Ex Parte Delande

Patent Trial and Appeal Board

Nov 30, 2016

12742350 (P.T.A.B. Nov. 30, 2016)

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.
12/742,350 05/11/2010 Bruno Sadi Henri Delande 3712036-1078 4903
29157 7590 12/02/2016
K&T Oates T T .P-Phiraan
EXAMINER
P.O. Box 1135
CHICAGO, IL 60690
LONG, DONNELL ALAN
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
12/02/2016 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):
USpatentmail@klgates.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRUNO SADI HENRI DELANDE
Appeal 2014-003400
Application 12/742,350
Technology Center 3700
Before MICHELLE R. OSINSKI, JEFFREY A. STEPHENS, and
GORDON D. KINDER, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) from the
Examiner’s Final Office Action (“Final Act.”) rejecting claims 1—12. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The real party in interest is identified as Nestec S.A. App. Br. 2.
Appeal 2014-003400
Application 12/742,350
Claimed Subject Matter
Claim 1, reproduced below with disputed limitations emphasized,
illustrates the claimed subject matter.
1. A dispensing device for the delivery of at least one edible
product comprising:
a support having means for generating compressed gas,
at least one container containing the edible product, the
container having walls comprising at least two layers such that
when the container is connected to the support and the means are
operated to generate compressed gas, the compressed gas fills the
space between the layers so as to press the product out of the
container, the container having a base comprising a channel to
conduct compressed gas from the means for generating
compressed gas to a space between the layers of the walls of the
container,
the dispensing device further comprises fitment means for
establishing a fluid connection between the container and the
support in a removable and leak-tight manner, the fitment means
comprising:
at least one orifice having a shape selected from the group
consisting of cylindrical, conical and frusto-conical located on
the container or on the support, the orifice having an ovoid cross-
section and comprising at least one groove or protrusion disposed
parallel the longitudinal axis of the orifice,
a one-way valve to allow compressed air generated by the
gas-compression means to flow only from the support to the
container, and
at least one corresponding plug located on the support, or
respectively on the container, for removably fitting the orifice in
a leak-tight manner.
Rejection
Claims 1—12 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Maas et al. (WO 2007/039167 Al, published Apr. 12, 2007), Wauters
et al. (US 7,810,679 B2, issued Oct. 12, 2010), Kreczko et al. (US
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Application 12/742,350
4,982,761, issued Jan. 8, 1991), and Erb (WO 2006/013248 Al, published
Feb. 9, 2006).
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments (App. Br. 5—14; Reply Br. 2-4). We are not persuaded by
Appellant’s arguments. We adopt as our own the findings and reasons set
forth by the Examiner in the action from which this appeal is taken, in the
Advisory Action, and in the Answer (see Ans. 5—8). We highlight and
address specific arguments and findings for emphasis as follows.
Claims 1, 3—9, 11, and 12
Appellant argues Maas, Wauters, Kreczko, and Erb, alone or in
combination, fail to disclose or suggest “the container having a base
comprising a channel to conduct compressed gas from the means for
generating compressed gas to a space between the layers of the walls of the
container,” as recited in claim 1. App. Br. 7. We are not persuaded.
In particular, Appellant contends that Maas’s supply line 13 does not
conduct compressed gas to a space between the layers of the walls of the
container 2 because the Examiner concedes that Maas does not disclose two
layers of the walls of the container. App. Br. 8 (citing Final Act. 2; Maas
Fig. 18). Although Maas states that its form-retaining container includes “a
chamber for the displacing medium that is separated from the part of the
container containing the product by means of a flexible diaphragm” (Maas
1:14—16), the Examiner finds Maas does not teach walls with at least two
layers (Final Act. 2). For the “two layers” limitation, the Examiner relies on
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Application 12/742,350
Wauters. Id. (referring to Wauters’s layers 40, 55). We agree with the
Examiner that Wauters teaches walls having at least two layers. Regarding
Wauters, Appellant does not specifically challenge the Examiner’s finding
relating to the claimed two layers or one-way valve, and instead focuses on
whether Wauters remedies the alleged deficiencies of Maas by teaching a
channel in a base of the container. App. Br. 8—9. Thus, Appellant’s
arguments do not apprise us of error in the Examiner’s finding that Wauters
teaches the claimed layers and one-way valve.
Appellant also argues that Maas’s supply line 13 is located in a frame
4 of the dispensing device 1, not a base of the container 2, and thus cannot
be the claimed channel in the base of the container. App. Br. 8 (citing Maas
Fig. 18); Reply Br. 2. In the Answer, however, the Examiner identifies the
supply line or channel as elements 13, 14, and 28 in Maas. Ans. 5 (citing
Maas 7:26-31, 8:27-31, Figs 16, 17).
The cited portions of Maas support, by a preponderance of the
evidence, the Examiner’s finding that Maas’s container has a “base
comprising a channel to conduct compressed gas,” as recited in claim 1.
Maas explains that supply line 13 runs from the pump to a connector 14.
Maas 7:26—29. “During use this connector 14 is connected to a supply port
that is arranged in the neck 15 of the container 2.” Maas 7:29—31. Maas
describes in further detail that connector 14 is part of fitting 26 attached to
frame 4, and that connector 14 “is connected to a corresponding connector
28 in the dispensing adapter 27, which in turn is connected to the supply port
for the displacing medium arranged in the container neck.” Maas 8:23—31.
Maas’s dispensing adapter 27 is separate from frame 4 and attaches to the
container. We agree with the Examiner (Ans. 5) that dispensing adapter 27
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Application 12/742,350
is a base of Maas’s container, and Appellant has not persuasively rebutted
this finding.
In addition, Appellant has not persuasively explained why at least the
portion of Maas’s frame 4 that receives container 2 may not also be the base
belonging to the container claimed in claim 1, which recites a “container
having a base.” In the Reply Brief, Appellant contends that the Examiner
interprets the base in claim 1 to include a base that is merely associated with
the container, and contends that the Specification describes the base as a
portion of the container. Reply Br. 2 (citing Spec. 5:9 and 6:8—9 (referring
to “base portion 12”)). As the Examiner finds, the base may be a separate
element from the container. Ans. 6 (citing Spec. 5:11 (“The base 12 is
assembled as a separate element to the bottom side of the container 5.”)).
Appellant acknowledges that the base may be separable from the container,
but suggests there is a distinction between being “separable” and “separate
from’’ the container. Reply Br. 2. To the extent there is a distinction, which
is not explained by Appellant, we note that page 5, line 11, of the
Specification does not use the term “separable,” and instead states that base
12 is “assembled as a separate element to the bottom side of the container
5.” To the extent Appellant is arguing that the base must at least be in
contact with the container in order to be considered a base of the container,
Maas teaches that “frame 4 includes an upright part or fitting 26 having a
closed circumference, thus defining an opening for accommodating the neck
15 of the container 2.” Maas 8:23—25. Thus, even if there may be elements
“associated with” the container that cannot be considered its base, the
elements relied on by the Examiner in Maas are engaged with the container
and properly considered its base.
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Application 12/742,350
Accordingly, for the reasons discussed above and by the Examiner,
we are not apprised of error in the Examiner’s rejection of claim 1 under
35 U.S.C. § 103(a) as unpatentable over Maas, Wauters, Kreczko, and Erb.
Thus, we sustain the rejection of claim 1, and, for the same reasons, the
rejection of claims 3—8, 11, and 12, which are not argued separately (see
App. Br. 7).
Appellant’s arguments relating to claim 9 present the same issues
presented with respect to claim 1. App. Br. 12—13. Thus, for the same
reasons, we sustain the rejection of claim 9.
Claims 2 and 10
Appellant argues Maas, Wauters, Kreczko, and Erb, alone or in
combination, fail to disclose or suggest “a channel in the base of the
container to conduct compressed gas from the orifice to a space between the
layers of the walls of the container, the channel in the base of the container
comprising the one-way valve,” as recited in independent claim 2. App. Br.
10. For the reasons discussed above for claim 1, we are not persuaded by
the argument as to the location of the channel and identity of the base in
Maas.
Claim 2, however, is narrower than claim 1 in that it specifies that
“the channel in the base of the container compris[es] the one-way valve.”
Appellant argues that Wauters’ “tubing 94 is external to the container 22,
and the tubing 94 merely connects at one end to the reservoir 92 of the base
and at the other end to the valve 98 that is mounted on the top portion 42 of
the container 22.” App. Br. 10. As Appellant’s argument acknowledges,
Wauters’ valve 98 is mounted on the top portion 42 of the container 22, and
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Application 12/742,350
is thus a part of the container. See also Ans. 6 (“Wauters teaches placing the
one-way valve in a collar (46), which corresponds to the dispensing adapter
(27) of Maas that constitutes a portion of the base and gas supply channel as
discussed above.”); Wauters col. 5,11. 33—35 (“The air valve 98 is located
within the collar 46 of the keg in a standardized location.”).
To the extent Appellant is arguing that the “top” of the container
cannot be considered its “base,” we agree with the Examiner (Ans. 6) that
claim 2 does not specify a particular location of the base on the container.
Appellant also has not pointed to any definition of the term “base” in the
Specification that would limit the particular location. Ans. 6—7.
We also agree with the Examiner that “[e]ven if the claims did require
that the base be located on the bottom of the container opposite a dispensing
outlet at the top as implied by the Appellant, Maas teaches that the gas
supply port may be arranged on the bottom of the container opposite the
discharge outlet (page 13, lines 11—17).” Ans. 7. Thus, we agree with the
Examiner that it would have been obvious “to rearrange the channel and its
associated structure (i.e., the base, one-way valve, etc.) on the bottom of the
container opposite the discharge outlet because it is a known alternative
arrangement as taught by Maas and would not have affected the
functionality of the apparatus.” Id.
Appellant responds that “one skilled in the art would understand from
the disclosure of Maas that, regardless of the arrangement of the supply port,
the supply port is still located in the frame 4 of the dispensing device at all
times.” Reply Br. 4. Appellant’s contention is incorrect. The supply port
referred to on page 13 of Maas is “arranged in the neck 15 of the container
2.” Maas 7:30-31. Maas explicitly teaches that when this port “is arranged
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Application 12/742,350
at a different location, e.g. opposite the outflow opening, the connector may
be rearranged accordingly.” Maas 13:15—17. As Maas recognizes, this
arrangement is one example showing “it is not always necessary to arrange
the connector for supplying the displacing medium next to the outflow
control means.” Maas 13:11—13. Thus, even if claim 2 required the base to
be opposite the dispensing opening on the container, which is not the case,
we agree with the Examiner (Ans. 7—8) that Maas explicitly teaches such an
arrangement and would, therefore, benefit from any technical advantage
associated with it.
Accordingly, for the reasons discussed above and by the Examiner,
we are not apprised of error in the Examiner’s rejection of claim 2 under
35 U.S.C. § 103(a) as unpatentable over Maas, Wauters, Kreczko, and Erb.
Thus, we sustain the rejection of claim 2.
Appellant’s arguments relating to claim 10 present the same issues
presented with respect to claim 2. App. Br. 13—14. Thus, for the same
reasons, we sustain the rejection of claim 10.
DECISION
We affirm the Examiner’s decision to reject claims 1—12.
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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