Ex Parte Trombetta

Patent Trial and Appeal Board

Oct 18, 2018

14224646 (P.T.A.B. Oct. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/224,646
20736 7590
Manelli Selter PLLC
10560 Main Street
Suite PH6
Fairfax, VA 22030
FILING DATE FIRST NAMED INVENTOR
03/25/2014 Liberatore A. Trombetta
10/22/2018
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.
31-634 1021
EXAMINER
KIM,BRYAN
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
10/22/2018 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):
stemberger@mdslaw.com
jmelcher@mdslaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LIBERATORE A. TROMBETTA
Appeal2018-000264
Application 14/224,646
Technology Center 1700
Before CATHERINE Q. TIMM, ROMULO H. DELMENDO, and
JANEE. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner's decision to reject claims 11-16 and 19-32. We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant is the applicant, 2266170 Ontario Inc., which, according to the
Appeal Brief, is the real party in interest. Appeal Brief filed April 27, 2017
("App. Br."), 1.
Appeal2018-000264
Application 14/224,646
STATEMENT OF THE CASE
Appellant claims a capsule for use in a machine to prepare a desired
product, such as a beverage, the machine having an injection system for
injecting a fluid into the capsule. Claims 11 and 30 illustrate the subject
matter on appeal and are reproduced below with contested language
italicized:
11. A capsule for use in a machine to prepare a desired
product, the machine having an injection system for injecting a
fluid into the capsule and a dispensing system for dispensing
the product from the capsule to a desired receptacle, the capsule
compnsmg:
a body defining an interior space having an opening;
ingredients disposed in said interior space for mixing
with a fluid to prepare a desired product;
a cover disposed over said opening for sealing said
interior space, said cover being adapted to be removed at least
partially from said opening following use of said capsule in the
machine;
indicia displayed on an interior surface of said capsule,
said indicia being adapted to deliver a desired message only
when said cover has been at least partially removed from said
capsule.
30. A capsule for use in a machine to prepare a desired
product, the machine having an injection system for injecting a
fluid into the capsule, the capsule comprising:
a body defining an interior space having an opening;
ingredients disposed in said interior space for mixing
with a fluid to prepare a desired product;
a cover disposed over said opening and sealed to said
body;
a removable closure disposed over a portion of said
capsule; and
indicia displayed on an interior surface of said capsule,
said indicia being adapted to deliver a desired message only
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when said removable closure has been removed from said
portion of said capsule.
App. Br. 14, 16-17 (Claims Appendix) (emphasis added).
The Examiner sets forth the following rejections in the Non-Final
Office Action entered January 31, 2017 ("Office Act."), and maintains the
rejections in the Examiner's Answer entered August 7, 2017 ("Ans."):
I. Claims 11-16 and 19-29 under 35 U.S.C. § 103 as
unpatentable over Kilber et al. (US 2010/0288131 Al, published
November 18, 2010) in view of Howes (5,896,686, issued April 27,
1999) and Markoulis et al. (US 2013/0108739 Al, published May 2,
2013); and
II. Claims 30-32 under 35 U.S.C. § 103 as unpatentable
over Kilber in view of Howes, Markoulis, and Schifferle (US
2005/0150390 Al, published July 14, 2005).
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellant's timely contentions,2 we affirm the Examiner's rejections
of claims 11-16 and 19-32 under 35 U.S.C. § 103 for the reasons set forth in
the Final Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence Appellant provides for each issue Appellant
identifies. 37 C.F.R. § 4I.37(c)(l)(iv); Ex parte Frye, 94 USPQ2d 1072,
2 We do not consider any new argument Appellant raises in the Reply Brief
that Appellant could have raised in the Appeal Brief. 37 C.F.R.
§ 4I.37(c)(l)(iv); 37 C.F.R. § 4I.41(b)(2) (arguments raised for the first
time in the Reply Brief that could have been raised in the Appeal Brief will
not be considered by the Board unless good cause is shown).
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107 5 (BP AI 2010) (precedential), cited with approval in In re Jung, 63 7
F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the examiner had
failed to make a prima facie case, "it has long been the Board's practice to
require an applicant to identify the alleged error in the examiner's
rejections").
Rejection I
Appellant argues claims 11-16 and 19-29 as a group on the basis of
independent claims 11 and 19,3 which Appellant argues together. App. Br.
3-11. Therefore, we select claim 1 as representative, and decide the appeal
as to claims 11-16 and 19-29 based on claim 1 alone. 37 C.F.R.
§ 4I.37(c)(l)(iv).
Kilber discloses cartridge (capsule) 50 suitable for use in a beverage
making machine that comprises container or cup 40 including body 41
defining an interior chamber that contains beverage ingredients 53 and has
an opening at the top, lid (cover) 51 sealed to flange 44 on top surface 45 of
cup 40, inlet means 60 for introducing an aqueous medium into cartridge 50,
and outlet means 58 for draining a beverage from cartridge 50. ,r,r 36, 37,
63; Figs. 3, 4, 6. Kilber discloses that the inlet 60 and outlet 58 means are
accomplished by constructing cartridge base 43 and lid 51 of materials that
allow them to be pierced by hollow tubes 60, 58 through which liquids enter
and exit cartridge 50. ,r 36; Fig. 6. Kilber discloses that the interior surface
of lid 51 may be affixed to container or cup 40 at flange 44 by "means well
known in the art" such as by an adhesive or by heat sealing. ,r 64.
3 Although Appellant presents arguments for Rejection I based on
independent claims 11, 19, and 30, claim 30 is not included in this rejection.
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The Examiner finds that Kilber does not disclose indicia displayed on
an interior surface of the cartridge, and does not disclose that the lid is
adapted to be removed at least partially from the opening at the top of the
cup following use of the cartridge in a beverage making machine, and the
Examiner relies on Howes and Markoulis for suggesting these features.
Office Act. 3-5.
Howes discloses that manufacturers often use promotional contests or
games to entice consumers to purchase a particular product, and explains
that one popular promotional game involves printing indicia under a cap
used to close and seal a beverage container. Col. 1, 11. 11-19. Howes
discloses a particular promotional system in which a prize award member is
mounted to the inside surface of a cap or closure for a container that holds
"any desired product," such as a beverage. Col. 2, 11. 57---col. 3, 1. 1; col. 4,
11. 48-55. Howes discloses that this arrangement eliminates any possibility
that winning prize members can be predetermined by consumers before
opening and removing the cap from the product container, thus incentivizing
customers to purchase the product. Col. 2, 11. 57-59; col. 3, 11. 18-22, 31-
42.
Markoulis discloses a container for preparing a beverage such as
coffee having upper 6 and lower 8 compartments that each include beverage
ingredients 10, 12, and are covered by removable lids 16, 18. ,r,r 6, 42--44;
Fig. 3. Markoulis describes providing indicia 22 on an inner sidewall of the
upper compartment 6 to facilitate preparation of a beverage. ,r,r 6; Fig. 3.
Markoulis discloses that lids 16, 18 can be formed of a foil laminate or other
suitable material, and are sealed to the top surface of upper and lower
compartments 6, 8 using heat or ultrasonic welding, or an adhesive. ,r 61;
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Fig. 3. Markoulis discloses providing tabs 38, 40 on each lid 16, 18 to
facilitate removal of the lids, and describes removing lids 16, 18 from the
top surface of upper and lower compartments 6, 8 by gripping and pulling
the tabs. ,r 50; Fig. 3.
In view of these disclosures in Kilber, Howes, and Markoulis, the
Examiner determines that modifying Kilber' s cartridge to include indicia
conveying prize information for a contest or game on an interior surface of
the cartridge, such as the inner side of the lid as disclosed in Howes, or the
interior side of the side wall as disclosed in Markoulis, so that the indicia is
only visible after the cartridge has been opened by removing the lid, would
have been obvious to one of ordinary skill in the art for the purpose of
enticing consumers to purchase the particular cartridge, thereby increasing
sales for the manufacturers, and preventing an individual from obtaining an
unfair advantage by predetermining a winning prize member without
purchasing the product. Office Act. 4--5.
The Examiner further determines that because the purpose of the lid
disclosed in Kilber is to seal and retain beverage ingredients within the
cartridge until use, and to allow for injection of water into the cartridge
during use, there would have been no need to keep the lid on the cartridge
after the beverage has been prepared, and the Examiner determines that it
therefore also would have been obvious to remove the lid disclosed in Kilber
after use of the cartridge to prepare a beverage in order to allow the
consumer to view the prize information or other indicia located within the
cartridge. Office Act. 5.
Appellant argues that Howes is non-analogous art because Howes is
not in the same field of endeavor as a cartridge containing precursor
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ingredients that must be placed into a machine to prepare a beverage, but
rather is directed to a bottle containing a prepared beverage that needs to be
opened and consumed. App. Br. 4--5. Appellant asserts that the problem
faced by the inventor relates to (i) encouraging consumers to purchase a
capsule adapted for use in a capsule machine by providing indicia with prize
information or other incentives within the capsule and (ii) encouraging
consumers to separate or remove components of the capsule following use in
a capsule machine to provide environmentally responsible disposal. App.
Br. 5. Appellant argues that a bottle containing a prepared beverage having
a bottle cap with prize award information as disclosed in Howes has no
relevance to this problem because the bottle is neither intended nor capable
of being used in a capsule machine, and does not have the combination of
components that give rise to the environmental concerns associated with a
capsule. App. Br. 5---6. Appellant asserts that Howes would not have
logically commended itself to Appellant's attention because the purpose of
Howes is to show a prize award under a bottle cap that needs to be removed
before using a product, which is a solution to a very different problem than
the problem addressed by Appellant, in which the cover of a capsule must
not be removed before use of the capsule, and a user is encouraged to
remove the cover following use of the capsule in a machine, even though
there is no need to remove the cover to prepare or consume a product. App.
Br. 6.
Appellant argues that Markoulis is non-analogous art because the
reference is directed to a different field of endeavor due to its disclosure of a
container adapted for preparing a beverage without the use of a capsule
machine. App. Br. 6. Appellant contends that Markoulis is also not
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reasonably pertinent to the problem faced by Appellant because the purpose
of Markoulis is to provide indicia to direct a consumer during preparation of
a beverage, which is a solution to a problem very different than the problem
addressed by Appellant in which the cover of a capsule must not be removed
before use of the capsule, and a user is encouraged to remove the cover
following use of the capsule in a machine, even though there is no need to
remove the cover to prepare or consume a product. App. Br. 6-7.
For a prior art reference to be analogous art, the reference must either
be in the field of the inventors' endeavor, or must be reasonably pertinent to
the particular problem with which the inventor was concerned from the
viewpoint of one of ordinary skill in the art. See, e.g., In re Kahn, 441 F.3d
977, 986-87 (Fed. Cir. 2006) (stating that the analogous art test requires that
"a reference is either in the field of the applicant's endeavor or is reasonably
pertinent to the problem with which the inventor was concerned ... based on
the judgment of a person having ordinary skill in the art.").
Appellant's Specification explains that the capsule of Appellant's
invention is adapted for use in a machine for preparing a desired consumable
beverage product and is designed to encourage consumers to purchase
Appellant's capsule over other capsules by providing promotional
information within the capsules, such as information concerning a prize that
a consumer has won by purchasing the capsule. Spec. ,r,r 1, 3, 4, 7, 29.
Appellant's Specification further explains that the capsule of Appellant's
invention is also designed to encourage consumers to disassemble
components of the capsules following use by providing the promotional
information within the interior space of the capsule, such that the capsule
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must be at least partially disassembled to access the information. Spec. ,r,r 5,
43.
One of ordinary skill in the art seeking to develop a capsule for
preparing a desired consumable beverage product that would encourage
consumers to purchase the capsule over other capsules, and would encourage
consumers to disassemble components of the capsules following use,
reasonably would have looked to Howes' disclosure of a promotional system
in which a prize award member including printed indicia is mounted to the
inside surface of a cap or closure for a food or beverage container, ensuring
that winning prize members cannot be predetermined by consumers before
purchasing the product, thereby incentivizing consumers to purchase the
particular product, and requiring them to disassemble the product to
determine if it includes a winning prize number.
One of ordinary skill in the art also reasonably would have looked to
Markoulis' disclosure of a container for preparing a beverage such as coffee
that includes indicia provided on an inner surface of the container for
information regarding placing indicia on an interior surface of a container
for preparing coffee.
Accordingly, regardless of whether the container disclosed in Howes
can be used in a capsule machine and gives rise to the same environmental
concerns as capsules used in a machine, and whether the cap disclosed in the
reference must be removed before consuming a product, and regardless of
whether the indicia disclosed in Markoulis provide direction to a consumer
during preparation of a beverage, one of ordinary skill in the art would have
understood Howes and Markoulis to be reasonably pertinent to the particular
problem with which Appellant was concemed----encouraging consumers to
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purchase a particular capsule adapted for use in a capsule machine by
providing indicia with prize information or other incentives within the
capsule, and encouraging consumers to separate or remove components of
the capsule following use to provide environmentally responsible disposal.
Appellant argues that Howes discloses a bottle having a twist-off cap,
and the indicia disclosed in Howes are disposed on member 20 that includes
lens portion 22 and is adapted to fit within cap 25 by friction. App. Br. 7.
Appellant argues that "[t]here is no suggestion on how one would modify
the capsule of Kilber [] to support member 20 and lens portion 22 beneath a
removable cap 25," and [i]f one were to follow a similar approach as Howes,
the indicia would be disposed under the cover of Kilber." App. Br. 7.
Appellant contends that "any such modification would not be piercable by
the injection system of a capsule machine." App. Br. 7-8. Appellant asserts
that "Howes discloses that the supporting member 20 and lens 22 are
required so that the indicia can only be viewed when the observation angle is
perpendicular to the image," and "omitting the support member 20 and lens
22 of Howes in the device of Kilber et al. would improperly destroy the
invention of Howes." App. Br. 8.
However, Howes discloses that prize award member 20 described in
the reference includes print portion 21 and lens portion 22, and may
comprise two separate and distinct images. Col. 4, 11. 42--47; col. 6, 11. 29-
40. Howes explains that for a consumer to view a first image printed on
print portion 21 of prize award member 20, the observer must view lens
portion 22 of award member 20 at a first angle, and to observe the second
image, the observer must rotate prize award member 20 to view lens portion
22 at a second angle. Col. 6, 11. 37-38, 46-53; Figs. 5 and 6. Accordingly,
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contrary to Appellant's arguments, reference numeral 20 disclosed in Howes
refers to a prize award member that includes print portion 21 and lens
portion 22, rather than a "support member."
Furthermore, Appellant's arguments do not address the rejection as set
forth by the Examiner, which is not based on a literal combination prize
award member 20 disclosed in Howes with beverage cartridge 50 disclosed
in Kilber. Rather, as the Examiner explains (Ans. 11-12), the rejection is
based on the suggestion stemming from the combined disclosures of Kilber,
Howes, and Markoulis discussed above of applying game or contest indicia
to the interior portion of the beverage cartridge disclosed in Kilber, such as
the underside of the lid, to entice consumers to purchase the particular
cartridge, and to require consumers to remove the lid to determine whether a
prize has been won. In re Keller, 642 F.2d 413,425 (CCPA 1981) ("The
test for obviousness is not whether the features of a secondary reference may
be bodily incorporated into the structure of the primary reference ....
Rather, the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art."). Therefore, Appellant's
arguments are unpersuasive of reversible error.
Appellant argues that there is no suggestion in Kilber of a cover
adapted to be removed at least partially following use of the capsule in a
machine as recited in claim 11. App. Br. 9. Appellant contends that Kilber
requires lid 51 to be sealed to top 45 of the capsule described in the
reference by bonding to flange 44. Id. (citing Kilber ,r 64).
However, Appellant's arguments are improperly based on Kilber
alone, and do not take into consideration what the combined disclosures of
Kilber, Howes, and Markoulis would have suggested to one of ordinary skill
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in the art at the time of Appellant's invention. In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references."); In re Keller, 642 F.2d 413,425
(CCPA 1981) (The test for obviousness "is what the combined teachings of
the references would have suggested to those of ordinary skill in the art.")
As discussed above, Markoulis discloses a container for preparing a
beverage having upper and lower compartments covered by removable lids
that include a tab that facilitates removal of the lids by allowing the tabs to
be gripped and pulled. In view of these disclosures, and in view of Howes'
disclosure of mounting a prize award member including printed indicia to
the inside surface of a cap or closure for a container that holds a beverage,
one of ordinary skill in the art reasonably would have been led to include
printed indicia on the inside surface of the cartridge disclosed in Kilber, and
would have utilized an adhesive to secure the lid to the container or cup of
the cartridge that would allow the lid to be removed, as disclosed in
Markoulis, to permit a consumer to at least partially remove the lid
following use of the beverage cartridge, as recited in claim 11, so that the
consumer could view the indicia on the inner surface of the cartridge to
determine whether a prize had been won. KSR Int 'l Co. v. Teleflex Inc., 550
U.S. 398,417 (2007) (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273,282
(1976) ("[W]hen a patent 'simply arranges old elements with each
performing the same function it had been known to perform' and yields no
more than one would expect from such an arrangement, the combination is
obvious.") Therefore, Appellant's arguments are unpersuasive of reversible
error.
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Appellant argues that one of ordinary skill in the art would not have
been motivated by Howes to provide indicia on Kilber's cartridge because it
is not common or required to at least partially remove the cover or closure
from Kilber's cartridge before or after use of the cartridge to prepare a
beverage in a machine, but "it is required in Howes to remove the cap in
order to consume the prepared beverage contained in the bottle." App. Br.
10. Appellant further argues that one of ordinary skill in the art would not
have been motivated by Markoulis to provide indicia on an interior of
Kilber' s cartridge because Kilber does not require indicia for filling the
capsule with a desired amount of fluid, which is managed automatically by a
machine. App. Br. 10-11. Appellant contends that it is not common or
required to at least partially remove the cover from Kilber' s capsule before
or following use of the capsule in a machine, but it is required in Markoulis
to remove the cover to access the interior of the container to pour water into
the container. Id.
However, as discussed above, one of ordinary skill in the art seeking
to develop a cartridge for preparing a desired consumable beverage product
that would encourage consumers to purchase the cartridge over other
cartridges, reasonably would have been led to modify the cartridge disclosed
in Kilber to include printed indicia for a promotional contest on the inside of
the cartridge as disclosed in Howes, and would have secured the lid to the
container or cup of the cartridge using an adhesive that would allow the lid
to be removed, as disclosed in Markoulis, to permit a consumer to at least
partially remove the lid following use of the cartridge, as recited in claim 11,
so that the consumer could view the indicia on the inside of the cartridge to
determine whether a prize had been won.
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One of ordinary skill in the art would have modified Kilber' s cartridge
in this manner to include indicia for a contest on an interior surface of the
cartridge as suggested by Howes and Markoulis regardless of whether it was
common or required to at least partially remove the lid from Kilber' s
cartridge before or after use of the cartridge to prepare a beverage in a
machine, or whether indicia were required on Kilber' s cartridge to fill the
cup with a desired amount of fluid, because such modifications would
nonetheless have prevented consumers from predetermining a winning prize
without first purchasing a cartridge, thereby incentivizing consumers to
purchase the modified cartridges over other cartridges, and consequently
increasing sales of the cartridges.
Accordingly, Appellant's arguments are unpersuasive of reversible
error in the Examiner's rejection of claim 1 under 35 U.S.C. § 103, and we
therefore sustain the Examiner's rejection of claims 11-16 and 19-29 under
35 U.S.C. § 103.
Rejection II
As set forth above, independent claim 30 requires the claimed capsule
to include a cover disposed over an opening in the body of the capsule, and a
removable closure disposed over a portion of the capsule.
The Examiner finds that the proposed combination of Kilber, Howes,
and Markoulis "does not specifically teach a removable closure disposed
over a portion of the capsule which is separate from the cover," and the
Examiner relies on Schifferle for suggesting this feature. Office Act. 8.
Schifferle discloses a cartridge containing coffee powder for preparing a
coffee beverage. ,r 9. Schifferle discloses that the cartridge comprises a
body including cover portion 4 and bottom portion 1 having aperture 20
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covered by gas-tight foil member 21, and filter element 2 located inside the
cartridge body between the coffee powder and aperture 20 in bottom portion
1 of the cartridge body. ,r,r 9, 18; Fig. 1. Schifferle discloses that gas-tight
foil member 21 includes flap L that facilitates manual removal of foil 21.
,I 18; Fig. 1.
In view of these disclosures in Schifferle, the Examiner determines
that it would have been obvious to one of ordinary skill in the art to modify
Kilber's cartridge modified as suggested by Howes and Markoulis to include
an aperture in the bottom of the cartridge covered with removable foil as
disclosed in Schifferle to allow for a simpler brewing mechanism that would
utilize passive flow of a brewed product and would not require a bottom wall
perforation device, which could become dull over time and fail to puncture
of the bottom wall of the cartridge. Office Act. 8.
Appellant argues that Kilber's machine ensures that beverage
ingredients are completely soaked because the rate of hot water being
injected into the cartridge is greater than the outflow rate provided by a tube
that pierces the bottom of the cartridge. App. Br. 11-12. Appellant
contends that if instead of this arrangement, the bottom of Kilber' s cartridge
included an aperture covered by a foil that was removed before brewing as
the Examiner proposes, the beverage would immediately exit the aperture
upon brewing, and the cartridge would not permit soaking of the ingredients,
rendering Kilber unsatisfactory for its intended purpose. Id.
However, in view of Kilber's disclosure that the "beverage ingredients
are completely soaked because the rate of hot water being injected into the
container is typically greater than the outflow rate provided by the outlet
tube(s)," one of ordinary skill in the art would have adjusted the outflow rate
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of a beverage produced by Kilber's cartridge modified as suggested by
Howes, Markoulis, and Schifferle to permit complete soaking of the
beverage ingredients, such as by including a filter element between the
coffee powder and the aperture, as disclosed in Schifferle, or by adjusting
the number of outlet tubes, as disclosed in Kilber, as the Examiner correctly
finds (Ans. 13). Kilber ,r 73; Schifferle ,r 9. Due to the open nature of the
"comprising" transitional phrase recited in claim 30, such features would not
be excluded by the claim.
Accordingly, Appellant's arguments are unpersuasive of reversible
error in the Examiner's rejection of claim 30 under 35 U.S.C. § 103, and we
therefore sustain the Examiner's rejection of claims 30-32 under 35 U.S.C.
§ 103.
DECISION
We affirm the Examiner's rejections of claims 11-16 and 19-32 under
35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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