The Coca-Cola Company

Patent Trials and Appeals Board

Jan 15, 2021

2020002339 (P.T.A.B. Jan. 15, 2021)

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.
15/521,488 04/24/2017 Satoshi KUBOI 25040-5386 1391
100612 7590 01/15/2021
Eversheds Sutherland (US) LLP KO
999 Peachtree Street NE
Suite 2300
Atlanta, GA 30309
EXAMINER
CARROLL, JEREMY W
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
01/15/2021 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 SATOSHI KUBOI, KAZUYA YAJIMA,
MASAHIRO KAMIYAMA, and YASUHIRO IMAZEKI
Appeal 2020-002339
Application 15/521,488
Technology Center 3700
Before DANIEL S. SONG, STEFAN STAICOVICI, and
MICHAEL L. WOODS, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1–14. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). The Appellant identifies the real party in interest as The
Coca-Cola Company. Appeal Br. 2.
Appeal 2020-002339
Application 15/521,488
2
CLAIMED SUBJECT MATTER
The claims are directed to a beverage supply apparatus. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A beverage supply apparatus that supplies two or more
kinds of beverages, the beverage supply apparatus comprising:
a plurality of nozzles that discharges the two or more kinds
of beverages;
a touch panel that displays selection options of the two or
more kinds of beverages and receives a selection operation for
selecting one of the two or more kinds of beverages;
a plurality of physical buttons that corresponds to the
plurality of nozzles and that receives a request to discharge the
beverage selected by the selection operation; and
a control section that specifies a physical button
corresponding to a nozzle from which the beverage selected by
the selection operation is discharged from among the plurality of
the physical buttons, the control section controlling the touch
panel to indicate the specified physical button.
Appeal Br. 9, Claims App.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Lim US 2013/0106690 A1 May 2, 2013
Moriya2 JP2009255990 (A)
Citations to the English
translation of record
Nov. 5, 2009
OPINION
The Examiner rejects claims 1–14 under 35 U.S.C. § 103 as being
unpatentable over Moriya in view of Lim. Final Act. 3. As to claim 1,

2 Moriya Hiroto is one of the named inventors in this Japanese reference.
The Examiner and the Appellant refer to this reference as “Moriya” and
thus, we do so as well.
Appeal 2020-002339
Application 15/521,488
3
which is the only independent claim on appeal, the Examiner finds that
Moriya discloses the invention substantially as claimed, but does not
disclose “a touch panel that displays selection options of the two or more
kinds of beverages and receives a selection operation for selecting one of the
two or more kinds of beverages, the control section controlling the touch
panel.” Final Act. 3–4. The Examiner then finds that:
Lim teaches a touch panel (FIG 4A) that displays selection
options of the two or more kinds of beverages (FIG 5A) and
receives a selection operation for selecting one of the two or
more kinds of beverages, the control section (FIG 2, element
207 and 206) controlling the touch panel.
Final Act. 4.
The Examiner concludes that it would have been obvious to a person
of ordinary skill in the art to have modified the device of Moriya “with touch
panel as taught by Lim in order to provide an increased number of available
products in a dispenser and/or for more efficiently providing information
related to the products available in a dispenser.” Final Act. 4.
The Appellant argues that no prima facie case of obviousness has
been established by the Examiner because in Moriya, “each button has a
printed label thereon to indicate the type of beverage being dispensed when
the button is actuated,” whereas in the claimed invention, “no physical label
needs to be changed . . . because the beverage brands are displayed on the
touch panel,” and the displayed information indicates “which brands are
available and which physical button to press after he or she has chosen a
beverage.” Appeal Br. 5. The Appellant points out that “the beverage
supply apparatus claimed herein thus may accommodate a virtually
unlimited number of different beverages and flavors with the consumer
Appeal 2020-002339
Application 15/521,488
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directed to the appropriate nozzle,” and “information on the available
beverages may be immediately updated.” Appeal Br. 6.
These arguments are unpersuasive because the Appellant argues
Moriya individually. As noted above, the Examiner has relied on Lim for
disclosing a touch panel for displaying selection options of beverages to
modify Moriya. See Final Act. 4. “Non-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references.” In re Merck, 800 F.2d 1091,
1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981).
The Appellant also argues that “there is nothing to suggest that one of
ordinary skill in the art would combine the manual system of Moriya with
the touch screen only system of Lim.” Appeal Br. 6. According to the
Appellant, “[n]either reference . . . provides any suggestion for a hybrid
system with both physical buttons and a touch screen.” Appeal Br. 6.
However, this argument is foreclosed by KSR, in which the Supreme
Court rejected the rigid requirement of a teaching, suggestion or motivation
to combine known elements in order to establish obviousness. KSR Int’l v.
Teleflex, Inc., 550 U.S. 398, 418 (2007). What is required is an articulated
reason with a rational basis to support the conclusion of obviousness. See
KSR, 550 U.S. at 417–418. In the present case, the Examiner has stated a
rational reason for combining Moriya and Lim in the manner suggested. See
Final Act. 4 (“in order to provide an increased number of available products
in a dispenser and/or for more efficiently providing information related to
the products available in a dispenser.”); see also Ans. 7 (“Lim provides a
beverage system with a touch panel and . . . direct replacement of the labels
of Moriya would allow for an increased number of available options and
allow for more efficiently providing information related to products
Appeal 2020-002339
Application 15/521,488
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available in a dispenser.”), citing Lim ¶ 6. Moreover, we note that
“[a]ccommodating a prior art mechanical device that accomplishes [a
desired] goal to modern electronics would have been reasonably obvious to
one of ordinary skill.” Leapfrog Ent., Inc. v. Fisher-Price, Inc., 485 F.3d
1157, 1161 (Fed. Cir. 2007).
The Appellant also refers to a European Patent Office (“EPO”) Search
Opinion of a related European application, which found that claim 1 differs
from Moriya in that “the control section controls the touch panel to indicate
the specified physical button,” and no labels are needed, and further found
that the secondary prior art references disclose a touch pad that is either “not
involved in the dispensing operation” or lack physical buttons. Appeal Br.
7, quoting European Search Opinion dated June 13, 2018, in EP
20150855387. Accordingly, to support patentability of the claims on appeal,
the Appellant relies on the EPO Search Opinion’s conclusion that “simple
juxtaposition of the features” of the references “would not obtain the
subject-matter of claim 1,” and thus, “claim 1 is deemed to substantiate an
inventive step.” Appeal Br. 7.
However, the Examiner is correct that the EPO Search Opinion “does
not consider the combination of Moriya and Lim and therefore its reasoning
can’t be considered relevant to the rejection.” Ans. 7. Indeed, even if the
secondary references referred to in the EPO Search Opinion are analogous to
Lim, this fact is not dispositive to the present appeal because patentability
standards between the USPTO and the EPO are not necessarily the same.
The Appellant also belatedly submits arguments directed to the cup
sensor and operation of the beverage dispenser of Moriya, and further relies
on an “EPO generated translation” of paragraph 40 of Moriya. Reply Br. 2–
3. Notwithstanding the fact that Moriya’s use of an additional sensor for
Appeal 2020-002339
Application 15/521,488
6
verification of cup placement does not detract from its operation requiring
depression of a button to dispense the beverage (see Moriya ¶¶ 48, 51), such
arguments of the Appellant are not timely. 37 CFR § 41.41(b)(2) (“Any
argument raised in the reply brief which was not raised in the appeal brief, or
is not responsive to an argument raised in the examiner’s answer, including
any designated new ground of rejection, will not be considered by the Board
for purposes of the present appeal, unless good cause is shown.”). The
Appellant has not provided a showing of good cause for the belated
presentation of these arguments. In addition, the Appellant does not
establish where the “EPO generated translation” has been made of record.
37 CFR § 41.41(b)(1) (“A reply brief shall not include . . . any new or non-
admitted affidavit or other Evidence.”). Thus, we do not address
Appellant’s new arguments presented in the Reply Brief that could have
been presented in the principal Appeal Brief. See also Ex parte Borden, 93
USPQ2d 1473, 1473–74 (BPAI 2010) (“informative”).
Accordingly, we affirm this rejection as to claims 1, 2, and 5–14.

Claims 3 and 4
Claim 3 depends from claim 1 and recites “wherein the control section
holds information of the beverage selected by the selection operation and
continues the indication of the specified physical button for a predetermined
period after discharge of the beverage selected by the selection operation is
completed.” Appeal Br. 9–10, Claims App. Claim 4 depends from claim 3.
Appeal. Br. 10, Claims App.
The Examiner rejects claim 3 finding that:
Moriya discloses wherein the control section (60) holds
information of the beverage selected (Paragraphs 36-37 and 45;
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Application 15/521,488
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this is an inherent function of the controller as it is necessary to
operate the dispenser) by the selection operation and continues
the indication (paragraph 26, 36; FIG 5; element 61) of the
specified physical button for a predetermined period after
discharge of the beverage selected by the selection operation is
completed.
Final Act. 4–5.
The Appellant argues that Moriya is “silent on holding the indication
of the specified physical button for a predetermined period after discharge of
the beverage.” Appeal Br. 8 (emphasis added). We agree with the
Appellant. Although the Examiner appears to be correct in finding that the
control section inherently holds information of the beverage selected to
operate the dispenser, neither the Examiner’s cited portions of Moriya nor
our review of Moriya indicates that its controller “continues the indication of
the specified physical button for a predetermined period after discharge of
the beverage selected by the selection operation is completed,” as recited by
claim 3 (emphasis added). The cited portions of Moriya, although disclosing
illumination of the beverage selection button and position lighting, are not
pertinent to any time period after the discharge of the beverage has been
completed.
Therefore, the Examiner’s rejection of claim 3, and claim 4 that
depends therefrom, are reversed.
CONCLUSION
The Examiner’s rejection is affirmed in part. More specifically, the
Examiner’s rejection is affirmed as to claims 1, 2, and 5–14, but is reversed
as to claims 3 and 4.
Appeal 2020-002339
Application 15/521,488
8
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–14 103 Moriya, Lim 1, 2, 5–14 3, 4
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