Ex Parte Standaert et al

Patent Trial and Appeal Board

Jul 30, 2018

14362746 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/362,746 06/04/2014
23373 7590 08/01/2018
SUGHRUE MION, PLLC
2100 PENNSYLVANIA A VENUE, N.W.
SUITE 800
WASHINGTON, DC 20037
FIRST NAMED INVENTOR
Geert Norbert R. Standaert
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.
Q212220 4301
EXAMINER
NGUYEN, THANH H
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
PPROCESSING@SUGHRUE.COM
sughrue@sughrue.com
USPTO@sughrue.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEERT NORBERT R. STANDAERT and IMAR VANDEBRIEL
Appeal2017-004980
Application 14/362,746
Technology Center 1700
Before BRADLEY R. GARRIS, WESLEY B. DERRICK, and
JANEE. INGLESE, Administrative Patent Judges.
DERRICK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134 from the Examiner's
maintained rejection under 35 U.S.C. § 103(a) of claims 1-3, 5, 7, 9-12, 14,
and 21-24. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
1 Appellant, Cardiff Group, N aamloze Vennootschap, is identified as the real
party in interest. Appeal Br. 2.
Appeal2017-004980
Application 14/3 62,746
CLAIMED SUBJECT MATTER
The subject matter of the claims on appeal relates to the combination
of a container for a liquid foodstuff and a quantity of propellant to put the
container under pressure. Specification filed June 4, 2014 ("Spec."),
Abstract.
Claim I-the sole independent claim-is representative.
1. Combination of a container (1) for a liquid foodstuff and
a quantity of propellant (2) to put the container (1) under
pressure in order to make the foodstuff flow out of the container
(1) via an opening (11 ), wherein:
at a temperature of 5°C the propellant (2) has a vapour
pressure greater than 115 kPa and at a temperature of 25°C has
a vapour pressure of less than 1000 kPa,
the container ( 1) comprises a rigid outer container ( 5) and
a flexible inner container ( 6), whereby the container ( 1) is
configured to be placed under pressure through at least a part of
the quantity of propellant (2) being within the outer container
(5), and
at least a part of the quantity of propellant (2) is in the
space between the inner container ( 6) and the outer container
(5).
Appeal Brief filed June 28, 2016 ("Appeal Br."), 13 (Claims App'x).
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Application 14/3 62,746
REJECTIONS
Claim 14 stands rejected under 35 U.S.C. § 112 (pre-AIA), second
paragraph.
The claims stand rejected under 35 U.S.C. § I03(a) as follows:
Claims 1-3, 7, 9-11, 14, 22, and 23 over Bayne2 in view ofKirimli, 3
as evidenced by Chien-Ping4;
Claims 5, 21, and 24 over Bayne, in view ofKirimli, as evidenced by
Chien-Ping, and in further view ofElkins, 5 as evidenced by Zhu6;
Claim 12 over Bayne, in view of Kirimli, as evidenced by Chien-Ping,
and in further view of Peirsman 7;
Claims 1-3, 5, 7, 9-11, 14, and 21-24 over Kirimli, in view of Bayne
and Elkins, as evidenced by Chien-Ping; and
Claim 12 over Kirimli, in view of Bayne and Elkins, as evidenced by
Chien-Ping, and in further view of Peirsman.
DISCUSSION
We have reviewed the maintained grounds of rejection set forth by the
Examiner, Appellant's arguments, and the Examiner's response. On this
2 Bayne, US 3,613,954, issued October 19, 1971.
3 Kirimli et al., US 2008/0105711 Al, published May 8, 2008.
4 Chien-Ping Chai Kao & Ralph N. Miller, Vapor Pressures of
Hexafluoroethane and Octafluorocyclobutane, 45 J. CHEM. ENG. DATA 295-
97 (2000) ("Chien-Ping").
5 Elkins, Chlorofluorocarbons (CFCs), Earth System Research Library, at
https://web.archive.org/web/20080311214646/http:l/www.esrl.noaa.gov/gm
d/hats/publictn/elkins/cfcs.html (archived March 11, 2008).
6 Ming-Shan Zhu et al., Experimental Study on Vapor Pressure of HFC-
l 34a, 1 J. THERMAL SCIENCE 80-82 (1992).
7 Peirsman et al., WO 2011/120883 Al, published October 6, 2011.
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Application 14/3 62,746
record, we summarily affirm the indefiniteness rejection of claim 14 and
affirm the obviousness rejections of claims 1-3, 5, 7, 9-12, 14, and21-24.
Indefiniteness
8
In rejecting claim 14 for indefiniteness, the Examiner finds that there
is insufficient antecedent basis for "the drink" recited in claim 14. Final Act.
2; Ans. 2. Appellant does not contest the rejection. Appeal Br. 7.
In the absence of any argument, we are unpersuaded of reversible
error and, therefore, we summarily affirm the indefiniteness rejection of
claim 14.
Obviousness
Appellant argues the rejections grounded on Bayne in view of Kirimli
and those grounded on Kirimli in view of Bayne and Elkins on the basis of
claim 1. Appeal Br. 7-11. Appellant relies on the dependency of claims 2,
3, 5, 7, 9-12, 14, and 21-24 from claim 1. We decide the appeal as to all
claims on the basis of claim 1.
Bayne in view of Kirimli
The Examiner relies on Bayne for teaching "a combination of a [rigid]
container for liquid foodstuff ... and a quantity of propellant (i.e. liquefied
fluorocarbon gas) to put the container under pressure" and the use of
octafluorocyclobutane as the propellant. Ans. 3 ( citing Bayne, Abstract,
col. 2, 11. 24--27). 9 The Examiner finds that Bayne "does not teach a
8 In this discussion, we refer to the Specification, the Final Office Action
dated October 28, 2015 ("Final Act."), the Appeal Brief, and the Examiner's
Answer dated November 18, 2016 ("Ans.").
9 Chien-Ping is cited as evidence that octafluorocyclobutane meets the
recited pressure characteristics recited in the claim (Final Act. 3; Ans. 3),
which are not contested by Appellant (generally Appeal Br.).
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container that comprises a flexible inner container, whereby the container is
configured to be placed under pressure through at least part of the quantity
of propellant being within the outer container." Id. (citing Bayne, col. 2,
11. 24--27).
The Examiner relies on Kirimli for teaching
a container comprising a rigid outer container ... and a flexible
inner container ... whereby the container is configured to be
placed under pressure through at least part of the quantity of
propellant being within the outer container ... and at least a
part of the quantity of propellant is in the space between the
inner container and the outer container.
Ans. 3 (citing Kirimli, Figs. 1, 2, ,r,r 57-58). The Examiner further finds
Kirimli to teach that the "inner flexible bag holding the product is used to
prevent contact between the beverage product and the propellant" in
disclosing a container configured "so that the gas emitted from the
pressuring [sic] canister remains within the system and is not lost." Id. at 3-
4 ( citing Kirimli ,r 62).
The Examiner concludes that "it would have been obvious to one of
ordinary skill in the art to modify the rigid outer container [ of Bayne] with a
flexible inner container [as taught by Kirimli] to separate the drink product
from the propellant which can further prevent changes in flavor." Ans. 4.
Appellant argues that Kirimli' s system relied on by the Examiner "is
unsuitable for withstanding significant pressures, such as those necessary for
holding and dispensing beer, as in the present invention and in Bayne."
Appeal Br. 7-8. Appellant relies on Kirimli's disclosure that its "container
can be subject to bulging when pressurized" (id. at 8 (citing Kirimli ,r 25))
and contends that "[t]he system of Kirimli would simply not be able to
withstand the pressure and fail/explode" (id. at 9).
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Appellant further argues that the Examiner's rejection is "based on an
improper hindsight analysis" in that it "pick[ s] and choos[ es] elements from
Kirimli, while disregarding the other teachings in Kirimli." Id. at 9.
Appellant contends that "the system of Kirimli is not intended to operate
under the pressures recited in [ c ]laim 1" and that "[ o ]ne of ordinary skill in
the art would understand that the inner bag of Kirimli could suffer similar
failures as the outer container if subject to high pressures." Id. Appellant
further contends that Kirimli' s disclosure of using more rigid material to
resist bulging is limited to a container that does not include a bag. Id.;
Kirimli ,r,r 25-26.
Appellant's arguments grounded on Kirimli's container being "subject
to bulging when pressurized" and "not be[ing] able to withstand the
pressure" fail to address the combination as set forth by the Examiner and
are, thus, unpersuasive of reversible error. "Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references." In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413,
425 (CCP A 1981) ("The test for obviousness is ... what the combined
teachings of the references would have suggested to those of ordinary skill
in the art.").
Appellant's arguments further fail because "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" in
overcoming the difficulties within their level of skill. KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398,418 (2007). Such inferences and creative steps
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would include using a flexible inner container and rigid outer container of
adequate strength such that they would not fail or explode. See also Ans. 11
("it would be within the technical grasp ... to modify either the structural
properties of the bag and the rigid outer container to provide proper counter-
pressure for storing and dispensing the liquid foodstuff, especially since
Bayne recognizes this resolution with beer (see Column 1 lines 8-12).").
Appellant's argument that the Examiner relies on improper hindsight
is unpersuasive because it fails to identify any deficiency in the rejection. If
the Examiner has articulated a reason having rational underpinnings for
making a proposed combination of prior art teachings, then that articulated
reasoning demonstrates the combination is not based on hindsight. See In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (requiring "some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness") (cited with approval in KSR, 550 U.S. at 419).
Kirimli in view of Bayne and Elkins
The Examiner again relies on Kirimli for its disclosure of a container
comprising a rigid outer container and a flexible inner container wherein a
quantity of propellant is in the space between the inner container and the
outer container. Ans. 8 (citing Kirimli, Figs. 1, 2, ,r,r 57-58); see also id. at
7 ( citing Kirimli ,r,r 10-12 ). The Examiner notes that while "Kirimli teaches
propellants that are of a 'food-grade' type ... [it] does not specifically teach
propellants" according to the claims. Id. ( citing Kirimli ,r 28). The
Examiner further finds that there is "a reasonable expectation that
[Kirimli' s] container can withstand 'significant pressure."' Final Act. 11.
The Examiner again relies on Bayne for its disclosure of the
"combination of a [ rigid] container for liquid foodstuff ... and a quantity of
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propellant (i.e. liquefied fluorocarbon gas) to put the container under
pressure" and the use of octafluorocyclobutane as the propellant. Ans. 7
( citing Bayne, Abstract). The Examiner notes that Bayne discloses
additional propellants having the claimed vapor pressure properties. Id.
The Examiner relies on Elkins for teaching that hydrofluorocarbons
should be used in the stead of chlorofluorocarbons. Id. (citing Elkins 3).
The Examiner concludes that "it would have been obvious to one of
ordinary skill in the art to use propellants taught by Bayne as suitable food-
grade type propellants" and that, for the chlorofluorocarbon propellants
taught by Bayne, that "it would have been obvious ... to alternatively use
the claimed [hydrofluorocarbon] compounds as a substitution of equivalent
knowns and for the purpose of reducing ozone depletion." Ans. 7-8.
Appellant contends that Kirimli discloses two different embodiments
of containers, the first-relied on by the Examiner-having a bladder or bag
and a second that does not include an inner bladder or bag. Appeal Br. 10
( citing Kirimli ,r,r 19-20, 25-26). Appellant argues that "one of ordinary
skill in the art would not have modified the container of the first
embodiment" because Kirimli teaches use of the second embodiment for use
with higher pressures. Id.
Appellant further contends that Kirimli teaches that the second
container "does not include the inner bladder to avoid bulging of the
container." Id. (citing Kirimli ,r,r 25-26). Grounded on this contention,
Appellant argues that "[ o ]ne of ordinary skill in the art would understand
that modifying this second container to include the inner bladder would
increase the potential of bulging of the outer container." Id. at 10-11.
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Appellant's arguments do not persuade us that the Examiner erred in
determining that one of ordinary skill armed with the cited references would
have been led to the claimed subject matter within the meaning of 35 U.S.C.
§ 103. As explained by the Examiner, if needed, strengthening the outer
rigid container of a container having an inner bladder would have been
within the technical grasp to provide proper counter-pressure without
bulging. Ans. 12-13; see also Final Act. 11.
As to paragraphs 25 and 26 of Kirimli teaching that the second
container "does not include the inner bladder to avoid bulging of the
container" (Appeal Br. 10), we find the contention unpersuasive of
reversible error because it fails to squarely address that strengthening the
outer container would also address the concerns as to bulging (Final Act.
11 ). Further, with regard to Kirimli teaching that the second, rigid container
without an inner bladder is preferred for use at higher pressures, a
reference's disclosure is not limited to its preferred embodiments, but is
available for all that it discloses and suggests to one of ordinary skill in the
art. In re Lamberti, 545 F.2d 747, 750 (CCPA 1976).
For the reasons above, we are unpersuaded of reversible error in the
Examiner's obviousness rejections of independent claim 1. As Appellant
relies on the dependency from claim 1 in arguing for claims 2, 3, 5, 7, 9-12,
14, and 21-24, we are likewise unpersuaded of reversible error in the
rejections of these claims.
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DECISION
The rejection under 35 U.S.C. § 112 of claim 14 is AFFIRMED.
The rejections under 35 U.S.C. § 103 of claims 1-3, 5, 7, 9-12, 14,
and 21-24 are AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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