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 .
Drawings
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 following features must be shown or the feature(s) canceled from the claim(s):
“open side,” “beverage raw material”, “cavity”, “first brewing chamber element,” and “second brewing chamber element” in claim 21;
“introduction duct” in claim 22;
“external side,” and “depression” in claim 24;
“optical sensor,” “CCD sensor,” and/or “camera” in claim 26;
“optical transmitter,” “LED”, and/or “laser diode” in claim 27;
“detection face” in claim 28; and
“rolled region” in claim 33.
No new matter should be entered.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: references numbers 108, 109, 208, and 209.
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.
Specification
The abstract of the disclosure is objected to because it uses legal phraseology (“means”, line 8); it is not in narrative form, but instead follows the format of a patent claim, with clauses separated by semicolons; and it is unclear, because “the cavity” (line 3) and “the open position and/or the closed position” (lines 10-11) lack antecedent basis, and the final clause “... in the open position and/or the closed position, is configured so that the capsule is pivotable and/or rotatable” lacks a subject. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP 608.01(b).
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The disclosure is objected to because of the following informalities:
“and or vice versa” in page 5, line 33 should read “and/or vice versa”;
“control installation” in page 5, line 27 should read “control unit,” to be consistent with the rest of the specification;
“an optical sensor for emitting electromagnetic radiation” in page 6, line, 13 should read “an optical transmitter,” to be consistent with the rest of the paragraph and claim 27 using “transmitter”;
“detection mark” in page 11, line 22 should read “identification mark”;
“mild powder” in page 13, line 34 should read “milk powder”;
“deflection mechanism 112” in page 14, line 25 is used for the Fig. 1 embodiment, but 112 is the Fig. 4 numbering;
“lever 118 as illustrated in figure 1” conflicts with lever 18 in Fig. 1; and
“2105” in page 23, line 5 should read “215”.
Appropriate correction is required.
The incorporation by reference of the international patent application PCT/EP2022/070411 and of the German patent application DE10 2021 207 768.4 is ineffective as it was added on the date of entry into the national phase, which is after the filing date of the instant application. The filing date of this national stage application is the filing date of associated PCT, in this case 7/20/2022, see MPEP 1893.03(b). Therefore, the specification amendment of 1/17/2024 to include the incorporation by reference is new matter, per MPEP 608.01(p).
Claim Objections
The following claims are objected to because of the following informalities:
Claim 21:
“21)” should read “21.”; and
“the cavity” in line 4 should read “a cavity.”
Claim 28 has no ending period (“.”). See MPEP 608.01(m).
Claim 36 recites “the single serve about a central axis” in lines 1-2, which should read “the single serve capsule about a central axis.”
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.
Regarding the term “detection means” in claim 21, the recited function is detecting the identification mark. The corresponding structure disclosed in the specification is an optical sensor, such as a CCD sensor and/or a camera (p. 6, ln. 5), and equivalent thereof.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “control unit” in claim 25.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
Regarding the term “control unit” in claim 25, the recited function is controlling the beverage preparation device at least in part as a function of the information received from the detection means. The corresponding structure disclosed in the specification is control unit 11/111 configured to compare the detected identification mark with a stored reference identification mark and, upon agreement, activate or release the pump and/or set preparation parameters such as liquid volume, pressure, and/or temperature (p. 15, lns. 8-25; p. 22, ln 29-p. 23, ln. 17), and equivalent thereof.
If applicant does not intend 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 avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 37 rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claim is a “Use” claim where the claims are drawn to the use of the method without setting forth any steps to achieve a changed use (see also MPEP 2173.05(q)).
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 21-37 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.
Claim 21 recites “the brewing chamber and the single serve capsule are configured to be non- rotating during preparation of the beverage,” and further recites “the beverage preparation device, in the open position and/or the closed position, is configured so that the single serve capsule is pivotable and/or rotatable.” Claim 21 defines the closed position as the position “in which a liquid is configured to be directed into the single serve capsule for preparing the beverage.” It is therefore unclear whether the single serve capsule is required to be non-rotating in the closed position, during preparation of the beverage, or is required to be rotatable in that same position. In addition, the claim does not specify relative to what the single serve capsule is pivotable and/or rotatable (e.g., relative to the brewing chamber or relative to the detection means). Accordingly, the metes and bounds of the claim cannot be determined. For examination purposes, the limitation is interpreted as requiring the single serve capsule to be pivotable and/or rotatable for detecting the identification mark before the liquid is directed into the single serve capsule, consistent with the specification (p. 7, lns. 17-26; p. 21, lns. 6-16).
Claim 26 recites “the detection means comprises an optical sensor and/or a CCD sensor and/or a camera,” and then recites “the optical sensor is configured to operate in a wavelength range of 100 to 400 nm, 400 to 600 nm, or 800 nm to 1nm.” Because the claim permits a detection means that includes only a CCD sensor and/or a camera, it is unclear whether the wavelength limitation applies when no optical sensor is present, or whether the claim requires an optical sensor in every case. Accordingly, the metes and bounds of the claim cannot be determined. For examination purposes, the wavelength limitation is interpreted as applying only when the detection means includes an optical sensor.
Regarding claims 28 and 29, a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 28 recites the broad recitation “1° to 360°”, and the claim also recites “1° to 180°; 1° to 90°; 1° to 45°; or 1° to 30°” which is the narrower statement of the range/limitation. Likewise, claim 29 recites the broad recitation “1° to 360°”, and the claim also recites “1° to 180°; 1° to 90°; 1° to 45°; or 1° to 30°” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 28 further recites “the detection face comprising an angular range” but does not specify the reference with respect to which the angular range is measured. It is therefore unclear what the angular range of the detection face encompasses. For examination purposes, the angular range is interpreted as being measured about the periphery of the single serve capsule, consistent with the specification at page 6, lines 22-35.
Claim 30 recites “A system comprising the beverage preparation device as claimed in claim 21.” Claim 21 recites the single serve capsule only in its preamble, as the article with which the beverage is prepared, and claim 30 does not positively recite the single serve capsule as an element of the system. However, its dependent claims 31-33 further define features of the single serve capsule (the identification mark and the periphery). It is therefore unclear whether the claimed system includes the single serve capsule as a positively recited element or is limited to the beverage preparation device. Accordingly, the metes and bounds of the claim cannot be determined. For examination purposes, the system is interpreted as comprising the beverage preparation device and the single serve capsule, consistent with the specification (p. 7, ln. 35-p. 8, ln. 5).
Claim 37 provides for the use of the single serve capsule for preparing the beverage in the system of claim 30. However, since the claim does not set forth any steps involved in the method/process, it is unclear what method/process applicant is intending to encompass.
Claims 22-25, 27, and 31-36 are rejected for the same reasons set forth above, due to their dependencies.
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.
Claim 30 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 30 recites “A system comprising the beverage preparation device as claimed in claim 21” and does not recite any element or limitation beyond those of claim 21. 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 § 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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 21-23, 25-26, 28-31, and 34-37 are rejected under 35 U.S.C. 103 as being unpatentable over Kruger et al. (WO 2014001516 A2) hereinafter Kruger, in view of Empl et al. (WO 2012010317 A1) hereinafter Empl.
Regarding claim 21, Kruger discloses, in Figs. 1a-1e, a beverage preparation device (5, “brewing device”) for preparing a beverage with a single serve capsule (2, “portion capsule”), the single serve capsule (2) including:
a base element (31, “truncated cone”) with an open side (annotated Fig. 1a) and a periphery (27, “capsule flange”) projecting laterally from the base element (31) at the open side (annotated Fig. 1a shows the configuration),
a lid film (25, “capsule lid”; Kruger (translation), p. 4, ln. 16: “capsule lid 25 made of
plastic or aluminum foil”) fastened to the periphery (27) to the open side (“open side”) (Kruger (translation), p. 4, lns. 19-20: “capsule lid 25 is glued or welded in the region of a capsule flange 27 with the truncated cone 31”),
a beverage raw material (“beverage substance”) disposed in the cavity formed by the lid film (25) and the base element (31) (Kruger (translation), p. 4, ln. 17: “Within the portion capsule 2 is a beverage substance, in particular a roasted coffee powder”), and
an identification mark (Kruger (translation), p. 2, ln. 8: “identifier”);
the beverage preparation device (5) including a brewing chamber (1’, “brewing chamber”) configured to receive the single serve capsule (2);
the brewing chamber (1’) comprising:
a first brewing chamber element (3, “closure element”) and a second brewing chamber element (4, “receiving element”) which are movable relative to one another (p. 4, lns. 13-15: “closure element 3 is relative to the receiving element 4 along an axial direction 6... movable”) between an open position (10, “loading position”), in which the single serve capsule (2) is insertable into the brewing chamber (1’) and/or removable from the brewing chamber (1’) (Kruger (translation), p. 4, lns. 32-34: “the portion capsule 2 ... inserted ... [through] an insertion chute 42 ... [and] falls under gravity into an intermediate region between the closure element 3 and the receiving element 4”) and a closed position (11, “extraction position”), in which a liquid is configured to be directed into the single serve capsule (2) for preparing the beverage (Kruger (translation), p. 5, lns. 3-6: “the extraction liquid is supplied in the form of pressurized and heated water... thereby conveyed by means of the pump through the water supply channel 32 ... into the portion capsule 2”);
the beverage preparation device (5) including at least one detection means (50, “identifier detector”) that is configured to detect the identification mark (“identifier”) (Kruger (translation), p. 3, lns. 30-31: “the identifier detector detects a particular identifier on the portion capsule”);
the brewing chamber (1’) and the single serve capsule (2) are configured to be non-rotating during preparation of the beverage (Kruger (translation), p. 4, lns. 39-40: “the closure element 3 is driven via a toggle lever joint 28 to a linear displacement along the axial direction 6 in the direction of the receiving element 4”; p. 4, lns. 52-53: “The capsule flange 27 is firmly clamped between the first and the second closure element 3, 4”).
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Figs. 1a-1e of Kruger, annotated
Regarding claim 21, Kruger does not explicitly teach
the identification mark is on a side of the periphery that faces away from the lid film, or that the detection means is configured to detect such an identification mark; and
the beverage preparation device, in the open position and/or the closed position, is configured so that the single serve capsule is pivotable and/or rotatable.
However, Empl teaches, in Figs. 1-2, a single serve capsule (1, “portion capsule”) having a base element (2, “base element”) with a lid film (4, “membrane”) fastened to a periphery (2.4, “edge region”) of the base element (2), wherein an identification mark (“barcode”) is on a side of the periphery (2.4) that faces away from the lid film (4) (Fig. 2; Empl (translation), p. 7, lns. 9-11: “the bar code, as symbolized by the arrow 15, may be provided on the side of the edge region of the base element facing away from the membrane”), and a detection means (13, “detector”) configured to detect such an identification mark (“barcode”) (Empl (translation), p. 7, ln. 9: “This barcode is read out by a detector 13”); and
a beverage preparation device (“coffee machine”; Empl (translation), p. 6, lns. 38-39: “portion capsule is suitable for the brewing chamber provided in the coffee machine”), in the open position (Fig. 18; Empl (translation), p. 8, lns. 12-13: “a chute opening 22 through which the portion capsule is inserted into the coffee machine”; p. 8, lns. 16-17: “the portion capsule can pass through the chute and fall into the intended position”) and/or the closed position, is configured so that the single serve capsule (1) is pivotable and/or rotatable (Fig. 18 shows means 2.4.2 on the edge of portion capsule 1 engaging pinion 24 in chute 26; Empl (translation), p. 5, lns. 23-24: “rotation of the portion capsule in the apparatus for producing a beverage in a simple manner and without damaging the portion capsule is possible”; p. 5, lns. 14-15: “makes it possible for the portion capsule to always be opened in a defined rotational position by the device for producing a beverage”).
Kruger and Empl are considered to be analogous to the claimed invention because they are in the same field of beverage preparation devices using single serve capsules having an identification mark detected by the device. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the beverage preparation device of Kruger such that the identification mark is a barcode on the side of the periphery facing away from the lid film and the detection means is configured to detect the identification mark, as taught by Empl, in order for “the coffee machine [to] recognize[] which type of capsule is in its brewing chamber,” and “[adjust] the amount of water whose pressure and/or the temperature... accordingly.” Empl (translation), p. 3, lns. 14-16. Further, Empl discloses the barcode on the membrane and, alternatively, on the side of the edge region facing away from the membrane, such that selecting the latter location constitutes choosing from a finite number of identified, predictable solutions with a reasonable expectation of success. See MPEP 2143 (I)(E).
It would have also been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the beverage preparation device of Kruger such that, in the open position, the single serve capsule is rotatable, as taught by Empl, in order for “the extraction process [to be] always realized in the same way.” Empl (translation), p. 5, lns. 15-16.
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Fig. 1 of Empl
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Fig. 2 of Empl
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Fig. 18 of Empl
Regarding claim 22, Kruger in view of Empl teaches the beverage preparation device (Kruger: 5) as claimed in claim 21, and Kruger further teaches, in Figs. 1a-1e, wherein the detection means (50) is disposed along a path leading to the brewing chamber (1’) in an introduction duct (42, “insertion shaft”) (Fig. 2; Kruger (translation), p. 5, lns. 39-40: “The brewing device 5 has an elongated insertion shaft 42, in whose wall the induction measuring device 53 is arranged”; p. 2, lns. 20-21: “the identification detector is arranged in the region of the insertion shaft and in particular in a wall of the insertion shaft”) which directs the single serve capsule (2) to the brewing chamber (1’) (Kruger (translation), p. 4, lns. 33-34: “the portion capsule 2 falls under gravity into an intermediate region between the closure element 3 and the receiving element 4”).
Kruger does not explicitly teach an introduction opening for introducing the single serve capsule, from which the introduction duct directs the single serve capsule, or that the introduction duct directs the single serve capsule in a form-fitting manner.
However, Empl teaches an introduction opening (22, “chute opening”) for introducing the single serve capsule (1) and an introduction duct (26, “chute”) which directs, in a form-fitting manner, the single serve capsule (1) from the introduction opening (22) to the brewing chamber (Fig. 18; Empl (translation), p. 8, lns. 12-13: “the chute 26, which has a chute opening 22 through which the portion capsule is inserted into the coffee machine”; p. 8, lns. 13-15: “The distance between the capsule inner wall 25 and the pinion gear 24 is dimensioned such that the portion capsule can only pass through the insertion shaft when the interlocking means 2.4.2 are complementary to the teeth of the pinion gear”; p. 8, lns. 17-18: “If the portion capsule has no or incorrect form-fit means 2.4.2, the capsule can not be brought into the intended position through the insertion chute”), the detection means (13, “detector”) being disposed in the introduction duct (Empl (translation), p. 7, ln. 9: “This barcode is read out by a detector 13”).
Therefore, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the introduction duct of Kruger to include an introduction opening from which the introduction duct directs the single serve capsule in a form-fitting manner, as taught by Empl, in order that “the identifier or the mechanical fit prevents the non-matching portion capsule from being introduced into the device for producing the beverage.” Empl (translation), p. 4, lns. 48-50.
Regarding claim 23, Kruger in view of Empl teaches the beverage preparation device (Kruger: 5) as claimed in claim 21, and Kruger further teaches, in Fig. 1d, wherein the first brewing chamber element (3) and/or the second brewing chamber element (4) comprise the detection means (50) (Kruger (translation), p. 2, lns. 61-62: “the identification detector is arranged in the receiving element and / or in the closure element”; p. 4, lns. 49-51: “The resistance measuring device comprises a first contact point 51 and a second contact point 52... embedded in the inner wall of the receiving element 4 flush”), the detection means (50) is configured to detect the identification in the closed position (11) of the beverage preparation device (5) (Kruger (translation), p. 4, lns. 52-54: “When the brewing chamber [1’] closes and a portion capsule 2 is arranged in the closed brewing chamber [1’], the first contact point 51 comes into contact with a first outer region 2 'of the portion capsule 2”).
Further, Empl teaches that the detection means (13) for detecting the identification mark is “provided in the region of the brewing chamber.” Empl (translation), p. 7, lns. 47-48.
Regarding claim 25, Kruger in view of Empl teaches the beverage preparation device (Kruger: 5) as claimed in claim 21, and Kruger further teaches wherein the beverage preparation device (5) comprises a control unit (“control circuit”) that is connected to the detection means (50) (Kruger (translation), p. 3, lns. 29-31: “the pump is turned on by means of a control circuit and wherein the control circuit has a switch which only allows a switching on of the pump when the identifier detector detects a particular identifier on the portion capsule”), the detection means (50) is configured to send information to the control unit after the identification mark is detected (Kruger (translation), p. 4, ln. 58-p. 5, ln. 2: “If the measured ohmic resistance is, for example, within a predefined range or exceeds or falls below a predefined threshold value, it is assumed that it is a native portion capsule 2... It is then closed a control circuit which allows switching on a pump”); the control unit is configured to control the beverage preparation device (5) at least in part as a function of the information received from the detection means (50) (Kruger (translation), p. 3, lns. 58-59: “Preferably, in the second step, the detected identifier is compared with stored reference identifiers”; p. 5, lns. 17-18: “If the measured conductivity is outside the predefined range, the control circuit remains interrupted so that the pump can not be switched on and extraction of the non-system portion capsule is prevented”).
Regarding claim 26, Kruger in view of Empl teaches the beverage preparation device (Kruger: 5) as claimed in claim 21, but Kruger does not explicitly teach wherein the detection means comprises an optical sensor and/or a CCD sensor and/or a camera.
However, Empl teaches wherein the detection means comprises an optical sensor and/or a CCD sensor and/or a camera (“camera”; Empl (translation), p. 8, lns. 24-25: “a sensor, for example a camera, which detects the shape of the means 2.4.2 can also be provided in the insertion chute”). As set forth in the rejection under 35 U.S.C. 112(b) above, the limitation “the optical sensor is configured to operate in a wavelength range of 100 to 400 nm, 400 to 600 nm, or 800 nm to 1nm” is interpreted as applying only when the detection means includes an optical sensor.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the detection means of Kruger in view of Empl to comprise a camera, as taught by Empl, in order that “[t]his signal is in turn passed to a controller, which releases, for example, the brewing chamber, if it is the right capsule.” Empl (translation), p. 8, lns. 26-27.
Regarding claim 28, Kruger in view of Empl teaches the beverage preparation device (Kruger: 5) as claimed in claim 21, and Empl further teaches wherein the detection means (13, “detector”) includes a detection face in which the identification mark (“barcode”) is detectable (Empl (translation), p. 7, lns. 9-10: “This barcode is read out by a detector 13, for example in a chute slot”).
Kruger in view of Empl does not explicitly teach the detection face comprising an angular range from 1° to 360°; 1° to 180°; 1° to 90°; 1° to 45°; or 1° to 30°.
However, Empl teaches that “the diameter of the flange is substantially 45 mm” (Empl (translation), p. 5, ln. 47), such that 1° of the periphery corresponds to an arc of approximately 0.39 mm (
π
×
45
mm
/
360
°
), and the detection face of detector 13 must span at least the portion of the periphery bearing the barcode in order for the barcode to be read. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide the detection face of Kruger in view of Empl with an angular range from 1° to 360°, since the general conditions of the claim, a detection face reading a barcode on the periphery, are disclosed by Empl, and it has been held that "[w]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 (II)(A).
Regarding claim 29, Kruger in view of Empl teaches the beverage preparation device (Kruger: 5) as claimed in claim 21, and Empl further teaches wherein the beverage preparation device (“coffee machine”) in the open 17a-17c; Empl (translation), p. 8, lns. 4-6: “forty-five teeth are provided on the sprocket... twenty-two or twenty-nine teeth”; rotation of portion capsule 1 by one tooth pitch of means 2.4.2 corresponds to approximately 8° (360° ÷ 45), 12.4° (360° ÷ 29), or 16.4° (360° ÷ 22), each within the range of 1° to 30°).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the beverage preparation device of Kruger in view of Empl such that the single serve capsule, for detecting the identification mark by the detection means, is rotatable in an angular range from 1° to 30°, as taught by Empl, in order that, “[i]f this rotational movement encompasses at least one predetermined rotational segment, the control system, for example, enables the brewing unit.” Empl (translation), p. 8, lns. 19-21.
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Figs. 17a-17c of Empl
Regarding claim 30, Kruger in view of Empl teaches a system (Kruger: 1) comprising the beverage preparation device (Kruger: 5) as claimed in claim 21 (Kruger (translation), p. 4, ln. 12: “The system 1 comprises a brewing device 5 and a portion capsule 2”; see the rejection of claim 21 above).
Regarding claim 31, Kruger in view of Empl teaches the system (Kruger: 1) as claimed in claim 30, and Empl further teaches wherein the identification mark comprises a one-dimensional identification mark and/or a bar code (“barcode”; Fig. 2; Empl (translation), p. 7, lns. 9-11: “the bar code, as symbolized by the arrow 15, may be provided on the side of the edge region of the base element facing away from the membrane”).
Regarding claim 34, Kruger in view of Empl teaches a method for preparing the beverage with the system (Kruger: 1) as claimed in claim 30, wherein the method comprises detecting the identification mark with the detection means (50) before, while, and/or after a step of inserting the single serve capsule (2) into the brewing chamber (1’) (Kruger (translation), p. 3, lns. 47-50: “in a first step, the portion capsule is introduced into the brewing device, wherein in a second step, the identification of the portion capsule is identified by the identifier detector and wherein in a third Step the portion capsule is transferred to the brewing chamber and / or the extraction process is started when the ID of the portion capsule has been identified”; see also Empl (translation), p. 7, lns. 9-10: “This barcode is read out by a detector 13, for example in a chute slot”).
Regarding claim 35, Kruger in view of Empl teaches the method as claimed in claim 34, and Kruger further teaches wherein the method comprises detecting the identification mark by the detection means (50) before, during, or after movement of the brewing chamber (1’) from the open position (10) to the closed position (11) (Kruger (translation), p. 4, lns. 52-54: “When the brewing chamber [1’] closes and a portion capsule 2 is arranged in the closed brewing chamber [1’], the first contact point 51 comes into contact with a first outer region 2 'of the portion capsule 2”; p. 5, lns. 22-23: “it would also be conceivable that the resistance measuring device is integrated into the retaining sleeves 34, so that even before the closing of the brewing chamber 1 ', a check is made”).
Regarding claim 36, Kruger in view of Empl teaches the method as claimed in claim 34, and Empl further teaches wherein the method comprises rotating the single serve (1) about a central axis of the single serve capsule (1) in a predetermined angular range of 1° to 360° (Fig. 18 shows means 2.4.2 on the edge of portion capsule 1 engaging pinion 24 in chute 26; Empl (translation), p. 5, lns. 12-14: “rotation of the portion capsule about a substantially perpendicular to the plane of extension of the membrane axis of rotation of the portion capsule using the gear arrangement”; p. 5, lns. 23-24: “rotation of the portion capsule in the apparatus for producing a beverage in a simple manner and without damaging the portion capsule is possible”; Figs. 17a-17c; p. 8, lns. 4-6: “forty-five teeth are provided on the sprocket... twenty-two or twenty-nine teeth”; rotation of portion capsule 1 by one tooth pitch of means 2.4.2 corresponds to approximately 8° (360° ÷ 45), 12.4° (360° ÷ 29), or 16.4° (360° ÷ 22), each within the range of 1° to 360°).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to perform the method of Kruger in view of Empl comprising rotating the single serve capsule about a central axis of the single serve capsule in a predetermined angular range of 1° to 360°, as taught by Empl, in order that, “[i]f this rotational movement encompasses at least one predetermined rotational segment, the control system, for example, enables the brewing unit.” Empl (translation), p. 8, lns. 19-21.
Regarding claim 37, as best understood in view of the rejection under 35 U.S.C. 112(b) above, Kruger in view of Empl teaches use of the single serve capsule (Kruger: 2) for preparing the beverage in the system (Kruger: 1) of claim 30 (see the rejection of claim 30 above; Kruger (translation), p. 5, lns. 6-7: “The beverage substance is flowed through by the extraction liquid, so that a beverage extract is formed which again leaves the portion capsule 2 through the perforation hole produced in the capsule bottom 29”).
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Kruger et al. (WO 2014001516 A2) hereinafter Kruger, in view of Empl et al. (WO 2012010317 A1) hereinafter Empl, and further in view of Aschwanden et al. (US 20180325305 A1) hereinafter Aschwanden.
Regarding claim 24, Kruger in view of Empl teaches the beverage preparation device (Kruger: 5) as claimed in claim 21, but does not explicitly teach wherein the detection means is provided on an external side of the beverage preparation device in a depression that is configured to at least partially receive the single serve capsule.
However, Aschwanden teaches, in Figs. 1-3, a beverage preparation device (10, “drinks preparation machine”) wherein the detection means (51, “camera sensor”) is provided on an external side (Figs. 2-3: upper, horizontal part of housing 17) of the beverage preparation device (10) in a depression (¶ [0068]: “the capsule recognition module 5 is arranged directly below the upper, horizontal part of the housing 17 in a manner such that a portion capsule can be inserted via the capsule insert opening 11 into a capsule recognition position of the capsule recognition module 5”) that is configured to at least partially receive the single serve capsule (¶ [0011]: “The capsule insert opening is designed as an opening in the housing, through which opening the portion capsule can be inserted into the capsule recognition module”; ¶ [0076]: “The shown capsule recognition module 5 includes a camera sensor 51”; ¶ [0041]: “a grip recess that is accessible from the capsule insert opening. This permits the user to grip the portion capsule that is located in the capsule recognition position and to remove it via the capsule insert opening”).
Kruger, Empl and Aschwanden are considered to be analogous to the claimed invention because they are in the same field of beverage preparation devices using single serve capsules having an identification mark detected by the device. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the beverage preparation device of Kruger in view of Empl such that the detection means is provided on an external side of the beverage preparation device in a depression that is configured to at least partially receive the single serve capsule, as taught by Aschwanden, in order that “the intact portion capsule can consequently be removed again from the drinks preparation machine for a later use.” Aschwanden, ¶ [0040].
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Kruger et al. (WO 2014001516 A2) hereinafter Kruger, in view of Empl et al. (WO 2012010317 A1) hereinafter Empl, and further in view of De Vreede et al. (US 20160309953 A1) hereinafter De Vreede.
Regarding claim 27, Kruger in view of Empl teaches the beverage preparation device (Kruger: 5) as claimed in claim 21, but does not explicitly teach wherein the detection means includes an optical transmitter for emitting electromagnetic radiation in a wavelength range of 100 to 400 nm, 400 to 600 nm, or 800 nm to 1 mm, the optical transmitter being or including an LED and/or a laser diode.
However, De Vreede teaches, in Fig. 7, wherein the detection means (340, “consumable recognition system”) includes an optical transmitter (341, “light source”) for emitting electromagnetic radiation in a wavelength range of 100 to 400 nm, 400 to 600 nm, or 800 nm to 1 mm (¶ [0079]: “The illumination is typically done with blue/violet or ultraviolet light 35 from the light source 341”; blue light lies within the range of 400 to 600 nm), the optical transmitter (341) being or including an LED and/or a laser diode (¶ [0079]: “e.g. a blue LED or a UV or blue laser”; ¶ [0031]: “The light source (e.g. an LED or laser)”).
Kruger, Empl, and De Vreede are considered to be analogous to the claimed invention because they are in the same field of beverage preparation devices using single serve capsules having an identification mark detected by the device. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the detection means of Kruger and Empl to include an optical transmitter for emitting electromagnetic radiation in a wavelength range of 400 to 600 nm, the optical transmitter being an LED, as taught by De Vreede, in order that “a sensor signal, e.g. a specific light intensity readout, can be generated by a sensor (e.g. a photo diode or a camera), which can then be linked to the correct beverage preparation parameters.” De Vreede, ¶ [0031].
Claim 32 is rejected under 35 U.S.C. 103 as being unpatentable over Kruger et al. (WO 2014001516 A2) hereinafter Kruger, in view of Empl et al. (WO 2012010317 A1) hereinafter Empl, and further in view of applicant’s admitted prior art (herein after Vertuo), see instant specification, ¶¶ [0003] and [0073]; MPEP 2129.
Regarding claim 32, Kruger in view of Empl teaches the system (Kruger: 1) as claimed in claim 30, but does not explicitly teach wherein the identification mark is disposed at least in portions along a circumferential direction of the periphery, and the side of the periphery facing away from the lid film is covered completely and without interruption in the circumferential direction by the identification mark.
However, Vertuo teaches wherein the identification mark is disposed at least in portions along a circumferential direction of the periphery, and the side of the periphery facing away from the lid film is covered completely and without interruption in the circumferential direction by the identification mark (instant specification, ¶ [0003]: “During rotation, the identification mark is read by a detection means installed in the brewing chamber... Since the single serve capsule is rotated, the identification mark along the entire circumference of the periphery can be easily read by a stationary detection means”; ¶ [0073]: “In single serve capsule machines of the Vertuo system, the single serve capsules are rotated for the preparation of the beverage, as has already been discussed above. In the process, the bar code moves past a stationary sensor which can thus completely read the bar code within one 360° rotation”).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the identification mark of Kruger in view of Empl, whose single serve capsule is rotatable (see the rejection of claim 21 above), such that the identification mark is disposed along the circumferential direction of the periphery and covers the side of the periphery facing away from the lid film completely and without interruption in the circumferential direction, as taught by Vertuo, in order that “the identification mark along the entire circumference of the periphery can be easily read by a stationary detection means.” Instant specification, ¶ [0003].
Claim 33 is rejected under 35 U.S.C. 103 as being unpatentable over Kruger et al. (WO 2014001516 A2) hereinafter Kruger, in view of Empl et al. (WO 2012010317 A1) hereinafter Empl, and further in view of Ozanne et al. (US 20120031794 A1) hereinafter Ozanne.
Regarding claim 33, Kruger in view of Empl teaches the system (Kruger: 1) as claimed in claim 30, but does not explicitly teach wherein the periphery has a rolled region on a radially outer end of the periphery.
However, Ozanne teaches, in Figs. 1-2, a single serve capsule (1, “aluminium container”; ¶ [0026]: “the aluminium container is a capsule containing at least one beverage ingredient designed for insertion in a beverage production device”) wherein the periphery (4, “flange-like rim”) has a rolled region (2, “curled edge”) on a radially outer end of the periphery (4) (Figs. 1-2: curled edge 2 located radially outward of flange-like rim 4; ¶ [0025]: “the lid is attached to a flange-like rim between the container body and the curled edge”).
Kruger, Empl and Ozanne are considered to be analogous to the claimed invention because they are in the same field of single serve beverage capsules for use in beverage preparation devices. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the periphery of Kruger in view of Empl to have a rolled region on a radially outer end of the periphery, as taught by Ozanne, in order “to provide a nice and secure aspect to the edge of the container body.” Ozanne, ¶ [0024].
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Sonderegger (WO 2021028472 A1), Hilckmann et al. (US 20200093316 A1), De Vreede et al. (US 10588451), Kruger et al. (WO 2016087474 A1), Gort-Barten et al. (GB 2523775 A), Castellani et al. (US 20140224130 A1), Kruger (EP 3023362 B1).
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/J.J.P./Examiner, Art Unit 3761
/ERWIN J WUNDERLICH/Primary Examiner, Art Unit 3761
