Numan Zeidan

Patent Trials and Appeals Board

Dec 20, 2021

2021003567 (P.T.A.B. Dec. 20, 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.
15/649,812 07/14/2017 Numan Zeidan ZEID001-2 7428
7590 12/20/2021
William C. Milks, III
950 N. San Antonio Road #11A
Los Altos, CA 94022
EXAMINER
COLLINS, RAVEN
ART UNIT PAPER NUMBER
3735
MAIL DATE DELIVERY MODE
12/20/2021 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NUMAN ZEIDAN
Appeal 2021-003567
Application 15/649,812
Technology Center 3700
Before DANIEL S. SONG, CHARLES N. GREENHUT, and
WILLIAM A. CAPP, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–17. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Numan Zeidan.
Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The claims are directed to a cup collar. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A cup collar[2] for a beverage cup, comprising:
a beverage cup having an opening at a lip of the cup, a
portion of the cup proximate the opening at the lip of the cup
provided on the interior of the cup with one or more graduated
markings to indicate one or more levels, respectively, to which
to selectively fill the cup with a beverage to accommodate
addition of an additive to the beverage, wherein each graduated
marking comprises a line on the interior of the cup substantially
spanning the inner circumference of the cup, each graduated
marking having a first end and a second end and an alphanumeric
character positioned between the first and second ends to label
the graduated marking to indicate the level to which to fill the
cup with the beverage by selection of one of the labeled
graduated markings to accommodate the addition of the additive
to the beverage.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Bittner US 6,736,538 B2 May 18, 2004
Nathanson US 9,398,775 B2 July 26, 2016
Monahan US 2009/0294318 A1 Dec. 3, 2009
Tharp US 2012/0324997 A1 Dec. 27, 2012

REJECTIONS
Claims 1–8 and 11–15 are rejected under 35 U.S.C. § 103 as being
unpatentable over Bittner, Monahan, and Nathanson. Final Act. 3.

2 It is not clear how claim 1 is directed to a “collar” for a cup as the body of
the claim appears to be directed to the cup.
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Claims 9, 10, 16, 173 are rejected under 35 U.S.C. § 103 as being
unpatentable over Bittner, Monahan, Nathenson, and Tharp. Final Act. 6.
OPINION
Initially, Appellant is reminded that in the rules of practice before the
Board 37 C.F.R. § 41.37(c)(1)(iv) states: “Each ground of rejection
contested by appellant must be argued under a separate heading . . . Under
each heading identifying the ground of rejection being contested, any
claim(s) argued separately or as a subgroup shall be argued under a separate
subheading that identifies the claim(s) by number.” Despite this defect in
Appellant’s briefing, we will proceed to render a decision on the merits
according to our best understanding of what Appellant intended to argue.
See MPEP § 1205.03.
Appellant begins by summarizing the rejection, the references, some
case law and the claim language, without specifically addressing the
Examiner’s position. Appeal Br. 7–13. Such remarks are noted but are not
regarded as arguments according to 37 C.F.R. § 41.37(c)(1)(iv) (“The
arguments shall explain why the examiner erred as to each ground of
rejection contested by appellant.”).

The claimed invention
Appellant’s claimed invention is directed to placing markings on a
cup intended to be filled with a beverage, such as coffee, in order to make it
easier for the person consuming the beverage to communicate to the person
filling the cup how much empty space should be left in the cup to allow for

3 Claims 16 and 17 appear to have been inadvertently omitted from the
rejection statement. Final Act. 6–7
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an additive, such as milk. According to the Specification, this helps obviate
the need to spill out some of the beverage to create space for the additive,
thereby conserving water. Spec. 7–9.

Claims 1, 6, and 11
The Examiner found Bittner to disclose the basic subject matter of
claims 1, 6 and 11 including a cup with an interior marking or markings to
indicate a level to which to fill with one or more beverages or additives to a
beverage. Final Act. 3. The Examiner relied on Monahan to demonstrate it
was known to place multiple markings “on the interior”4 and “proximate the
opening at the lip of the cup.” Id. The Examiner relied on Nathanson for
providing markings “substantially spanning the inner circumference” of the
cup and labeled with an “alphanumeric character positioned between [its]
first and second ends.” Id.
Where Appellant begins to specifically address claims 1, 6, and 11,
Appellant begins by summarizing Bittner and pointing out Bittner lacks
subject matter for which it was never cited by the Examiner. Appeal Br. 13–
15. Such remarks do not address the Examiner’s position as required by
§ 41.37(c)(1)(iv) supra. “Non-obviousness cannot be shown by attacking
references individually when the rejection is predicated upon the teachings
of a combination of references.” See In re Merck & Co. Inc., 800 F.2d 1091,
1097 (Fed. Cir. 1986).

4 The Examiner also cites Bittner and Nathanson for teaching “interior”
markings. However, it is not apparent what evidence the Examiner relies on
in support of these findings. This issue is not raised by Appellant and these
findings are, in any case, cumulative to the finding of interior markings
clearly disclosed in Monahan.
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It is clear that Bittner provides “one or more markings 24 . . . used
during measuring to indicate the specified amount of a particular
ingredient.” Col. 2, ll. 57–59. Although the terms “level,” “fill,” and
“volume” may not have been used (Appeal Br. 15; Reply Br. 13), the phrase
“during measuring” would have made it clear to the skilled artisan that such
line or lines were intended as instructions indicating the volume to which the
cup should be filled by a particular component or ingredient. Bittner’s
indication that there may be multiple lines indicates that the beverage such
as “the Coffee and Fruit Coolatta® drinks offered by Dunkin’ Donuts” (col.
1, ll. 18–19) may be comprised of more than one component. Any
subsequently added component is reasonably regarded as an “additive.”
Although the markings in Bittner may be intended for the preparer of the
beverage as opposed to the consumer to add the final ingredient, Appellant
does not apprise us of how this intention is included in any of claims 1, 6,5
and 11, and if it were, what patentable significance it would have. If a
structural distinction is somehow implicit with regard to this use, it would
appear to be the location of the mark being “proximate the opening at the lip
of the cup” to allow for the consumer of the beverage to add the final
ingredients. However, that language is already positively recited in claims 1
and 11 and the Examiner relies on Monahan rather than Bittner to address
that language.
Appellant does not take issue with the Examiner’s reasoning for
incorporating Monahan’s teachings. Final Act. 4. Rather, Appellant argues

5 Although claim 6 is directed to a method, the language associated with
filling the cup, “whereby the cup is to be filled . . .”, as with claims 1 and 11,
relates to an intended use for the cup as opposed to manipulative step
required to practice the claimed method.
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that Monahan discloses a bucket not a cup. Appeal Br. 16; Reply Br 14. The
Examiner disputes this characterization (Ans. 8) but it is ultimately not
critical to the rejection because obviousness is not a matter of bodily
incorporation but is considered in light of the reference teachings as a whole.
One skilled in the art would understand that Monahan’s teachings regarding
marking a volumetric measurement container would be applicable to cups as
well as buckets because those devices are similar in both structure and
function. Appellant further argues that the claimed subject matter is
distinguishable from Monahan because Monahan measures the contents of
the material already contained in the bucket as opposed to material intended
to be added to the container. Appeal Br. 16; Reply Br 15–16. First, this is not
correct. Monahan clearly contemplates using the graduated container to
“ascertain the quantity of the contents within the cavity 32 by utilizing the
volume indicators 40 on the side wall 24” “[a]s the contents are being
introduced into the cavity 32.” Para. 29 (emphasis added). Second, an artisan
must be presumed to know something about the art apart from what the
references disclose. See In re Jacoby, 309 F.2d 513, 516 (CCPA 1962). The
use of container graduations to measure liquids being added to the container
and discontinue adding when a certain measurement is reached must be
considered within that knowledge. In re Sovish, 769 F. 2d 738, 743 (Fed.
Cir. 1985) (“This argument presumes stupidity rather than skill.”).
Appellant’s similar argument regarding Nathanson (Appeal Br. 20; Reply
Br. 17–18) is unpersuasive for similar reasons. Nathanson clearly considers
using the markings to guide filling the container. Col. 14, ll. 37–39.
Appellant’s final argument concerning claim 6, specifically, is that
none of Bittner, Monahan, and Nathanson mention conserving water, or
water in general. Appeal Br. 15, 17, 20; Reply Br 20. “Water” is used in
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claims 6 and 11 predominately to define the nature of the beverage intended
to be placed in the cup. Appellant does not identify any structural distinction
this creates in terms of defining the cup itself, in particular such that it would
be distinguishable from a cup such as that of Bittner, intended to hold Coffee
and Fruit Coolatta® drinks, which we also understand to be “water-based.”
Claim 6 recites the limitation “thereby conserving water.” First, because
“conserving water” is introduced by the term “thereby” this would appear to
be the result of the process as opposed to a manipulative step in the process
itself. It is noted that it is somewhat questionable how this result is achieved
simply by performing the only other manipulative steps in the process of
claim 6: providing a beverage cup and marking its interior. As discussed
above, water is recited only with regard to the intended contents of the cup
and no manipulation of water is actually required by the steps recited in
claim 6. In any case, although new uses of known processes may be
patentable, newly discovered results of known processes directed to the
same purpose are not patentable because such results are inherent. Bristol-
Myers Squibb Co. v. Ben Venue Laboratories, Inc. 246 F.3d 1368, 1376-
1377 (Fed. Cir. 2001). Here, the process of providing the cup and providing
markings on it would have been obvious in view of Bittner, Monohan, and
Nathanson, as detailed by the Examiner. Final Act. 3–4. The ability to
measure ingredients to a line on the cup so as not to cause the beverage to
overflow the cup when subsequent ingredients are added, as described in
Bittner, above, would seem to lead to the same result of conserving the
water-based beverage, and thus “thereby conserving water” to the same
extent.

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Claim 9
Appellant argues claim 9 by pointing out that Nathanson is entirely
transparent and Monahan has a translucent portion whereas claim 9 requires
the cup to be “entirely opaque.” Appeal Br. 17, 20; Reply Br 20. These
arguments do not address the Examiner’s position which relies on Tharp as
demonstrating it was well-known to select between translucent and opaque
materials for use in measuring cups. Final Act. 6–7 (citing Tharp para. 28).

Claims 7 and 8
Appellant’s argument concerning claims 7 and 8 amounts to merely
quoting the claim language and asserting the prior art does not disclose such
subject matter. Appeal Br. 21; Reply Br. 21. 37 C.F.R. § 41.37(c)(1)(iv)
requires “more substantive arguments in an appeal brief than a mere
recitation of the claim elements and a naked assertion that the corresponding
elements were not found in the prior art.” See In re Lovin 652 F.3d 1349,
1357 (Fed. Cir. 2011). The Examiner reasonably found Bittner to disclose
filling the cup with a water-based beverage (as we understand coffee and
fruit-based drinks to typically be) by disclosing its mixing blade, implies that
additives, regarded as any second ingredient, is added thereto. Final Act. 4.
Appellant has not raised any specific issues associated with the Examiner’s
findings or construction of the claims. Thus, the Examiner’s position with
regard to claims 7 and 8 stands uncontroverted.
CONCLUSION
The Examiner’s rejections are AFFIRMED.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–8, 11–15 103 Bittner, Monahan,
Nathanson
1–8, 11–15
9, 10, 16, 17 103 Bittner, Monahan,
Nathenson, Tharp
9, 10, 16, 17
Overall
Outcome
1–17

RESPONSE
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