THE COCA-COLA COMPANY

Patent Trials and Appeals Board

Dec 27, 2021

2021003450 (P.T.A.B. Dec. 27, 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.
15/128,576 09/23/2016 Kirk Walter DAHLBERG 25040-5252 1750
29052 7590 12/27/2021
EVERSHEDS SUTHERLAND (US) LLP
999 PEACHTREE STREET, N.E.
SUITE 2300
ATLANTA, GA 30309
EXAMINER
ZADEH, BOB
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
12/27/2021 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):
patentdocket@eversheds-sutherland.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KIRK WALTER DAHLBERG, YOULUNG CHEN,
CHARLES BRADLEY GREEN, JOSEF KLUCIK, JOHN MARTIN,
ROBERT B. BROWNELL JR., and CASSILYN BAIR
Appeal 2021-003450
Application 15/128,576
Technology Center 3700
Before DANIEL S. SONG, STEFAN STAICOVICI, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–6, 8–10, 12, and 13. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as The Coca-Cola
Company. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims relate to a dispensing nozzle. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A dispensing nozzle for use with a flow of a diluent and a
flow of a Stevia-based concentrate, comprising:
an annular concentrate path of the flow of the Stevia-based
concentrate; and
an annular diluent path surrounding at least in part the
annular concentrate path for the flow of the diluent;
the annular diluent path comprising a shroud with a
shallow angle of about ten degrees or less leading towards the
flow of the Stevia-based concentrate such that the flow of the
diluent and the flow of the Stevia-based concentrate mix in or
downstream of the dispensing nozzle.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Rodth US 4,270,673 June 2, 1981
Smith US 4,863,068 Sept. 5, 1989
Santy US 2005/0045655 A1 Mar. 3, 2005
Sher US 2007/0080169 A1 Apr. 12, 2007
Tezuka US 2013/0203867 A1 Aug. 8, 2013
Bhalerao US 2016/0130126 A1 May 12, 2016
REJECTIONS
Claims 1 and 6 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Smith, Tezuka, and Sher.
Claims 3–5 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Smith, Tezuka, Sher, and Santy.
Claim 8 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Rodth and Bhalerao.
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Claims 9, 12, and 13 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rodth and Tezuka.
Claim 10 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Rodth, Tezuka, and Bhalerao.
OPINION
Claim 1
Appellant presents arguments for claim 1, and relies on those
arguments for the patentability of claims 1 and 3–6. Appeal Br. 7–10.
The Examiner finds that Smith teaches the majority of features recited
in claim 1, including the shallow angle on the shroud forming the diluent
path. Final Act. 2–3. The Examiner finds that “Smith is silent in disclosing
the concentrated liquid is a Stevia-based concentrate and the shallow angle is
of about ten degrees or less.” Id. at 3. The Examiner finds that Tezuka
teaches mixing a Stevia concentrate with a diluent and that Sher teaches the
shallow angle is ten degrees or less, and proposes modifying Smith’s
teachings accordingly. Id.
Appellant contends that “there is no motivation to combine Tezuka
with either of the other references” because “Tezuka simply describes a
Stevia formulation” and “is completely silent on using such a formulation in
any type of dispensing nozzle.” Appeal Br. 10. This argument is not
persuasive because it does not address the Examiner’s rationale. See Final
Act. 3.
Moreover, the preamble’s recitation that the “dispensing nozzle [is]
for use with . . . a flow of a Stevia-based concentrate” is simply an intended
use for the recited nozzle. Although “Stevia” is also recited in the body of
the claim, those recitations also fail to lend patentability to the claim. See In
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re Otto, 312 F.2d 937, 940 (CCPA 1963) (“Inclusion of the material or
article worked upon by a structure being claimed does not impart
patentability to the claims.”); see also MPEP § 2115. Appellant does not
even allege, nor do we see, any additional structure required by the Stevia-
related recitations. Rather, they are just further repetition of the preamble’s
recitation of intended use of the nozzle with Stevia.
Appellant additionally disputes the proposed modification to arrive at
the shallow angle being ten degrees or less. Appeal Br. 7–10. Appellant
does not dispute the Examiner’s finding that Smith teaches a shallow angle
flow path. Rather, Appellant contends that Sher does not teach the specific
angle range of ten degrees or less. See id. at 8. Appellant acknowledges that
Sher teaches a variety of ranges for its angle, which encompass the recited
range, but contends that the discussion of ranges in Sher “is so broad as to be
meaningless with respect to the claimed limitation of 10 degrees or less.” Id.
This contention is not persuasive based on the particular circumstances of
this case.
When addressing where the recited range is disclosed in its
Specification, Appellant references paragraph 125. Appeal Br. 4. That
paragraph, like Sher, provides a broad range for its angles. The pertinent
portion of Appellant’s paragraph 125 states that “[t]he angled mixing path
480 . . . may be in the range of about zero (0) to about seventy (70) degrees,
with about five (5) to about sixty (60) degrees preferred, and with about ten
(10) to about fifty (50) degrees more preferred.” That is, Appellant’s “more
preferred” range is ten degrees or more, in contrast to the ten degrees or less
recited in the claim.
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Sher’s paragraph 42 similarly defines its range with varying breadth,
explaining that “[t]he angle . . . may vary from about 1 degree, more
preferably from about 20 degrees, and most preferably from about 25
degrees, to preferably about 80 degrees, more preferably to about 60
degrees, and most preferably to about 35 degrees.” It is not persuasive for
Appellant to assert that one skilled in the art would understand that its
paragraph 125 discloses the range of ten degrees or less, but would not
understand that a similar disclosure in Sher discloses such a range.
Moreover, even assuming that Appellant found a new range of
values,2 that, itself, does not make that discovery patentable. See In re
Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012) (“A
recognition in the prior art that a property is affected by the variable is
sufficient to find the variable result-effective.”). The portion of Sher cited
by the Examiner makes clear that the recited angle is a result-effective
variable. See Sher ¶ 42 (“The orientation of water jets 6a and 6b with
respect to each other is preferably selected for achieving a good mixing of
the water and the concentrate, as well as for the formation of a good layer of
foam on top of the prepared beverage.”).
Nevertheless, “[t]he outcome of optimizing a result-effective variable
may still be patentable if the claimed ranges are ‘critical’ and ‘produce a
new and unexpected result which is different in kind and not merely in
degree from the results of the prior art.’” Applied Materials, 692 F.3d at

2 After our review of Appellant’s Specification we note that paragraph 134
additionally discloses “[t]he lower shroud conical portion 750 may angle
inward slightly so as to provide an angled mixing path 755 with a shallow
angle at about ten degrees or less,” but “[o]ther angles may be used herein,”
“[f]or example, angles of about forty-five degrees or less also may be used.”
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1297 (quoting In re Aller, 220 F.2d 454, 456 (CCPA 1955)). Appellant,
however, provides no reason to believe the claimed ranges are critical,
produce anything more than a difference in degree, or produce any
unexpected results compared with the nozzle of Sher. Appellant simply
references paragraph 127’s disclosure that “[t]he dispensing nozzle 270 thus
may dispense at about twice the flow rate of existing nozzles or higher with
less foam formation when used with the Stevia-based concentrate 240 and
similar types of concentrates and other types of fluids.” This is not tied to
the particular range of ten degrees or less recited in the claim. Appellant’s
paragraph 125 discussed above provides further support that the recited
range is not critical and does not produce any new and unexpected result, as
it is not even the preferred arrangement according to that disclosure.
Appellant additionally alleges that “[t]he whole point of Sher is ‘the
formation of a good layer of foam on top of the prepared beverage.’
Paragraph [0042]. Examples 1-16 explore different parameters, including
angles, to produce high foam volume. Paragraphs [0065] - [0095].” Appeal
Br. 8–9. Rather than teaching away, Sher teaches that the recited angle is
known to control foam. Even if Sher teaches using that knowledge to
increase foam for a particular type of beverage, we are not apprised of any
persuasive reason why that provides the alleged teaching away.
Moreover, even if Sher could be read as teaching away from foam
reduction in a Stevia-based drink formulation, there is no recitation related
to foam reduction in the claim.
For at least the reasons set forth above, we are not apprised of error in
the rejection of claims 1 and 3–6.
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Claim 8
Claim 8 is similar to claim 1, but does not recite the particular range
for the shallow angle, and adds that “the annular concentrate path comprises
a diffuser and a diffuser cap,” with “the diffuser compris[ing] a concentrate
spreader attached to a concentrate flange via a number of concentrate
spreader ribs.”
The Examiner finds that Rodth teaches most of the features recited in
claim 8, including the “concentrate spreader.” The Examiner finds that
Rodth’s tubular portion 82 corresponds to the concentrate spreader. Final
Act. 5.
Appellant disputes the Examiner’s finding, for example, because
tubular portion 82 “direct[s] the concentrate flow as opposed to spreading or
diffusing the flow.” Appeal Br. 11.
Appellant has the better position, as the Examiner appears to
arbitrarily map Rodth’s tubular portion 82 to the recited concentration
spreader of the diffuser without support for such a finding. Rather than
making any determination as to what type of structure is required by the
recited concentration spreader and met by Rodth’s tubular portion 82, the
Examiner faults “Appellant’s disclosure [for] fail[ing] to provide a specific
definition of the detailed structure of the recited spreader.” Ans. 8. It is not
apparent how Rodth’s tubular portion 82 spreads the concentrate. See
Rodth, Fig. 3.
Accordingly, we do not sustain the Examiner’s decision to reject
claim 8.
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Claim 9
Claim 9 is similar to claim 1, but also omits the specific range for the
shallow angle, and adds that “the annular diluent pathway comprises a top
cover, a diffuser, a diffuser cap, and a lower shroud.”3
For claim 9, the Examiner finds that Rodth’s annular diffuser member
92 corresponds to the recited diffuser and shroud 84 corresponds to the
recited diffuser cap. Final Act. 6.
Appellant disputes the Examiner’s finding that Rodth’s shroud
corresponds to the recited diffuser cap. Appeal Br. 12.
Again, Appellant has the better position. Rather than making any
particular finding as to what structure is required by the recited diffuser cap
and met by Rodth’s shroud 84, the Examiner again faults Appellant’s
disclosure. See Ans. 9 (“The diffuser cap 600 may have any suitable size,
shape, or configuration. Other components and other configurations may be
used herein.”) (quoting Spec. ¶ 131).
Based on the record before us, it is unclear from the rejection how
Rodth’s shroud 84 is the recited diffuser cap.
Accordingly, we do not sustain the Examiner’s decision to reject
claim 9. Claims 10, 12, and 13 depend from claim 10. The rejections of
claims 10, 12, and 13 suffer from the same deficiency discussed above
relative to claim 9.

3 This is different than claim 8, which recites that “the annular concentrate
path comprises a diffuser and a diffuser cap.”
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CONCLUSION
The Examiner’s rejections related to claims 1 and 3–6 are affirmed.
The rejections of claims 8–10, 12, and 13 are reversed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 6 103 Smith, Tezuka,
Sher
1, 6
3–5 103 Smith, Tezuka,
Sher, Santy
3–5
8 103 Rodth, Bhalerao 8
9, 12, 13 103 Rodth, Tezuka 9, 12, 13
10 103 Rodth, Tezuka,
Bhalerao
10
Overall
Outcome
1, 3–6 8–10, 12, 13

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).
AFFIRMED IN PART