Newton R. White et al.

Patent Trials and Appeals Board

Oct 1, 2019

11276553 - (D) (P.T.A.B. Oct. 1, 2019)

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.
11/276,553 03/06/2006 Newton R. White 25040.1464 3345
29052 7590 10/01/2019
Eversheds Sutherland (US) LLP
999 PEACHTREE STREET, N.E.
Suite 2300
ATLANTA, GA 30309
EXAMINER
MOORE, WALTER A
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
10/01/2019 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 NEWTON R. WHITE,1
KELLY H. SEPCIC, GREGG CARPENTER, LAWRENCE B.
ZIESEL, and ROBERT D. HUGHES IV
________________

Appeal 2018-0034322
Application 11/276,553
Technology Center 1700
________________

Before MARK NAGUMO, JAMES C. HOUSEL, and BRIAN D. RANGE,
Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL
Newton R. White, Kelly H. Sepcic, Gregg Carpenter,
Lawrence B. Ziesel, and Robert D. Hughes IV (“Coca-Cola”) timely appeal
under 35 U.S.C. § 134(a) from the Final Rejection3 of all pending claims 1,

1 The real party in interest is listed as The Coca-Cola Company
(“Coca-Cola”). (Appeal Brief, filed 28 July 2017 (“Br.”), 2.)
2 Coca-Cola waived appearance at the Hearing scheduled
for 26 September 2019. (Communication filed 17 September 2019.)
3 Office Action mailed 9 March 2017 (“Final Rejection”; cited as “FR”).
Appeal 2018-003432
Application 11/276,553

2
4, 5, 10–21, 24–29, 45–47, and 49–59. We have jurisdiction. 35 U.S.C. § 6.
We affirm-in-part.
OPINION
A. Introduction4
The subject matter on appeal relates to methods for dispensing a
beverage selected from a number of beverages, each comprising a food acid
concentrate and a food acid-degradable concentrate, selected from plural
concentrates of each kind.
This is the second time rejected claims in this application have come
before the Patent Trial and Appeal Board for review from a Final Rejection
by the Primary Examiner. The first appeal5 was resolved on the meaning, as
recited in the claims, of the limitation that a food acid concentrate is stored
separately from a food acid-degradable composition, such that the food acid
concentrate cannot degrade the food acid-degradable composition.
As will be seen, the present appeal is resolved on the meaning of the
limitation, as recited in independent claims 1 and 21, “automatically
dispensing continuously in a predetermined ratio” a food acid concentrate
and a food acid-degradable concentrate.

4 Application 11/276,553, Methods and apparatuses for making
compositions comprising an acid and an acid degradable component and/or
compositions comprising a plurality of selectable components,
filed 6 March 2006. We refer to the “′553 Specification,” which we cite as
“Spec.”
5 Appeal 2014-002605, entered 18 April 2016 (aff’d).
Appeal 2018-003432
Application 11/276,553

3
A general dispensing apparatus 106 is illustrated in Figure 1, below.

{Figure 17 shows a diagram of beverage dispensing apparatus 10}
The various components, including the food acid concentrate and the food
acid-degradable concentrate, are stored separately in containers C1–Cs.
According to the beverage request entered at user interface 18, the desired
components are mixed with diluents (e.g., carbonated water) from diluent
sources 14 and 16, “at the dispensing nozzle 20 or anywhere downstream of
the beverage component storage containers.” (Spec. 16, ll. 3–10.)
Of particular interest is the continuous pour mode, in which, the
Specification explains, “as opposed to a conventional batch operation where
a predetermined amount of ingredients are combined, the apparatus 10

6 Throughout this Opinion, for clarity, labels to elements are presented in
bold font, regardless of their presentation in the original document.
7 The original Figure is faint. We encourage all applicants to file high
resolution, clear Figures for optimal exposition of the claimed invention.
Appeal 2018-003432
Application 11/276,553

4
provides for continuous mixing and flows in the correct ratio for a pour of
any volume.” (Id. at 18, ll. 2–4.) According to the Specification, in the
disclosed embodiments, “[t]his ability to dispense the appropriate
ingredients in the appropriate proportions for a given flow rate results from
the use of individual pumps and/or metering devices for each of the non-
sweetener beverage component concentrates and the diluents.” (Id. at ll. 6–
9.)
Claim 1 is representative and reads:
Method for making a selected post-mix beverage from a
plurality of selectable post-mix beverages comprising,
storing a plurality of food acid concentrates in a plurality
of respective acid storage containers;
storing a plurality of food acid-degradable concentrates in
a respective plurality of component storage containers,
wherein the food acid concentrates and the food acid-
degradable concentrates are stored separately from each
other;
receiving a request for the selected post-mix beverage; and
in response to the selection of the post-mix beverage,
automatically dispensing continuously in a predetermined
ratio
one of the plurality of the food acid concentrates from a
respective one of the plurality of food acid storage
containers and
one of the plurality of food acid-degradable
concentrates from a respective one of the plurality of
component storage containers
such that the one of the plurality of the food acid
concentrates and the one of the plurality of food acid-
degradable concentrates mix together to form the
selected post-mix beverage.
(Claims App., Br. 18; some formatting and emphasis added.)
Appeal 2018-003432
Application 11/276,553

5
Claims 4, 5, 10–20, 45–47, and 49–52 depend from claim 1.
(Id. at 18–21, 24, and 25.)
Remaining independent claim 21 is similar to claim 1, but requires
storing at least three non-sweetener post-mix beverage component
concentrates, at least one of which is a food acid concentrate, and at least
one of which is a food acid-decomposable concentrate. (Id. at 22.)
Remaining claims 24–29 and 53–59 depend from claim 21. (Id. at 22–24,
26, and 27.)
The Examiner maintains the following grounds of rejection8, 9:
A. Claims 1, 4, 5, 10–21, 24–29, 45–47, 49–51, and 53–59 stand
rejected under 35 U.S.C. § 103(a) in view of the combined
teachings of Fisher10 and Kunz.11
A1. Claims 15–20 and 26–28 stand rejected under 35 U.S.C.
§ 103(a) in view of the combined teachings of Fisher, Kunz,
and Boston.12
A2. Claim 52 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Fisher, Kunz, and Henley.13

8 Examiner’s Answer mailed 14 December 2017 (“Ans.”).
9 Because this application was filed before 16 March 2013, the effective
date of the America Invents Act, we refer to the pre-AIA version of the
statute.
10 Russel E. Fisher, System for Dispensing Flavored Beverages, U.S. Patent
No. 2,880,912 (1959).
11 Ludwig Kunz, Method of Preparing Fruit Syrups, U.S. Patent
No. 1,735,118 (1929).
12 Ronald P. Boston, Process for Producing Carbonated Beverages, U.S.
Patent No. U.S. Patent No. 4,695,468 (1987).
13 Terry L. Henley et al., Fluid Dispensing Apparatus, U.S. Patent
No. 3,827,467 (1974).
Appeal 2018-003432
Application 11/276,553

6
B. Claims 21, 24–29, and 55–59 stand rejected under 35 U.S.C.
§ 103(a) in view of the combined teachings of Forsythe,14
Fisher, and Davis.15
B1. Claim 28 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Forsythe, Fisher, Davis, and
Boston.
B. Discussion
The Board’s findings of fact throughout this Opinion are supported by
a preponderance of the evidence of record.
Rejections A, A1, and A2 based on Fisher
Coca-Cola urges the Examiner errs harmfully in finding that Fisher
discloses continuously dispensing concentrates. Rather, in Coca-Cola’s
view, supported by a Declaration16 by Gregg Carpenter, one of the named
inventors, Fisher describes a conventional batch pour dispenser. Coca-Cola
argues that Fisher dispenses predetermined amounts of stored ingredients
rather than predetermined ratios. (Br. 7–8.) Coca-Cola directs our attention
to timing rotor 42, which is fitted with cams 46, 48, and 50, as shown in
Fisher Figure 2, reproduced on the next page. Cams 46, 48, and 50 provide

14 David P. Forsythe, Beverage Dispensing Apparatus, U.S. Patent
No. 5,960,997 (1999).
15 Charles W. Davis, Jr., et al., Method for Increasing Stability of Liquid
Beverage Concentrate, U.S. Patent No. 4,830,870 (1989).
16 Declaration of Gregg Carpenter, dated 13 December 2016, filed following
the Final Rejection communicated 26 September 2016. The Examiner
denied entry of the declaration (Advisory Action communicated
on 11 January 2017), and Coca-Cola filed a Request for Continued
Examination under 37 C.F.R. § 1.114, including the Declaration. The Final
Rejection on appeal ensued.
Appeal 2018-003432
Application 11/276,553

7
carbonated water via valve 18, sweetener via valve 23, and flavoring via
valve 36, respectively (see Fisher Figure 1, not reproduced here), for
different periods of time set by the circumferential length of each cam.
{Fisher Figure 2 is shown below}

{Fisher Figure 2 shows a timing circuit with timing rotor 42 with cams 46,
48, and 50, which open, respectively, valves 18, 23, and 36, respectively, for
durations proportional to the circumferential length of each cam}
The Examiner maintains that “[t]he fact that batch pour and
continuous dispensers are different is not a basis for patentability of the
presently claimed invention.” (Ans. 22, last full para.) The Examiner
maintains further that “the argument is not commensurate in scope with the
claimed invention” and that “[t]he claims do not establish a ‘continuous
pour’ dispenser or a ‘batch pour’ dispenser.” (Id.)
Although we concur in the Examiner’s apparent assessment that the
claims are broad and that the Specification does not define the term
“automatically dispensing continuously in a predetermined ratio” with ideal
precision, we are unable to find adequate support for the Examiner’s
conclusion that the term is so broad as to include batch dispensing as
Appeal 2018-003432
Application 11/276,553

8
described by Fisher. The Specification states that “the apparatus 10 provides
for continuous mixing and flows in the correct ratio for a pour of any
volume.” (Id. at 18, ll. 3–4.) The Examiner’s “three different ways” that
“automatically dispensing continuously” are satisfied by Fisher, namely
substituting the overlapping dispensing of two ingredients at a time for the
simultaneous dispensing of all ingredients, continuously, at the same time
(Ans. 24), are strained at best. Claims are indeed to be read broadly during
examination, but they must be read “in light of the Specification”—and the
Examiner has not shown that the Specification would have suggested to
persons having ordinary skill in the art as broad a reading as the Examiner
proposes.
The Examiner makes no findings regarding any of the additional
references or the further limitations of the dependent claims that cure these
defects.
We therefore reverse Rejections A, A1, and A2 based on Fisher.
Rejections B and B1 based on Forsythe
Coca-Cola, following Carpenter’s testimony that Forsythe also
discloses a conventional batch dispenser because “[t]he batch pour is again
time based” (Declaration 2, § 5), urges that the Examiner errs harmfully in
determining that independent claim 21 and its dependent claims would have
been obvious for lack of disclosure of the limitation, “automatically
dispensing continuously in a predetermined ratio.” (Br. 12–13, Reply 11.)
Coca-Cola’s arguments in this regard are not persuasive because
Forsythe discloses that the disclosed apparatus “allows the flavoring to be
dispensed into the cup 25 simultaneously and throughout dispensing of the
Appeal 2018-003432
Application 11/276,553

9
base beverage.” (Forsythe, col. 7, ll. 35–38 (emphasis added).) According
to Forsythe, “[t]his results in a more uniform, thorough mixing of the flavor
with the base beverage to provide a fresher, more consistent taste during
consumption of the beverage.” (Id. at ll. 39–41.) Forsythe emphasizes that
“because the flavoring dispensing system control 65 is responsive only to the
beverage control signal, a constant volume ratio of flavoring to base
beverage is automatically maintained by the apparatus regardless of the size
of the cup being filled.” (Forsythe, col. 7, ll. 41–46 (emphasis added).)
Coca-Cola does not address these disclosures, mentioned specifically by the
Examiner (FR 4), which appear to meet the principal disputed limitation of
automatic continuous dispensing. It is not clear what aspect of this
limitation Coca-Cola maintains is not met by Forsythe.
As for the purported absence of disclosure of at least three initially
separated components (Br. 13–14), as the Examiner finds (FR 4), Forsythe
indicates that “other flavorings may be included in the flavoring dispensing
system and dispensed in a similar manner.” (Forsythe, col. 3, ll. 36–38.17).
Similarly, the Examiner (FR 4–5) finds that Davis teaches maintaining
“citrus-flavored oil . . . in a relatively low-acid environment prior to
beverage preparation results in a much improved flavor oil stability” (Davis,
col. 2, ll. 20–23). In Davis’s words, “[i]n a second aqueous component is
placed a majority of the acid which is desired for the final beverage
product.” (Id. at ll. 29–31.) We are therefore not persuaded of harmful error

17 See also Forsythe, col. 3, ll. 28–30, “[t]he number of flavoring lines 51
may vary depending on the number of flavorings that may be added to a
particular base beverage.”)
Appeal 2018-003432
Application 11/276,553

10
on this record in the Examiner’s findings that separated acid and acid-
degradable components would have been obvious, as required by claim 21.
Coca-Cola’s remaining arguments regarding the rejection of claim 28
(Br. 14–15) and of claim 52 (id. at 15–16) are cumulative as they argue that
Boston and Henley do not cure the defects of Forsythe. Not having been
persuaded of harmful error in the Examiner’s findings regarding Forsythe,
we do not find these further arguments persuasive of harmful error.
We affirm Rejections B, B1, and B2 of claim 21 and the associated
dependent claims.
C. Order
It is ORDERED that the rejection of claims 1, 4, 5, 10–21, 24–29, 45–
47, 49–51, and 53–59 under 35 U.S.C. § 103(a) in view of the combined
teachings of Fisher and Kunz is REVERSED.
It is FURTHER ORDERED that the rejection of claims 15–20 and
26–28 under 35 U.S.C. § 103(a) in view of the combined teachings of
Fisher, Kunz, and Boston is REVERSED
It is FURTHER ORDERED that the rejection of claims 52 under
35 U.S.C. § 103(a) in view of the combined teachings of Fisher, Kunz, and
Henley is REVERSED.
It is FURTHER ORDERED that the rejection of claims 21, 24–29,
and 55–59 under 35 U.S.C. § 103(a) in view of the combined teachings of
Forsythe, Fisher, and Davis is AFFIRMED.
Appeal 2018-003432
Application 11/276,553

11
It is FURTHER ORDERED that the rejection of claim 28 under
35 U.S.C. § 103(a) in view of the combined teachings of Forsythe, Fisher,
and Boston is AFFIRMED.
In summary:
Rejections A, A1, and A2 of claims 1, 4, 5, 10–20, 45–47,
and 49–52 are REVERSED;
Rejections B and B1 of claims 21, 24–29, and 53–59 are
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