Ex Parte Rudick et al

Patent Trial and Appeal Board

Mar 13, 2017

11276549 (P.T.A.B. Mar. 13, 2017)

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.
11/276,549 03/06/2006 Arthur G. Rudick 25040.1466 3340
29052 7590 03/15/2017
Eversheds Sutherland (US) LLP
999 PEACHTREE STREET, N.E.
Suite 2300
ATLANTA, GA 30309
EXAMINER
JACYNA, J CASIMER
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
03/15/2017 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):
pair_sutherland @ firsttofile.com
patentdocket @ eversheds-Sutherland, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARTHUR G. RUDNICK,
DAVID R. NEWMAN,
NILANG PATEL,
PAUL A. PHILIPS,
GREGG CARPENTER and
LAWRENCE B. ZIESEL
Appeal 2015-006143
Application 11/276,549
Technology Center 3700
Before STEVEN D.A. McCARTHY, JEFFREY A. STEPHENS and
BRENT M. DOUGAL, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge.
DECISION ON APPEAL
1 STATEMENT OF THE CASE
2 The Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’
3 decision finally rejecting claims 1, 2, 5, 10, 11, 18, 19, 21—30 and 33—37
4 under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Holahan (US
5 2006/0051296 Al, publ. Mar. 9, 2006), Carhuff (US 2004/0071841 Al,
6 publ. Apr. 15, 2004), Schroeder (US 7,334,706 B2, issued Feb. 26, 2008)
1 The Appellants identify the real party in interest as The Coca-Cola
Company.
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Appeal 2015-006150
Application 12/328,769
and Jones (US 6,994,231 B2, issued Feb. 7, 2006); and of claim 5 under
§ 103(a) as being unpatenable over Holahan, Carhuff, Schroeder, Jones and
Bertone (US 2002/0148858 Al, publ. Oct. 17, 2002). (Final Office Action,
mailed June 20, 2014 (“Final. Act.”), at 2—5). The Examiner withdraws the
prior rejection of claim 38 on page 5 of the Answer. The Examiner
withdraws claims 6—9, 12, 13, 15 and 20 from further consideration pursuant
to 37 C.F.R. § 1.142(b), as being drawn to a nonelected species (see Final
Act. 2; Ans. 5); and considers claims 14—17, 39 and 40 allowable based on
an amendment entered in an “Advisory Action Before the Filing of an
Appeal Brief,” mailed July 9, 2014 (see Ans. 5). Claims 3, 4, 31, 32 and 38
are cancelled. (See App. Br. 9 & 14). The Appellants withdraw the appeal
as to claims 30 & 33—37. (Compare “Notice of Appeal,” dated Dec. 19,
2014 (“Applicant hereby appeals to the Patent Trial and Appeal Board from
the last decision of the Examiner.”) with App. Br. 2 (“Claims 30 and 33—37
are rejected but not appealed herein.”); id. at 14 (identifying claims 30 and
33—37 as “Not appealed”)). We treat this as a waiver of any argument for
the patentability of these claims; and summarily affirm their rejection. See
Manual of Patent Examining Procedure § 1215.03 (rev. Nov. 2013).
Claims 1, 2, 5, 10, 11, 18, 19 and 21—29 remain for consideration. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Claims 1 and 27 are independent. Claim 1 is representative:
1. A product mixing system, comprising:
an ingredient combination chamber;
the ingredient combination chamber comprising a diluent
inlet for a diluent, a plurality of macro-ingredient inlets for one
or more macro-ingredients, a plurality of micro-ingredient inlets
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Appeal 2015-006150
Application 12/328,769
for a plurality of micro-ingredients, and an outlet for mixing the
diluent, the one or more macro-ingredients, and the plurality of
micro-ingredients therein;
wherein the micro-ingredients comprise liquid micro­
ingredients with reconstitution ratios in the range of about ten to
one or higher;
means for agitation positioned downstream of the
ingredient combination chamber; and
a plurality of pumping or metering devices in
communication with the diluent inlet, the plurality of macro­
ingredient inlets, and the plurality of micro-ingredient inlets to
dispense continuously a predetermined type and ratio of macro­
ingredients, micro-ingredients, and diluent to the ingredient
combination chamber and the means for agitation and to dispense
diluent to the ingredient combination chamber and the means for
agitation to flush the ingredient combination chamber and the
means for agitation.
ISSUES
The Appellants’ arguments do not differentiate between the claims on
appeal. Therefore, we treat claim 1 as representative of all the claims on
appeal for purposes of the rejection over Holahan, Carhuff, Schroeder and
Jones. Treating claim 1 as representative, this appeal presents two issues:
First, does Holahan teach away from modifying its beverage
dispenser to include means for agitation positioned downstream of the
ingredient combination chamber?
Second, would one of ordinary skill in the art familiar with the
teachings of Holahan, Carhuff, Schroeder and Jones have had reason to
provide the ingredient combination chamber of Holahan with a plurality of
micro-ingredient inlets for a plurality of micro-ingredients?
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Appeal 2015-006150
Application 12/328,769
FINDINGS OF FACT
The record supports the following findings of fact (“FF”) by a
preponderance of the evidence.
1. Holahan describes a beverage dispenser used to prepare
thickened beverages for consumption by a patient suffering from dysphagia.
(See Holahan, paras. 23 & 24; & Fig. 2).
2. The beverage dispenser depicted in Figure 2 of Holahan
includes a dispenser nozzle 21. A thickener concentrate 24 and a diluent in
the form of fresh, potable water 20 flow into a static in-line mixer 22 and,
from there, into the dispenser nozzle 21. In addition, a plurality of beverage
concentrates 25, 26, 27 connect to the dispensing nozzle for selective flow
into the nozzle. (See Holahan, para. 22).
3. In addition, Holahan describes adding minor components to the
beverage composition:
A necessary or desired, minor components such as acids,
acidulates, chelating agents, flavors, juice or other concentrates,
colors, vitamins, minerals, and/or preservatives may be
incorporated into the thickener and liquid food admixture at any
appropriate point during the preparation. It is understood that
such minor components will likely be present in minor amounts
and concentrations, i.e. a non-substantial amount as relates to
thickening.
(Holahan, para. 46; see also id., para. 57).
4. Holahan teaches that an in-line mixing device may be “installed
and functionally connected with the process piping to provide continuous
mixing for blending of two or more ingredients.” (Holahan, para. 70).
Holahan further teaches that “the various ingredients [may be] fed to the in­
line mixer and the mixed product exits the mixer.” (Id.) Holahan does not
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Appeal 2015-006150
Application 12/328,769
specify any particular position for the in-line mixer in Holahan’s system
other than that of the static in-line mixer 22 depicted in Figure 2.
5. Carhuff describes a dispenser for preparing frothy beverages
such as creamy coffee, cappuccino or chocolate beverages. (See Carhuff,
para. 15).
6. Carhuff s dispenser 1 includes a mixing assembly 15 including
a whipper bowl 6 and a whipper 9 downstream from the whipper bowl. (See
Carhuff, para. 24 & Fig. 1).
7. A hot water tank 8; a milk concentrate container 4; a coffee
concentrate container 12; and a chocolate concentrate container 12a feed
their respective liquids into Carhuff s whipper bowl 6 through valves 7, 3,
11, and 11a, respectively. (See Carhuff, paras. 22, 24, & 25; & Fig. 1). The
respective ingredients flow into the whipper bowl 6 and then through the
whipper 9 and a nozzle 10 before being dispensed into a cup 16. (See
Carhuff, paras. 24 & 25).
8. Schroeder describes a beverage reconstituting apparatus 150 in
which a liquid concentrate and a reconstituting fluid such as water flow from
a product source 120 and a reconstituting fluid source 125, respectively;
through flow controls 110, 111; and into a mixing device 130 through ports
131,132. (See Schroeder, col. 2,11. 53-59; col. 3,11. 10-28 & 40-48; & Fig.
1). The reconstituting fluid reconstitutes the liquid concentrate in the mixing
device 130 and then flows out through an outlet 133. (See Schroeder, col. 3,
11. 28-39 & Fig. 1).
9. A control system 100 modulates the flow controls 110, 111 so
as to provide a pre-wet or a post-flush flow of the reconstituting fluid to
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Appeal 2015-006150
Application 12/328,769
clear the mixing device 130 before or after a beverage is reconstituted in the
mixing device. (See Schroeder, col. 3,1. 58 — col. 4,1. 14).
10. Jones describes a dispensing system 10 that combines beverage
components to produce a single beverage. More specifically, Jones teaches
feeding beverage components such as liquid beverage concentrate 3, liquid
sweetener 5; a flavoring 7; and water 23 into a venture mixing device 15.
(Jones, col. 3,11. 49-65; col. 4,11. 16—27 & Fig. 1). The beverage
components mix in the venture mixing device 75 to produce the final
beverage. (See Jones, col. 3,11. 63—65).
11. Jones teaches that the beverage concentrate 3, sweetener 5 and
the flavoring 7 are added in a ratio of 20:1:0.1. (Jones, col. 5,11. 20—27).
ANALYSIS
First Issue
The Examiner finds that Holahan’s dispenser nozzle 21 corresponds
to the ingredient combination chamber recited in claim 1. (See Ans. 2). The
Examiner also finds that a static in-line mixer, such as the mixer 22 depicted
in Figure 2 of Holahan, is a “means for agitation” as recited in claim 1. (See
Ans. 3). The Appellants do not challenge these findings. (See generally
App. Br. 3—7; Reply Br. 2—5). Holahan also suggests that a static in-line
mixer might be used to mix “various ingredients” in the system. (See FF 4).
Although Holahan does not describe positioning such a mixer downstream
of the dispenser nozzle 21, the teachings of paragraphs 70-72 do not restrict
the use of an in-line mixer to the particular position depicted in Figure 2.
The Appellants argue that Holahan teaches away from positioning an
agitating means downstream of the dispenser nozzle 21. “A reference may
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be said to teach away when a person of ordinary skill, upon reading the
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).
Holahan teaches that the “nozzle is designed to provide enough agitation of
the two streams [water/thickener and beverage concentrate] to produce the
final thickened beverage.” (Holahan, para 22). Holahan does not
discourage additional agitation where appropriate, however. The question
whether the final thickened beverage is sufficiently agitated is aesthetic in
nature. The views of one of ordinary skill in the art as to whether a beverage
is adequately mixed might have diverged from those of the named inventor
of Holahan, especially when additional ingredients are being added. Once
again, if one of ordinary skill in the art wished a higher degree of
homogeneity than that sufficient to satisfy the named inventor of Holahan,
there would have existed reason to add means for agitation, such as an in­
line mixer of the type described in Holahan, downstream of the dispenser
nozzle 21. For these reasons, the Examiner correctly finds that Holahan
does not teach away from the subject matter of claim 1.
Second Issue
Claim 1 recites a product mixing system including an “ingredient
combination chamber comprising ... a plurality of micro-ingredient inlets
for a plurality of micro-ingredients.” The Patent Owner argues that Holahan
fails to disclose this feature. (See App. Br. 6). Holahan teaches
incorporating minor components such as flavors into the mixture of the
water, thickener and the beverage concentrate “at any appropriate point
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Application 12/328,769
during the preparation.” (See FF 3, quoting Holahan, para. 46; see also id.,
para. 57). Jones describes incorporating sweetener 5 and flavoring 7 into a
mixture of water and beverage concentrate in a venture mixing device 15
that serves as an ingredient combination chamber. (See FF 10; see also Ans.
3 & 4). Jones would have suggested that the ingredient combination
chamber (in Holahan’s case, the dispenser nozzle 21) would have been an
“appropriate point during the preparation” to add minor components, that is,
micro-ingredients. Therefore, the Examiner correctly concludes that it
would have been obvious “to provide the mixing chamber of Holahan with a
plurality of micro ingredient sources having reconstitution ratios greater than
ten to one as, for example, taught by Jones.” (Ans. 4).
We sustain the rejection of claims 1, 2, 5, 10, 11, 18, 19, 21—30 and
33—37 under § 103(a) as being unpatentable over Holahan, Carhuff,
Schroeder and Jones. Because the combined teachings of these four
references are sufficient to sustain this ground of rejection in this appeal as
to dependent claim 5, we also sustain the rejection of claim 5 under § 103(a)
as being unpatentable over Holahan, Carhuff, Schroeder, Jones and Bertone.
DECISION
We AFFIRM the Examiner’s decision rejecting claims 1, 2, 5, 10, 11,
18, 19 and 21-29.
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).
AFFIRMED
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