Conopco, Inc., d/b/a UNILEVERDownload PDFPatent Trials and Appeals BoardMay 21, 20212020006518 (P.T.A.B. May. 21, 2021) Copy Citation 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. Appeal 2020-006518 Application 14/408,635 2 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 Appeal 2020-006518 Application 14/408,635 3 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 Appeal 2020-006518 Application 14/408,635 4 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. Appeal 2020-006518 Application 14/408,635 5 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. Appeal 2020-006518 Application 14/408,635 6 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. Appeal 2020-006518 Application 14/408,635 7 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 Copy with citationCopy as parenthetical citation