Ex Parte ZieselDownload PDFPatent Trial and Appeal BoardJul 27, 201814265632 (P.T.A.B. Jul. 27, 2018) Copy Citation 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. 2 Appeal 2017-011316 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. 3 Appeal 2017-011316 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). 4 Appeal 2017-011316 Application 14/265,632 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. 5 Appeal 2017-011316 Application 14/265,632 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. 6 Appeal 2017-011316 Application 14/265,632 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 7 Appeal 2017-011316 Application 14/265,632 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 8 Appeal 2017-011316 Application 14/265,632 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 9 Appeal 2017-011316 Application 14/265,632 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 10 Appeal 2017-011316 Application 14/265,632 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 11 Appeal 2017-011316 Application 14/265,632 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 12 Appeal 2017-011316 Application 14/265,632 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. 13 Appeal 2017-011316 Application 14/265,632 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 14 Copy with citationCopy as parenthetical citation