Ex Parte Ziesel

Board of Patent Appeals and Interferences

Feb 4, 2008

10233867 (B.P.A.I. Feb. 4, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte LAWRENCE B. ZIESEL
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Appeal 2007-2786
Application 10/233,867
Technology Center 3700
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DECIDED: February 4, 2008
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Before TONI R. SCHEINER, ERIC GRIMES, and RICHARD M. LEBOVITZ,
Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1, 3-16, and 20-28.1 The claims stand rejected as anticipated by and
obvious over the prior art. We have jurisdiction under 35 U.S.C. § 6(b). We
reverse.

1 Claims 17-19 are also pending, but are merely objected to.
Appeal 2007-2786
Application 10/233,867

STATEMENT OF THE CASE
The present invention is directed to a dispensing apparatus for mixing
a first fluid (e.g., carbonated water) with one or more second fluids (e.g.,
syrups) to form a third fluid (e.g., a flavored soft drink), wherein the
apparatus includes a first fluid pathway, and a plurality of replaceable
second fluid modules surrounding the first fluid pathway, wherein each
replaceable second fluid module has a plurality of outlet holes.
Claim 1 is representative, and reads as follows:
1. A dispensing nozzle for mixing a first fluid and one or
more second fluids to form a third fluid, comprising:
a first fluid pathway; and
a plurality of replaceable second fluid modules
surrounding at least in part said first fluid pathway;
wherein each of said plurality of replaceable second fluid
modules comprises a plurality of outlet holes.

The claims stand rejected as follows:
1. Claims 1, 4, 7, 9-13, 15, 16, and 20-28 under 35 U.S.C. § 102(b) as
anticipated by Scalera (U.S. Patent 4,392,588, July 12, 1983).

2. Claims 3, 5, 6, 8, and 14 under 35 U.S.C. § 103(a) as unpatentable over
Scalera.

Scalera describes a nozzle assembly for a beverage dispensing
machine of the type “designed to deliver a variety of beverages of different
flavors which may be either still or carbonated water . . . [wherein] the
flavoring constituent and the water constituent are mixed directly in the cup
in which the beverage is delivered to the customer” (Scalera, col. 1, ll. 15-
21). The various flavoring constituents are dispensed from “a plurality of
respective syrup pumps” (Scalera, col. 2, l. 45), through individual hoses
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Application 10/233,867

attached to “nozzles [which] may be easily removed and replaced” (Scalera,
col. 2, l. 3).
Both of the rejections depend, at least in part, on the Examiner’s
interpretation of the configuration of Scalera’s nozzles and hoses, so we will
address the rejections together.
Figures 2 and 3 of Scalera are reproduced immediately below:

Figures 2 and 3 depict partially exploded views of Scalera’s nozzle
assembly (Scalera, col. 2, ll. 25-29). Nozzle assembly 10 “includes a hollow
inverted frustro-conical body 12 . . . having a base 14, a sidewall 18 and a
rim 16. . . . [T]he inner surface of the wall 18 [is formed] with a plurality of
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Appeal 2007-2786
Application 10/233,867

grooves 20 of generally hemicylindrical cross section. . . . Each groove 20
receives a cylindrical nozzle 24 having a truncated conical head 26 for
receiving one end of a hose 28” (Scalera, col. 2, 56-66). “The nozzles 24 are
releaseably held in their respective recesses 20 by generally rectangular
metal clamps 34, each having an internally threaded opening to receive a
screw 36. Screws 36 extend through slots 38 formed in sidewall 18 . . . By
loosening screws 36, the nozzles 24 can be easily removed from and re-
inserted into respective grooves 20 for cleaning or replacement” (Scalera,
col. 3, ll. 8-16). “[T]he inner diameter of the nozzle used is determined by
the viscosity of the syrup with which it is associated . . . nozzles having a
larger internal diameter may be used for heavier syrups” (Scalera, col. 3, ll.
3-7).
The Examiner contends that Scalera discloses “a nozzle 10, [a] first
fluid pathway 42 connected to a water source . . . [and] a plurality of
replaceable second fluid modules 28, 24, 34, 36 . . . having a plurality of
circular outlet holes” (Ans. 3). As shown in Scalera’s Figures 2 and 3
above, numbers 28, 24, 34, and 36 represent a hose, a cylindrical nozzle, a
metal clamp, and a screw, respectively.
Appellant contends that Scalera fails to “show a plurality of
replaceable second fluid modules . . . with each of the second fluid modules
including a plurality of outlet holes” (Br. 7). Rather, “each of the nozzles 24
clearly extends independently from the hose 28 to a single outlet” (id.). In
other words, “each of the nozzles . . . is an independent structure with a
single outlet that extends through the body” (id.). Appellant argues “[i]f
each nozzle 24 . . . is somehow considered a ‘module’, then the module does
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Application 10/233,867

not have a plurality of outlet holes. Rather, only a single outlet is shown for
each ‘module.’ Alternatively, if the entire body 12 is somehow considered
the ‘module’ with the individual nozzles being the ‘outlet holes’, then
Scalera does not show a plurality of second fluid modules surrounding the
first fluid pathway. Rather, Scalera would only have [a single module with]
a plurality of outlet holes surrounding a fluid pathway” (id. at 7-8).
Appellant has the better argument. Each of Scalera’s nozzles 24 is
interchangeable with, and functionally independent of all the other nozzles,
and is individually replaceable. Thus, we find that each of Scalera’s nozzles
24 is equivalent to a fluid “module.” Moreover, each nozzle 24 connects at
one end to a single supply hose 28, and terminates at the other end in a
single outlet hole. Thus we find that each of Scalera’s nozzles is equivalent
to a fluid module with a single outlet hole, rather than a plurality of outlet
holes.
As each of the rejected claims requires a plurality of replaceable
second fluid modules, wherein each replaceable second fluid module has a
plurality of outlet holes, and Scalera does not teach or suggest a structure
that meets this limitation, we find that the Examiner has not established an
adequate factual basis for rejecting the claims as either anticipated by, or
obvious over the prior art.
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Application 10/233,867

Accordingly, the rejection of claims 1, 4, 7, 9-13, 15, 16, and 20-28,
under 35 U.S.C. § 102(b), and the rejection of claims 3, 5, 6, 8, and 14 under
35 U.S.C. § 103(a), are reversed.

REVERSED

saj

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