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 1-14 are objected to because of the following informalities: The claims are generally narrative and indefinite, failing to conform with current U.S. practice. They appear to be a literal translation into English from a foreign document and are replete with grammatical and idiomatic errors. Non limiting examples include:
Claims 2-6 recite “Beverage portion dispenser…”, instead of recited “The beverage portion dispenser…”.
Claims 7 and 11 are grammatically incorrect in stating “Casing holding a flexible portioning band…” and “System of a beverage portion dispenser…”.
Claim 6 recites “wherein the collecting chamber is devoid of bottom wall”.
Applicant is also advised to remain consistent with claim terminology throughout all claims to avoid confusion during interpretation thereof. For example, claim 1 recites “beverage precursor portions” in line 2 of the claim, then refers to merely a “portion” in line 7 of the claim. Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that use the word “means” or “step” but are nonetheless not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph because the claim limitation(s) recite(s) sufficient structure, materials, or acts to entirely perform the recited function. Such claim limitation(s) is/are: “means” in claim 14.
Because this/these claim limitation(s) is/are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are not being interpreted to cover only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
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.
GROUND 1: Claims 1-6 and 10-14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 11 recite the limitation "sealed beverage precursor portion" in line 6 and line 7, respectively, of each claim. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the guiding member" in line 2 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "their rotating surfaces" in line 3 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claims 2-6 are rejected as being necessarily dependent upon claim 1 and claims 12-14 are rejected as being necessarily dependent upon claim 11.
Claim 10 recites the limitation "the same cut out" in line 2 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites:
System of a beverage portion dispenser arranged for dispensing beverage precursor portions, said portions being individually contained in a flexible portioning band, said band being held in a casing, said dispenser comprising: a receiving area for receiving and holding the casing, a band drive assembly arranged for taking the band out of the casing and for moving successively each sealed beverage precursor portion to a separating assembly, a separating assembly configured to individually separate each portion from the band, a collecting chamber configured to store the band separated from the portion, and a pushing member configured to push the whole band out of the collecting chamber to the receiving area and a casing holding a flexible portioning band, said band containing a plurality of individually sealed beverage precursor portions and said casing comprising a top wall, said top wall comprising a front part and a rear part, wherein: said top wall comprises an aperture, said aperture being positioned in the front part of the top wall, and the rear part of the top wall is configured to be openable under the application of an inwardly oriented force, wherein when the casing is held inside the receiving area, the rear part of the top wall is positioned below the collecting chamber.
(emphasis added)
Claim 11 recites the limitation "sealed beverage precursor portion" in line 6 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Furthermore, the current claim language leads to confusion as to how many different “casings”, “bands” and “precursor portions” are being defined within the claim. The claim currently recites two separate casings and portioning bands that contain a plurality of different precursor portions. Thus, it is unclear which “casing” comprises an aperture as claimed (see lines 15-19). It is unclear what the Applicant is attempting to claim.
Claims 12-14 are rejected as being necessarily dependent upon claim 11.
The term “sufficient” in claim 13 is a relative term which renders the claim indefinite. The term “sufficient” 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 unclear from the claim and/or specification what is considered to be “sufficient” to support the weight of the band, but not “sufficient” to resist pressure of the pushing member, as the material of the casing is not positively defined or disclosed.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
GROUND 2: Claim 4 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 4 recites “wherein the pushing member is configured to push the whole band to the receiving area” which is already recited in claim1, from which h4 is dependent upon. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
GROUND 3: Claim(s) 1-7, 11-12 and 14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent Application Publication No. 2021/022543 to Chapuis et al.
In regard to claims 1 and 4, Chapuis et al. disclose a beverage portion dispenser 40 arranged for dispensing beverage precursor portions 2, said portions being individually contained in a flexible portioning band 3, said band being held in a casing 6 (See Figs. 1-6), said dispenser comprising: a receiving area 41 for receiving and holding the casing (See Fig. 6 and para 0068), a band drive assembly 43 arranged for taking the band out of the casing and for moving successively each sealed beverage precursor portion to a separating assembly (see Figs. 7-10 and pars 0069-0076), a separating assembly 44 configured to individually separate each portion from the band (See Fig. 12 and paras 0077-0086), a collecting chamber 95 configured to store the band separated from the portion (See Figs. 19-21 and paras 0087-0091), and a pushing member 97 configured to push the whole band out of the collecting chamber to the receiving area (See para 0090).
In regard to claims 2 and 14, Chapuis et al. disclose a beverage portion dispenser, wherein said dispenser comprises a guiding member 70 to guide the band separated from the portion to the collecting chamber (See Figs. 19-21 and para 0087).
In regard to claim 3, Chapuis et al. disclose a beverage portion dispenser, wherein the guiding member comprises two rollers 45 arranged to move the flexible band between their rotating surfaces (See Figs. 7-10 and 22-23 and para 0069). In view of the lack of clarity of claim 3 (See GROUND 1 above), Chapuis et al. disclose a dispenser comprising more than one roller 45.
In regard to claim 5, Chapuis et al. disclose a beverage portion dispenser,
wherein the receiving area is positioned below the collecting chamber (See Figs. 19-21).
In regard to claims 6 and 12, Chapuis et al. disclose a beverage portion dispenser, wherein the collecting chamber is devoid of bottom wall (See Figs. 1 and 5). As broadly as claimed, window 13 provided along one side of the casings meets the current lmitiosn of the recited claims, in view of the fact that the claims fail to positively define any side, top, or bottom of the casing.
In regard to claims 7 and 11, Chapuis et al. disclose a casing 6 holding a flexible portioning band 3, said band containing a plurality of individually sealed beverage precursor portions 2 and said casing comprising a top wall 10, said top wall comprising a front part and a rear part, wherein: said top wall comprises an aperture 15, said aperture being positioned in the front part of the top wall, and the rear part of the top wall is configured to be openable under the application of an inwardly oriented force (See Figs. 1 and 4-5 and paras 0053-0057). With regard to the limitation “the top wall is configured to be openable under the application of an inwardly oriented force”, 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.
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 (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 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.
GROUND 4: Claim(s) 8-10 and 13 are is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2021/022543 to Chapuis et al.
In regard to claims 8-10 and 13, Chapuis et al. disclose a casing holding a flexible portioning band 3, said band containing a plurality of individually sealed beverage precursor portions 2 and said casing comprising a top wall 10, said top wall comprising a front part and a rear part, wherein: said top wall comprises an aperture 15, said aperture being positioned in the front part of the top wall (See rejections above) but are silent with respect to wherein the rear part is made of a material that is more fragile than the rest of the casing and/or a part of the rear part is weakened by the removal or the piercing of the material the top wall is made of. However, Chapuis et al. clearly teach of providing a weakening line 168 along a front wall of the casing to allow the wall to be separated into two parts (See Fig. 5 and paras 0056, 0090). As such, it would have been obvious to one skilled in the art at the time the invention was filed to modify the casing by arranging the weakening lines 168 along the top portion of the casing, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW J KASZTEJNA whose telephone number is (571)272-6086. The examiner can normally be reached M-F, 7AM--3PM.
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/MATTHEW J KASZTEJNA/Primary Examiner, Art Unit 3993