Ex Parte Ziesel

Patent Trial and Appeal Board

Jul 27, 2018

14265632 (P.T.A.B. Jul. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/265,632 04/30/2014
100612 7590 07/31/2018
Eversheds Sutherland (US) LLP KO
999 Peachtree Street NE
Suite 2300
Atlanta, GA 30309
FIRST NAMED INVENTOR
Lawrence B. Ziesel
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.
25040-5013 1096
EXAMINER
NGO,LIENM
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
07/31/2018 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 LAWRENCE B. ZIESEL
Appeal 2017-011316
Application 14/265,632 1
Technology Center 3700
Before LINDA E. HORNER, STEVEN D.A. McCARTHY, and
EDWARD A. BROWN, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 1, 3-14, 16-20, 31 and 32, which are
all of the pending claims. Final Office Action (March 15, 2017) (hereinafter
"Final Act."). We have jurisdiction under 35 U.S.C. § 6(b).
1 The Coca-Cola Company ("Appellant") is the applicant, as provided by
3 7 C.F .R. § 1.46, and is identified as the real party in interest. Appeal Brief
(May 15, 2017) (hereinafter "Appeal Br."), at 1.
Appeal 2017-011316
Application 14/265,632
The claimed subject matter relates to "multi-flavor or multi-fluid
dispensing nozzle assemblies capable of dispensing a wide number of
different types of fluids." Specification (April 30, 2014) (hereinafter
"Spec.") ,r 101. The Specification describes that current beverage
dispensing nozzles generally mix streams of syrup, concentrate, sweetener,
bonus flavors, other types of flavoring, and other ingredients with water or
other types of diluent by flowing the syrup stream down the center of the
nozzle with the water stream flowing around the outside. Id. ,r 102. The
Specification identifies a desire in the art for a beverage dispensing system
to provide as many different types of flavors of beverages as may be
possible in a footprint that may be as small as possible. Id. ,r 103. The
Specification acknowledges that such dispensing nozzles need to
accommodate fluids with different viscosities, flow rates, mixing ratios,
temperatures, and other variables. Id. ,r 104. The dispensing nozzle
assembly of the application on appeal includes a core module with a diluent
path and a sweetener path, an injector ring with micro-ingredient paths and
macro-ingredient paths surrounding the core module, and a target assembly.
Id. ,I 108.
The Examiner rejected the claims as obvious over the prior art. For
the reasons explained below, we do not find error in the Examiner's
rejections. Accordingly, we AFFIRM.
CLAIMED SUBJECT MATTER
Claims 1 and 16 are the independent claims on appeal. Claim 1 is
illustrative of the subject matter on appeal and is reproduced below with the
pertinent claim language shown in italics.
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Application 14/265,632
1. A dispensing nozzle assembly, comprising:
a core module;
the core module comprising a diluent path and a
sweetener path;
an injector ring surrounding the core module;
the injector ring comprising a plurality of micro-
ingredient paths and a plurality of macro-ingredient paths;
the injector ring comprising an upper injector ring
directly connected to a lower injector ring;
wherein the plurality of micro-ingredient paths comprises
a plurality of micro-ingredient chambers, each with a
micro-ingredient dispensing port, and wherein the plurality of
macro-ingredient paths comprises a plurality of
macro-ingredient chambers, each with a plurality of
macro-ingredient dispensing ports; and
a target assembly positioned about the core module.
Appeal Br. 12 (Claims Appendix).
Credle, Jr. ("Credle")
Ziesel et al. ("Ziesel '415")
Smeller et al. ("Smeller")
Frutin
Ziesel ("Ziesel '402")
EVIDENCE
us 5,181,631
US 7,578,415 B2
US 2009/0230149 Al
US 2010/0012532 Al
US 8,047,402 B2
REJECTIONS
Jan. 26, 1993
Aug.25,2009
Sept. 17, 2009
Jan. 21, 2010
Nov. 1, 2011
The Final Office Action includes the following rejections under
35 U.S.C. § 103:
1. Claims 1, 3-11, 13, 14, and 16-20 stand rejected as unpatentable
over Ziesel '402 and Ziesel '415.
2. Claims 31 and 32 stand rejected as unpatentable over Ziesel '402,
Ziesel '415, Smeller, and Frutin.
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Application 14/265,632
3. Claim 12 stands rejected as unpatentable over Ziesel '402,
Ziesel '415, and Credle.
ANALYSIS
First Ground of Rejection: Unpatentability of Claims 1, 3-11, 13, 14, and
16-20
Claim l2
The Examiner found that Ziesel '402 discloses a nozzle dispensing
assembly substantially as recited in claim 1, including an injector ring
comprising micro-ingredient paths and macro-ingredient paths. Final Act. 3
(citing Ziesel '402, col. 5, 11. 49-51). The Examiner explained that the
micro-ingredient paths comprise a plurality of micro-ingredient small
chambers (small cavities 490), each with a micro-ingredient dispensing port,
and the macro-ingredient paths include a plurality of macro-ingredient larger
chambers (larger cavities 490). Id. at 4 (citing Ziesel '402, Figs. 13, 14).
The Examiner acknowledged that Ziesel '402 does not disclose each
macro-ingredient larger chamber with a plurality of dispensing ports. Id.
at 4.
The Examiner found that Ziesel '415 teaches a dispensing nozzle
assembly comprising an injector ring having micro-ingredient chambers 430
and macro-ingredient chambers 560, and each macro-ingredient chamber
560 having a plurality of dispensing ports 570. Id. The Examiner
determined it would have been obvious to modify the injector ring of the
2 Appellant argues claims 1, 3-11, 13, 14, and 16-20 as a group. Appeal
Br. 4-8. Appellant presents additional arguments for claims 3 and 4. Id. at
8-9. We select claim 1 as representative of the group, and address the
additional argument for claims 3 and 4 below. Claims 2, 5-11, 13, 14, and
16-20 stand or fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
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dispensing nozzle assembly of Ziesel '402 so that each macro-ingredient
larger chamber comprises a plurality of dispensing ports, as taught in
Ziesel '415, "in order to provide more outlet ports for the macro-ingredient
larger chamber." Id.
Appellant contests the Examiner's findings that Ziesel '402 discloses
macro-ingredient chambers in its injector ring and that Ziesel '415 discloses
macro-ingredient chambers and macro-ingredient dispensing ports in its
injector ring. With regard to the first contention, Appellant argues that "at
no point does Ziesel '402 state that [longer cavities 490] are to be used with
anything other than micro-ingredients." Appeal Br. 6 (noting that "each of
the exit ports 530 are uniformly sized as opposed to some being sized for
micro-ingredients and some having a different size").
With regard to the second contention, Appellant argues that Ziesel
'415 discusses the multi-aperture modules of tertiary flow assembly 530
being used with micro-ingredients, not macro-ingredients. Id. at 7 ( citing
Ziesel '415, col. 6, 11. 61-65). Appellant further argues that apertures 570 of
multi-aperture modules 540 "are configured with respect to different flow
characteristics and pump types." Id. at 8 (citing Ziesel '415, col. 7, 11. 25-
28). Appellant characterizes the disclosure of Ziesel '415 as being focused
on accommodating micro-ingredients with differing flow characteristics:
In the context of syrups and macro-ingredients, Ziesel
'415 instead incorporates by reference commonly owned U.S.
Publication No. 2004/0040983 to Ziesel ("Ziesel '983") that
shows only the use of syrup modules. (Col. 1, lines 30-36).
Specifically, Ziesel '983 predates the use of the micro-
ingredients while Ziesel '415 is focused on accommodating
micro-ingredients with differing flow characteristics.
Appeal Br. 8.
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The issue before us is whether dispensing cavities 490 of Ziesel '402
and multi-aperture modules 540, including chambers 560 and apertures 570,
of Ziesel '415 differ structurally from the claimed macro-ingredient
chambers and macro-ingredient dispensing ports.
The claim language itself does not recite any structural limitations that
define macro-ingredient chambers or macro-ingredient ports. We thus look
to Appellant's Specification to discern the structure of the claimed macro-
ingredient chambers and dispensing ports. Appellant's Specification
describes that macro-ingredients have reconstitution ratios ranging from full
strength (no dilution) to about 6: 1 and generally less than about 10: 1; and
viscosity in the range of from about 1 to about 10,000 centipoise. Spec.
,r 127. The Specification provides examples of macro-ingredients as
including: sugar syrup, high fructose com syrup, concentrated extracts,
purees, dairy products, soy, and rice concentrates. Id.
Appellant's Specification describes that micro-ingredients have
reconstitution ratios ranging from about 10: 1 and higher; and viscosity in the
range of from about 1 to about 6 centipoise. Id. ,r 128. The Specification
provides examples of micro-ingredients as including: natural or artificial
flavors, flavor additives, natural or artificial colors, artificial sweeteners,
antifoam agents, nonnutritive ingredients, additives for controlling tartness,
functional additives such as vitamins, minerals, herbal extracts,
nutriceuticals, and over-the-counter medicines. Id. The Specification
discloses that micro-ingredients may be in liquid, gaseous, or powder form.
Id. Thus, as described in the Specification, macro-ingredients and micro-
ingredients have overlapping ranges of viscosities and have abutting ranges
of reconstitution ratios.
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With regard to the structure of the claimed ports, the Specification
describes with reference to upper injector ring 115 that any number of
macro-ingredient ports 220 may be used, and macro-ingredient ports 220
may be used and sized primarily for "traditional beverage syrups" but they
may have "any suitable size, shape, and configuration." Id. ,r 132. The
Specification discloses that macro-ingredient ports 220 "may be largely
circular in shape with a macro-ingredient inlet 230 at a top thereof and a
macro-ingredient outlet 240 at a bottom thereof. Id. A macro-ingredient
line is secured to each macro-ingredient port 220. Id.
The Specification describes with reference to upper injector ring 115
that any number of micro-ingredient ports 260 may be used, and micro-
ingredient ports 260 may be used and sized primarily for use with micro-
ingredients, but they may have "any suitable size, shape, or configuration."
Id. ,r 133. The Specification discloses that micro-ingredient ports 260 "may
be largely circular in shape with a micro-ingredient inlet 270 at a top thereof
and a macro-ingredient outlet 280 at a bottom thereof." Id. A micro-
ingredient line is secured to each micro-ingredient port 260. Id.
With regard to the structure of the claimed chambers and ports in the
lower injector ring 120, the Specification describes that any number of
macro-ingredient chambers 350 may be used, and each macro-ingredient
chamber 350 may have a number of macro-ingredient dispensing ports 370
about a bottom end 380. Id. ,r 136. The Specification discloses that macro-
ingredient chambers 350 and the macro-ingredient dispensing ports 370
"may have any suitable size, shape, and configuration." Id.
The Specification also describes, with reference to lower injector ring
120, that any number of micro-ingredient chambers 3 90 may be used, and
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each micro-ingredient chamber 390 may have a micro-ingredient dispensing
port 410 at a bottom end 420. Id. ,r 137. The Specification discloses that
micro-ingredient chambers 3 90 and macro-ingredient dispensing port 410
"may have any suitable size, shape, and configuration." Id.
We do not find any disclosure in Appellant's Specification that clearly
distinguishes, in a structural manner, macro-ingredient ports 220 from
micro-ingredient ports 260 or macro-ingredient chambers 350 and macro-
ingredient dispensing ports 370 from micro-ingredient chambers 390 and
micro-ingredient dispensing ports 410. Specifically, we find no size
constraints that limit micro-ingredient chambers and ports to being smaller
than a specific size, or limit macro-ingredient chambers and ports to being
larger than a specific size. Because the Specification defines macro-
ingredients and micro-ingredients to have overlapping viscosity ranges and
abutting reconstitution ratio ranges, we find that chambers and ports of a
variety of sizes and shapes could be used to dispense macro-ingredients and
micro-ingredients.
Turning to the disclosure of Ziesel '402, we agree with Appellant that
this reference does not explicitly disclose using dispensing cavities 490 to
dispense macro-ingredients. This finding does not end our inquiry as to
Appellant's first contention because the issue before us is whether
dispensing cavities 490 are capable of dispensing macro-ingredients.
Specifically, the Examiner found that the larger dispensing cavities 490
shown in Figures 13 and 14 of Ziesel '402 are macro-ingredient chambers.
Appellant has not provided persuasive evidence that these larger dispensing
cavities 490 differ structurally from the claimed macro-ingredient chambers,
as claimed. As noted above, the fact that each of the exit ports 530 appear to
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be uniformly sized is not determinative, given that the reconstitution ratio of
macro-ingredients is simply less than 10: 1 and the reconstitution ratio of
micro-ingredients is 10: 1 or higher and the viscosities of the two ingredients
could be the same. Further, the argument that each of the exit ports 530 are
uniformly sized is not responsive to the rejection because the Examiner
proposed to modify the dispensing ports of dispensing cavities 490 in light
of the teaching of Ziesel '415. Thus, we find no error in the Examiner's
determination that the larger cavities 490 in Ziesel '402 are capable of being
used as macro-ingredient chambers.
Turning now to the disclosure of Ziesel '415, we disagree with
Appellant's contention that Ziesel '415 does not disclose using multi-
aperture modules 540 with macro-ingredients. In contradiction to
Appellant's reading of the reference, Ziesel '415 teaches:
The tertiary flow assembly 530 may have modules 540 of
differing size or configuration based upon the different types of
fluids intended to be used therein. The modules 540 may be
similar to the syrup module 350 described in commonly owned
U.S. patent application Ser. No. 10/233,867, described above.
Ziesel '415, col. 7, 11. 29-34. Application No. 10/233,867 to Ziesel
published as U.S. Patent Application No. 2004/0040983 Al, on March 4,
2004 (hereinafter "Ziesel '983"). As acknowledged by Appellant in the
Appeal Brief, "Ziesel '983 predates the use of the micro-ingredients."
Appeal Br. 8. In fact, Ziesel '983 discusses that its syrup module may be
connected directly to a syrup circuit within a conventional beverage
dispenser. Ziesel '983, ,r 39. Based on Appellant's statement above, and the
disclosure in Ziesel '983, we understand its syrup module to be designed to
dispense macro-ingredients. The above-quoted suggestion in Ziesel '415 that
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its multi-aperture modules 540 could be of differing size or configuration
and could be similar to the syrup module of Ziesel'983 is a teaching of
configuring multi-aperture modules 540 to dispense macro-ingredients.
Even if one were to read Ziesel '415 as not disclosing using multi-
aperture modules 540 with macro-ingredients, for the same reasons
explained above regarding the chambers of Ziesel '420, we do not find error
in the Examiner's finding that multi-aperture modules 540 and apertures 570
are capable of being used to dispense macro-ingredients.
For these reasons, we do not find error in the Examiner's rejection of
claim 1 as unpatentable over the combined teachings of Ziesel '402 and
Ziesel '415. Accordingly, we sustain the rejection of claim 1 under
35 U.S.C. § 103. Claims 2, 5-11, 13, 14, and 16-20 fall with claim 1.
Dependent claims 3 and 4
Claim 3 depends from claim 1 and recites that the injector ring
"comprises a middle column with the core positioned therein." Claim 4
depends from claim 3. Appeal Br. 12 (Claims Appendix). The Examiner
found that Ziesel '402 discloses injector ring 400 comprises a middle
column with core module 120 positioned therein. Final Act. 4 ( citing
Ziesel '402, Figs. 1, 10, 11); Ans. 7 (further citing Ziesel '402, Figs. 2, 3).
Appellant contests this finding. Appellant argues that Ziesel '402 does not
have a middle column as part of injector ring 400. Appeal Br. 8-9.
Appellant's Specification discloses that upper injector ring 115 may
be largely plate-like in shape and middle column 150 may rise through the
middle of plate 140 and define a fluid chamber 160 therein. Spec. ,r 131.
The Specification describes that middle column 150 may have diluent inlet
180 and sweetener inlet 190 on the top. Id. Diluent/sweetener module 125
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is attached within middle column 150. Id. One having ordinary skill in the
art would understand middle column, when read in light of the Specification,
to refer to a cylindrical-shaped extension on the flat plate of injector ring, in
which a core module is housed.
Ziesel '402 describes Figure 10 as depicting "an exploded view of the
injector plate assembly" and Figure 11 as depicting "a perspective view of
the top injector plate of the injector ring assembly of Fig. 10." Ziesel '402,
col. 3, 11. 49-51. We agree the Examiner's finding that Figures 10 and 11 of
Ziesel '402 show a cylindrical portion extending upwardly from the face of
injector ring 400 that meets the claimed middle column. Further, we agree
with the Examiner's finding that Figures 1-3 of Ziesel '402 depict main
body 120 ( the claimed core module), disposed within this cylindrical
portion. Thus, we find no error in the Examiner's finding that Ziesel '402
discloses a middle column with the core positioned therein, as recited in
claim 3. Appellant presents no additional arguments for claim 4.
Accordingly, we sustain the rejection of claims 3 and 4 under 35 U.S.C.
§ 103.
Second Ground of Rejection: Unpatentability of claims 31 and 32
Claims 31 and 32 depend from claims 1 and 16, respectively, and
recite that the upper injection ring is directly connected to the lower
injection ring via laser welding. The Examiner found that although
Ziesel '402 discloses injector ring 400 comprised of upper injector ring 420
and lower injector ring 480, Ziesel '402 does not disclose connecting these
ring parts by laser welding. Final Act. 5. The Examiner found that Smeller
teaches it was well known to connect component parts of a mixing nozzle
assembly by sonic welding, and Frutin discloses connecting component parts
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of a dispensing nozzle assembly by laser welding. Id. The Examiner
determined that the claimed connection between the injector rings would
have been obvious in light of the knowledge of one having ordinary skill of
this well-known technique for connecting component parts of a dispensing
nozzle assembly. Id. at 5-6.
Appellant contends that Smeller teaches away from the claimed direct
connection. Appeal Br. 9 (citing Smeller ,r,r 15, 24). We disagree. Smeller
describes many problems inherent in beverage dispensing devices using
multiple flavor beverage nozzles. Smeller ,r,r 9-12. One of the many
drawbacks identified by Smeller is "the need for gluing and sonic welding of
component parts." Id. ,r 12. Smeller teaches that "[t]he use of molded parts
to form the inner body that fit together to create injector seats and fluid
pathways eliminates the need for gluing and sonic welding." Id. ,r 15. Thus,
Smeller identifies that one object of his invention is "to provide a multiple
flavored beverage mixing nozzle that uses very few parts and does not
require elaborate gluing and sonic welding to construct." Id. ,r 24. We
understand Smeller to describe a preference to use molded parts in place of
separately welded parts to construct a beverage mixing nozzle.
"A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant." In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). The "mere disclosure of alternative designs does not teach
away." In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). We do not
understand Smeller to teach that one would be unable to construct a
beverage mixing nozzle using sonic welding. Rather, Smeller discloses an
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alternative design. As the Federal Circuit recently noted, "Li Just because
better alternatives exist in the prior art does not mean that an inferior
combination is inapt for obviousness purposes." In re Mouttet, 686 F.3d
1322, 1334 (Fed. Cir. 2012) (citing Gurley, 27 F.3d at 553).
Appellant further asserts that "the distinction between sonic welding
and laser welding is significant." Appeal Br. 10 (Appellant presenting
assertions about differences between these welding techniques). Appellant's
arguments, however, are not persuasive of a patentable difference because
the arguments are unsupported by evidence. In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) ("Attorney's argument in a brief cannot take the place of
evidence").
Appellant also argues that one of ordinary skill in the art would not
have looked to Frutin, which shows a technique for connecting components
of a bottle closure, to modify an ingredient injection ring, particularly in
view of Smeller. Appeal Br. 10. To the extent Appellant's argument is
based on the assertion that Smeller teaches away, we do not find this
argument persuasive of error for the reasons discussed above. Further,
although Frutin discloses a closure device for releasing an additive liquid
into a liquid in a container, Frutin also teaches that similar mixtures of
liquids can apply to beverages where the liquid to which the additive liquid
is introduced may be a carbonated or a non-carbonated liquid. Frutin ,r,r 1-
2. As such, we find that Frutin would have suggested to one having ordinary
skill in the art that its teachings are applicable to beverage dispensing
nozzles.
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For these reasons, we do not find error in the Examiner's second
ground of rejection. As such, we sustain the rejection of claims 31 and 32 as
unpatentable over Ziesel '402, Ziesel '415, Smeller, and Frutin.
Third Ground of Rejection: Unpatentability of claim 12
Claim 12 depends from independent claim 1. Appeal Br. 14 ( Claims
Appendix). Appellant relies on the arguments presented in support of the
patentability of claim 1 over the first ground of rejection as the basis for
requesting reversal of the third ground of rejection. Id. at 11. We do not
find error in the rejection of claim 1. Accordingly, we sustain the third
ground of rejection of claim 12.
DECISION
The decision of the Examiner rejecting claims 1, 3-14, 16-20, 31, and
3 2 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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