AUTOMATIC BAR CONTROLS, INC.

Patent Trials and Appeals BoardJun 16, 2021

2021000904 (P.T.A.B. Jun. 16, 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. 15/179,267 06/10/2016 Charles KLEINRICHERT 472660US 3937 22850 7590 06/16/2021 OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P. 1940 DUKE STREET ALEXANDRIA, VA 22314 EXAMINER DUBOIS, PHILIP A ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 06/16/2021 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): OBLONPAT@OBLON.COM iahmadi@oblon.com patentdocket@oblon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHARLES KLEINRICHERT Appeal 2021-000904 Application 15/179,267 Technology Center 1700 Before BEVERLY A. FRANKLIN, GEORGE C. BEST, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1–3. We have jurisdiction under 35 U.S.C. § 6(b). 1 In this Decision, we refer to the Specification filed June 10, 2016 (“Spec.”); the Final Office Action dated September 20, 2019 (“Final Act.”); the Advisory Action dated February 19, 2020; the Appeal Brief filed June 19, 2020 (“Appeal Br.”); the Examiner’s Answer dated October 7, 2020 (“Ans.”); and the Reply Brief filed November 10, 2020 (“Reply Br.”). 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Automatic Bar Controls, Inc. Appeal Br. 1. Appeal 2021-000904 Application 15/179,267 2 A telephonic hearing was held on June 8, 2021. Due to technical difficulties, a transcript of that hearing will not be available. We REVERSE. CLAIMED SUBJECT MATTER The claims are directed to a chilled, nitrogen-infused beverage dispensing system. Spec. 1, ll. 3–4. Independent claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A system for dispensing a chilled noncarbonated nitrogen infused beverage, comprising: a containment means for storage and supply of a chilled noncarbonated beverage; a means for providing controlled pressurized nitrogen gas; a means for contacting the chilled noncarbonated beverage with the pressurized nitrogen gas such that the nitrogen gas is dissolved and/or dispersed in the chilled noncarbonated beverage; a beverage dispensing means attached downstream to the liquid/gas contacting means; and a means to transfer the chilled noncarbonated beverage from the containment means to the nitrogen gas contacting means and further to the beverage dispensing means; wherein the containment means is not pressurized, a pressurized gas feed supply line to the means for liquid/gas contacting comprises a means to prevent liquid flow from the liquid/gas contacting means into the pressurized nitrogen gas supply line, Appeal 2021-000904 Application 15/179,267 3 the controlled pressure nitrogen gas is fed via supply lines to the contacting means and the means to transfer the chilled noncarbonated beverage such that the nitrogen pressure at the contacting means and the nitrogen pressure at the transfer means is substantially the same, and the beverage dispensing means comprises a controlled discharge means to generate a head of foam on the discharged chilled noncarbonated nitrogen-infused beverage. Appeal Br. 10 (Claims App.). REJECTION The Examiner maintains the rejection of claims 1–3 under 35 U.S.C. § 103 over Hedderick.3 Ans. 5; Adv. Act. 1. DISCUSSION 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 examiner's rejections . . . .”). After review of the evidence in light of the Appellant’s and the Examiner’s opposing positions, we determine that the Appellant has identified reversible error in the Examiner’s rejection. The Examiner finds that Hedderick teaches claim 1’s dispensing system. Final Act. 5–6. Regarding the “means for contacting,” the Examiner finds that Hedderick teaches a gas admission inlet 7 in pipe 3 through which 3 Hedderick et al., US 5,029,733, issued July 9, 1991. Appeal 2021-000904 Application 15/179,267 4 nitrogen may be introduced into the beverage during dispensing. Id. at 5 (citing Hedderick 5:50–53). Regarding the “means to transfer,” the Examiner finds that Hedderick teaches pipe 3 that transfers a chilled noncarbonated beverage from bag 1 (“the containment means”) to gas inlet 7 (“contacting means”) and further to tap 6 (“the beverage dispensing means”). Final Act. 5; Hedderick 5:37–40, 6:24–30, Fig. 1. Appellant argues that Hedderick does not teach or suggest “[s]upplying N2 simultaneously through gas supply lines to the contacting means and the means to transfer the chilled noncarbonated beverage at substantially the same pressure.” Reply Br. 2. Appellant’s argument identifies reversible error in the Examiner’s rejection. The Examiner has not identified sufficient factual evidence of pressurized nitrogen gas being fed via supply lines—one supply line to the contacting means and a second supply line to the transfer means. “[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Because the § 103 rejection is not adequately supported by factual evidence, the Examiner has not met the initial burden of setting forth a prima facie case of obviousness over Hedderick. Thus, we do not sustain the rejection of claims 1–3. CONCLUSION The Examiner’s decision rejecting claims 1–3 is reversed. Appeal 2021-000904 Application 15/179,267 5 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3 103 Hedderick 1–3 REVERSED