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 .
Response to Amendment
The amendment filed on 12/12/25 has been entered.
Claim Status
Claims 1-23 are pending, with claims 1-13 and 21-23 being examined on their merits and claims 14-20 being withdrawn. Claims 1-3 have been amended and new claim 23 has been added. Amended claim 1 now requires the new limitations of: “the organic material measurement line marking on the inside wall, pour the organic material into a closeable filter bag”, “the organic material measurement line marking is located at a second position within the brewing cavity that is below the first position to indicate an amount of the organic material to be poured into brewing cavity”, “wherein the amount of the organic material is later poured into the closeable filter bag”, “the amount of the organic material that was poured into the closeable filter bag”, and “the closeable filter bag has been removed from the mid-section”.
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.
Claim(s) 1-2, 4-10, 13 and 21-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hibear [The Swiss Army Tool of Insulated Bottles and All-Day Adventure Flask, 2020] in view of Constantine et al. [US 20200405089 A1], hereinafter Constantine, Choltco-Devlin et al. [US 20170202400 A1], hereinafter Devlin, Tsay [US 20060272510 A1], and Starr [US 20190241347 A1], evidenced by Tsigounis (Hibear founder) for Hibear [Unboxing the All-Day Adventure Flask, 2021], hereinafter Tsigounis (cited for showing the closeable filter in more detail).
Regarding claim 1, Hibear teach a portable flask built to craft beverages such as cold brew (Portable Cold Brewer (PCB)) [par.1, video description, and picture below].
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The portable cold brewer of Hibear comprise: a brewing section having a housing, wherein the housing includes a brewing section top, and a brewing cavity having an inside wall within the housing (see 3rd picture below showing interior), a mid-section including a mid-section bottom, mid-section top, a dilution section, wherein the mid-section is removably attached to the brewing section top at the mid-section bottom, and is configured to cover the brewing section top with the mid-section bottom when a closeable filter bag is placed within the brewing cavity, the mid-section is configured to be removed from the brewing section top, [annotated screenshot below and from 0:23 to 0:30 seconds in video], and
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wherein the brewing cavity includes a brew line marking and is configured to receive a filter having the organic material within the brewing cavity and receive water [picture below].
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As shown on the picture above, Hibear disclose a line marking located within the brewing cavity and below the brewing section top. Therefore, a skilled artisan would recognize that said marking is capable of indicating a first amount of water to be poured into the brewing cavity when the closeable filter bag containing the organic material is closed and placed into the brewing cavity.
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Hibear does not teaches the organic material measurement line.
Constantine teach an apparatus capable of carrying out an extraction of an infusible material, more particularly for extracting an infusion from coffee or tea [0002]. In one embodiment the infusing system is configured to prepare cold brew coffee of a desired strength by providing a container (400) that includes an indicia (410) formed on the sidewall, wherein the different indicia includes recipes or instructions for preparing the cold brew coffee. The container (400) includes a horizontal fill line for water and provides instructions to fill the container twice to the specified fill line and to use this amount of water in the container (e.g., 102) in combination with ⅜ lb., or about 170 g of coffee grounds, [0124, Figs. 32A-32C], (equivalent to the claimed organic material measurement lines).
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The indicia on the side of the bottle includes a first fill line for measuring water (also teaching wherein the brewing cavity includes a brew line marking, configured to measure an amount of water in the brewing cavity as already taught by Hibear) and also specified the amount of infusible material (in this example, coffee) (equivalent to the wherein the brewing cavity includes an organic material measure marking) to mix with the water in the container [0124].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed organic material measurement lines into the invention of Hibear, in view of Constantine, since both are directed to methods of making cold brew beverage products with portable cold brewing devices. Doing so would provide a portable cold brewer that conveniently includes markings, lines or indicia as instructions for preparing a variety of infused extracts where appropriate amounts/ratios of extractable material and extracting liquid is used and/or dilutions to suitable concentrations for drinking [Constantine, 0124].
Modified Hibear in view of Constantine teach the organic material measurement line marking, but are silent regarding the organic material measurement line being on the inside wall.
Devlin teaches a portable beverage maker [Devlin, claim 16] having a cavity configured to receive organic material such as coffee [Devlin, 0032]. The portable beverage maker comprise a cap (container) having a measurement line markings 292A, 292B (Fig.9-10, 292A, 292B) on the inside wall (280) which may be used to measure ingredients [Devlin, 0051].
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the organic material measurement lines on the inside wall as taught by Devlin into the invention of Hibear, in view of Constantine, since all are directed to methods of making beverage products with portable devices and since Hibear already teach a brewing section having an inside wall, and Constantine already teach an organic material measurement line marking on a container (second container 40, brewing section of Hibear) [Constantine, Fig.1, 0075], where the second container or brewing section cavity may comprise a line marking (indentation) formed on an exterior or interior surface [Constantine, 0008], and since the organic material measurement line marking shown by Constantine on Fig.32C may be on a translucent or transparent glass container [Constantine, 0076], which would make the line marking visible from the inside. Doing so would provide a portable cold brewer that conveniently includes markings, lines or indicia as instructions for preparing a variety of infused extracts where appropriate amounts/ratios of extractable material may be selected by using said marking line inside or outside the container based on the material (i.e., metal or transparent glass) of the container [Constantine, 0124] or marking line inside the container suitable for measuring ingredients as taught by Devlin [Devlin, 0051] if the container is made of metal or a material that is not transparent or translucent, and since the arrangement of measuring lines is an obvious matter of design choice, MPEP 2144.04 VI. C.
Regarding the organic material inside a closeable filter:
While Hibear does not explicitly recites “closeable bag”, Hibear does teach a closeable filter [Hibear, 0:27 seconds in video, and pictures below], where organic material to be brewed is placed, then closed and inserted into the brewing cavity. Further, as shown in the picture of page 6 above, Hibear teach using a V60 paper filter (for pour-over), and while it is in an open configuration one of ordinary skill in the art would recognize that the filter may be closed and submerged for steeping in liquid for extraction of the organic material.
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Further, the evidence of Tsigounis (Hibear founder) disclose the 12 ounce closeable filter more in detail where he is seen opening the closeable filter and showing the inside for placing extractable organic material (coffee “cold brew”, tea) for infusions [Tsigounis, 1:03-1:12 seconds in video, and pictures below]. Therefore, Hibear teach the brewing cavity is configured to receive an organic material to be brewed within the cavity, place the organic material into a closeable filter and receive the closeable filter having the organic material within the brewing cavity, and receive water.
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Regarding the pouring the organic material and closeable filter being a bag:
Regarding the explicit recitation of “pouring” the organic material inside a filter that is a bag, Tsay teach a portable coffee brewer [Tsay, Fig.1], wherein the organic material is poured into a filter bag [Tsay, 0006, 0010].
Regarding the explicit recitation of “receiving the closeable filter bag having the poured organic material within the brewing cavity”, Starr teach a portable cold brew beverage system, products and methods for preparing cold brew beverage products that include an infusion bag containing infusible material [Starr, Abstract, 0006]. Starr’s method include a) folding a piece of porous material to form a bag, b) sealing the edges of the folded porous material to form the bag, c) placing infusible material in the bag, and d) sealing the top edge of the bag to form an infusion bag (closeable filter bag as claimed) [0009]. Infusion bag 1 and infusible material 2 disposed within infusion bag 1 (closeable filter bag having an organic material as claimed), are shown within brewing cavity/brewing section of container 6 (within a brewing cavity as claimed) in Figs.1-2 [0018].
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed pouring the organic material into a closable filter bag as taught by Tsay, and the brewing cavity configured to receive specifically a closeable filter bag having a poured organic material within the brewing cavity as taught by Starr, into the invention of Hibear (portable cold brewer), since Hibear already teach an organic material within a closeable filter and then brewing the organic material in the closeable filter within the brewing cavity but simply did not mention pouring the organic material in the filter and/or the filter being a bag, and , since Hibear already disclosed using both an inner filter or closable filter (steel filter) for extraction of organic material by immersion as shown above, and also a paper filter (which may be closed to make a closeable filter bag) having organic extractable material draining brewed effluent into the brewing cavity as shown in the picture above by Hibear, but simply did not used the term closeable bag, and since the substitution of one known form (i.e., closed steel filter of Hibear) for another (i.e., closed filter bag of Starr) would have yielded predictable results to one of ordinary skill in the art. Further, it would offer the advantage and flexibility of making coffee using different methods such as pour-overs method, by pouring the coffee into a filter bag, then placing the filter bag on the container for brewing and passing water through the organic material in the filter bag as taught by Tsay [Tsay, 0006], because Tsay teach that this would provide the advantage of providing a method for instantly brewing ground coffee wherein the extracted coffee grinds stay in the filter bag and may be conveniently discarded at the end of the brewing process [Tsay, 0006], or by immersion methods, by pouring the coffee into a closed filter bag, then placing the closed filter bag inside the container for brewing and adding water to the container containing the organic material in the closed filter bag as taught by Starr [Starr, 0018], because Starr teach that this would provide a portable cold brewer that does not involve a messy process, use of complex machines and does not require to handle coffee beans and/or grounds [Starr, 0005-0006].
Regarding the brew line marking located at a first position within the brewing cavity:
See Hibear discussion above showing brew line marking located at a first position within the brewing cavity.
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As shown on the picture above, Hibear disclose a line marking located within the brewing cavity and below the brewing section top.
Regarding the organic material measurement line marking:
See Constantine discussion above showing the organic material measuring line specifying the amount of infusible material (in this example, coffee) to mix with the water in the container [Constantine, Fig.32A-32C, 0124].
Regarding the organic material measurement line marking located at a second position within the brewing cavity:
See Devlin discussion above showing a portable beverage maker comprising a container (cap) having a measurement line markings 292A, 292B (Fig.9-10, 292A, 292B) on the inside wall (280) which may be used to measure ingredients [Devlin, 0051].
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Therefore, since Hibear teaches a brew line marking located at a first position within the brewing cavity and below the brewing section top, Constantine teaches an organic material measurement line marking is located at a second position (since the amount of water measured using the measuring line is twice and the amount of coffee material is only measured once, thus a volume of water would be higher which would require the brew line marking to be higher or at a first position and a volume of coffee would be lower which would require the organic material measurement line marking to be lower or at a second position below the first position) on the brewing cavity, and Devlin teaches all three concepts of: 1) providing measuring line markings for ingredients, 2) line markings within or inside the wall cavity, and 3) a line marking located at a first position for one ingredient amount (line 292B, i.e., 0.5oz) and a line marking located at a second position for another ingredient amount (line 292A, i.e., 1oz), one of ordinary skill in the art would recognize the use of the combined teachings of Hibear in view of Constantine and Devlin to provide for a portable brewer comprising line markings located at a first and second position within a brewing cavity based on the desired amount of coffee or organic material strength/concentration in the final brewed beverage.
Regarding the mid-section:
As discussed above, Hibear disclose the portable cold brewer comprising:
a mid-section including a mid-section bottom, mid-section top, a dilution section, an outside portion,
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and an inside portion defining a dilution cavity within the dilution section, wherein the dilution cavity includes a dilution line marking,
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wherein the mid-section is removably attached to the brewing section top at the mid-section bottom, and is configured to cover the brewing section top with the mid-section bottom when the closeable filter bag (closeable filter bag of Starr discussed above) with the amount of the organic material that was poured (amount of organic material poured into filter of Tsay discussed above) into the closeable filter bag (of Starr) is placed within the brewing cavity of Hibear, the mid-section is configured to be removed from the brewing section top, [annotated screenshot below and from 0:23 to 0:30 seconds in video],
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be overturned and placed on the brewing section top wherein the mid-section top is placed on the brewing section top, [annotated screenshot below and from 0:31 to 0:32 seconds in video], and
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receive the closeable filter bag once the closeable filter bag is removed from the brewing cavity and placed within the dilution cavity, drain the brewed effluent from the closeable filter bag into the brewing cavity when the closeable filter bag is in a resting position within the dilution cavity [annotated screenshot below and from 0:45 to 0:48 seconds in video].
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Hibear also mentions the portable cold brewer comprise a strainer [from 0:55 to 0:56 seconds in video], therefore it would be abundantly clear and immediately envisagable to one of ordinary skill in the art to drain a brewed effluent from the closeable filter bag into the brewing cavity when the closeable filter bag is in a resting position within the dilution cavity as shown in the picture above,
and the dilution line marking is located at a position within the dilution cavity and below the mid-section top to indicate a second amount of water to be poured into the dilution cavity when the brewed effluent has drained from the closeable filter bag into the brewing cavity (see pictures below comparing Hibear with Fig.4 instant invention).
Hibear Portable Cold Brewer (PCB)
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Figure 4 of the instant invention Portable Cold Brewer
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While Hibear does not explicitly recites these line markings are exclusively called brew line markings and dilution line markings, nevertheless one of ordinary skill in the art would recognize the line markings as suitable structures for the claimed capabilities or purpose, since these markings depend on various factors such as the amount/ratios of various ingredients (i.e., total amount of beverage to be prepared, the desired final taste, and/or concentration of the beverage), which would have been used during the course of normal experimentation and optimization procedures in the method of modified Hibear.
Moreover, the claimed dilution line markings is also explicitly taught by Constantine (see Constantine dilution line 420, Fig.32A), where after brewing using the brew line marking and organic material measurement line marking, a second amount of water is poured into the dilution cavity and is configured to dilute an initial concentration of the brewed effluent in the brewing cavity [Constantine, 0124, Fig.32A].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed dilution line marking specifically configured for the purpose of diluting an initial concentration of brewed effluent as taught by Constantine into the invention of Hibear, since both are directed to methods of making cold brew beverage products with portable cold brewing devices, and because Constantine teach that by providing a dilution marking the concentrated infused extract may be diluted to a suitable concentration for drinking [Constantine, 0124].
Regarding the closeable filter bag being removed from the mid-section:
While Hibear teach the closeable filter bag in a resting position within the dilution cavity of the overturned mid-section and does not explicitly teach removing the closeable filter bag, it would be obvious to one of ordinary skill in the art to remove the filter bag containing the organic material after the brewing is completed or all brewed effluent has drained into the brewing cavity to overturn the mid-section a second time to close or attach the mid-section to the brewing section top and dilute to the desired concentration using the dilution mark inside the mid-section top.
Furthermore, Tsay teach the portable coffee brewer discussed above, comprising the filter bag with the organic material poured inside the bag, wherein once the brewed effluent has drained from the filter bag into the brewing cavity, the filter bag is removed.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed removing the closeable filter bag as taught by Constantine from the mid-section of Hibear, because Tsay teach that by providing a bag containing the extractable organic material or coffee would help the spent coffee material to stay in the bag and not flow into the brewing cavity as well as providing a filter bag that can be removed in a sanitary and convenient manner [Tsay, 0016].
Regarding claim 2, see claim 1 rejection above, where Hibear teach the brew line marking and Constantine teach the organic material measurement line marking both configured to measure an amount of water and organic material respectively.
Regarding claim 4-5, Hibear teach a cylindrical housing brewing section. See claim 1 rejection and pictures above.
Regarding claim 6, Hibear teach a mid-section that acts as a funnel. See claim 1 rejection and pictures above.
Regarding claims 7-10, Hibear teach the brewing section top with a first set of threads, a mid-section bottom with second set of threads within the inside portion of the mid-section, mid-section above the dilution cavity, a third set of threads at the mid-section top, a lid with a fourth set of threads, all configured to form a watertight seal, wherein the lid includes a handle. The brewing section and mid-section is made from metal (steel). See link provided for video and pictures above/below.
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While the third set of threads of the mid-section top in the portable cold brewer are shown within the outside, one of ordinary skill in the art would recognize the threads may be configured to be arranged on the inside portion of the mid-section top yielding predictable results.
Regarding the configuration of threads in the container, MPEP 2144.04 IV. B. states:
In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.).
Regarding the rearrangement of threads within the container parts, MPEP 2144.04 VI. C. states:
In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
Regarding claim 13, claim 1 is applied as stated above. Hibear mention the organic material is coffee [see video at 0:30 in provided link], and teach cold brew (cold coffee) in the video description.
Regarding claim 21, claim 1 is applied as stated above. Hibear teach a mid-section with dilution line marking [see picture below].
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Regarding claim 22, claim 1 is applied as stated above. Hibear teach the lid covering the dilution section (interior of mid-section “funnel”) [see picture in page 5-6 above and below picture].
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Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hibear in view of Constantine, Devlin, Tsay and Starr as applied to claims 1-2 above, and further in view of Do [US 20150366395 A1].
Regarding claim 3, claim 1 is applied as stated above. Modified Hibear teach the portable cold brewer discussed above but does not teach the organic material measure marking is at a first position approximately 36 millimeters from a brewing section bottom, and the brew line marking is at a second position approximately 43 millimeters from the brewing section bottom.
Do teaches a brewing and filtering device [Tittle]. The invention provides a compact brewing and filtering device for cold or hot brewed coffee and tea with enhanced portability [Do, 0023]. In one embodiment the device (cup/container) includes fill lines (61) to help the user fill the collapsible cup (40) to a desired amount [Do, 0042, modified Fig. 2A]. Furthermore, Do teaches that the brewing and filtering device allows the user to vary the type and amount of ingredients and other variables that affect the result of the beverage according to the user's preferences [Do, 0009].
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While Do is silent with regards to the using the markings to measure the organic material to be brewed, a first position line marking approximately 36 millimeters from a brewing section bottom and the brew line marking at a second position approximately 43 millimeters from the brewing section bottom as claimed, Do does not teach an upper or lower limit or the specific use of measuring lines as for water or extractable organic material and one of ordinary skill in the art would have recognized that the plurality of lines could have been used to measure organic material and or water at desired levels for the user, therefore, absent any evidence of criticality, it would have been obvious to one of ordinary skill in the art to adjust the amount of organic material or liquid inside the portable brewing device, using the fill lines, based on the amount of extracted material desired in the final beverage product.
Hibear and Do are both considered to be analogous to the claimed invention because they are in the same field of cold brew coffee and solid liquid extraction of an infusible organic material. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hibear to incorporate the teachings of Do and provide an organic material line marking, into the system or apparatus of Hibear. Doing so would enable the user to make a single serving or multiple servings of a beverage with simple user effort in the making, filtering, and cleanup processes, since the brewing and filtering device allows the user to vary the type and amount of ingredients, and other variables that affect the result of the beverage according to the user's preferences [Do, 0009].
Claims 11 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hibear in view of Constantine, Devlin, Tsay and Starr as applied to claim 1 above, and further in view of Johnson [US 10,674,862 B1].
Regarding claims 11-12, claim 1 is applied as stated above. Modified Hibear teach the portable cold brewer discussed above but does not teach the brewing section has a height of approximately 178 millimeters and the mid-section has a height of approximately 76 millimeters (claim 11), and the brewing section top has a diameter of approximately 85 millimeters (claim 12).
Johnson discloses a coffee brewing apparatus which can prepare either hot or cold coffee extract having a filter body (8) (mid-section) and two reservoirs (14a and 14b) (one of the reservoirs functions as a brewing chamber). The filter body 8 is a hollow cylinder with male threaded ends (10a and 10b). A mesh filter (12) is affixed to interior of the filter body (8). Two self-supporting reservoirs (14a and 14b) have female threads (16a and 16b) near their ends [Abstract]. Coffee grounds (18) and either hot or cold water (20) are added to a lower reservoir (14b) (brewing section with a top diameter). The amount and proportions of ground coffee and water, as well as the temperature of the water, may be varied by the consumer [Johnson, Col. 3, Lines 1-5 and Fig. 1]. The male threads (10b) of the filter body (8) are then attached to the female threads (16b) of the lower reservoir (14b). The female threads 16a of the upper reservoir (14a) are then attached to the male threads (10a) of the filter body (8). The ground coffee and water are allowed to mingle for an amount of time desired to produce coffee extract and to achieve the taste preferred by the consumer. During this time, the entire apparatus may also be kept at a cool temperature if cold brewed coffee is to be produced, [Johnson, Col. 3, Lines 5-14 and Fig. 3].
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Johnson does not explicitly recites the brewing section with a height of approximately 178 millimeters and the mid-section with a height of approximately 76 millimeters, or the brewing section top with a diameter of approximately 85 millimeter as claimed, however Johnson teach that the mesh filter body (8) (mid-section) can have other shapes other than shown in the drawings such as cylindrical or cone shaped; the reservoirs (brewing section) can have alternate dimensions, such as varying the height to diameter ratio; the ratio of the filter body (mid-section) size to the reservoirs (brewing section) can be varied [Johnson, Col. 3, Lines 19-27]. Further it has been held that, wherein the difference between the claims and the prior art was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), MPEP 2144.04, IV. A.
While the reference does not explicitly disclose the specific height of approximately 178 millimeters of the brewing section and the height of the mid-section of approximately 76 millimeters, it would have been obvious to one of ordinary skill in the art at the time of the invention to change the heights of the brewing section and the mid-section, since such a modification would have involved a mere change in the size (or dimension) of a component. A change in size (dimension) is generally recognized as being within the level of ordinary skill in the art.
Claim 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hibear in view of Constantine, Devlin, Tsay and Starr as applied to claims 1-2 above, and further in view of Hogan [US 20160058247 A1].
Regarding claim 23, modified Hibear teach each and every limitation of claim 1 similarly shared with the limitations of claim 23, but is silent regarding further including a second organic material measurement line markings.
Hogan teaches a dual function beverage portable container for beverages consisting of two or more ingredients (i.e., water, organic material) [Hogan, Abstract, 0002, 0036]. The beverage portable container comprise one or more line markings on the wall, and shows line marking 172a located at a first position (i.e., brew line marking also already taught by Hibear), line marking 172c located at a second position (i.e., organic material measuring line marking also already taught by Constantine), and line marking 172d located at a third position (equivalent to a second organic material measurement line marking) that is below the second position [Hogan, 0039, Fig.2]. In regards to the organic material measurement line marking located at the second position (i.e., 172c) within the brewing cavity being configured to indicate a maximum amount of the organic material to be poured into brewing cavity, and the second organic material measurement line marking is configured to indicate a minimum amount of the organic material to be poured into brewing cavity (i.e., 172d), one of ordinary skill in the art would recognize the measurement line markings of Hogan may be suitable or configured for indicating a minimum (since line 172d is at a lower position, thus minimum amount) and maximum (since line 172c is at a higher position, thus maximum amount) amount of the organic material to be poured into brewing cavity in order to achieve the desired strength or concentration of the final brewed beverage.
Moreover, in regards to a second additional line marking MPEP 2144.04 VI. B. states:
In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) (Claims at issue were directed to a water-tight masonry structure wherein a water seal of flexible material fills the joints which form between adjacent pours of concrete. The claimed water seal has a "web" which lies in the joint, and a plurality of "ribs" projecting outwardly from each side of the web into one of the adjacent concrete slabs. The prior art disclosed a flexible water stop for preventing passage of water between masses of concrete in the shape of a plus sign (+). Although the reference did not disclose a plurality of ribs, the court held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced.).
And, in regards to the second and third locations for the line markings MPEP 2144.04 VI. C. states:
In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
With regards to the maximum amount of the organic material or the minimum amount of the organic material being later poured into the closeable filter bag, see Hibear in view of Tsay and Starr above.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed second organic material measurement line marking as taught by Hogan to measure the desired minimum or maximum amount of organic material, that is later poured into a filter bag (as taught by Tsay) that is closeable (as taught by Starr) for brewing a beverage, into modified Hibear, because Hogan teach that by providing additional ingredient measurement lines at different locations (172a-172d) would help measure a desired amount of a first ingredient within the container portion, and/or measure a desired total amount of the combined (i.e., second, third…. or a plurality) different ingredients contained within the container portion [Hogan, 0039].
Response to Arguments
Applicant's arguments filed 12/12/25 have been fully considered but they are not persuasive.
On pages 9-12 Applicant arguments are directed to the rejection over Hibear in view of Neace and Constantine. While Applicant mention the Neace reference in their response, the Examiner notes that Neace is no longer being relied upon in this Office Action and as such all arguments regarding this reference have been rendered moot.
Hibear:
On pages 12-19 Applicant urges that Hibear does not disclose each and every limitation of claim 1, however as explained in the last Office Action, Hibear teaches a portable cold brewer comprising each and every limitation of claim 1 except an organic material measurement line which is taught by Constantine, and the filter bag being explicitly a closeable filter bag which is taught by Starr. In regards to the marking lines being configured for the claimed purposes of adding an initial amount of water (brew line marking), measuring an organic material and measure an additional amount of water for dilution to obtain the final brewed beverage, one of ordinary skill in the art armed with the combined teachings of Hibear, Star and Constantine would recognize the use of said lines to measure an amount of each ingredient (i.e., organic material such as coffee and water ratios) in order to achieve a brewed beverage with the desired concentration of organic material extracted and/or dissolved in the extraction liquid (i.e., water).
Starr:
On pages 19-20 Applicant urges that the reference of Starr teaches away from Hibear because Starr describes a self-contained brewing product that includes an already prepared infusion bag having an already prepared amount of organic material an a bag of water, and Hibear describes an empty housing that must be filled with externally provided water and can use a closeable steel filter to hold the organic material that can be optionally used to immerse the organic material within the housing once water is externally poured into the housing after the closeable steel filter is physically placed into the housing, and there is no teaching, suggestion or motivation to combine these references.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). 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 case, one of ordinary skill in the art would recognize that by Hibear disclosing both a steel re-usable filter that can hold an amount of coffee and be closed to brew coffee by immersion, and a filter that can hold an amount of coffee to brew coffee by pour over method with an open end (which can be closed as taught by Starr, since Starr is only relied upon for teaching that the filter bag of Hibear may be used in a closed configuration and placed inside the brewing cavity of Hibear for brewing by immersion instead of using the closeable steel filter of Hibear), would prompt a skilled artisan to use the open filter bag of Hibear in a closed configuration as taught by Starr in order to brew coffee by immersion using a coffee filter bag that can be closed, since the selection of brewing method may be selected by the consumer as desired as some would prefer a brewed coffee extracted by immersion over the extracted by pour over and others would prefer pour over over immersion methods. Further, while Starr disclose a set or preselected amount of coffee and water previously packaged, and Hibear teach the use of externally provided amounts of coffee and water, this will also be recognized by a skilled artisan since the use of a method such as that in Hibear where the amounts of coffee and water may be provided as desired, thus offering the convenience and flexibility of using the desired amount of ingredients (i.e., coffee, water) in order to prepare a brewed beverage with the desired concentration as some would prefer a strong concentrated beverage, and others would prefer a more diluted, balanced or soft taste brewed beverage.
Constantine:
On pages 21-25 Applicant urges that the reference of Constantine fails to teach the line markings for the organic material and the water to be used for brewing particularly located on the inside walls of the container or brewing cavity and that the coffee line marking disclosed by Constantine is exclusively a marking for indicating liquid concentration within the container 400 and not explicitly used as an organic material measurement line marking, and further that Constantine fails to teach the structural limitations of claim 1 (i.e., (1) brewing section and (2) mid-section).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). 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 case, as explained above Constantine teaches line markings for coffee and water on the exterior wall of a container, Devlin teaches a portable beverage maker having a cavity configured to receive organic material such as coffee comprising a cap (container) having measurement line markings 292A, 292B (Fig.9-10, 292A, 292B) on the inside wall (280) which may be used to measure ingredients, wherein one line marking is at a first position and the other line marking is at a second position. As such, a skilled artisan would recognize the use of line markings for measuring coffee and water as taught by Constantine, where line markings for measuring an organic material to be brewed may be place on the interior walls of a container (brewing cavity of Hibear) at a first and second position as taught by Devlin, in order to measure different amounts of organic material to be brewed.
In response to applicant's argument that the coffee line marking disclosed by Constantine is exclusively a marking for indicating liquid concentration within the container 400 and not explicitly used as an organic material measurement line marking, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In response to applicant's argument that Constantine fails to teach the structural limitations of claim 1 (i.e., (1) brewing section and (2) mid-section), 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). One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). As explained above Hibear teaches (1) brewing section and (2) mid-section and Constantine teaches measuring markings for coffee and water, therefore a skilled artisan armed with the teachings of the references would envisage the use of line markings as taught by Constantine in the method/device of Hibear in order to produce an apparatus and method in which a portable device is suitable for brewing beverages from organic material(s) and water with the desired amount of ingredients based on the locations (i.e., height) in which the measuring markings are placed in the container.
Applicant’s arguments with respect to claim(s) 1-13, and 21-23 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Arguments directed to the new limitations presented in the amended claims as discussed above under claim status are being addressed with the prior art of record relied upon of Hibear, Constantine and Starr, in combination with the new references of Choltco-Devlin et al. [US 20170202400 A1], hereinafter Devlin, and Tsay [US 20060272510 A1] for claims 1-13 and 21-22, and Hogan [US 20160058247 A1] for claim 23.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/L.E.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792