DETAILED ACTION
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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 28 August 2026 has been entered.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating
obviousness or nonobviousness.
Claims 16 – 23, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Ferrier et al. US 2013/0122153 in view of Kuhl et al. US 2019/0031873.
Regarding claims 16 and 19, Ferrier discloses a capsule (coffee pod) capable of preparing a beverage which capsule comprises a core material (ground coffee) capable of beverage preparation comprising a compacted core material (coffee), a shell is enclosing the core material, and the capsule has in a breaking strength test a maximum percentage expansion in a direction transverse to a pressing direction of at least 15% (30%) (paragraph [0016] – [0019]).
Claim 16 differs from Ferrier in the shell having a surface adjusted oxygen transmission rate of less than 50 cm3 per m2 per day per 0.21 bar. Claim 19 differs from Ferrier in the shell of the capsule being made from a hygroscopic material.
Kuhl discloses that it is particularly advantageous to make a surface of the shell, as a film (paragraph [0036]) which can be suitable for the shrink wrapping or packaging material of capsules capable of preparing a beverage from compostable materials (paragraph [0021]) to reduce consumer waste (reduction of trash mountains) (paragraph [0023]) and that it would be particularly preferred to make the material from a blend of polyvinyl alcohol and/or polyvinyl alcohol, which is known to be hygroscopic (water soluble) (paragraph [0018]), in amount of 70% in combination other compostable materials (paragraph [0009] and [0021]). This would prevent the film suitable for wrapping the shell surface from dissolving until the time of use. Kuhl also discloses that in order to further increase the shelf life of a contained beverage material the shell’s surface should have an oxygen transmission rate (low gas permeability) of less than 50 cm3 per m2 per day (1x10-4 cm3 per m2 per day) per 0.21 bar (paragraph [0032]).
Kuhl is providing a surface of the shell of a capsule capable of preparing a beverage that is hygroscopic (polyvinyl alcohol/polyvinyl alcohol copolymer) and with an oxygen transmission rate of less than 50 cm3 per m2 per day per 0.21 bar for the art recognized function of improving compostability of the shell while at the same time increasing the shelf life of the capsule and beverage material contained therein (paragraph [0023]) all of which are applicant’s reasons for doing so as well. To therefore modify Ferrier and make the shell’s surface from a hygroscopic, i.e., water absorbing material, with an oxygen transmission rate of ess than 50 cm3 per m2 per day per 0.21 bar as taught by Kuhl would have been an obvious to the ordinarily skilled artisan to provide oxygen barrier protection to the core material for beverage preparation.
Further regarding claims 19 and 20, since Ferrier in view of Kuhl has taught the shell of said capsule would be made from 70% of a very hygroscopic material as set forth in the rejection of claim 19, it would be expected that the weight of the shell would increase by at least 50% when immersed in a water bath at 100º C without pressure during 10 s.
Regarding claim 17, Ferrier in view of Kuhl discloses the capsule absorbs a maximum force in the breaking strength test of at least 25N (800 N/m perpendicular to the direction of the machine) (‘153 paragraph [0071]).
Regarding claim 18, Ferrier in view of Kuhl discloses that when the capsule is made, that is unused in a dry state, the capsule would absorb a maximum force in a breaking strength test of at least 10 N (1,800 N and 800 N) ‘(‘153 paragraph [0071]).
Regarding claims 21 and 22, since Ferrier in view of Kuhl has taught the shell of said capsule would be made from 70% of a very hygroscopic material as set forth in the rejection of claim 19, and since the core material would absorb any liquid, such as water, that the capsule would be immersed in it would be expected that the weight of the capsule would increase by at least 150% when immersed in a water bath at 100º C without pressure during 10 s.
Regarding claim 23, Ferrier in view of Kuhl discloses the thickness of the shell would be between 0.01 mm and 3.5 mm (500 µm) (paragraph [0019]).
Regarding claim 25, Ferrier discloses the shell would be made of a biodegradable material (paragraph [0032]) and the core material capable of preparing a beverage would be ground coffee (paragraph [0014]) which is to say that it would be obvious that the complete capsule would be home compostable according to at least one of the NF T 51-800 certification program and the AS 5810 certification program.
Response to Arguments
Applicant's arguments filed 28 August 2026 have been fully and carefully considered but they are not found persuasive.
Applicant urges that even if the "filtering casing" of Ferrier was made of the polymer blend having the claimed oxygen transmission rate, the filtering casing as a whole would still be permeable as a result of the stated micro perforations. Further stating that the "filtering casing", embodying the shell as currently claimed, would not exhibit the claimed oxygen transmission rate, that a pure PVOH layer as described in Kuhl would not necessarily have the oxygen transmission rate attributed to the polymer blend, and Kuhl does not suggest this as a possibility. Therefore, considering the pure PVOH layer described in Kuhl, the combination of Ferrier and Kuhl would fail to disclose the oxygen transmission rate of claim 16. These urgings are not deemed persuasive.
As set forth above in the rejections under Ferrier in view of Kuhl the shell of the capsule has not been embedded with a PVOH or a PVOH polymer blend but as a protective skin to protect the core material from oxidation and thus Ferrier in view of Kuhl reads on the claim.
Applicant urges that to apply the teaching of Kuhl (the polymer blend comprising PVOH) to the "filtering casing" of Ferrier in order to achieve the claimed the oxygen transmission rate, the filter function of Ferrier would be completely blocked by Kuhl's polymer blend film. Since the polymer blend is not water soluble, no filtering or extraction would be possible through a shell made of the blend. This urging is not found persuasive.
As set forth above in the rejections Kuhl teaches that the packaging material can be made as a film used for wrapping/packaging an article, in this case the surface of the shell of Ferrier, which would protect the contents of the shell enclosing the core material capable of beverage preparation from oxygen exposure. Should it be necessary for beverage preparation the shell’s surface film would be removable.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 23 September 2026
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
