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 .
Claim Objections
Claims 1, 3, 12, and 24 are objected to because of the following informalities:
Claim 1 recites the limitation “the beverage pod having multiple compartments containing a plurality of different contents that are released during a brewing process comprising” in lines 1-3. It appears the claim should recite “the beverage pod having multiple compartments containing a plurality of different contents that are released during a brewing process, the beverage pod comprising” in order to directly refer to the structure that the transitional phrase “comprising” modifies.
Claim 3 recites the limitation “the content contained in the first compartment” in lines 1-2. It appears the claim should recite “the first content contained in the first compartment” in order to maintain consistency with “a first content for containing a first content” recited in Claim 1, line 4.
Claim 12 recites the limitation “A pod for use in a drink dispensing machine comprising” in line 1. It appears the claim should recite “A pod for use in a drink dispensing machine, the pod comprising” in order to directly refer to the structure that the transitional phrase “comprising” modifies.
Claim 24 recites the limitation “the second ingredient” in line 2. It appears the claim should recite “the second beverage ingredient” in order to maintain consistency with “a second beverage ingredient” recited in Claim 21, line 5.
Appropriate correction is required.
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 1-12 and 16 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 pre-AIA the applicant regards as the invention.
Claim 1 recites the limitation “a first content” in line 4. It is unclear if this refers to “a plurality of different contents” recited in Claim 1, line 2 or to an entirely different content.
Claim 1 recites the limitation “a second content” in line 6. It is unclear if this refers to “a plurality of different contents” recited in Claim 1, line 2 or to an entirely different content.
Claim 4 recites the limitation “water tight” in line 1. The term “water tight” is a relative term which renders the claim indefinite. The term “water tight” 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.
Claim 4 recites the limitation “a diary product” in line 2. It is unclear if this refers to “a dairy product” recited in Claim 3, line 2 or to an entirely different dairy product. For purposes of examination Examiner interprets the claims to refer to the same dairy product.
Claim 10 recites the limitation “the first contents” (plural) in line 2. It appears the claim should recite “the first content” (singular) in order to maintain consistency with “a first content” recited in Claim 1, line 4.
Claim 16 recites the limitation “a brewing process” in line 1. It is unclear if this refers to “a brewing process” recited in Claim 12, line 6 or to an entirely different brewing process. For purposes of examination Examiner interprets the claims to refer to the same brewing process.
Clarification is required.
Claim 2-3, 5-9, and 11 are rejected as being dependent on a rejected base claim.
Claim Rejections - 35 USC § 102
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 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)(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 1-4, 6-7, 11-12, 14, and 20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Aviles et al. US 9,764,891.
Regarding Claim 1, Aviles et al. discloses a disposable single serve beverage pod having multiple compartments (chambers 202, 204) containing a plurality of different contents that are released during a brewing process. The beverage pod comprises a first compartment (first chamber 201) and a second compartment (second chamber 202) (‘891, FIG. 2) (‘891, Column 4, lines 25-40).
Further regarding Claim 1, the limitations “for use in a brewing machine,” “for containing a first content comprising a gas propellant and a liquid ingredient,” “for containing a second content comprising a brewing ingredient,” and “wherein the first content and the second content are kept separate before the brewing process begins and wherein when the brewing process begins the first content is released from the first compartment and the second content is released from the second compartment, portions of the first content and portions of the second content flow out of the beverage pod and are mixed with water from the brewing machine to produce a final beverage for human consumption” are seen to be recitations regarding the intended use of the “beverage pod.” In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). 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 claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. Nevertheless, Aviles et al. explicitly discloses the beverage pod being used in a brewing machine (‘891, Column 7, lines 51-55) and the first compartment (first chamber 201) containing a first content (first substance 215 of dairy product fluid) and a second compartment (second chamber 202) containing a second content (second beverage substance 225 of ground coffee) wherein the first content comprises a gas propellant (gas substances) and a liquid ingredient (dairy product fluid) and the second content comprises a brewing ingredient (ground coffee) (‘891, FIG. 2) (‘891, Column 4, lines 13-40). The first content and the second content are kept separate before the brewing process begins (‘891, Column 4, lines 4-12).
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Regarding Claim 2, Aviles et al. discloses the first compartment comprising a solid, imperforate, nonporous housing (‘891, FIG. 2) (‘891, Column 5, lines 59-66) (‘891, Column 10, lines 39-56).
Regarding Claim 3, Aviles et al. discloses the first content (first substance 215) contained in the first compartment (first chamber 201) comprising a dairy product (‘891, FIG. 2) (‘891, Column 4, lines 25-40).
Regarding Claim 4, Aviles et al. discloses the first compartment (first chamber 201) being water tight (‘891, Column 5, lines 59-66) and the first content contained in the first compartment (first chamber 201) comprising a dairy product (‘891, Column 4, lines 25-40).
Regarding Claim 6, Aviles et al. discloses the second compartment (second chamber 202) including a filter (‘891, Column 6, lines 36-38).
Regarding Claim 7, Aviles et al. discloses the brewing ingredient in the second compartment (second chamber 202) comprising coffee (‘891, Column 4, lines 25-40).
Regarding Claim 11, Aviles et al. discloses a third compartment (‘891, Column 5, lines 20-32).
Further regarding Claim 11, the limitations “for containing a third content” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 1 provided above. Nevertheless, Aviles et al. discloses each compartment (chamber) containing contents (one or more dry and/or fluid substances) (‘891, Column 4, lines 25-32).
Regarding Claim 12, Aviles et al. discloses a pod (cartridge 700) comprising an outer shell (container 712 comprising sidewalls 714 and bottom 718), a top cover (lid 738) over the outer shell (container 712 comprising sidewalls 714 and bottom 718) wherein the outer shell (container 712 comprising sidewalls 714 and bottom 718) and top cover (lid 738) forms a first container that stores a first beverage content (second substance 725), and a second container (module 780 comprising chamber 701) internal to and integrated within the first container (‘891, FIG. 7A) (‘891, Column 10, lines 22-64).
Further regarding Claim 12, the limitations “for use in a drink dispensing machine,” “for storing a compressed gas and a liquid,” and “wherein during a brewing process the first beverage content is brewed and the compressed gas and liquid are released from the second container” are seen to be recitations regarding the intended use of the “pod.” In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). 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 claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. Nevertheless, Aviles et al. discloses the second container (module 780 containing first chamber 701) capable of storing a compressed gas and a liquid (first substance 715 containing one or more dry and/or fluid substances of liquids and gases) (‘891, Column 4, lines 25-40) (‘891, Column 10, lines 36-38) to create infusion type beverages (‘891, Column 4, lines 25-40), which indicates that the pod is capable of performing a brewing process wherein the contents of the pod are released to make a beverage. The pod is capable of being used in a drink dispensing machine (‘891, Column 3, lines 26-33).
Regarding Claim 14, Aviles et al. discloses the liquid comprising a milk cream (‘891, Column 4, lines 25-40).
Regarding Claim 20, the limitations “wherein closing a lid on the drink dispensing machine causes a needle to press upwards on a trigger mechanism which activates the second container to release the compressed gas and liquid” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 12 provided above. Nevertheless, Aviles et al. discloses closing a lid on the drink dispensing machine to cause a needle to activate the second container to release its contents (‘891, Column 4, lines 41-57).
Claim 16 is rejected under 35 U.S.C. 102(a)(2) as being anticipated by Aviles et al. US 9,764,891 as applied to claim 12 above as further evidenced by Anton et al. US 2020/0060302.
It is noted that normally only one reference should be used in making a rejection under 35 USC 102. However, a 35 USC 102 rejection over multiple references is held to be proper when the extra references are cited to shows that a characteristic not disclosed in the reference is inherent (MPEP § 2131.01).
Regarding Claim 16, the limitations “wherein during a brewing process the drink dispensing machine injects hot water into the first container to brew coffee and the second container is activated to produce whipped cream, the coffee and whipped cream flow out from the pod and brewing machine” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 12 provided above. Nevertheless, Aviles et al. explicitly discloses the drink dispensing machine injecting hot water into the first container (‘891, Column 4, lines 41-57). Aviles et al. also discloses the second container containing dry powdered milk creamer (‘891, Column 4, lines 25-40). Anton et al. provides evidence that it was known in the beverage pod art that cream powders are capable of delivering a whipped cream when reconstituted (‘302, Paragraph [0025]). Therefore, the dry powdered milk creamer disposed in the pod of Aviles et al. is capable of producing whipped cream when reconstituted with water as evidenced by Anton et al.
Claims 21 and 27 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Wicks et al. US 2019/0002192.
Regarding Claim 21, Wicks et al. discloses a beverage pod (combined first and second capsule 800 and 900) (‘192, Paragraph [0087]) comprising a self contained first compartment (capsule 900) integrated with the beverage pod and a self contained second compartment (capsule 800) integrated with the beverage pod (‘192, FIG. 8) (‘192, Paragraph [0086]).
Further regarding Claim 21, the limitations “wherein the self contained first compartment can hold a compressed gas and a first beverage ingredient” and “wherein the self contained second compartment can hold a second beverage ingredient” and “wherein the first beverage ingredient and the second beverage ingredient can be mixed with a liquid which forms a beverage dispensed from the beverage pod” are seen to be recitations regarding the intended use of the “beverage pod.” In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). 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 claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. The phrase “can hold” and “can be mixed” does not positively recite the presence of the features after the phrase “can hold” or the active step of mixing and only requires the respective compartments to be capable of holding the features after the phrase “can hold” and to be capable of mixing the ingredients together. Nevertheless, Wicks et al. explicitly discloses the first compartment (capsule 900) being capable of holding a compressed gas (nitrogen) and a first beverage ingredient (dairy product 960) (‘192, Paragraphs [0017] and [0086]) and the second compartment (capsule 800) being capable of holding a second beverage ingredient (beverage brewing ingredient 860) (‘192, FIG. 8) (‘192, Paragraph [0086]). Wicks et al. also explicitly discloses the first beverage ingredient (dairy product 960) and the second beverage ingredient (beverage brewing ingredient 860) capable of mixing with a liquid (water) (at outlet 830) to form a beverage dispensed from the beverage pod (‘192, FIG. 8) (‘192, Paragraph [0088]).
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Regarding Claim 27, Wicks et al. discloses the first compartment (capsule 900) being fixedly attached to an approximate center (interengaging fit 850) of the beverage pod (combined first and second capsules 800 and 900) (‘192, FIG. 2) (‘192, Paragraph [0087]).
Claims 21-24 and 27 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Rivera US 2024/0425268.
Regarding Claim 21, Rivera discloses a beverage pod (1600) comprising a self contained first compartment (milk chamber 1602) integrated with the beverage pod (1600) and a self contained second compartment (coffee chamber 1604) integrated with the beverage pod (1600) (‘268, FIG. 16) (‘268, Paragraph [0162]).
Further regarding Claim 21, the limitations “wherein the self contained first compartment can hold a compressed gas and a first beverage ingredient” and “wherein the self contained second compartment can hold a second beverage ingredient” and “wherein the first beverage ingredient and the second beverage ingredient can be mixed with a liquid which forms a beverage dispensed from the beverage pod” are seen to be recitations regarding the intended use of the “beverage pod.” In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). 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 claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. The phrase “can hold” and “can be mixed” does not positively recite the presence of the features after the phrase “can hold” or the active step of mixing and only requires the respective compartments to be capable of holding the features after the phrase “can hold” and to be capable of mixing the ingredients together. Nevertheless, Rivera explicitly discloses the first compartment (milk chamber 1602) being capable of holding a first beverage ingredient (milk) (‘268, Paragraphs [0161]-[0162]) and the second compartment (coffee chamber 1604) capable of holding a second beverage ingredient (ground coffee) (‘268, Paragraphs [0162] and [0166]) and the first beverage ingredient (milk) and the second beverage ingredient (ground coffee) being capable of being mixed with a liquid (water) to form a beverage dispensed from the beverage pod (‘268, Paragraphs [0166] and [0168]).
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Regarding Claim 22, Rivera discloses the first compartment (milk chamber 1602) and the second compartment (coffee chamber 1604) both residing inside the beverage pod and are external to each other (‘268, FIG. 16).
Regarding Claim 23, Rivera discloses the first beverage ingredient (milk) comprising a liquid (liquid milk) (‘268, Paragraph [0109]).
Further regarding Claim 23, the limitations “and the first compartment holds the liquid without leakage until the liquid is intended to be dispensed from the first compartment” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 21 provided above. Nevertheless, Rivera discloses the first compartment holding the contents without leakage until the liquid is intended to be dispensed form the first compartment (‘268, Paragraph [0041]).
Regarding Claim 24, Rivera discloses the first beverage ingredient comprising a milk product (‘268, Paragraphs [0161]-[0162]) and the second ingredient comprising ground coffee (‘268, Paragraph [0166]).
Further regarding Claim 24, the limitations “wherein the compressed gas is released from the first compartment with the milk product and is combined with a coffee drink brewed from the ground coffee held in the second compartment, the beverage pod dispensing the coffee and the milk product for human consumption” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 21 provided above.
Regarding Claim 27, Rivera discloses the first compartment (milk chamber 1602) being fixedly attached to an approximate center of the beverage pod (‘268, FIG. 16).
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 5 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Aviles et al. US 9,764,891 as applied to claim 4 or claim 12 above in view of Perisman et al. US 2021/0317393.
Regarding Claims 5 and 15, Aviles et al. is silent regarding the gas propellant in the first compartment comprising a nitrous oxide gas.
Peirsman et al. discloses a beverage pod (recyclable pod 200) comprising a first compartment (first chamber 212) containing a first beverage ingredient (carbonated beer 220) and a second compartment (second chamber 214) containing a second beverage ingredient (‘393, FIGS. 3-4) (‘393, Paragraph [0076]) wherein the first compartment (chamber) also contains pressurized gas in addition to the concentrated beverage itself wherein the gas is nitrous oxide (‘393, Paragraph [0063]).
Aviles et al. discloses the pod (cartridge) containing any suitable food and one or more dry and/or fluid substances of liquids and gases (‘891, Column 4, lines 25-40). Both Aviles et al. and Perisman et al. are directed towards the same field of endeavor of beverage pods used in a drink dispensing machine. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage pod of Aviles et al. and incorporate nitrous oxide as the compressed gas as taught by Perisman et al. since the selection of a known material (nitrous oxide gas) based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Perisman et al. teaches that there was known utility in the beverage pod art to dispose nitrous oxide into the beverage preparation chamber containing a beverage ingredient.
Claims 21-24 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Rivera US 2024/0425268 in view of Cafaro et al. US 2016/0068334.
Regarding Claim 21, Rivera anticipates the limitations of Claim 21 as enumerated in the anticipation rejections under 35 USC 102 above. However, in the event that it can be argued that Rivera is not capable of holding a compressed with the first beverage ingredient in the first compartment, Cafaro et al. discloses a beverage pod comprising a first compartment containing a first beverage ingredient (beverage medium of concentrated syrups) mixed with a compressed gas (nitrogen) (‘334, Paragraph [0003]).
Both Rivera and Cafaro et al. are directed towards the same field of endeavor of beverage pods used in a beverage brewing machine. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage pod of Rivera and incorporate a compressed gas in the form of nitrogen into the first beverage ingredient disposed in the first compartment as taught by Cafaro et al. in order to impart carbonation to the desired degree to the beverage (‘334, Paragraph [0003]).
Regarding Claim 22, Rivera discloses the first compartment (milk chamber 1602) and the second compartment (coffee chamber 1604) both residing inside the beverage pod and are external to each other (‘268, FIG. 16).
Regarding Claim 23, Rivera discloses the first beverage ingredient (milk) comprising a liquid (liquid milk) (‘268, Paragraph [0109]).
Further regarding Claim 23, the limitations “and the first compartment holds the liquid without leakage until the liquid is intended to be dispensed from the first compartment” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 21 provided above. Nevertheless, Rivera discloses the first compartment holding the contents without leakage until the liquid is intended to be dispensed form the first compartment (‘268, Paragraph [0041]).
Regarding Claim 24, Rivera discloses the first beverage ingredient comprising a milk product (‘268, Paragraphs [0161]-[0162]) and the second ingredient comprising ground coffee (‘268, Paragraph [0166]).
Further regarding Claim 24, the limitations “wherein the compressed gas is released from the first compartment with the milk product and is combined with a coffee drink brewed from the ground coffee held in the second compartment, the beverage pod dispensing the coffee and the milk product for human consumption” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 21 provided above. Nevertheless, Cafaro et al. discloses the compressed gas (nitrogen) being capable of being released from the first compartment with the milk product and combined with a coffee drink brewed from the ground coffee (‘334, Paragraph [0003]).
Regarding Claim 27, Rivera discloses the first compartment (milk chamber 1602) being fixedly attached to an approximate center of the beverage pod (‘268, FIG. 16).
Claims 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Rivera US 2024/0425268 as applied to claim 21 above in view of Alsayar et al. US 2021/0338004 or alternatively Claims 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Rivera US 2024/0425268 in view of Cafaro et al. US 2016/0068334 as applied to claim 21 above in further view of Alsayar et al. US 2021/0338004.
Regarding Claim 25, Rivera or alternatively Rivera modified with Cafaro et al. is silent regarding the first compartment comprising a pressurized canister.
Alsayar et al. discloses a device comprising a pod (cartridge 107) including a pressurized gas canister (‘004, Paragraph [0037]).
Both Rivera and Alsayar et al. are directed towards the same field of endeavor of beverage pods. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage pod of Rivera and incorporate a pressurized canister into the first compartment as taught by Alsayar et al. in order to carbonate or nitrogenate the liquid beverage (‘004, Paragraph [0037]).
Regarding Claim 26, Alsayar et al. discloses a trigger (fluid connector fitting 117) to activate the pressurized canister to dispense the compressed gas and first beverage ingredient (‘004, FIG. 1) (‘004, Paragraph [0037]).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1-4 and 12 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 18-28 of copending Application No. 18/596,493 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the limitations of Claims 18-28 of the copending ‘493 application reads on Claims 1-4 and 12 of the instant application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Allowable Subject Matter
Claims 8-10 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims and if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claims 13 and 17-19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
The closest prior art of record above does not disclose or reasonably suggest a beverage pod for use in a brewing machine wherein the beverage pod comprises a plurality of compartments wherein one of the compartments comprises an aerosol can.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Grover et al. US 2020/0359646 discloses a method of making a beverage precursor comprising applying a gas or vapor or aerosol, e.g. steam, to a mass of particles (‘646, Paragraph [0030]).
Apetrei Birz US 2019/0053535 discloses an aerosol generating system (‘535, Paragraph [0001]).
Savage US 2018/0201436 discloses a beverage pod (cartridge 600) comprising a first compartment containing a first beverage ingredient (upper substance 631) and a second compartment containing a second beverage ingredient (lower substance 630) (‘436, FIG. 6) (‘436, Paragraph [0037]).
Tomasi US 2018/0044105 discloses a beverage pod comprising a first compartment (chamber 12) containing a first beverage ingredient and a second compartment (subchamber 12’) containing a second beverage ingredient (‘105, FIG. 7) (‘105, Paragraph [0097]).
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Wong et al. US 2012/0251668 discloses a beverage pod (capsule 2) comprising three compartments (48a, 48b, 48c) divided by wall elements (‘668, FIG. 3) (‘668, Paragraph [0050]).
Trombetta et al. US 2018/0118450 discloses a beverage pod (capsule 10) comprising a first compartment containing a first beverage ingredient (ingredients 16a) and a second compartment containing a second beverage ingredient (additional ingredients 16b) (‘450, FIG. 3) (‘450, Paragraph [0062]).
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Hanneson et al. US 2017/0362020 discloses a beverage pod (10) comprising a first compartment containing a first beverage ingredient (consumable ingredients 16a) and a second compartment containing a second ingredient (non-consumable ingredients 16b) (‘020, FIG. 5) (‘020, Paragraph [0043]).
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Winkler et al. US 2012/0058226 discloses a beverage pod (cartridge 10) comprising three spaces separated by two filters, walls, dividers, passageways, or venturis (‘226, Paragraph [0035]).
Favre US 2022/0033172 discloses a beverage pod comprising a first compartment (water soluble shell 15a) containing a first beverage ingredient (beverage ingredients 14a) and a second compartment (water soluble shell 15b) containing a second beverage ingredient (beverage ingredients 14b) (‘172, FIG. 5) (‘172, Paragraphs [0051] and [0053]).
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Trombley US 2016/0145037 discloses a beverage pod (beverage cartridge 5) comprising a first compartment (first compartment 51) and a second compartment (second compartment 52) separated by a divider (‘037, FIG. 5) (‘037, Paragraph [0039]).
Vyas et al. US 2014/0370162 discloses a food package comprising three or more compartments (‘162, FIG. 6) (‘162, Paragraph [0065]).
DiLiberto et al. US 2013/0126370 discloses a multicompartment flexible container comprising a first compartment for receiving a material therein, a second compartment for receiving a material therein wherein an adjacent portion of the container between the first and second compartments includes a separable (peelable, frangible, partable) seal to prevent intermixing between the first and second compartments (‘370, Paragraph [0010]).
Missoum et al. US 2025/0026518 discloses a capsule comprising a chamber that is essentially oxygen free whose empty space is saturated with an inert gas such as nitrogen, carbon dioxide, and combinations thereof (‘518, Paragraph [0075]).
Giuliano US 2021/0078794 discloses a pod (pod 100) comprising an inert atmosphere of gaseous nitrogen to preserve the organoleptic characteristics of coffee (‘794, Paragraph [0067]).
Ballering US 2014/0208691 discloses a pod comprising a compartment containing coffee flavorings requiring nitrogen (‘691, Paragraph [0022]).
Trombetta et al. US 2013/0209618 discloses a capsule comprising a compartment flushed with nitrogen (‘618, Paragraph [0071]).
Collias US 2020/0148460 discloses an aerosol package comprising an inert permanent gas (‘460, Paragraph [0005]).
Morgan et al. US 2010/0263545 discloses a gas propellant capsule (‘545, Paragraph [0032]).
Kennedy US 2007/0267447 discloses an aerosol composition meaning any composition that is pressurized from a gas and/or liquefied gas propellant wherein the propellant provides a way to push or move the composition to and/or through an application device (‘447, Paragraph [0043]).
Gorman US 3,106,321 discloses a miniature aerosol unit.
Nitta US 4,776,491 discloses a portable aerosol container (‘491, FIG. 1) (‘491, Column 1, lines 7-9).
Beth Halachmi et al. US 2021/0403221 discloses a beverage pod (500) comprising a first compartment (left compartment 518) containing a first beverage ingredient, a second compartment (right compartment 518) containing a second beverage ingredient, and a third compartment (compartment 520) containing a third beverage ingredient (‘221, FIG. 5A) (‘221, Paragraph [0041]).
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Oakes US 2025/0115417 discloses a beverage pod (cartridge 10) comprising a first compartment containing a first beverage material (first beverage component 22) and a second compartment containing a second beverage material (second beverage component 24) (‘417, FIG. 1) (‘417, Paragraph [0031]).
Holten et al. US 2017/0280927 discloses a beverage pod comprising a first compartment (first chamber 34) containing a first beverage ingredient (first food substance 104 of milk powder) and a second compartment (second chamber 36) containing a second beverage ingredient (second food substance 106 of ground coffee) (‘927, FIGS. 13-20) (‘927, Paragraphs [0095] and [0112]).
Flick US 2015/0266665 discloses a beverage pod comprising a plurality of compartments.
Rondelli US 2014/0255564 discloses a beverage pod comprising a first compartment containing a first beverage ingredient (liquid milk) and a second compartment containing a second beverage ingredient (coffee powder) (‘564, Paragraph [0021]).
Thomas et al. US 6,053,402 discloses a multicompartment carton comprising a first compartment (upper compartment 24) containing a first beverage ingredient (liquid milk) and a second compartment (lower compartment 26) containing a second beverage ingredient (solid foods) isolated from one another in an liquid tight manner (‘402, FIG. 2).
Husband et al. US 2014/0178538 discloses a beverage pod (beverage filter cartridge 10) in the form of a canister (‘538, FIGS. 1-5) (‘538, Paragraph [0014]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERICSON M LACHICA/Examiner, Art Unit 1792