Qore Performance, Inc.

Patent Trials and Appeals Board

Aug 3, 2021

2021000121 (P.T.A.B. Aug. 3, 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.
15/429,944 02/10/2017 Justin B. LI QORE1160/
US/4 (389163-14)
9670
47604 7590 08/03/2021
DLA PIPER LLP US
ATTN: PATENT GROUP
11911 FREEDOM DR.
SUITE 300
RESTON, VA 20190
EXAMINER
VAZQUEZ, ANA M
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
08/03/2021 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):
PatentProsecutionRes@dlapiper.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUSTIN B. LI, J.D. WILLCOX, DOUG C. BURR, and
PABLO BRAVO
Appeal 2021-000121
Application 15/429,944
Technology Center 3700
Before BENJAMIN D. M. WOOD, WILLIAM A. CAPP, and
BRANDON J. WARNER, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s January 31, 2020 Non-Final Action rejecting claims 1–5, 7–12,
and 15–22. See Non-Final Act. 1. Claims 6, 13, and 14 have been canceled.
Appeal Br. 23, 24. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies the real party in interest as QORE PERFORMANCE,
Inc. Appeal Br. 2.
Appeal 2021-000121
Application 15/429,944

2
CLAIMED SUBJECT MATTER
The claims are directed to cooling and hydrating containers and
methods of use. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A container to be worn by a user, said container comprising:
a hollow body having a front portion, back portion, top
portion and bottom portion integrally formed from a same
material, the front portion being connected to the back portion
by two side walls formed between the top and bottom portions,
said body having a first port formed out of the bottom portion at
a point where the bottom portion connects to one of the side
walls and being formed from the same material as the body,
said body being adapted to contain a substance for providing
thermal regulation to a user’s body when the container is
adjacent the user’s body and providing impact protection when
the container is adjacent the user’s body, the bottom portion of
the body being configured with a geometry that facilitates
drainage through the first port at a lowest point of the container
while being worn; and
an attachment mechanism, said mechanism configured to
maintain the hollow body in contact with the user’s body or
clothing such that the substance within the hollow body
provides the thermal regulation to the user’s body.
REFERENCES
Name Reference Date
Boxer US 4,526,298 July 2, 1985
Loofbourrow US 4,656,840 Apr. 14, 1987
Adam US 5,864,880 Feb. 2, 1999
Karl ’656 US 7,600,656 B2 Oct. 13, 2009
Spencer US 2006/0113336 A1 June 1, 2006
Karl ’433 US 2008/0277433 A1 Nov. 13, 2008

Appeal 2021-000121
Application 15/429,944

3
REJECTIONS
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
5 112(b) Indefiniteness
1–5, 10, 15, 16 103 Karl ’656, Karl ’433
7, 8 103 Karl ’656, Karl ’433, Boxer
9 103 Karl ’656, Karl ’433, Spencer
11 103 Karl ’656, Karl ’433, Loofbourrow
12, 17–21 103 Karl ’656, Karl ’433, Adam
22 103 Karl ’656, Karl ’433, Adam, Spencer
OPINION
Claim 5—Indefiniteness
Appellant does not substantively respond to the Examiner’s rejection
of claim 5 under 35 U.S.C. § 112(b) as indefinite, but rather acknowledges
that claim 5 contains a “minor typographical error.” Appeal Br. 6 n.1.
Consequently, Appellant has waived any argument of error, and we
summarily sustain the rejection of claim 5 as indefinite. See In re
Berger, 279 F.3d 975, 984–85 (Fed. Cir. 2002) (Board did not err in
sustaining a rejection under 35 U.S.C. § 112 ¶ 2 when the Examiner refused
to enter an Amendment filed with Appeal Brief and Applicant failed to
contest the rejection as to the non-amended claims on appeal).
Claims 1–5, 10, 15, and 16—§ 103—Karl ’656 and Karl ’433
Independent Claim 1
The Examiner finds that Karl ’656 teaches the container of claim 1
substantially as claimed, but “[w]hile Karl’656 discloses the first port
formed out of the bottom portion, Karl’656 fails to explicitly disclose [the
first port] formed out of the bottom portion at a point where the bottom
portion connects to one of the side walls.” Non-Final Act. 4–5 (citing
Appeal 2021-000121
Application 15/429,944

4
Karl ’656, 4:46–50, Figs. 1–2G). The Examiner relies on Karl ’433 to teach
the missing limitation. Id. at 5 (citing Karl ’433 ¶ 46, Fig. 14). The
Examiner determines that it would have been obvious to one of ordinary
skill in the art to modify Karl ’656 “such that the first port is formed out of
the bottom portion at a point where the bottom portion connects to one of the
side walls in view of the teachings by Karl’433, in order to maximize the
capacity of fluid that may be drawn by the user.” Id.
Appellant first argues that Karl ’656’s port “is not ‘formed from the
same material as the body,’” as required by claim 1. Appeal Br. 9.
Appellant asserts that Karl ’656’s port 56 “requires a metal draw tube 60 to
get substance out of the body 32,” meaning that the port “is incomplete
without the tube 60 and could not be considered to be a port without it.” Id.
The Examiner responds that the Examiner considers portion 58 (described as
a reinforcement structure for withdrawal port 56) of Karl ’656 as
corresponding to the claimed first port, and that portion is formed from the
same material as the body. Ans. 17.
Appellant does not dispute that reinforcement structure 58 is formed
from the same material as the body. Indeed, Karl ’656 teaches that “[f]luid
withdrawal port 56 is shown to include a reinforcement structure (shown as
a block 58) formed with body 32.” Karl ’656, 6:64–66. Therefore, this
argument is unpersuasive of Examiner error.
Appellant next argues that neither Karl ’656 nor Karl ’433 discloses
the “bottom portion . . . configured with a geometry that facilitates drainage
through the first port at a lowest point of the container while being worn.”
Appeal Br. 9, 11. Appellant asserts that port 56 of Karl ’656 and port 46 of
Appeal 2021-000121
Application 15/429,944

5
Karl ’433 are “clearly above the lowest point” of their respective container
bodies. Id. at 11.
The Examiner responds that “Karl’656’s bottom portion 40 includes
the first port 58,” which “is located at a lowest point of the bottom portion,
and allows for drainage of the fluid from the body 32 for consumption by the
user.” Ans. 19 (citing Karl ’656, 6:59–64, Figs. 2C, 2G). Therefore,
according to the Examiner, “the bottom portion includes a geometry . . . that
allows drainage through the first port at the lowest point of the container
while being worn (in the upright position).” Id.
In the Reply Brief, Appellant responds that element 58 “is a
reinforcement member . . . required to support a metal draw tube 60.” Reply
Br. 2 (citing Karl ’656, 6:64–7:1). Appellant further asserts that “the metal
draw tube 60 is required to get substance out of Karl ’656’s port 58 and
body 32 . . . because Karl ’656’s low point . . . is not where the alleged port
is located.” Id.
Appellant’s argument implies that claim 1 requires the first port to be
located at the lowest point of the container while being worn. It does not.
The limitation applies to the “geometry” (presumably the shape) of the
bottom portion of the container, which must facilitate drainage of the
container through the first port. Appeal Br. 22 (Claims App.). The
limitation does not specify the location or geometry of the first port itself.
As depicted in Figure 2G of Karl ’656, reinforcement member 58 of fluid
withdrawal port 56 is situated to allow draw tube 60 to extend to the low
point of the inside of reservoir 30. Karl ’656, 6:64–7:11. According to
Karl ’656:
Appeal 2021-000121
Application 15/429,944

6
Fluid withdrawal port 56 is shown to include a reinforcement
structure (shown as a block 58) formed with body 32 and
intended to provide a durable and robust structure for a draw
tube 60 extending through the reinforcement block 58 . . . to a
“low point” of the inside of the reservoir 30 so that substantially
all of the fluid within the reservoir can pass through the second
end 64 of the draw tube 60 when the reservoir 30 is oriented
vertically.
Id. Because Karl ’656 teaches that block 58 of fluid withdrawal port 56 is
“intended to provide a durable and robust structure” for draw tube 60 to
extend “to a ‘low point’ of the inside of the reservoir 30” to permit
withdrawal of “substantially all of the fluid within the reservoir,” we agree
with the Examiner that Karl ’656’s container has a bottom portion
configured with a geometry that facilitates drainage through the first port at
a lowest point of the container while being worn, as claim 1 requires.
Appellant argues that the Examiner finds only that port 58 “allows”
for drainage of the fluid from body 32, whereas claim 1 requires a bottom
portion configured with a geometry that “facilitates” drainage through the
first port at a lowest point of the container while being worn. Reply Br. 2–3.
According to Appellant, “[f]acilitation is more th[a]n simply ‘allow[ing]
drainage’ as the Examiner’s Answer alleges.” Id. at 3. Appellant submits
that “‘facilitates’ means ‘to make easier: help bring about,’” whereas
“‘[a]llows’ . . . simply means to ‘permit.’” Id. at 3 (citing Merriam-
Webster.com Dictionary).
This argument is not persuasive of Examiner error. Even if we were
to agree with Appellant that there is a meaningful difference between
“facilitates” and “allows,” the above excerpt of Karl ’656 sufficiently
Appeal 2021-000121
Application 15/429,944

7
supports the finding that block 58 of port 56 “help[s] bring about” drainage
through the first port at a lowest point of the container while being worn.
Appellant next disputes that Figure 14 of Karl ’433 depicts a first port
formed out of the bottom portion at a point where the bottom portion
connects to one of the side walls. Appeal Br. 9–10. Appellant submits that,
instead, “Karl ’433 states that ‘discharge port 46 is shown located near a
bottom portion of the reservoir 40 to maximize the capacity of fluid that may
be drawn by the user.” Id. The Examiner responds that, under the broadest
reasonable interpretation of the term, “‘bottom portion’ is being considered
as a lower area of the body (note that the bottom portion has not been limited
or claimed as to be a specific wall of the body).” Ans. 21. The Examiner
thus finds that the bottom portion of Karl ’433’s Figure 14 embodiment
includes the location at which port 46 is attached to the container. See id.
at 21 (“As can be seen from Fig. 14 below, Karl’433 teaches a first port 46
that is formed out of the bottom portion, at a point . . . where said bottom
portion is connecting to a side wall of the body.”); id. at 22 (Examiner’s
annotated version of Figure 14 of Karl ’433 showing location of “bottom
portion”). In the Reply Brief Appellant reiterates that Figure 14 “clearly
shows that port 46 is formed above the bottom portion and in a plateau
within a sidewall of the Karl ’433 container.” Reply Br. 3.
This argument is not persuasive of Examiner error. Appellant does
not appear to allege that “bottom portion” has a special recognized meaning
in the art. Further, the Specification does not expressly define “bottom
portion,” much less limit the term to the bottom “surface,” bottom “side,” or
bottom “wall,” as Appellant’s argument implies. If claim 1 was intended to
be so limited, it would have been drafted to recite a bottom “wall,” just as it
Appeal 2021-000121
Application 15/429,944

8
recites two side “walls.” Because the claim instead recites a bottom
“portion,” it is reasonable to interpret “bottom portion” to be broader than
“bottom wall.” Karl ’433’s description of port 46 being “near” the bottom
portion of the embodiment depicted in Figure 14, at best, reflects a narrower
construction of “bottom portion” in that reference but does not, by itself,
impose a narrower construction on the present claim.
Appellant also argues that neither Karl ’656’s container nor
Karl ’433’s container provides “impact protection.” Appeal Br. 11.
According to Appellant, “[i]mpact protection is simply not a feature of
Karl ’656 or Karl ’433.” Id. Appellant disagrees with the Examiner’s
determination that “providing impact protection” is a “recitation[] of
intended use” (Non-Final Act. 6), asserting that this limitation “denotes an
actual state of configuration that fundamentally ties this limitation to the
physical characteristics of the claimed body.” Appeal Br. 12. The Examiner
responds that Karl ’656’s container is “made out of the same material as
disclosed by Appellant,” and thus Karl ’656’s container “has the capability
of providing impact protection when the container is adjacent the user’s
body.” Ans. 25 (citing Spec. ¶ 67; Karl ’656, 5:31–35). The Examiner
further notes that:
[Karl ’656] discloses in col. 6, lines 8–14, that the container 30
has sufficient rigidity in a predetermined shape (e.g. firmness,
stiffness, etc.) to substantially minimize deformation of the
body 32 when container 30 is [filled] with fluid (e.g. chilled
fluids, hot fluids, etc.) and provides substantial durability (e.g.
resistance to scuffs, punctures, ruptures, etc.) during a wide
variety of potential activities by a user.
Appeal 2021-000121
Application 15/429,944

9
Id. (citing Karl ’656, 6:8–14). Appellant replies that “[m]inimizing
distortion when the body is filled with liquid and being resistant to scratches
is not the same thing as providing impact protection.”
We are not persuaded of Examiner error. If a claim is otherwise
structurally complete, a limitation that only states a purpose or intended use
for the invention is not given patentable weight. Bell Communications
Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615, 620 (Fed.
Cir. 1995). Appellant has not identified any additional structural
requirements imposed by the impact-protection limitation. Nor are we
aware of any such requirement. Thus, we are not persuaded that the
Examiner erred in considering the impact-protection limitation to be a
statement of intended use.
Further, Karl ’656 appears to teach structure necessary to provide the
impact protection required by claim 1 and disclosed in the Specification. As
an initial matter, and contrary to the implication of Appellant’s argument,
claim 1 does not require the claimed container to provide impact protection.
Rather, it requires the hollow body of the container to be “adapted to
contain a substance for . . . providing impact protection.” Appeal Br. 22
(Claims App.). There appears to be no dispute that the container of Karl
’656 is adapted to contain a substance, e.g., water. Karl ’656, 4:29–50. The
disclosed invention is also adapted to contain water, among other hydrating
fluids. Spec. ¶¶ 31. Further, as the Examiner observed, Karl ’656’s
container and the disclosed container may be made of the same material,
e.g., low-density polyethylene (LDPE). Ans. 25 (citing Karl ’656, 5:31–35;
Spec. ¶ 67). Karl ’656 describes its container as being resistant to
“punctures” and “ruptures,” which implies some degree of impact protection
Appeal 2021-000121
Application 15/429,944

10
(and claim 1 is not limited to any particular degree or level of impact
protection).
Appellant finally argues that the MPEP requires the Examiner to make
an express finding that the combination of Karl ’656 and Karl ’433 would
have “yielded nothing more than predictable results to one of ordinary skill
in the art,” but the Examiner did not make such a finding. Appeal Br. 12
(citing MPEP § 2143). Appellant misreads the MPEP in this respect. The
MPEP identifies six exemplary rationales “that may support a conclusion of
obviousness,” including “[c]ombining prior art elements according to known
methods to yield predictable results.” MPEP § 2143 I.A. To support a
conclusion of obviousness of a claim under that specific rationale, the MPEP
states that it must be shown that “all the claimed elements were known in the
prior art and one skilled in the art could have combined the elements as
claimed by known methods with no change in their respective functions, and
the combination yielded nothing more than predictable results to one of
ordinary skill in the art.” Id. (citing KSR Int’l Co. v. Teleflex, Inc., 550 U.S.
398, 416 (2007)). But the Examiner did not rely on that rationale; instead,
the Examiner identified a motivation to combine the references in the prior
art. Non-Final Act. 5; see MPEP § 2143 I.G (stating that obviousness may
also be shown by identifying “[s]ome teaching, suggestion, or motivation in
the prior art that would have led one of ordinary skill to modify the prior art
reference or to combine prior art reference teachings to arrive at the claimed
invention”). Thus, this argument is not persuasive of Examiner error.
Independent Claim 10
Claim 10 differs from claim 1 in that it additionally recites: (1) “said
body having a surface with an outer edge”; and (2) “the first port being
Appeal 2021-000121
Application 15/429,944

11
formed within a recessed portion of the outer edge such that an outer portion
of the first port is at or below an outer portion of the outer edge.” Appeal
Br. 23 (Claims App.). The Examiner finds, inter alia, that:
While Karl ’656 discloses the first port formed out of the
bottom portion, Karl ’656 fails to explicitly disclose the first
port formed out of the bottom portion at a point where the
bottom portion connects to one of the side walls, and said first
port being formed within a recessed portion of the outer edge
such that an outer portion of the first port is at an outer portion
of the outer edge.
Non-Final Act. 7. The Examiner therefore relies on Karl ’433 to teach the
missing limitation. According to the Examiner:
Karl’433 teaches a modular personal hydration and storage
system (refer to Fig. 14), comprising a first port (46) formed out
of a bottom portion at a point where the bottom portion
connects to one of a side walls . . . and the first port (46) being
formed within a recessed portion (. . . wherein the term
“recessed” is being considered to be a small space created by
building part of a wall further back from the rest) of the outer
edge (see below) such that an outer portion of the first port is at
an outer portion of the outer edge . . . in order to maximize the
capacity of fluid that may be drawn by the user (refer to par. 46,
lines 3–5).
Id.
In addition to arguments raised in connection with claim 1, which, as
discussed above, we found unpersuasive, Appellant asserts that “the
language ‘wall further back from the rest’ implies that the Office Action is
now considering the portion where the port 46 is formed as part of the side
wall, which is inconsistent with the reading of the same structure in the
rejection of claim 1.” Appeal Br. 15. Appellant does not explain why this
Appeal 2021-000121
Application 15/429,944

12
would be the case, however. The Examiner’s use of the phrase “wall further
back from the rest” was merely as part of the Examiner’s definition of
“recessed,” and is not a reference to a “side wall.” Non-Final Act. 7. The
Examiner found that port 46 is formed within a recessed portion of “the
outer edge,” not of the side wall. Id. Appellant further asserts that the
Examiner’s “interpretations are not reasonable and inconsistent with the
present specification and figures.” Appeal Br. 15. But, again, Appellant
does not explain why this would be the case, and thus this assertion is little
more than attorney argument, unsupported by evidence, to which we give
little weight. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
Claims 2–5 and 15–16
Appellant does not separately argue the patentability of claims 2–5,
15, and 16. Appeal Br. 16. Accordingly, for the reasons discussed above,
we sustain the rejection of these claims as unpatentable over Karl ’656 and
Karl ’433.
Remaining Rejections
For claims 7, 8, 9, 11, 12, 17–21, and 22, Appellant relies on
arguments made in support of the patentability of claim 1, which we found
unpersuasive. Appeal Br. 17–21. Accordingly, we sustain the Examiner’s
rejections under 35 U.S.C. § 103 of: (1) claims 7 and 8 as unpatentable over
Karl ’656, Karl ’433, and Boxer; (2) claim 9 as unpatentable over Karl ’656,
Karl ’433, and Spencer; (3) claim 11 as unpatentable over Karl ’656, Karl
’433, and Loofbourrow; (4) claims 12 and 17–21 as unpatentable over Karl
’656, Karl ’433, and Adam; and (5) claim 22 as unpatentable over Karl ’656,
Karl ’433, Adam, and Spencer.
Appeal 2021-000121
Application 15/429,944

13
CONCLUSION
The Examiner’s rejections are affirmed.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
5 112(b) Indefiniteness 5
1–5, 10, 15,
16
103 Karl ’656, Karl
’433
1–5, 10, 15,
16

7, 8 103 Karl ’656, Karl
’433, Boxer
7, 8
9 103 Karl ’656, Karl
’433, Spencer
9
11 103 Karl ’656, Karl
’433, Loofbourrow
11
12, 17–21 103 Karl ’656, Karl
’433, Adam
12, 17–21
22 103 Karl ’656, Karl
’433, Adam,
Spencer
22
Overall
Outcome
1–5, 7–12,
15–22

TIME PERIOD FOR RESPONSE
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)(1)(iv) (2019).
AFFIRMED