DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Those objections and rejections that have not been repeated in this Office Action have been withdrawn.
Claims 12-24 are currently pending and rejected.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 21-24 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 21-24 recite, “the capsule lid has a height that is less than the height of the base element.”
Support cannot be found in Applicant’s original disclosure, directed to a particular height of the capsule lid being less than the height of the base element. On page 4 of the specification as filed, the 4th paragraph discloses the lid film having a planar configuration. However, since the specification does not specifically discuss a height of the lid, it is not clear whether height is intended to refer to the lid as being planar. On page 9, the specification as filed refers to the height or the protrusion of a rib or a ridge may be larger or smaller (see lines 22-24, i.e. the last sentence of the first paragraph), but this does not refer to a height of the lid.
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 21-24 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 21-24 recite, “the capsule lid has a height that is less than the height of the base element.”
This limitation is not clear as to what dimension is being referred to as a height of the capsule lid and the specification does not provide further guidance in this regard. For example, it is not clear whether the height of the capsule lid is referring to, for example, its thickness or alternatively, the particular vertical distance that the capsule lid would extend - such as if it were convex/concave structure.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 12-13, 17, 18 and 19 are rejected under 35 U.S.C. 102a1 as being anticipated by Jarisch (US 20130064937).
Regarding the claim limitation “clearances” Applicant’s specification discloses that the clearances can be cutouts (see page 21, lines 1-2 as filed) and further discloses that a plurality of clearances and elevations are configured in the form of grooves and protrusions (see page 21, lines 17-20).
Regarding claims 12 and 13, Jarisch teaches a single serve capsule for preparing a beverage with aid of a beverage preparation machine (see paragraph 4, “capsule” and figure 1 which shows the machine), the capsule including a base element with a cavity for (i.e. capable of) receiving a beverage raw material (see figure 4, item 69) and a capsule lid which closes the cavity (figure 4, item 60; paragraph 36); the base element inherently comprises a capsule base, and as shown in figure 4 and 5, Jarisch discloses an encircling flange (see figure 4 and paragraph 36, “flange-like rim 73”) with the capsule lid fastened to the flange (see paragraph 36, capsule lid is connected to the body by being sealed on the flange like rim).
Jarisch also discloses an optically detectable feature capable of being optically detected by a detector of a beverage preparation machine (see figure 5 and paragraph 17-19 which discloses that the optical code on the flange can be in an embossed pattern; see paragraph 22 and 24). Figure 5 discloses that the code comprises embossed grooves and protrusions such that the code has a relief structure. Therefore, Jarisch is disclosing “clearances” such as the gaps between the raised portions on the flange that extend through the flange, encircle the flange and are optically detectable. It is noted that the claim does not limit how far through the flange the clearances extend and since Jarisch discloses a depth to the gaps between the protrusions, they are construed as extending through the flange. Figure 8 of Applicant’s disclosure also appears to show protrusions that can be construed as extending through the flange. On page 21, 2nd paragraph, Applicant’s specification recites that as a preference the clearances extend completely through the flange, therefore also suggesting that the clearances could also extend only partially through the flange.
As shown in figure 7, there is some degree of extension of the clearances in a direction parallel to a rotational symmetry axis of the capsule through the flange.
Further regarding claim 13, as the spaces between the raised portions in figure 7 can be construed as clearances, then the raised portions themselves can be construed as webs of the encircling flange, which are between the clearances and clearly extend to some degree in a radial direction (i.e. outwardly from the center of the capsule).
Regarding claim 17, Jarisch teaches a method of preparing a beverage by inserting the capsule in a beverage preparation machine (see paragraphs 34-35 and figure 1 which shows a machine with which the capsule can be used) and after the inserting, introducing a liquid into the single serve capsule to interact with a beverage raw material within the single serve capsule to produce the beverage (see paragraph 35, “liquid supply means such as a water reservoir 6 and a fluid conduit 4) and discharging a beverage from the capsule via outlet 35 into a cup 48 (see figure 1 and paragraph 35).
Regarding claims 18 and 19, Jarisch’s disclosure of the embossed pattern on the underside of the flange would therefore have created optically detectable protrusions and an optically detectable three-dimensional structure (see figure 5, item 70).
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 21, 22 and 23 are rejected under 35 U.S.C. as being unpatentable over Jarisch (US 20130064937) in view of Magri (US 20140295032)
Regarding claims 21, 22 and 23, Jarisch teaches a base element that extends from a bottom end of the base element to a top end of the base element and where the base element terminates such that a height of the base element is a distance from the bottom end to the top end (see figure 4, item 7 for example). There is an encircling flange that extends from the top end of the base element (see figure 4 and 5, item 73 and paragraph 36) and the capsule lid has a height that is less than the height of the base element (see figure 4, item 60 and paragraph 36). As shown in figure 4, the height of the lid is less than “a height” of the base element.
Claim 21 differs from Jarisch937 in specifically reciting that the base element is a deep drawn aluminum element.
Magri teaches a capsule having a similar configuration as that of Jarisch (see Magri, figures 3a-3c) and where the capsule is deep drawn (see paragraph 28) and made of aluminum (see paragraph 2).
Jarisch already suggests that the capsule is an aluminum capsule (see paragraph 93).
To therefore modify Jarisch and to use an aluminum element as the base element of the capsule that is deep drawn to produce the unitary structure as already taught by Jarisch would have been obvious to one having ordinary skill in the art as a matter of design, based on conventional expedients by which similar types of capsules are constructed.
Claims 12-20 are rejected under 35 U.S.C. 103 as being unpatentable over Yoakim (US 20240300731) and in further view of Martinez (WO 2007087890 - already of record), Castellani (US 20140224130 already of record) or Johnki (DE 202010009287 already of record).
Regarding Martinez (WO 2007087890) a machine translation has been relied on and is included with this Office Action.
Regarding Johnki (DE 202010009287) a machine translation has been relied on and is already of record.
Regarding the claim limitation “clearances” Applicant’s specification discloses that the clearances can be cutouts (see page 21, lines 1-2 as filed) and further discloses that a plurality of clearances and elevations are configured in the form of grooves and protrusions (see page 21, lines 17-20).
Regarding claim 12, Yoakim teaches a single serve capsule for preparing a beverage (see the abstract) with aid of a beverage preparation machine (see paragraph 72, “extraction unit”), the single serve capsule including a base element (see the bottom horizontal wall of the capsule of figure 8), which base element has a cavity for receiving a beverage raw material (figure 8, item 6 and 58; paragraph 103) and a capsule lid which closes the cavity (see figure 8, item 56 and paragraph 102-103: “closing member…comprises a flexible membrane”); the base element comprising a capsule base (see figure 8), an encircling flange (figure 8, item 60; see paragraph 102: “flange portion”) and a capsule wall (see figure 8, item 58) which extends from the capsule base to the encircling flange; the capsule lid is fastened to the flange (figure 11, item 56 that is sealed to the flange 60).
The single serve capsule includes an optically detectable feature that is optically detectable by a detector of the beverage preparation machine (see figure 11, item 44 and 84; see paragraph 60 and 130 which disclose that the code is optically readable); wherein the optically detectable feature comprises clearances (see figure 11, item 84, 86 and paragraph 130) that extend through the encircling flange. Since the readable code 44 is positioned at an end of the clearance, it would have been obvious to one having ordinary skill in the art that Yoakim is therefore disclosing that the clearance extends through the flange and also is part of the optically detectable feature, such that the clearance can also be construed as being optically detectable. At paragraph 141, Yoakim also teaches that the code can be printed through the cutout, thus further teaching that the cutout itself would have been optically detectable.
Further regarding the clearances being optically detectable, Yoakim also discloses at paragraphs 132 and 133 that the webs adjacent to the cut-outs (as shown in figure 12 and item 92) can also be part of the optically detectable feature. Therefore, Yoakim can be construed as teaching that a combination of the cutouts and protrusions (i.e. clearances) that can comprise the optically detectable feature, and therefore teaches and suggests that the clearances would also have been optically . In view of paragraphs 132 and 133 and figure 12, item 92, Yoakim also teaches the optically detectable feature comprises protrusions and therefore a three-dimensional structure, as recited in claims 18 and 19. It is also noted that Yoakim discloses that the code carrying member 44 can be an insert (paragraph 11), such that the insert can be construed as part of the clearances and therefore the clearances comprise an optically detectable feature.
As shown in figure 12, the clearances 84 extend parallel to a rotational symmetry axis of the capsule through the flange, because the clearances extend circumferentially and because Yoakim teaches that the capsule rotates on a rotational axis of symmetry (see figure 10, item “L” and paragraph 21, 124).
Further regarding the clearances being optically detectable by a detector, if it could have been construed that Yoakim was not clear in this regard, then it is noted that that Yoakim is open to combinations of features (see paragraph 28) and a plurality of optically readable units (paragraph 60).
In this regard, Martinez teaches a beverage producing capsule (see figure 1 and paragraph 5 and 69 of the machine translation) and which capsule comprises clearances on a flange (see figure 2 and figure 3, item 18, 26) which are optically readable (see at least paragraphs 19, 21 and 73) that can also provide another and simple, cost effective expedient for reading data on a capsule used for preparing a beverage (see paragraph 44).
Castellani also teaches a flange of a beverage producing capsule that can comprise optically detectable clearances and grooves/protrusions (see figure 7f, 7g; see paragraph 69 teaching that the clearances can also be read by an optical recognition device; see paragraph 71 teaching that the optical recognition device can read protuberances, depressions, grooves, a variation in thickness;).
Johnki also teaches a capsule (figure 1 and 2), sealed with a lid (figure 1, item 3 and paragraph 63 of the machine translation) and which capsule also has clearances that are optically readable (see figure 2, item 7 and paragraph 64 of the translation, which discloses that the clearances (i.e. holes) can be optically read (see paragraph 18 and 54 which discloses that an optical scanner can be used to read the hole codes). At paragraph 18 and 54, Johnki teaches hole codes (i.e. clearances) as advantageous for being read by an optical reader for determining the contents of the capsule. Johnki further teaches that the clearances are covered by the capsule lid because in figure 1 and paragraph 63, Bernd discloses that the lid is welded to the capsule in the area of the rim.
Therefore, the prior art also teaches that it has been conventional for clearances to be provided in a flange of a capsule and which clearances can also be optically detectable. Since Yoakim is not limiting as to the particular type of code being used and how the code can be optically read, to modify Yoakim to include optically readable clearances would also have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design, especially as Martinez, Castellani and Johnki teaches that readable clearances can also be a useful and more cost expedient mechanism for providing data on a beverage producing capsule.
Regarding claim 13, as shown in figure 12, Yoakim discloses that the positions of the flange that do not have the clearances 84 have webs (figure 12, item 92; see paragraph 131-132 “connecting members”) which can be construed as webs that extend in a radial direction (i.e. radially outward).
Regarding claim 14, Yoakim discloses that the clearances are covered by the capsule lid (see figure 11, item 56 and 84). That is, the clearances are covered from above by the capsule lid and the claims do not provide further specificity as to how the clearances are covered.
Regarding claim 15, Yoakim teaches that the capsule lid on a side facing the encircling flange can have a variety of colors presented thereon (see paragraph 121 and figure 11). Therefore, Yoakim teaches that on a side facing the encircling flange, the capsule lid has a color.
Claim 15 differs from Yoakim in specifically reciting, “wherein the capsule lid on a side thereof facing the encircling flange has a different color than the encircling flange on a side thereof facing away from the capsule lid.”
However, Yoakim also teaches that the flange portion facing away from the capsule lid can also have connecting members (92) that also comprise code, such as dark or light coloring (see paragraph 132-133).
Yoakim also teaches at paragraph 121 that dark code coloring can be black, dark blue, purple, dark green and that light code coloring can be white, light blue, yellow, light green, for example for the purpose of providing sufficient contrast for image capture.
Yoakim teaches that the encircling flange on a side facing away from the lid can be coded with dark or light colors (paragraph 133). Therefore, Yoakim is teaching that the side of the lid facing the flange can have a color that can differ from a side of the flange facing away from the capsule lid, for providing sufficient contrast for image capture (see paragraph 121).
Therefore, it would have been obvious to one having ordinary skill in the art to have provided a different color to the lid facing the flange as to the flange facing away from the lid, for the purpose of providing the requisite contrast when producing the optically readable code, so as to ensure image capture.
Regarding claim 16, Yoakim discloses that the capsule lid, conjointly with the clearances forms a bit code (see figure 11, item 44 which shows the lid and figure 11, item 84 which shows clearances which together form code)(see paragraph 125 which discloses “bit code”).
Yoakim also discloses that the web regions 92 can also be part of the optically detectable feature (see paragraphs 132-133) and therefore can be construed as disclosing that the capsule lid conjointly with the clearances forms an optically detectable feature that is machine-readable code. The combination as applied to claim 1 further teaches and suggests the clearances as part of the optically detectable feature.
Regarding claim 17, Yoakim teaches a method of preparing a beverage by inserting the capsule into a beverage preparation machine and after inserting the capsule into the machine, liquid is introduced into the capsule via injection head (see paragraph 73; figure 5, item 38) to produce a beverage therefrom and then discharging the beverage from the capsule and through an outlet (figure 5, item 34 and 37 and paragraph 73-75).
Regarding claim 20, Yoakim discloses that the flange is at least partially optically transparent (see paragraph 17) and the detector of the beverage preparation machine is arranged below the encircling flange (see paragraph 90 which discloses that the cod reading system reads the code from an underside of the flange).
Claims 21-24 are rejected under 35 U.S.C. as being unpatentable over the combination, as applied to claims 12, 17, 19 and 20, above, which rely on Yoakim (US 20240300731) as the primary reference and in further view of Magri (US 20140295032)
Regarding claims 21-24, Yoakim teaches a base element that extends from a bottom end of the base element to a top end of the base element and where the base element terminates such that a height of the base element is a distance from the bottom end to the top end (see figure 8, for example). There is an encircling flange that extends from the top end of the base element (see figure 8, item 60) and the capsule lid has a height that is less than the height of the base element (see figure 8, item 56 and paragraph 36). As shown in figure 8, the height of the lid is less than “a height” of the base element.
Claims 21-24 differ from Yoakim in specifically reciting that the base element is a deep drawn aluminum element.
Magri teaches a capsule having a similar configuration as that of Jarisch937 (see Magri, figures 3a-3c) and where the capsule is deep drawn (see paragraph 28) and made of aluminum (see paragraph 2).
Yoakim already suggests that the capsule is an aluminum capsule (see paragraph 105). To therefore modify Yoakim and to use an aluminum element as the base element of the capsule that is deep drawn to produce the unitary structure as already taught by Yoakim would have been obvious to one having ordinary skill in the art as a matter of design, based on conventional expedients by which similar types of capsules are constructed.
Response to Arguments
On pages 6-7 of the response, Applicant urges that Yoakim’s viewing window 84 and cut-out 86 function only as access openings that permit visibility of a code positioned above the flange on another component and therefore does not describe or suggest that the viewing window or cut-out themselves constitute optically detectable features that are detected by a detector of the beverage preparation machine.
This urging is not seen to be sufficient to overcome the rejection because the claim recites that the optically detectable feature comprises clearances that are optically detectable by the detector and since Yoakim teaches that the clearances can also be protrusions and cutouts, and which cutouts comprise readable code, the reference is suggesting that the clearances are also optically readable. Nonetheless, it is noted that the prior art as applied herein further teaches and suggests using optically readable clearances as a conventional expedient for providing data on a beverage producing capsule and which can provide another useful and cost effective way to provide and read data from the flange of a beverage producing capsule.
On page 7 of the response, Applicant urges that Jarisch’s embossed pattern does not disclose or suggest a clearance that extends through the flange structure.
This argument is not persuasive because the embossing of Jarisch’s clearances would extend into the flange to some degree and the claims do not recite that the flange extends completely through the flange. This is further supported by Applicant’s specification disclosing the clearances extending completely through the flange as a preference (see page 21, 2nd paragraph as filed).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIREN THAKUR whose telephone number is (571)272-6694. The examiner can normally be reached M-F: 10:30-7:00pm.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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