Ex Parte Perentes et al

Patent Trial and Appeal Board

Sep 27, 2018

13514517 (P.T.A.B. Sep. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/514,517 06/07/2012
29157 7590
K&L Gates LLP-Chicago
P.O. Box 1135
CHICAGO, IL 60690
10/01/2018
FIRST NAMED INVENTOR
Alexandre Perentes
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.
3712036-01610 8481
EXAMINER
HOANG, MICHAEL G
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
10/01/2018 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):
USpatentmail@klgates.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEXANDRE PERENTES,
CHRISTIAN JARISCH, and ALFRED YOAKIM 1
Appeal2018-002327
Application 13/514,517
Technology Center 3700
Before JOHN C. KERINS, BENJAMIN D. M. WOOD, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Alexandre Perentes et al. ("Appellants") appeal under 35 U.S.C.
§ 134(a) from a final rejection of claims 1-11. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 Nestec S.A. is identified as being the real party in interest. Appeal Br. 2.
Appeal2018-002327
Application 13/514,517
THE INVENTION
Appellants' invention is directed to a capsule system for preparing a
beverage by centrifugation of a capsule. Claim 1, reproduced below, is
illustrative:
1. A capsule system for preparing a beverage by centrifugation
of a capsule in a centrifuging brewing device, the capsule system
compnsmg:
a centrifuging brewing device comprising a controller capable of
operating the device by controlling a parameter selected from the
group consisting of a beverage flow rate, a volume of the
beverage, and a combination thereof; and
a set of capsules comprising a first capsule and a second capsule,
each of the first and second capsules configured to be inserted in
the centrifuging brewing device and form, in cooperation with
the centrifuging brewing device, a flow restriction or flow
restriction valve which provides a backpressure exerted on a
centrifuged liquid during rotation of the inserted capsule, the first
capsule comprising a first body and a first rim extending from
the first body perpendicular to an axis of rotation of the first
capsule, the second capsule comprising a second body and a
second rim extending from the second body perpendicular to an
axis of rotation of the second capsule, the first rim has a different
thickness than the second rim,
the controller selectively adjusts, as a function of the exerted
backpressure by the flow restriction or flow restriction valve,
either a rotational centrifugation speed of the inserted capsule, or
the rotational centrifugation speed of the inserted capsule and a
volume of injected liquid in the capsule.
REJECTION
The Examiner rejects claims 1-11 under 35 U.S.C. § I03(a) as being
unpatentable over Yoakim (WO 2008/148646 Al, published Dec. 11, 2008)
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Appeal2018-002327
Application 13/514,517
(hereinafter "Yoakim '646") in view of Novak (US 2010/0028495 Al,
published Feb. 4, 2010), and Yoakim (US 2006/0110507 Al, published May
25, 2006) (hereinafter Yoakim '507).
ANALYSIS
The Examiner finds that Y oakim '646 discloses several of the
limitations appearing in claim 1 directed to a centrifuging brewing device
including a first capsule, but does not disclose, inter alia, the provision of a
second capsule having a rim whose thickness is different from the thickness
of the rim of the first capsule. Final Act. 3-5. The Examiner takes the
position that Yoakim '507 discloses that increasing a thickness of a flange-
like rim of a capsule is "already within the knowledge of those skilled in the
art." Id. at 5. The Examiner states that paragraph 5 ofYoakim '507 stands
for the proposition that "[t]he thickness of a capsule's flange-like rim has a
relationship to the internal pressure of the capsule." Id.
The Examiner observes that, since Yoakim '646 is a single-use
capsule system, it is intended to be used with a succession of capsules, and it
thus would have been obvious to include a second capsule, and further, in
view of Y oakim '507, it would have been obvious to have the rim of the
second capsule be thicker that the rim of the disclosed first capsule. Id. at 6-
7. The Examiner avers, apparently based on the teachings of Y oakim '507,
that
Id.
since it is clear that a thicker rim would affect the backpressure,
... , a second capsule having a second rim thickness different
from the first rim [thickness], would be advantageously used to
adjust the flow of rate of liquid exiting a centrifuged capsule,
which would affect the taste of the liquid coffee.
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Appeal2018-002327
Application 13/514,517
Appellants argue that Yoakim '507 not only does not teach that the
varying of the thickness of the rim/flange therein will affect the backpressure
in any particular way, but rather, Yoakim '507 stands for the proposition that
varying (i.e., increasing) the thickness of the flange disclosed therein would
be ineffective, or not any more effective than a thinner seal, in providing a
seal that prevents water from leaking past the seal. Appeal Br. 7-8.
Appellants additionally maintain that Y oakim '507 contains no teachings
relative to backpressure being related to a thickness of a capsule flange. Id.
at 9.
The Examiner responds that paragraph 5 of Y oakim '507 "discloses
that increasing the thickness of a capsule's flange-like rim ... is within the
knowledge of those skilled in the art of single-use coffee capsule systems."
Ans. 4. The Examiner additionally retorts that the "technical feature of
adjusting the rim thickness, as disclosed by Y oakim '507, could be applied
to Yoakim '646 with desirable results, i.e., having more fine control of the
back-pressure exerted on the centrifuged liquid." Id. at 5.
The Examiner's position is not supported by the evidence relied on.
That increasing a thickness of a flange of a beverage capsule is generally
"known" to be possible provides no more guidance to a person of ordinary
skill in the art than the knowledge that the thickness of virtually any physical
object may be increased or otherwise varied, for some or no purpose
whatsoever. Y oakim '507 expressly teaches that increasing the thickness of
its flange is ineffective at preventing water leaking past the seal created by
the flange, and thus provides no suggestion to include, in a brewing system,
first and second capsules having rims of different thicknesses. Y oakim '507
,r 5. That same paragraph further provides no insight as to whether an
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Appeal2018-002327
Application 13/514,517
increase in the thickness of the flange has any effect, one way or another, on
controlling backpressure, as asserted by the Examiner.
The rejection is therefore seen as lacking rational underpinnings,
and/or based on hindsight reconstruction using knowledge gleaned from
Appellants' disclosure. The rejection of claim 1, and of claims 2-11
depending therefrom, is not sustained.
DECISION
The rejection of claims 1-11 under 35 U.S.C. § 103(a) as being
unpatentable over Yoakim '646, Novak, and Yoakim '507, is reversed
REVERSED
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