Meister Cook, LLC

Patent Trials and Appeals Board

Oct 7, 2020

15130797 - (D) (P.T.A.B. Oct. 7, 2020)

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.
15/130,797 05/03/2016 Erik MAGNER MC-Tea-533-12917 5477
77741 7590 10/07/2020
Brannon Sowers & Cracraft PC
47 South Meridian Street
Suite 400
Indianapolis, IN 46204
EXAMINER
NGUYEN, THANH H
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
10/07/2020 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):
docket@bscattorneys.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIK MAGNER
Appeal 2019-005575
Application 15/130,797
Technology Center 1700
Before LINDA M. GAUDETTE, DEBRA L. DENNETT, and LILAN REN,
Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–22. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 In our Decision, we refer to the Specification (“Spec.”) of Application No.
15/130,797 filed April 15, 2016 (“the ’797 App.”); the Final Office Action
dated September 18, 2018 (“Final Act.”); the Appeal Brief filed February
12, 2019 (“Appeal Br.”); the Examiner’s Answer dated May 15, 2019
(“Ans.”); and the Reply Brief filed July 15, 2019 (“Reply Br.”).
2 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as MEISTER
COOK, LLC. Appeal Br. 1.
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Application 15/130,797

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STATEMENT OF THE CASE
The ’797 Application describes apparatuses for preparing a liquid
beverage with a liquid immersible bag with a desired steep time. Spec. ¶ 1.
FIG. 16, reproduced below from the ’797 Application, illustrates the
claimed invention.

FIG. 16 shows teabag with steep timer apparatus (10) in an unfolded
stage. Spec. ¶ 79. Teabag (20) is attached to the inside of label handle (33)
of label (30), which is connected to front label flap (31). Id. Teabag (20)
contains tea leaves (90) and transport fluid device (50). Steep timer (40) is
attached to the back of label handle (33) on steep timer label flap (32) side of
label (30). Id. Steep timer flap cover (34) is attached on top of the steep
timer segment, such as steep timer segment (100).
Claim 1 is representative of the ’797 Application’s claims and is
reproduced below from the Claims Appendix of the Appeal Brief.
1. An apparatus for preparing a beverage, the apparatus
configured and arranged to accommodate beverage ingredients
having a desired steep time, the apparatus comprising:
a liquid immersible bag, said bag structured and arranged
to have a portion to hold the beverage ingredients, the bag
structured and arranged to be immersed in liquid such that the
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ingredients of the beverage may steep in the liquid when
immersed, the bag being made of a non-capillary material;
a capillary action fluid transport device associated with
the liquid immersible bag apart from the portion structured and
arranged to hold the beverage ingredients; and
at least one flap carrying a steep timer device with at
least one visual indicator of the expiration of a predetermined
steeping time, said steep timer device being constructed with a
wicking media, said wicking media being in contact with said
capillary action fluid transport device.
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Howerin US 3,126,284 Mar. 24, 1964
Christie US 4,726,956 Feb. 23, 1988
Bowe US 2004/0255788 A1 Dec. 23, 2004
Aregger et al.
(“Aregger”)
EP 148153A Jan. 2, 1985
Müller3 DE 10151356A1 Apr. 30, 2004
Clout, Nylon teabags set to let the flavor flood out, The Telegraph, Nov. 7,
2007
REJECTIONS
The Examiner maintains the following rejections under AIA 35
U.S.C. § 103;
A. Claims 1, 5–9, 11, 12, 16–19, 21, and 22 as unpatentable over
Müller in view of Clout;
B. Claims 2, 3, 13, and 14 as unpatentable over Müller in view of
Clout and Christie;

3 The Examiner relies on a machine translation of Müller, to which
Appellant does not object. See Appeal Br. 7.
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C. Claims 4 and 15 as unpatentable over Müller in view of Clout,
Christie, and Aregger; and
D. Claims 10 and 20 as unpatentable over Müller in view of Clout,
Bowe, and Howerin. Ans. 4–7.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011))
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the [E]xaminer’s rejections.”).
A. Rejection over Müller in view of Clout
In response to this rejection, Appellant argues claims 1, 5–7, 9, 12, 16,
17, 19, and 21 as a group. Appeal Br. 6–9. We select claim 1 as
representative of the group. Claims 5–7, 9, 12, 16, 17, 19, and 21 stand or
fall with claim 1. 37 C.F.R. § 42.37(c)(1)(iv). We separately address below
the Examiner’s rejection of claims 8 and 18, and 11 and 22 over Müller in
view of Clout.
With respect to claim 1, the Examiner finds that Müller discloses the
claim limitations except for the tea bag being made of a non-capillary
material. Final Act. 3. The Examiner relies on Clout for disclosure of a
nylon (non-capillary) tea bag. Id. The Examiner determines that it would
have been obvious to one of ordinary skill in the art at the time of the
invention to use Clout’s nylon tea bag with Müller’s device based on taste
preference. Id.
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Müller Fig. 1 is reproduced below:

Fig. 1 shows Müller’s invention (1) comprising tea bag (3) for
receiving a quantity of a tea mixture. Müller ¶ 13. Tea bag (3) is fastened to
handling flap (2) at an upper area, wherein surfaces of tea bag (3) and
handling flap (2) are connected to each other via heat seal panel (5). Id.
Handling flap (2) comprises two layers indicated by lower edges 4a and 4b.
Id. Flap (2) has a recess (6) which can be clamped to the handle of a teapot.
Id. In use, moisture from tea bag (3) wets the first part of L-shaped blotter
paper strip (7), which sucks moisture slowly along by capillary action. Id.
¶ 15. The markings to the left each become visible after a given time as
moisture reaches them at progressively longer times. Id.
Appellant argues that the Examiner misconstrues Müller. Appeal Br.
6. Appellant acknowledges that tea bags having a string attached were
known and conventional. Id. Appellant contends that Müller relies on the
material of the tea bag to have a capillary action effect to transport liquid
from the tea bag to the transport and signaling elements in the handling flap,
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attached directly to the tea bag. Id. at 7. Appellant argues that Müller’s
disclosure of a tea bag string providing liquid between the tea bag and the
flap with signaling means “does not contemplate any situation where the
single service tea bag string would be associated with the steeping liquid
rather than conventionally attached to the tea bag.” Id. at 8.
As the Examiner explains in the Answer, Müller teaches that liquid
may be transported by a “capillary-strong thread” (string) from the liquid to
the steep indicator. See Ans. 7, Müller ¶ 25. “An essential idea of
[Müller’s] invention is to use the distance a liquid travels in a capillary-
strong material as a measure of the elapsed time.” Müller ¶ 26. In such
case, much like a conventional tea bag, the string holding the tea bag and
steep indicator together would be the capillary-strong material.
Appellant’s argument that Müller does not contemplate the tea bag
string being associated with the steeping liquid is not persuasive. See
Appeal Br. 8. As the Examiner explains, when a tea bag with a capillary-
strong thread attached is immersed in the liquid, the capillary-strong thread
would become wet and move liquid to the tea bag flap containing the steep
timer device. See Ans. 8.
Appellant argues, “there is no evidence to support the proposition that
the teabag string would ever be able to transport a sufficient amount of fluid
in an appropriate amount of time to make a steep timer work.” Reply Br. 2.
However, Appellant’s argument directly contradicts the record. Specifically,
Müller discloses a “time measuring device according to the invention
consists of a liquid-conveying means of transport, which in particular
utilizes the capillary action and a moisture-activatable signal means which is
located at the end of a certain distance to be covered by the liquid in the
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means of transport.” Müller ¶ 4. Müller also discloses that the invention is
transferable to 1-cup tea bags “wherein the supply of liquid can be done via
a capillary-strong thread.” Id. at ¶ 25. We agree with the Examiner that
Müller teaches a capillary-strong thread is capable of transporting sufficient
fluid to allow the invention to work as intended.
Given Müller’s teachings, we are unpersuaded of reversible error in
the rejection of claim 1. For the same reasons, we are equally unpersuaded
of reversible error in the rejection of claims 5–7, 9, 12, 16, 17, 19, and 21.
Claims 8, 9, 18, and 19
Claims 8 and 18 depend from claims 1 and 12, respectively, and each
recites “wherein said capillary fluid transport device is attached to the
outside of the liquid immersible bag.” Appeal Br. 15, 16 (Claims App.).
Claims 9 and 19 depend from claims 1 and 12, respectively, and each
recites, “wherein said capillary fluid transport device includes material with
capillary action that is integrated into the material of the liquid immersible
bag.” Id.
The Examiner finds that Müller’s Fig. 1 teaches both that the capillary
fluid transport device “is attached to the outside of the liquid immersible
bag” and “includes material with capillary action that is integrated into the
material of the liquid immersible bag” via heat seal panel (5). Final Act. 4.
Appellant argues that the Examiner’s findings regarding “attached to”
and “integrated into” contradict each other, and the Examiner therefore
“fail[s] to provide a cogent argument” supporting obviousness. Appeal Br.
9.
In answer, the Examiner further explains that Müller discloses (1)
“wherein said capillary fluid transport device (i.e. blotting paper 7) is
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attached to the outside of the liquid immersible bag as seen in Fig. 1 where
blotting paper 7 sticks out from the end of the liquid immersible bag”
(claims 8 and 18), and (2) “the blotting paper is also ‘integrated’ to the tea
bag via a heat seal 5” (claims 9 and 19). Ans. 8.
During prosecution, an application’s claims are given their broadest
reasonable scope consistent with the specification. In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The words used in a claim
must be read in light of the specification, as it would have been interpreted
by one of ordinary skill in the art at the time of the invention. Id. In general,
words used in a claim are accorded their ordinary and customary meaning.
Honeywell Int’l Inc. v. Universal Avionics Sys. Corp., 488 F.3d 982, 992
(Fed. Cir. 2007). The “broadest reasonable interpretation” standard does not
prejudice the applicant, who has the ability to correct errors in claim
language and to adjust the scope of claim protection as needed during
prosecution by amending the claims. In re Yamamoto, 740 F.2d 1569,
1571–72 (Fed. Cir. 1984). “[W]ords in a claim are generally given their
ordinary and customary meaning, [but] a patentee may choose to be his own
lexicographer and use terms in a manner other than their ordinary meaning,
as long as the special definition of the term is clearly stated in the patent
specification or file history.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d
1576, 1582 (Fed. Cir. 1996)
The Specification provides no special definitions for a capillary fluid
transport device “attached to the outside of the liquid immersible bag” or
“includ[ing] material with capillary action that is integrated into the material
of the liquid immersible bag.” The ordinary and customary meanings of
“attach” and “integrate” are as follows: “attach” means “to fasten or affix;
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join; connect; to join in action or function; make part of.”
(https://www.dictionary.com/browse/attach?s=t), and “integrate” means “to
bring together of incorporate (parts) into a whole, to unite or combine”
(https://www.dictionary.com/browse/integrate?s=t). Applying these
definitions, we agree with the Examiner that Müller discloses a capillary
fluid transport device that may be attached to the outside of the liquid
immersible bag, and that may be integrated into the material of the liquid
immersible bag, both by, e.g., heat seal panel (5).
We sustain the rejection of claims 8, 9, 18, and 19 over Müller in view
of Clout.
Claims 11 and 22
Claims 11 and 22 depend from claims 1 and 12, respectively, and each
recites, “wherein said wicking media of said flap is comprised of two or
more integrated materials with different capillary action characteristics.”
Appeal Br. 15, 16 (Claims App.).
The Examiner finds claims 11 and 22 obvious over Müller in view of
Clout. Final Act. 4. More specifically, the Examiner finds that Müller
discloses “several suitable materials for the wicking media (i.e. felt blotting
paper, cell paper and capillaries)” and “recognizes that time is measured by
the distance the liquid travels on a capillary strong material.” Id. (citing
Müller ¶¶ 19 and 25). The Examiner acknowledges that Müller does not
state that the wicking media may comprise two materials, each having
different capillary action characteristics. But the Examiner explains that “it
would have been within the technical grasp of one having ordinary skill in
the art to understand that utilizing different materials with different capillary
action characteristics would alter the time it takes a liquid to travel a certain
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distance,” making it obvious to use additional materials as a wicking media
to alter the time it takes a liquid to travel. Id. The Examiner finds that
Müller teaches the concept of using two or more integrated materials with
different moisture transport speeds in disclosing the use of a fast liquid
transporting device (a tea bag) and a slow liquid transporting device
(blotting paper). Ans. 8–9.
Appellant argues that the Examiner has not made a cogent argument
of why the ordinarily skilled artisan would have been motivated to use two
or more integrated materials with different capillary action characteristics
but does not address the Examiner’s rationale. Appeal Br. 10.
The test for obviousness is not whether the claimed invention is
expressly suggested in any one or all of the references, but whether the
claimed subject matter would have been obvious to those of ordinary skill in
the art in light of the combined teachings of those references. See In re
Keller, 642 F.2d 413, 425 (CCPA 1981). One of ordinary skill can use his
or her ordinary skill, creativity, and common sense to make the necessary
adjustments and further modifications to result in a properly functioning
device. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“a
court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ”). “A reference must be considered
for everything it teaches by way of technology and is not limited to the
particular invention it is describing and attempting to protect.” EWP Corp.
v. Reliance Universal Inc., 755 F.2d 898, 907 (Fed. Cir. 1985); see also
Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1076 (Fed. Cir. 2015).
We sustain the rejection of claims 11 and 22 over Müller in view of
Clout.
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B. Rejection over Müller in view of Clout and Christie
The Examiner rejects claims 2, 3, 13, and 14 over Müller in view of
Clout and Christie.4 Claims 2 and 13 depend respectively from claims 1 and
12. Appeal Br. 14, 16. Claim 2 recites “wherein said liquid immersible bag
has at least one side fold, wherein said side fold acts as a stiffener to
facilitate insertion through an opening of a lid of a cup,” and claim 13 is
almost identical. See id. Claims 3 and 13 depend respectively from claims 1
and 12. Id. Claim 3 recites “wherein said liquid immersible bag has rigid
sides, wherein said rigid sides act as stiffeners to facilitate insertion through
the opening of a lid of a cup,” and claim 14 is almost identical. See id.
The Examiner finds that Christie teaches “providing side fold or rigid
sides on tea bags that ha[ve] been heat sealed to contain the beverage
ingredients therein.” Final Act. 5 (citing Christie Fig. 1 and 3:63–67). The
Examiner finds that “heat sealing would have necessarily resulted in a
‘stiffened’ area relative to the center of the tea bag.” Ans. 9.
Appellant argues that none of the cited references contain any
disclosure, teaching, or suggestion of a liquid immersible bag having at least
one side fold which much less one that “acts as a stiffener to facilitate
insertion through an opening of a lid of a cup” as recited. Appeal Br. 11.
Appellant’s argument is persuasive of reversible error.
The Examiner’s citations to Christie fail to identify a side fold (claims
2 and 13) or rigid sides (claim 3 and 14). The Examiner also fails to

4 The Final Action indicates incorrectly that the claims are rejected over the
combination of only Müller and Christie. See Final Act. 4–5. The Examiner
corrected the error in the Answer. See Ans. 5–6. In addition, Appellant
argued patentability of the claims over the combination of Müller, Clout, and
Christie, making the error harmless. See Appeal Br. 10–11.
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substantiate that heat sealing would necessarily result in stiffened areas. See
Christie Fig. 1 and 3:63–67. “Inherency . . . may not be established by
probabilities or possibilities. The mere fact that a certain thing may result
from a given set of circumstances is not sufficient.” In re Olerich, 666 F.2d
578, 581 (CCPA 1981) (quoting Hansgirg v. Kemmer, 102 F.2d 212, 214
(CCPA 1939)). Heat sealing of the sides of a tea bag does not necessarily
mean that the tea bag center is less stiff, as the stiffness of the center may
depend, inter alia, on the amount of filling in the bag.
We reverse the rejection of claims 2, 3, 13, and 14 over Muller in
view of Clout and Christie.
C. Rejection over Müller in view of Clout, Christie, and Aregger
Claims 4 and 15 depend respectively from claims 3 and 14, and
further recite that “wherein said rigid sides comprise one of cardboard and
plastic.” Appeal Br. 14, 16.
The Examiner finds that claims 4 and 15 are obvious over Müller in
view of Clout, Christie, and Aregger.5 Ans. 6. The Examiner finds that
Aregger teaches a thermoplastic adhesive to seal edges of infusion packages,
and this would have necessarily stiffened the edges relative to the rest of the
tea bag. Id. at 9.

5 The Final Action indicates incorrectly that the claims are rejected over the
combination of only Müller, Christie, and Aregger. See Final Act. 5. As
with claims 3, 4, 13, and 14, the Examiner corrected the error in the Answer,
and Appellant argued patentability of the claims over the combination of
Müller, Clout, Christie, and Aregger making the error harmless. See Ans. 9
and Appeal Br. 11.
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Appellant argues that none of the cited references discloses, teaches,
or suggests a bag with rigid sides made of cardboard or plastic, thus the
rejection should be reversed.
The Examiner fails to identify a teaching that the rigid sides are made
of cardboard or plastic. See generally Final Act., Ans. Therefore, the
Examiner fails to make a prima facie case of obviousness. When the
references cited by the examiner fail to establish a prima facie case of
obviousness, the rejection is improper and will be overturned. In re Fine,
837 F.2d 1071, 1074 (Fed. Cir. 1988)
We do not sustain the rejection of claims 4 and 15 over Müller in view
of Clout, Christie, and Aregger.
D. Rejection over Müller in view of Clout, Bowe, and Howerin
Claims 10 and 20 depend respectively from claims 1 and 12, and
require that the capillary fluid transport device includes at least one cavity
for carrying additional beverage ingredients or supplements. Appeal Br. 15,
16 (Claims App.).
The Examiner finds that Müller is silent regarding the additional
limitation, but Bowe shows that it is known to provide additional cavities to
store additional beverage ingredients, and Howerin shows that it is known to
integrate additional flavorings to other features of a conventional tea bag.
Final Act. 5–6. The Examiner finds that having the additional ingredients
within the capillary transport device is not seen to produce an unexpected
result. Ans. 10.
Appellant argues that Bowe discloses having a first and a second
infusible bag for tea and flavoring material, and Howerin involves a carrier
with impregnated areas for flavoring. Appeal Br. 12. Appellant contends
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that neither Bowe nor Howerin discloses, teaches, or suggests a cavity in a
capillary fluid transport device. Id. Thus, contrary to the Examiner’s
finding, Appellant does not argue unexpected results overcome obviousness,
but rather, that no prima facie case of obviousness was made. See generally
Appeal Br.
Bowe shows an additional cavity in the tea bag, but does not disclose
a capillary fluid transport device comprising a cavity. Howerin teaches
impregnating flavors into the tea bag tag, but also fails to disclose a capillary
fluid transport device comprising a cavity. Although the Examiner is correct
that providing additional ingredients anywhere in a tea bag device would
have similarly infused additional flavors into the liquid, it is the structure,
not the end result, with which we are concerned in addressing patentability
of the claims. Structural claims, such as claims directed to an article or
apparatus, must be distinguished from the prior art in terms of structure. See
In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) and cases cited
therein; see also In re Danly, 263 F.2d 844, 848 (CCPA 1959) (“Claims
drawn to an apparatus must distinguish from the prior art in terms of
structure rather than function”); In re Gardiner, 171 F.2d 313, 315−16
(CCPA 1948) (“It is trite to state that the patentability of apparatus claims
must be shown in the structure claimed and not merely upon a use, function,
or result thereof.”). The Examiner identifies no structure in the cited art that
satisfies the requirement that a capillary fluid transport device includes at
least one cavity.
We do not sustain the rejection of claims 10 and 20 over Müller in
view of Clout, Bowe, and Howerin.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 5–9, 11,
12, 16–19,
21, 22
103 Müller, Clout 1, 5–9, 11,
12, 16–19,
21, 22

2, 3, 13, 14 103 Müller, Clout,
Christie
2, 3, 13, 14
4, 15 103 Müller, Clout,
Christie, Aregger
4, 15
10, 20 103 Müller, Clout, Bowe,
Howerin
10, 20
Overall
Outcome
1–3, 5–9,
11–14, 16–
19, 21, 22
4, 10, 15,
20

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED IN PART