Daniel Peirsman et al.

Patent Trials and Appeals Board

Dec 31, 2020

2020001923 (P.T.A.B. Dec. 31, 2020)

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.
14/240,319 03/28/2014 Daniel Peirsman ABI190US (10-0119) 3362
83942 7590 12/31/2020
Levy & Grandinetti
P.O. Box 18385
Washington, DC 20036
EXAMINER
CARROLL, JEREMY W
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
12/31/2020 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte DANIEL PEIRSMAN and JOHAN VAN ROMPAEY
__________

Appeal 2020-001923
Application 14/240,319
Technology Center 3700
__________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.

REIMERS, 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, 3–9, and 16–20. Claim 2 has been
canceled and claims 10–15 have been withdrawn from consideration.
Appeal Br. 5. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as ANHEUSER-
BUSCH INBEV S.A. Appeal Brief (“Appeal Br.”) 3, filed Sept. 10, 2019.
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Application 14/240,319

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CLAIMED SUBJECT MATTER
The claimed subject matter “concerns roving beverage dispensing
units for dispensing through a dispensing tap a beverage, typically a
carbonated beverage like beer, by pressurizing the interior of the container
containing said beverage.” Spec. 1:5–7.2
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter and recites:
1. A roving beverage dispensing device, comprising:
(a) a beverage container containing a liquid beverage to
be dispensed,
(b) a pressure line, including an outlet releasably
connected to the container with a connector providing fluid
communication between the interior of the container and a source
of pressurized gas to pressurize the container,
(c) an at least partially flexible, beverage dispensing
line, comprising an inlet end and an outlet end, the inlet end
including a dispensing line connector stably coupling said inlet
end to the pressurized container[3] providing fluid
communication between the liquid contained in the container and
the outlet end of the dispensing line,
(d) a compartment comprising a refrigerant device and
containing said container;
(e) an elongated tapping column, comprising a fixed
end fixed to the top surface of the compartment and comprising
an elongated inner channel extending from the fixed end to a top
end of the elongated tapping column and providing fluid
communication between the interior of the compartment and a
tapping valve element located within the elongated inner channel

2 Appellant’s Specification (“Spec.”), filed Feb. 21, 2014.
3 We note that “the pressurized container” lacks antecedent basis; however,
we understand that “the pressurized container” is the “beverage container”
recited in claim 1.
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and adjacent to the top end of the elongated tapping column, said
tapping valve element receives a portion of the outlet end of the
dispensing line and controls the flow of the liquid therethrough,
wherein the dispensing line connector is selected from a
bayonet, a threaded nut, a pin, and a resilient snap-fit, and
wherein the largest diameters of the dispensing line and
the dispensing line connector are both smaller than any diameter
[] of the elongated channel such that the dispensing line can be
introduced from the top end of the elongated tapping column
down through the channel and into the compartment where it can
be connected to the container.

THE REJECTION4
Claims 1, 3–9, and 16–20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Van Der Klaauw (US 2004/0226967 A1, published Nov.
18, 2004), Baker (US 6,832,487 B1, issued Dec. 21, 2004), and Haskayne
(WO 2009/115928 A2, published Sept. 24, 2009).

ANALYSIS
Appellant does not offer arguments in favor of dependent claims 3–9
and 16–20 separate from those presented for independent claim 1. Appeal
Br. 7–17. We select claim 1 as the representative claim, and claims 3–9 and
16–20 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv)(2018).
The Examiner finds that Van Der Klaauw discloses a beverage
dispensing device having most of the limitations of claim 1 including: (1) a

4 The drawings are objected to under 37 CFR 1.83(a). Final Office Action
(“Final Act.”) 2, dated Oct. 11, 2018. However, the objection is not within
the jurisdiction of the Board. See 37 C.F.R. § 1.181.

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Application 14/240,319

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beverage container 27 having an inlet end; (2) a beverage dispensing line 28
having a dispensing line connector coupled to the inlet end of the beverage
container 27; and (3) an elongated tapping column (beer pull 30) having an
elongated inner channel, wherein the largest diameter of the beverage
dispensing line 28 is smaller than any diameter of the elongated inner
channel of the elongated tapping column (beer pull 30). Final Act. 3–4
(citing Van Der Klaauw ¶ 14, Fig. 2). The Examiner acknowledges that Van
Der Klaauw does not disclose that the largest diameter of “the dispensing
line connector is smaller than any diameter of the [inner] elongated channel”
of the elongated tapping column (beer pull 30). Id. at 4 (emphasis added).
The Examiner, however, finds that Baker discloses this missing limitation,
i.e., a dispensing line connector (illustrated at the end of product flow line 30
in Figure 1A) having a largest diameter that is smaller than any diameter of
an elongated channel (gas outlet 22 and/or gas inlet 34 of dispenser housing
20).5 Id. at 5 (citing Baker 4:15–40, Fig. 1A). The Examiner concludes that
it would have been obvious to modify the beverage dispensing device of
Van Der Klaauw “with a connecting device as taught by Baker in order to
provide a means to connect the product flow line through the dispenser gas
inlet and into the dispenser housing to connect the product package.” Final

5 The Examiner does not identify Baker’s gas outlet 22 and/or gas inlet 34 of
dispenser housing 20 as the corresponding elongated channel. However, the
Examiner references Baker’s disclosure that “[t]o set up the dispensing
apparatus 10, one end of the product flow line 30 is dropped into the
dispenser housing 20 and inserted into the refrigerated container 14 through
the gas outlet 22 of the container 14.” See Final Act. 5; Baker 4:28–32
(emphases added).
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Act. 5.6 The Examiner further notes that claim 1 recites “product by process
language” and “the burden shifts to applicant to come forward with evidence
establishing an unobvious differen[ce] between the claimed product and the
prior art product.” Id. (citing MPEP 2113).7
Appellant contends that “Baker does not have a tapping column”
(Appeal Br. 7; see also id. at 11–12).
The Examiner correctly responds that Appellant’s argument is
“against the references individually.”8 Ans. 10; see also id. at 11.9 “Non-
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references. [The reference] must be read, not in isolation, but for what it
fairly teaches in combination with the prior art as a whole.” In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In this case, the Examiner relies
on the teachings of Van Der Klaauw, rather than Baker, for disclosing a
tapping column. Final Act. 4 (Van Der Klaauw discloses “an elongated
tapping column (FIG 2, element 30).”); see also Ans. 11 (“Van Der Klaauw

6 The Examiner relies on Haskayne for limitations other than those discussed
above. See Final Act. 5.
7 We note that the language recited in claim 1, i.e., “can be introduced from
the top end of the elongated tapping column down through the channel and
into the compartment where it can be connected to the container” is better
categorized as a functional limitation that involves an intended use, rather
than “product by process language.”
8 As Appellant has not filed a Reply Brief, Appellant has waived any
arguments against the Examiner’s findings. See Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (“Informative”) (“[A]rguments that could
be made in the reply brief, but are not, are waived.”).
9 Examiner’s Answer (“Ans.”), dated Oct. 21, 2019.
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already discloses a tapping column.”). Thus, Appellant does not apprise us
of Examiner error.
Appellant argues that “[i]t is clear from Van Der Klaauw’s description
that the beverage dispenser illustrated in Figure 2 of Van Der Klaauw is
designed so that the outlet end of the dispensing tube must be inserted
upwardly through the end of the tapping column until reaching the tapping
valve”; whereas, “[c]laim 1 requires that the line or tube be introduced from
a point at or adjacent the top end of the tapping column downwardly through
the channel and into the compartment where it can be connected to the
container” (hereinafter, a “top down” installation, in contrast to Van Der
Klaauw’s “bottom up” installation). Appeal Br. 8–11 (citing Van Der
Klaauw ¶¶ 2, 3, 5, 7, 9, 14, 43, 48).
This contention is unpersuasive for several reasons. First, we are not
persuaded that Van Der Klaauw, based on any of Appellant’s cited
paragraphs, requires installation of its dispensing tube from the bottom up.
Nothing in Van Der Klaauw’s disclosure indicates that a spring-loaded valve
prevents the dispensing line from being inserted from the top down the
channel of beer pull 30, contrary to Appellant’s contention (see Appeal Br.
9; see also id. at 10–11 (arguing that Van Der Klaauw’s shut-off valve
prevents a top down installation)). Additionally, Appellant does not direct
us to any passage where Van Der Klaauw requires that a spring-loaded valve
be permanently attached to a dispensing line such that a top down
installation is impossible. For instance, a spring-loaded valve can be
positioned within the channel of the beer pull and the dispensing line can
still be introduced from the top down the channel. Further, although
Appellant argues that Van Der Klaauw’s tap valve must be closed for
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installation to prevent “undesired dispensing of drink,” thereby suggesting a
top down installation (see id. at 9), there is no requirement in Van Der
Klaauw that the lower end of dispensing line 28 be connected to beverage
container 27 for installation. Belying Appellant’s contention, paragraph 14
of Van Der Klaauw discloses that “[t]he dispensing line can be permanently
connected to the container” and that “it can also be provided with a coupling
for detachable connection.” Id. at 9 (emphases added) (quoting Van Der
Klaauw ¶ 14); see also Ans. 10.
Second, to the extent Appellant is arguing that Van Der Klaauw
teaches away from a top down installation of its dispensing line, we do not
agree. Nowhere does Van Der Klaauw discredit, criticize, or disparage a top
down installation of its dispensing line. Like our appellate reviewing court,
“[w]e will not read into a reference a teaching away from a process where no
such language exists.” DyStar Textilfarben GmbH & Co. Deutschland KG
v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006).
Third, even assuming arguendo that Van Der Klaauw’s beverage
dispensing device “is designed such that the dispensing tube is first coupled
to the container, prior to driving it to the tapping valve” as Appellant argues
(Appeal Br. 9), such characterization is inconsequential here. Claim 1 is
directed to a device rather than a method. “It is well settled that patentability
of apparatus claims must depend upon structural limitations . . . .” In re
Michlin, 256 F.2d 317, 320 (C.C.P.A. 1958). As such, “the patentability of
apparatus or composition claims depends on the claimed structure, not on
the use or purpose of that structure.” Catalina Mktg. Int’l, Inc. v.
Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002). “A patent
applicant is free to recite features of an apparatus either structurally or
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functionally . . . . Yet, choosing to define an element functionally, i.e., by
what it does, carries with it a risk.” In re Schreiber, 128 F.3d 1473, 1478
(Fed. Cir. 1997). Thus, “‘[f]unctional’ terminology may render a claim quite
broad. By its own literal terms a claim employing such language covers any
and all embodiments which perform the recited function.” In re Swinehart,
439 F.2d 210, 213 (CCPA 1971). Further, “[i]f the prior art structure is
capable of performing the intended use, then it meets the claim.” In re
Schreiber, 128 F.3d at 1478; see also In re Swinehart, 439 F.2d at 213.
Here, the recitation “such that the dispensing line can be introduced
from the top end of the elongated tapping column down through the channel
and into the compartment where it can be connected to the container”
denotes a functional limitation and an intended use of the dispensing line
recited in claim 1. In this case, dispensing line 28 of Van Der Klaauw is
capable of being installed “top down” by virtue of the smaller diameter of
dispensing line 28 as compared to the diameter of the channel of beer pull 30
as illustrated in Figure 2 of Van Der Klaauw.
Appellant argues that a skilled artisan would have “no incentive to
modify the dimension of the inner channel of the tapping column [of Van
Der Klaauw] to allow insertion of the dispensing tube.” Appeal Br. 11. This
argument is unpersuasive because it fails to address the Examiner’s
rejection. The Examiner proposes applying Baker’s teaching of having a
dispensing line connector, that has a largest diameter smaller than any
diameter of an inner elongated channel, to the beverage dispensing device of
Van Der Klaauw––rather than modify the dimension of the inner channel of
the tapping column (beer pull 30) of Van Der Klaauw. See Final Act. 4.
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Appellant argues that “[t]he design of Baker’s dispensing device is not
at all suitable for a beer dispensing device, which includes a tapping column
of the type described by Van Der Klaauw.” Appeal Br. 13. This argument
is also unpersuasive. First, the Examiner’s reliance on Baker is limited only
to the size of a dispensing line connector––rather than any other features of
its “design.” See Final Act. 5. Second, to the extent Appellant is arguing
that the dispensing line connector of Baker cannot be added to the beverage
dispensing device of Van Der Klaauw because of Van Der Klaauw’s
“design,” the test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference; rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art. See In re Keller,
642 F.2d 413, 425 (CCPA 1981). Further, the Supreme Court has
emphasized that “the [obviousness] analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR Int’l v. Teleflex Inc., 550 U.S.
398, 418 (2007). As noted by the Court in KSR, “[a] person of ordinary skill
is also a person of ordinary creativity, not an automaton.” Id. at 421. “The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id. at 416.
Nothing in the record here suggests that the Examiner’s proposed
combination of known prior art elements according to their known functions
would involve more than routine engineering efforts.
Appellant further argues that the force applied on the dispensing line
of Baker is different than that of Van Der Klaauw’s dispensing line. Appeal
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Br. 14–15. Even assuming arguendo that Appellant’s argument is true,
claim 1 does not preclude any particular force applied to a dispensing line.
Appeal Br. Claims App. 1; See In re Self, 671 F.2d 1344, 1348 (CCPA
1982) (“[A]ppellant’s arguments fail from the outset because . . . they are
not based on limitations appearing in the claims.”); see also Ans. 12 (“[I]t is
noted that the features upon which Appellant relies (i.e., pressure tolerance
of connector, strong connector) are not recited in the rejected claim(s).”).
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 1 as obvious over Van
Der Klaauw, Baker, and Haskayne. Accordingly, we sustain the Examiner’s
rejection of claim 1. We further sustain the rejection of claims 3–9, and 16–
20, which fall with claim 1.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§ 
Reference(s)/Basis Affirmed Reversed
1, 3–9, 16–20 103(a)  Van Der Klaauw,
Baker, Haskayne
1, 3–9, 16–
20

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