Ex Parte Avis et al

Board of Patent Appeals and Interferences

May 29, 2009

10410707 (B.P.A.I. May. 29, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte EUGENE RICHARDSON KIEF, JR.1
____________________

Appeal 2009-003036
Application 10/969,265
Technology Center 3700
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Decided: 2 June 1, 2009
____________________

Before JAMES T. MOORE, Vice Chief Administrative Patent Judge, and
JAMESON LEE and MICHAEL P. TIERNEY, Administrative Patent
Judges.

MOORE, Vice Chief Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is Carrier Commercial Refrigeration. (App. Br.
1).
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from
Mail Date (paper delivery) or Notification Date (electronic delivery).

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STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 (2002) from a final
rejection of claims 1, 3-13 and 16-23.3 We have jurisdiction under 35
U.S.C. § 6(b) (2002).
The Appellant’s claims are directed to a coffee brewer. The claimed
brewer has a “raised projection” in a compartment which contacts a coffee
cartridge. (Claim 1). This projection is said to raise “the coffee cartridge
from a bottom portion to provide improved quality coffee” by allowing hot
water to additionally flow under the cartridge. (Specification [1] and [8]).
This is said to improve the coffee by allowing all of the grounds to be
contacted with water.
Claims 1, 17 and 22 are the only independent claims in the
application. The Appellant argues claims 1, 3-4, 6-13, 16-17 and 19-21
together. The Appellant raises a separate argument addressing a shared
limitation of claims 5, 18, 22 and 23.
Therefore, we select independent claim 1 to decide the appeal
regarding claims 1, 3-4, 6-13, 16-17 and 19-21. See 37 C.F.R. §
41.37(c)(1)(vii)(2006). Additionally, we select claim 5 as the representative
of claims 5, 18, 22 and 23. (Id.).
Claim 1 reads as follows:
1. A coffee brewer comprising:
a removeable insert [24] including:
an outer cup portion, and
an inner cup portion received in the outer cup portion,
wherein the inner cup portion includes a bottom having an exit
hole and a side wall, the bottom and the side wall defining a
compartment, and the bottom includes at least one raised

3 Claims 2, 14 and 15 have been canceled. (App. Br. 2).
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projection [60, 62]that contacts a coffee cartridge received in
the compartment (number citations added).

Claim 5 reads as follows:
5. The coffee brewer as recited in claim 1 wherein the inner
cup portion is rigidly attached to the outer cup portion by a
plurality of arms.

(App. Br. 7, Claims App’x.).

Figure 3 from the Application, reproduced below, illustrates
the claimed coffee brewer insert. (Specification [14]).

{Figure 3 illustrates a perspective view of the
coffee brewer insert of the invention (Id.).}

THE EVIDENCE

The Examiner relies upon the following as evidence in support of the
rejections:
Martin 3,450,024 Jun. 17, 1969
Patel 5,910,205 Jun. 08, 1999
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THE REJECTION

The following rejections are before us for review:
Claims 1, 3-13 and 16-23 stand rejected under 35 U.S.C. § 103(a)
over the combination of Martin and Patel.
We AFFIRM.
ISSUE
Has the Appellant established that the Examiner erred in determining
that it would have been obvious to one of ordinary skill in the art at the time
the invention was made to combine the known elements of the prior art for
their known functions?
FINDINGS OF FACT
The record supports the following findings of fact by a preponderance
of the evidence.
1. Martin describes a coffee making machine having a funnel insert
(38) for holding prepackaged ground (35) enclosed in an expansible water
permeable membrane such as a porous paper. (Martin Title).
2. Martin figures 2 and 4 are reproduced below:

{Figure 2 shows a top plan view of the funnel insert of the invention
and Figure 4 shows a vertical section taken generally along
the line 4-4 of Fig. 2. (Id. 2:22-28).}
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3. Martin describes that the prepackaged ground coffee (35), i.e., the
coffee cartridge, is held for infusion by hot water in a pan (47), i.e., the inner
cup portion, removably positioned in the funnel (38), i.e., the outer cup
portion. (Id. Abstract).
4. Martin depicts that the inner cup portion (47) has side walls and a
bottom (58) that define a rectangular compartment. (Id. 3:44-45; Fig. 4).
5. Martin also describes that the coffee cartridge (35) overlies an
opening (60) in the bottom (58) of the inner cup portion (47) through which
the coffee extract drips downwardly to flow to the outer cup portion (38)
below it. (Id. 3:46-50; Figs. 3, 4).
6. Martin describes that the inner cup portion (47) is arranged to be
removably mounted in the outer cup portion (38) by a spring wire frame
(48), formed of a suitable material such as stainless steel. (Id. 3:25-30).
7. Martin also describes an embodiment of the invention in which a
removable diverter plate (63) overlies the discharge opening (60) in the
bottom of the inner cup portion to direct the flow of coffee extract and
promote infusion of the ground coffee. (Id. 1:69-2:1).
8. Patel describes a brew basket for a coffee-making machine to hold
ground coffee through which water is to pass. (Patel Title).
9. Patel figure 1 is reproduced below:

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{Figure 1 shows a perspective view of a brew basket
of the invention. (Id. 2:57).}

10. Patel describes that the basket preferably includes a base having
an interior surface with “a plurality of generally radially extending fins” (42)
i.e., raised projections, some of which extend upwardly along the side wall
(16). (Id. 2:15-18; 3:25-27).
11. Patel also describes that it is preferred that a screen (46) is
positioned within the basket member adjacent to the raised projections. (Id.
2:18-19).
PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR International Co. v. Teleflex Inc., 127 S. Ct.
1727, 1734 (2007).
ANALYSIS
I. The Examiner’s Rejection
Claims 1, 3-13 and 16-23 stand rejected under 35 U.S.C. § 103(a)
over the combination of Martin and Patel. Specifically, the Examiner found
that Martin describes a coffee brewer comprising a removable insert
including an outer cup portion 38 and an inner cup portion 47 having a
bottom 58 with an exit hole 60, and a side wall that defines a compartment.
(Final Rejection, Oct. 23, 2006, p. 2). The Examiner also found that Martin
describes a coffee cartridge 37 received within the inner cup portion, which
portion is attached to the outer cup portion by arms 51, 53. (Id.).
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The Examiner found that Patel describes a brew basket having
elongated raised projections 42 which extend from an exit hole to a side wall
of a brew basket. (Final Rejection, p. 2). The Examiner also found that
Patel discloses that some of the projections extend upwardly along the side
wall. (Id.).
According to the Examiner, it would have been obvious to a person of
ordinary skill in the art at the time of the invention “to provide the inner cup
portion of Martin with the projections disclosed in Patel” to provide support
for the coffee cartridge along the side wall and to direct the brewed beverage
to the exit hole. (Id.).
II. The Appellant’s Contentions
A. Claims 1, 3-4, 6-13, 16-17 and 19-21
The Appellant asserts that the Examiner erred in rejecting claims 1, 3-
4, 6-13, 16-17 and 19-21 as obvious over Martin and Patel because “[i]t is
not obvious to employ a projection on a bottom of the pan 47 of Martin.”
(App. Br. 4).
Claim 1 recites that “the bottom includes at least one raised projection
that contacts a coffee cartridge received in the compartment.”
According to the Appellant, “a disclosed purpose of Martin would be
ruined as the projection would prevent the package 35 from sealing around
the opening 60 of the pan 47.” (App. Br. 4; Reply Br. 1) (Martin 1:48-52;
2:13-18).
First, we observe that no persuasive evidence is put forth in support of
this attorney argument. Moreover, we observe that the references
themselves refute this contention. Martin has a diverter plate 63 and screw
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64 which act to allow water to flow under the cartridge. (Martin, Fig. 4,
reproduced below).

Martin describes the diverter plate 63 and screw 64 as making it
possible to “direct the flow of the coffee extract that all of the ground coffee
36 in the package 35 is infused by hot water” (Martin 3:69-71). As this
arrangement projects from the floor of the pan, we are not persuaded by the
Appellant’s contention that the purpose of Martin would be “ruined” by the
addition of the projections of Patel.
In any event, a prior art reference must be considered for everything it
teaches by way of technology and is not limited to the particular invention it
is describing and attempting to protect. EWP Corp. v. Reliance Universal
Inc., 755 F.2d 898, 907 (Fed. Cir. 1985), cert. denied, 474 U.S. 843 (1985).
The intended purpose of Martin need not be preserved. The use of patents as
references is not limited to what the patentees describe as their own
inventions or to the problems with which they are concerned, as they are a
part of the literature and are relevant for all they contain. In re Heck, 699
F.2d 1331, 1333 (Fed. Cir. 1983), citing In re Lemelson, 397 F.2d 1006,
1009 (CCPA 1968).
Accordingly, this first argument is not persuasive.
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The Appellant next contends that Patel does not disclose a bottom of
an inner cup portion that includes a projection that contacts a coffee
cartridge received in a compartment. (Id.). According to the Appellant,
Patel instead describes that a filter contacts the metal screen 46 and not the
fins 42. (Id.; Reply Br. 1).
This argument is also not persuasive as it does not take into account
the knowledge of one of ordinary skill in the art. See In re Sovish, 769 F.2d
738, 743 (Fed. Cir. 1985).
Patel describes that:
The screen 46 and the fins 42 serve to space the filter from the base 14
and sidewall 16 of the basket member to allow hot water to flow
generally through the bed of ground coffee and filter in an unimpeded
manner (Patel, 4:47-50).

Patel is using the fins in the same manner as Martin’s diverter plate.
The plate, screen, and fins were all known to the person of ordinary skill in
the art and used to hold the coffee above the floor of the brew pan. One of
ordinary skill in the art knew the fins were present to serve the function of
spacing the filter from the base. Consequently, we conclude that the
Appellant has not established error on the part of the Examiner in this
regard.
B. Claims 5, 18, 22 and 23
Claims 5, 18, 22 and 23 are rejected over the combination of Martin
and Patel. Each claim includes a limitation that the inner cup portion is
rigidly attached to the outer cup portion by a plurality of arms.
The Examiner found that the spring wire support assembly of Martin
provides arms which provide firm support of the pan within the funnel.
(Ans. 4-5).
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The Appellant challenges the rejection of these claims by contending
that Martin’s pan 47 is not rigidly attached to the funnel 38 by a plurality of
arms, but instead removably attached to the funnel 38. (Id. 4-5).
Specifically, the Appellant asserts that Martin describes a spring wire
frame 48 that allows the pan 47 to be moveably mounted in the funnel 38
and therefore also prevents rigid attachment. (Id. 5). According to the
Appellant, “a spring is resilient and therefore not rigid.” (Reply Br. 2).
This argument is also unpersuasive. We first look to the language of
the claims at issue. They require a rigid attachment by a plurality of arms.
The Appellant has directed us to no persuasive evidence that the welded
wire frame in Martin does not rigidly and firmly support the pan 48.
While Martin describes using “spring wire” for the frame, the wire is
not a “spring” as implied by the Appellant’s argument. Rather, it is a wire
with some give to it. These resilient spring wires are welded to a split ring
49 which engages the funnel and supports the pan. (Martin, 3:25-45). The
resilient welded wire arrangement allows for the insertion and removal of
the pan, but otherwise holds it in place. The Appellant has not shown how
the Examiner erred in finding that this spring supporting the pan in place is a
rigid attachment within the meaning of the claim.
Moreover, the claims do not require the arms themselves to be “rigid,”
as the Appellant suggests. Rather, the plurality of arms are only required to
rigidly attach the cup portions to each other. As discussed, Martin’s springs
accomplish this function and the Appellant has not established otherwise
with persuasive evidence.
Accordingly, we affirm the Examiner’s rejections.
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CONCLUSION OF LAW
On the record before us, the Appellant has not shown error on the part
of the Examiner. It would have been obvious to one of ordinary skill in the
art at the time the invention was made to combine the known elements of the
prior art for their known functions.
DECISION
The Rejection of claims 1, 3-13 and 16-23 under 35 U.S.C. §
103(a) over the combination of Martin and Patel is AFFIRMED.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2006).

AFFIRMED

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