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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05 August 2025 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 1 – 4, 7, 8 – 13, 15, and 17 – 23 are rejected under 35 U.S.C. 103 as being unpatentable over Oh US 2020/0121115 as further evidenced by Richardson US 2019/0191913 in view of Murphy et al. US 2019/0053657 as further evidenced by Cheng et al. US 2005/0178793 in view of Rondelli US 2014/0255563 as further evidenced by Halliday US 2004/0177765.
Regarding claims 1, 2, 7, 21, 22, and 23, Oh discloses a method of producing a finished beverage (simulate cold brew), which method comprises providing a capsule extraction cell which cell has a bottom portion and a top portion (fig. 6A and 6B) and the capsule extraction cell holds an extraction material (coffee). The bottom portion of the capsule extraction cell would be pierced with a needle (‘115, fig. 6B, 8A-8D, (392C, 408) (paragraph [0130], fig. 6B and [0137], fig. 8B) and a first flow of the extraction medium (fluid) from a source of the extraction medium (tank 702) would be pumped (paragraph [0171]) from said source, which is to say, a first flow of extraction medium (water) would be introduced through the capsule extraction cell to form an extract (paragraph [0013]) and dispensed into a cup (mug 438) (paragraph [0165]). Oh further discloses that any of the embodiments taught therein would be combinable by the ordinarily skilled artisan and that a produced concentrate (concentrated coffee) would be diluted for consumption (paragraph [0096]) which is to say that a second flow of extraction medium would be used to produce a finished beverage. Further, since the first flow of extraction medium would be pumped to create the beverage extract in a cup it would have been obvious to pump the second flow of extraction medium from the source of the extraction medium directly into the cup to dilute the concentrate and produce the finished beverage as well.
Richardson provides further evidence that it was common and conventional to pump a first flow of an extraction medium from a source of the extraction medium to introduce the first flow of said medium through an extraction cell to form an extract (cold brewing) (paragraph [0270]) and to further dilute the extract produced to provide a finished beverage (paragraph [0320]).
Claim 1 differs from Oh in the bottom portion of the capsule extraction cell being an inlet for the first flow of the extraction medium, the extract having a concentration more than 3.0 Brix; and diluting the extract with a second flow of extraction medium to form the finished beverage, maintaining the extraction material at a temperature of less than 30° C, and withdrawing the extract upward through a filter at the top portion of the extraction cell.
Murphy discloses a method of producing a finished beverage, which method comprises providing a capsule extraction cell having a bottom portion and a top portion (100/200), the capsule extraction cell holds an extraction material (ground coffee 221) (paragraph [0025] – [0026]), a first flow (231) of extraction medium (water) is introduced through the bottom portion of the capsule extraction cell, the flow rate of first extraction medium flows continuously upwardly (, i.e., a constant velocity, or plug flow) through the capsule extraction cell from the bottom portion of said cell to the top portion of said cell (‘657, paragraph [0015], [0035]), and the extraction material is maintained at a temperature less than 30 °C (10º C) (paragraph [0025]).
To prepare the finished beverage Murphy discloses the extract would be diluted with a second flow of extraction medium to form the finished beverage (additional beverage components such as . . . water . . . to prepare cold brew Americanos) (paragraph [0050]). Murphy further discloses the extract would have a concentration more than 3.0 Brix, where Brix =
T
D
S
.
85
, the coffee extract would have a TDS of 120 g/L, that is a yield of 12% which calculates to a brix of 14.11 (paragraph [0051]). Murphy further discloses that a filter (105) is positioned adjacent to the outlet of said extraction cell (107) and that the extract within said cell would be expelled therefrom(paragraph [0019] – [0021]).
Murphy is providing a continuous upward flow of the first flow of extraction medium through the extraction cell to prevent mixing between adjacent fluid layers as well as to prevent channeling which would be associated with uneven extraction and is maintaining a lower temperature to increase the concentration to produce a beverage with a stronger, bolder more intense flavour without sacrificing overall yield. To therefore modify Oh as further evidenced by Richardson and substitute the method of Murphy to avoid uneven mixing of adjacent fluid layer and to prevent channeling as well as to increase the concentration and yield to produce a finished beverage with a more intense flavour while the extraction material is maintained at a temperature less than 30 °C would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Regarding a specific first flow rate in milliliters/minute and a second flow rate being greater than the first flow rate, Oh as further evidenced by Richardson in view of Murphy discloses that where a given flow rate is too high, the extraction solvent can exploit irregularities within the interstitial spaces of an extraction material forming channels in said material. Similarly, where the flow rate is too low, the velocity of solvent would be insufficient to avoid mixing between layers of extraction medium which is to say that the desired flow rate would be affected by the flow rate and the geometry of the extraction cell and the contents, that is the extraction material, contained therein (‘657, paragraph [0035]). Stated somewhat differently, it is seen that Oh as further evidenced by Richardson in view of Murphy is disclosing the specific flow rates, i.e., the first flow rate and the second flow rate would be result effective variables. Once it was known that the flow rates would be a result effective variable differences in the specific flow rates such as the second flow rate being greater that the first flow rate will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such flow rates are critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages. It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions (MPEP § 2144.05.II.A.).
Nevertheless, Cheng provide further evidence that when working with concentrated extracts (coffee) (paragraph [0054]) the flow rate would be dependent on factors such as the viscosity, desired flow rate, the amount of material contained in the cell (compartment) and that suitable flow rates for smaller cells (50 ml) would be 20 ml t0 35 ml (paragraph [0047] – [0050]).
As set forth above in the rejection Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng discloses all the limitations of claim 1. It is The Offices position that since Oh discloses that any of the embodiments taught therein would be combinable by the ordinarily skilled artisan and that a produced concentrate (concentrated coffee), i.e., a concentrate produced from a capsule extraction cell, would be diluted for consumption (paragraph [0096]) which is to say that a second flow of extraction medium would be used to produce a finished beverage and that since the first flow of extraction medium would be pumped to create the beverage extract in a cup it would have been obvious to pump the second flow of extraction medium from the source of the extraction medium directly into the cup to dilute the concentrate, bypassing the spent extraction material and produce the finished beverage as well.
In the event that claim 1 can be construed as differing from Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in the second flow of the extraction medium being pumped from the source of the extraction medium and regarding claims 21 and 22, Rondelli discloses a method of producing a finished beverage comprising providing a capsule extraction cell (7) (paragraph [0029]) holding an extraction material (coffee) (paragraph [0049]). A first flow of an extraction medium is pumped from a source (tank 2) of the extraction medium with a first pump, a second flow of an extraction medium is pumped with a second pump (provide each channel with its own pump) (paragraph [0045]). The first flow of the extraction medium flows along a first fluid line (56) and the second flow of the extraction medium flows along a second fluid line (57) (paragraph [0041]). Rondelli is providing a first pump to pump a first flow of an extraction medium and a second pump to pump a second flow of an extraction medium where the first flow of the extraction medium flows along a first fluid line and the second flow of the extraction medium flows along a second fluid line for the art recognized purpose of selecting for each channel the flow rate of water as well as to improve the organoleptic properties and the overall infusion process. To therefore modify Oh as further evidenced by Richardson in view of Murphy in view of Rondelli and provide a first pump to pump a first flow of an extraction medium and a second pump to pump a second flow of an extraction medium where the first flow of the extraction medium flows along a first fluid line and the second flow of the extraction medium flows along a second fluid line as taught by Rondelli would have been an obvious matter of choice and/or design for the ordinarily skilled artisan. Halliday provides further evidence that it was conventional and well established in the art to introduce a flow of extraction medium from a source of the extraction medium and withdraw the extract upward through a filter at the top portion of the extraction cell in order to provide consistency of dissolution, i.e., wetting of the beverage ingredient (paragraph [0107]).
Regarding claim 3, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday discloses the extract would have a temperature of 10º C (‘657, paragraph [0025]).
Regarding claim 4, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday discloses the extract would be withdrawn from the capsule extraction cell within less than 3 minutes (about 1 minute) of introducing of the first flow of extraction medium into the capsule extraction cell (‘657, paragraph [0051]).
Regarding claim 8, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday discloses the flow rate of extraction medium exhibits a substantially continuous flow upwardly through the extraction cell from the bottom portion to the top portion, i.e., a constant velocity, or plug flow (‘657, paragraph [0015], [0035]).
Regarding claim 9, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday discloses that the particular flow rate would be tailored to suit the parameters of the desired extraction and that various factors must be taken into account such as, if the flow rate is too high channeling in the extraction material would occur, if the flow rate is too low the velocity of the extraction medium would be insufficient to induce plug flow, and the flow rate can be affected by the geometry of the extraction cell, the size of the extraction cell, the particle size of the extractable material contained therein, the diameter of the filter, and the aperture size thereof (‘657, paragraph [0035] and [0041]), which is to say that the flow rate is a result effective variable which the ordinarily skilled artisan would conventionally and routinely optimize based on the capsule geometry and the contained extractable material (MPEP § 2144.05.II.A.). Therefore, the particular flow rate one would choose to employ would have been an obvious matter of choice and/or design based on the geometry of the particular capsule extraction cell, the extractable material contained therein, as well as the desired extraction time. Further, as set forth above Cheng provides further evidence that when working with concentrated extracts (coffee) (paragraph 0054]) the flow rate would be dependent on factors such as the viscosity, desired flow rate, the amount of material contained in a cell (compartment) and that suitable flow rates for smaller cells (50 ml) would be 20 ml to 35 ml (paragraph [0047] – [0050]).
Regarding claim 10, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday discloses the capsule extraction cell comprises a first portion (103/203) and a second portion (106/206), wherein the first flow of extraction medium is introduced at the first portion of the capsule extraction cell at a first flow rate (‘657, paragraph [0025] – [0033]). Further, since the first flow of extraction medium flows continuously (constant flow velocity) (plug flow) through the capsule extraction cell, such that a flow rate of the first flow of extraction medium does not change more than 80% from the first flow rate from the first portion to the second portion (‘657, paragraph [0015]).
Regarding claim 11, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday discloses the capsule extraction cell comprises a first portion (103/203) and a second portion (106/206). The first flow of extraction medium is introduced at the first portion of the capsule extraction cell, and the extract is withdrawn from the second portion of the capsule extraction cell (removed through . . . the second portion) (‘657, paragraph [0019]) and the first portion is a bottom portion of the capsule extraction cell and the second portion is a top portion of the capsule extraction cell (‘657, paragraph [0013]).
Regarding claim 12, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday discloses the first portion would have a first cross-sectional width and a first cross-sectional area, the second portion would have a second cross-sectional width and a second cross-sectional area, that the capsule extraction cell has a side wall extending between the first portion and the second portion, and the side wall would have a length, and the first cross-sectional width would be greater than the second cross-sectional width, wherein the first cross-sectional area is greater than the second cross-sectional area (‘115, fig. 3C). Further Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday disclose the capsule extraction cell would have an aspect ratio of the length to the second cross-sectional width (aspect ratio) that would be between 0.75:1 to 2:1 (‘657, paragraph [0014]).
Regarding claim 13, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday discloses a filter would be positioned at the second portion of the capsule extraction cell. Since the second portion (top portion) of the capsule extraction cell has an area that is about 10% of the cross-sectional area of the second portion, i.e., the outlet, and the filter would be positioned in the outlet it is obvious that the filter would have an area that is 10% to 20% of a cross-sectional area of the second position of the capsule extraction cell (‘657, paragraph [0021] and [0068]).
Regarding claim 15, Oh discloses the capsule extraction cell would hold between 10 grams to 20 grams (12 – 18 grams) of the extraction material (paragraph [00114]).
Regarding claim 17 Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday disclose the capsule extraction would be sealed with a gasket (409) (‘115, paragraph [0137] and fig. 8B).
Regarding claim 18, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday disclose the capsule extraction cell as claimed. Once it was known to provide a capsule extraction cell it is not seen that patentability would be predicated on the particular size, that is the dimensions of the capsule extraction cell. Limitations relating to the size of the capsule extraction cell would not be sufficient to patentably distinguish over the prior art capsule extraction cell. The mere scaling up or down of the relative dimensions of the claimed dimensions of said cell capable of being so scaled, if such were the case, would not establish patentability in a claim to an old capsule extraction cell so scaled. Where the only difference between the prior art cell and the claimed cell is a recitation of the relative dimensions of the claimed capsule extraction cell and a capsule extraction cell having the claimed relative dimensions would not perform differently than the prior art capsule extraction cell, the capsule extraction cell is not patentably distinct from the prior art cell (MPEP § 2144.04 IV.A.).
Regarding claim 19, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli discloses the capsule extraction cell would be cylindrical (‘657, paragraph [0013]).
Regarding claim 20, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday discloses the pressure of an interior of the capsule extraction cell would be between 0.5 bar(g) and 2.5 bar(g) (0.8 bar(g)) (‘657, paragraph [0072]) (1 bar) (‘115, paragraph [0141]).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Oh US 2020/0121115 as further evidenced by Richardson US 2019/0191913 in view of Murphy et al. US 2019/0053657 as further evidenced by Cheng et al. US 2005/0178793 in view of Rondelli US 2014/0255563 as further evidenced by Halliday US 2004/0177765 in view of Schat et al. US 2018/0213824 as further evidenced by Angell et al. US 2018/0098658.
Claim 5 differs from Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday in further infusing the extract with nitrogen.
Schact discloses that the infusion of nitrogen into a finished single serving beverage (cold brew coffee) (paragraph [0019]) would produce an individualized/customized finished beverage having a silkier texture, creamier flavour, produce a greater volume of foam (paragraph [0015] and [0017]) in a serving-by-serving basis, and enhance the overall customer experience by providing individually infused portions for each customer (paragraph [0018] and [0045]). To therefore modify Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday and infuse the finished beverage with nitrogen as taught by Schat to enhance the customer experience would have been an obvious matter of choice and/or design to the ordinarily skilled artisan. Angell provides further evidence that it was common and well established in the art to infuse a finished beverage with nitrogen (paragraph [0044]).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Oh US 2020/0121115 as further evidenced by Richardson US 2019/0191913 in view of Murphy et al. US 2019/0053657 as further evidenced by Cheng et al. US 2005/0178793 in view of Rondelli US 2014/0255563 as further evidenced by Halliday US 2004/0177765 as further evidenced by Koch EP 0844195.
Regarding the ground coffee having a specific particle size between 200 µm to 400 µm, generally, differences in particle size will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such particle size is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages. It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions (MPEP § 2144.05.II.A.). In any event, Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday discloses that the level of grind, that is particle size, would have an effect on extraction and that extraction would proceed more quickly when fine particle sizes are used (paragraph [0026]) which is to say that the particle size of the ground coffee is a result effective variable which the ordinarily skilled artisan would have conventionally and routinely optimized based on the type/style of coffee one would choose to extract and it therefore would have been on obvious matter of choice and/or design to choose a particle size based on the particular type of coffee one would desire to extract as well as the desired extraction time. Koch provides further evidence that the standard median particle size for finely ground coffee would be between 200 µm to 400 µm (translation page 2, paragraph 4).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Oh US 2020/0121115 as further evidenced by Richardson US 201/0191913 in view of Murphy et al. US 2019/0053657 as further evidenced by Cheng et al. US 2005/0178793 in view of Rondelli US 2014/0255563 as further evidenced by Halliday US 2004/0177765 in view of Mahlich US 2012/0070543.
Claim 14 differs from Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday in a filter positioned at the second portion of the capsule extraction cell where the filter has a weight of 30 G/M2 to 100 G/M2.
Mahlich discloses a capsule extraction cell holding an extraction material into which a flow of extraction medium would be introduced through said cell to form an extract and the capsule extraction cell would have a filter positioned at a second portion thereof (paragraph [0009]). Mahlich further discloses the filter would have a (basis) weight of 30 G/M2 to 100 G/M2 (40 G/M2 to 100 G/M2) (paragraph [0012]). Mahlich is employing a filter with a weight of 30 G/M2 to 100 G/M2 arranged at the second position of the capsule extraction cell in order to lower the cost of production and to and improve the outflow behaviour when said cell is used to produce an extract (paragraph [0010]). To therefore modify Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday and employ a filter with a weight of 30 G/M2 to 100 G/M2 arranged at the second position of the capsule extraction cell in order to lower the cost of production and to and improve the outflow behaviour as taught by Mahlich would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Response to Arguments
Applicant's arguments filed 05 August 2025 have been fully and carefully considered but they are not found persuasive.
Applicant urges that the Office Action has not established that the cited art teaches or suggests “withdrawing the extract upward through a filter at the top portion of the extraction cell”. This urging is not deemed persuasive.
Oh as further evidenced by Richardson in view of Murphy as further evidenced by Cheng in view of Rondelli as further evidenced by Halliday the prior art taken as a whole clearly teaches that the extract would be withdrawn upward through a filter (105) at the top portion (107) of the extraction cell (‘657, paragraph [0022]).
Applicant urges that Oh does not disclose the extract would be withdrawn upward through a filter at the top portion of the extraction cell or that there would be a filter at said top portion through which extract can be withdrawn upward or that Oh has not discloses a second flow rate greater than the first. These urgings are not found persuasive.
Had Oh taught all the limitations of the claims a rejection under 35 U.S.C. 103 would not have been necessary as a rejection under 35 U.S.C. 102 would have ensued.
With respect to the extract being withdrawn upward through a filter at the top portion of the extraction cell, these limitations have been clearly and unequivocally taught by Murphy. With respect to the flow rates, as set forth above Oh as further evidenced by Richardson in view of Murphy discloses that where a given flow rate is too high, the extraction solvent can exploit irregularities within the interstitial spaces of an extraction material forming channels in said material. Similarly, where the flow rate is too low, the velocity of solvent would be insufficient to avoid mixing between layers of extraction medium which is to say that the desired flow rate would be affected by the flow rate and the geometry of the extraction cell and the contents, that is the extraction material, contained therein (‘657, paragraph [0035]). Stated somewhat differently, it is seen that Oh as further evidenced by Richardson in view of Murphy is disclosing the specific flow rates, i.e., the first flow rate and the second flow rate would be result effective variables which the ordinarily skilled artisan would regularly and routinely adjust based upon the conditions of the extract and Cheng has provided further evidence that when working with concentrated extracts the flow rate would be dependent on factors such as the viscosity, desired flow rate, the amount of material contained in the cell and that suitable flow rates for smaller cells would be 20 ml t0 35 ml.
Applicant urges Cheng for all that is not taught when Cheng, as set forth above, was brought to provide further evidence that it was common and conventional to control the flow rate to dilute an extract when working with concentrated extracts.
Applicant urges that Rondelli is disclosing a method of preparing a beverage with two infusions. This urging if not deemed persuasive.
Rondelli was not brought to teach all the limitations of the claims but to teach that it was conventional and well established in the art to employ multiple pumps to produce a finished beverage.
Further, applicant is urging each of the references separately for what each does not teach when the rejections have been made over a combination of references. Had any of the references taught all the limitations of the claims a rejection under 35 U.S.C. 103 would not have been necessary as a rejection under 35 U.S.C. 102 would have ensued.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant urges the rejections rely on improper hindsight. This urging is not found persuasive.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to please telephone the Examiner.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/C.S./
Chaim SmithExaminer, Art Unit 1791 21 September 2025
/VIREN A THAKUR/Primary Examiner, Art Unit 1792