Ex Parte Green

Board of Patent Appeals and Interferences

Aug 7, 2008

10885362 (B.P.A.I. Aug. 7, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte CHARLES BRADLEY GREEN,
Appellant

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Appeal 2008-3518
Application 10/885,3621
Technology Center 1700
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Decided: August 7, 2008
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Before ADRIENE LEPIANE HANLON, THOMAS A. WALTZ, and
MARK NAGUMO, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL

1 Application 10/885,362 filed 6 July 2004, titled Coffee and Tea Dispenser,
referred to as the “362 Specification.” The real party in interest is listed as
The Coca-Cola Company (Appeal Brief filed 20 December 2006, “Br.” at 1).

Appeal 2008-3518
Application 10/885,362

A. Introduction
Charles Bradley Green (“Green”) timely appeals from the rejection of
claims 1-7, 9, 10, and 52, which are all of the pending claims. (Br. 2.) We
AFFIRM.
The claimed subject matter relates to a coffee dispenser. Claims 1
and 52 are representative and read as follows:
Claim 1:
A beverage system for brewing a beverage from a beverage
material and a source of hot, pressurized water, comprising:
a rotatable plate;
a rigid plastic single use cartridge with the beverage
material therein;
said rigid plastic single use cartridge removable from
said plate and disposable;
an airtight sealing layer surrounding the beverage
material; and
an injection system for injecting the hot, pressurized
water into said cartridge so as to brew the beverage from
the beverage material.
(Claims App., Br. 12; indentation added.)
Claim 52:
A beverage system for brewing a beverage from a beverage
material and a source of hot, pressurized water, comprising:
a rigid plastic non-fixed cartridge with the beverage
material therein;
an insert positioned within and enclosing a top end of the
rigid plastic non-fixed cartridge;
an airtight sealing layer surrounding the beverage
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Application 10/885,362

material; and
an injection system for injecting the hot, pressurized
water into said cartridge so as to brew the beverage from
the beverage material.
(Claims App., Br. 13; indentation added.)
The Examiner has maintained the following grounds of rejection:
A1. Claim 1 stands rejected under 35 U.S.C. § 103(a) in view
of the combined teachings of Vicker2 and Piana.3 (Ans. 3.)
A2. Claims 2-7 and 10 stand rejected under
35 U.S.C. § 103(a) in view of the combined teachings of
Vicker, Piana, and Favre.4 (Ans. 4-5.)
A3. Claim 9 stands rejected under 35 U.S.C. § 103(a) in view
of the combined teachings of Vicker, Piana, and Schaeffer.5
(Ans. 5.)
B1. Claim 52 stands rejected under 35 U.S.C. § 103(a) in
view of the combined teachings of Brown6 and Cordone.7
(Ans. 3-4.)

2 Wayne Vicker, Automatic Coffee or Like Beverage Making Machine, U.S.
Patent 5,134,924 (1992).
3 Guiseppe S. Piana, Disposable Cartridge for Use in Beverage Extracting
and Dispensing Machines, U.S. Patent 4,471,689 (1984).
4 Eric Favre, Apparatus for the Preparation of an Edible Liquid, U.S.
Patent 5,472,719 (1995).
5 Jacques Schaeffer and Alfred Yoakim, Cartridge Having Sheared Thinned
Areas for Promoting Opening for Beverage Extraction, U.S.
Patent 5,948,455 (1999).
6 William F. Brown, Beverage Apparatus, U.S. Patent 2,283,967 (1942).
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B2. Claim 52 stands rejected under 35 U.S.C. § 103(a) in
view of the combined teachings of Cordone and Brown.
(Ans. 4.)
Rejections Involving Vicker
The Examiner finds that Vicker teaches all the limitations of claim 1
but for a plastic brewing cartridge. (Ans. 3.) In particular, the Examiner
finds that rigid cartridge 30 is removable, and that the system includes an
eccentric cam 60 for maneuvering the injection system. (Id.) The Examiner
relies on Piana for the teaching of a plastic brewing cartridge, and argues
that it would have been obvious to modify the cartridge taught by Vicker
with the cartridge taught by Piana. Similarly, the Examiner finds that it
would have been obvious to combine the teachings of Favre and Schaeffer
with those of Vicker to arrive at embodiments within the scope of the
claimed invention. (Ans. 4-5.)
Green argues that all of the rejections over Vickers fail because
Vickers does not teach the limitation of “a plastic single use cartridge that is
removable from the [rotatable] plate and disposable.” (Br. 7.) In particular,
Green reproduces Figure 9, which is shown below:

7 Carlo Cordone and Corso Garibaldi, A Disposable Cartridge for Use in
Machines for Extraction and Dispensing of Hot Drinks, WO 93/17,932
(1993).
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Application 10/885,362

{Vicker Figure 9 is said to show cartridge 30 in removable plate 26 of a
coffee dispenser.}8
of Vicker and argues:
As is shown, the pocket 30 is part of the beverage system
of Vicker as opposed to a plastic single use cartridge that is
removable and disposable as is claimed herein. Although the
pocket 30 is shown in Fig. 9 as apparently being separable from
the rotating plate, there is no disclosure in the specification of
Vicker as to whether the pocket is removable or not. As such,
Vicker simply does not show the limitations of a plastic single
use cartridge that is removable and disposable.
(Br. 8, underlining added.) Moreover, according to Green, even if the
pocket 30 could be modified to be removable and disposable, there is no
suggestion in the prior art that such a pocket would be desirable. (Br. 9.)
With respect to claims 6 and 7, which depend from claim 1, Green
argues for the first time in its principal brief on appeal that “[t]he cited
references simply do not show the use of an eccentric cam or the specific

8 The text in curly braces following the Figures is provided to ensure
compliance with section 508 of the U.S. Rehabilitation Act for publication
of this Decision on the USPTO website pursuant to the Freedom of
Information Act. It is not part of the Decision.
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Application 10/885,362

pressures produced herein. The specific pressure range is significant in that
the plastic pod can support such pressures without excessive deformation.”
(Br. 11.)
In the Reply Brief,9 Green argues only that “[t]here is absolutely no
disclosure in the reference [Vicker] itself of the pocket being removable or
disposable.” (Reply Br. 1-2.)
Green does not, in either its principal brief on appeal nor in its reply
brief, dispute any of the Examiner’s findings as to the teachings of the
secondary references.
Rejections over Brown
The Examiner finds that Brown teaches all limitations of claim 52 but
for a rigid plastic non-fixed beverage cartridge. (Ans. 3-4.) In particular,
the Examiner finds that Brown teaches “an airtight sealing layer 14, 15
surrounding the beverage material, the layers including a hardened gelatin
coating; and an injection system 19 for injecting hot, pressurized water into
the cartridge.” (Ans. 4.) The Examiner relies on Cordone for its teaching of
the missing limitation, and argues that it would have been obvious to use
that rigid plastic non-fixed beverage container in the brewing system taught
by Brown, or to modify the cartridge taught by Cordone with the airtight
sealing layers taught in Brown, together with the injection system taught by
Brown. (Id.)
Green argues only that “Brown simply does not show the claimed
airtight sealing layer surrounding the beverage material.” (Br. 10.) More

9 Reply Brief filed 18 April 2007 (“Reply Br.”).
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Application 10/885,362

particularly, Green argues that the pervious filter paper [elements 14 and 15]
is clearly not an airtight sealing layer. Accordingly, Green concludes the
Examiner’s rejections must be reversed.
B. Discussion
Claimed subject matter is not patentable if it would have been obvious
to a person having ordinary skill in the art. 35 U.S.C. § 103(a); KSR Int’l
Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007); Graham v. John Deere Co. of
Kansas City, 383 U.S. 1 (1966).
On appeal, the procedural burden is on Green, as the Appellant, to
demonstrate reversible error in the Examiner’s rejections. See, e.g., In re
Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006) (“On appeal to the Board, an
applicant can overcome a rejection [under § 103] by showing insufficient
evidence of prima facie obviousness or by rebutting the prima facie case
with evidence of secondary indicia of nonobviousness.”) (quoting In re
Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998)).
Arguments not timely presented are waived absent a showing of good
cause. 37 C.F.R. § 41.37(c)(1)(vii). In particular, claims not argued
separately stand or fall with the representative claim considered by the
Board of Patent Appeals and Interferences (“Board”). Id.
Vicker
Green’s arguments on appeal are directed, with the exception of
claims 6 and 7, solely to claim 1. Accordingly, all other arguments have
been waived.
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Green’s argument that Vicker does not disclose or suggest a rigid
plastic single use removable disposable cartridge is without merit. The
Examiner found that Vicker teaches pocket 30. As Green noted, “the
pocket 30 is shown in Fig. 9 as apparently being separable from the rotating
plate.” (Br. 8, emphasis added.) Our reviewing court has repeatedly
instructed that “a prior art reference is relevant for all that it teaches to those
of ordinary skill in the art.” In re Fritch, 972 F.2d 1260, 1264 (Fed.
Cir. 1992). We have also been reminded that "[a] person of ordinary skill is
also a person of ordinary creativity, not an automaton." KSR Int'l Co. v.
Teleflex Inc., 127 S.Ct. 1727, 1742 (2007) Green has not directed our
attention to any credible evidence that Vicker teaches the person having
ordinary skill in the art that pocket 30 could not be removed. The absence of
an express teaching in Vicker that pocket 30 is removable does not detract
from the Examiner’s finding that it is removable. Nor does that absence
detract from Green’s statement that pocket 30 appears to be removable. The
weight of the evidence indicates that the person having ordinary skill in the
coffee dispensing device art would have regarded pocket 30 to be an element
that was or could be made to be removable.
Moreover, the characterization of the cartridge as “disposable” does
not suffice to distinguish the claimed invention from what would have been
obvious in view of the combined teachings of Vicker and Piana. Whether or
not a replaceable part is “disposable” is, in the absence of an express
definition of “disposable” that imparts some structural or material limitation,
a matter of intended use. Green has not directed our attention to any
definition or disclosure in the 362 Specification providing some special
structural or compositional definition of the term “disposable.” Nor has
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Green directed our attention to any credible evidence that Vicker teaches the
person having ordinary skill in the art that pocket 30 could not be replaced,
with any necessary modifications, with cartridges taught by Piana. Nor has
Green come forward with credible evidence or argument that the combined
brewing system of Vicker and Piana does not contain a single use,
removable, disposable cartridge.
Finally, Green has not shown error in the Examiner’s argument that
the ordinary worker would have considered using a less costly material as a
reason to make the proposed combination. The Examiner has proposed a
“real world” reason to combine the teachings of the references. As the
Supreme Court explained recently:
When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this
leads to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might
show that it was obvious under § 103.
KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1742 (2007). Green has not
shown that there is no reasonable expectation of success in the proposed
combination. Nor has Green come forward with credible evidence of
unexpected results or other secondary considerations indicative of
patentability.
Regarding claim 6, Green has not shown error in the Examiner’s
repeated findings10 that Vicker teaches an eccentric cam for maneuvering

10 See the Office Action mailed 24 October 2005 at 2; the Office Action
mailed 5 June 2006 at 2; the Office Action mailed 18 September 2006 at 2.
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the injection head. Nor has Green shown error in the Examiner’s finding
that optimizing the pressure would have been a routine matter for one of
ordinary skill in the coffee and tea dispensing art. As the Examiner
indicates, Vicker teaches accommodating various water pressures at column
5, lines 50-65. Moreover, as Green’s specification notes (Spec. 1:27-29),
high pressure systems have long been known to brew espresso. Green has
not indicated that there is any novelty in the pressure range recited in claim 7
for brewing coffee. Nor has Green directed our attention to any credible
evidence that accommodating the recited pressures would have posed any
difficulties or required undue experimentation for a person having ordinary
skill in the relevant arts.
As Green has not shown reversible error in the Examiner’s rejection
of claims 1-7, 9, and 10 in view of the combined teachings of Vickers and
the other references, the Examiner’s rejections are AFFIRMED.
Brown
Green’s only argument against the rejection of claim 52 in view of
Brown and Cordone is that Brown does not teach an airtight sealing layer
surrounding the beverage material. (Br. 10.)11 This is not persuasive
because it is contradicted by Brown in the sentence immediately following
the description of the “pervious wafer liners 14, 15, of filter paper or the
like” that form a coffee-containing packet or cartridge. (Brown 1:52-54.)
Brown states, “[f]or the purpose of holding the flavor and keeping the
material fresh, the entire cartridge may be sealed as by dipping the same in
tasteless gelatin.” (Brown 1:54 to 2:2.)

11 Green does not address the rejection of claim 52 in its Reply Brief.
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E. Summary
In view of the record and the foregoing considerations, it is:
ORDERED that the rejection of claim 1 under
35 U.S.C. § 103(a) in view of the combined teachings of Vicker and Piana is
AFFIRMED;
FURTHER ORDERED that the rejection of claims 2-7 and 10
under 35 U.S.C. § 103(a) in view of the combined teachings of Vicker,
Piana, and Favre is AFFIRMED;
FURTHER ORDERED that the rejection of claim 9 under
35 U.S.C. § 103(a) in view of the combined teachings of Vicker, Piana, and
Schaeffer is AFFIRMED;
FURTHER ORDERED that the rejection of claim 52 under
35 U.S.C. § 103(a) in view of the combined teachings of Brown and
Cordone, taken in either order, is AFFIRMED; and
FURTHER ORDERED that no time period for taking any
subsequent action in connection with this appeal may be extended under
37 C.F.R. § 1.136(a).
AFFIRMED

qsg

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