Martin, Peter

Patent Trials and Appeals Board

Jun 29, 2020

2019004680 (P.T.A.B. Jun. 29, 2020)

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.
14/942,420 11/16/2015 Peter Martin 108-004US 1059
63409 7590 06/29/2020
PATENT LAW PROFESSIONALS
P.O. BOX 612407
SAN JOSE, CA 95161
EXAMINER
GRIFFIN, WALTER DEAN
ART UNIT PAPER NUMBER
1774
NOTIFICATION DATE DELIVERY MODE
06/29/2020 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):
WWINTERS@PATENTLAWPROS.COM
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PETER MARTIN

Appeal 2019-004680
Application 14/942,420
Technology Center 1700
____________

Before GEORGE C. BEST, N. WHITNEY WILSON, and
MICHAEL G. McMANUS, Administrative Patent Judges.

McMANUS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of the
Examiner’s decision to reject claims 1–8. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as the named
inventor, Peter Martin. Appeal Brief dated Jan. 18, 2019 (“Appeal Br.”) 4.
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CLAIMED SUBJECT MATTER
The present application generally relates to an apparatus for
promoting the pourability of beverages “from beverage containers used in
the preparation and blending of semi-frozen and semi-fluidic beverages.”
Specification filed Nov. 16, 2015 (“Spec.”) ¶ 2. The Specification teaches
that “[a]n exemplary beverage container for a blender includes one or more
vibrating mechanisms coupled to a bottom portion of the beverage container
or integrated within one or more walls of the beverage container.” Id. ¶ 6.
A beverage container of this type is shown in Figure 3, reproduced below.

Figure 3 depicts pouring a semi-fluidic beverage 300 such as a smoothie into
cup 302. Id. ¶ 27. Figure 3 shows vibrating mechanisms 120 with
vibrations shown as opposing arrows. Id.
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Claims 1 and 7 are illustrative of the subject matter on appeal and are
reproduced below with certain limitations bolded for emphasis:
1. A smoothie blender and smoothie pouring apparatus,
comprising:
a blending pitcher including a removable blending pitcher lid
and a pouring spout formed in a lip of the blending pitcher,
said pouring spout configured to channel a thick, viscous
smoothie, as the thick, viscous smoothie is being dispensed
from the blending pitcher;
a cutting blade configured to be disposed inside the blending
pitcher during blending of the thick, viscous smoothie, said
cutting blade operable to cut and crush ice, fruit, and other solid
smoothie ingredients;
a blender docking station including a blender motor that turns
said cutting blade during blending of the thick, viscous
smoothie;
a blending pitcher attachment configured to dock and undock
the blending pitcher to and from the blender docking station,
said blending pitcher attachment configured to remain attached
to the blending pitcher both when the blending pitcher is
docked in the blender docking station and the thick, viscous
smoothie is being prepared and when the blending pitcher is
undocked from the blender docking station and the thick,
viscous smoothie is being dispensed from the blending pitcher;
and
one or more vibrating mechanisms housed within or attached
to the blending pitcher attachment configured to aggressively
shake and vibrate the blending pitcher attachment and the
blending pitcher when the blending pitcher attachment and
blending pitcher are undocked from the blender docking station
and a human pourer is dispensing the thick, viscous smoothie
from the blending pitcher,
wherein the one or more vibrating mechanisms has/have a
physical constitution and vibrational capacity sufficient to
generate and mechanically transmit vibrations to the blending
pitcher that are of a magnitude necessary to dislodge and
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extricate accumulations of the thick, viscous smoothie that
accumulated in a bottom of the blending pitcher during
blending and compel the thick, viscous smoothie to pour from
the blending pitcher.
7. The smoothie blender and smoothie pouring apparatus of Claim
5, wherein the one or more vibrating mechanisms further
comprises a motor and the moveable mass comprises a weight
that is coupled to a shaft of the motor and offset from a
longitudinal axis of a shaft of the motor.
Appeal Br. 38–39 (Claims App.) (reformatted for clarity; emphasis added).
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Fleming US 2,829,529 Apr. 8, 1958
Eckert US 3,465,974 Sept. 9, 1969
Rothley US 5,797,313 Aug. 25, 1998
Montgomery US 5,842,901 Dec. 1, 1998

REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1–8 are rejected under pre-AIA 35 U.S.C. § 112, ¶ 1
as failing to comply with the written description requirement.
Non-Final Action dated June 8, 2018 (“Non-Final Act.”) 4-5.
2. Claim 7 is rejected under pre-AIA 35 U.S.C. § 112, ¶ 2 for
failure to particularly point out and distinctly claim the
subject matter which the inventor regards as the invention. Id.
at 5–6.
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3. Claims 1–4 and 8 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Montgomery in view of
Rothley. Id. at 6–9.
4. Claims 5 and 6 are rejected under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over Montgomery in view of Rothley and
further in view of Eckert. Id. at 9–10.
5. Claims 5–7 are rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Montgomery in view of Rothley and
further in view of Fleming. Id. at 10–11.
DISCUSSION
Rejection 1. The Examiner rejects claims 1–8 for failure to comply
with the written description requirement. Id. at 4–5. The Examiner
determines that the term “pouring spout” as used in claim 1 is new matter
and that “Applicant’s original specification filed 2/15/2010 is silent with
respect to any ‘pouring spout’.” Id. at 4.
Appellant contends that the rejection is in error. Appeal Br. 7–8.
Appellant asserts that, although the Specification as filed does not use the
term “pouring spout” or textually describe such feature, one of the originally
filed drawings depicts a pitcher with a projecting lip. Id. Appellant further
contends that one of ordinary skill in the art would understand the projecting
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lip to be a pouring spout. Id. at 8. Figure 12, showing the projecting lip, is
reproduced, in part, below.

Figure 12 is “a side sectional drawing of a beverage blender.” Spec. ¶ 19.
In the Answer, the Examiner determines that “Figure 12 merely
appears to show a cosmetic projection in the upper, outer surface of the
pitcher 1202, which has no contact with the inner surface contacting the
internal liquid within their pitcher.” Answer 11. The Examiner further
indicates that “[t]he projection shown in the figure would not facilitate
pouring, and Appellant’s original specification filed 2/15/2010 does not
describe this projection or some other ‘pouring spout’ in any detail.”
Answer 11–12.
To satisfy the written description requirement of 35 U.S.C. § 112, the
inventor must “convey with reasonable clarity to those skilled in the art that,
as of the filing date sought, he or she was in possession of the invention.”
Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563–64 (Fed. Cir. 1991)
(emphasis omitted). “One shows that one is ‘in possession’ of the invention
by describing the invention, with all its claimed limitations.” Lockwood v.
Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997). Possession may be
shown “by such descriptive means as words, structures, figures, diagrams,
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formulas, etc., that fully set forth the claimed invention.” Lockwood, 107
F.3d at 1572.
Here, Figure 12 shows a projection located in the upper left portion of
the drawing. Spec., Fig. 12. The projection is located on the side opposite
the handle as one would expect for a pouring spout. Given the appearance
and location of the projection, it is reasonable to conclude that one of
ordinary skill in the art would regard such feature as a spout to facilitate
pouring, notwithstanding the apparent drafting error in the figure which
depicts the inner surface of the container as substantially vertical near the
spout. Accordingly, Appellant has shown error in this regard.

Rejection 2. The Examiner rejects claim 7 as indefinite. Non-Final
Act. 5. Claim 7 provides as follows:
The smoothie blender and smoothie pouring apparatus of Claim
5, wherein the one or more vibrating mechanisms further
comprises a motor and the moveable mass comprises a weight
that is coupled to a shaft of the motor and offset from a
longitudinal axis of a shaft of the motor.
Appeal Br. 40 (Claims App.) (emphasis added). The Examiner determines
that the term “the motor” as used in claim 7 is indefinite because claim 1
(from which claim 7 depends) also uses the term “motor” and “it is unclear
which of the previously recited ‘a motor’ from line 2 of claim 7 and ‘a
blender motor’ from line 9 of independent claim 1 are being referenced.”
Non-Final Act. 5.
Appellant argues that “those of ordinary skill in the art readily
understand that ‘the motor’ in [c]laim 7 refers to one of the motors attached
to or included within the ‘blending pitcher attachment.’” Appeal Br. 9.
Appellant additionally argues that one of ordinary skill in the art “would
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further understand, without any uncertainty or confusion, that ‘the motor’ in
Claim 7 is different from the ‘blender motor’ in Claim 1, especially since the
words ‘blender motor’ are used consistently throughout the claims.” Id.
During prosecution, a claim is examined for compliance with
35 U.S.C. § 112, ¶ 2 by determining whether the claim meets threshold
requirements of clarity and precision. In re Skvorecz, 580 F.3d 1262, 1268
(Fed. Cir. 2009) (quoting MPEP § 2173.02). A claim should be rejected as
indefinite when it is amenable to two or more plausible claim constructions.
Ex Parte Miyazaki, 89 U.S.P.Q.2d 1207, 1211 (B.P.A.I. 2008); In re
Packard, 751 F.3d 1307, 1324 (Fed. Cir. 2014) (“There are good reasons
why unnecessary incoherence and ambiguity in claim constructions should
be disapproved”). Here, the “motor” limitation of claim 7 is sufficiently
clear. Read in context, it is apparent that the motor of claim 7 is a
component of the “one or more vibrating mechanisms” which claim 1
requires to be “housed within or attached to the blending pitcher
attachment.” This contrasts with the “blender motor” which “turns said
cutting blade” and is located in the docking station. Accordingly, Appellant
has shown error in this regard.

Rejection 3. The Examiner rejects claims 1–4 and 8 as obvious over
Montgomery in view of Rothley. Non-Final Act. 6–9.
In support of the rejection, the Examiner finds, inter alia, that Rothley
discloses a blender docking station (base 12) comprising a motor (motor 32)
having a drive shaft (shaft 31) which rotates a cutting blade (blades of
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impeller 30) in a container. Id. at 8. Rothley’s Figure 1 is reproduced, in
part, below.

Figure 1 of Rothley shows “an overall view of a baby formula brewing
device according to an aspect of the present invention.” Rothley, col. 2:20–
21.
Rothley teaches that a mixing means “is operatively associated with
the bottle 27 so that . . . the liquid residing therein will be agitated to blend
the formula with the water.” Id. at col. 2:56–60. Rothley further teaches
that the mixing means may be “of a blender-type, with a shaft-mounted
impeller 30 sealed through a passageway in the bottom of the bottle 27 in the
manner of a conventional blender.” Id. at col. 2:62–65. Rothley also
teaches that, “[a]lternatively, a magnetic stirrer could be used, thus obviating
the need for a specially manufactured bottle.” Id. at col. 3:6–7.
Appellant alleges error on several bases. Appeal Br. 10–27. Among
its arguments, Appellant contends that Montgomery in view of Rothley fails
to teach a “cutting blade . . . operable to cut and crush ice, fruit and other
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solid smoothie ingredients.” Id. at 15–16. Appellant asserts that “the
impeller 30 [of Rothley] is designed only to mix water with a baby formula
powder to form a low-viscosity beverage that is capable of being dispensed
through a nipple of the baby bottle.” Id. at 16. Appellant further asserts that
“the words ‘cutting’ and ‘blade’ do not even appear in the Rothley patent.”
Id.
We find these arguments to be persuasive. Rothley teaches an
“impeller” or, alternatively, a “magnetic stirrer.” Neither component has
been shown to be synonymous with a blade nor has either been shown to be
“operable to cut and crush ice.” Accordingly, Appellant has shown error in
the prima facie case of obviousness of claim 1. As claims 2–4 and 8 depend
from claim 1 and incorporate each of its limitations, we further determine
that the determination of obviousness with regard to such claims is in error.
In view of such determination, we need not consider Appellant’s additional
arguments.

Rejections 4 and 5. The Examiner rejects claims 5–7 over the
combination of Montgomery, Rothley, and certain additional references.
Non-Final Act. 9–11. In making these rejections, the Examiner relies on
Rothley as teaching the “cutting blade” limitation. Id. As we have
determined such finding to be in error, we also reverse the rejections of
claims 5–7.

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CONCLUSION
The Examiner’s rejections are reversed.
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–8 112, ¶ 1 Written
Description
1–8
7 112, ¶ 2 Indefiniteness 7
1–4, 8 103(a) Montgomery,
Rothley
1–4, 8
5, 6 103(a) Montgomery,
Rothley, Eckert
5, 6
5–7 103(a) Montgomery,
Rothley, Fleming
5–7
Overall
Outcome
1–8
REVERSED