DETAILED ACTION
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 (i.e., changing from AIA to pre-AIA ) 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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA
Claim Rejections - 35 USC § 103
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, 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.
Claims 1, 6, 11, 19 – 21, and 23 – 31 are rejected under 35 U.S.C. 103 as being unpatentable over Novak et al. US 2013/0129870 in view of Hess et al. US 6,050,451 as further evidenced by Aeschbach et al. US 5,312,189 and Kazuo JP H10-119992 in view of Kaeser et al. WO 2014/125123 in view of Weijers et al. US 2013/0011521.
Regarding claim 1, Novak discloses a pack (cartridge 4) capable of preparing a food or beverage product from one or more ingredients (41/42) which pack comprises an insert (single piece insert 74) and a container (portions 46/47). The container (46/47) comprises at least one flexible sheet (material 79) in a folded configuration to store one or more ingredients. The at least one flexible sheet (79) is arranged to overwrap and match a shape of the insert (74) and the at least one flexible sheet is sealed over the insert (insert 74 may be bonded to the barrier material 79) and the container contains only the one or more ingredients (beverage medium 42 and gas source 41) (paragraph [0150] and fig. 28 – 30).
Claim 1 differs from Novak in the at least one flexible sheet overwraps and matches an entirety of the insert except for a part of the insert in direct communication with an inner volume of the container.
Hess discloses a pack (container 22) capable of preparing a food or beverage product from one or more ingredients (food and drink products) (col. 1, ln 31 – 36) which pack comprises an insert (structure 20) and a container (22) (col. 5, ln 51 – 56). The container (22) comprises at least one flexible sheet (may be a single sheet of material folded over) in a folded configuration where one or more ingredients are capable of being stored (col. 6, ln 1 – 9). The at least one flexible sheet overwraps and matches the shape of the insert (dispensing structure 20 is sealed to the web portions 31 and 32, as with a heat seal 42) (col. 6, ln 25 – 30 and fig. 1) and the at least one flexible sheet is sealed over the insert (cover 24) (col. 5, ln 57 – 67). Hess is overwrapping and matching the shape of the insert in its entirety for the art recognized as well as applicant’s intended functions to entirely cover the insert in order to provide a sanitary tamper evident and freshness seal to contain the pack contents in a secure manner. To therefore modify Novak and arrange the at least one flexible sheet tightly sealed over the insert in its entirety except for the part of the insert in direct communication with the inner volume of the container as taught by Hess would have been an obvious matter of choice and/or design to the ordinarily skilled artisan in order to provide a sanitary tamper evident and freshness seal to the pack. Aeschbach (fig. 5 – 8) and Kazuo (fig. 1 – 3 and 5) provide further evidence that it was conventional and well established in the art to provide a pack with at least one flexible sheet sealed over a pack insert in its entirety except for the part of the insert in direct communication with the inner volume of the container. Further regarding claim 1, Novak in view of Hess as further evidenced by Aeschback and Kazuo disclose the pack would have at least a primary inlet area (46a) and secondary inlet area (47a) pierceable to access corresponding primary and secondary inlets (‘870, paragraph [0150]).
Claim 1 differs from Novak in view of Hess as further evidenced by Aeschback and Kazuo in the at least one flexible sheet being positioned over the primary inlet and the secondary inlet, respectively, of the insert such that the primary inlet area and the secondary inlet area are pierceable to access the corresponding primary inlet and secondary inlet of the insert and the primary inlet and the secondary inlet communicating with the inner volume of the container by respective primary and secondary jet inlets and the primary and secondary inlets are perpendicular to both the primary and secondary jet inlets.
Kaeser discloses a pack (1) capable of preparing a food or beverage product from one or more ingredients (page 1, ln 4 – 5) which pack (1) comprises an insert (5) and a container (inner volume 2). The container (2) is configured by at least one flexible sheet (folded in its middle) folded in such a way to configure a container where one or more ingredients are capable of being stored. The at least one flexible sheet is arranged tightly overwrapping and matching the shape of the insert (5) and positioned over a primary inlet and a secondary inlet respectively (covered by the sheet the pack is made of) (page 26, ln 1 -4) such that the primary inlet area and the secondary inlet area are pierceable to allow access to the primary inlet and secondary inlet of the insert (fig. 18 and 19). Kaeser further discloses the insert would communicate with the inner volume of the container by a jet inlet (31) (page 22, ln 4 – 17, and page 23, ln 13 – 29) and that the primary inlet and the secondary inlet (32) would preferably be arranged in the pack perpendicular to a jet inlet so that the primary inlet can be accessed frontally or through opposed rear parts (page 25, ln 30 – page 26, ln 4).
Kaeser is positioning said flexible sheet over the primary inlet and the secondary inlet for the art recognized purpose of guaranteeing hygienic protection of the ingredients contained in the pack (page 10, ln 12 – 14) and providing a primary inlet with a secondary inlet for the art recognised purpose of creating a jet of water to enable agitation of beverage ingredients in the interior of the pack to improve mixing of said ingredients and the inlet being reversibly arranged in the back so that said inlet can be accessed frontally or through an opposed rear part for the art recognized function of allowing the pack to prepare a food or beverage product without being concerned with the proper orientation of said pack in the chamber of a beverage producing apparatus which is applicant’s reasons for doing so as well. To therefore modify Novak in view of Hess as further evidenced by Aeschback and Kazuo and arrange the at least one flexible sheet to be positioned over the primary inlet and the secondary inlet to guarantee hygienic protection and have the primary and secondary inlets communicating with the inner volume of the container by respective primary and secondary jet inlets and the primary and secondary inlets being reversibly arranged in the pack so that they can be accessed frontally or through their opposed rear parts as taught by Kaeser would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Claim 1 differs from Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in the primary and secondary inlets communicate with a same inner volume of the container by respective primary and secondary inlets.
Weijers discloses providing a pack for a beverage with a single insert comprising two inlets for fluid ([0082]). Weijers thus suggests it was desirable for a pack for a beverage with a single insert to comprise two inlets for fluid for introduction of fluid into the pack. Weijers also teaches that one or more fluids can be introduced into the pack (capsule) when preparing a beverage ([0084], [0085], [0088]), thus multiple inlets would be useful for introducing one or more fluids into the pack such as cold or hot water during beverage production using the pack. Therefore it would have been obvious to the ordinarily skilled artisan to modify the insert (of the side of pack 47) of Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser to comprise an additional fluid inlet as taught by Weijers for introducing one or more fluids into the pack such as cold or hot water as desired during beverage production using the pack and since it has been held that the use of known techniques to improve similar products in the same way supports a conclusion of obviousness (MPEP 2143.I.C).
Further regarding claim 1, as clearly seen in figure 28, Novak shows the dispensing outlet (46b/47b) is recessed from adjacent sides of the insert and a gap/clearance clearly exists between the dispensing outlet and the adjacent sides of the insert. Novak also discloses there would be a flexible sheet (foil lid) covering the insert, which is to say the gap/clearance would exist between at least one flexible sheet and the dispensing outlet when said flexible sheet would be attached to the adjacent sides of the insert (‘870, paragraph [0150]).
Regarding claim 6, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers disclose the primary and secondary inlets are reversibly arranged in the pack and are accessible through a front side and a rear side (‘123, page 23, ln 31 – page 24, ln 2 and fig. 22c).
Regarding claim 11, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers disclose the pack would have a structure of a pouch (‘870, paragraph [0150]). Further, since a pouch and sachet are both defined as a small bag it is not seen that patentability would be predicated on the particular name one would choose to use to refer to the structure of the pack.
Regarding claim 19, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers disclose the insert includes a dispensing outlet (47b) (‘870, paragraph 128 and fig. 28 – 30).
Regarding claim 20, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers disclose the flexible sheet would include a portion adjacent a dispensing outlet capable of being removed (peel off foil) (‘870, paragraph 139).
Regarding claim 21, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers disclose the dispensing outlet is configured as a straight tube within the insert (47b) (‘870, fig. 30).
Regarding claim 23, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers disclose the beverage outlet (4) of the insert would be parallel to the primary jet and secondary jet inlets (31) (‘123, page 22, ln 4 – 14, and fig. 18 and 19).
Regarding claim 24, whilst the drawings are not to scale Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers clearly disclose the diameter of each of the primary inlet and the secondary inlet (32) would larger than a diameter of each of the primary jet inlet and the secondary jet inlet (31) (‘123, fig. 30a).
Regarding claim 25, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers disclose a diameter of each of the primary inlet and the secondary inlet would be about 1 mm (‘123, page 5, ln 26 – 27).
Regarding claim 26, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers discloses the one or more food or beverage ingredients would be a soluble food or beverage ingredient (‘123, page 5, line 4 – 11).
Regarding claim 27, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers discloses the one or more food or beverage ingredient would comprise a liquid coffee concentrate (‘123, page 5, ln 4 – 11).
Regarding claim 28, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers discloses the one or more food or beverage ingredient instant coffee powder (‘123, page 5, ln 4 – 11).
Regarding claim 29, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers disclose the beverage ingredient portion of the at least one flexible sheet would be joined at only the free edges (‘123, page 14, ln 18 – 22).
Regarding claim 30, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers disclose the primary inlet area and the secondary inlet area would be located on the side surface of the insert (‘123, fig. 18, reference sign 32) making it obvious to the ordinarily skilled artisan to have placed said primary and secondary inlet areas on the side surface of said insert.
Regarding claim 31, Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers disclose the insert would include a dispensing outlet (4) comprising an opening on a bottom of the insert (‘123, fig. 18).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Novak et al. US 2013/0129870 in view of Hess et al. US 6,050,451 as further evidenced by Aeschback et al. US 5,312,189 and Kazuo JP H10-119992 in view of Kaeser et al. WO 2014/125123 in view of Weijers et al. US 2013/0011521 in view of Halliday et al. US 2004/0197444.
Claim 12 differs from Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers in the pack having an identification member comprising information on process parameters to produce the food or beverage product.
Halliday discloses that it was conventional and well established in the art to provide packs capable of preparing food or beverage products with an identification member which member would comprise information of process parameters to produce the food or beverage product and which parameters would consist of temperature of an aqueous fluid injected (water), pressure of a gaseous fluid injected (purge), total volume of water and gas injected (beverage volume/purge (short/long period)), or processing time (cartridge charge) (paragraph [0181] and table 3). Halliday is providing a pack with an identification member comprising information of process parameters for the art recognized as well as applicant’s intended purpose which is to programme a beverage production machine to produce an optimal food or beverage product. To therefore modify Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers and provide the pack with an identification member as taught by Halliday to ensure a food or beverage product would be optimally produced would have been obvious.
Response to Arguments
Applicant's arguments filed 28 July 2025 have been fully and carefully considered but they are not found persuasive.
Regarding claim 1 applicant urges that Novak in view of Hess as further evidenced by Aeschback and Kazuo in view of Kaeser in view of Weijers does not teach the insert includes a dispensing outlet recessed from adjacent sides of the insert such that a gap or clearance exists between the at least one flexible sheet and the dispensing outlet in an outlet delivery area wrapped with the at least one flexible sheet. This urging is not deemed persuasive.
As clearly seen in figure 28, Novak shows the dispensing outlet (46b/47b) is recessed from adjacent sides of the insert and a gap/clearance clearly exists between the dispensing outlet and the adjacent sides of the insert which gap would be present when . Novak also discloses there would be a flexible sheet (foil lid) covering the insert, which is to say the gap/clearance would exist between at least one flexible sheet and the dispensing outlet when said flexible sheet would be attached to the adjacent sides of the insert.
Applicant urges that Hess shows the flexible sheets 31,32 enclosing but spaced from the spout to provide a gap therebetween, that the flexible sheets 31, 32 do not match the shape of the spout such that the sheets are wrapped on and match sides of the insert adjacent to the dispensing outlet while forming a gap at the dispensing outlet, as claimed and that the rejections have been based on hindsight reconstruction. These urgings are not found persuasive.
Hess was brought to teach that it was conventional and well established in the art to have at least one flexible sheet of a pack capable of preparing a food or beverage product overwrap, match, and seal the entirety of the insert which is what the claim recites and what Hess teaches. That there would be a gap formed at the dispensing outlet has been taught by Novak as set forth above in the rejections. Further, the claim does not recite that the sheet would further match the shape of the spout and here applicant is urging a limitation not found in the claim.
Regarding applicant's urging that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
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 CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 30 October 2025
/VIREN A THAKUR/Primary Examiner, Art Unit 1792