Ex Parte Ryan et al

Patent Trial and Appeal Board

Oct 1, 2018

15204697 (P.T.A.B. Oct. 1, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/204,697 07/07/2016
100612 7590 10/03/2018
Eversheds Sutherland (US) LLP KO
999 Peachtree Street NE
Suite 2300
Atlanta, GA 30309
FIRST NAMED INVENTOR
Christopher Thomas Ryan
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.
25040-5234 8304
EXAMINER
JACYNA, J CASIMER
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
10/03/2018 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):
patentdocket@eversheds-sutherland.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER THOMAS RYAN,
EDWIN PETRUS ELISABETH VAN OPSTAL,
KENNETH HENG-CHONG NG, and SASHA MIU
Appeal2018-000197
Application 15/204,697
Technology Center 3700
Before MICHAEL L. HOELTER, WILLIAM A. CAPP, and
FREDERICK C. LANEY, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the non-final
rejection of claims 15, 16, 21-23, 25, 26, 28, 29, and 31-33 under 35 U.S.C.
§ 103(a) as unpatentable over Allen (US 1,758,552, iss. May 13, 1930) and
Oliver (US 1,370,759, iss. Mar. 8, 1921), and claims 24 and 27 over Allen,
Oliver, and Jamgochian (US 4,211,342, iss. July 8, 1980). We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 The Coca-Cola Company is the Applicant and real party in interest.
Appeal Br. 2.
Appeal2018-000197
Application 15/204,697
THE INVENTION
Appellants' invention relates to beverage dispensers. Spec. ,r 102.
Claim 15, the only independent claim on appeal, is reproduced below as
illustrative of the subject matter on appeal.
15. A method of operating a beverage dispenser with
micro-ingredients therein, comprising:
rotating a rotating element of a rotary combination chamber
to a dispense position;
flowing a first plurality of micro-ingredients through the
rotary combination chamber;
rotating the rotating element to a wash position;
flowing a flow of water through the rotary combination
chamber;
rotating the rotating element to the dispense position; and
flowing a second plurality of micro-ingredients through the
rotary combination chamber.
OPINION
Unpatentability of Claims 15, 16, 21-23, 25, 26, 28, 29, and 31-33
over Allen and Oliver
Claim 15
The Examiner finds that Allen discloses the invention substantially as
claimed except for simultaneously dispensing a plurality of micro-
ingredients, which the Examiner finds is at least suggested by Oliver. Non-
Final Action 2-3. The Examiner concludes that it would have been obvious
to a person of ordinary skill in the art at the time the invention was made to
provide Allen with the step of flowing a plurality of micro-ingredients
through a rotary combination chamber. Id. at 3. According to the Examiner,
a person of ordinary skill in the art would have done this to dispense a mixed
beverage with specific ingredient proportions. Id.
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Appellants argue that Allen only dispenses one syrup at a time.
Appeal Br. 5. They also argue that Oliver does not flow a plurality of micro-
ingredients through a rotary combination chamber. Id. "No use of multiple
syrups, much less micro-ingredients, is taught or suggested therein. Only
the single syrup source 40 is shown or suggested." Id.
In response, the Examiner points out that Allen is relied on to disclose
storing and dispensing a plurality of micro-ingredients, albeit one ingredient
at a time. Ans. 6. The Examiner relies on Oliver as "teaching the
simultaneous dispensing of a plurality of beverage ingredients." Id.
In reply, Appellants argue that the Examiner "misses the point,"
namely, that Oliver simultaneously dispenses syrup and water, not two
syrups. Reply Br. 2. Thus, according to Appellants, Oliver dispenses only
one syrup at a time. Id.
Allen discloses a fluid dispensing apparatus. Allen, 11. 1-5. Allen's
apparatus dispenses a plurality of liquids of different characters from
different sources of supply through a single nozzle. Id. at 11. 5-11. Allen
dispenses, from a single nozzle, any one of a plurality of flavoring syrups.
Id. at 11. 12-17.
As illustrated in Figs. 1 and 2, a plurality of tanks constitute the
sources of liquid supply, each tank being designed to contain a
liquid of a character different from that of the liquids contained
in the other tanks.
Id. at 11. 74--78. Oliver is directed to a multi-channel faucet in which a
channeled cock operates in conjunction with a plurality of channels to make
various combinations of connections. Oliver, 11. 8-12.
Having considered the competing positions of Appellants and the
Examiner, we find the Examiner's position to be more persuasive. The
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Application 15/204,697
primary thrust of Appellants' argument is that Oliver simultaneously
dispenses syrup and water, whereas the claimed invention simultaneously
dispenses two or more syrups. Although this may amount to a slight,
incremental difference between the prior art and the claimed invention,
Appellants present neither persuasive evidence, technical reasoning, or
argument as to why this difference rises to the level of a patentable
invention. It is well settled that a claimed invention may be obvious even
when the prior art does not teach each claim limitation, so long as the record
contains some reason that would cause one of skill in the art to modify the
prior art to obtain the claimed invention. Beckson Marine, Inc. v. NFM, Inc.,
292 F.3d 718, 728 (Fed. Cir. 2002). In an obviousness analysis, "we do not
ignore the modifications that one skilled in the art would make to a device
borrowed from the prior art." In re ICON Health & Fitness, Inc., 496
F.3d 1374, 1382 (Fed. Cir. 2007). This follows from the prospect that "[a]
person of ordinary skill is also a person of ordinary creativity, not an
automaton." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,421 (2007).
A reason to modify a prior art reference may be found explicitly or
implicitly in market forces; design incentives; the "interrelated teachings of
multiple patents"; "any need or problem known in the field of endeavor at
the time of invention and addressed by the patent"; and the background
knowledge, creativity, and common sense of the person of ordinary skill.
Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1328-29 (Fed. Cir.
2009) (quoting KSR, 550 U.S. at 418-21)). Here, the prior art teaches
dispensers that individually dispense from a plurality of syrups (Allen) and
dispensers that simultaneously dispense a plurality of ingredients (Oliver).
The only modification needed to achieve the claimed invention is to route an
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additional supply conduit from the plurality of Allen's syrup tanks into the
valve and nozzle configuration of Oliver. The Examiner finds, and we
agree, that a person of ordinary skill in the art would have done this to
dispense a mixed beverage with specific ingredient proportions. Non-Final
Action 3.
The Supreme Court recognizes that design incentives and other
market forces can prompt variations of the prior art. KSR, 550 U.S. at 417.
Thus, if a person of ordinary skill can implement a predictable variation,
Section 103 likely bars its patentability. Id. We do not view claim 15 as
anything more than a predicable variation of the combined teachings of
Allen and Oliver. The idea of mixing a plurality of ingredients to formulate
a beverage is old. 2 All of the technology needed to mix multi-ingredient
beverages and then deliver them via a dispenser is taught by Allen and
Oliver. All that is needed to achieve the claimed invention is the design
incentive to do so coupled with ordinary skill. The Examiner aptly
recognizes such design incentive in the stated rejection. Non-Final Action 3.
KSR counsels us against overemphasizing the importance of published
articles and the explicit content of issued patents. Id. at 419. In certain
contexts, there may be little discussion of obvious techniques. Id. In such
situations, market demand, rather than scientific literature, may often drive
design trends. Id. Merely adding another input line from a syrup tank in a
beverage dispenser is precisely the type of situation where we would expect
market demand, rather than scientific literature, to drive a design trend. KSR
further reminds us that mere "ordinary" innovation is expected in the normal
course and is not the subject of exclusive rights under the patent laws. Id.
2 For example, making a cup of tea with honey or sugar.
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at 427. The law deems obvious those modest, routine, everyday,
incremental improvements of an existing product or process that do not
involve sufficient inventiveness to merit patent protection. See Ritchie v.
Vast Resources, Inc., 563 F.3d 1334, 1337 (Fed. Cir. 2009). Viewed in the
light of prevailing principles of obviousness jurisprudence, Appellants'
variation of Allen/Oliver by adding another syrup line is viewed as the
practice of ordinary skill, not invention.
We have reviewed Appellants other arguments and found them to be
without merit. In particular, we find Appellants' "gravity based dispensing"
argument to be persuasively refuted by the Examiner. See Ans. 6-7 ("There
is nothing in the claim language to suggest that the micro-ingredients are
viscous or concentrated or cannot be gravity dispensed"). No further
discussion or elaboration is required here.
In view of the foregoing discussion, we determine the Examiner's
findings of fact are supported by a preponderance of the evidence and that
the Examiner's legal conclusion of unpatentability is well-founded.
Accordingly, we sustain the Examiner's unpatentability rejection of
claim 15.
Claims 16, 21, 24, 27, 31, and 33
These claims depend, directly or indirectly, from claim 15 and are not
separately argued. Claims App., see generally Appeal Br. These claims fall
with claim 15. See 37 C.F.R. § 4I.37(c)(l)(iv) (failure to separately argue
claims). We sustain the rejection of claims 16, 21, 24, 27, 31, and 33.
Claims 22, 23, 25, 26, 28, 29, and 32
On pages 6 and 7 of their Appeal Brief, Appellants offer seven
paragraphs, each of only two sentences, that purport to individually traverse
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the rejection of each of these claims. Appeal Br. 6-7. In violation of our
rules, none of these paragraphs is presented under a separate sub-heading.
See 37 C.F.R. § 4I.37(c)((l)(iv) ("any claim(s) argued separately ... shall
be argued under a separate subheading that identifies the claim( s) by
number"). Appellants offer neither explanation nor excuse for ignoring our
rules.
Furthermore, our rules require that an Appellants' "arguments shall
explain why the examiner erred to each ground of rejection contested" and,
furthermore, a "statement which merely points out what a claim recites will
not be considered an argument for separately patentability of the claim." Id.
Moreover, as explained by the Federal Circuit, Rule 41.37 requires more
than recitation of the claim elements and a naked assertion that the elements
are not found in the prior art. In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011).
It is an open question whether Appellants' cursory two sentence
treatment of each of these claims rises to the level of separate arguments for
the patentability of these claims under Rule 41.37 and Lovin. However, to
the extent that they do rise to such level, we deem them to be persuasively
refuted by the Examiner. See Final Action 3--4; Ans. 7-9. For example, in
response to Appellants' argument regarding the "position indicator" of
claims 22 and 25, the Examiner directs our attention to elements 50 and 51
of Allen as clearly indicating a selected position. Ans. 7-8; see also Allen,
Fig. 9. Thus, with respect to each of claims 22, 23, 25, 26, 28, 29, and 32,
we hereby adopt the Examiner's findings of fact and reasoning as our own
and sustain the rejection of claims 22, 23, 25, 26, 28, 29, and 32.
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Application 15/204,697
Unpatentability of Claims 24 and 27
over Allen, Oliver, and Jamgochian
Claims 24 and 27 depend from claim 15. Claims App. Claim 24 adds
a limitation directed to pumping the micro-ingredient pumps. Id. Claim 27
adds a limitation directed to pumping the water. Id. The Examiner relies on
Jamgochian as disclosing a beverage dispenser that pumps both water and
syrup. Non-Final Action 4. The Examiner concludes that it would have
been obvious to a person of ordinary skill in the art at the time the invention
was made to provide Allen with pumps as taught by Jamgochian. Id.
According to the Examiner, a person of ordinary skill in the art would have
done this to increase and control the dispensing flow rate. Id. Appellants
argue these claims together. Appeal Br. 8.
Appellants argue that a person of ordinary skill in the art would not
have been motivated to modify Allen with pumps. Id. Appellants argue that
this is "particularly true" in view of the fact that Allen's rotating element
provides different positions for low pressure and high pressure water. Id.
In response, the Examiner takes the position that using a pump allows
for an increased flow rate and improved control over the amount dispensed.
Ans. 9. According to the Examiner, this decreases the dispensing time and
improves the accuracy of measuring the amount dispensed. Id. The
Examiner considers these to be "clear reasons" why one of ordinary skill in
the art would find the combination obvious and advantageous. Id. Thus, the
Examiner provides sound articulated reasoning with rational underpinning to
support the rejection. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
(requiring an obviousness conclusion to be based on explicit articulated
reasoning with rational underpinning) cited with approval in KSR, 550 U.S.
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at 418. Appellants' contrary position is neither persuasive nor indicative of
Examiner error.
In view of the foregoing, we sustain the Examiner's rejection of
claims 24 and 2 7.
DECISION
The Examiner's decision to reject claims 15, 16, 21-29, and 31-33 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)(l )(iv).
AFFIRMED
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