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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on June 29, 2026 was filed after the mailing date of the Office Action mailed on April 27, 2026. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claim 5 is objected to because of the following informalities:
Claim 5 recites the limitation “a gas permeability of less than 3 cm3/m2/day/1.01325 MPa at layer thickness of 1 µm” in lines 3-4. It appears the claim should recite “a gas permeability of less than 3 cm3/m2/day/1.01325 MPa at a layer thickness of 1 µm” for grammatical purposes. In other words, the term “a” should be inserted before the phrase “layer thickness.”
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 5, 7, and 16 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 5 recites the limitation “a layer thickness of the at least one first coating layer” in lines 1-2. It is unclear if this refers to “a thickness” recited in Claim 1, line 14 or to an entirely different layer thickness of the at least one first coating layer. For purposes of examination Examiner interprets the claims to refer to the same thickness.
Claim 5 recites the limitation “a gas permeability” in lines 2-3. It is unclear if this refers to “a gas permeability” recited in Claim 1, lines 15-16 or to an entirely different gas permeability. For purposes of examination Examiner interprets the claims to refer to the same gas permeability.
Claim 7 recites the limitation “at least one second coating layer” in lines 1-2. It is unclear if this refers to “at least one second coating layer” recited in Claim 1, line 18 or to an entirely different at least one second coating layer. For purposes of examination Examiner interprets the claims to refer to the same at least one second coating layer.
Claim 16 recites a dependency from canceled Claim 9. It is unknown what the metes and bounds of Claim 16 are. For purposes of examination Examiner interprets Claim 16 to depend from independent Claim 1.
Claim 16 recites the limitation “an alkaline earth metal alginate” in lines 1-2. Assuming Claim 16 is meant to depend from independent Claim 1, it is unclear if this refers to “an alkaline earth metal alginate” recited in Claim 1, lines 19-20 or to entirely different alkaline earth metal alginates.
Clarification is required.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 5, 7, and 20 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 5 recites the limitation “a gas permeability of less than 3 cm3/m2/day/1.01325 MPa at layer thickness of 1 µm” in lines 2-4. Claim 1, lines 15-17 already recites the limitation “wherein the at least one first coating layer has a gas permeability of less than 3 cm3/m2/day/1.01325 MPa at a layer thickness of 1 µm.” Since Claim 5 recites the same exact gas permeability that is already required in Claim 1, the limitations of Claim 5 pertaining to the specific gas permeability fails to further limit the gas permeabilities already required in Claim 1.
Claim 7 recites the limitation “wherein at least one second coating layer is coated on a surface of the at least one first coating layer wherein the at least one second coating layer comprises a polysaccharide” in lines 1-4. Claim 1, lines 17-19 already recites the limitation “wherein an outermost first coating layer of the at least one first coating layer is coated with at least one second coating layer, the at least one second coating layer comprising a crosslinked polysaccharide.” Claim 1 already requires at least one second coating layer being coated on a surface of the at least one coating layer and the at least one second coating layer comprising a polysaccharide in the form of a crosslinked polysaccharide. Therefore, Claim 7 fails to further limit the limitations of Claim 1.
Claim 20 recites the limitation “wherein the crosslinked polysaccharide is an alginate” in lines 1-2. Claim 1, lines 18-20 already recites the limitation “the at least one second coating layer comprising a crosslinked polysaccharide which is an alkaline earth metal alginate.” Claim 1 already requires the crosslinked polysaccharide to be an alkaline earth metal alginate, which is a type of alginate as recited in Claim 20. Therefore, the limitations of Claim 20 fails to further limit the limitations of Claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1, 5-8, 10, 12-13, 16-17, and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Zischka et al. US 2016/0017166, Kilber et al. US 2010/0288131, Stanley et al. US 2013/0294711, Mintus et al. US 2015/0104546, Hara et al. WO 2018/230564, Brondsema et al. US 2011/0159308, and Sengupta et al. US 2010/0303969.
It is noted that Hara et al. WO 2018/230564 has a US PGPUB equivalent translation of Hara et al. US 2021/0079252. All citations to Hara et al. are with respect to the USPGPUB equivalent of Hara et al. US 2021/0079252.
Examiner notes that Zischka et al. US 2016/0017166 and Stanley et al. US 2013/0294711 were previously cited in the 892 Notice of References Cited mailed on October 6, 2023 and Kilber et al. US 2010/0288131 was previously cited in the 892 Notice of References Cited mailed on June 26, 2023.
Regarding Claim 1, Andreae et al. discloses a capsule comprising a capsule body (housing 22) composed of at least one polysaccharide (starch) (‘694, Paragraphs [0007], [0009], and [0027]). The capsule body (housing 22) necessarily has an innermost and outermost surface. The capsule body is filled with a beverage powder of coffee (coffee) (‘694, Paragraph [0055]). The capsule body (housing 22) is completely encased over by at least one first coating layer (material layers 25, 26 made of PLA) (‘694, FIG. 5) (‘694, Paragraph [0064]).
Andreae et al. discloses the capsule body being made with a PVOH layer (material layer 27 made of PVOH) that acts as an oxygen barrier wherein the PVOH oxygen barrier layer is completely encased by at least one coating layer (PLA layers 25, 26) that serves as a moisture barrier (‘694, FIG. 5) (‘694, Paragraph [0064]). However, Andreae et al. is silent regarding the material layer 27 made of PVOH depicted in the embodiment of FIG. 5 to be at least one first coating layer, i.e. material layer 27 made of PVOH does not coat any layer, i.e. material layer 27 is the interior most layer that is “coated” by material layers 25 and 26 (‘694, FIG. 5) (‘694, Paragraph [0064]).
Zischka et al. discloses a coated packaging material with at least one barrier layer (‘166, Paragraph [0001]) for packaging foods (‘166, Paragraphs [0014] and [0070]) wherein the coated packaging material comprises an inner PVOH layer (barrier layer 22a) and at least one first coating layer (barrier layer 22b) comprising at least one polyvinyl alcohol wherein an outermost first coating layer of the at least one first coating layer (barrier layer 22) is coated with at least one second coating layer (base material 14) wherein the at least one second coating layer (base material 14) comprises a polysaccharide (cardboard) (‘166, FIG. 1) (‘166, Paragraph [0041]) that is crosslinked (‘166, Paragraph [0083]).
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Both Andreae et al. and Zischka et al. are directed towards the same field of endeavor of food or beverage containers made of multilayered polymers. Both multilayered food or beverage containers of Andreae et al. and Zischka et al. have at least one barrier layer made of PVOH. Andreae et al. discloses the at least one coating layer to serve as a barrier layer (‘694, FIG. 5) (‘694, Paragraph ([0064]). Andreae et al. also generically teaches enclosing the barrier layer with at least two surrounding material layers (‘694, Paragraph [0017]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the multilayered laminate depicted in the FIG. 5 embodiment of Andreae et al. that contains only an interior PVOH barrier layer that does not serve as at least one coating layer and incorporate one PVOH inner layer (barrier layer 22a) that is coated by at least one coating layer (barrier layer 22b) made of at least one polyvinyl alcohol (‘166, FIG. 1) (‘166, Paragraph [0041]) since claims to a multilayered laminate which read on the prior art except with regarding to the position of the PVOH layer serving as at least one coating layer is held unpatentable because shifting the position of the PVOH layer would not have modified the operation of the device in view of In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (MPEP § 2144.04.VI.C.) and since the mere duplication of parts (multiple inner layers of PVOH) has no patentable significance unless a new and unexpected result is produced in view of In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) (MPEP § 2144.04.VI.B.). Andreae et al. discloses the PVOH barrier layer against oxygen (‘694, Paragraph [0012]) being surrounded/enclosed by at least one protective material layer (‘694, FIG. 5) (‘694, Paragraph [0006]) wherein the PVOH barrier layer is shielded from at least one layer on each side (‘694, FIG. 5). Zischka et al. also discloses a PVOH barrier layer (barrier layer 22a) being surrounded/enclosed by at least one protective layer (barrier layer 22b and base material 14) wherein the first coating layer (barrier layer 22b) is made of at least one polyvinyl alcohol (‘166, FIG. 1) (‘166, Paragraph [0041]). Zischka et al. teaches that there was known utility in the food or beverage container art to construct a multilayer laminate containing an inner PVOH barrier layer that is surrounded on both sides by at least one layer such as that disclosed by Andreae et al. with at least one first coating layer comprising at least one polyvinyl alcohol (‘166, FIG. 1) (‘166, Paragraph [0041]).
Further regarding Claim 1, Andreae et al. modified with Zischka et al. is silent regarding the at least one first coating layer that is made of PVOH to have a thickness of from 0.5 to 10 µm.
Kilber et al. discloses a capsule (beverage filter cartridge 50) (‘131, FIG. 4) (‘131, Paragraph [0064]) made from a multilayered sheet ((‘131, Paragraph [0041]) comprising an oxygen gas impermeable barrier layer (‘131, Paragraph [0081]) wherein the barrier layer is present between inner and outer surface layers which barrier layer has a thickness of between 1.27 microns and 20.3 microns (‘131, Paragraph [0097]), which overlaps the claimed at least one first coating layer thickness of from 0.5 to 10 µm. Kilber et al. also discloses the barrier layer to function as a controlled gas barrier providing the necessary oxygen barrier for preservation of the article to be packaged wherein the thickness of the oxygen barrier layer influences the oxygen permeability (‘131, Paragraph [0097]). Additionally, Stanley et al. discloses a food or beverage container (‘711, Paragraph [0158]) made of a multilayered laminate containing at least one gas barrier layer (‘711, Paragraph [0013]) wherein the gas barrier layer materials includes PVOH wherein the gas transmission rate of the gas barrier layer is reduced by providing a thicker layer wherein increasing the thickness of the gas barrier layer decreases the gas transmission rate for nitrogen wherein the gas barrier layer has a thickness of less than about 9 microns (‘711, Paragraph [0111]), which also overlaps the claimed at least one first coating layer thickness of from 0.5 to 10 µm. Stanley et al. discloses an embodiment wherein the laminate comprises the gas barrier layers to be interior layers of the laminate (‘711, Paragraph [0234]).
Modified Andreae et al., Kilber et al., and Stanley et al. are all directed towards the same field of endeavor of food or beverage containers. The food or beverage containers of modified Andreae et al., Kilber et al., and Stanley et al. are all constructed of multilayered laminates comprising at least one interior barrier layer that serves as at least one first coating layer. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the at least one first coating layer disposed in an interior of the multilayered laminate to have the claimed at least one first coating layer thickness as taught by Kilber et al. or Stanley et al. since where the claimed thickness of the at least one coating layer ranges overlaps thicknesses of the at least one first coating layer ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the thickness of the at least one first coating layer will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such thickness of the at least one first coating layer is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would adjust the thickness of the at least one first coating layer made of PVOH of modified Andreae et al. based upon the desired gas transmission rate of the barrier layer as taught by Stanley et al. (‘711, Paragraph [0111]).
Further regarding Claim 1, Andreae et al. discloses the PVOH barrier layer against oxygen (‘694, Paragraph [0012]) being substantially impermeable to water vapor (‘694, Paragraph [0025]). Stanley et al. also discloses the gas barrier layer comprising PVOH (‘711, Paragraph [0111]). Although Andreae et al. modified with Zischka et al., Kilber et al., and Stanely et al. does not explicitly disclose the at least one first coating layer comprising polyvinyl alcohol having a gas permeability of less than 3 cm3/m2/day/1.01325 MPa at a layer thickness of 1 µm as claimed, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the gas permeability of the at least one first barrier coating layer of PVOH of modified Andreae that already teaches the PVOH barrier layer being substantially impermeable to water vapor to be reduced/low where oxygen gas permeability in order to prevent oxidation of the contents of the capsule. Furthermore, differences in the gas permeability of the at least one barrier coating layer of PVOH will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such gas permeability of the at least one barrier coating layer of PVOH is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the gas permeability of the at least one first barrier coating layer of modified Andreae et al. to be sufficiently low to prevent oxidation of the interior contents of the multilayered food package which is already suggested by the capsule of Andreae et al. disclosing the PVOH oxygen barrier layer (‘694, Paragraphs [0039] and [0064]).
Further regarding Claim 1, Andreae et al. discloses the capsule body being filled with coffee (‘694, Paragraphs [0055] and [0065]). However, Andreae et al. modified with Zischka et al., Kilber et al., and Stanley et al. is silent regarding the coffee that fills the capsule body being a coffee that is a polysaccharide containing material and the coffee being in powder form.
Mintus et al. discloses a capsule comprising a capsule body filled with a polysaccharide containing material (coffee powder coated with polysaccharides of starch) wherein the coffee is a coffee powder (‘546, Paragraphs [0005], [0011], [0017], and [0019]).
Both modified Andreae et al. and Mintus et al. are directed towards the same field of endeavor of coffee capsules filled with coffee. Andreae et al. discloses a capsule comprising a housing filled with ground coffee (‘694, Paragraphs [0004], [0039], and [0055]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule containing coffee of Andreae et al. and incorporate into the capsule body coffee that is coated with a starch polysaccharide and the coffee being a coffee powder as taught by Mintus 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). Mintus et al. teaches that there was known utility in the coffee capsule art to incorporate both a coffee powder and a starch based polysaccharide that coats coffee within the capsule body.
Further regarding Claim 1, Andreae et al. modified with Zischka et al., Kilber et al., Stanley et al., and Mintus et al. is silent regarding the at least one first coating layer of PVOH having a weight average molecular weight measured by gel permeation chromatography using a polystyrene standard of from 9000 to 120000 g/mol wherein the at least one polyvinyl alcohol or polyvinyl alcohol copolymer has a viscosity of 3 to 110 mPa*s in a 4% aqueous solution at 20°C.
Hara et al. discloses a coating composition containing a water soluble polymer which coating composition is beneficial as a gas barrier film (‘252, Paragraph [0001]) wherein the coating composition has applications useful for a food and beverage container or a food packaging material (‘252, Paragraph [0085]) wherein the water soluble polymer of the coating composition is a polyvinyl alcohol having a weight average molecular weight (Mw) in terms of polystyrene of the polyvinyl alcohol, its modified product or its derivative obtained through gel permeation chromatography (GPC) of 10000 to 200000 to improve the water resistance and durability of the film (‘252, Paragraphs [0013]-[0014]). The disclosure of the coating composition comprising a polyvinyl alcohol having a weight average molecular weight being 10000 to 200000 in terms of polystyrene obtained through gel permeation chromatography overlaps the claimed polyvinyl alcohol having a weight average molecular weight of from 9000 to 120000 g/mol as measured by gel permeation chromatography using a polystyrene standard.
Both modified Andreae et al. and Hara et al. are directed towards the same field of endeavor of food or beverage containers having gas barrier properties. Both gas barrier films of modified Andreae et al. and Hara et al. contain PVOH as a gas barrier material. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the weight average molecular weight of the at least one first coating layer of PVOH to fall within the claimed weight average molecular weight as taught by Hara et al. since where the claimed weight average molecular weight of the at least one first coating layer of PVOH ranges overlaps weight average molecular weight of the at least one first coating layer of PVOH disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Further regarding Claim 1, Andreae et al. in view of Zischka et al., Kilber et al., Stanley et al., Mintus et al., and Hara et al. is silent regarding the at least one polyvinyl alcohol or polyvinyl alcohol copolymer has a viscosity of 3 to 110 mPa*s in a 4% aqueous solution at 20°C and an outer most first coating layer of the at least one first coating layer being coated with at least one second coating layer wherein the at least one second coating layer comprises a crosslinked polysaccharide with is an alkaline earth metal alginate wherein the capsule body and the at least one first coating layer are entirely encased by the at least one second coating layer.
Brondsema et al. discloses a multilayered laminated beverage container article (‘308, Paragraph [0116]) comprising a barrier coating having components that modify the water solubility and/or barrier properties of the barrier coating (‘308, Paragraph [0082]) wherein the barrier coating includes polyvinyl alcohol polymers of various levels of hydrolysis (‘308, Paragraph [0097]) wherein in one embodiment the polyvinyl alcohol has a viscosity of about 22-30 cps in a 4% aqueous solution at 20°C and the Mw of the polyvinyl alcohol is about 85000 to 124000 (‘308, Paragraph [0099]), which falls within the claimed polyvinyl alcohol copolymer viscosity of 3 to 110 mPa s in a 4% aqueous solution at 20°C and also overlaps the claimed weight average molecular weight of from 9000 to 120000 g/mol, respectively. It is noted that 1 cps (such as the units disclosed in Brondsema et al.) is equivalent to 1 mPa s.
Both modified Andreae et al. and Brondsema et al. are directed towards the same field of endeavor of food or beverage containers having gas barrier properties. Both gas barrier films of modified Andreae et al. and Hara et al. contain PVOH as a gas barrier material used in a multilayered laminate. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the weight average molecular weight of the at least one first coating layer of PVOH to fall within the claimed weight average molecular weight as well as modify the viscosity of the at least one polyvinyl alcohol as taught by Brondsema et al. since where the claimed weight average molecular weight and viscosity of the at least one first coating layer of PVOH ranges overlaps weight average molecular weight and viscosity of the at least one first coating layer of PVOH disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Further regarding Claim 1, Andreae et al. discloses the barrier layer comprising a crosslinking agent (‘694, Paragraph [0012]). However, Andreae et al. in view of Zischka et al., Kilber et al., Stanley et al., Mintus et al., Hara et al., and Brondsema et al. is silent regarding an outer most first coating layer of the at least one first coating layer being coated with at least one second coating layer wherein the at least one second coating layer comprises a crosslinked polysaccharide with is an alkaline earth metal alginate wherein the capsule body and the at least one first coating layer are entirely encased by the at least one second coating layer.
Segunpta et al. discloses a capsule comprising an encapsulated ground coffee powder (‘969, Paragraphs [0009] and [0084]) surrounded by a film comprising a first coating material and a second coating material (‘969, Paragraph [0003]) wherein the coating material is plant sourced polysaccharides (‘969, Paragraph [0004]) wherein the second coating material is adsorbed over all of the first coating such that the second coating material substantially surrounds the layer of the first coating material which is around the plant particle (‘969, Paragraph [0032]), i.e. the at least one first coating layer and the capsule body are entirely encased by the at least one second coating layer, wherein the first coating material comprises a polyvinyl alcohol (‘969, Paragraph [0026]) wherein the first coating material and/or the second coating material is gelled as a result of formation of salt bridges by crosslinking resulting from the addition of e.g. potassium, calcium, magnesium, and/or iron salts of chloride, citrate, lactate, acetates, and/or other counterions (‘969, Paragraph [0054]) to optimize coating properties of controlling the mouthfeel of the edible product, slipperiness, sliminess, firmness, sponginess, stability or rate of diffusion of ingredients under application of pressure by tongue or teeth or both, stability from dissolution upon attack from enzymes in saliva, or combinations of these (‘969, Paragraph [0081]) wherein the second coating material is an anionic or zwitterionic polysaccharide of sodium alginate (‘969, Paragraph [0034]) wherein the second coating material comprises one or more monovalent, divalent, or trivalent cations such as calcium (‘969, Paragraph [0039]).
Both modified Andreae et al. and Segunpta et al. are directed towards the same field of endeavor of beverage capsules. Both beverage capsules of modified Andreae et al. and Segunpta et al. are multilayered laminates containing at least one layer made of polyvinyl alcohol. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage capsule of modified Andreae et al. and construct an outermost first coating layer of the at least one first coating layer to be coated with at least one second coating layer wherein the at least one second coating layer comprises a crosslinked polysaccharide which is an alkaline earth metal alginate in the form of calcium alginate wherein the capsule body and the at least one first coating layer are entirely encased by the at least one second coating layer as taught by Segunpta et al. since claims to a multilayered laminate which read on the prior art except with regarding to the position at least one second coating layer which coated an outermost first coating layer of the at least one first coating layer is held unpatentable because shifting the position of the at least one first coating layer to be positioned such that the at least one first coating layer is coated with at least one second coating layer would not have modified the operation of the device in view of In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (MPEP § 2144.04.VI.C.). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Andreae et al. such that the at least one second coating layer comprises a crosslinked polysaccharide which is an alkaline earth metal alginate in the form of calcium alginate as taught by Segunpta 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). Segunpta et al. teaches that there was known utility in the food or beverage container art to construct at least one second coating layer out of a crosslinked polysaccharide which is an alkaline earth metal alginate.
Further regarding Claim 1, the limitations “in a coffee machine by introducing water into the capsule” are seen to be recitations regarding the intended use of the “capsule.” 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, Andreae et al. discloses using the capsule in a capsule holder of a coffee machine wherein water is passed into the capsule holder and into the capsule (‘694, Paragraphs [0071]-[0072]). It is noted that the claims do not specify the temperature and/or pressure conditions of the water introduced into the claimed capsule.
Regarding Claim 5, Kilber et al. discloses a capsule (beverage filter cartridge 50) (‘131, FIG. 4) (‘131, Paragraph [0064]) made from a multilayered sheet ((‘131, Paragraph [0041]) comprising an oxygen gas impermeable barrier layer (‘131, Paragraph [0081]) wherein the barrier layer is present between inner and outer surface layers which barrier layer has a thickness of between 1.27 microns and 20.3 microns (‘131, Paragraph [0097]), which overlaps the claimed at least one first coating layer thickness of between 1 to 2 µm. Kilber et al. also discloses the barrier layer to function as a controlled gas barrier providing the necessary oxygen barrier for preservation of the article to be packaged wherein the thickness of the oxygen barrier layer influences the oxygen permeability (‘131, Paragraph [0097]). Additionally, Stanley et al. discloses a food or beverage container (‘711, Paragraph [0158]) made of a multilayered laminate containing at least one gas barrier layer (‘711, Paragraph [0013]) wherein the gas barrier layer materials includes PVOH wherein the gas transmission rate of the gas barrier layer is reduced by providing a thicker layer wherein increasing the thickness of the gas barrier layer decreases the gas transmission rate for nitrogen wherein the gas barrier layer has a thickness of less than about 9 microns (‘711, Paragraph [0111]), which encompasses the claimed at least one first coating layer thickness of from 1 to 2 µm. Stanley et al. discloses an embodiment wherein the laminate comprises the gas barrier layers to be interior layers of the laminate (‘711, Paragraph [0234]).
Modified Andreae et al., Kilber et al., and Stanley et al. are all directed towards the same field of endeavor of food or beverage containers. The food or beverage containers of modified Andreae et al., Kilber et al., and Stanley et al. are all constructed of multilayered laminates comprising at least one interior barrier layer that serves as at least one first coating layer. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the at least one first coating layer disposed in an interior of the multilayered laminate to have the claimed at least one first coating layer thickness as taught by Kilber et al. or Stanley et al. since where the claimed thickness of the at least one coating layer ranges overlaps thicknesses of the at least one first coating layer ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the thickness of the at least one first coating layer will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such thickness of the at least one first coating layer is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would adjust the thickness of the at least one first coating layer made of PVOH of modified Andreae et al. based upon the desired gas transmission rate of the barrier layer as taught by Stanley et al. (‘711, Paragraph [0111]).
Further regarding Claim 5, Andreae et al. discloses the PVOH barrier layer against oxygen (‘694, Paragraph [0012]) being substantially impermeable to water vapor (‘694, Paragraph [0025]). Stanley et al. also discloses the gas barrier layer comprising PVOH (‘711, Paragraph [0111]). Although Andreae et al. modified with Zischka et al., Kilber et al., and Stanely et al. does not explicitly disclose the at least one first coating layer comprising polyvinyl alcohol having a gas permeability of less than 3 cm3/m2/day/1.01325 MPa at a layer thickness of 1 µm as claimed, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the gas permeability of the at least one first barrier coating layer of PVOH of modified Andreae that already teaches the PVOH barrier layer being substantially impermeable to water vapor to be reduced/low where oxygen gas permeability in order to prevent oxidation of the contents of the capsule. Furthermore, differences in the gas permeability of the at least one barrier coating layer of PVOH will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such gas permeability of the at least one barrier coating layer of PVOH is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the gas permeability of the at least one first barrier coating layer of modified Andreae et al. to be sufficiently low to prevent oxidation of the interior contents of the multilayered food package which is already suggested by the capsule of Andreae et al. disclosing the PVOH oxygen barrier layer (‘694, Paragraphs [0039] and [0064]).
Regarding Claim 6, Zischka et al. discloses the at least one first coating layer (barrier layer 22b) comprising 1 layer comprising at least one polyvinyl alcohol (‘166, FIG. 1) (‘166, Paragraph [0041]).
Regarding Claim 7, Segunpta et al. discloses the at least one second coating layer being coated on a surface of one of the at least one first coating layer (‘969, Paragraph [0032]) wherein the at least one second coating layer comprises a polysaccharide (‘969, Paragraph [0033]).
Regarding Claim 8, Segunpta et al. discloses the alkaline earth metal being a calcium alginate (‘969, Paragraphs [0034], [0039], and [0082]).
Regarding Claim 10, Andreae et al. discloses the at least one second coating layer (additional moisture impermeable coating material layer) (‘694, Paragraph [0007]) comprising fibers (‘694, Paragraph [0008]). Segunpta et al. also discloses the at least one second coating layer comprising fibers (‘969, Paragraphs [0015] and [0033]).
Regarding Claim 12, Andreae et al. discloses the capsule body being composed of one or more layers of crosslinked polysaccharide (‘694, Paragraphs [0007], [0012], and [0027]).
Regarding Claim 13, Mintus et al. discloses the capsule body being filled with polysaccharide containing material in the form of a pellet (sugarcoated coffee powder or tablet) (‘546, Paragraphs [0038]-[0039]).
Regarding Claim 16, Segunpta et al. discloses the alginate being an alkaline earth alginate (calcium alginate) (‘969, Paragraphs [0034], [0039] and [0082]).
Regarding Claim 17, Andreae et al. discloses the fibers being cellulose fibers (‘694, Paragraphs [0027] and [0029]).
Regarding Claim 20, Segunpta et al. discloses the crosslinked polysaccharide being an alginate (‘969, Paragraphs [0034], [0039], and [0081]).
Regarding Claim 21, the limitations “wherein the pellet was obtained by pressing at a pressure of 0.01 to 1000 MPa” are product by process limitations. Even though product by process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted) (MPEP § 2113.I.).
Claims 11 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Zischka et al. US 2016/0017166, Kilber et al. US 2010/0288131, Stanley et al. US 2013/0294711, Mintus et al. US 2015/0104546, Hara et al. WO 2018/230564, Brondsema et al. US 2011/0159308, and Sengupta et al. US 2010/0303969 as applied to claim 1 above in further view of Halabisky US 2004/0213930.
Regarding Claim 11, Andreae et al. discloses the capsule body being made from polysaccharides (‘694, Paragraph [0027]). However, Andreae et al. modified with Zischka et al., Kilber et al., Stanley et al., Hara et al., Brondsema et al., and Segunpta et al. is silent regarding the capsule body being composed of one or more layers of uncrosslinked polysaccharide.
Halabisky discloses a container capable of holding hot coffee (‘930, Paragraph [0021]) made from polysaccharides (cellulose or paperboard) (‘930, Paragraph [0005]) comprising a layer of noncrosslinked fibers (‘930, Paragraph [0017]).
Both modified Andreae et al. and Halabisky are directed towards the same field of endeavor of coffee containers capable of holding coffee wherein the container body is made out of cellulose and/or paper polysaccharides. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the container of modified Andreae et al. and construct the capsule body out of one or more layers of uncrosslinked polysaccharides as taught by Halabisky 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). Halabisky teaches that there was known utility in the coffee container art to construct the container body out of one or more layers of uncrosslinked polysaccharides. Furthermore, noncrosslinked polysaccharides provide a smooth, denser, less porous surface (‘930, Paragraph [0017]).
Regarding Claims 18-19, Andreae et al. discloses the polysaccharide being cellulose and/or paper and/or cardboard (‘694, Paragraphs [0026]-[0027]). Halabisky discloses the polysaccharides being noncrosslinked (‘930, Paragraph [0017]) wherein the polysaccharides are cellulose or paperboard (‘930, Paragraph [0004]).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Zischka et al. US 2016/0017166, Kilber et al. US 2010/0288131, Stanley et al. US 2013/0294711, Mintus et al. US 2015/0104546, Hara et al. WO 2018/230564, Brondsema et al. US 2011/0159308, and Sengupta et al. US 2010/0303969 as applied to claim 13 above in further view of Hudson et al. US 3,511,666.
Regarding Claim 21, the limitations “wherein the pellet was obtained by pressing at a pressure of 0.01 to 1000 MPa” are product by process limitations and are rejected using the rationale regarding product by process limitations enumerated above. However, in the event that it can be shown that the particular process results in a materially different pellet product, Hudson et al. discloses a coffee material formed as a pellet (‘666, Column 1, lines 14-16). Hudson et al. further discloses the pellet being obtained by pressing at a pressure of between 8000 to 16000 psi (‘666, Column 2, lines 36-50), which converts to about 55 MPa to about 110 MPa, which falls within the claimed pressing pressure of 0.01 to 1000 MPa.
Both modified Andreae et al. as well as Hudson et al. are directed towards the same field of endeavor of coffee powders/pellets. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process at which the coffee pellet was obtained to press at the claimed pressure as taught by Hudson et al. since where the claimed pressure at which the coffee pellet was pressed ranges encompasses pressures at which the coffee pellet was pressed ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, Hudson et al. teaches the pressure being controlled to yield a pellet of sufficient hardness to prevent breakage but not too great so as to cause pellet capping and that the actual pressure used varies with temperature and moisture of the coffee, the blend, the rate of speed of pelletizing, and the amount of degassing (‘666, Column 2, lines 36-50). Differences in the pressure at which the coffee pellet is pressed will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such pressure at which the coffee pellet is pressed is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable pressure ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the pressure at which the coffee pellet is pressed based upon the temperature and moisture of the coffee, the blend, the rate of speed of pelletizing, and the amount of degassing.
Claims 1, 5-8, 10, 12-13, 16-17, and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Zischka et al. US 2016/0017166, Kilber et al. US 2010/0288131, Stanley et al. US 2013/0294711, Mintus et al. US 2015/0104546, Hara et al. WO 2018/230564, Brondsema et al. US 2011/0159308, Sengupta et al. US 2010/0303969, and Nickel EP 3 225 566 (cited on Information Disclosure Statement filed November 3, 2021).
It is noted that the Information Disclosure Statement filed November 3, 2021 filed by applicant indicates that Nickel EP 3 225 566 is equivalent to the USPGPUB of Nickel US 2019/0144199, which is also cited on the Information Disclosure Statement filed November 3, 2021. Nickel EP 3 225 566 has a publication date of October 4, 2017, which predates the foreign filing date of May 7, 2019 of the instant application. All citations in the Office Action are with respect to the English equivalent Nickel US 2019/0144199.
Regarding Claim 1, Andreae et al. modified with Zischka et al., Kilber et al., Stanley et al., Mintus et al., Hara et al., Brondsema et al., and Sengupta et al. renders Claim 1 obvious as discussed in the rejections above. However, in the event that it can be argued that Andreae et al. modified with Zischka et al., Kilber et al., Stanley et al., Mintus et al., Hara et al., Brondsema et al., and Sengupta et al. does not necessarily teach the capsule body being entirely encased by the at least one first coating layer and the at least one second coating layer disclosed by Segunpta et al., Nickel discloses a capsule comprising a capsule body (capsule body 2) composed of at least one polysaccharide and filled with a polysaccharide containing material (‘199, Paragraph [0007]). Nickel further discloses the capsule body (capsule body 2) being entirely encased by at least one first coating layer (coating layer 3) (‘199, Paragraphs [0023] and [0053]).
Both modified Andreae et al. and Nickel are directed towards the same field of endeavor of coffee capsules comprising a capsule body (housing 22) composed of at least one polysaccharide (starch) (‘694, Paragraphs [0007], [0009], and [0027]) and filled with a polysaccharide containing material. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the at least one first coating layer of the capsule body of modified Andreae et al. and entirely encase the capsule body by the at least one first coating layer since Nickel teaches that is was known in the coffee capsule art to completely encase the capsule body on all sides by a coating layer (‘199, Paragraph [0054]). It is noted that Claim 1 does not specify whether or not the polysaccharide is crosslinked or uncrosslinked.
Regarding Claim 5, Kilber et al. discloses a capsule (beverage filter cartridge 50) (‘131, FIG. 4) (‘131, Paragraph [0064]) made from a multilayered sheet ((‘131, Paragraph [0041]) comprising an oxygen gas impermeable barrier layer (‘131, Paragraph [0081]) wherein the barrier layer is present between inner and outer surface layers which barrier layer has a thickness of between 1.27 microns and 20.3 microns (‘131, Paragraph [0097]), which overlaps the claimed at least one first coating layer thickness of between 1 to 2 µm. Kilber et al. also discloses the barrier layer to function as a controlled gas barrier providing the necessary oxygen barrier for preservation of the article to be packaged wherein the thickness of the oxygen barrier layer influences the oxygen permeability (‘131, Paragraph [0097]). Additionally, Stanley et al. discloses a food or beverage container (‘711, Paragraph [0158]) made of a multilayered laminate containing at least one gas barrier layer (‘711, Paragraph [0013]) wherein the gas barrier layer materials includes PVOH wherein the gas transmission rate of the gas barrier layer is reduced by providing a thicker layer wherein increasing the thickness of the gas barrier layer decreases the gas transmission rate for nitrogen wherein the gas barrier layer has a thickness of less than about 9 microns (‘711, Paragraph [0111]), which encompasses the claimed at least one first coating layer thickness of from 1 to 2 µm. Stanley et al. discloses an embodiment wherein the laminate comprises the gas barrier layers to be interior layers of the laminate (‘711, Paragraph [0234]).
Modified Andreae et al., Kilber et al., and Stanley et al. are all directed towards the same field of endeavor of food or beverage containers. The food or beverage containers of modified Andreae et al., Kilber et al., and Stanley et al. are all constructed of multilayered laminates comprising at least one interior barrier layer that serves as at least one first coating layer. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the at least one first coating layer disposed in an interior of the multilayered laminate to have the claimed at least one first coating layer thickness as taught by Kilber et al. or Stanley et al. since where the claimed thickness of the at least one coating layer ranges overlaps thicknesses of the at least one first coating layer ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the thickness of the at least one first coating layer will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such thickness of the at least one first coating layer is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would adjust the thickness of the at least one first coating layer made of PVOH of modified Andreae et al. based upon the desired gas transmission rate of the barrier layer as taught by Stanley et al. (‘711, Paragraph [0111]).
Further regarding Claim 5, Andreae et al. discloses the PVOH barrier layer against oxygen (‘694, Paragraph [0012]) being substantially impermeable to water vapor (‘694, Paragraph [0025]). Stanley et al. also discloses the gas barrier layer comprising PVOH (‘711, Paragraph [0111]). Although Andreae et al. modified with Zischka et al., Kilber et al., and Stanely et al. does not explicitly disclose the at least one first coating layer comprising polyvinyl alcohol having a gas permeability of less than 3 cm3/m2/day/1.01325 MPa at a layer thickness of 1 µm as claimed, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the gas permeability of the at least one first barrier coating layer of PVOH of modified Andreae that already teaches the PVOH barrier layer being substantially impermeable to water vapor to be reduced/low where oxygen gas permeability in order to prevent oxidation of the contents of the capsule. Furthermore, differences in the gas permeability of the at least one barrier coating layer of PVOH will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such gas permeability of the at least one barrier coating layer of PVOH is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the gas permeability of the at least one first barrier coating layer of modified Andreae et al. to be sufficiently low to prevent oxidation of the interior contents of the multilayered food package which is already suggested by the capsule of Andreae et al. disclosing the PVOH oxygen barrier layer (‘694, Paragraphs [0039] and [0064]).
Regarding Claim 6, Zischka et al. discloses the at least one first coating layer (barrier layer 22b) comprising 1 layer comprising at least one polyvinyl alcohol (‘166, FIG. 1) (‘166, Paragraph [0041]).
Regarding Claim 7, Segunpta et al. discloses the at least one second coating layer being coated on a surface of one of the at least one first coating layer (‘969, Paragraph [0032]) wherein the at least one second coating layer comprises a polysaccharide (‘969, Paragraph [0033]).
Regarding Claim 8, Segunpta et al. discloses the alkaline earth metal being a calcium alginate (‘969, Paragraphs [0034], [0039], and [0082]).
Regarding Claim 10, Andreae et al. discloses the at least one second coating layer (additional moisture impermeable coating material layer) (‘694, Paragraph [0007]) comprising fibers (‘694, Paragraph [0008]). Segunpta et al. also discloses the at least one second coating layer comprising fibers (‘969, Paragraphs [0015] and [0033]).
Regarding Claim 12, Andreae et al. discloses the capsule body being composed of one or more layers of crosslinked polysaccharide (‘694, Paragraphs [0007], [0012], and [0027]).
Regarding Claim 13, Mintus et al. discloses the capsule body being filled with polysaccharide containing material in the form of a pellet (sugarcoated coffee powder or tablet) (‘546, Paragraphs [0038]-[0039]).
Regarding Claim 16, Segunpta et al. discloses the alginate being an alkaline earth alginate (calcium alginate) (‘969, Paragraphs [0034], [0039] and [0082]).
Regarding Claim 17, Andreae et al. discloses the fibers being cellulose fibers (‘694, Paragraphs [0027] and [0029]).
Regarding Claim 20, Segunpta et al. discloses the crosslinked polysaccharide being an alginate (‘969, Paragraphs [0034], [0039], and [0081]).
Regarding Claim 21, the limitations “wherein the pellet was obtained by pressing at a pressure of 0.01 to 1000 MPa” are product by process limitations. Even though product by process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted) (MPEP § 2113.I.).
Claims 11 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Zischka et al. US 2016/0017166, Kilber et al. US 2010/0288131, Stanley et al. US 2013/0294711, Mintus et al. US 2015/0104546, Hara et al. WO 2018/230564, Brondsema et al. US 2011/0159308, Sengupta et al. US 2010/0303969, and Nickel EP 3 225 566 (cited on Information Disclosure Statement filed November 3, 2021) as applied to claim 1 above in further view of Halabisky US 2004/0213930.
Regarding Claim 11, Andreae et al. discloses the capsule body being made from polysaccharides (‘694, Paragraph [0027]). However, Andreae et al. modified with Zischka et al., Kilber et al., Stanley et al., Hara et al., Brondsema et al., Segunpta et al., and Nickel is silent regarding the capsule body being composed of one or more layers of uncrosslinked polysaccharide.
Halabisky discloses a container capable of holding hot coffee (‘930, Paragraph [0021]) made from polysaccharides (cellulose or paperboard) (‘930, Paragraph [0005]) comprising a layer of noncrosslinked fibers (‘930, Paragraph [0017]).
Both modified Andreae et al. and Halabisky are directed towards the same field of endeavor of coffee containers capable of holding coffee wherein the container body is made out of cellulose and/or paper polysaccharides. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the container of modified Andreae et al. and construct the capsule body out of one or more layers of uncrosslinked polysaccharides as taught by Halabisky 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). Halabisky teaches that there was known utility in the coffee container art to construct the container body out of one or more layers of uncrosslinked polysaccharides. Furthermore, noncrosslinked polysaccharides provide a smooth, denser, less porous surface (‘930, Paragraph [0017]).
Regarding Claims 18-19, Andreae et al. discloses the polysaccharide being cellulose and/or paper and/or cardboard (‘694, Paragraphs [0026]-[0027]). Halabisky discloses the polysaccharides being noncrosslinked (‘930, Paragraph [0017]) wherein the polysaccharides are cellulose or paperboard (‘930, Paragraph [0004]).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Zischka et al. US 2016/0017166, Kilber et al. US 2010/0288131, Stanley et al. US 2013/0294711, Mintus et al. US 2015/0104546, Hara et al. WO 2018/230564, Brondsema et al. US 2011/0159308, Sengupta et al. US 2010/0303969, and Nickel EP 3 225 566 (cited on Information Disclosure Statement filed November 3, 2021) as applied to claim 1 above in further view of Hudson et al. US 3,511,666.
Regarding Claim 21, the limitations “wherein the pellet is obtained by pressing at a pressure of 0.01 to 1000 MPa” are product by process limitations and are rejected using the rationale regarding product by process limitations enumerated above. However, in the event that it can be shown that the particular process results in a materially different pellet product, Hudson et al. discloses a coffee material formed as a pellet (‘666, Column 1, lines 14-16). Hudson et al. further discloses the pellet being obtained by pressing at a pressure of between 8000 to 16000 psi (‘666, Column 2, lines 36-50), which converts to about 55 MPa to about 110 MPa, which falls within the claimed pressing pressure of 0.01 to 1000 MPa.
Both modified Andreae et al. as well as Hudson et al. are directed towards the same field of endeavor of coffee powders/pellets. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process at which the coffee pellet was obtained to press at the claimed pressure as taught by Hudson et al. since where the claimed pressure at which the coffee pellet was pressed ranges encompasses pressures at which the coffee pellet was pressed ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, Hudson et al. teaches the pressure being controlled to yield a pellet of sufficient hardness to prevent breakage but not too great so as to cause pellet capping and that the actual pressure used varies with temperature and moisture of the coffee, the blend, the rate of speed of pelletizing, and the amount of degassing (‘666, Column 2, lines 36-50). Differences in the pressure at which the coffee pellet is pressed will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such pressure at which the coffee pellet is pressed is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable pressure ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the pressure at which the coffee pellet is pressed based upon the temperature and moisture of the coffee, the blend, the rate of speed of pelletizing, and the amount of degassing.
Response to Arguments
Examiner notes that new indefiniteness rejections under 35 USC 112(b) have been made in view of the amendments.
Examiner notes that new rejections under 35 USC 112(d) have been made in view of the amendments.
Applicant’s arguments with respect to the previous obviousness rejections of Claim 1 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. The secondary references of Monforton et al., Neuman et al., and Lebeque et al. are no longer being relied upon in the rejection.
Examiner notes that applicant argues on Page 7 of the Remarks that the Office Action supplies no articulated reason with rational underpinning to arrive at the claimed ordered two layer construction. However, Claim 1 recites the limitation “at least one first coating layer” and “an outermost first coating layer of the at least one first coating layer is coated with at least one second coating layer.” The claims do not require only a two layer construction. The phrase “at least one” encompasses embodiments of more than one first coating layer and more than one second coating layer. Claim 1 requires at least two coating layers, i.e. only two coating layers or more than two coating layers. Applicant argues limitations that are not commensurate in scope with the claimed invention.
Applicant argues on Page 9 of the Remarks that polyvinyl alcohol is hydrophilic and water soluble as Andreae et al. confirms and is not suitable as a moisture barrier and that a rationale that depend on the same layer being simultaneously a moisture barrier and an oxygen barrier to justify importing the permeability limitation lacks rational underpinning.
Examiner first notes that applicant’s comments on Page 9 of the Remarks with respect to Neuman are moot since Neuman is not being relied upon in the current rejection. Claim 1 recites the at least one first coating layer having a gas permeability of less than 3 cm3/m2/day/1.01325 MPa at a layer thickness of 1 µm reflects a very low gas permeability. The primary reference of Andreae et al. already teaches a PVOH layer acting as an oxygen barrier (‘694, Paragraph [0064]). Oxygen is a type of gas. The secondary reference of Zischka et al. is currently being relied upon to teach a PVOH layer to serve as at least one first coating layer. Andreae et al. discloses the PVOH barrier layer against oxygen (‘694, Paragraph [0012]) being substantially impermeable to water vapor (‘694, Paragraph [0025]). Stanley et al. also discloses the gas barrier layer comprising PVOH (‘711, Paragraph [0111]). Although Andreae et al. modified with Zischka et al., Kilber et al., and Stanely et al. does not explicitly disclose the at least one first coating layer comprising polyvinyl alcohol having a gas permeability of less than 3 cm3/m2/day/1.01325 MPa at a layer thickness of 1 µm as claimed, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the gas permeability of the at least one first barrier coating layer of PVOH of modified Andreae that already teaches the PVOH barrier layer being substantially impermeable to water vapor to be reduced/low where oxygen gas permeability in order to prevent oxidation of the contents of the capsule. Furthermore, differences in the gas permeability of the at least one barrier coating layer of PVOH will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such gas permeability of the at least one barrier coating layer of PVOH is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the gas permeability of the at least one first barrier coating layer of modified Andreae et al. to be sufficiently low to prevent oxidation of the interior contents of the multilayered food package which is already suggested by the capsule of Andreae et al. disclosing the PVOH oxygen barrier layer (‘694, Paragraphs [0039] and [0064]). Therefore, these arguments are not found persuasive.
Applicant argues on Page 9 of the Remarks that Labeque et al. is a water soluble film engineered to dissolve on contact with water and that borrowing PVOH parameters form a film designed to dissolve in order to construct a capsule’s protective outer encasing layer that must withstand ambient moisture and brewing water at approximately 95°C reflects neither analogous art reasoning nor a reasonable expectation of success.
Examiner first notes that Labeque et al. is not being relied upon in the current rejection. The secondary reference of Hara et al. is currently being relied upon to render obvious the limitations regarding the claimed polyvinyl alcohol copolymer having a weight average molecular weight measured by gel permeation chromatography using a polystyrene standard. Examiner also notes that Claim 1 does not specify any particular brewed water temperature at which the capsule is intended to operate. Claim 1 recites “A capsule for preparing a beverage in a coffee machine by introducing water into the capsule.” The claims do not specify brewing water at approximately 95°C or any elevated heated water temperature. Applicant argues limitations that are not commensurate in scope with the claimed invention. Furthermore, the claims do not specify any solubility parameters of either the capsule or any of its layers. Again, applicant argues limitations that are not commensurate in scope with the claimed invention. Claim 1 recites the transitional phrase “comprising,” which is inclusive or open ended and does not exclude additional, unrecited elements or method steps in view of Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) (MPEP § 2111.03.I.). The claims do not preclude the presence of soluble layers. Therefore, this argument is not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
LaFleur et al. US 5,362,803 discloses a water soluble vinyl alcohol polymer blend used to form a film used to make food or beverage containers wherein the film is laminated onto substrates to form useful barrier structures for packaging food or beverages (‘803, Column 11, lines 36-57) wherein the barrier structure comprises a PVOH having a Mw of 85000-146000 as determined on a 4% aqueous solution at 20°C (‘803, Column 13, lines 29-37).
The prior art made of record, cited on a previous 892 Notice of References Cited form, and not relied upon is considered pertinent to applicant's disclosure.
Young US 2017/0042374 discloses a drink container (‘374, Paragraph [0062]) comprising more than one layer made of copolymers or derivatives thereof from polyvinyl alcohols (‘374, Paragraph [0058]).
Lee et al. US 2017/0355938 discloses a food package (‘938, Paragraph [0017]) comprising an outer wall film and an inner wall film comprising a PVOH resin or PVOH resin blend (‘938, Paragraph [0038]).
Van Beek US 2017/0152102 discloses a capsule (cartridge 10) comprising a multilayer sealing film (sealing film 7) (‘102, Paragraph [0102]) comprising a multilayer sealing film (sealing film 7) wherein the multilayer sealing film has a polyvinyl alcohol layer having a thickness of from 2-20 µm (‘102, Paragraphs [0120]-[0121]).
Gerbaulet et al. US 2016/0251149 discloses a capsule comprising a flange formed of at least two different polymers of a first polymer providing mechanical resistance and a second polymer that is a gas barrier polymer formed as at least one layer embedded inside the first polymer (‘149, Paragraph [0054]) wherein the second polymer having gas barrier properties is polyvinyl alcohol which barrier layer has a thickness of between 2 and 30 µm (‘149, Paragraph [0037]) wherein the first polymer provides mechanical properties and moisture resistance and has good molding ability made of polyvinyl alcohol (‘149, Paragraph [0038]).
Wilczak et al. US 2009/0220717 discloses a preform for making a beverage container (‘717, Paragraph [0005]) comprising water resistant coating layers made of PVOH polymer or copolymers (‘717, Paragraph [0127]) to reduce the water sensitivity and decrease water vapor transmission rate of the article substrate (‘717, Paragraph [0133]) wherein the PVOH coating layer is 5 microns thick (‘717, Paragraph [0276]).
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
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