Ex Parte Casserilla et al

Patent Trial and Appeal Board

Oct 30, 2018

14187719 (P.T.A.B. Oct. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/187,719 02/24/2014
151860 7590 11/01/2018
The Small Patent Law Group, LLC
225 S. Meramec Ave.
Suite 725
St. Louis, MO 63105
FIRST NAMED INVENTOR
Brian Casserilla
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.
61631 (500-2044US) 1072
EXAMINER
ZERPHEY, CHRISTOPHER R
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
11/01/2018 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):
docket@splglaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN CASSERILLA and JOSEPH F. SANDERS 1
Appeal2017-011409
Application 14/187, 719
Technology Center 3700
Before MICHELLE R. OSINSKI, LEE L. STEPINA, and
BRENT M. DOUGAL, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-8, 11-16, and 18-27. 2 We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Illinois Tool Works, Inc. ("Appellant") is the Applicant as provided in
37 C.F.R. § 1.46 and is identified as the real party in interest. Appeal Br. 5.
2 Claims 9, 10, and 17 are cancelled. Amendment 3, 4 (Jan. 25, 2017).
Appeal2017-011409
Application 14/187, 719
THE CLAIMED SUBJECT MATTER
Claims 1, 19, and 21 are independent. Claim 21, reproduced below, is
illustrative of the claimed subject matter on appeal.
21. A system for dispensing cold beverages, the system
compnsmg:
a beverage dispenser having at least one nozzle for
dispensing a beverage through a nozzle into a cup, the beverage
formed by multiple components including water;
an ice maker that is separate from the beverage dispenser
and that creates ice that is fed into an ice bin;
multiple condensing units mounted on a common frame;
a heat exchanger interconnected with the condensing units
such that coolant exiting the condensing units in parallel is
combined to follow a common flow path through the heat
exchanger and the coolant exits the heat exchanger as a single
flow and is split into parallel paths to feed the condensing units,
wherein the heat exchanger also is connected with a water supply
to receive the water from the water supply and to cool the water
in the heat exchanger, the heat exchanger including a cooled
water outlet connected with both the beverage dispenser and the
ice maker in order to deliver the water that is cooled by the heat
exchanger from the heat exchanger to both the beverage
dispenser for use as a component of the beverage dispensed by
the at least one nozzle and the ice maker for use in making ice.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
McMillin
Spethmann
Schroeder
Jablonski
Gist
us 3,995,441
us 4,463,574
US 2003/0056524 Al
US 2004/0216474 Al
US 2008/0149655 Al
2
Dec. 7, 1976
Aug. 7, 1984
Mar. 27, 2003
Nov. 4, 2004
June 26, 2008
Appeal2017-011409
Application 14/187, 719
THE REJECTIONS
I. Claims 1-8, 11-15, 18-25, and 27 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Gist, Spethmann, and McMillin, with
and without Jablonski. Final Act. 4--11; Ans. 16.
II. Claims 16 and 26 stand rejected under 35 U.S.C. § 103 as
unpatentable over Gist, Spethmann, McMillin, and Schroeder, with
and without Jablonski. Final Act. 11-12; Ans. 16.
OPINION
Rejection I
Independent claims 1, 19, and 21
Regarding independent claims 1, 19, and 21, the Examiner finds, inter
alia, that Gist teaches beverage dispenser 44 and ice maker 48, with ice
maker 48 being separate from beverage dispenser 44. Final Act. 5. More
particularly, the Examiner takes the position that Gist's freeze barrels 44, 48
associated with frozen carbonated beverage (PCB) dispensers can be
considered both the claimed beverage dispenser and ice maker. Ans. 13.
Even though the Examiner finds that Gist teaches the claimed beverage
maker and ice maker, the Examiner provides an alternative rejection that
includes Jablonski "in order to expedite prosecution." Final Act. 7. The
Examiner finds, inter alia, that "Jablonski evidences a separate ice maker
and beverage dispenser within a unit, receiving water from a common
source" and also that it is "well known to dispense cubed ice and non-frozen
beverages separately from a common water source, like that of Gist."
Ans. 16. The Examiner concludes that it would have been obvious "to have
provided Gist with the ice maker and beverage dispenser of Jablonski in
order [to] increase the number of products dispensed." Final Act. 7. The
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Application 14/187, 719
Examiner further determines that "one of skill in the art of dispensing cold
product would consider it to be routine to select amongst a plurality [ of] cold
products, like frozen beverages, soft drinks, plain ice, and others." Id. at 7-
8. The Examiner additionally determines that "providing Gist with these
dispensing options increases the device[']s utility as consumers regularly
desire dispensing choices." Ans. 16.
Appellant argues that the Examiner's reasoning is "conclusory" and
"does not provide an articulated reasoning with some rational underpinning
as to why one of ordinary skill in the art would have selected the claimed
limitations without impermissible hindsight." Appeal Br. 19. We are not
persuaded by this line of argument because it does not specifically address
the Examiner's reasoning articulated in support of the conclusion of
obviousness or adequately explain why the Examiner's reasoning lacks
rational underpinnings. In particular, we have not been apprised of error in
the Examiner's reasoning that "the motivation to combine would have been
the increased number of products, [ and] thus an increased utility" and that "a
skilled artisan would recognize that in combination Gist would dispense his
frozen beverage, as well as the carbonated beverage and cubed ice of
Jablonski." Ans. 19.
Appellant's assertion that the Examiner relied on impermissible
hindsight is not adequately supported in that Appellant does not identify any
knowledge relied upon by the Examiner that was gleaned only from
Appellant's disclosure and that was not otherwise within the level of
ordinary skill in the art at the time of the invention. See In re McLaughlin,
443 F.2d 1392, 1395 (CCPA 1971) ("Any judgment on obviousness is in a
sense necessarily a reconstruction based upon hindsight reasoning, but so
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Application 14/187, 719
long as it takes into account only knowledge which was within the level of
ordinary skill at the time the claimed invention was made and does not
include knowledge gleaned only from applicant's disclosure, such a
reconstruction is proper.").
Appellant also argues that Gist and Jablonski "are not properly
combinable or modifiable" and that "the frozen beverage dispenser of Gist is
distinctly different from the recited claim elements of the subject matter on
appeal, thereby teaching away from the combination with any of the cited
references." Appeal Br. 21 (italics omitted) ( citing In re Gordon, 733 F .2d
900 (Fed. Cir. 1984) and In re Ratti, 270 F.2d 810 (CCPA 1959)).
Appellant's argument appears to be premised on an unduly narrow
interpretation of the intended purpose or principle of operation of Gist. As
described by the Examiner, "both [Gist and Jablonski] teach an incoming
water supply which is chilled and split into a plurality of pathways, chilled,
processed (including carbonated), and dispensed through a plurality of
dispensers." Ans. 16. Whether the available products include only frozen
carbonated beverages (FCBs), or FCBs along with non-frozen carbonated
beverages and ice, does not change the underlying purpose or principle of
operation of Gist. Moreover, "[a] reference does not teach away ... ifit
merely expresses a general preference for an alternative invention but does
not ·criticize, discredit, or othe1wise discourage' investigation into the
invention claimed." DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc.,
567 F.3d 1314, 1327 (Fed. Cir. 2009) (quoting In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004)). Although Gist discloses FCBs, Appellant has not
identified any passage in Gist that actually criticizes, discredits, or
discourages the inclusion of other products, as proposed by the Examiner.
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For the foregoing reasons, we do not find that the Examiner erred in
concluding that the subject matter of claims 1, 19, and 21 is rendered
obvious by the combination of Gist, Spethmann, McMillin, and Jablonski.
We sustain the rejection of claims 1, 19, and 21 under 35 U.S.C. § 103(a) as
unpatentable over Gist, Spethmann, McMillin, and Jablonski.
Because our decision affirming the Examiner's rejection of claims 1,
19, and 21 as unpatentable over the combination of Gist, Spethmann,
McMillin, and Jablonski is dispositive of these claims, we do not address the
Examiner's apparent alternative rejection of these claims as unpatentable
over only Gist, Spethmann, and McMillin. See Ans. 16.
Dependent Claims 6, 12, 13, 22-24, and 27
Appellant relies on the same arguments and reasoning we found
unpersuasive in connection with independent claims 1, 19, and 21 as the
basis for seeking reversal of the rejection of claims 6, 12, 13, 22-24, and 27.
Appeal Br. 31-32. Accordingly, we also sustain the rejection of claims 6,
12, 13, 22-24, and 27 under 35 U.S.C. § 103(a) as unpatentable over Gist,
Spethmann, and McMillin, and Jablonski.
Dependent claims 2-5, 7, and 8
Dependent claims 2-5 recite "determining the dispensing load of the
beverage dispenser based at least in part" on various factors, including the
volume of beverage dispensed ( claim 2), the volume of ice dispensed ( claim
3), environmental conditions of the dispenser (claim 4), and ambient
environment of the condensing units ( claim 5). Appeal Br. 33-34 (Claims
App.). Dependent claim 7 recites that "the dispensing load is an anticipated
dispensing load of an installation location of the beverage dispenser," and
dependent claim 8 recites "determining the dispensing load of the beverage
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dispenser by monitoring usage of the beverage dispenser at an installation
location of the beverage dispenser." Id. at 34.
The Examiner finds that Gist shows a "determination of demand level,
for example[,] low demand is 0.2-1.25 drinks/min, medium demand is 1.25-
2.5 drinks/min and so on." Ans. 21-22. The Examiner also finds that
"[p ]aragraph 0043 confirms determination of demand, as that determination
provides for load selection of the cooling device." Id. The Examiner further
finds "Gist determined load ( at p0050 Gist explicitly states that the
determination is for the load, the BTU load is the dispensing load as a
certain degree of cooling, BTU, is required to dispense a certain level) based
on ambient temperature which is an environmental condition." Id. at 22; see
also Gist ,r 39 ( discussing the development of an indication of customer
demand, and therefore cooling load demand, based on the size of the batch
and the ambient temperature of the water and syrup delivered by the valves).
The Specification indicates that "[t]he dispensing load may be defined
according to the volume of beverages and/or ice that the machine will be
required to dispense over a period time . . . . The dispensing load can also be
affected by the surrounding environmental conditions." Spec. ,r 25.
Appellant's arguments (Appeal Br. 22-25) do not persuade us that Gist fails
to teach or suggest determining the dispensing load of the beverage
dispenser based on the volume of beverage dispensed, volume of ice
dispensed, and/or environmental conditions of installation location ( claims
2--4 ), or that Gist fails to teach or suggest that the dispensing load is an
anticipated dispensing load of an installation location of the beverage
dispenser ( claim 7).
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As to the determination of a dispensing load based on an ambient
environment of the condensing units ( claim 5), the Examiner further finds
that "Spethmann ([which] is relied upon to provide the condensing units)
discloses an ambient temperature sensor 51 in order to determine load based
on the ambient environment of the condensing units." Ans. 22. Appellant's
argument (Appeal Br. 24) does not persuade us otherwise.
As to determining dispensing load by monitoring usage of the
beverage dispenser ( claim 8), the Examiner finds that "Gist discloses within
[F]igure 14 a plurality of features monitored at the dispenser such as
temperature, viscosity, and valve position" and that "[t]hese features
determine load as discussed at p0046 the control of the brixing valves, based
on said recited inputs determines load." Ans. 23. Appellant's argument
(Appeal Br. 25) does not persuade us otherwise.
We sustain the rejection of claims 2-5, 7, and 8 under 35 U.S.C.
§ 103(a) as unpatentable over Gist, Spethmann, McMillin, and Jablonski.
Dependent claim 11
Dependent claim 11 recites "changing the number of condensing units
to be used for chilling the water supplied to the beverage dispenser and to
the ice maker based on a change in one or more of cooling load or the
dispensing load of the cold beverage dispensing system." Appeal Br. 34
(Claims App.). The Examiner finds that lines 2-5 of column 7 of
Spethmann indicate that "the system increases capacity by going from unit
#1 operating to adding unit #2 in order to increase capacity." Ans. 23.
Appellant's argument that Spethmann merely discloses decreasing or
reducing the capacity of chillers by steps, rather than the number of
condensing units (Appeal Br. 26) is not persuasive in that Spethmann
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Application 14/187, 719
appears to disclose both. We sustain the rejection of claim 11 under
35 U.S.C. § 103(a) as unpatentable over Gist, Spethmann, and McMillin,
and Jablonski.
Dependent claims 14, 15, and 25
Dependent claim 14 recites that "each of the condensing units
includes a compressor and coolant to refrigerant heat exchanger," and
dependent claim 15 recites that "a common pump feeds the coolant to each
of the condensing units." Appeal Br. 34 (Claims App.). Dependent claim
25 recites that "the condensing units tum on at different temperature set
points." Id. at 36. Appellant argues that "[t]he Examiner has not provided a
sufficient line of reasoning as to why an artisan would have [ found] the
claimed invention obvious." Id. at 26, 27, 30. The Examiner articulated
reasoning for combining the teachings of Gist and Spethmann, namely, the
optimization and minimization of energy usage. Final Act. 6 ( citing
Spethmann 2:44--55); Ans. 23-24, 26 (citing Spethmann 2:44--55).
Appellant does not specifically address the Examiner's articulated reasoning
or adequately explain why the Examiner's reasoning lacks rational
underpinnings. We sustain the rejection of claims 14, 15, and 25 under
35 U.S.C. § 103(a) as unpatentable over Gist, Spethmann, McMillin, and
Jablonski.
Claim 18
Dependent claim 18 recites that "the coolant includes propane."
Appeal Br. 35 (Claims App.). The Examiner acknowledges that "Gist is
silent concerning using propane as a coolant." Final Act. 11. The Examiner
"takes official notice that propane (R-290) is an old and well-known
coolant" "[a]s evidenced by Lampugnani et al ([Lampugnani, G. and
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Application 14/187, 719
Zgliczynski, M.,] 'R290 as a Substitute of R502 and R22 in Commercial
Refrigeration and Air Conditioning' [International Compressor Engineering
Conference, Paper 1087, available at http://docs.lib.purdue.edu/icec/1087
( 1996) ]). " Id. Appellant argues that the Examiner has not properly taken
judicial notice by properly supporting the finding relating to the coolant
including propane, and Appellant suggests that the Examiner is improperly
relying on personal and general knowledge. Appeal Br. 28-29. The
Examiner responds that the Examiner evidenced the Official Notice by
referring to a printed publication that became part of the prosecution history.
Ans. 25. We are not persuaded by Appellant's argument that the Examiner
has improperly taken judicial notice. We sustain the rejection of claim 18
under 35 U.S.C. § 103(a) as unpatentable over Gist, Spethmann, McMillin,
and Jablonski.
Claim 20
Dependent claim 20 recites that "water exits the heat exchanger at a
temperature between 35 QF and 55 QF." Appeal Br. 35 (Claims App.). The
Examiner finds that Gist discloses this limitation in that it illustrates that
"the pre-chiller removes about 1800 BTU/hr at a flow rate of 16oz/min of
water incoming at about 75QF[,] which is about a 30QF temperature drop and
puts the cooled water at about 45QF." Final Act. 11. Appellant argues that
the Examiner improperly relies on personal and general knowledge in
rejecting dependent claim 20. Appeal Br. 29. The Examiner responds that
the Office did not rely on personal and general knowledge, but rather that
"[w]hen a power (1800 BTU/hr) and flow rate (16oz/min) of a fluid is
provided[,] so too is the temperature change" and "[i]t is a unit conversion."
Ans. 25. We are not persuaded by Appellant's argument that the Examiner
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has improperly relied on personal and general knowledge. We sustain the
rejection of claim 20 under 35 U.S.C. § 103(a) as unpatentable over Gist,
Spethmann, McMillin, and Jablonski.
Rejection II
The Examiner finds that Gist "lacks a cold plate" as recited in claims
16 and 26. Final Act. 12. The Examiner turns to Schroeder as teaching "a
beverage dispenser having an ice maker (p0039) [that] includes an ice bin
(33) and a cold plate (12) in the ice bin, and the method involves flowing the
cooled water through the cold plate (12) before delivery to a nozzle (18; see
figure 3)." Id. The Examiner concludes that it would have been obvious "to
have provided Gist with an ice bin and cold plate as taught by Schroeder in
order to store and provide ice to a user as many users prefer drinks with ice
to maintain a cold temperature." Id.
Appellant argues that "[t]he Examiner has not provided a sufficient
line of reasoning as to why an artisan would have [ found] the claimed
invention obvious" in that the Examiner merely "cites multiple prior art
references and states the combination of various parts from such references
would be obvious, without providing sufficient reasoning or reference as to
what motivation, teaching or suggestion would lead an artisan to make any
such combination." Appeal Br. 28; see also id. at 30-31.
Appellant appears to insist on an explicit teaching, suggestion, or
motivation in the prior art references, whereas such an argument has been
foreclosed by the Supreme Court. KSR Int'! Co. v. Teleflex Inc., 550 U.S.
398,415,419 (2007) (stating that a rigid insistence on teaching, suggestion,
or motivation is incompatible with its precedent concerning obviousness).
Rather, the Court requires that we look to whether the Examiner has
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provided "some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness." In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006) (cited with approval inKSR, 550 U.S. at 418). In this
regard, Appellant does not specifically address the Examiner's articulated
reasoning for the proposed modification of Gist or persuasively explain why
the reasoning lacks rational underpinnings.
Accordingly, we also sustain the rejection of claims 16 and 26 under
35 U.S.C. § 103(a) as unpatentable over Gist, Spethmann, McMillin,
Jablonski, and Schroeder.
DECISION
The Examiner's decision to reject claims 1-8, 11-16, and 18-27
under 35 U.S.C. § 103 is affirmed.
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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