KHS GmbH

Patent Trials and Appeals Board

Sep 9, 2021

2021002923 (P.T.A.B. Sep. 9, 2021)

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.
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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
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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.
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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.
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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.)
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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
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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.
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(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
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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.
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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
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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
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(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