Ex Parte Kirschner et al

Patent Trial and Appeal Board

May 22, 2018

11162178 (P.T.A.B. May. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/162,178 08/3112005
29052 7590 05/24/2018
Eversheds Sutherland (US) LLP
999 PEACHTREE STREET, N.E.
Suite 2300
ATLANTA, GA 30309
FIRST NAMED INVENTOR
Jonathan Kirschner
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
25040-1313 3177
EXAMINER
NGO,LIENM
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
05/24/2018 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):
patentdocket@eversheds-sutherland.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONATHAN KIRSCHNER and LARRY J. MATTSON
Appeal 2016-004 777
Application 11/162,178 1
Technology Center 3700
Before EDWARD A. BROWN, BARRY L. GROSSMAN, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner's
decision rejecting claims 1---6, 8-17, 19, and 20. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 Appellant is the Applicant, The Coca-Cola Company, which, according to
the Appeal Brief, is the real party in interest. App. Br. 2.
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Application 11/162, 178
CLAIMED SUBJECT MATTER
Claims 1, 11, and 15 are independent, with claims 2---6, 8-10, 12-14,
16, 1 7, 19, and 20 depending from claim 1, 11, or 15. Claim 1 is illustrative,
and is reproduced below:
1. A material dosing system, comprising:
a brewable material source with a plurality of brewable
material doses therein;
a dosing block;
the dosing block comprising a first aperture positioned on
a first side of the dosing block and a second aperture positioned
on a second side of the dosing block;
the dosing block further comprising a sliding plate
positioned between the first side and the second side, the sliding
plate comprising a dosing aperture movable between the first
aperture and the second aperture; and
a coupling connecting the brewable material source and
the first aperture of the dosing block;
the coupling comprising a reverse taper expanding in the
direction of the dosing block for a dose of the brewable material
to flow therethrough.
REJECTIONS
1. Claims 1---6, 8-17, 19, and 20 are rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
2. Claims 1---6, 8-17, 19, and 20 are rejected under 35 U.S.C. § 112,
second paragraph, as indefinite.
3. Claims 1---6, 8-17, 19, and 20 are rejected under 35 U.S.C. § 102(b)
or, alternatively, under 35 U.S.C. § 103(a), as being unpatentable over
Lowdermilk (US 4,322,017, iss. Mar. 30, 1982).
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4. Claims 1---6, 8-17, 19, and 20 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Greig (US 2,207,120, iss. July 9, 1940) and Koch
(US 5,875,935, iss. Mar. 2, 1999).
5. Claims 1---6, 10-12, 14--17, 19, and 20 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over White (GB 312,771, pub. 1929) and
Sherman (US 6,450,371 Bl, iss. Sept. 17, 2002), Swindler (US 3,193,159,
iss. July 6, 1965), or Dobkin (US 2,358,913, iss. Sept. 26, 1944).
OPINION
Written Description
The Examiner rejects claims 1-6, 8-17, 19, and 20 under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the written description
requirement. Final Act. 2-3. The basis for the rejection is that "[i]n claims
1, 11 and 15, the original specification does not disclose a dose of the
brewable material flowing through the reverse taper and the step of 'flowing
the predetermined amount of the coffee grinds into a reverse taper
coupling'" because "[t]he predetermined amount of the coffee grind[s] is
defined by the dosing aperture size of the dosing block," but "the coffee
grinds enter[] into the reverse taper coupling before ... enter[ing] into a
dosing aperture." Id. at 2. The written description issue, according to the
Examiner, is that "[t]he original specification [does] not disclose[] how a
predetermined amount of the coffee grinds is entered into the reverse taper
coupling because the amount of the coffee grinds has not been dosed" (i.e.,
because the dosing block, which defines the dose/predetermined amount, is
downstream of the reverse taper coupling, that dose/predetermined amount
is not yet metered out at the reverse taper coupling). Id. at 2-3.
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Appellant responds that "[g]iven that the dosing aperture is sized for
the predetermined dose, only that amount can flow through the reverse taper
coupling." App. Br. 7 (citing Spec. i-fi-121, 23). Appellant's explanation is
persuasive.
Paragraph 21 of the Specification explains, for example, that "[ w ]hen
a brewed beverage is desired, the plate 180 slides such that the dosing
aperture 190 is positioned underneath the first aperture 150 of the top side
140 in line with the coupling mechanism 200" and "[a]s the dosing aperture
190 aligns with the first aperture 150, a measure of the ground coffee 120
falls into the dosing aperture 190." Spec. i121. Dosing aperture 190 defines
the dose/predetermined amount of ground coffee. When the ground coffee
falls into dosing aperture 190, a corresponding amount (i.e., the
dose/predetermined amount) passes through reverse taper 225. Accordingly,
the Examiner has failed to establish the asserted lack of written description.
We do not sustain the Examiner's decision to reject the claims as
failing to comply with the written description requirement.
Indefiniteness
The Examiner rejects claims 1-6, 8-17, 19, and 20 under 35 U.S.C.
§ 112, second paragraph, as indefinite. Final Act. 3. The Examiner asserts
that "it is unclear [how] to determine what is a dose of the brewable material
to flow through the reverse taper." Final Act. 3. Appellant disagrees. App.
Br. 8.
Initially, we note that claims 15-17, 19, and 20 do not recite a "dose."
Rather, those claims recite "dosing a predetermined amount of coffee
grinds" and "flowing the predetermined amount of coffee grinds." We
understand the "dose" recited in claims 1---6 and 8-14 as simply another way
of saying a predetermined amount. See, e.g., Spec. i1 21 (describing dosing
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aperture 190, which defines the dose, as having a "size, shape, depth and/or
the diameter ... arranged for the predetermined volume of the ground coffee
120 or other material as required for a particular beverage"). Although the
claims may be broad, the Examiner has not established the alleged lack of
clarity.
We do not sustain the Examiner's decision reject the claims as
indefinite.
Anticipation/Obviousness-Lowdermilk
Although this rejection is based on anticipation and, alternatively,
obviousness over Lowdermilk, we note there is no discussion of any
limitation potentially missing from Lowdermilk, or a proposed modification
to Lowdermilk's teachings. The Examiner cites Lowdermilk as disclosing a
"coupling comprising a reverse taper 19 expanding in the direction of the
dosing block for the brewable material to dose flowing therethrough." Final
Act. 4. Appellant argues that Lowdermilk "lacks the limitation of the
coupling having a reverse taper expanding in the direction of the dosing
block for a dose of brewable material to flow therethrough" and, instead,
shows a solid structure in which the coffee grinds flow around instead of
through." App. Br. 9. The Examiner does not dispute that Lowdermilk's
reverse taper 19 is solid, but responds that Appellant's argument "is not
found persuasive because Lowdermilk ... discloses ... a material dosing
system comprising a coupling 11 having a reverse taper 19 expanding in the
direction of a dosing block 10 for a brewable material (coffee grinds) to flow
therethrough (the coupling)." Ans. 4.
Claims 1 and 11 each recite "the coupling comprising a reverse taper
expanding in the direction of the dosing block for a dose of the brewable
material to flow therethrough." The basis for the Examiner's rejection is a
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Application 11/162, 178
construction that does not require the brewable material to flow through the
reverse taper, but, instead, only requires the brewable material to flow
through some part of the coupling, which could be the reverse taper or
between an outer surface of the reverse taper and another part of the
coupling. See Ans. 4--5 ("The limitation [that] the reverse tapper is not a
solid structure and the brewable material flow[ s] through or into the reverse
taper ... is not required in the claim[ s]. ").
Initially, we disagree that the broadest reasonable interpretation of the
claim is one that does not require that the brewable material flow through
the reverse taper. Not only does the plain language of claims 1 and 11
mandate that the brewable material flow through the reverse taper, but a
reading to the contrary would not be consistent with the Specification. The
Specification explains, for example, that the purpose of the reverse taper is
to "ensure[] there is no bridging of the ground coffee 120 such that all of the
coffee travels into the dosing aperture 190" and to "ensure[] that there is
substantially consistent pressure on the ground coffee 120 or other material
to ensure repeatable weights." Spec. i-f 19. The Examiner offers no
explanation, and we do not see, how flowing the brewable material on the
outer surface of the reverse taper is consistent with this objective.
Although included in the rejection of claims 1 and 11, there is no
explanation provided by the Examiner, in the Final Office Action or the
Answer, as to how Lowdermilk teaches "flowing the predetermined amount
of the coffee grinds into a reverse taper coupling," as required by method
claim 15. Indeed, as discussed above, the Examiner acknowledges that
limitation is not disclosed in Lowdermilk. See Ans. 4--5.
Because the claims require that the brewable material flow through
the reverse taper, and the Examiner acknowledges that the asserted
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references do not teach such an arrangement, we do not sustain the
Examiner's decision to reject the claims as either anticipated by or obvious
over Lowdermilk.
Obviousness-Greig/Koch and White/Sherman/Swindler/Dobkin
The Examiner's rejection based on the combination of Greig and
Koch, as well as that based on the combination of White and Sherman,
Swindler, or Dobkin, is insufficient for the same reasons explained above
with respect to the rejection based on Lowdermilk alone. See Final Act. 5-
6; Ans. 4--5. Similar to the rejection based on Lowdermilk alone, in the
rejection based on Greig and Koch, as well as that based on the combination
of White and Sherman, Swindler, or Dobkin, the Examiner acknowledges
that the asserted references do not teach a reverse taper that a brewable
material can flow through, which is required by the claims as explained
above. See Ans. 4--5.
Accordingly, we do not sustain the Examiner's decision to reject
claims 1---6, 8-17, 19, and 20 over Greig and Koch or claims 1-6, 10-12,
14--17, 19, and 20 over White and Sherman, Swindler, or Dobkin.
DECISION
We REVERSE the Examiner's decision to reject claims 1-6, 8-17,
19, and 20.
REVERSED
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