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 .
EXAMINER’S REMARKS
Regarding Claims 1-14, it is first noted that the claimed “apparatus” in the claims is not an “apparatus” as is conventionally known in the coffee capsule art. An “apparatus” in the coffee capsule art usually refers to a machine/device/apparatus which receives a beverage capsule/cartridge/pod as evidenced by the following:
Anton et al. US 2020/0062495 discloses a coffee brewing apparatus comprising a standard needle coffee machine used to apply injection of hot pressurized water into a sealed capsule (‘495, Paragraph [0124]).
Valsecchi US 2019/0313835 discloses an apparatus (beverage brewing apparatus 1) for preparing a beverage from a pod (single serve capsule 2) wherein the apparatus (beverage brewing apparatus 1) comprises a capsule holder (capsule holder 11) to receive the pod (single serve capsule) in a brewing position and an injection unit (needle injection device 24) to perforate the pod (capsule 2) in the brewing position and to feed a brewing fluid into the capsule wherein the injection unit (needle injection device 24) comprises a pair of needles (pair of needles 26 and 27) (’835, FIG. 6) (‘835, Paragraphs [0042]-[0044]).
Vu US 9,402,501 discloses an apparatus (beverage brewing apparatus 200) in which a pod (disposable or reusable brewing cup) is placed wherein most commercially available apparatuses (brewing machines) utilize a needle (needle 205) to pierce a bottom of the pod (‘501, Column 13, lines 13-28) wherein the pod comprises a drainage region (port 209) (‘501, FIG. 13) (‘501, Column 15, lines 41-45).
Lo Faro et al. US 2016/0051080 discloses an apparatus (capsule receiving apparatus) configured to receive a pod (cold drink capsule or hot drink capsule) wherein the apparatus (capsule receiving apparatus) comprising a hot water injection needle adapted to first puncture a top surface of an inserted pod (capsule) and then force the pod (capsule) downward onto a bottom needle wherein the hot water injection needle is adapted to infuse the hot water into the pod (capsule) under pressure producing a brewed or mixed hot drink (‘080, Paragraph [0061]).
Several prior art references in the beverage pod art such as Anton et al., Valsecchi, Vu, and Lo Faro et al. above conventionally utilize the term “apparatus” as a machine or device which accepts a pod/capsule wherein the pod/capsule is oftentimes pierced using a needle of the “apparatus”/machine/device. However, the claims recite the apparatus comprising a first film, a second film, and a filter disposed between the first film and the second film. Applicant discloses the apparatus being embodied as a packet (Specification, Paragraph [001]) wherein the packet includes a pod (Specification, Paragraph [003]). Applicant also discloses the packet including a top film and a bottom film (Specification, Paragraph [033]). The claims recite features of a packet/pod/capsule containing a first film, a second film, and a filter. The claims are not drawn to an “apparatus” in the conventional sense of a machine or device which accepts a pod/capsule. Examiner interprets the claimed “apparatus” to refer to a pod/packet/capsule as is conventionally known in the beverage capsule/pod art and not to an “apparatus” that is a machine or device which accepts a beverage capsule/pod as is conventionally named in the coffee capsule art.
Election/Restrictions
Applicant’s election without traverse of Group I: Claims 1-14 in the reply filed on November 6, 2025 is acknowledged.
Non-elected Claims 15-18 have been canceled herein.
An action on the merits of elected Claims 1-14 is provided below.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on December 10, 2025 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the following must be show of the feature(s) canceled from the claim(s):
The drainage region of the filter as recited in Claim 12
The central hole of the filter wherein the central hole has a perimeter that is coincident with a top of the drainage region as recited in Claim 14
No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites the limitation “Apparatus comprising” in line 1. It appears the claim should recite “An apparatus comprising” for grammatical purposes.
Appropriate correction is required.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 4-5, 7, and 10-14 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Bartoli et al. US 2013/0327223.
Regarding Claim 1, Bartoli et al. discloses an “apparatus” (capsule 1) comprising a first film (first covering element 6), a second film (second covering element 9), and a filter (filtering element 10) disposed between the first film (first covering element 6) and the second film (second covering element 9) wherein the filter (filtering element 10) is configured to retain an amount of material (product 50) (‘223, FIG. 1) (‘223, Paragraphs [0028]-[0032] and [0038]).
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Further regarding Claim 1, the limitations “configured to retain an amount of material” are seen to be recitations regarding the intended use of the “apparatus.” 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, Bartoli et al. explicitly discloses the filter (filtering element 10) capable of retaining an amount of material (product 50) (‘223, FIG. 1) (‘223, Paragraphs [0028]-[0029]).
Regarding Claim 4, the limitations “configured to be pierced by a brewing needle” are product by process limitations and as such are rejected for the same reasons regarding product by process enumerated in the rejections of Claim 1 above. Nevertheless, Bartoli et al. explicitly discloses the first film (first covering element 6) being capable of being pierced by a brewing needle (dispensing means 61) (‘223, FIG. 2) (‘223, Paragraph [0039]).
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Regarding Claim 5, Bartoli et al. discloses the first film (first covering element 6) being made of aluminum (‘223, Paragraph [0039] and providing a hermetical seal to the pod (capsule) (‘223, Paragraph [0029]), which reads on the claimed first film including a vapor barrier.
Regarding Claim 7, Bartoli et al. discloses the second film (second covering element 9) being made of aluminum (‘223, Paragraph [0039]) and providing a hermetic seal to the pod (capsule) (‘223, Paragraph [0038]), which reads on the claimed second film including a vapor barrier.
Regarding Claim 10, Bartoli et al. discloses the filtering (filtering element 10) defining an annular material holding region (portion of filtering material contacting product 50) (‘223, FIG. 1).
Regarding Claim 11, Bartoli et al. discloses the filter (filtering element 10) defining a drainage region, i.e. liquid is capable of flowing, e.g. draining, through the permeable filter paper material of filtering element 10) (‘223, FIG. 2) (‘223, Paragraph [0035]).
Regarding Claim 12, Bartoli et al. discloses the drainage region being coaxial with the filter (filtering element 10) (‘223, FIG. 2) (‘223, Paragraph [0035]).
Regarding Claim 13, Bartoli et al. discloses the filter (filtering element 10) forming a layer parallel to and supported by the first film (first covering element 6) in an area of the first film (first covering element 6) that overlies the drainage region (‘223, FIG. 1) (‘223, Paragraph [0034]).
Regarding Claim 14, Bartoli et al. discloses the filter (filtering element 10) defining a central hole (middle of filtering element 10 that contains pores in the central region of filtering element 10) having a perimeter that is coincident with a top of the drainage region (‘223, FIG. 1).
Claims 1-7 and 10-12 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Kilber et al. US 2010/0288131.
Regarding Claims 1-14, it is first noted that the claimed “apparatus” in the claims is not an “apparatus” as is conventionally known in the coffee capsule art. An “apparatus” in the coffee capsule art usually refers to a machine/device/apparatus which receives a beverage capsule/cartridge/pod as evidenced by the following:
Anton et al. US 2020/0062495 discloses a coffee brewing apparatus comprising a standard needle coffee machine used to apply injection of hot pressurized water into a sealed capsule (‘495, Paragraph [0124]).
Valsecchi US 2019/0313835 discloses an apparatus (beverage brewing apparatus 1) for preparing a beverage from a pod (single serve capsule 2) wherein the apparatus (beverage brewing apparatus 1) comprises a capsule holder (capsule holder 11) to receive the pod (single serve capsule) in a brewing position and an injection unit (needle injection device 24) to perforate the pod (capsule 2) in the brewing position and to feed a brewing fluid into the capsule wherein the injection unit (needle injection device 24) comprises a pair of needles (pair of needles 26 and 27) (’835, FIG. 6) (‘835, Paragraphs [0042]-[0044]).
Vu US 9,402,501 discloses an apparatus (beverage brewing apparatus 200) in which a pod (disposable or reusable brewing cup) is placed wherein most commercially available apparatuses (brewing machines) utilize a needle (needle 205) to pierce a bottom of the pod (‘501, Column 13, lines 13-28) wherein the pod comprises a drainage region (port 209) (‘501, FIG. 13) (‘501, Column 15, lines 41-45).
Lo Faro et al. US 2016/0051080 discloses an apparatus (capsule receiving apparatus) configured to receive a pod (cold drink capsule or hot drink capsule) wherein the apparatus (capsule receiving apparatus) comprising a hot water injection needle adapted to first puncture a top surface of an inserted pod (capsule) and then force the pod (capsule) downward onto a bottom needle wherein the hot water injection needle is adapted to infuse the hot water into the pod (capsule) under pressure producing a brewed or mixed hot drink (‘080, Paragraph [0061]).
Several prior art references in the beverage pod art such as Anton et al., Valsecchi, Vu, and Lo Faro et al. above conventionally utilize the term “apparatus” as a machine or device which accepts a pod/capsule wherein the pod/capsule is oftentimes pierced using a needle of the “apparatus”/machine/device. However, the claims recite the apparatus comprising a first film, a second film, and a filter disposed between the first film and the second film. Applicant discloses the apparatus being embodied as a packet (Specification, Paragraph [001]) wherein the packet includes a pod (Specification, Paragraph [003]). Applicant also discloses the packet including a top film and a bottom film (Specification, Paragraph [033]). The claims recite features of a packet/pod/capsule containing a first film, a second film, and a filter. The claims are not drawn to an “apparatus” in the conventional sense of a machine or device which accepts a pod/capsule. Examiner interprets the claimed “apparatus” to refer to a pod/packet/capsule as is conventionally known in the beverage capsule/pod art and not to an “apparatus” that is a machine or device which accepts a beverage capsule/pod as is conventionally named in the coffee capsule art.
Regarding Claim 1, Kilber et al. discloses a pod (cartridge 50) comprising a first film (lid 51) and a second film (base 43 of thermoplastic sheet of flexible film material that defines the container cup) (‘131, Paragraph [0081]) and a filter (filter 52) disposed between the first film (lid 51) and the second film (base 43) wherein the filter (filter 52) is capable of retaining an amount of material (ground coffee 53) (‘131, FIG. 6) (‘131, Paragraphs [0064]-[0065]).
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Further regarding Claim 1, the limitations “configured to retain an amount of material” are seen to be recitations regarding the intended use of the “apparatus.” 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, Kilber et al. explicitly discloses the filter (filter 52) capable of retaining an amount of material (ground coffee 53) (‘131, FIG. 6) (‘131, Paragraph [0065]).
Regarding Claim 2, Kilber et al. discloses the first film (lid) being flexible (“131, Paragraph [0063]).
Regarding Claim 3, Kilber et al. discloses the second film (plastic sheet from which the container cup is made) to be flexible (‘131, Paragraph [0081]).
Regarding Claim 4, the limitations “wherein the first film is configured to be pierced by a brewing needle” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 1 above. Nevertheless, Kilber et al. explicitly discloses the first film (lid 51) being capable of being pierced by a brewing needle (inlet tube 60) (‘131, FIG. 6) (‘131, Paragraph [0071]).
Regarding Claim 5, Kilber et al. discloses the first film (lid) including a vapor barrier (‘131, Paragraph [0061]).
Regarding Claim 6, the limitations “wherein the second film is configured to be pierced by a drain needle” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 1 above. Nevertheless, Kilber et al. explicitly discloses the second film (cup bottom 43 of cup) being capable of being pierced by a drain needle (outlet tube 58) (‘131, FIG. 6) (‘131, Paragraph [0071]). It is noted that any needle reads on the claimed drain needle since any needle would puncture a hole into the capsule pod and thus “drain” the contents of the capsule pod.
Regarding Claim 7, Kilber et al. discloses the second film (container cup) including a vapor barrier (oxygen gas impermeable barrier layer made of EVOH for the cup) (‘131, Paragraph [0081]).
Regarding Claim 10, Kilber et al. discloses the filter (filter 52) defining an annular holding region (portion of filter 52 that contacts ground coffee 53) (‘131, FIG. 6).
Regarding Claim 11, Kilber et al. discloses the filter (filter 52) being formed from porous sheet material (‘131, Paragraph [0071]), which broadly reads on the claimed filter defining a drainage region since the porous filter 52 can drain the contents of the capsule pod through its pores.
Regarding Claim 12, Kilber et al. discloses the filter (filter 52) being formed from porous sheet material (‘131, Paragraph [0071]), which broadly reads on the claimed drainage region (the entire porous filter) being coaxial with the filter (filter 52).
Claims 1-8 and 11 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Kollep et al. US 2013/0108752.
Regarding Claims 1-14, it is first noted that the claimed “apparatus” in the claims is not an “apparatus” as is conventionally known in the coffee capsule art. An “apparatus” in the coffee capsule art usually refers to a machine/device/apparatus which receives a beverage capsule/cartridge/pod as evidenced by the following:
Anton et al. US 2020/0062495 discloses a coffee brewing apparatus comprising a standard needle coffee machine used to apply injection of hot pressurized water into a sealed capsule (‘495, Paragraph [0124]).
Valsecchi US 2019/0313835 discloses an apparatus (beverage brewing apparatus 1) for preparing a beverage from a pod (single serve capsule 2) wherein the apparatus (beverage brewing apparatus 1) comprises a capsule holder (capsule holder 11) to receive the pod (single serve capsule) in a brewing position and an injection unit (needle injection device 24) to perforate the pod (capsule 2) in the brewing position and to feed a brewing fluid into the capsule wherein the injection unit (needle injection device 24) comprises a pair of needles (pair of needles 26 and 27) (’835, FIG. 6) (‘835, Paragraphs [0042]-[0044]).
Vu US 9,402,501 discloses an apparatus (beverage brewing apparatus 200) in which a pod (disposable or reusable brewing cup) is placed wherein most commercially available apparatuses (brewing machines) utilize a needle (needle 205) to pierce a bottom of the pod (‘501, Column 13, lines 13-28) wherein the pod comprises a drainage region (port 209) (‘501, FIG. 13) (‘501, Column 15, lines 41-45).
Lo Faro et al. US 2016/0051080 discloses an apparatus (capsule receiving apparatus) configured to receive a pod (cold drink capsule or hot drink capsule) wherein the apparatus (capsule receiving apparatus) comprising a hot water injection needle adapted to first puncture a top surface of an inserted pod (capsule) and then force the pod (capsule) downward onto a bottom needle wherein the hot water injection needle is adapted to infuse the hot water into the pod (capsule) under pressure producing a brewed or mixed hot drink (‘080, Paragraph [0061]).
Several prior art references in the beverage pod art such as Anton et al., Valsecchi, Vu, and Lo Faro et al. above conventionally utilize the term “apparatus” as a machine or device which accepts a pod/capsule wherein the pod/capsule is oftentimes pierced using a needle of the “apparatus”/machine/device. However, the claims recite the apparatus comprising a first film, a second film, and a filter disposed between the first film and the second film. Applicant discloses the apparatus being embodied as a packet (Specification, Paragraph [001]) wherein the packet includes a pod (Specification, Paragraph [003]). Applicant also discloses the packet including a top film and a bottom film (Specification, Paragraph [033]). The claims recite features of a packet/pod/capsule containing a first film, a second film, and a filter. The claims are not drawn to an “apparatus” in the conventional sense of a machine or device which accepts a pod/capsule. Examiner interprets the claimed “apparatus” to refer to a pod/packet/capsule as is conventionally known in the beverage capsule/pod art and not to an “apparatus” that is a machine or device which accepts a beverage capsule/pod as is conventionally named in the coffee capsule art.
Regarding Claim 1, Kollep et al. discloses an apparatus (capsule 1) (‘752, Paragraph [0059]) comprising a first film (foil 2), a second film (foil 3) (‘752, Paragraph [0061]), and a filter (one or more internal filter layer (s)) disposed between the first film (foil 2) and the second film (foil 3) (‘752, FIG. 1) (‘752, Paragraph [0059]).
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Further regarding Claim 1, the limitations “configured to retain an amount of material” are seen to be recitations regarding the intended use of the “apparatus.” 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, Kollep et al. discloses the filter being capable of retaining an amount of material (powder cake 6 of ground coffee) (‘752, Paragraphs [0059] and [0061]).
Regarding Claims 2-3, Kollep et al. discloses the first film (foil 2) and the second film (foil 3) both being flexible (‘752, Paragraph [0060]).
Regarding Claims 4 and 6, Kollep et al. discloses the first film (foil 2) and the second film (foil 3) both being capable of being pierced (perforated) by a brewing needle or a drain needle (‘752, Paragraph [0059]).
Regarding Claims 5 and 7, Kollep et al. discloses the first film (foil 2) and the second film (foil 3) both including a vapor barrier (gas barrier layer) (‘752, Paragraph [0059]).
Regarding Claim 8, Kollep et al. discloses the first film (foil 2) defining a perimeter (peripheral seam 4) and the second film (foil 3) being sealed to the first film (foil 2) along the perimeter (peripheral seam 4) (‘752, FIG. 1) (‘752, Paragraphs [0036] and [0059]).
Regarding Claim 11, Kollep et al. discloses the filter (one or more filter layer(s) being an internal filter layer(s) made of paper (‘752, Paragraph [0059]). The paper filter layer(s) broadly reads on the filter defining a drainage region, i.e. liquid is capable of flowing into and out of the pores of the paper filter.
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.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Kollep et al. US 2013/0108752 in view of Walter US 2017/0347825.
Regarding Claim 9, Kollep et al. discloses the apparatus (capsule) having a symmetrical lenticular container of substantially convex surface on both sides or other shapes of the capsule can be envisaged which are not symmetrical (‘752, Paragraph [0062]). However, Kollep et al. is silent regarding the specific shape of the apparatus/capsule having the first film that forms the top of the apparatus/capsule having a flat configuration.
Walter discloses an apparatus (capsule 30) comprising a first film (lid 32) and a second film (body part 31) (‘825, Paragraph [0052]) wherein the first film (lid 32) has a flat configuration (‘825, FIGS. 5A-5C).
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Both Kollep et al. and Walter are directed towards the same field of endeavor of beverage capsules capable of being used in a beverage machine. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the apparatus/capsule of Kollep et al. and construct the apparatus/capsule with a shape such that the first film that forms a top of the apparatus/capsule has a flat configuration as taught by Walter since the configuration of the claimed apparatus/capsule is 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 apparatus/capsule was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Walter teaches that there was known utility in the beverage capsule art to construct the first film that forms a top of the apparatus/capsule with a flat configuration.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Kollep et al. US 2013/0108752 in view of Yoakim et al. US 2004/0115310.
Regarding Claim 9, Kollep et al. discloses the apparatus (capsule) having a symmetrical lenticular container of substantially convex surface on both sides or other shapes of the capsule can be envisaged which are not symmetrical (‘752, Paragraph [0062]). However, Kollep et al. is silent regarding the specific shape of the apparatus/capsule having the first film that forms the top of the apparatus/capsule having a flat configuration.
Yoakim et al. discloses an apparatus (cartridge 1) comprising a first film (second sheet 4) and a second film (first sheet 3) (‘310, Paragraph [0023]) wherein the first film (second sheet 4) has a flat configuration (‘310, FIG. 1).
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Both Kollep et al. and Yoakim et al. are directed towards the same field of endeavor of beverage capsules capable of being used in a beverage machine. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the apparatus/capsule of Kollep et al. and construct the apparatus/capsule with a shape such that the first film that forms a top of the apparatus/capsule has a flat configuration as taught by Yoakim et al. since the configuration of the claimed apparatus/capsule is 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 apparatus/capsule was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Yoakim et al. teaches that there was known utility in the beverage capsule art to construct the first film that forms a top of the apparatus/capsule with a flat configuration.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Cai US 2019/0328170 discloses an apparatus (apparatus 1) comprising an outlet needle (outlet needle 63) that pierces a pod (pods 100 and 100P) wherein the pod comprising a first film (film lid 23) and a second film (impermeable film 140 heat sealed to lower surface of pod bottom 27) (‘170, Paragraph [0084]) configured to be pierced by a needle (‘170, FIG. 1B) (‘170, Paragraphs [0075] and [0133]) wherein the second film (flexible film 140) is impermeable (‘170, Paragraph [0084]).
Bedford et al. US 2024/0182227 discloses a pod (pod 200) comprising a film that is pierced (‘227, FIG. 8B) (‘227, Paragraph [0286]).
Ergican et al. US 2019/0337713 discloses a pod (pod 300) comprising a film (top composite film 302) that is pierced with a water nozzle (‘713, FIG. 9) (‘713, Paragraph [0076]) wherein the majority of the composite film will deform elastically under pressure (‘713, Paragraph [0049]).
Wong et al. US 2012/0258210 discloses a pod (capsule 2) comprising a filter paper made of a porous sheet that can drain from the pod (capsule 2) (‘210, FIG. 2) (‘210, Paragraph [0061]) wherein the lid and/or exit filter deforms against the lid piercing means (‘210, Paragraph [0063]).
Kamerbeek et al. US 2012/0231124 discloses a pod (capsule 302’) comprising a first film and a second film (lid part 319A) and a filter (exit filter part 316) disposed between the first film and the second film (lid part 319A) wherein the filter (exit filter part 316) is configured to retain an amount of material (ground coffee) (‘124, FIG. 6B) (‘124, Paragraphs [0054] and [0080]) wherein beverage drains from the filter (‘124, Paragraph [0038]) wherein the lid and/or exit filter deforms against the lid piercing means (‘124, Paragraph [0040]).
Bieshuvel et al. US 2011/0033580 discloses a pod comprising a first film, a second film (lid seal 50), and a filter (porous sheet containing exit openings) disposed between the first film (bottom seal 46) and the second film (lid seal 50) (‘580, FIG. 4A (‘580, Paragraph [0083]).
Nordskog US 4,867,993 discloses a pod comprising a collapsible container made of paper with a drain aperture vertically therethrough and a filter bag disposed over the drain hole.
Volpe et al. US 2018/0362198 discloses a pod (beverage capsule 10) comprising a first film (lid portion 20) and a filter (filter element 50) (‘198, FIG. 2F) wherein the first film (lid portion 20) includes a vapor barrier (‘198, Paragraphs [0131]-[0132]).
Fond et al. US 5,649,472 discloses an apparatus comprising a first film and a second film wherein the first film has a flat configuration (‘472, FIGS. 8-10).
Heydel et al. US 2016/0137401 discloses a pod (beverage capsule) comprising a valve affixed to a spout or drain disposed on the pod (beverage capsule) that opens when the pressure within the pod (capsule) builds up to the level required for proper beverage preparation (‘401, Paragraph [0019]).
Talon US 2015/0282663 discloses a pod (capsule) provided with a spout or drain which is affixed with a valve that opens when the pressure within the pod (capsule) builds up to the level required for proper beverage preparation (‘663, Paragraph [0020]).
Miller et al. US 2016/0280455 discloses a pod (capsule 301) comprising a first film (puncturable lid 310) wherein the first film (puncturable lid 310) includes a vapor barrier (‘455, FIG. 3) (‘455, Paragraph [0031]).
Deeb et al. US 2014/0220192 discloses a pod comprising a first film (cover 13) wherein the first film (cover 13) includes a vapor barrier (aluminum vapor coat that serves as an oxygen barrier (‘192, FIG. 2) (‘192, Paragraph [0027]).
Tottone et al. US 2021/0253336 discloses a pod comprising a first film (wall 5) wherein the first film (wall 5) is flexible (‘336, FIGS. 4-7) (‘336, Paragraph [0056]).
Marcinkowski US 2017/0355515 discloses a pod (cartridge 10) comprising a first film (lid 40) and a filter (filter 30) (‘515, FIGS. 1-2) wherein the first film (lid 40) is flexible and includes a vapor barrier (barrier to moisture and/or oxygen gas) (‘515, Paragraphs [0024]-[0025]).
Estabrook et al. US 2012/0321756 discloses a pod (container 11) comprising a first film (lid 12) wherein the first film (lid 12) is a flexible sheet of foil and polymer laminate material and includes a vapor barrier (barrier to moisture and/or oxygen gas) (‘756, FIG. 1) (‘756, Paragraph [0036]).
Peterson et al. US 2012/0308688 discloses an apparatus (cartridge having a sachet form) made of relatively rigid and/or flexible elements and arranged to maintain a specific shape or shapeless and includes a filter located in the interior space (‘688, Paragraph [0075]).
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