Conopco, Inc., d/b/a UNILEVER

Patent Trials and Appeals Board

May 21, 2021

2020006518 (P.T.A.B. May. 21, 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.
14/408,635 12/17/2014 David Murray Cross 190058-0331 1416
136886 7590 05/21/2021
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
EXAMINER
YOO, HONG THI
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
05/21/2021 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):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID MURRAY CROSS, MICHAEL PATON,
CRISTIAN SIMION POPA, ALISTAIR DAVID SMITH,
DANIEL THOMAS TOON, and TERRENCE JOHN WILBY

Appeal 2020-006518
Application 14/408,635
Technology Center 1700
____________

Before DONNA M. PRAISS, N. WHITNEY WILSON, and
MONTÉ T. SQUIRE, Administrative Patent Judges.

PRAISS, 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, 3–5, 8, 9, 13, and 16–21. A
telephonic hearing was held on May 17, 2021.3 We have jurisdiction under
35 U.S.C. § 6(b). We REVERSE.

1 In this Decision, we refer to the Specification filed Dec. 17, 2014
(“Spec.”), the Final Office Action dated July 18, 2019 (“Final Act.”), the
Appeal Brief filed Jan. 28, 2020 as corrected Mar. 6, 2020 (“Appeal Br.”),
and the Examiner’s Answer dated June 9, 2020 (“Ans.”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Conopco, Inc. d/b/a Unilever as the
real party in interest. Appeal Br. 2.
3 A transcript of the hearing will be filed in the record in due course.
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STATEMENT OF THE CASE
The subject matter on appeal relates to a capsule for brewing a
beverage, particularly an infused tea-based beverage that is brewed in a
device having an infusion chamber. Spec. 1:4–6. The Specification describes
the capsule as having a body part that defines a cavity in which the tea
material is placed. Id. at 8:2–3. According to the Specification, the body part
comprises a flange to which a lid is attached, e.g., by heat sealing. Id. at
8:25–26.
Appellant’s Figures 5(b) and annotated Figure 6(a) below illustrate
the shape of flange 33. Appeal Br. 4.

Figure 5(b) above depicts generally circular shaped cavity 35 and flange 33
that has a shape defined by two intersecting circular arcs having the same
radius of curvature, which is substantially the same radius as the capsule
holder. Spec. 8:16–17, 8:25–9:4. Annotated Figure 6(a) above shows two
intersecting circular arcs each having a radius of curvature to define the
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Application 14/408,635

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shape of the flange (labeled “Not an Oval”) compared to an oval (as
labeled). Id. at 8:31–9:4; Appeal Br. 4.
Claim 1 is illustrative and reproduced from the Claims Appendix to
the Appeal Brief (disputed limitations italicized).
1. A capsule for use in a brewing device having a capsule
holder with a first radius, the capsule comprising:
a body part defining a cavity and comprising a flange;
a lid attached to the flange; and
tea material enclosed within the capsule;
wherein the flange is defined by two intersecting circular arcs,
each having a radius R substantially equal to the first radius,
thereby defining a shape of the flange;
wherein the flange has a longest diameter and a shortest
diameter;
wherein a ratio of the longest diameter to the shortest diameter
is between 1.2:1 and 1.5:1, inclusive;
wherein the lid is defined by two intersecting circular arcs with
truncated ends, thereby defining a shape of the lid;
wherein the shape of the lid substantially matches the shape of
the flange; and
wherein the flange and the shape of the capsule cooperate with
the brewing device in use to support the capsule within the
capsule holder of the brewing device.
Appeal Br. 16 (Claims Appendix). Claim 20 is the other independent
claim on Appeal and also directed to a capsule having a body part
comprising a “non-circular flange . . . wherein the non-circular flange
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is defined by two intersecting circular arcs, each having a radius R
substantially equal to the first radius.” Id. at 18–19.
ANALYSIS
We review the appealed rejections for error based upon the issues
Appellant identifies, 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 considering the
argued claims and Appellant’s arguments, we are persuaded of reversible
error in the appealed rejection.
The Examiner rejects claims 1, 3–5, 8, 9, 13, and 16–21 under
35 U.S.C. § 103(a) as unpatentable over Rodth4 and Porter.5 Final Act. 2–5.
The Examiner finds Rodth discloses a capsule having a circular flange that
may be various shapes and Porter teaches oval type food cups are equivalent
to circular type food cups. Id. at 3. The Examiner determines it would have
been obvious that Rodth’s various shapes include an oval as taught by Porter
and finds “an oval flange would meet the claimed intersecting circular arc
requirements” of independent claims 1 and 20. Id. The Examiner further
finds claim 1’s required ratio between the longest and shortest diameter
would be a result effective variable to achieve the desired volume of the
infuser and that the use of the capsule in a container is an intended use. Id.
The Examiner also determines that claim 1’s recited “lid . . . defined by two

4 US 2,778,739, issued Jan. 22, 1957.
5 US 2003/0042259 A1, published Mar. 6, 2003.
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intersecting circular arcs with truncated ends” would have been obvious to a
skilled artisan as a design choice. Id.
We are persuaded by Appellant’s arguments that the Examiner’s
rejection constitutes reversible error. Specifically, the Examiner’s finding
that an oval flange would meet the claimed intersecting circular arc
requirements is not supported by the preponderance of the evidence cited in
this Appeal record. Properly construed, the recitation “intersecting circular
arcs, each having a radius R” in independent claims 1 and 20 precludes an
oval because an oval is defined by joining together arcs of different radii
rather than intersecting arcs having the same radius. Appeal Br. 3, 7.
Appellant’s position is supported by the definitions cited in the Appeal
Brief. Id. at 3.
In the Answer, the Examiner construes “two intersecting circular arcs,
each having a radius R substantially equal to the first radius [of the capsule
holder]” recited in independent claims 1 and 20 to mean the intersecting
circular arcs can have different radii by virtue of the qualifier “substantially
equal.” Ans. 4. On this basis, the Examiner determines that Appellant’s
arguments distinguishing the capsule’s claimed flange structure are not
persuasive because they are not commensurate with the scope of the claim.
Id.
We note that the Specification defines “substantially equal” to mean
“the radii differ by less than about 10%.” Spec. 9: 4–5. However,
“substantially equal” as used in claims 1 and 20, as well as how it is used in
the Specification, refers to the relationship between “R” and the radius of the
capsule holder. That is, “R” as recited in claims 1 and 20 is a single value
that is substantially equal to the recited “first radius” of the capsule holder.
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Thus, the claims require that the intersecting circular arcs have the same
value “R” not two separate values as the Examiner interprets the claim.
Therefore, we determine the Examiner’s construction of claims 1 and 20 to
be incorrect.
Appellant acknowledges that “two intersecting circular arcs, each
having a radius R” does not distinguish Rodth’s circle shape from a vesica
piscis, which Appellant asserts is the non-circular, non-oval flange shape
specifically required by the claims. Appeal Br. 9 (“A shape that is formed
from two intersecting circular arcs can only be a circle or a vesical piscis.”).
According to Appellant, claim 1 contains an additional limitation that
precludes a circle. Id. That limitation is the specific ratio between the longest
diameter and the shortest diameter of the shape formed from the two
intersecting circular arcs. Id. The recited ratio does not include a 1:1 ratio,
which would be the ratio of two arcs forming a circle. Therefore, we agree
with Appellant that claim 1 precludes a circle as well as an oval. Claim 20,
on the other hand, explicitly excludes a circular shape by reciting “a non-
circular flange.” Appeal Br. 18–19 (Claims Appendix). Therefore, we agree
with Appellant that the independent claims in this Appeal preclude the circle
and oval shapes disclosed by the cited prior art references.
In sum, we determine that the Examiner’s position that the
independent claims encompass a capsule having an oval shaped flange
constitutes reversible error. Accordingly, we reverse the rejection of
independent claims 1 and 20 as well as their dependent claims.
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CONCLUSION
In summary:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–5, 8, 9,
13, 16–21 103(a) Rodth, Porter
1, 3–5, 8, 9,
13, 16–21

REVERSED