Ex Parte Lassota

Board of Patent Appeals and Interferences

Nov 30, 2010

10819828 (B.P.A.I. Nov. 30, 2010)

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.
10/819,828 04/07/2004 Zbigniew G. Lassota FET-29D1 7267
7590 12/01/2010
James W. Potthast
Law Offices of Potthast & Associates
10606 Doorpath Road
Woodstock, IL 60098
EXAMINER
CARTAGENA, MELVIN A
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
12/01/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte FOOD EQUIPMENT TECHNOLOGIES COMPAY, INC.
____________________

Appeal 2009-006317
Application 10/819,828
Technology Center 3700
____________________

Before JAMESON LEE, RICHARD TORCZON, and
SALLY GARDNER LANE Administrative Patent Judges.

LEE, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-006317
Application 10/819,828

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A. STATEMENT OF THE CASE
This is a decision on appeal by the real party in interest, Food
Equipment Technologies Company, Inc. (“FETC”) under 35 U.S.C. § 134(a)
from a final rejection of claims 1-20, 22-34, 36-46, 49-66, 68-82, and 84-86.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.

References Relied on by the Examiner
Chandler et al. (“Chandler”) 5,229,751 Jul. 20, 1993
Johnson et al. (“Johnson”) 6,062,126 May 16, 2000
Ritter DE4418546 A1 Feb. 1, 1996

The Rejections on Appeal
The Examiner rejected claims 1, 2, 4, 5, 10, 11, 16-20, 23-26, 28, 29,
32-34, 36, 37, 39-44, 49-53, 63-66, 69-72, 74-77, 81, 82, and 84 under 35
U.S.C. § 103(a) as unpatentable over Chandler.
The Examiner rejected claims 3, 12-15, 22, 27, 30, 31, 38, 45, 46, 58-
61, 62, 68, 73, 85, and 86 under 35 U.S.C. § 103(a) as unpatentable over
Chandler and Johnson.
The Examiner rejected claims 6-9, 54-57, 78, and 79 under 35 U.S.C.
§ 103(a) as unpatentable over Chandler and Ritter.

The Invention
The invention relates to a portable beverage dispenser with
components to sense and display information concerning fluid within the
dispenser. (Spec pp. 5-6.)
Claim 1 is reproduced below (App. Br. 48 Claims App’x.):
1. In a portable beverage dispenser having an opaque, insulated,
non-electrically heated, hollow body with a closed bottom, atop [sic, a
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top] with an inlet for receipt of a beverage for containing a multiple
servings of the beverage and means for selectively dispensing
servings of the consumable liquid from within the body, the
improvement being an electronic level display assembly, comprising:

an electronic liquid level sensor assembly mounted to the
hollow body and in sensing relationship with the consumable liquid
within the hollow body to sense a plurality of different liquid levels;

an electronic display mounted to the hollow body and facing
laterally outwardly from the hollow body for ease of viewing from a
lateral position spaced from the side hollow body;

a controller responsive to the electronic liquid level sensor for
controlling the electronic display to show an indication of the plurality
of different liquid levels in response to the electronic liquid level
sensor assembly; and

a portable power supply carried by the hollow body for
providing a source of operating energy for both the electronic liquid
level sensor assembly and the electronic display, said portable power
source being the only source of electrical power of the portable
dispensing urn assembly.

(App. Br. 48, Claims Appendix.)
B. ISSUES
1. Did the Examiner incorrectly determine that Chandler discloses
an electronic display which shows an indication of a plurality of different
liquid levels in a liquid container in response to the output of an electronic
liquid level sensor assembly?
2. Did the Examiner incorrectly determine that Chandler discloses
electronically directly sensing an actual condition of the beverage then
displaying an indication of the actual beverage condition on a display?
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C. PRINCIPLE OF LAW
The initial burden is on the examiner to establish a prima facie basis
to reject the claims. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
D. FINDINGS AND ANALYSIS
The Examiner rejected (1) claims 1, 2, 4, 5, 10, 11, 16-20, 23-26, 28,
29, 32-34, 36, 37, 39-44, 49-53, 63-66, 69-72, 74-77, 81, 82, and 84 as
unpatentable over Chandler; (2) claims 3, 12-15, 22, 27, 30, 31, 38, 45, 46,
58-61, 68, 73, 85, and 86 as unpatentable over Chandler and Johnson; and
(3) claims 6-9, 54-57, 78, and 79 as unpatentable over Chandler and Ritter.
Claims 1, 29, 49, 50, 75 and 85 are independent and are each
separately argued.
Claim 1
Claim 1 is styled in a Jepson format and is directed to a portable
beverage dispenser with an opaque, hollow body and includes the
improvement of an electronic level display assembly having the following
features (App. Br. 48 Claims App’x):
an electronic liquid level sensor assembly mounted to the
hollow body and in sensing relationship with the consumable liquid
within the hollow body to sense a plurality of different liquid levels;

an electronic display mounted to the hollow body and facing
laterally outwardly from the hollow body for ease of viewing from a
lateral position spaced from the side hollow body;

a controller responsive to the electronic liquid level sensor for
controlling the electronic display to show an indication of the plurality
of different liquid levels in response to the electronic liquid level
sensor assembly[.]

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Thus, claim 1 requires that an electronic display is positioned external
to the hollow body and shows an indication of a plurality of different liquid
levels that have been sensed by an electronic liquid level sensor assembly
located within the body. The purpose of the display is to convey to a user
the amount of fluid remaining in an opaque container.
According to the Examiner, Chandler discloses a beverage dispenser
with a display assembly that accounts for the above-quoted features. In
particular, the Examiner pointed to Chandler’s element 48 as being an
electronic visual display and elements 22 and 24 as being level sensors.
(Ans. 3:13-16.) The Examiner stated that Chandler’s display shows
indications of fluid levels within a body of its beverage dispenser based on
the output of the sensors. (Ans. 5:10-5.)
FETC argues that the Examiner’s determinations as to Chandler’s
teachings are in error. We agree with FETC.
Chandler’s element 48 is described as an indicator which, in one
embodiment, displays the word “FRESH.” (Chandler 4:60.) Elements 22
and 24 are described as fluid sensors used for determining the presence of
fluid. (Id. at 3:59-65.) Sensors 22 and 24 are positioned near the top and
bottom, respectively, of container 12. (Id. at Fig. 1.) When container 12 is
full of a fluid, such as coffee, sensor 22 detects the presence of fluid at the
full height and initiates a timer establishing a time period, e.g., thirty
minutes, during which indicator 48 displays the term “FRESH.” (Id. at 5:13-
40.) After that time period has elapsed, the visible indication of “FRESH” is
de-energized. (Id. at 5:40-47.) Sensor 24 is positioned at the bottom of
container 12 and detects an empty level of fluid when it senses an absence of
fluid. That sensor also initiates a timer. After a predetermined time period,
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e.g., 3.5 seconds, in which sensor 24 detects no fluid, the display of
“FRESH,” if still appearing on indicator 48, is de-energized. (Id. at 5:57-
6:10.)
Thus, in Chandler, the display of the term “FRESH” on indicator 48
does not necessarily correspond to the level of fluid within container 12.
That is, the term may be displayed when the container is initially full of fluid
or when the container is near empty or for all levels in-between. For
example, “FRESH” will be displayed when the container is full but will also
be displayed when the container is half-full, provided that the predetermined
time period, e.g., 30 minutes, has not elapsed. Similarly, the non-display of
the term may also occur for all fluid levels in the container. For example,
“FRESH” eventually ceases to be displayed when the container is empty but
will also not be displayed if the container is full and the 30 minute time
period has elapsed. The presence or absence of the term “FRESH” on the
display is not an indicator of any particular fluid level, much less the
plurality of different fluid levels that is required by claim 1.
The initial burden is on the examiner to establish a prima facie basis
to reject the claims. In re Oetiker, 977 F.2d at 1445. On this record, the
Examiner has not carried this burden. We do not sustain the rejection of
claim 1 over Chandler.
Dependent claims 2, 4, 5, 10, 11, 16-20, and 22-28
Claims 2, 4, 5, 10, 11, 16-20, 23-26, and 28 were rejected as
unpatentable over Chandler. Those claims are dependent on and include all
the limitations of claim 1. We do not sustain the rejection of claims 2, 4, 5,
10, 11, 16-20, 23-26, and 28 over Chandler.
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Claims 3, 6-9, 12-15, 22, and 27 are ultimately dependent on claim 1
and were rejected as unpatentable over Chandler and one of Johnson and
Ritter. The Examiner relied on Johnson and Ritter to account for limitations
added by the dependent claims and not to make-up for the deficiency of
Chandler noted-above in connection with claim 1. We do not sustain the
rejection of claims 3, 12-15, 22, and 27 over Chandler and Johnson or the
rejection of claim 6-9 over Chandler and Ritter.
Claims 49, 50, and 75
Claims 49, 50, and 75 are independent and were rejected over
Chandler. Each of those claims include a feature similar to that presented in
claim 1 involving the sensing of “different quantities of a beverage” (claims
49 and 50) or “a plurality of different beverage levels” (claim 75) within a
fluid container and display on an electronic display an indication of the
different quantities or levels.
The Examiner takes the same position for claims 49, 50, and 75 that
he did with claim 1. Namely, the Examiner points to Chandler’s fluid
sensors 22 and 24 and its indicator 48 as, respectively, sensing different
levels and quantities of beverage and displaying an indication of those levels
or quantities. For essentially the same reasons given above in connection
with claim 1, we reject the Examiner’s position.
We do not sustain the rejection of claims 49, 50, and 75 over
Chandler.
Dependent claims 51-66, 68-74, 76-82, and 84
Claims 51-66, 68-82, and 84 are ultimately dependent on one of
claims 49, 50, and 75. Claims 51-66, 68-82, and 84 were rejected over
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Chandler and one of Johnson and Ritter. The Examiner relies on Johnson
and Ritter to account for limitations added by the dependent claims and not
to make-up for the deficiencies of Chandler in connection with claims 49,
50, and 75. We do not sustain the rejections of claims 51-66, 68-82, and 84.
Claim 29
Claim 29 is independent. Claims 30-34 and 36-46 are dependent on
claim 29. Claim 29 is reproduced below (App. Br. 53 Claims App’x.):
29. In a portable dispensing urn assembly having an insulated,
unheated, opaque, hollow body with an interior surface for containing
beverage and extending between a top with an inlet for receiving
beverage and a bottom, and a manually operable beverage dispenser
attached to an exterior surface of the body for selectively dispensing
beverage from the hollow body, the improvement being a method of
indicating a condition of the beverage contained within the unheated,
opaque hollow body, comprising the steps of:

electronically directly sensing an actual condition of the
beverage within the hollow body to be displayed with electronic
sensing means attached to and carried by the hollow body; and

displaying with a display means attached to and carried by the
hollow body the indication of the actual beverage condition of the
beverage contained within the hollow body in response to the
electronic actual condition directly sensing means.

Thus, the claim requires that an “actual beverage condition” be
electronically directly sensed and then an indication of the actual beverage
condition displayed on a display.
The Examiner rejected claim 29 over Chandler. FETC contends that
Chandler does not describe displaying an “actual beverage condition” or that
there is any actual beverage condition in the reference that is directly sensed.
(App. Br. 38:18-39:4.)
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The Examiner does not refer to “actual beverage condition” in the
Examiner’s Answer or Final Rejection or address where Chandler accounts
for the above-noted features of the claim. Chandler does display the term
“FRESH” as an indicator of the amount of time a beverage has been held in
the container. The display of “FRESH” is reasonably viewed as indicating a
“beverage condition.” However, it is not necessarily true that the condition
of the beverage is actually fresh even if “FRESH” is displayed. That is
because there is no direct sensing of freshness. Chandler is merely deducing
freshness based on the level of fluid in the container. The claims require the
step of “electronically directly sensing” the actual beverage condition that is
ultimately displayed. The sensors disclosed in Chandler, i.e., fluid sensors
22 and 24, simply detect the presence of fluid. To meet claim 29, however,
and if freshness is regarded as the beverage condition, the sensors must have
“directly” sensed the freshness and not indirectly deduced it based on the
amount of time the container was last filled to a certain level. The Examiner
has not explained how fluid sensors 22 and 24 directly sense the fluid’s
freshness. Note that it is mere speculation, or an assumption, that the
beverage was fresh when the container was last filled to a particular level.
On this record, we do not sustain the rejection of claim 29 over Chandler.
Dependent claims 30-34 and 36-46
Claims 30-34 and 36-46 are ultimately dependent on and include all
the limitations of claim 29. Claims 30-34 and 36-46 were rejected over
Chandler and one of Johnson and Ritter. The Examiner relies on Johnson
and Ritter to account for limitations added by the dependent claims and not
to make-up for the above-noted deficiencies of Chandler in connection with
claim 29. We do not sustain the rejections of claims 30-34 and 36-46.
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Claims 85 and 86
Claim 85 is independent. According to FETC’s Appeal Brief,
although claim 86 is reproduced in the claim appendix as being dependent
on claim 84, claim 86 should properly be indicated as being dependent on
claim 85. (App. Br. 26:18-19.)
The Examiner rejected claimed claims 85 and 86 over Chandler and
Johnson. FETC does not submit any separate argument for 86. With respect
to claim 85, the only reference to that claim in the Argument section of
FETC’s Appeal Brief is an assertion that claim “85 is dependent on claim
75” and is “believed allowable for the same reasons set forth above with
respect to” claim 75. (Id. at 44:16-17.)
However, claim 85 is an independent claim and does not depend from
claim 75. Claim 85 also does not to appear to require any limitation that
corresponds to a claim feature that was argued by FETC in connection with
claim 75. FETC’s inaccurate characterization of the requirements and
content of claim 85 is inadequate to show error in the Examiner’s rejection
of claim 85 and dependent claim 86 over Chandler and Johnson.
We sustain the rejection of claim 85 and 86 over Chandler and
Johnson.
E. CONCLUSION
1. The Examiner incorrectly determined that Chandler discloses
an electronic display which shows an indication of a plurality of different
liquid levels in a liquid container in response to the output of an electronic
liquid level sensor assembly.
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2. The Examiner incorrectly determined that Chandler discloses
electronically directly sensing an actual condition of the beverage then
displaying an indication of the actual beverage condition on a display.
3. FETC has not identified a reversible error in the rejection of
claims 85 and 86.
F. ORDER
The rejection of claims 1, 2, 4, 5, 10, 11, 16-20, 23-26, 28, 29, 32-34,
36, 37, 39-44, 49-53, 63-66, 69-72, 74-77, 81, 82, and 84 under 35 U.S.C.
§ 103(a) as unpatentable over Chandler is reversed.
The rejection of claims 3, 12-15, 22, 27, 30, 31, 38, 45, 46, 58-61, 62,
68, 73, 85, and 86 under 35 U.S.C. § 103(a) as unpatentable over Chandler
and Johnson is reversed.
The rejection of claims 6-9, 54-57, 78, and 79 under 35 U.S.C.
§ 103(a) as unpatentable over Chandler and Ritter is reversed.
The rejection of claims 85 and 86 under 35 U.S.C. § 103(a) as
unpatentable over Chandler and Johnson 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-IN-PART

rvb

JAMES W. POTTHAST
LAW OFFICES OF POTTHAST & ASSOCIATES
10606 DOORPATH ROAD
WOODSTOCK, IL 60098