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 .
Drawings
The subject matter of this application admits of illustration by a drawing to facilitate understanding of the invention. Applicant is required to furnish a drawing under 37 CFR 1.81(c). No new matter may be introduced in the required drawing. 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).
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 5, 7, and 10 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 clam 5, the terms “softer” and “less stiff” are relative terms which renders the claim indefinite. The terms “softer” and “less stiff” are 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. Applicant’s specification provides no further information as to what would constitute “softer” and “less stiff”.
Regarding claim 7, there is no antecedent basis for the term “the capsule walls”.
Regarding claim 10, the claim recites the use of a single serve capsule without reciting any active, positive steps delimiting how the use would actually be practiced which renders the claim indefinite (MPEP § 2173.05(q).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating
obviousness or nonobviousness.
Claims 1 – 9 are rejected under 35 U.S.C. 103 as being unpatentable over Jarisch et al. US 2013/0064937 in view of Nowak US 2014/0272016.
Regarding claim 1, Jarisch discloses a single serve capsule (7) capable of preparing a beverage with aid of a beverage preparation machine, the single serve capsule (10) has a base element (cup shaped body 69) with a cavity (20) capable of receiving a beverage raw material (ingredient), and a capsule lid (60) which closes the cavity (paragraph [0036], [0064]). The base element comprises a capsule base, an encircling flange (73), a capsule wall extends from the capsule base to the encircling flange, and the capsule lid (60) is fastened to the encircling flange. The single serve capsule has an optically detectable feature (code 70) which is optically detectable by a detector (62) of the beverage preparation machine and which is disposed on a side of the encircling flange (73) facing away from the capsule lid (60) (paragraph [00063] – [0082] and fig. 4).
Claim 1 differs from Jarisch in the single serve capsule having a further base element which at least partially surrounds the base element.
Nowak discloses a single serve capsule (9) capable of preparing a beverage with the aid of a beverage preparation machine (1) (paragraph [0024]) which single serve capsule has a base element with a cavity capable of receiving a beverage raw material (coffee) and a capsule lid (top foil layer 6) which closes the cavity (paragraph [0027]). The base element comprises a capsule base, an encircling flange, a capsule wall which extends from the capsule base to the encircling flange (fig. 5), and the capsule lid is fastened to the encircling flange (paragraph [0027]). Further, the single serve capsule has a further base element (10a) which at least partially surrounds the base element (fig. 2A). Nowak is providing a further base element which at least partially surrounds the base element for the art recognized function of providing an additional ingredient to a brewed fluid of the single serve capsule to generate a brewed ingredient fluid mixture, i.e., flavoured beverage (paragraph [0009]). To therefore modify Jarisch and provide a further element to a single serve capsule to provide an additional ingredient to a brewed beverage would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Regarding claim 2, Jarisch in view of Nowak discloses the further base element comprises a further cavity in which the base element is partially disposed (‘016, fig. 2A).
Regarding claims 3 and 4, Jarisch in view of Nowak discloses the base element is disposed so far within the further cavity that a further capsule wall of the further base element extends parallel to the capsule wall of the base element to the flange and the further base element is free of a flange (‘016, fig. 2A).
Regarding claim 5, once it was known to provide a base element and a further base element where the further base element at least partially surrounds the base element it is not seen that patentability would be predicated on the region of the capsule wall of the base element to be capable of being softer, less stiff, and/or thinner absent strong and compelling evidence to the contrary. Limitations relating to the softness, stiffness or thinness of the capsule wall would not be sufficient to patentably distinguish over the prior art. The mere, changing of the proportions, of a prior art capsule wall capable of being so scaled, if such were the case, would not establish patentability in a claim to an old capsule wall so scaled. Where the only difference between the prior art and the claims was a recitation of relative dimensions or “softness” of the claimed capsule wall and a capsule wall having the claimed relative dimensions/softness would not perform differently than the prior art capsule wall, the claimed capsule wall is not seen to be patentably distinct from the prior art capsule wall (MPEP § 2144.04 IV.A.).
Regarding claim 6, Jarisch discloses the single serve capsule material, i.e., a foil, can be mechanically deformed (‘937, paragraph [0091]) further citing “aluminum capsule technology” (‘937, paragraph [0093]) would have suggested to the ordinarily skilled artisan the material of the single serve capsule base element would comprise an aluminium material. Also, given that the base element would be further encased by, that is to say at least partially surrounded by the further base element it would be expected that the base element would be more impermeable to gas than a material of the further base element by virtue of being enclosed therein.
Regarding claim 7, Jarisch in view of Nowak disclose the base element and the further base element are adhesively bonded (adhesion layer 20) in a planar manner in a region of the capsule walls (‘016, paragraph [0032] and fig. 2A).
Regarding claim 8, Jarisch in view of Nowak disclose the base element (brew cartridge 9) and the further base element (additive cartridge 10a) would be made of a material similar to one another, i.e., that the base element and further base element are essentially the same and equivalent which would have suggested to the ordinarily skilled artisan they would be made of the same material. It is also to be noted that in disclosing the base element and the further base element “are essentially the same” Jarisch in view of Nowak are suggesting that said elements may also be of different materials (‘016, paragraph [0029]).
Regarding claim 9, Jarisch in view of Nowak discloses the optically detectable feature (optical code) would be a bit code (‘937, paragraph [0017]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 16 January 2026
/VIREN A THAKUR/Primary Examiner, Art Unit 1792