KHS GmbHDownload PDFPatent Trials and Appeals BoardSep 9, 20212021002923 (P.T.A.B. Sep. 9, 2021) 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. 16/087,205 09/21/2018 Olaf Muszinski 40047-369US1 8639 69713 7590 09/09/2021 OCCHIUTI & ROHLICEK LLP 50 Congress Street Suite 1000 Boston, MA 02109 EXAMINER SHRIEVES, STEPHANIE ALEXANDRA ART UNIT PAPER NUMBER 3753 NOTIFICATION DATE DELIVERY MODE 09/09/2021 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): INFO@ORPATENT.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte OLAF MUSZINSKI and HANS-JÜRGEN KATZENBÄCHER Appeal 2021-002923 Application 16/087,205 Technology Center 3700 ____________ Before JOHN C. KERINS, JILL D. HILL, and CYNTHIA L. MURPHY, Administrative Patent Judges. MURPHY, Administrative Patent Judge. DECISION ON APPEAL The Appellant appeals from the Examiner’s rejections of claims 18, 19, 21–23, 25–34, and 38 under 35 U.S.C. § 103.1 We do not sustain any of the Examiner’s rejections, and, therefore, we REVERSE.2 1 The Appellant is the “applicant” as defined by 37 C.F.R. § 1.42 (e.g., “all of the joint inventors”). “The real party in interest is KHS GmbH.” (Appeal Br. 1.) 2 We have jurisdiction under 35 U.S.C. §§ 6(b) and 134(a). A hearing was held on August 26, 2021. Appeal 2021-002923 Application 16/087,205 2 THE APPELLANT’S INVENTION The Appellant’s invention relates to “mass production of beverages” (Spec. p1:8–9) and, more particularly, “concerns a container-filling assembly having a container-filling machine” (id. p1:23–24). By way of background, a typical container-filling assembly includes a filling machine having a filling tank that feeds multiple feeding elements. (See Spec. p1:12–13, p1:26–27.) Because “[a] beverage has various ingredients that must be mixed together in the proper proportions” (id. p1:11–12), a typical container-filling assembly further includes, in addition to the filling machine, “a separate mixer” (id. p1:13–14). This separate mixer “has its own buffer tank in which the beverage components are mixed together.” (Id. p1:15–18.) According to the Appellant, its container-filling assembly “facilitates the filling of different beverages in a desired composition without a separate mixer having a buffer tank.” (Spec. p2:1–3.) This is achieved via “a circulation line by which beverage is conveyed out of the filling tank and back into the filling tank.” (Id. p2:5–7.) “[B]everage component supplies lead into the circulation line” (id. p2:7–8) and a “controller controls the beverage component supplies” (id. p2:19–20). “In particular,” the controller “causes beverage components to be added to the circulation line based on an analysis that includes consideration of [a] measurement signal.” (Id. p2:21–24.) INDEPENDENT CLAIMS ON APPEAL 18. An apparatus comprising a container-filling assembly, said container-filling assembly comprising a container-filling machine that comprises filling elements, a filling tank, a circulation line, a controller, and a measuring system, wherein said filling tank feeds beverage to said filling elements, wherein said circulation line connects to said filling tank at a location for drawing beverage from said filling tank and at a location for adding beverage to said filling Appeal 2021-002923 Application 16/087,205 3 tank, wherein beverage-component supplies lead into a dosage section of said circulation line, wherein said controller connects to said measuring system, wherein said measuring system is connected to at least one of said filling tank and said circulation line, wherein said controller controls addition of beverage components from said beverage-component supplies into said circulation line at said dosage section at least in part based on a measurement signal received from said measuring system, and wherein said beverage- component supplies comprise a water supply and a syrup supply. 31. A method comprising filling containers in a container-filling assembly, said method comprising causing beverage components to be supplied into a circulation line according to a given mixing ratio until a given fill level of a filling tank is achieved, wherein supplying said beverage components comprises supplying beverage from said filling tank to a sensor system via a circulation line, based at least in part on a signal from said sensor system, continuously comparing a composition of said beverage with a reference composition, upon detecting a deviation from said reference composition, causing at least one of said beverage-component supplies to add a beverage component to said circulation line to reduce said deviation, and causing containers to be filled when a level of beverage in said filling tank has reached a desired value and a composition of said beverage is within a desired threshold of said reference composition. REJECTIONS I. The Examiner rejects claims 18, 19, 21–23, 30, and 38 under 35 U.S.C. § 103 as unpatentable over Wagner3 and Wu.4 (Final Act. 13–18.) II. The Examiner rejects claim 25 under 35 U.S.C. § 103 as unpatentable over Wagner, Wu, and Muszinski.5 (Final Act. 18.) 3 US 8,528,607 B2, issued September 10, 2013. 4 US 8,460,733 B2, issued June 11, 2013. 5 US 2014/0238531 Al, published August 28, 2014. Appeal 2021-002923 Application 16/087,205 4 III. The Examiner rejects claims 26, 27, and 29 under 35 U.S.C. § 103 as unpatentable over Wagner, Wu, Dawson,6 and Sher.7 (Final Act. 18–20.) IV. The Examiner rejects claim 28 under 35 U.S.C. § 103 as unpatentable over Wagner, Wu, Sher, and Stearns.8 (Final Act. 20–22.) V. The Examiner rejects claims 31 and 32 under 35 U.S.C. § 103 as unpatentable over Wagner, Wu, Neuhäuser,9 and Muszinski. (Final Act. 22–25.) VI. The Examiner rejects claim 33 under 35 U.S.C. § 103 as unpatentable over Wagner, Wu, Neuhäuser, Muszinski, and Dawson. (Final Act. 25–26.) VII. The Examiner rejects claim 34 under 35 U.S.C. § 103 as unpatentable over Wagner, Wu, Neuhäuser, Muszinski, Dawson, and Sher. (Final Act. 26–28.) ANALYSIS Claims 18 and 31 are the independent claims on appeal. (Appeal Br., Claims App.) Independent claim 18 sets forth “[a]n apparatus comprising a container-filling assembly” and independent claim 31 sets forth “[a] method comprising filling containers in a container-filling assembly.” (Id.) The Examiner’s obviousness rejections all rely upon a primary reference, Wagner, in combination with one or more secondary references. (See Final Act. 13–28.) Wagner discloses an apparatus and method for filling “carbonated beverages into bottles, cans, or similar containers.” (Wagner c1:23–25.) 6 EP 1 496 011 A1, published December 1, 2005. 7 US 7,661,352 B2, issued February 16, 2010. 8 US 2006/0286262 Al, published December 21, 2006. 9 US 2012/0180902 A1, published July 19, 2012. Appeal 2021-002923 Application 16/087,205 5 The claimed apparatus comprises, and the claimed method involves, a “filling tank,” a “circulation line,” a “measuring” or “sensor” system, and a control element/step associated therewith.10 (Appeal Br., Claims App.) Wagner’s container-filling apparatus includes, and thus its container-filling method involves, a “filler tank 2” (id. c4:50), a “return line 5” (id. c5:36), a “measuring device 4” (id. c5:23) and a “control unit 12” (id. c6:17). Wagner’s return line 5 “guides the liquid to be filled in a circulating manner” in a “closed loop, through the filler tank [2].” (Id. c5:36–39, see also Fig. 1.) Wagner’s measuring device 4 is “positioned in” the return line 5 ((id. c5:36) and the control unit 12 is “configured to analyze measurements” measured by the measuring device 4 (id. c6:29–31). More specifically, Wagner’s measuring device 4 detects a plurality of quality/quantity “variables” and transmits them “to the control unit for the desired/actual value comparison.” (Id. c3:15–17.) The claimed apparatus comprises beverage-component supplies” that “lead into a dosage section of said circulation line” and the claimed method involves “causing beverage components to be supplied into [said] circulation line.” (Appeal Br., Claims App.) In Wagner’s container-filling apparatus/method, “a metering device 13” is “positioned in a metering line 14” which “opens up into” the return line 5 “in order to adjust the liquid to be filled in dependence upon the measured values of the measuring device 4.” (Wagner c6:17–22.) And “[t]he liquid is adjusted with the aid of the control unit 12, the measuring device 4 and the metering line 14 or 10 Independent claim 18 sets forth a “controller” that “connects to said measuring system” and independent claim 31 sets forth a control step “based at least in part on a signal from said sensor system.” (Appeal Br., Claims App.) Appeal 2021-002923 Application 16/087,205 6 respectively the metering device 13 in terms of a closed loop with regard to qualitative and quantitative parameters.” (Id. c6:48–51.) In the disclosed embodiment of Wagner’s container-filling apparatus, “the measuring device 4 is configured to measure the concentration of CO2” (Wagner 6:63–64), the metering equipment 13/14 “is referred to in the example of the CO2 content” (id. c6:51–52), and “[a]n additional carbonation procedure therefore takes place” (id. c6:61–62). However, Wagner’s teachings are not confined to carbonation measurements and carbonation metering. Wagner teaches that its measuring device 4 provides “a quantitative and/or qualitative analysis of the liquid to be filled.” (Wagner c5:24–25.) Also, in the context of “the quantitative and/or qualitative analysis of the liquid,” Wagner talks about how “the quality of the beverage” depends “enormously” not only on the “carbon dioxide content,” but also “the proportion of additional constituents,” and specifically “beverage syrup.” (Id. c1:45–52.) Wagner indicates that its measuring device 4 may be in the form of a “concentration” device so that “it can be ascertained for example, whether the concentration of the additional constituents (beverage syrup) in the water is sufficient.” (Id. c2:26–30.) Wagner also says that the control unit 12 can actuate “a corresponding metering device” in “dependence upon the measured values of the measuring device.” (Id. c2:38–40.) Wagner further expressly teaches that “[i]n another possible embodiment, the control unit 12 can also be used to control the flow of other liquid beverage components, such as beverage syrup, based on information received from the measuring device 4.” (Id. c8:38–43.) Thus, Wagner teaches that its container-filling apparatus/method may have a syrup supply leading into a dosage section of the return line 5. And Wagner teaches that its control unit 12 could control the addition of syrup from this Appeal 2021-002923 Application 16/087,205 7 supply based upon on a measurement received from measuring device 4. More specifically, Wagner teaches comparing syrup concentration with a reference concentration and, upon detecting a deviation, adding syrup to the return line 5 to reduce said deviation.11 As noted above, according to the Appellant, its container-filling apparatus/method is intended to facilitate “the filling of different beverages in a desired composition without a separate mixer having a buffer tank.” (Spec. p2:1–3.) In Wagner’s apparatus/method, a “mixing container 9” is “configured to contain a liquid beverage to be mixed and/or conditioned before the liquid beverage is filled into bottles 1.” (Wagner c5:55–57, see also Fig. 1.) Wagner discloses that “[t]he already mixed beverage is supplied to the mixing container” or that “mixing components,” and specifically “water and beverage syrup,” can be “introduced into mixing container via [a] supply line [8].” (Id. c3:31–36.) Thus, Wagner does not disclose that its apparatus/method facilitates a container-filling process without a separate mixer. However, neither independent claim 18 nor independent claim 31 precludes the inclusion of a separate mixer in the apparatus/method. Consequently, the inclusion of the mixing container 9 in Wagner’s apparatus/method does not, in and of itself, detract from the Examiner’s determination of obviousness. That being said, we agree with the Appellant that the claims on appeal contain other limitations which may not accord with a container-filling apparatus/ method that includes a separate mixer. (See Appeal Br. 4–7, 20–22.) And we agree with the Appellant that the Examiner’s reluctance to take such discordance into account calls certain findings with respect to these limitations into question. 11 Insofar as the Appellant argues to the contrary (see Appeal Br. 4–7, 20–22, see also Reply Br. 1–6, 18–24), we are unpersuaded by these arguments. Appeal 2021-002923 Application 16/087,205 8 (See id; see also Reply Br. 1–7, 18–19.) Thus, on the record before us, we cannot sustain the Examiner’s obviousness rejections. Independent Claim 18 Independent claim 18 requires the beverage-component supplies to “lead into a dosage section of said circulation line,” and further requires these beverage-component supplies to comprise “a water supply.” (Appeal Br., Claims App.) The Appellant argues that the record does not adequately support a finding that Wagner teaches a water supply leading into a dosage section of a circulation line. (See Appeal Br. 4–5.) We are persuaded by this argument. We are persuaded because Wagner discloses that water is added to its separate mixing container 9, but Wagner does not describe a scenario in which water could or would be introduced into its return line 5. (See e.g., Wagner c1:36–39, c2:34–35, c2:46–49.) The Examiner maintains that it would have been obvious to introduce water into Wagner’s return line 5 in order “to add in the needed flavorings to the beverage as desired in order to make the desired product for sale.” (Final Act. 15.) This articulated motivation may be aligned with the introduction of beverage syrup into Wagner’s return line 5. Indeed, Wagner teaches that, after water and syrup are introduced into Wagner’s mixing container 9, a concern can arise as to whether there is enough syrup in the mixture. (See Wagner c1:36–39, c1:45–52, c2:25–30, c2:46–49, c3:29–36, c5:26–39, c8:38–41.) Thus, Wagner describes a scenario which would motivate one of ordinary skill to introduce additional syrup into the dosing section of Wagner’s circulation line. But neither Wagner nor the Examiner describe a scenario which would motivate one of Appeal 2021-002923 Application 16/087,205 9 ordinary skill in the art to introduce additional water into the dosing section of Wagner’s circulation line. (See Answer 3–5.) Thus, we agree with the Appellant that a container-filling apparatus in which a water supply leads into a dosage section of a circulation line would not have been obvious from the teachings of Wagner alone. We also agree with the Appellant that the applicable secondary reference, Wu, does not compensate for this shortcoming in Wagner. (See Appeal Br. 4–7; see also Reply Br. 1–7.) Wu discloses a container-filling apparatus for “formulating a hot-fill beverage” (Wu c4:9, Fig. 1) in which a liquid flows from a “main base liquid tank 12” (id. c8:45), through a “heater 20” (id. c5:4), and ultimately to a “bottle filling station 60” (id. c8:25). And Wu’s container-filling apparatus includes a mixing section 40 whereat beverage ingredients are injected into a supply-line path leading from the main base liquid tank 12 to the bottle filler 60. (See id., c5:24–26, c5:50–52, Fig. 1.) However, Wu injects “flavoring components 39, 49” at this dosing section 40 (id. c6:59–60), not something akin to a water supply. Rather Wu, like Wagner, teaches that any addition of water to its beverage liquid occurs in the main base liquid tank 12. (See id. c4:42–45, c5:12–15.) Thus, we do not sustain the Examiner’s rejection of independent claim 18 (Rejection I). Independent Claim 31 Independent claim 31 requires “causing” the beverage components to be supplied into the circulation line “until a given fill level of a filling tank is achieved.” (Appeal Br., Claims App.) In other words, independent claim 31 requires a correlation between the filling tank’s level and the supply of beverage components (e.g., syrup) into the circulation line. Appeal 2021-002923 Application 16/087,205 10 The Appellant argues that the record does not adequately support a finding that Wagner teaches a correlation between the filling tank’s level and the supply of beverage components into the circulation line. (See Reply Br. 18–19.) We are persuaded by this argument. We are persuaded because Wagner does not describe any correlation between the level of its filler tank 2 and the supply of beverage components (e.g., beverage syrup) into its return line 5. The Examiner maintains that, in Wagner, filling of bottles would not commence until desired conditions are met in the filler tank 2. (See Answer 16.) To the extent that the Examiner is saying that one of ordinary skill in the art would appreciate that a certain liquid level in Wagner’s filler tank 2 would be necessary to effectively and efficiently fill bottles therefrom, we do not disagree. But this does not implicate any correlation between the level of Wagner’s filler tank 2 and the supply of beverage components into Wagner’s return line 5. Indeed, liquid solely from Wagner’s blending tank 9 could achieve an effective and efficient fill level in Wagner’s filler tank 2, without any supply of beverage components into its return line 5 whatsoever. (See id. Fig. 1.) Thus, we agree with the Appellant that a correlation between the level of Wagner’s filler tank 2 and the supply of a beverage component in Wagner’s return line 5 would not have been obvious from the teachings of Wagner alone. We also agree with the Appellant that the applicable secondary reference, Muszinski, does not compensate for this shortcoming in Wagner. (See Reply Br. 19.) Muszinski teaches a container-filling machine in which a filling tank 5 provides liquid filling material to bottles 2. (See Muszinski ¶ 40; Fig. 1.) In Muszinski’s system, filling material is fed to the filling tank 5 by a primary pipe 6 from a central processing unit 7 (see id. ¶ 42) that supplies “110% of the Appeal 2021-002923 Application 16/087,205 11 nominal pour rate of the container-filling machine” (id. ¶ 46). The level in Muszinski’s filling tank 5 “is kept constant” (id. ¶ 42) by selective control of flow through a bypass pipe 8 and an overflow pipe 10 via a “process computer 12” (id. ¶ 47). However, Muszinski does not show or suggest an introduction of beverage components into any of the pipes 6/8/10 (see id. Fig. 1), much less a correlation between such introduction and the level of its filling tank 5. The Examiner maintains that, if Wagner’s method is modified to include Muszinski’s level-control equipment, “the unit will not dispense until the desired value is reached in the tank.” (Answer 16.) However, as mentioned above, liquid solely from Wagner’s blending tank 9 could achieve this desired level value in Wagner’s filler tank 2, without any supply of beverage components into Wagner’s return line 5. (See Wagner Fig. 1.) In any event, the Examiner does not adequately explain why this proposed modification would result in a correlation between the level of Wagner’s filler tank 2 and the supply of beverage components into Wagner’s return line 5. Thus, we do not sustain the Examiner’s rejection of independent claim 31 under 35 U.S.C. § 103 (Rejection V). Dependent Claims 19, 21–23, 25–30, 32–34, and 38 These claims depend directly or ultimately from independent claim 18 or independent claim 31. (See Appeal Br., Claims App.) The Examiner’s further findings and determinations with respect to these dependent claims do not compensate for the above-discussed shortcomings in the rejections of independent claim 18 and independent claim 31. (See Final Act. 15–22, 25–28.) Thus, we do not sustain the Examiner’s rejection of dependent claims 19, 21–23, 30, and 38 (Rejection I), the Examiner’s rejection of dependent claim 25 Appeal 2021-002923 Application 16/087,205 12 (Rejection II), the Examiner’s rejection of dependent claims 26, 27, and 29 (Rejection III), the Examiner’s rejection of dependent claim 28 (Rejection IV), the Examiner’s rejection of dependent claim 32 (Rejection V), the Examiner’s rejection of dependent claim 33 (Rejection VI), and the Examiner’s rejection of dependent claim 34 (Rejection VII). DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 18, 19, 21–23, 30, 38 103 Wagner, Wu 18, 19, 21–23, 30, 38 25 103 Wagner, Wu, Muszinski 25 26, 27, 29 103 Wagner, Wu, Dawson, Sher 26, 27, 29 28 103 Wagner, Wu, Sher, Sterns 28 31, 32 103 Wagner, Wu, Neuhäuser, Muszinski, 31, 32 33 103 Wagner, Wu, Neuhäuser, Muszinski, Dawson 33 34 103 Wagner, Neuhäuser, Wu, Muszinski, Dawson, Sher 34 Overall Outcome 18, 19, 21–23, 25–34, 38 REVERSED Copy with citationCopy as parenthetical citation