Ex Parte Fischer

Patent Trial and Appeal Board

Sep 15, 2017

13687060 (P.T.A.B. Sep. 15, 2017)

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.
13/687,060 11/28/2012 Daniel FISCHER 26571-0028 9998
26587 7590 09/15/2017
MCNEES WALLACE & NURICK LLC
100 PINE STREET
P.O. BOX 1166
HARRISBURG, PA 17108-1166
EXAMINER
HOANG, MICHAEL G
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
09/15/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte DANIEL FISCHER1
__________

Appeal 2016-006400
Application 13/687,060
Technology Center 3700
__________

Before JAMES P. CALVE, SCOTT C. MOORE, and
AMANDA F. WIEKER, Administrative Patent Judges.

WIEKER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Daniel Fischer (“Appellant”) appeals under 35 U.S.C. § 134(a) from
the Examiner’s final rejection of claims 1 and 3–12.2 We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 According to Appellant, the Real Parties in Interest are the named inventor,
Daniel Fischer, and Eugster/Frismag AG Electrohaushaltgeräte. Br. 1 (filed
Oct. 26, 2015).
2 Claim 2 was cancelled, and claims 13–15 are withdrawn. Id. at 2.
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CLAIMED SUBJECT MATTER
The invention concerns “a brewing device for extracting a portion
capsule.” Spec. 1:14–15. Claim 1, the sole independent claim on appeal, is
illustrative of the subject matter on appeal, and recites:
1. A brewing device for extracting a portion capsule,
comprising
a first brewing chamber element and a second brewing
chamber element, wherein the first brewing chamber element is
movable between a loading position, in which the first and the
second brewing chamber elements are spaced apart from each
other, and an extraction position, in which the first and the
second brewing chamber elements are brought closer together in
order to form a closed brewing chamber,
characterized in that the brewing device is designed in
such a manner that, during movement between the loading
position and the extraction position, the first brewing chamber
element carries out a linear displacement along an axial direction
when the first and the second brewing chamber elements are
spaced apart from each other, and additionally carries out a
pivoting movement about a pivot axis which is perpendicular to
the axial direction when the first and the second brewing
chamber elements are at least partially brought closer together,
wherein the first brewing chamber element is guided
between the loading position and the extraction position by
means of lateral guide rails, wherein the guide rails extend along
the axial direction and, on a region facing the second brewing
chamber element, have an offset perpendicular to the axial
direction,
wherein the first brewing chamber element has at least one
capsule stop for holding the portion capsule, which the at least
one capsule stop is connected rigidly to the first brewing
chamber element and which is arranged below the brewing
chamber along a gravitational field.
Br. 9 (Claims App.) (emphasis and formatting added).
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REJECTIONS
The claims stand rejected as follows:3
I. Claims 1, 3, 4, and 8–12 under 35 U.S.C. § 103(a) as
unpatentable over Ryser (US 2006/0230941 A1, pub. Oct. 19,
2006).
II. Claims 5–7 under 35 U.S.C. § 103(a) as unpatentable over
Ryser and Kollep (US 6,880,454 B2, iss. Apr. 19, 2005).
ANALYSIS
Rejection I – Obviousness over Ryser
Claims 1, 3, 4, and 8–12
Appellant argues claims 1, 3, 4, and 8–12 as a group. See Br. 4–7.
We select claim 1 as representative, and claims 3, 4, and 8–12 stand or fall
with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Ryser’s first disclosed embodiment, depicted
in Figure 1, includes a brewing device substantially as claimed. Final
Act. 4–5. The Examiner finds that Ryser’s “second part 3 and rods 11 and
13 define a ‘first brewing chamber element,’” movable between loading and
extraction positions. Id. at 4. The Examiner finds that the embodiment of
Figure 1 does not disclose a capsule stop as claimed. Id. at 5.
However, the Examiner finds that an alternate embodiment depicted
in Ryser’s Figures 11–13 includes a capsule stop for holding a capsule, i.e.,
reference elements “51, 52, [54], and 57 working together [are] a ‘capsule
stop,’” wherein the identified capsule stop is connected rigidly to a first

3 The Examiner withdrew rejections based on 35 U.S.C. § 112 ¶¶ 1–2.
See Ans. 2 (mailed Mar. 16, 2016).
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brewing chamber element. Id. at 5;4 see also Ans. 4. The Examiner
concludes that it would have been obvious to one of ordinary skill in the art
to “utiliz[e] in Ryser’s Figure 1 embodiment, the capsule stop arrangement
of Ryser’s Figures 11 to 13 embodiment to be connected rigidly to the first
brewing chamber element . . . to provide an alternative method of retaining
the capsule in a fixed position and releasing the capsule after brewing.”
Final Act. 5–6.
Appellant argues that Ryser lacks a capsule stop “connected rigidly to
the first brewing chamber element.” Br. 4. According to Appellant, Ryser’s
“retractable stop [51] that rotates on a spindle [54] is movably connected to
the device of Ryser, and therefore, in contrast to the Examiner’s assertion
that a rigid material forms a rigid connection, is not connected rigidly.” Id.
at 5 (also arguing that Ryser does not specify the capsule stop material).
Appellant also contends that a “rigid connection” precludes movement and
does not encompass a retractable stop that rotates on a spindle. Id. at 6–7.
The Examiner responds that Ryser’s capsule stop includes four
different components (i.e., elements 51, 52, 54, 57) and “is not only limited
to how one of the components works (i.e. the retractable stop 51 rotating
when the moveable part moves).” Ans. 4. The Examiner explains that

4 We understand the Examiner’s statement that Ryser’s capsule stop is
“connected rigidly to a fixed part” to be a typographical error. Final Act. 5.
The adjacent paragraphs discuss a rigid connection to the first brewing
chamber element (i.e., the movable part), as claimed. Accordingly, it
appears that the Examiner’s reference to a “fixed part” was inadvertent error.
See also Ans. 4–5, 7. This appears consistent with Appellant’s
understanding. Br. 5 (quoting the Examiner’s position regarding the
“connection with the first brewing chamber element”).
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capsule stop element 52 does not rotate and is connected rigidly to “the
moveable part . . . [which] is analogous to the claimed first brewing chamber
element.” Id. at 4–5 (citing Ryser ¶ 52).
We agree with the Examiner. The Examiner identifies Ryser’s
movable part as the claimed “first brewing chamber element.” See Final
Act. 4 (identifying movable second part 3 and rods 11/13); see also Ans. 3
(explaining that, in Figs. 11–13, “movement of the moveable part
(corresponding to movable part 3 shown in Figs. 1–4, and analogous to the
claimed first brewing chamber element) rotates the spindle”), 4. The
Examiner also finds that element 52 is part of the claimed capsule stop.
Final Act. 5; Ans. 3, 4. Furthermore, in the embodiment of Figures 11–13,
Ryser explains that element 52 is “fixedly attached to the movable part and
thus act[s] on the retractable stop [51] to open it and close it.” Ryser ¶ 52
(emphasis added); see also id. ¶ 54. As such, the evidence of record
supports the Examiner’s finding that element 52 is rigidly connected to the
first brewing chamber element because it is “fixedly attached.” Appellant
does not present persuasive argument or evidence to explain why the
disclosed fixed attachment between Ryser’s movable part and element 52 is
not a “rigid[] connection,” even under Appellant’s construction of that
limitation. See generally Br. 5–7. That other parts of the identified capsule
stop may move, e.g., retractable stop 51, does not discredit the Examiner’s
supported finding that element 52 is rigidly connected. As the Examiner
correctly states, “[e]lement (52) does not rotate. Therefore, Ryser’s capsule
stop arrangement (51, 52, 54, 57, Figs. 11–13), having element (52), is
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connected rigidly to the first brewing chamber element (i.e. the movable
part) that is moveable, as claimed.” Ans. 5; see also Br. 6.
Appellant has not apprised of us error in the Examiner’s rejection of
claim 1. Accordingly, we sustain the Examiner’s rejection of claim 1, and
claims 3, 4, and 8–12, grouped therewith.
Rejection II – Obviousness over Ryser and Kollep
Claims 5–7
With respect to the rejection of claims 5–7 as unpatentable over Ryser
and Kollep, Appellant relies upon the same arguments discussed above and
further contends that Kollep fails to cure the deficiencies of Ryser. Br. 7.
As discussed above, however, we do not find Ryser deficient with
respect to claim 1, and the Examiner does not rely upon Kollep to cure any
deficiencies in that regard. Final Act. 9–11. Appellant does not provide
specific argument regarding the Examiner’s rejection of claims 5–7 and,
accordingly, fails to persuade us of error in the Examiner’s rejection of those
claims. Thus, we sustain the Examiner’s rejection of claims 5–7. See
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an
appellant fails to present arguments on a particular issue — or, more
broadly, on a particular rejection — the Board will not, as a general matter,
unilaterally review those uncontested aspects of the rejection.”).
DECISION
The Examiner’s decision to reject claims 1 and 3–12 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).
AFFIRMED