate and hot water will be disabled if the sensor 152 determines that the tray 110 is not in the home position” and further, that “to the extent the tray 110 is not positioned in the lower section 24 of the housing 22 when one of the dispenser buttons 158, 160 is actuated . . . , a signal is sent to the controller 140 to prevent operation of the mechanisms which dispense soup concentrate and hot water,” wherein Appeal 2021-005519 Application 16/378,558 14 Hustvedt’s automatic selector (i.e., magnetic element and magnetic sensing element) determines the tray position and overrides Hustvedt’s manual selector (i.e., dispenser buttons 158, 160). Hustvedt 9:50-58. Accordingly, we do not sustain the Examiner’s rejection of dependent claim 12 under 35 U.S.C. § 103 as unpatentable over Halliday and Hustvedt. Independent claim 7 and dependent claims 3 and 13-15 Appellant relies on the arguments presented for independent claim 1 for the patentability of independent claim 7 and dependent claims 3 and 13- 15. Appeal Br. 26-40, 44-47. Accordingly, for essentially the same reasons as stated supra for independent claim 1, we also sustain the Examiner’s rejection of claims 3 and 13-15 depending therefrom, under 35 U.S.C. § 103 as unpatentable over Halliday and Hustvedt. Rejection II Appellant argues that the Examiner’s reliance on Hoffman for disclosing a probe do not “overcome the deficiencies” in the Examiner’s findings and reasoning relative to Halliday and Hustvedt supra. Final Act. 8-11; Appeal Br. 51-62. However, because (with the exception of claim 12 from which no claims depend) we do not agree there are deficiencies in the Examiner’s findings and reasoning relative to Halliday and Hustvedt, we sustain the Examiner’s rejection of claims 4-6 and 8-10 under 35 U.S.C. § 103 as unpatentable over Halliday, Hustvedt, and Hoffman. CONCLUSION The Examiner’s rejection of claims 1-3, 7, 11, 13-15 under 35 U.S.C. § 103 as unpatentable over Halliday and Hustvedt is affirmed. Appeal 2021-005519 Application 16/378,558 15 The Examiner’s rejections of claim 12 under 35 U.S.C. § 103 as unpatentable over Halliday and Hustvedt is reversed. The Examiner’s rejection of claims 4-6 and 8-10 under 35 U.S.C. § 103 as unpatentable over Halliday, Hustvedt, and Hoffman is affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 7, 11- 15 103 Halliday, Hustvedt 1-3, 7, 11, 13-15 12 4-6, 8-10 103 Halliday, Hustvedt, Hoffman 4-6, 8-10 Overall Outcome 1-11, 13-15 12 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED IN PART