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 .
Claim Objections
Claims 2-9 are objected to because of the following informalities:
Claims 2-9 all recite the limitation “Apparatus of Claim” in line 1. It appears the claims should recite “The apparatus of Claim” for grammatical purposes.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-9 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 1 recites the limitation “a substantially rigid frame liquid impermeable beverage container” in line 3. The term “substantially rigid” is a relative term which renders the claim indefinite. The term “substantially rigid” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is also unclear what is meant by the term “frame” in in the phrase “rigid frame liquid impermeable beverage container.”
Claim 1 recites the limitation “said liquid permeable body being impermeable to said infusible material” in line 8. The body is claimed to be both permeable and to be impermeable to an infusible material. It is unclear if the body is permeable or impermeable.
Claim 1 recites the limitation “the first plurality of spatial orientations” in lines 10-11. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation “the second plurality of spatial orientations” in lines 19-20. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation “wherein in said higher stationary position said bottom of said insert container is located higher than said bottom of said insert container” in lines 24-26. It is unclear how a bottom of the insert container can be located higher than the bottom of the insert container, i.e. it is unclear how a bottom of the insert container can be located higher than itself (the bottom of the insert container).
Claim 1 recites the limitation “said insert container” in line 25 as well as in line 26. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation “the user” in line 30. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation “a liquid” in line 36. It is unclear if this refers to “a liquid” recited in Claim 1, line 2 or to an entirely different liquid. For purposes of examination Examiner interprets the claim to refer to the same liquid.
Claim 1 recites the limitation “said infusible content” in line 36. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation “a shorter distance than the infuser container having one out of the first plurality of orientations” in lines 21-22. The term “shorter” is a relative term which renders the claim indefinite. The term “shorter” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 8 recites the limitation “preferably configured to be capable of serving as a tray for said infuser container when said infuser container is detached from said beverage container” in lines 2-3. The phrase “preferably” renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Clarification is required.
Claims 3-7 and 9 are rejected as being dependent on a rejected base claim.
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 and 5-9 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Riensch & Held DE 299 06 743.
It is noted that a human translation of Riensch & Held DE 299 06 743 has been attached herein. All citations to Riensch & Held DE 299 06 743 is with respect to the human translation.
Regarding Claim 1, Riensch & Held discloses an apparatus for making beverages (tea) by immersing an infusible material (tea leaves) in a liquid (liquid 18) (‘743, Page 1). The apparatus comprises a substantially rigid frame liquid impermeable beverage container (teapot 20) wherein the beverage container (teapot 20) comprises a bottom and walls (‘743 Machine Translation, Page 4). The beverage container (teapot 20) has an opening (filling opening 24) (‘743 Machine Translation, Page 5) at a top part of the beverage container (teapot 20) (‘743 Machine Translation, Page 3) and a detachable infuser container (filter insert 2) having a rigid frame body comprising a bottom and walls wherein at least a part of the body is partly liquid permeable wherein the liquid permeable body is impermeable to the infusible material (tea leaves) (‘743 Machine Translation, Page 5).
The beverage container (teapot 20) and the infuser container (filter insert 2) are capable of permitting placing the infuser container (filter insert 2) substantially vertically oriented in one of the first plurality of spatial orientations and moving the infuser container (filter insert 2) in the one of the first plurality of spatial orientations substantially vertically downward so that the infuser container (filter insert 2) assumes a lower stationary position relative to the beverage container (teapot 20) in which lower stationary position the infuser container (filter insert 2) is at least partly inserted in the beverage container (teapot 20) through the top opening (filling opening 24) of the beverage container (teapot 20) and in which lower stationary position the infuser container (filter insert 2) sits on the beverage container (teapot 20) and is supported by the beverage container (teapot 20) (‘743, FIG. 2) (‘743 Machine Translation, Page 6).
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The beverage container (teapot 20) and the infuser container (filter insert 2) are capable of permitting placing the infuser container (filter insert 2) substantially vertically oriented in one of the second plurality of spatial orientations and moving the infuser container (filter insert 2) in the one of the second plurality of spatial orientations substantially vertically downward so that the infuser container (filter insert 2) assumes a higher stationary position relative to the beverage container (teapot 20) in which higher stationary position the infuser container (filter insert 2) sits on the beverage container (teapot 20) and is supported by the beverage container (teapot 20) wherein in the higher stationary position the bottom of the insert container (filter insert 2) is located higher than the bottom of the beverage container (teapot 20) is located in the lower stationary position (‘743, FIG. 3) (‘743 Machine Translation, Page 6). One of the first plurality of orientations can be transformed into one of the second plurality of orientations by rotating the infuser container (filter insert 2) about a central longitudinal axis of the infuser container (filter insert 2) (‘743, Pages 5-6).
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A user is capable of selectively placing the infuser container (filter insert 2) in the lower stationary position by selecting one out of the first plurality of orientations of the infuser container (filter insert 2) and may selectively place the infuser container (filter insert 2) in the higher stationary position by selecting one out of the second plurality of orientations of the infuser container (filter insert 2) wherein in the lower stationary position the infusible material (tea leaves) is capable of being immersed in a liquid and in the higher position the infusible material is capable of being elevated above the liquid (‘743 Machine Translation, Page 6).
Further regarding Claim 1, the limitations “for making beverage by immersing an infusible material in a liquid” and “wherein said beverage container and said infuser container are configured to permit placing said infuser container substantially vertically oriented in one of the first plurality of spatial orientations and moving said infuser container in said one of the first plurality of spatial orientations substantially vertically downward so that said infuser container assumes a lower stationary position relative to said beverage container in which lower stationary position said infuser container is being at least partly inserted in said beverage container through said top opening of said beverage container and in which lower stationary position said infuser container is being at least partly inserted in said beverage container through said top opening of said beverage container and in which lower stationary position said infuser container sits on said beverage container and is supported by said beverage container and wherein said beverage container and said infuser container are configured to permit placing said infuser container substantially vertically oriented in one of the second plurality of spatial orientations and moving said infuser container in said one of the second plurality of spatial orientations substantially vertically downward so that said infuser container assumes a higher stationary position relative to said beverage container in which higher stationary position said infuser container sits on said beverage container and is supported by said beverage container and wherein in said higher stationary position said bottom of said insert container is located higher than said bottom of said insert container is located in said lower stationary position and wherein one out of the first plurality of orientations can be transformed into one of the second plurality of orientations by rotating said infuser container about a central longitudinal axis of the infuser container and whereby the user when placing said infuser container in said beverage container may selectively place said infuser container in said lower stationary position by selecting one out of said first plurality of orientations of said infuser container and may selectively place said infuser container in said higher stationary position by selecting one out of said second plurality of orientations of said infuser container wherein in said lower stationary position said infusible material may be immersed in a liquid and in said higher position said infusible content may be elevated above the liquid” 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.
Further regarding Claim 1, the limitations “wherein one out of the first plurality of orientations can be transformed into one of the second plurality of orientations by rotating said infuser container about a central longitudinal axis of the infuser container and whereby the user when placing said infuser container in said beverage container may selectively place said infuser container in said lower stationary position by selecting one out of said first plurality of orientations of said infuser container and may selectively place said infuser container in said higher stationary position by selecting one out of said second plurality of orientations of said infuser container wherein in said lower stationary position said infusible material may be immersed in a liquid and in said higher position said infusible content may be elevated above the liquid” are optional limitations that are not required to be met by the prior art in view of the terms “can be” and “may selectively” and “may be.” These phrases indicates that the limitations accompanied any of these phrases are optional limitations.
Regarding Claim 2, Reinsch & Held discloses an outside perimeter of at least a section of the infuser container (filter insert 2) having dimensions which are smaller than some dimensions of an inside perimeter of a section of the beverage container (teapot 20) that receives the infuser container section (filter insert 2)but larger than some other dimensions of the inside perimeter of the receiving beverage container section and in each of the first plurality of orientations each dimension of the outside perimeter of the at least a section of the infuser container (filter insert 2) is aligned with a larger dimension of the inside perimeter of the receiving beverage container section so that the outside perimeter of the infuser container section is completely within the inside perimeter of the receiving beverage container section and in each of the second plurality of orientations at least one dimension of the outside perimeter of the infuser container section is aligned with a smaller dimension of the inside perimeter of the infuser container section extending beyond the inside perimeter of the receiving beverage container section (‘743, FIG. 2).
Further regarding Claim 2, the limitations “whereby said infuser container section can be inserted in the receiving beverage container section in each of the first plurality of orientations of the infuser container but cannot be inserted in each of the second plurality of orientations and whereby the infuser container having one out of the second plurality of orientations can be inserted in the beverage container for a shorter distance than the infuser container having one out of the first plurality of orientations” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 1 provided above. Additionally, these are also optional limitations by virtue of the phrase “can be” that do not necessarily need to be taught by the prior art.
Regarding Claim 5, Reinsch & Held discloses means provided to prevent the infuser container (filter insert 2) from sliding sideways wherein the means is protrusions (holding means 14) surrounding the opening of the beverage container (teapot 20) (‘743, FIG. 3) (‘743, Page 5).
Regarding Claim 6, Reinsch & Held discloses the beverage container (teapot 20) comprising a handle (handle 30) (‘743, FIGS. 2-3) (‘743 Machine Translation, Page 5).
Regarding Claim 7, Reinsch & Held discloses the infuser container (filter insert 2) comprising a lid (‘743 Machine Translation, Page 4).
Regarding Claim 8, Reinsch & Held discloses a lid (cover element/lid) (‘743 Machine Translation, Page 3).
Regarding Claim 9, the limitations “wherein said infuser container is adapted to be used in combination with a variety of existing vessels serving as beverage containers and wherein said beverage container is an existing vessel available to a user” reads on any infuser container such as the one disclosed by Reinsch & Held since this infuser container is an existing vessel available to a user.
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 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Dixon US 1,246,399 in view of Riensch & Held DE 299 06 743.
It is noted that a human translation of Riensch & Held DE 299 06 743 has been attached herein. All citations to Riensch & Held DE 299 06 743 is with respect to the human translation.
Regarding Claim 1, Dixon discloses an apparatus for making beverages by immersing an infusible material (infusions or extracts from substances like tea and coffee) in a liquid (‘399, Page 1, lines 9-16). The apparatus comprises a substantially rigid frame liquid impermeable beverage container (vessel 1). The beverage container (vessel 1) comprises a bottom and walls. The beverage container (vessel 1) has an opening at a top part of the beverage container (vessel 1) and a detachable infuser container (straining vessel 2) having a rigid frame body comprising a bottom and walls wherein at least a part of the body is partly liquid permeable wherein the liquid permeable body is impermeable to the infusible material (‘399, Page 2, lines 13-21).
The beverage container (vessel 1) and the infuser container (straining vessel 2) are capable of permitting placing the infuser container (straining vessel 2) substantially vertically oriented in one of the first plurality of spatial orientations and moving the infuser container (straining vessel 2) in one of the first plurality of spatial orientations substantially vertically downward so that the infuser container (straining vessel 2) assume a lower stationary position relative to the beverage container (vessel 1) in which the lower stationary position the infuser container (straining vessel 2) is at least partly inserted in the beverage container (vessel 1) through the top opening of the beverage container (vessel 1) and in which lower stationary position the infuser container (straining vessel 2) sits on the beverage container (vessel 1) and is supported by the beverage container (vessel 1) (‘399, FIG. 2) (‘399, Page 2, lines 13-33).
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The beverage container (vessel 1) and the infuser container (straining vessel 2) are capable of permitting placing the infuser container (straining vessel 2) substantially vertically oriented in one of the second plurality of spatial orientations and moving the infuser container (straining vessel 2) in the one of the second plurality of spatial orientations substantially vertically downward so that the infuser container (straining vessel 2) assumes a higher stationary position relative to the beverage container (vessel 1) wherein in the higher stationary position the bottom of the infuser container (straining vessel 2) is located higher than the bottom of the beverage container in the lower stationary position (‘399, FIG. 1) (‘399, Page 2, lines 33-42).
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A user is capable of placing the infuser container (straining vessel 2) in the beverage container (vessel 1) and may selectively place the infuser container (straining vessel 2) in the lower stationary position by selecting one out of the first plurality of orientations of the infuser container (straining vessel 2) and may selectively place the infuser container (straining vessel 2) in the higher stationary position by selecting one out of the second plurality of orientations of the infuser container (straining vessel 2) wherein in the lower stationary position the infusible material is capable of being immersed in the liquid (containing the grounds with the liquid) (‘399, FIG. 2) (‘399, Page 1, lines 16-37) and in the higher position the infusible material is capable of being elevated above the liquid (’399, FIG. 1) (‘399, Page 3, lines 9-20).
Dixon is silent regarding one out of the first plurality of orientations being capable of transforming into one of the second plurality of orientations by rotating the infuser container about a central longitudinal axis of the infuser container.
Riensch & Held discloses an apparatus for making beverages (tea) by immersing an infusible material (tea leaves) in a liquid (liquid 18) (‘743, Page 1). The apparatus comprises a substantially rigid frame liquid impermeable beverage container (teapot 20) wherein the beverage container (teapot 20) comprises a bottom and walls (‘743 Machine Translation, Page 4). The beverage container (teapot 20) has an opening (filling opening 24) (‘743 Machine Translation, Page 5) at a top part of the beverage container (teapot 20) (‘743 Machine Translation, Page 3) and a detachable infuser container (filter insert 2) having a rigid frame body comprising a bottom and walls wherein at least a part of the body is partly liquid permeable wherein the liquid permeable body is impermeable to the infusible material (tea leaves) (‘743 Machine Translation, Page 5). The beverage container (teapot 20) and the infuser container (filter insert 2) are capable of permitting placing the infuser container (filter insert 2) substantially vertically oriented in one of the first plurality of spatial orientations and moving the infuser container (filter insert 2) in the one of the first plurality of spatial orientations substantially vertically downward so that the infuser container (filter insert 2) assumes a lower stationary position relative to the beverage container (teapot 20) in which lower stationary position the infuser container (filter insert 2) is at least partly inserted in the beverage container (teapot 20) through the top opening (filling opening 24) of the beverage container (teapot 20) and in which lower stationary position the infuser container (filter insert 2) sits on the beverage container (teapot 20) and is supported by the beverage container (teapot 20) (‘743, FIG. 2) (‘743 Machine Translation, Page 6). The beverage container (teapot 20) and the infuser container (filter insert 2) are capable of permitting placing the infuser container (filter insert 2) substantially vertically oriented in one of the second plurality of spatial orientations and moving the infuser container (filter insert 2) in the one of the second plurality of spatial orientations substantially vertically downward so that the infuser container (filter insert 2) assumes a higher stationary position relative to the beverage container (teapot 20) in which higher stationary position the infuser container (filter insert 2) sits on the beverage container (teapot 20) and is supported by the beverage container (teapot 20) wherein in the higher stationary position the bottom of the insert container (filter insert 2) is located higher than the bottom of the beverage container (teapot 20) is located in the lower stationary position (‘743, FIG. 3) (‘743 Machine Translation, Page 6). Riensch & Held further discloses one of the first plurality of orientations can be transformed into one of the second plurality of orientations by rotating the infuser container (filter insert 2) about a central longitudinal axis of the infuser container (filter insert 2) (‘743, Pages 5-6). A user is capable of selectively placing the infuser container (filter insert 2) in the lower stationary position by selecting one out of the first plurality of orientations of the infuser container (filter insert 2) and may selectively place the infuser container (filter insert 2) in the higher stationary position by selecting one out of the second plurality of orientations of the infuser container (filter insert 2) wherein in the lower stationary position the infusible material (tea leaves) is capable of being immersed in a liquid and in the higher position the infusible material is capable of being elevated above the liquid (‘743 Machine Translation, Page 6).
Both Dixon and Riensch & Held are directed towards the same field of endeavor of apparatuses for making beverages by immersing an infusible material in a liquid wherein the apparatus comprises a substantially rigid frame liquid impermeable beverage container and a detachable infuser container having a rigid frame body that is partly liquid permeable wherein the beverage container and the infuser container are configured to permit placing the infuser container in which the infuser container sits on the beverage container and is supported by the beverage container and the beverage container and the infuser container are configured to permit placing the infuser container so that the infuser container assumes a higher stationary position relative to the beverage container in which the bottom of the insert container is located higher than the bottom of the beverage container. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the apparatus of Dixon and allow one out of the first plurality of orientations being capable of transforming into one of the second plurality of orientations by rotating the infuser container about a central longitudinal axis of the infuser container as taught by Riensch & Held since substituting equivalents known for the same purpose is prima facie obvious (MPEP § 2144.06.II.). In the present instance, Riensch & Held teaches that the equivalent rotation of the infuser container about a central longitudinal axis of the infuser container to transform the first plurality of orientations into the second plurality of orientations is known in the beverage apparatus art.
Further regarding Claim 1, the limitations “for making beverage by immersing an infusible material in a liquid” and “wherein said beverage container and said infuser container are configured to permit placing said infuser container substantially vertically oriented in one of the first plurality of spatial orientations and moving said infuser container in said one of the first plurality of spatial orientations substantially vertically downward so that said infuser container assumes a lower stationary position relative to said beverage container in which lower stationary position said infuser container is being at least partly inserted in said beverage container through said top opening of said beverage container and in which lower stationary position said infuser container is being at least partly inserted in said beverage container through said top opening of said beverage container and in which lower stationary position said infuser container sits on said beverage container and is supported by said beverage container and wherein said beverage container and said infuser container are configured to permit placing said infuser container substantially vertically oriented in one of the second plurality of spatial orientations and moving said infuser container in said one of the second plurality of spatial orientations substantially vertically downward so that said infuser container assumes a higher stationary position relative to said beverage container in which higher stationary position said infuser container sits on said beverage container and is supported by said beverage container and wherein in said higher stationary position said bottom of said insert container is located higher than said bottom of said insert container is located in said lower stationary position and wherein one out of the first plurality of orientations can be transformed into one of the second plurality of orientations by rotating said infuser container about a central longitudinal axis of the infuser container and whereby the user when placing said infuser container in said beverage container may selectively place said infuser container in said lower stationary position by selecting one out of said first plurality of orientations of said infuser container and may selectively place said infuser container in said higher stationary position by selecting one out of said second plurality of orientations of said infuser container wherein in said lower stationary position said infusible material may be immersed in a liquid and in said higher position said infusible content may be elevated above the liquid” 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.
Further regarding Claim 1, the limitations “wherein one out of the first plurality of orientations can be transformed into one of the second plurality of orientations by rotating said infuser container about a central longitudinal axis of the infuser container and whereby the user when placing said infuser container in said beverage container may selectively place said infuser container in said lower stationary position by selecting one out of said first plurality of orientations of said infuser container and may selectively place said infuser container in said higher stationary position by selecting one out of said second plurality of orientations of said infuser container wherein in said lower stationary position said infusible material may be immersed in a liquid and in said higher position said infusible content may be elevated above the liquid” are optional limitations that are not required to be met by the prior art in view of the terms “can be” and “may selectively” and “may be.” These phrases indicates that the limitations accompanied any of these phrases are optional limitations.
Regarding Claim 2, Dixon discloses an outside perimeter of at least a section of the infuser container (vessel 2) having dimensions which are smaller than some dimensions of an inside perimeter of a section of the beverage container (vessel 1) that receives the infuser container section (vessel 2 )but larger than some other dimensions of the inside perimeter of the receiving beverage container section and in each of the first plurality of orientations each dimension of the outside perimeter of the at least a section of the infuser container (vessel 2) is aligned with a larger dimension of the inside perimeter of the receiving beverage container section so that the outside perimeter of the infuser container section is completely within the inside perimeter of the receiving beverage container section and in each of the second plurality of orientations at least one dimension of the outside perimeter of the infuser container section is aligned with a smaller dimension of the inside perimeter of the infuser container section extending beyond the inside perimeter of the receiving beverage container section (‘399, FIG. 2).
Further regarding Claim 2, the limitations “whereby said infuser container section can be inserted in the receiving beverage container section in each of the first plurality of orientations of the infuser container but cannot be inserted in each of the second plurality of orientations and whereby the infuser container having one out of the second plurality of orientations can be inserted in the beverage container for a shorter distance than the infuser container having one out of the first plurality of orientations” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 1 provided above. Additionally, these are also optional limitations by virtue of the phrase “can be” that do not necessarily need to be taught by the prior art.
Regarding Claim 3, Dixon discloses the infuser container (straining vessel 2) comprising a plurality of extension elements (notches 13 and 15) connected to a top part of the infuser container (filter insert 2) and extending downward outside the beverage container (vessel 1) and external walls of the beverage container (vessel 1) comprising at least a first plurality of matching external protruding elements (handle 14) wherein in each of the first plurality of orientations of the infuser container (straining vessel 2) the extension elements (notches 13 and 15) are not vertically aligned with the first plurality of matching protruding elements (handle 14) when the infuser container (straining vessel 2) is inserted in the beverage container and the extension elements (notches 13 and 15) can move down unobstructed (‘399, FIG. 2) and in each of the second plurality of orientations of the infuser container (straining vessel 2) the extension elements (notches 13 and 15) are vertically aligned with the first plurality of matching protruding elements (handle 14) and when the infuser container (straining vessel 2) is inserted in the beverage container (vessel 1) the extension elements (notches 13 and 15) press against the protrusion elements (handle 14) and meet resistance and downward movement of the extension elements (handle 14) is obstructed (‘399, FIG. 1) (‘399, Page 2, lines 66-86).
Further regarding Claim 3, the limitation “whereby the infuser container having one out of the second plurality of orientations can be inserted in the beverage container for a shorter distance than the infuser container having one out of the first plurality of orientations” are optional limitations that do not necessarily need to be met by the prior art by virtue of the phrase “can be.”
Regarding Claim 4, the combination of Dixon modified with Riensch & Held discloses the infuser container (filter insert 2) being capable of permitting an independent rotation of the infuser container (filter insert 2) (‘743 Machine Translation, Page 5) and the plurality of extension elements (handle 14) (‘399, Page 2, lines 57-65).
Regarding Claim 5, Dixon discloses means being provided to prevent the infuser container in the higher stationary position from sliding sideways wherein the means is protrusions (notch 15) surrounding the top opening of the beverage container (‘399, FIG. 1) (‘399, Page 2, lines 66-86).
Regarding Claim 6, Dixon discloses the beverage container (vessel 1) comprising a handle (handle 14) (‘399, FIGS. 1-2) (‘399, Page 2, lines 57-65).
Regarding Claim 7, Dixon discloses the infuser container (straining vessel 2) comprising a lid (top 4) (‘399, FIGS. 1-2) (‘399, Page 2, lines 13-21).
Regarding Claim 8, Dixon discloses a lid (top 4) (‘399, FIGS. 1-2) (‘399, Page 2, lines 13-21).
Regarding Claim 9, the limitations “wherein said infuser container is adapted to be used in combination with a variety of existing vessels serving as beverage containers and wherein said beverage container is an existing vessel available to a user” reads on any infuser container such as the one disclosed by Dixon since this infuser container is an existing vessel available to a user.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Chen US 6,405,638 discloses an apparatus for making beverages comprising a substantially rigid frame liquid impermeable beverage container and a detachable infuser container having a rigid frame body wherein a means is provided to prevent the infuser container from sliding sideways wherein the means is a protrusion (pivot lugs 107) surrounding the top opening of the beverage container (‘638, FIG. 2) (‘638, Column 2, lines 34-50).
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Post US 3,657,994 discloses an apparatus for making beverage comprising a liquid impermeable beverage container and a detachable infuser container (‘994, FIG. 1).
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Gross et al. US 2016/0296062 discloses an apparatus for making beverage comprising a substantially rigid frame liquid impermeable beverage container (bucket 600) and a detachable infuser (filter basket 601) (‘062, FIGS. 7-8) (‘062, Paragraph [0038]).
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Van Voorhis et al. US 2018/0255958 discloses an apparatus comprising a beverage container and a detachable infuser container (brew basket 32) (‘958, Paragraph [0041]).
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/ERICSON M LACHICA/Examiner, Art Unit 1792