Ex Parte PurliyevDownload PDFPatent Trial and Appeal BoardMay 29, 201812340764 (P.T.A.B. May. 29, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/340,764 12/22/2008 Marat Purliyev 28410 7590 05/31/2018 BERENATO & WHITE, LLC 6550 ROCK SPRING DRIVE SUITE 240 BETHESDA, MD 20817 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. 6511.lOl_US 9683 EXAMINER MORNHINWEG, JEFFREY P ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 05/31/2018 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): uspto.filings@bw-iplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARAT PURLIYEV Appeal2017-008183 Application 12/340,764 Technology Center 1700 Before ADRIENE LEPIANE HANLON, A VEL YN M. ROSS, and SHELDON M. McGEE, Administrative Patent Judges. HANLON, Administrative Patent Judge. DECISION ON APPEAL A. STATEMENT OF THE CASE The Appellant filed an appeal under 35 U.S.C. § 134(a) from an Examiner's decision rejecting claims 21-24, 29, 30, 32, and 36-43. 1 We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE. 1 Claims 25-28, 31, and 33-35 are also pending but have been objected to as being dependent upon a rejected base claim. The Examiner indicates that claims 25-28, 31, and 33-35 would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Non-Final Office Action dated March 25, 2016 ("Non-Final Act."), at 7. Appeal2017-008183 Application 12/340,764 The claimed subject matter is directed to an infusion package of the type that is immersed in an extracting liquid, such as an infusion tea package that is immersed in water. Spec. 1. The Appellant discloses that "[p ]reviously, is has been found that infusion of the contents of a tea package in hot water occurs more quickly and completely if the package does not lie at the bottom of a cup, but floats in the upper layers of the water." Spec. 1. The Appellant discloses that infusion packages having external floatation means attached to the packages are known in the art. Spec. 1-2. Likewise, the Appellant discloses that infusion packages comprising floatable particles mixed with the infusible material or floatable disks attached to an inside wall of the infusion package are known in the art. Spec. 2. According to the Appellant, the disclosed prior art infusion packages, however, suffer from several disadvantages, including being complicated and expensive to produce. Spec. 2. The Appellant discloses an alternative floatable infusion package comprising at least one prepared raw material compartment containing a quantity of a prepared raw material (e.g., tea) and at least one floatation compartment containing floatation material only. Spec. 2-3. Representative claim 21 is reproduced below from the Claims Appendix of the Appeal Brief dated July 5, 2016 ("App. Br."). 21. An infusion package comprising: a sleeve, including at least one prepared raw material compartment and at least one floatation compartment formed therein to define a monolithic unit: wherein the sleeve is constructed of a liquid-permeable material; 2 Appeal2017-008183 Application 12/340,764 wherein the at least one prepared raw material compartment is defined by sealed partitions formed in the sleeve and contains therein a quantity of prepared raw material to be immersed into a liquid; and wherein the at least one floatation compartment is defined by sealed partitions formed in the sleeve and contains therein an inert floatation material. App. Br. 25. Similarly, independent claims 30 and 36 recite an infusion package comprising at least one raw material compartment containing a quantity of prepared raw material and at least one floatation compartment containing an inert floatation material. App. Br. 26-27. The claims on appeal stand rejected as follows: 2 (1) claims 21-24, 29, 30, 32, and 36-38 under 35 U.S.C. § 103(a) as unpatentab le over Greco et al. 3 in view of Dobry; 4 and (2) claims 39-43 under 35 U.S.C. § 103(a) as unpatentable over Greco in view of Dobry, and further in view of Rodriques-Ely et al. 5 B. DISCUSSION The Examiner finds Greco discloses an infusion package comprising a flat sleeve constructed of a liquid-permeable material, wherein the sleeve comprises at least one prepared raw material compartment and at least one additional compartment. Ans. 6. The Examiner finds Greco does not 2 In the Examiner's Answer dated March 13, 2017 ("Ans."), the Examiner withdrew the§ 103(a) rejections in the Non-Final Office Action dated March 25, 2016, and entered new grounds of rejection based on the same prior art. See Ans. 2. 3 US 2005/0208181 Al, published September 22, 2005 ("Greco"). 4 US 3,809,215, issued May 7, 1974 ("Dobry"). 5 CA 1,002,001, issued December 21, 1976 ("Rodriques-Ely"). 3 Appeal2017-008183 Application 12/340,764 disclose that the additional compartment contains an inert floatation material. Ans. 7. Rather, Greco discloses that the additional compartment contains a weight that makes the body portion of the package "sink and remain totally immersed in the boiling water, providing more effective steeping of the tea ... held in the [raw material] compartment." Greco i-f 29. The Examiner finds Dobry discloses an infusion package having a float attached to or incorporated into the package. Ans. 7; see also Dobry, col. 2, 11. 36-38 (disclosing that "a flexible chamber containing a gas which chamber is attached to or incorporated into the tea bag"). The Examiner concludes that it would have been obvious to one of ordinary skill in the art to incorporate Dobry's float into Greco's infusion package to maintain an optimum infusion position in a vessel. Ans. 8. To support the conclusion of obviousness, the Examiner finds: Greco et al. teaches the utilization of a weight only to the extent necessary to lower a tea bag from the surface of the water, since weighting the tea bag to such a degree that it sank and rested on the bottom of the vessel would compromise the stated aim of "providing an increased infusion area" due to a portion of the infusion area being out of contact with the water and instead in contact with the vessel surface (see, e.g., [0005], where the same effect is discussed for a tea bag that floats to the top of a cup, and presumably has some portion of the infusion area exposed from the liquid[6J). 6 Paragraph 5 of Greco states, in relevant part: [W]hen the porous bag is immersed in water, it has a tendency to rise up in the cup due to captured air bubbles and the light density of the materials in the bag. When the porous bag floats to the top of the cup, the rate of steeping of the materials into the cup is reduced. Thus, it is commonplace for users to use a spoon to keep the porous bag totally immersed in the water. 4 Appeal2017-008183 Application 12/340,764 Ans. 7-8. The Appellant argues that "[ t ]he allegation that the weight (26) sinks the tea bag of Greco only to the extent necessary to lower a tea bag from the surface of the water is factually unsupported." Reply Br. 4; see also Reply Br. 11, 16.7 The Appellant argues that Greco teaches that the weight makes the tea bag sink and remain totally immersed in the water. Reply Br. 6 (citing Greco i-f 29); see also Reply Br. 13, 18. In contrast, the Appellant argues that Dobry's float maintains the package in a horizontal floating position at about or near the upper surface of the extracting liquid. Reply Br. 6 (citing Dobry, col. 1, 11. 63---65); see also Reply Br. 13, 18. Therefore, the Appellant argues that "the prior art provides no logical reason, suggestion or motivation to modify the multi-compartmented design of Greco ... by adding the floatation chamber of Dobry .... " Reply Br. 6-7 (emphasis omitted) (citing Greco i-fi-1 7-9, 26; Dobry, col. 1, 11. 63-65); see also Reply Br. 13, 18-19. The Appellant also argues that Greco and Dobry teach away from the Examiner's proposed combination. Reply Br. 7-8; see also Reply Br. 14, 20. The Appellant's arguments are persuasive of reversible error. Greco does not disclose using a weight "only to the extent necessary to lower a tea bag from the surface of the water" (Ans. 7-8) or "only to the extent that the tea bag does not breach the surface of the liquid when submerged" (Ans. 15). Rather, Greco discloses that "an object of the invention [is] to provide a package for infusion beverages that remains totally immersed in water and resists any tendency to float." Greco i-f 7 (emphasis added); see also Greco 7 Reply Brief dated May 8, 2017. 5 Appeal2017-008183 Application 12/340,764 i-f 29 (disclosing that the weight makes the body portion of the infusion package sink). Dobry, on the other hand, discloses a floatation means that maintains an infusion package "in a horizontal floating position at about or near the upper surface of the extracting liquid" (Dobry, col. 1, 11. 63-65 (emphasis added)). Based on the foregoing, we find that Greco teaches away from the modification proposed by the Examiner (i.e., incorporating Dobry's float into Greco's infusion package). See In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) ("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."). Therefore, rejection (1) is not sustained. The Examiner does not rely on Rodriques-Ely to cure the deficiency in the combination of Greco and Dobry identified above. Therefore, rejection (2) also is not sustained. C. DECISION The Examiner's decision is reversed. REVERSED 6 Copy with citationCopy as parenthetical citation