DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claim 65 is objected to because of the following informalities:
Claim 65 recites the limitation “the beverage cartridge” in line 10 as well as in line 11. It appears the claim should recite “the cartridge” in order to maintain consistency with “A cartridge” recited in Claim 65, line 1.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 65 and 67-82 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 65 recites the limitation “wherein the coupled cartridge body and the cover create at least a semi-hermetic barrier” in lines 9-10. The term “semi-hermetic” is a relative term which renders the claim indefinite. The term “semi-hermetic” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 69 recites the limitation “wherein the coupled cartridge body and the cover create at least a semi-hermetic barrier” in lines 6-7. The term “semi-hermetic” is a relative term which renders the claim indefinite. The term “semi-hermetic” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 73 recites the limitation “wherein the coupled cartridge body and the cover create at least a semi-hermetic barrier” in lines 7-8. The term “semi-hermetic” is a relative term which renders the claim indefinite. The term “semi-hermetic” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 73 recites the limitation “at least semi-hermetically separated” in line 9. The term “semi-hermetic” is a relative term which renders the claim indefinite. The term “semi-hermetic” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Clarification is required.
Claims 67-68, 70-72, and 74-82 are rejected as being dependent on a rejected base claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 65 and 67-77 are rejected under 35 U.S.C. 103 as being unpatentable over Fahmi et al. US 2017/0021996 in view of Winkler et al. US 2012/0058226, Abegglen et al. US 2013/0302476, Chen et al. US 2019/0062998, and Ragot et al. US 2015/0374624.
Regarding Claim 65, Fahmi et al. discloses a cartridge (coffee pod system 10) comprising a cartridge body (container bottom 14 and container sidewall 16) consisting essentially of plant fibers, a beverage material (coffee or similar condiment 24), and a cover (container top lid 12) coupled to the cartridge body (at top of container sidewall 16) wherein the beverage material (coffee or similar condiment 24) is contained within the cartridge body (container bottom 14 and container sidewall 16) between the cartridge body (container bottom 14 and container sidewall 16) and the cover (container top lid 12) (‘996, FIG. 1) (‘996, Paragraphs [0014]-[0015]).
Fahmi et al. is silent regarding a filter being coupled to the cartridge body wherein the beverage material is contained within the cartridge body and between the filter and the cover.
Winkler et al. discloses a cartridge (cartridge 10) comprising a cartridge body (container 12), a filter (filter 30) coupled to the cartridge body (container 12), a beverage material (beverage medium 20), and a cover (lid 38) coupled to the cartridge body (container 12) (‘226, Paragraphs [0034] and [0037]) wherein the beverage material (beverage medium 20) is contained within the cartridge body (container 12) and between the filter (filter 30) and the cover (lid 38) (‘226, FIG. 1) (‘226, Paragraph [0041]).
Both Fahmi et al. and Winkler et al. are directed towards the same field of endeavor of beverage cartridges capable of being used in a beverage machine to make a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cartridge of Fahmi et al. and incorporate a filter that is coupled to the cartridge body wherein the beverage material is contained within the cartridge body and between the filter and the cover as taught by Winkler et al. in order to remove materials over a certain size form a liquid, e.g. to remove coffee grounds from liquid in the container chamber allowing a coffee beverage to pass through yet preventing relatively large particles from flowing (‘226, Paragraph [0038]).
Further regarding Claim 65, Winkler et al. discloses the filter (filter 30) having any suitable shape and the upper portion of the filter (filter 30) that is attached to the lid has an annular or washer like shape (‘226, Paragraph [0041]). However, Fahmi et al. modified with Winkler et al. is silent regarding the filter having a toroidal shape.
Abegglen et al. discloses a capsule comprising a filter (filter 11) in the form of a porous bag containing ground coffee beverage ingredients wherein the bag is formed as a torus with a central recess for enabling water injection (‘476, FIG. 5) (‘476, Paragraph [0065]).
Both modified Fahmi et al. and Abegglen et al. are directed towards the same field of endeavor of beverage cartridges capable of being used in a beverage machine to make a beverage wherein the cartridge comprises a filter. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cartridge of modified Fahmi et al. and construct the filter to have a toroidal shape as taught by Abegglen et al. since the configuration of the claimed filter in the beverage cartridge is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence indicating that the particular configuration of the claimed filter in the beverage cartridge was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Abegglen et al. teaches that there was known utility in the beverage cartridge art to construct the beverage cartridge filter to have a toroidal shape. Additionally, one of ordinary skill in the art would construct the beverage cartridge filter of modified Fahmi et al. to have a toroidal shape specifically in order to enable water injection into the beverage cartridge (‘476, Paragraph [0065]).
Further regarding Claim 65, the limitations “wherein the coupled cartridge body and the cover create at least a semi-hermetic barrier such that the beverage material contained within the cartridge is at least a semi-hermetical barrier such that the beverage material within the beverage cartridge is substantially separated from at least oxidizing materials external to the beverage cartridge” are limitations with respect to the properties of the claimed cartridge. Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Modified Fahmi et al. teaches constructing the cartridge body and the cover of the cartridge out of the same claimed generic compostable material. Therefore, one of ordinary skill in the art would expect the compostable cartridge of modified Fahmi et al. to behave in the same manner as claimed, i.e. when the cartridge body and the cover are coupled the beverage material contained within the cartridge is hermetically separated from at least oxidizing materials external to the cartridge. Furthermore, the claim does not specify the degree of semi-hermetic separation from at least oxidizing materials external to the beverage cartridge. Any hermetic separation reads on the claimed limitation.
Further regarding Claim 65, Fahmi et al. modified with Winkler et al and Abegglen et al. renders obvious the limitations of Claim 65 as enumerated in the rejections of Claim 65 above. However, in the event that it can be argued that Fahmi et al. modified with Winkler et al. and Abegglen et al. does not necessarily teach the beverage material contained within the cartridge to have at least a semi-hermetic barrier created by the coupled cartridge body and the cover such that the beverage material within the beverage cartridge is substantially separated from at least oxidizing materials external to the beverage cartridge, Chen discloses a cartridge (paper coffee capsule) capable of making a beverage in a beverage machine (coffee capsule machine) (‘998, FIGS. 6-7) (‘998, Paragraphs [0096]-[0097]). The cartridge consists essentially of a cartridge body (capsule main body CMB), a beverage material, and a cover (capsule lid CL) coupled to the cartridge body (capsule main body CMB) (‘998, Paragraphs [0006]-[0007]). The cartridge body and the cover consists essentially of biodegradable materials (‘998, Paragraph [0054]). Chen further discloses the paper material used to make the coffee capsule to be impermeable to air and moisture (‘998, Paragraph [0025]), which reads on the claimed beverage material contained within the cartridge being at least semi-hermetically separated from at least oxidizing materials external to the beverage cartridge.
Both Fahmi et al. and Chen et al. are directed towards the same field of endeavor of biodegradable cellulose/paper based coffee capsules. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cellulose/paper coffee capsule of Fahmi et al. and create at least a semi-hermetical barrier separating the beverage material contained within the cartridge from at least oxidizing materials external to the cartridge due to the coupling of the cartridge body and the cover as taught by Chen et al. in order to maintain the freshness of the beverage material during storage of the cartridge.
Further regarding Claim 65, Fahmi et al. modified with Winkler et al., Abegglen et al., and Chen is silent regarding the cartridge body including a liner consisting essentially of plant fibers.
Ragot et al. discloses an infusion product comprising a liner (lining 84) that can have a shape configured to fit any suitable container wherein the liner (lining 84) is configured to fit into a cup and the lining is made from a reconstituted material comprising a layer of fibrous plant product treated with a plant extract (‘624, Paragraph [0027]) wherein the container is biodegradable and in the form of a disposable cartridge (‘624, Paragraph [0144]) wherein the liner (lining 84) is integral with the cup or placed as a layer or adhered to the cup (‘624, Paragraph [0176]). The liner (lining) is integral with the cup or container or otherwise laminated to the material to form the cup (‘624, Paragraph [0028]). The composition is biodegradable (‘624, Paragraph [0196]). The disclosure of the lining 84 being made from a reconstituted material comprising a layer of fibrous plant product treated with a plant extract reads on the claimed liner consisting essentially of plant fibers.
Both modified Fahmi et al. and Ragot et al. are directed towards the same field of endeavor of biodegradable compositions containing a disposable cartridge. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the biodegradable container cartridge of modified Fahmi et al. and incorporate a liner onto the cartridge body of the cartridge as taught by Ragot et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ragot et al. teaches that there was known utility in the food and beverage container art to construct a beverage cartridge with a liner disposed on the cartridge body of the beverage cartridge.
Further regarding Claim 65, the limitations “for making a beverage in a beverage machine” are seen to be recitations regarding the intended use of the “cartridge.” In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. Nevertheless, Fahmi et al. explicitly teaches using the cartridge in a beverage machine to make a beverage (‘996, Paragraph [0002]).
Regarding Claim 67, Fahmi et al. discloses the cartridge being compostable (biodegradable, recyclable) (‘996, Paragraphs [0008] and [0015]). Winkler et al. also discloses the cartridge being compostable (‘226, Paragraphs [0006] and [0037]).
Regarding Claim 68, Fahmi et al. shows a shape of the cartridge being frustoconical (‘996, FIG. 1). Winkler et al. also discloses a shape of the cartridge being frustoconical (‘226, Paragraph [0010]).
Regarding Claim 69, Fahmi et al. discloses a beverage cartridge (coffee pod system 10) comprising a cartridge body (container bottom 14 and container sidewall 16) consisting essentially of plant fibers, a beverage material (coffee or similar condiment 24), and a cover (container top lid 12) consisting essentially cover plant fibers coupled to the cartridge body (at top of container sidewall 16) wherein the beverage material (coffee or similar condiment 24) is contained within the beverage cartridge body (container bottom 14 and container sidewall 16) between the cartridge body (container bottom 14 and container sidewall 16) and the cover (container top lid 12) (‘996, FIG. 1) (‘996, Paragraphs [0014]-[0015]).
Fahmi et al. discloses each component of forming container 10 being formed of appropriate plant based fiber that is biodegradable (‘996, Paragraph [0015]). However, Fahmi et al. is silent regarding the cartridge body and the cover that are both made of plant fibers to also consist essentially of pulp.
Chen et al. discloses a beverage cartridge (coffee capsule) comprising a cartridge body (capsule main body CMB) and a cover (capsule lid CL) (‘998, Paragraph [0006]) wherein the beverage cartridge coffee capsule) is made of a base layer consisting essentially of pulp fiber (‘998, Paragraph [0006]) mixed with a plant fiber (‘998, Paragraph [0008]) wherein the beverage cartridge is biodegradable (‘998, Paragraph [0054]).
Both Fahmi et al. and Chen et al. are directed towards the same field of endeavor of biodegradable coffee cartridges. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage cartridge of Fahmi et al. and construct the cartridge body and the cover out of pulp as well as plant fibers as taught by Chen et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Chen et al. teaches that there was known utility in the beverage cartridge art to make both the cartridge body as well as the cover out of pulp and plant fibers.
Further regarding Claim 69, Fahmi et al. modified with Chen et al. is silent regarding a filter coupled to the cartridge body.
Winkler et al. discloses a cartridge (cartridge 10) comprising a cartridge body (container 12), a filter (filter 30) coupled to the cartridge body (container 12), a beverage material (beverage medium 20), and a cover (lid 38) coupled to the cartridge body (container 12) (‘226, Paragraphs [0034] and [0037]) wherein the beverage material (beverage medium 20) is contained within the cartridge body (container 12) (‘226, FIG. 1) (‘226, Paragraph [0041]).
Both Fahmi et al. and Winkler et al. are directed towards the same field of endeavor of beverage cartridges capable of being used in a beverage machine to make a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cartridge of Fahmi et al. and incorporate a filter that is coupled to the cartridge body wherein the beverage material is contained within the cartridge body as taught by Winkler et al. in order to remove materials over a certain size form a liquid, e.g. to remove coffee grounds from liquid in the container chamber allowing a coffee beverage to pass through yet preventing relatively large particles from flowing (‘226, Paragraph [0038]).
Further regarding Claim 69, Winkler et al. discloses the filter (filter 30) having any suitable shape and the upper portion of the filter (filter 30) that is attached to the lid has an annular or washer like shape (‘226, Paragraph [0041]). However, Fahmi et al. modified with Chen et al. and Winkler et al. is silent regarding the filter having a toroidal shape.
Abegglen et al. discloses a capsule comprising a filter (filter 11) in the form of a porous bag containing ground coffee beverage ingredients wherein the bag is formed as a torus with a central recess for enabling water injection (‘476, FIG. 5) (‘476, Paragraph [0065]).
Both modified Fahmi et al. and Abegglen et al. are directed towards the same field of endeavor of beverage cartridges capable of being used in a beverage machine to make a beverage wherein the cartridge comprises a filter. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cartridge of modified Fahmi et al. and construct the filter to have a toroidal shape as taught by Abegglen et al. since the configuration of the claimed filter in the beverage cartridge is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence indicating that the particular configuration of the claimed filter in the beverage cartridge was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Abegglen et al. teaches that there was known utility in the beverage cartridge art to construct the beverage cartridge filter to have a toroidal shape. Additionally, one of ordinary skill in the art would construct the beverage cartridge filter of modified Fahmi et al. to have a toroidal shape specifically in order to enable water injection into the beverage cartridge (‘476, Paragraph [0065]).
Further regarding Claim 69, the limitations “wherein the coupled cartridge body and the cover create at least a semi-hermetic barrier such that the beverage material within the beverage cartridge is substantially separated from at least oxidizing materials external to the beverage cartridge” are seen to be recitations regarding the intended use of the “cartridge.” In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. The claim does not require the cartridge body to be coupled to the cover. Additionally, where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Modified Fahmi et al. teaches constructing the cartridge body and the cover of the cartridge out of the same claimed pulp and plant fiber material. Therefore, one of ordinary skill in the art would expect the cartridge of modified Fahmi et al. to behave in the same manner as claimed, i.e. the coupled cartridge body and the cover creating at least a semi-hermetic barrier such that the beverage material within the beverage cartridge is substantially separated from at least oxidizing materials external to the beverage cartridge. Furthermore, the claim does not specify the degree of semi-hermetic barrier separation from at least oxidizing materials external to the beverage cartridge or the degree of obstruction from entering the beverage cartridge. Any separation reads on the claimed limitation. Furthermore, Chen discloses the paper material used to make the coffee capsule to be impermeable to air and moisture (‘998, Paragraph [0025]), which reads on the claimed limitations “the coupled cartridge body and the cover creating at least a semi-hermetic barrier such that the beverage material within the beverage cartridge is substantially separated from at least oxidizing materials external to the beverage cartridge.” Both Fahmi et al. and Chen et al. are directed towards the same field of endeavor of biodegradable cellulose/paper based coffee capsules. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cellulose/paper coffee capsule of Fahmi et al. and have the coupled cartridge body and the cover creating at least a semi-hermetic barrier such that the beverage material within the beverage cartridge is substantially separated from at least oxidizing materials external to the beverage cartridge as taught by Chen et al. in order to maintain the freshness of the beverage material during storage of the cartridge.
Regarding Claim 70, Fahmi et al. discloses the cartridge being compostable (biodegradable, recyclable) (‘996, Paragraphs [0008] and [0015]). Winkler et al. also discloses the cartridge being compostable (‘226, Paragraphs [0006] and [0037]).
Regarding Claim 71, Fahmi et al. discloses the pulp and body plant fibers of the cartridge body and the pulp and cover plant fibers of the cover being a same material (each component is formed of plant based fiber that is biodegradable) (‘996, Paragraph [0015]).
Regarding Claim 72, Fahmi et al. shows a shape of the beverage cartridge being frustoconical (‘996, FIG. 1). Winkler et al. also discloses a shape of the beverage cartridge being frustoconical (‘226, Paragraph [0010]).
Regarding Claim 73, Fahmi et al. discloses a cartridge (coffee pod system 10) consisting essentially of a cartridge body (container bottom 14 and container sidewall 16), a beverage material (coffee or similar condiment 24), and a cover (container top lid 12) coupled to the cartridge body (at top of container sidewall 16) wherein the beverage material (coffee or similar condiment 24) is contained within the cartridge body (container bottom 14 and container sidewall 16) between the cartridge body (container bottom 14 and container sidewall 16) and the cover (container top lid 12) (‘996, FIG. 1) (‘996, Paragraphs [0014]-[0015]). The cartridge body and the cover consists of a compostable material (recyclable materials) (‘996, Paragraph [0008]).
Fahmi et al. is silent regarding a filter coupled to the cartridge body wherein the filter has a toroidal shape wherein the beverage material is contained within the cartridge body between the filter and the cover.
Winkler et al. discloses a cartridge (cartridge 10) consisting essentially of a cartridge body (container 12), a filter (filter 30) coupled to the cartridge body (container 12), a beverage material (beverage medium 20), and a cover (lid 38) coupled to the cartridge body (container 12) (‘226, Paragraphs [0034] and [0037]) wherein the beverage material (beverage medium 20) is contained within the cartridge body (container 12) and between the filter (filter 30) and the cover (lid 38) (‘226, FIG. 1) (‘226, Paragraph [0041]). Winkler et al. also discloses the cartridge body (container) and the cover (lid 38) being made from fully compostable materials (‘226, Paragraphs [0006] and [0037]).
Both Fahmi et al. and Winkler et al. are directed towards the same field of endeavor of beverage cartridges capable of being used in a beverage machine to make a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cartridge of Fahmi et al. and incorporate a filter that is coupled to the cartridge body wherein the beverage material is contained within the cartridge body as taught by Winkler et al. in order to remove materials over a certain size form a liquid, e.g. to remove coffee grounds from liquid in the container chamber allowing a coffee beverage to pass through yet preventing relatively large particles from flowing (‘226, Paragraph [0038]). Additionally, in the event that it can be argued that the recyclable materials of Fahmi et al. does not necessarily mean compostable materials, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the recyclable materials of Fahmi et al. to also be compostable materials as taught by Winkler et al. in order to make the cartridge environmentally friendly when discarding the spent components of the cartridge after use.
Further regarding Claim 73, Winkler et al. discloses the filter (filter 30) having any suitable shape and the upper portion of the filter (filter 30) that is attached to the lid has an annular or washer like shape (‘226, Paragraph [0041]). However, Fahmi et al. modified with Winkler et al. is silent regarding the filter having a toroidal shape.
Abegglen et al. discloses a capsule comprising a filter (filter 11) in the form of a porous bag containing ground coffee beverage ingredients wherein the bag is formed as a torus with a central recess for enabling water injection (‘476, FIG. 5) (‘476, Paragraph [0065]).
Both modified Fahmi et al. and Abegglen et al. are directed towards the same field of endeavor of beverage cartridges capable of being used in a beverage machine to make a beverage wherein the cartridge comprises a filter. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cartridge of modified Fahmi et al. and construct the filter to have a toroidal shape as taught by Abegglen et al. since the configuration of the claimed filter in the beverage cartridge is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence indicating that the particular configuration of the claimed filter in the beverage cartridge was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Abegglen et al. teaches that there was known utility in the beverage cartridge art to construct the beverage cartridge filter to have a toroidal shape. Additionally, one of ordinary skill in the art would construct the beverage cartridge filter of modified Fahmi et al. to have a toroidal shape specifically in order to enable water injection into the beverage cartridge (‘476, Paragraph [0065]).
Further regarding Claim 73, the limitations “wherein the coupled cartridge body and the cover create at least a semi-hermetic barrier such that the beverage material contained within the cartridge is at least hermetically separated from at least oxidizing materials external to the cartridge” are limitations with respect to the properties of the claimed cartridge. Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Modified Fahmi et al. teaches constructing the cartridge body and the cover of the cartridge out of the same claimed generic compostable material. Therefore, one of ordinary skill in the art would expect the compostable cartridge of modified Fahmi et al. to behave in the same manner as claimed, i.e. when the cartridge body and the cover are coupled the beverage material contained within the cartridge is hermetically separated from at least oxidizing materials external to the cartridge. Furthermore, the claim does not specify the degree of semi-hermetic separation from at least oxidizing materials external to the beverage cartridge. Any hermetic separation reads on the claimed limitation.
Further regarding Claim 73, Fahmi et al. modified with Winkler et al and Abegglen et al. renders obvious the limitations of Claim 73 as enumerated in the rejections of Claim 73 above. However, in the event that it can be argued that Fahmi et al. modified with Winkler et al. and Abegglen et al. does not necessarily teach the beverage material contained within the cartridge to be hermetically separated from at least oxidizing materials external to the cartridge when the cartridge body and the cover are coupled, Chen discloses a cartridge (paper coffee capsule) capable of making a beverage in a beverage machine (coffee capsule machine) (‘998, FIGS. 6-7) (‘998, Paragraphs [0096]-[0097]). The cartridge consists essentially of a cartridge body (capsule main body CMB), a beverage material, and a cover (capsule lid CL) coupled to the cartridge body (capsule main body CMB) (‘998, Paragraphs [0006]-[0007]). The cartridge body and the cover consists essentially of biodegradable materials (‘998, Paragraph [0054]). Chen further discloses the paper material used to make the coffee capsule to be impermeable to air and moisture (‘998, Paragraph [0025]), which reads on the claimed beverage material contained within the cartridge being at least semi-hermetically separated from at least oxidizing materials external to the beverage cartridge.
Both Fahmi et al. and Chen et al. are directed towards the same field of endeavor of biodegradable cellulose/paper based coffee capsules. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cellulose/paper coffee capsule of Fahmi et al. and at least semi-hermetically separate the beverage material contained within the cartridge from at least oxidizing materials external to the cartridge when the cartridge body and the cover are coupled as taught by Chen et al. in order to maintain the freshness of the beverage material during storage of the cartridge.
Further regarding Claim 73, Fahmi et al. modified with Winkler et al., Abegglen et al., and Chen is silent regarding the cartridge body including a liner.
Ragot et al. discloses an infusion product comprising a liner (lining 84) that can have a shape configured to fit any suitable container wherein the liner (lining 84) is configured to fit into a cup and the lining is made from a reconstituted material comprising a layer of fibrous plant product treated with a plant extract (‘624, Paragraph [0027]) wherein the container is biodegradable and in the form of a disposable cartridge (‘624, Paragraph [0144]) wherein the liner (lining 84) is integral with the cup or placed as a layer or adhered to the cup (‘624, Paragraph [0176]). The liner (lining) is integral with the cup or container or otherwise laminated to the material to form the cup (‘624, Paragraph [0028]). The composition is biodegradable (‘624, Paragraph [0196]).
Both modified Fahmi et al. and Ragot et al. are directed towards the same field of endeavor of biodegradable compositions containing a disposable cartridge. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the biodegradable container cartridge of modified Fahmi et al. and incorporate a liner onto the cartridge body of the cartridge as taught by Ragot et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ragot et al. teaches that there was known utility in the food and beverage container art to construct a beverage cartridge with a liner disposed on the cartridge body of the beverage cartridge.
Regarding Claim 74, Fahmi et al. shows a shape of the cartridge being frustoconical (‘996, FIG. 1). Winkler et al. also discloses a shape of the cartridge being frustoconical (‘226, Paragraph [0010]).
Regarding Claim 75, Fahmi et al. discloses the cartridge consisting of a compostable material (recyclable materials) (‘996, Paragraph [0008]). Additionally, Winkler et al. also discloses the cartridge body (container) and the cover (lid 38) being made from fully compostable materials (‘226, Paragraphs [0006] and [0037]).
Regarding Claim 76, Winkler et al. discloses the filter having a variable porosity (filter 30 has areas with different permeabilities to help direct flow toward one or more areas of the filter 30) (‘226, Paragraph [0038]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cartridge of Fahmi et al. and incorporate a filter having a variable porosity as taught by Winkler et al. in order to remove materials over a certain size form a liquid, e.g. to remove coffee grounds from liquid in the container chamber allowing a coffee beverage to pass through yet preventing relatively large particles from flowing and to direct flow toward one or more areas of the filter (‘226, Paragraph [0038]).
Regarding Claim 77, Winkler et al. discloses the filter (filter 30) having a variable porosity (‘226, Paragraph [0038]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cartridge of Fahmi et al. and incorporate a filter having a variable porosity as taught by Winkler et al. in order to remove materials over a certain size form a liquid, e.g. to remove coffee grounds from liquid in the container chamber allowing a coffee beverage to pass through yet preventing relatively large particles from flowing and to direct flow toward one or more areas of the filter (‘226, Paragraph [0038]).
Claim 78 is rejected under 35 U.S.C. 103 as being unpatentable over Fahmi et al. US 2017/0021996 in view of Winkler et al. US 2012/0058226, Abegglen et al. US 2013/0302476, Chen et al. US 2019/0062998, and Ragot et al. US 2015/0374624 as applied to claim 65 above in further view of Empl et al. US 2016/0242594.
Regarding Claim 78, Fahmi et al. modified with Winkler et al., Abegglen et al., Chen et al., and Ragot et al. is silent regarding the cartridge body having at least one indicia on an external surface of the cartridge body.
Empl et al. discloses a cartridge (portion capsule 2) comprising a cartridge body having at least one indicia (bar code 61) on an external surface of the cartridge body (‘594, FIG. 2B) (‘594, Paragraph [0059]).
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Both modified Fahmi et al. and Empl et al. are directed towards the same field of endeavor of cartridges used to make a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cartridge of modified Fahmi et al. and dispose indicia in the form of a bar code onto the cartridge body as taught by Empl et al. in order to provide the capsule with product relevant information pertaining to instructions on the brewing process and possibly change brewing parameters (‘594, Paragraph [0029]).
Claim 79 is rejected under 35 U.S.C. 103 as being unpatentable over Fahmi et al. US 2017/0021996 in view of Winkler et al. US 2012/0058226, Abegglen et al. US 2013/0302476, Chen et al. US 2019/0062998, Ragot et al. US 2015/0374624, and Empl et al. US 2016/0242594 as applied to claim 78 in further view of Nordqvist et al. US 2017/0174417.
Regarding Claim 79, Empl et al. discloses at least one indicia (bar code 61) disposed on an external surface of the cartridge body (‘594, FIG. 2B) (‘594, Paragraph [0059]). However, Fahmi et al. modified with Winkler et al., Abegglen et al., Chen et al., Ragot et al., and Empl et al. is silent regarding the at least one indicia being a textured surface.
Nordqvist et al. discloses a capsule comprising a cartridge body (outer portion of a flange) comprising a textured optically readable identification code (‘417, Paragraph [0051]).
Both modified Fahmi et al. and Nordqvist et al. are directed towards the same field of endeavor of beverage cartridges used in a beverage preparation device. Modified Fahmi et al. discloses the cartridge having a cartridge body containing a barcode via Empl et al. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cartridge of modified Fahmi et al. and make the at least one indicia of the bar code to be a textured surface as taught by Nordqvist et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Nordqvist et al. teaches that there was known utility in the food and beverage container art to construct a beverage cartridge with a barcode having a textured surface disposed on the cartridge body of the beverage cartridge.
Claims 80-82 are rejected under 35 U.S.C. 103 as being unpatentable over Fahmi et al. US 2017/0021996 in view of Winkler et al. US 2012/0058226, Abegglen et al. US 2013/0302476, Chen et al. US 2019/0062998, Ragot et al. US 2015/0374624, Empl et al. US 2016/0242594, and Nordqvist et al. US 2017/0174417 as applied to claim 79 above in further view of Capitani US 2014/0083873.
Regarding Claim 80, Fahmi et al. modified with Winkler et al., Abegglen et al., Chen et al., Ragot et al., Empl et al., and Nordqvist et al. is silent regarding the cover being coupled to the cartridge body by wrapping the cover around a rim of the cartridge body.
Capitani discloses a cartridge for making a beverage in a beverage machine (‘873, Paragraph [0003]) wherein the cartridge comprises a cartridge body (tray like body 12) and a cover (sealing cover 16) coupled to the cartridge body by wrapping the cover (sealing cover 16) around a rim (annular portion 181) of the cartridge body (tray like body 12) (‘873, FIG. 5B) (‘873, Paragraphs [0043] and [0046]). The cartridge is made from a biodegradable material (‘873, Paragraph [0046]).
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Both modified Fahmi et al. and Capitani are directed towards the same field of endeavor of biodegradable beverage cartridges. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cartridge of modified Fahmi et al. and couple the cover to the cartridge body by wrapping the cover around a rim of the cartridge body as taught by Capitani since the configuration of the claimed coupling of the cover to the cartridge body is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence indicating that the particular configuration of the claimed coupling of the cover to the cartridge body was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Capitani teaches that there was known utility in the beverage cartridge art to couple the cover to the cartridge body in the claimed manner.
Regarding Claim 81, Winkler et al. discloses the cover being coupled to the cartridge body with an adhesive (‘226, Paragraph [0061]).
Regarding Claim 82, Capitani discloses the cover (sealing cover 16) being coupled to a first surface of the rim (annular portion 181) and a second surface of the rim (annular portion 181) wherein the first surface of the rim (annular portion 181) is opposite the second surface of the rim (annular portion 181) (‘873, FIG. 5B) (‘873, Paragraph [0043]).
Response to Arguments
Examiner notes that the previous Claim Objections have been withdrawn in view of the amendments.
Examiner notes that the previous new matter rejections under 35 USC 112(a) have been withdrawn in view of the amendments.
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Examiner notes that new indefiniteness rejections under 35 USC 112(b) have been made in view of the amendments.
Applicant’s arguments with respect to the obviousness rejections of Claims 65 and 67-82 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Marcinkowski US 2017/0355515 discloses a beverage cartridge comprising a cartridge body (cup 12) including a liner (liner 20) (‘515, FIGS. 1-2) (‘515, Paragraph [0019]) wherein the liner is made of a polymer material that is impervious to moisture and gas (‘515, Paragraph [0005]).
Nachawati US 2017/0143158 discloses a beverage cartridge (cartridge 300) comprising an internal liner (‘158, Paragraph [0049]).
Trombetta et al. US 2013/0209618 discloses a beverage cartridge comprising a cartridge body (container 40) made from a multilayer material comprising a liner (gasket layer 26) (‘618, Paragraph [0040]) wherein the liner (gasket layer 26) provides liner or filtering properties (‘618, Paragraph [0044]).
Aviles et al. US 2014/0161940 discloses a beverage cartridge (cartridge 10) comprising a cartridge body (container 12) including a liner (membrane 40) (‘940, FIG. 1), a filter (filter 30) coupled to the cartridge body, a beverage material (beverage medium 20) (‘940, Paragraph [0018]) and a cover (lid 38) coupled to the cartridge body (at rim 19 of container 12) (‘940, Paragraphs [0021], [0029], and [0034]) wherein the filter (filter 30) can have any suitable shape (‘940, Paragraph [0029]).
Milligan et al. US 2015/0150286 discloses a container lid comprising a first layer facing down and directly above hot food wherein cotton cellulosic fibers that comprise the exterior first layer attracts water vapor to promote absorption and rapid transfer into successive layers for retention away from the food (‘286, Paragraph [0007]0 wherein cellulose is the structural component of the primary cell wall of green plants wherein the cellulose content of cotton fiber is 90% wherein cotton absorbs up to 27 times its weight in liquid water (‘286, Paragraph [0052]).
Matthews-Guest US 5,913,443 discloses a food container (lunch container) containing a liner made of heavy duty material that is quilted and absorbent on one side and non-porous on the other side which non-porous side is inserted into the food container (lunch container) so that it is adjacent the interior of the lunch container and the quilted side is the top side of the liner wherein the quilted absorbent side is exposed to the lunch contents to absorb spills wherein the non-porous material is paper including cardboard or wax paper or plastic
Collinson EP 0 710 606 discloses a biodegradable food container (‘606, Column 1, lines 5-13) comprising a liner (liquid absorbing wick liner 55) disposed on a bottom of the food container (at bag bottom wall 42) wherein the liner (liquid absorbing wick liner 55) is made of paper materials (‘606, Column 10, lines 27-55).
Karhuketo et al. US 2001/0026874 discloses a lid comprising a paper based body layer on which coating layers are applied wherein the coating layers are made of biodegradable plastic (‘874, Paragraph [0016]).
Karhuketo US 6,080,478 discloses a food container comprising a laminate comprising a greaseproof paper having good grease and aroma tightness and plastic layers disposed on the cellulose based layer.
McGoff et al. US 2018/0299059 discloses a thermal insulating liner comprising an insulating layer and a barrier wherein the barrier comprises paper (‘059, Paragraph [0003]).
Tilton US 2009/0047525 discloses an inner liner used for packaging food wherein glassine greaseproof paper, waxed paper, or plastic films are frequently used to create the required contact surface or to provide a suitable barrier (‘525, Paragraph [0003]).
Beauregard et al. US 2017/0115267 discloses a pulp or paper product made from textile fibers and/or agricultural plant pulp used as liner materials (‘267, Paragraph [0067]).
Teeri et al. US 2004/0091977 discloses a liner board made from cellulose fibers extracted from plants such cotton or wood or pulp fibers (‘977, Paragraph [0026]).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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/ERICSON M LACHICA/Examiner, Art Unit 1792