Ex Parte Magg et al

Patent Trial and Appeal BoardDec 5, 2012

10587162 (P.T.A.B. Dec. 5, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JOHANN MAGG, ANDREAS MAYR, and MARKUS OBERMAIER ____________ Appeal 2010-011698 Application 10/587,162 Technology Center 3700 ____________ Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and PHILIP J. HOFFMANN, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-011698 Application 10/587,162 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 13 and 261, 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The rejected claims are directed to a coffee machine with a height- adjustable spout, which may be used to dispense coffee to cups of different heights (Spec., para. [0009]). Claim 13, reproduced below, is illustrative of the claimed subject matter: 13. A coffee machine comprising a brewing chamber provided with at least one outlet for coffee and a spout which is height- adjustable relative to the outlet and is for ejecting coffee, and an impact surface arranged upstream thereof, wherein the impact surface is arranged at a fixed distance from the coffee outlet, wherein coffee emerging from the coffee outlet hits the impact surface and wherein the coffee is passed to the spout from the impact surface. 1 Our decision will make reference to Appellants’ Specification (“Spec.,” filed July 24, 2006, as a PCT application) and Appeal Brief (“App. Br.,” filed March 30, 2010), as well as the Examiner’s Answer (“Ans.,” mailed May 28, 2010). 2 Although the final Office Action mailed December 16, 2009 and page 3 of the Examiner’s Answer indicate claims 13, 26, and 38 stand rejected, the Advisory Action mailed February 18, 2010 indicates Appellants’ proposed Amendment filed February 5, 2010 will be entered, in which claim 38 is rewritten to depend from claim 27, which the Examiner has indicated includes allowable subject matter. Furthermore, as the Appeal Brief and the Examiner’s Response to Arguments (Ans. 4-5) only refer to rejections of claims 13 and 26, we conclude the apparent rejection of claim 38 on page 3 of the Examiner’s Answer was an inadvertent typographical error. Appeal 2010-011698 Application 10/587,162 3 The Examiner has rejected claims 13 and 26 under 35 U.S.C. § 103(a) as being unpatentable over Kraan (US 6,009,792, iss. Jan. 4, 2000), in view of Göckelmann (DE 36 02 665 A1, pub. Aug. 6, 1987). ANALYSIS We are not persuaded the Examiner erred in asserting that a combination of Kraan and Göckelmann renders obvious the rejected claims (App. Br. 5-7). The Examiner cites Göckelmann for disclosing “a spout which is height-adjustable relative to the outlet,” as recited in independent claim 13 (Ans. 3). Independent claim 26 recites a similar aspect. Specifically, the Examiner points out that Göckelmann teaches “three elements which [sic] together form a nozzle [that] allows for the discharge of coffee . . . at three separate heights. Thus, it can be considered that the three element arrangement (nozzle) of Gockelmann [sic] is height adjustable” (Ans. 4). Appellants argue that “[the claim] language clearly indicates that claim 13 is directed to a single spout that is height adjustable” (App. Br. 6), and that Göckelmann “discloses not one spout that is height adjustable, but instead three fixed-height elements, each with its own opening” (App. Br. 5). However, claim 13 does not recite a “single” spout, and Appellants have not identified a definition of “spout,” in either the claim itself or the Specification, which would exclude “the three element arrangement (nozzle)” of Göckelmann. Accordingly, we sustain the rejection of claims 13 and 26. Appeal 2010-011698 Application 10/587,162 4 DECISION The Examiner’s rejection of claims 13 and 26 is 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED hh