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 .
Information Disclosure Statement
The information disclosure statements filed 03 December 2023 fail to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein and struck through has not been considered unless listed on the PTO 892 form.
Drawings
The drawings are objected to because partial views intended to form one complete view have not been identified by the same number followed by a capital letter. Partial views intended to form one complete view must be identified by the same number followed by a capital letter, for example ‘FIG. 4A’. ‘FIG. 4B’, and ‘FIG. 4C’ (MPEP § 608.02V.(u)). .
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the filter as recited in claims 21 and 22 must be shown or the features canceled from the claims. No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 23 and 29 objected to because of the following informalities:
Regarding claim 23, claim 23 recites “the at least one cellulose material is selected from.” This should be amended to recite, ‘the at least one cellulose material is selected from the group consisting of’.
Claim 29 recites “wherein the liquid foodstuff is beverage”. It would appear the claim should recite ‘wherein the liquid foodstuff is a beverage’.
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 is: squeeze seal in claim 16.
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.
Claims 14 – 29 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.
Regarding claim 14, there is no antecedent basis for the term “the foodstuff”.
Regarding claim 14, it is unclear if “the open side of the cavity” is the same cavity as the “a cavity open on one side” recited in line 2 or some other open side of some other cavity.
Regarding claim 14, it is unclear if “the base body” recited in line 5 is the same as the “a capsule-shaped base body” recited in line 2 or some other base body heretofore not previously recited.
Regarding claim 16, there is no antecedent basis for the term “the base body”.
Regarding claim 17, there is no antecedent basis for the term “the base body”.
Regarding claim 19, it is unclear if “the cavity” is the same as the “a cavity open on one side” or some other cavity not heretofore previously unrecited.
Regarding claim 20, there is no antecedent basis for the term “the base body”.
Regarding claim 20, there is no antecedent basis for the term “the open side”.
Regarding claim 20, the term “substantially” is a relative term which renders the claim indefinite. The term “substantially” 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.
Regarding claim 21, it is unclear if “the cavity” is the same as the “a cavity open on one side” or some other cavity not heretofore previously unrecited.
Regarding claim 21, there is no antecedent basis for the term “the open side”.
Regarding claim 22, there is no antecedent basis for the term “the base body”.
Regarding claim 27, claim 27 recites “the animal protein binder is selected from at least one of” making it unclear whether or not the applicant is intending to recite a Markush group. If the applicant intends the claim to recite a Markush group the claim should properly recite ‘the animal protein binder is selected from the group consisting of’. By reciting “at least one of” the claim language appears to be open ended as with “comprising” language allowing elements not recited in the claim to also be present.
Also, the claim 27 limitation, “the animal protein binder” also lacks proper antecedent basis.
Regarding claim 28, claim 28 recites “the vegetable protein binder is selected from at least one of” making it unclear whether or not the applicant is intending to recite a Markush group. If the applicant intends the claim to recite a Markush group the claim should properly recite ‘the vegetable protein binder is selected from the group consisting of’. By reciting “at least one of” the claim language appears to be open ended as with “comprising” language allowing elements not recited in the claim to also be present.
Regarding claim 28, it is unclear how claim 28 would be a vegetable protein binder when claim 27, from which claim 28 depends, requires the binder to be an animal protein binder. Based on this dependency and that both claims 27 and 28 recite “selected from at least one of . . .”, it appears the claims are intended to be construed as reciting comprising language and for the purposes of examination the claims have been treated as such.
Also, the claim 28 limitation, “the vegetable protein binder” also lacks proper antecedent basis.
Claims 15, 18, 24 – 26, and 29 are rejected by virtue of their dependence on a rejected base claim.
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 14, 15, 17 and 23 – 29 are rejected under 35 U.S.C. 103 as being unpatentable over K-fee systems EP 3 656 700 (see translation) in view of Schmidt et al. US 2017/0342261 as further evidenced by Thibado US 2017/0144813.
Regarding claims 14, 26, and 29, K-fee discloses a container capable of preparing a liquid foodstuff (coffee) (paragraph [0006]) which comprises a capsule-shaped base body (2) with a cavity open on one side (fig. 1), into which cavity a powder (coffee) is filled, and a lid (4) with which the open side of the cavity is closed (paragraph [0038]).
K-fee further discloses the capsule-shaped base body would be made of a compostable material which would comprise gelatin, cellulose, and/or a mixture of both (paragraph [0008]) as well as water (1%) (paragraph [0013]) and a salt (paragraph [0016]). Because K-fee discloses (paragraph [0008]) that the body can consist of gelatin, cellulose, and/or mixtures thereof, when gelatin is selected, the K-fee teaches 100% gelatin and 0% cellulose and in the alternative when cellulose is selected the K-fee teaches 100% cellulose and 0% gelatin, therefore taken as a whole K-fee suggests 0-100% gelatin and 0-100% cellulose and that the gelatin and cellulose can be used in combination within the claimed ranges, that is 10 – 90% by weight of at least one protein binder and 2 – 75% cellulose.
Claim 14 differs from K-fee in the specific weight of the at least one salt.
Schmidt discloses that the addition of salts (magnesium silicate - talc) in the form of a nucleating agent was common and conventional when making a biodegradable, i.e., a compostable composition and that a preferred concentration would be 5% by weight (paragraph [0070]). As further evidenced by Thibado the addition of these salts (talc) as nucleating agents when making compostable materials, and in particular food packaging containers, which is what the capsule-shaped base body is, accelerates the crystallization of said material from which the packaging is made, to add strength thereto, and that an appropriate amount of such salts would be between 1 and about 10% by weight. To therefore modify K-fee if required to use an amount of salt between 0.3 and 15% by weight as claimed to accelerate the crystallization of the compostable material as taught by Schmidt as further evidenced by Thibado would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Regarding claim 15, K-fee discloses the lid would comprise the same compostable material as the base body (paragraph [0009]).
Regarding claim 17, K-fee discloses the base body would have a circumferential flange (7) (paragraph [0038]) which circumferential flange would act as a sealing ring or sealing lip.
With respect to the remaining recitations beginning “a sealing effect is achieved between the container and a wall of a receiving space of a machine for preparing the liquid foodstuff” these are seen to be recitations regarding the intended use of the container capable of preparing a liquid foodstuff.
In this regard applicant’s attention is invited to MPEP 2114 which states that “an apparatus must be distinguished from the prior art in terms of structure rather than function”. That is to say, apparatus claims cover what a device is, not what a device does. If the body of a claim fully and intrinsically sets forth all the limitations of the claimed invention, and then further limitations merely state, for example, the purpose or intended use of the invention, rather than any distinct structural definition of any of the claimed invention’s structural limitations, then any limitations regarding the intended use of the device are of no significance to claim construction. 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 claim which K-fee in view of Schmidt as further evidenced by Thibado obviously does. Further, if the prior art structure is capable of performing the intended use, then it meets the claim.
It is The Office’s position that the further limitations do not state any distinct definition of any of the claimed invention’s limitations and further that the purpose or intended use, i.e. “a sealing effect is achieved between the container and a wall of a receiving space of a machine for preparing the liquid foodstuff”, recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art, that is K-fee in view of Schmidt as further evidenced by Thibado and further that the prior art structure, which is identical and/or obvious in view of the prior art to that set forth in the present claims is capable of performing the recited purpose or intended use.
Regarding claim 23, K-fee discloses the cellulose material would be cellulose fibers (paragraph [0026]).
Regarding claim 24, K-fee discloses the at least one protein binder would comprise an animal protein (paragraph [0011]).
Regarding claim 25, K-fee discloses the at least one protein binder would comprise a vegetable protein binder (vegetable gelatin) (paragraph [0011]).
Regarding claim 27, K-fee discloses the animal protein binder would be gelatin (paragraph [0011]).
Regarding claim 28, K-fee in view of Schmidt as further evidenced by Thibado discloses the vegetable protein binder would be sunflower (‘261, paragraph [0071]).
Claims 16, 18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over K-fee systems EP 3 656 700 (see translation) in view of Schmidt et al. US 2017/0342261 as further evidenced by Thibado US 2017/0144813 in view of Aspira nonfood DE 20 2021 100 033 (see translation).
Claim 16 differs from K-fee in view of Schmidt as further evidenced by Thibado in the lid being fastened to the base body by means of a squeeze seal.
Aspira discloses a container (capsule 10) capable of preparing a liquid foodstuff which comprises a capsule-shaped base body (housing 12) with a cavity open on one side into which cavity a powder (coffee) (paragraph [0010]) of the foodstuff would be filled and a lid (14) with which the open side of the cavity would be closed (paragraph [0029] and fig. 1). Aspira further discloses the lid would be fastened to said body by means of a squeeze seal (sealing ring 26). Aspira is using a squeeze seal for the art recognized function of in order to simplify construction of the container by using a cost-effective design without the expense of additional sealing measures (paragraph [0044]), which is believed to be applicant’s reason for doing so as well. To therefore modify K-fee in view of Schmidt as further evidenced by Thibado and fasten the lid to the base body using a squeeze seal to simplify the design and reduce expenses as taught by Aspira would have an obvious matter of choice and/or design to the ordinarily skilled artisan.
Claim 18 differs from K-fee in view of Schmidt as further evidenced by Thibado in the lid having at least one perforation.
Aspira discloses the lid (14) of the container would have been perforated (inlet holes 14d), that said perforations would be arranged centrally within the lid (paragraph [0034] and fig. 2). Aspira further discloses that the lid comprises said perforations for the art recognized purpose of allowing an extraction fluid to be supplied very quickly and evenly to a contained beverage ingredient which would avoid the need to additionally perforate the lid and would ensure a balanced quality of coffee which is applicant’s reason for doing so as well. To therefore provide the lid of K-fee in view of Schmidt as further evidenced by Thibado with at least one perforation to ensure a balanced quality of coffee as taught by Aspira would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Claim 20 differs from K-fee in view of Schmidt as further evidenced by Thibado in the base body having a plurality of perforations on a side which is substantially opposite the open side of the base body.
Aspira discloses the base body would have a plurality of perforations (22) on a side which is substantially opposite the open side of said base body (paragraph [0032] and fig. 5) and that the function of said plurality of perforations is to allow the passage of water through the capsule without having to further pierce the base body (paragraph [0018]) which is applicant’s reason for doing so as well. To therefore modify K-fee in view of Schmidt as further evidenced by Thibado and provide the base body with a plurality of perforations on a side which is substantially opposite the open side of said base body for the art recognized function of allowing the passage of water through the capsule without having to further pierce the base body as taught by Aspira would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Claims 19, 21, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over K-fee systems EP 3 656 700 (see translation) in view of Schmidt et al. US 2017/0342261 as further evidenced by Thibado US 2017/0144813 in view of Mariller US 2011/0283891.
Claim 19 differs from K-fee in view of Schmidt as further evidenced by Thibado in the lid having at least one area with a reduced thickness, so that when a predefined pressure is applied in the cavity, the at least one area bursts open to form at least one perforation.
Mariller discloses a container capable of preparing a liquid foodstuff (coffee) (paragraph [0001]) which comprises a capsule-shaped base body (1) with a cavity open on one side (fig. 1 and 2), into which cavity a powder or extract of the foodstuff (2) is filled, a lid (5) with which the open side of the cavity is closed (paragraph [0038]), and the capsule-shaped base body would be made of a compostable material (biodegradable) (paragraph [0010] – [0017]). Mariller further discloses the lid (5) would have at least one area with a reduced thickness (membrane 4), and that when a predefined pressure is applied in the cavity, the at least one area bursts open to form at least one perforation (paragraph [0020] – [0024]). Mariller is providing the lid of the container capable of preparing a liquid foodstuff with a lid that has at least one area with a reduced thickness for the art recognized function of controlling the bursting with respect to a bursting zone as well as making bursting of the lid easier which is applicant’s reason for doing so as well. To therefore modify the lid of K-fee in view of Schmidt as further evidenced by Thibado and provide at least one area with a reduced thickness to better control the bursting and dispensing of a liquid foodstuff as taught by Mariller would have been an obvious matter of design and/or choice to the ordinarily skilled artisan.
Regarding claim 21, K-fee in view of Schmidt as further evidenced by Thibado in view of Mariller disclose the open side of the cavity would be closed with a filter (3) which is arranged below the lid (4/5), i.e., on the interior side of the cavity (‘891, paragraph [0017] and fig. 1 and 2).
Regarding claim 22, K-fee in view of Schmidt as further evidenced by Thibado in view of Mariller discloses the filter would be made of the same compostable material as the base body (gelatin and cellulose) (‘700, paragraph [0031]).
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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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.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 24 September 2025
/VIREN A THAKUR/Primary Examiner, Art Unit 1792