Ex Parte Moran

Board of Patent Appeals and Interferences

Jun 18, 2012

11376613 (B.P.A.I. Jun. 18, 2012)

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.
11/376,613 03/15/2006 Dan Moran 69831/P001US/10601648 2276
7590 06/18/2012
EVERGREEN POINT CAPITAL GROUP INC.
14001 DALLAS PARKWAY, SUITE 1200
DALLAS, TX 75240
EXAMINER
LAU, HOI CHING
ART UNIT PAPER NUMBER
2612
MAIL DATE DELIVERY MODE
06/18/2012 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 DAN MORAN
____________

Appeal 2010-005004
Application 11/376,613
Technology Center 2600
____________

Before MARC S. HOFF, CARLA M. KRIVAK, and
ELENI MANTIS MERCADER, Administrative Patent Judges.

KRIVAK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-42.1 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 Appellant only provides arguments for independent claims 1, 18, 25, and
36 (Br. 14). However, as the dependent claims were not cancelled, we treat
the dependent claims as standing or falling with the independent claims.
Appeal 2010-005004
Application 11/376,613

2
STATEMENT OF THE CASE
Appellant’s claimed invention is directed to an intelligent hydration
system and method that alerts a user to drink more. Factors such as weight,
height, sex, body type, etc., are input and used to determine a target fluid
consumption. (Spec. ¶ [0003])
Independent claim 1, reproduced below, is illustrative.
1. A hydration system comprising:

a dispenser portion adapted to allow a drinking fluid to
flow therethrough;

a sensor unit positioned to take a measurement of a flow
of said drinking fluid through said dispenser portion and to
output said measurement;

a logic unit in communication with said sensor portion to
receive said measurement output, to set a target consumption
over time based on a multidimensional profile of a user’s
physical body information, and to determine if said user’s
consumption meets said target consumption based upon said
measurement.

REFERENCES and REJECTIONS
The Examiner rejected claims 1-11, 17, 25-30, 33, 34, 36, 37, 39, and
41 under 35 U.S.C. § 103(a) based upon the teachings of Hoyt (US Patent
Application Publication No. 2002/0129663 Al, September 19, 2002) and
Howell (US Patent Application Publication No. US 2007/0024465 Al,
February 1, 2007, effectively filed June 10, 2005).
The Examiner rejected claims 12, 35, and 42 under 35 U.S.C. § 103(a)
based upon the teachings of Hoyt, Howell, and Boland (US Patent
Appeal 2010-005004
Application 11/376,613

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Application Publication No. 2006/0081653 Al, April 20, 2006, filed
September 30, 2005).
The Examiner rejected claims 13, 32, and 39 under 35 U.S.C. § 103(a)
based upon the teachings of Hoyt, Howell, and Perkins (US Patent No.
6,212,959 B1, April 10, 2001).
The Examiner rejected claims 14, 31, and 40 under 35 U.S.C. § 103(a)
based upon the teachings of Hoyt, Howell, and Kassel (US Patent No.
3,612,090, Nov. 26, 1969).
The Examiner rejected claims 15, 16, and 38 under 35 U.S.C. § 103(a)
based upon the teachings of Hoyt, Howell, and Kong (US Patent No.
4,830,226, May 16, 1989).
The Examiner rejected claim 18 under 35 U.S.C. § 103(a) based upon
the teachings of Hoyt, Perkins, and Kong.
The Examiner rejected claims 19-24 under 35 U.S.C. § 103(a) based
upon the teachings of Hoyt, Perkins, Kong, and Howell.

ANALYSIS
Appellant argues Howell may not be prior art and requests the
Examiner to comply with 37 C.F.R. § 1.104(c)(2) (Br. 16). Appellant also
asserts the cited combination of Hoyt and Howell does not teach or suggest
Appellant’s claims 1, 25, and 36 (Br. 16-17). Particularly, Appellant
contends neither Hoyt nor Howell teach or suggest “a target consumption
based on a multidimensional profile or the user’s physical body information”
(Br. 17, 20).
The Examiner finds Hoyt teaches all the limitations of Appellant’s
claim 1 except Hoyt “does not explicitly mention the target consumption
Appeal 2010-005004
Application 11/376,613

4
over time based on a multidimensional profile of a user’s physical body
information” (Ans. 4). The Examiner then finds Howell teaches this feature
(Ans. 4-5). The Examiner also finds Howell is prior art as the subject matter
used in the rejection is disclosed in provisional application 60/689321 filed
June 10, 2005 (Ans. 18). Appellant has not contested this finding.
We agree with the Examiner’s findings, particularly that paragraph
[0110] of Howell discloses a bottle keeping track of usage of a substance in
a bottle (Ans. 19). We further find Hoyt also teaches this feature as Hoyt
discloses determining the amount and timing of fluid intake (¶ [0005]) and,
when a drink is taken, the time and volume consumed are stored in a non-
volatile memory for downloading for later study, or immediately “used to
supply consumption versus time information” (¶ [0017]). Additionally,
Hoyt discloses the consumption information can be compared to preset fluid
intake values (target consumption) during each hour of a 24 hour period
(¶ [0016]). Thus, we conclude claims 1, 25, and 36 would have been
obvious over the combination of Hoyt and Howell. Although claims 2-17,
26-35, and 37-42 were not argued, we conclude these claims would have
been obvious due to their dependency on claims 1, 25, and 36.
The Examiner finds Hoyt, Perkins and Kong teach the limitations of
claim 18 (Ans. 14). Particularly, the Examiner finds Kong discloses
adaptors coupled to a cap for adapting the cap assembly to be
interchangeable with a plurality of differently shaped beverage containers, as
claimed (Ans. 15, 20). We agree with Appellant that Kong does not teach
this feature; rather, Kong merely shows different shapes Kong’s invention
can take. There is no disclosure in Kong of adaptors for making beverage
caps interchangeable with a plurality of different shaped beverage containers
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Application 11/376,613

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(Br. 21). Thus, we find claim 18 not obvious over the combination of Hoyt,
Perkins, and Kong. Although claims 19-24 were not argued, we find these
claims not obvious due to their dependency on claim 18.

CONCLUSION
The Examiner did not err in rejecting claims 1-17 and 25-42 under 35
U.S.C. § 103.
The Examiner erred in rejecting claims 18-24 under 35 U.S.C. § 103.

DECISION
The Examiner’s decision rejecting claims 1-17 and 25-42 is affirmed.
The Examiner’s decision rejecting claims 18-24 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2010).

AFFIRMED-IN-PART

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