Ex Parte Vitel et alDownload PDFPatent Trial and Appeal BoardNov 21, 201713151297 (P.T.A.B. Nov. 21, 2017) Copy Citation 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. 13/151,297 06/02/2011 Arnaud VITEL 6898-111716 4650 28289 7590 11/24/2017 THE WEBB LAW FIRM, P.C. ONE GATEWAY CENTER 420 FT. DUQUESNE BLVD, SUITE 1200 PITTSBURGH, PA 15222 EXAMINER STAPLETON, ERIC S ART UNIT PAPER NUMBER 3742 NOTIFICATION DATE DELIVERY MODE 11/24/2017 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): patents @ webblaw. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ARNAUD VITEL, GILLES LEBUFFE, and THIERRY GAILHARD Appeal 2016-002303 Application 13/151,297x Technology Center 3700 Before LINDA E. HORNER, ERIC C. JESCHKE, and ANTHONY KNIGHT, Administrative Patent Judges. KNIGHT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1, 5, 9, and 10.1 2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 According to Appellants, the real party in interest is SEB S.A. Appeal Br. 3. 2 Claims 2—4, 6—8, and 11-15 are withdrawn from consideration in an amendment filed December 3, 2014. Appeal 2016-002303 Application 13/151,297 CLAIMED SUBJECT MATTER The claims are directed to “a brewing device for an espresso-type coffee machine.” Spec. 11. Claims 1 and 10 are independent. Claim 1 reproduced below, is illustrative of the claimed subject matter: 1. A brewing device for an espresso-type coffee machine comprising a brewing chamber for receiving ground coffee, a movably mounted pressure piston in translation with a stroke that extends from an upper retracted position in which the pressure piston is located above the brewing chamber to a lower tamping position in which the pressure piston enters said brewing chamber and a potentiometer controlled by a driving mechanism during the stroke of the pressure piston to measure the tamping position of said pressure piston and to thereby calculate the height of the compressed cake of ground coffee, the driving mechanism only acting on the potentiometer for a portion of the stroke of the pressure piston? Appeal Br. 15 (Claims App.; emphasis added). EVIDENCE RELIED ON BY THE EXAMINER Mikael et al. US 5,259,296 (Mikael) Giannelli US 6,205,909 B1 Nov. 9, 1993 Mar. 27, 2001 3 The italicized texted above is referred to by the Examiner as the “potentiometer claim limitation.” Final Act. 4. 2 Appeal 2016-002303 Application 13/151,297 REJECTION The Examiner made the following rejection: Claims 1, 5, 9, and 10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Mikael and Giannelli. OPINION Regarding independent claim 1, the Examiner finds, inter alia, that Mikael teaches a brewing chamber, a movably mounted pressure piston (brewing piston 39), and a potentiometer that is controlled by a driving mechanism that “only act[s] on the potentiometer for a portion of the stroke of the pressure piston.” Final Act. 3^4; Ans. 7—8. The Examiner cites to Mikael column 3, lines 51—56 as teaching the potentiometer claim limitation. Final Act. 4. The portion of Mikael cited by the Examiner relevant to this decision is reproduced below. When nut 9 moves down on cylindrical guideway 8, a switch 34 is actuated which determines the ground-coffee filling position when the stroke of the brewing piston is not monitored electronically. A disk-shaped means 35 secured at the top of the shaft of gearwheel 11 and a sensor 36 form an incremental transmitter for detecting the number of revolutions and partial revolutions made by gearwheel 11 and thus the axial position of the brewing piston. A linear potentiometer connected to the brewing piston might also be used, for example. Mikael 3:46—56 (emphasis added). Referring to the first sentence of the above-cited passage, the Examiner states “[tjhus, the drive mechanism only 3 Appeal 2016-002303 Application 13/151,297 acts on the switch, disk-shaped means, sensor/potentiometer for a portion of the stroke.” Final Act. 8—9. Appellants respond that “Mikael[,] whether considered alone or in combination with the Giannelli patent, fails to teach or suggest that the driving mechanism only acts on the potentiometer for a portion of the stroke of the pressure piston.” Appeal Br. 12; Reply Br. 2. Further, Appellants argue that the above-cited passage of “Mikael. . . describes ... a linear potentiometer connected to the piston,” but does not teach or suggest that that the “driving mechanism only acts on the potentiometer for a portion of the stroke of the pressure piston.” Appeal Br. 12. Finally, Appellants argue that the above-cited passage of Mikael teaches “the nut/guide way/switch disclosure, disk-shaped means/sensor disclosure, and linear potentiometer disclosure of the Mikael patent are each a disclosure of different examples of the manner in which a brewing piston can be monitored.” Id. at 12—13. Appellants have the better position with regards to Mikael. As Appellants state “[t]hese are each a different example of a manner in which a brewing piston can be monitored ...[.] Mikael [does not teach or suggest] that a driving mechanism only acts on a potentiometer for a portion of the stroke of the pressure piston.” Reply Br. 3. Furthermore, the phrases “when the stroke of the brewing piston is not monitored electronically,” “might also be used,” and “for example” in the above-cited passage of Mikael underscore that Mikael teaches multiple separate embodiments and not a single embodiment having multiple monitoring features. Thus, a preponderance of the evidence fails to support the Examiner’s finding that Mikael discloses, expressly or inherently, the driving mechanism only acting on the potentiometer for a portion of the stroke of the pressure piston, as 4 Appeal 2016-002303 Application 13/151,297 required by claim 1; rather, Mikael discloses three separate embodiments. The Examiner does not rely upon Giannelli to cure the deficiencies of Mikael. Final Act. 5—7. Accordingly, the rejection of claim 1 is not sustained. Claims 5 and 9 Claims 5 and 9 are dependent upon and incorporate all of the limitations of claim 1. Thus, the rejection of claims 5 and 9 based upon Mikael and Giannelli is likewise not sustained. Claim 10 Claim 10 is an independent claim and recites limitations similar to claim 1. Appeal Br. 16 (Claims App.). The Examiner does not offer a different reading of Mikael. Final Act. 4—7, Ans. 7—8. Appellants advance the same convincing argument as that for claim 1. Appeal Br. 11—13, Reply Br. 2-4. Thus, the rejection of claim 10 suffers the same deficiency as the rejection of claim 1 and accordingly, the rejection of claim 10 is not sustained. DECISION The Examiner’s decision to reject claims 1, 5, 9, and 10 under 35 U.S.C. § 103(a) is reversed. REVERSED 5 Copy with citationCopy as parenthetical citation