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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on December 17, 2024 has been entered.
Response to Amendment
Those objections and rejections not repeated in this Office Action have been withdrawn.
Claims 1-5, 7-9, 11-19 are currently pending and rejected.
Claim Objections
Claims 1, 3, 4, 5, 8, 11, 14, 15 and 17 are objected to because of the following informalities:
Claim 1 recites the limitation, “said pressure container comprising a second volume.” In light of the specification, it is clear that the phrase, “second volume” is simply referring to the volume of the pressure container. For matters of form, this limitation should be amended to recite, “said pressure container comprising a volume.”
Accordingly, the limitation of, “the second volume of the pressure container” as recited in claims 5 and 17 and the limitation of, “the second volume” as recited in claims 14 and 15 should be amended to recite, “the volume of the pressure container.”
Claim 3 recites the limitation, “at mutually different height positions of a height.” For matters of form, this limitation should be amended to recite, “at different heights along the length of the pressure container.”
Claim 4 recites the limitation, “at an identical height position of a height.” For matters of form, this limitation should be amended to recite, “at an identical height along the length of the pressure container.”
Claim 8 recites the limitation, “wherein the pressure container has at least partially a cylindrical shape.” For matters of form, this limitation should be amended to recite, “wherein the pressure container has, at least partially, a cylindrical shape.”
Claim 11 recites the limitation, “in a force-fitting manner.” For matters of form, this limitation should be amended to recite, “by force-fitting the pressure container into the first volume.” 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 1-5, 7-9, 11-17, 19 and 20 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation, “the base” on line 6, which lacks proper antecedent basis.
Claim 1 recites the limitation, “the pressure container has, between a first end and a second end, a length along the axial direction that is at least 50% of the largest height” on lines 15-16. It is not clear if “a length” can be any length between the first and second end or whether the claim is intending to recite that the pressure container has a length that extends from the first end to the second end. If the claim intends for “a length” to be the length extending from the first end to the second end, then it is not clear as to how the pressure container can have a length that is, for example, 50% of the height of the beverage container, while still having a first and second end of the pressure container extend into the first and second core bevel, as recited on lines 21-25. Applicant’s specification appears to show that the volume of the pressure container (the third volume as recited in the specification) extends up and into an upper region adjacent to the lid (see page 5, lines 15-17 of the Specification as filed) and extends down and into a lower region adjacent to the bottom (see page 5, lines 23-27).
In view of the lack of clarity discussed above, Claim 5 is unclear. Specifically, claim 5 recites the limitation, “with the beverage container standing upright, the second volume of the pressure container extends up and into an upper region adjacent to the lid.” It is not clear as to how the second volume of the pressure container can extend up and into an upper region adjacent to the lid while the pressure container also having a height that is 50% of the largest height of the beverage container, as recited in claim 1, line 15-16 and also having the first and second end of the pressure container extend into the respective first and second core bevel.
Claim 1 recites the limitation, “movement of the pressure container along the axial direction is at least restricted by the bottom and the lid” on lines 19-20. It is not clear whether the limitation is intending to mean that movement is at minimum restricted or whether the limitation is intending to mean that the movement in the axial direction is restricted by at least the bottom and the lid, which therefore makes the claim indefinite.
Claim 12 recites, “wherein the pressure container is fixed in the first volume in the position by way of an elastically deformable retaining element.” The limitation of, “the position” lacks proper antecedent basis as neither claim 1 nor claim 11 refer to “a position.” This rejection can be overcome by deleting “in the first position.”
Claim 12 also depends from claim 11, which recites that the pressure container is fixed in “a force-fitting manner.” It is not clear whether claim 12 is intending to further limit the force-fitting manner to be “an elastically deformable retaining element” or whether claim 12 is reciting that the pressure container is fixed by force-fitting and additionally fixed by an elastically deformable retaining element.
Claim 16 recites, “wherein arranging the pressure container arranged eccentrically with respect to the first volume comprises extending the pressure container in a radial direction from the bottom to the wall region.” It is noted that claim 1 already recites that the pressure container is arranged eccentrically and also recites that the pressure container is arranged adjacent to the wall region. The pressure container would necessarily have extended to some degree in a radial direction, such that it is not clear as to how claim 16 is further limiting the structure already recited in claim 1.
Claim 20 recites the limitation, “the circumferential direction” which lacks proper antecedent basis, as it is not clear what circumferential direction is being referred to.
Claim 20 recites, “wherein further displacement of the pressure container along the axial direction forces displacement of the first end or the second end of the pressure container in the circumferential direction.” The recitation of “further displacement” appears to imply that there is an initial displacement, which initial displacement has not been recited, and therefore makes the claim unclear. Since the claim is directed to a product, the claim has been construed to be an intended use, such that this rejection can be overcome by amending the claim to recite, “wherein the pressure container is capable of being displaced along the axial direction which results in displacement of the first end or the second end of the pressure container in a circumferential direction.”
Claims 2-4, 7-9,11, 13-15, 17 and 19 are rejected based on their dependence to a rejected claim.
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.
The factual inquiries 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 1, 5, 7, 11-12, 16, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Cameron-Price (US 5552168) in view of Tanaka (JP S61-217352 cited on IDS) and Wang (CN 102442484) and in further view of Juneau (US 7802678) and Cornell (US 20020017082). The definition of “eccentric” and “along” have been relied on as evidence.
A machine translation has been relied on for Tanaka (JP S61-217352).
Regarding claim 1, Cameron-Price teaches a beverage container (Figure 4 and 6) comprising
a housing comprising a bottom (figure 4 and 6, item 29), a lid (figure 4 and 6, item 23) and a wall region (figure 4 and 6, item 22) connecting the bottom to the lid;
wherein the beverage container includes a first volume that is configured to be partially filled with a liquid (figure 4 and 6, item 30). It is noted that the limitation, “configured to be partially filled with a liquid” is not positively reciting liquid in the container but rather, has been construed to mean that the container must only be capable of being partially filled with a liquid.
Cameron-Price further teaches that there is a pressure container within the first volume of the beverage container, said pressure container comprising a second volume and that is arranged in the first volume (figure 4 and 6, item 25; column 2, lines 46-47; column 3, lines 50-51; column 4, lines 51-54).
Cameron-Price also teaches wherein:
the first volume has a largest height between the bottom and the lid along an axial direction and the pressure container has a first end (figure 4 and 6, near item 23, 28) and a second end (figure 4 and 6, near item 33) and “a length” along the axial direction that is at least 50% of the largest height of the first volume (see figure 4 and 6).
Cameron-Price teaches that the pressure container is arranged such that a further movement of the pressure container along the axial direction is at least restricted by the bottom and the lid (where the limitation, “at least restricted” reads on being “limited”). That is, in figures 4 and 6, Cameron-Price teaches that a length along the axial direction (25) that includes both the first and second ends, is at least restricted by the lid, such as at 23 and 28 and the bottom at 27 and 29.
Claim 1 differs from Cameron-Price in specifically reciting, “wherein the beverage container comprises a first core bevel where the wall region contacts the base; wherein the beverage container comprises a second core bevel where the wall region contacts the lid;”
“the pressure container is arranged adjacent to the wall region along the largest height,”;
“the first end of the pressure container extends into the first core bevel of the beverage container and the second end of the pressure container extends into the second core bevel of the beverage container, such that the beverage container is fixed with respect to a radial direction”; and
“wherein the pressure container is arranged eccentrically with respect to the first volume,”
Regarding the pressure container being arranged eccentrically with respect to the first volume, it is noted that Cameron-Price also teaches that the spigot and socket are preferably centrally disposed of the basal wall (column 1, lines 56-64). Thus, it would have been obvious to one having ordinary skill in the art that Cameron-Price is not seen to be limiting as to the position of the pressure container. In this regard, Tanaka teaches a beverage container comprising a bottom, a lid (figure 1, item 2) and a wall region (figure 1, item 1) connecting the bottom to the lid; and a pressure container (see page 3 of the machine translation, 2nd, 4th and 5th paragraphs under “Means for solving problems”: “pressure resistance”; “gas to flow out as the gas inside the foam generator expands”; “gas to exit at linear velocities high enough to cause turbulence”), that is at least 50% of the largest height of a beverage container (see figure 1, item 3) and which pressure container comprises an orifice for release of the gas (see page 2 of the machine translation, under “Means for solving problems”: “small container having an opening”). Tanaka teaches that this pressure container can be positioned against the lid, as shown in figure 1 but can also be affixed to the side surface of the container (see page 4 of the machine translation, lines 3-4, which is the last paragraph under “Means for solving problems”: “A method of fixing the foam generator to the side surface or the lid surface”). Thus, Tanaka suggests an eccentric arrangement with respect to the first volume, that can perform the same function as that already suggested by Cameron-Price.
Wang also teaches beverage containers (paragraph 4, 9 of the machine translation) where there can be an additional container (figure 5, item 50) within the beverage container which can release gas into the container (see paragraph 9: “several closed spaces” “edible gas”; paragraph 13:”The gas…in the space is mixed with the original contents”; paragraph 17:”closed spaces can be placed with drinkable or edible gas…the user can release the closed state at any time”; paragraph 41, of the machine translation). Wang teaches that the additional container 50 is abutting against the wall region of the container (E) such that the gas releasing container is eccentrically arranged and against a container wall. Wang suggests abutment with multiple walls of the container (see figure 4). Wang also teaches that the container can be a closed container (see paragraph 43) and where the user can release the contents of the additional container (paragraph 17).
To therefore modify Cameron-Price, who is not limiting as to the position of the pressure container, and position the pressure container eccentrically, such that the pressure container is also adjacent to the wall region, would have been obvious to one having ordinary skill in the art as a rearrangement of the position of the pressure container while still achieving the same function (see MPEP 2144.04(VI)(C)). Furthermore, it would have been obvious to one having ordinary skill in the art that in view of Tanaka and Wang’s teachings, Cameron-Price’s pressure container would have been modified as annotated below:
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Regarding the limitation of, “the beverage container comprises a first core bevel where the wall region contacts the base; wherein the beverage comprises a second core bevel where the wall region contacts the lid” and where the first end of the pressure container extends into the first core bevel and the second end of the pressure container extends into the second core bevel,” it is noted that the combination of Cameron-Price, Tanaka and Wang suggests the pressure container first end extending to the first core bevel where the wall region contacts the base:
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The claim differs from this combination in specifically reciting that there is “a second core bevel where the wall region contacts the lid” and “the second end of the pressure container extends into the second core bevel.”
Juneau teaches an additive container (see figure 10, item 50) that has a first end (see figure 14, near item 64), which extends into a first core bevel where the wall region contacts the base (see figure 10) and has a second core bevel where the wall region contacts the lid and where the additive container also extends into the second core bevel (see figure 10, item 46, 48, see column 4, lines 49-59). Juneau also teaches that the container is a pressure container because it can comprise gas for modifying the beverage characteristics (see column 6, lines 8-17) and can maintain a gas separate from a liquid to be injected at the desired time (see column 7, lines 15-16). Juneau also teaches that the additive chamber can comprise only one housing 52 containing an additive (column 4, lines 49-59). Juneau’s pressure container also is arranged adjacent to the wall region along the largest height. See annotated figure 10 below:
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Juneau further teaches what can be construed as eccentrically arranged because the claim is not limiting with regard to the limits of what it means to be eccentrically arranged, especially as the plain meaning of eccentric is to be “located elsewhere than at the geometrical center; having the axis or support so located.” That is, as shown in figure 10, the container 50, is positioned elsewhere from the geometrical center of the first volume and is skewed more toward the top of the first volume than the bottom. Therefore, in view of this definition pressure container 50 of Juneau is seen to be eccentrically arranged. Even further, since Juneau teaches that there can be a single volume for holding gas 54 as part of the container 50, this would appear to be similar to that of Applicant’s figures, where the pressure container comprising a volume is positioned against a wall of the beverage container and is therefore eccentrically arranged.
If it could have been construed that Juneau did not teach an eccentric arrangement, then it is further noted that Cornell teaches a pressure container (see figure 2A, item 20 and paragraph 44: “configurations of capsule 20 that use the pressurized gas within the capsule cavity”; “…the capsule cavity may be provided with a gas that permeates through the capsule walls and into the liquid to advantageously produce a chemical reaction…”). The pressure container, is eccentrically arranged (see figure 2A, 2B, item 20) and the pressure container is arranged adjacent to the wall region along the largest height (see figure 1, item 10, which is adjacent the wall region and extends along the largest height). See the definition of “along” which means “at a point or points on.” The pressure container’s movement is also “restricted” by the bottom and the lid in light of being secured to coupling member 16 and in light of structure 10 being coupled to a bevel at the base and to a bevel at the top of the container. See annotated figure 2A and figure 1 below:
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The Cameron-Price/Tanaka/Wang combination, already suggests that the pressure container can be positioned eccentrically and adjacent to a wall region.
The Cameron-Price/Tanaka/Wang pressure container is already suggested to be adjacent to a wall region and extends to a lid and bottom of the beverage container (as taught by Cameron-Price). The claim differs in specifically reciting that the pressure container extends into a first and second core bevel that are where the base contacts the wall region and where the lid contacts the wall region, and Juneau and Cornell both teach a first and second core bevel. Juneau and Cornell teaches a first core bevel that is where the wall region contacts the base and a second core bevel that is where the wall region contacts the lid and where a pressure container can also extend into the first and second core bevels.
To therefore modify the Cameron-Price/Tanaka/Wang combination, and to provide the beverage container with the first and second core bevels, as taught by Juneau and Cornell would have been obvious to one having ordinary skill in the art, based on conventional designs used for similar types of beverage containers, and because Juneau and Cornell both suggest that such bevels can be used for securing an additive chamber in position. The combination would thus teach the pressure container extending into the first and second core bevels of the beverage container, while also having restricted axial movement by the lid and the bottom of the container. Modification in view of Juneau and Cornell would have suggested the following structure:
Modification in view of Juneau:
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Modification in view of Cornell:
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Regarding claim 5, Cameron-Price teaches that the second volume of the pressure container extends up and into an upper region adjacent to the lid that is above a predetermined filling level of the liquid (see the figure 6, where the pressure container extends into the headspace and is adjacent to the lid, and which headspace reads on “an upper region adjacent to the lid”); therefore it would have been obvious to one having ordinary skill in the art to have positioned the second volume of the pressure container to extend above a filling level as an obvious matter of engineering and/or design. It is further noted that claim 5 is not seen to positively recite that liquid is filled within the beverage container.
Regarding claim 7, Cameron-Price teaches the bottom, the lid and the wall region form a wall and the combination as applied above to claim 1 teaches the first end or the second end of the pressure container would have been adjacent to the wall with an abutment between the first end or the second end of the pressure container and the wall (see Cameron-Price figure 4 and 6). In view of Juneau and Cornell, the combination further teach the first end or the second end form an abutment between the wall and the first end and between the wall and the second end. That is, the claim limitation reads on any degree contact between some portion of the wall with the first or second end of the pressure container.
Regarding claim 11, Cameron-Price teaches press fitting the pressure container to be fixed into the first volume, thus reading on a force-fitting manner (see column 4, lines 5-8 - “press-fitted to the lid”) Juneau also teaches that the pressure container is force fit because the reference teaches that border 46 cooperates with an edge of the can, and above which is a lid 44, to fix the pressure container 50 on the container 4 (see column 4, lines 49-59). This is further supported by column 3, lines 48-50 and column 5, lines 9-17, which teaches that the support structure (i.e. the pressure container) is deformable for insertion into the container through the container opening and is therefore suggesting a force fitting manner.
Regarding claim 12, Cameron-Price teaches in figure 11 that the pressure container can be fixed in the first volume using a plug (figure 11, item 40) that has beads 41). It would have been obvious to one having ordinary skill in the art that such a retaining element would have been elastically deformable so as to allow the external bead 41 to be received within the tube 26, 42. It is further noted however, that Juneau teaches that the pressure container is also elastically deformable to fix the pressure container in the first volume via an elastically deformable retaining element (see column 4, lines 9-17).
To modify the combination to use an elastically deformable retaining element, as taught by Juneau or would have been obvious to one having ordinary skill in the art, based on a substitution of one expedient for another, both recognized for providing a force-fitting engagement of the pressure container to the beverage container.
Regarding claim 16, the combination teaches that the pressure container extends in a radial direction from the bottom to the wall region. That is, Cameron-Price already teaches a cylindrical shaped pressure container, which extends from the lid to the bottom of the beverage container, and the combination as applied to claim 1 further teaches that the pressure container is positioned adjacent to the wall region. Therefore, the combination would thus teach that the pressure container extends in a radial direction from the bottom to the wall region.
Regarding claim 19, it is noted that Cameron-Price’s pressure container has been inserted into the container and therefore is not integrally formed with the housing.
Regarding claim 20, it is noted that the claim is directed to an intended use of the beverage container. Therefore, the combination teaches that the first or second end of the pressure container would have been capable of circumferential movement as a result of axial displacement of the first or second end especially as the claims do not provide specificity as to when or how the displacement of the pressure container is occurring. That is, as Cameron-Price teaches the first end of the pressure container within the first core bevel, it would have been obvious that some degree of axial displacement of the container can result in displacement in a circumferential direction.
Claims 2-4, 11-15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Cameron-Price (US 5552168) as the primary reference, and in further view of Wilkes (GB 2273917)
Regarding claims 2, 13 and 15, Cameron-Price teaches the pressure container comprising a plurality of openings (see figure 4-6 and 8, items 21, 31, 31a, 31b, 35) that are used for generating bubbles in the beverage (see column 4, lines 51-55, 60-61; column 4, lines 4-8; figure 8, item 35).
Claims 2, 13 and 15 differ from Cameron-Price combination as applied to claim 1, in specifically reciting that the pressure container includes a plurality of openings each having a diameter of less than 0.2mm.
However, Wilkes teaches a pressure container (see figure 1-5, item 11) used for releasing gas therefrom for formation of head on a beverage (page 3, last three paragraphs; page 14, 2nd to last paragraph) comprising apertures (see figure 1, item 17, 11e) in a pressure container that can be 0.1mm for controlling the kind of foaming desired (see page 19, 1st full paragraph).
Modification of Cameron-Price in this regard would thus have been obvious to one having ordinary skill in the art for the similar purpose of controlling the kind of foam desired on the beverage.
Regarding claim 3, Cameron-Price teaches openings at different height positions (see figure 4, item 21; figure 6, item 31a, 31b).
Regarding claim 4, Cameron-Price suggests more than one orifice, at the same height (see figure 5, item 31 and column 4, lines 59-64 -“at least one axial hole).
Regarding claims 11, 12 and 14, it is noted that Wilkes further teaches an elastically deformable retaining element that provides force fitting of the pressure container and where the elastically deformable retaining element can be part of a similar type of pressure container as that of Cameron-Price and where the elastically deformable retaining element extends outside of the second volume and allows the retaining element to be arranged on a wall of the beverage container for providing the pressure container under pretensioning (see figure 3 and 5, item 41, 51 and (see page 9, 2nd to last paragraph, “spring back to engage the said inner wall”; page 17, 2nd to last paragraph).
Since Cameron-Price already desires to have the pressure container retained in position, to modify Cameron-Price and include an elastically deformable retaining element, as taught by Wilkes would have been obvious to one having ordinary skill in the art, for providing an additional expedient recognized in the art for affixing a retaining element in position. Such a modification would have been a combination of equivalents recognized for performing a similar function (see MPEP 2144.06(I)).
Regarding claim 17, it is noted that Cameron-Price teaches in figure 2, item 12, 13 and figure 8, item 34 that the apertures are abutting the bottom. In view of this, it would have been obvious to one having ordinary skill in the art that the second volume of the pressure container extends down and into a lower region adjacent to the bottom (of the beverage container) such that at least one opening is arranged at most, 5 mm away from the lowest point. It is noted that the limitation, “at most 5 millimetres away from the lowest point” reads on the apertures being at the lowest point.
Claims 8 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, which relies on Cameron-Price (US 5552168) as the primary reference, and in further view of Reynolds (US 5660867).
Claim 8 differs from Cameron-Price combination as applied to claim 1, in specifically reciting the diameter of the cylindrical shape is at most 20 mm.
Reynolds teaches tubular pressure containers (see figure 1-6b) and where the tube can have a diameter of between 1-10mm (see column 14, lines 4-7). Cameron-Price also teaches on column 4, lines 40-42 that the diameter can be varied to provide the appropriate volume to the chamber for that holds the gas under pressure.
Reynolds teaches a similar concept as Cameron-Price of the tube holding gas under pressure and which is released when the container is opened to provide the requisite foaming of the beverage (see column 13, line 66 to column 14, line 3). To thus modify the combination and to use a diameter of 1-10mm would have been obvious to one having ordinary skill in the art, for the purpose of providing the requisite quantity of gas for providing the requisite gas release for creating the desired foam head to the beverage.
Further regarding claim 20, it is noted that Reynolds teaches another type of a fixing element that can be used to hold Cameron-Price’s pressure container adjacent to the wall region (see figure 16, item 66 and 68). That is, in figure 16, Reynolds is teaching a deformable band 66 which would have kept the pressure container (68) arranged eccentrically within the beverage container, and adjacent to the wall region.
Therefore, to modify the combination as applied to claim 1 and to use another structural element to hold Cameron-Price’s pressure container in position, such as the retaining element as taught by Reynolds, would have been obvious to one having ordinary skill in the art, as a substitution of type of expedient to retain the pressure container in position, for another, used for the same purpose. Such a modification would have also allowed for axial displacement of the first or second end in a circumferential direction.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, which relies on Cameron-Price (US 5552168) as the primary reference, and in further view of Costello (WO 9722538).
Claim 9 differs from the combination as applied to claim 1 in specifically reciting that the pressure container has a wall thickness of at most 0.4mm.
It is noted that Costello teaches pressure chambers (see at least, page 1, 3rd to last paragraph; page 2, 1st full paragraph and the figures) for promoting a foamy head on a beverage (see the abstract), similar to Cameron-Price, and where the chamber can be made of aluminum as well as any convenient material such as food grade plastics having a thickness of 0.23-0.25mm (see page 4, 3rd full paragraph). Modification of the combination to thus use a pressure container wall thickness of 0.23-0.25mm would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design choice for achieving the requisite balance between strength and thickness.
Claims 1, 5, 7, 11-17, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Wilkes (GB 2273917) in view of Halimi (US 5609038). The definition of, “along” has been relied on as evidence.
Regarding claim 1, Wilkes teaches a beverage container (see figure 3) comprising a housing comprising a bottom (Figure 3, item 12b), a lid (figure 3, item 12a) and a wall region (12) connecting the bottom to the lid.
The beverage container includes a first volume configured to be partially filled with liquid (figure 3, below item 14).
The beverage container comprises a first core bevel where the wall region contacts the base (see figure 3, near item 11a).
Wilkes teaches that the beverage container further comprises a pressure container that includes a second volume (figure 3, item 11, 11a, 11b), the pressure container being arranged in the first volume (see figure 3, item 11; see at least, the abstract, “a pressurized source of air”).
Wilkes teaches the pressure container is arranged within the first volume of the beverage container and said pressure container comprises a second volume; wherein the first volume has a largest height between the bottom and the lid along an axial direction;
the pressure container has between a first end (figure 3, item 11b) and a second end (figure 3, item 11a) a length along the axial direction that is at least 50% of the largest height (see figure 3 where the height is at least 50% of the height of the first volume).
Wilkes’s pressure container is arranged adjacent to the wall region along the largest height (see figure 3, where the length 11, as well as the ends 11a and 11b are adjacent to the wall region of the beverage container). The limitation of, “the pressure container is arranged adjacent to the wall region along the largest height” is still seen to be open to how much of the container is adjacent to the wall region, especially because the plain meaning of “along” means “at a point or points on” (the largest height) (see the enclosed definition).
Further movement of the pressure container along the axial direction is at least restricted because the pressure container also includes a collar 41, which holds the pressure container in position (see the abstract: “a collar 51 holding the tube in position”; and page 17, 1st and 2nd paragraph), such that the pressure container can be construed as being fixed with respect to a radial direction.
As shown in figure 3, the pressure container is arranged eccentrically with respect to the first volume.
As shown in figure 3, the first end of the pressure container extends into the first core bevel of the beverage container (see figure 3, near item 11a). In view of element 41 which holds the pressure container in position, Wilkes teaches that the pressure container is fixed with respect to “a radial” direction.
Claim 1 differs in specifically reciting that the second end of the pressure container extends into the second core bevel of the beverage container.
Halimi teaches a pressure container positioned within a beverage container (see figure 1 and 4, item 32 and 42) and which pressure container is also extending to a second core bevel where the wall region contacts the lid (see figure 4, item 16 and 54).
Halimi also teaches that the pressure container extends into a first core bevel where the wall region contacts the base (see figure 4, near item 46). Since Wilkes already teaches a similar structure to Halimi near the junction between the lid and the wall region, to modify Wilkes
To therefore modify Wilkes and to have a first end of the pressure container extend into a first core bevel that is where the wall region contacts the base and to have a second end of the pressure container extend into a second core bevel that is where the wall region contacts the lid, as taught by Halimi, would have been obvious to one having ordinary skill in the art based on conventional for how one of ordinary skill in the art can affix a pressure container into the interior of a beverage can. That is, such a modification would have been obvious to one having ordinary skill in the art based other known expedients by which a pressure container has been secured within the interior volume of a beverage container. There would have been a reasonable expectation of success in arriving at such a modification because beverage containers having first and second core bevels are known in the art, as evidenced by Halimi, and where such bevels can be used for securing an additive chamber in position. The combination would thus teach the pressure container extending into the first and second core bevels of the beverage container, while also having restricted axial movement by the lid and the bottom of the container.
Regarding claim 5, Wilkes teaches that the pressure container second volume is situated above a predetermined filling level of the liquid, with the container upright (see figure 3 where item 11b is above a fill level).
Regarding claim 7, Wilkes teaches that the bottom, the lid and the wall region can form a wall of the beverage container. The first end or the second end of the pressure container is arranged adjacent to the wall of the beverage container such that an abutment is formed between the first or second end and the wall (see figure 3, where 11b is abutting the wall region). In view of Halimi, as applied to claim 1, the combination also teaches that an abutment would be formed between the second end and the wall.
Regarding claims 11 and 12, the pressure container is fixed into the first volume in a force-fitting matter (see figure 5, item 51), using an elastically deformable retaining element (see page 17, 2nd paragraph; see page 9, 2nd to last paragraph: “elastically deformable” “stabilizer collar”).
Regarding claims 13 and 15, Wilkes teaches a pressure container (see figures 1-5, item 11) comprising an opening (see figure 1 and 2, item 17) and that can have a diameter of 0.1mm for controlling the kind of foaming desired (see page 19, 1st full paragraph) and which connect the first volume and the second volume.
Regarding claim 14, as shown in figure 3, Wilkes’s elastically deformable retaining element (42) extends outside of the second volume, and has a configuration that allows the retaining element to be arranged on a wall of the beverage container for providing the pressure container under pretensioning (see page 9, 2nd to last paragraph, “spring back to engage the said inner wall”; page 17, 2st paragraph, “flexible tags 42”).
Regarding claim 16, Wilkes teaches that the arranging of the pressure container arranged eccentrically with respect to the first volume comprises extending the pressure container in a radial direction from the bottom to the wall region (see figure 3, where it would have been obvious that there is an extending of the pressure container in a radial direction.).
Regarding claim 17, Wilkes’s beverage container has at least one lowest point with the container standing upright. As shown in figure 3, the second volume of the pressure container extends down and into a lower region, which lower region is adjacent to the bottom.
Claim 17 differs in specifically reciting that the at least one opening is arranged at most 5 millimetres away from the lowest point.
However, as Wilkes already teaches openings at 17 and 11g (see figure 1), which appear to be closest to the bottom, it is not seen that patentability can be predicated on the specific distance to the bottom absent a showing of criticality to this distance, because such distance would also have been a function of the specific size of the pressure container and beverage container, and because Wilkes’s opening 17 performs a similar function of generating foam upon opening of the beverage container. Therefore, such a modification is seen to be an obvious change in size and proportions which would appear to perform similarly to the claimed structure (see MPEP 2144.04(IV)(A)).
Regarding claim 19, the pressure container of Wilkes is not integrally formed with the housing.
Regarding claim 20, it is noted that the claim is directed to an intended use of the beverage container. Therefore, the combination teaches that the first or second end of the pressure container would have been capable of axial movement especially as the claims do not provide specificity as to when or how the displacement of the pressure container is occurring.
Claims 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, which relies on Wilkes (GB 2273917) as the primary reference, and in further view of Cameron-Price (US 5552168).
Regarding claims 2, Wilkes teaches a pressure container (see figures 1-5, item 11) comprising apertures (see figure 1 and 2, item 17, 11e) and that aperture 17 can have a diameter of 0.1mm for controlling the kind of foaming desired (see page 19, 1st full paragraph).
Claim 2 differs in specifically reciting “a plurality of openings each having a diameter of less than 0.2 millimetre.”
However, Cameron-Price teaches a plurality of openings in a pressure container (see figure 4-6 and 8, items 21, 31, 31a, 31b, 35) that are used for the similar purpose of generating bubbles in the beverage (see column 4, lines 51-55, 60-61; column 4, lines 4-8; figure 8, item 35). Therefore, it would have been obvious to one having ordinary skill in the art to have modified Wilkes’s pressure container to include additional openings of a diameter of 0.1mm, as taught by Cameron-Price, for the purpose of providing additional avenues for the gas to be released from the pressurized container for generating foam. Such a modification would also have been obvious to one having ordinary skill in the art, as a duplication of the same part for providing the same function of additional foaming.
Regarding claim 3, with the beverage container standing upright, at least two of the plurality of openings of Wilkes in view of Cameron-Price are arranged at mutually different height positions (see figure 1 and 2, item 17 and see figure 4, item 21 of Cameron-Price).
Claim 4 differs from Wilkes in specifically reciting, “wherein, with the beverage container standing upright, at least two of the plurality of openings are arranged at an identical height position of a height.”
However, Cameron-Price teaches multiple openings at an identical height (see figure 5, item 31; figure 8, item 35).
To therefore modify Wilkes and to include additional openings at the same height as the opening 17 as already shown in figure 3, would have been obvious to one having ordinary skill in the art, for the purpose of increasing the rate of gas release to generate bubbles and more foam.
Claim 8, 11 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, which relies on Wilkes (GB 2273917) as the primary reference, and in further view of Reynolds (US 5660867).
Claim 8 differs from Wilkes as applied to claim 1, in specifically reciting the diameter of the cylindrical shape is at most 20 mm.
Reynolds teaches tubular pressure containers (see figure 1-6b) and where the tube can have a diameter of between 1-10mm (see column 14, lines 4-7). Cameron-Price also teaches on column 4, lines 40-42 that the diameter can be varied to provide the appropriate volume to the chamber for that holds the gas under pressure.
Reynolds teaches a similar concept as Wilkes of the tube holding gas under pressure and which is released when the container is opened to provide the requisite foaming of the beverage (see column 13, line 66 to column 14, line 3). To thus modify the Wilkes and to use a diameter of 1-10mm would have been obvious to one having ordinary skill in the art, for the purpose of providing the requisite quantity of gas for providing the requisite gas release for creating the desired foam head to the beverage.
Further regarding claims 11 and 12, it is noted that Reynolds also teaches a retaining element that is elastically deformable and can keep the pressure container eccentrically arranged in a force-fitting manner (see figure 14-16). To therefore modify Wilkes, if necessary and to also include a retaining element as taught by Reynolds would have been obvious to one having ordinary skill in the art, based on combining another retaining element to ensure that Wilkes’ pressure container remained in position.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, which relies on Wilkes (GB 2273917) as the primary reference, and in further view of Costello (WO 9722538).
Claim 9 differs from the Wilkes as applied to claim 1 in specifically reciting that the pressure container has a wall thickness of at most 0.4mm.
It is noted that Costello teaches pressure chambers (see at least, page 1, 3rd to last paragraph; page 2, 1st full paragraph and the figures) for promoting a foamy head on a beverage (see the abstract), similar to Wilkes, and where the chamber can be made of aluminum as well as any convenient material such as food grade plastics having a thickness of 0.23-0.25mm (see page 4, 3rd full paragraph). Modification of Wilkes to thus use a pressure container wall thickness of 0.23-0.25mm would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design choice for achieving the requisite balance between strength and thickness.
Response to Arguments
On page 11 of the response, Applicant urges that the amendments made to claim 1 further clarify that a wall region is to connect the bottom to the lid and that the core bevels are formed where the wall region contacts the base and where the wall region contacts the lid and therefore Cameron-Price does not teach this structure.
These arguments have been considered and are persuasive; however, Applicant’s arguments are also moot in view of the new grounds of rejection teaching the claimed structure of the first and second core bevels, and how Cameron-Price would have been modified to have had the pressure container extend into the first and second core bevels.
Further on page 11 of the response, Applicant urges that claim 1 also clarifies that the axial position of the container is limited by the pressure container’s position within the first and second core bevels and this is not taught or suggested by Cameron-Price or the cited art.
This argument is not seen to be sufficient to overcome the rejection as presented in this Office Action, because Cameron-Price is teaching and suggesting that the first and second ends of the pressure container abut the top and bottom surfaces of the beverage container, and the modification in view of the secondary teachings would have resulted in Cameron-Price’s pressure container having restricted axial movement and being fixed in a radial direction.
On page 12 of the response, Applicant urges that Wang does not teach or suggest the method of affixing an internal container within the external container, such as within two core bevels as claimed.
The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In this instance, the reference has not been relied on for the specific structure of the internal container that comprises the gas component that can be released, but rather, has been relied on to teach and suggest that it has been conventional to position such a container adjacent to a side wall; and since Cameron-Price and Tanaka teach a pressure container and since Tanaka also teaches a pressure container that can be affixed to a sidewall, Wang provides further evidence that such a position of a pressure container would have been obvious to one having ordinary skill in the art as a matter of engineering and/or design.
On page 12 of the response Applicant urges that Juneau does not teach a pressure vessel that is arranged eccentrically with respect to the first volume.
This argument is not persuasive in view of the rejection as presented int his Office Action. That is, in view of Juneau teaching that the structure 50 can comprise a single section 54 that can hold a gas therein, the reference is teaching an eccentrically arranged pressure container, because the gas containing volume is eccentrically arranged and because the entire structure is seen to be positioned away from a geometric center.
On pages 13-14 of the response, Applicant urges that the claims now recite that the pressure container is arranged adjacent to the wall region adjacent the largest height, where the largest height is in reference to the height of the first volume within the housing and therefore does not teach this limitation. Applicant also urges that Wilkes does not teach the first and second core bevel as now claimed.
This argument is not persuasive to overcome the rejection as presented in this Office Action, necessitated by the amendment to the claims. It is further noted that in figure 3 of Wilkes, the pressure container 11, is shown to be arranged “adjacent” to the wall region “along” the largest height while restricting axial movement of the pressure container. The limitation of, “the pressure container is arranged adjacent to the wall region along the largest height” is still seen to be open to how much of the container is adjacent to the wall region, especially because the plain meaning of “along” means “at a point or points on” (the largest height) (see the enclosed definition). For instance, while the claim recites that the first and second end extend into the first and second core bevels, the claim does not additionally recite that the pressure container has a length extending from the first end to the second end, and the entirety of the length is adjacent to the wall region, the first core bevel and the second core bevel
Conclusion
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792