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 .
Election/Restrictions
Applicant's election with traverse of Group I: Claims 1-11 and 16-20 in the reply filed on March 9, 2026 is acknowledged. The traversal is on the ground(s) that there is not enough specific/concise factual development in the requirement to determine whether there is any actual sufficient distinctness between the alleged Groups and that there exists only overbroad speculation and/or unsupported inconcise nonspecific conclusion. Applicant contends that the restriction requirement states a statement that is not a concise factual reason for distinctness of any of the groups and applicant has no reasonable means for arguing the impropriety thereof and that it is not specifically alleged which feature is the technical feature in issue. Applicant continues that Gort-Barten teaches the second layer 51 is arranged between the first layer 50 and the third layer 52 and that the second layer 51 faces the third layer 52 rather than the upper side of the annular flange and that Gort-Barten does not disclose painting any layer of cellulose material and only discloses that the seal can also be a different color to the color of the capsule which is linked to a ring shaped seal made from aluminum and that none of the passages cited mentions a colored ring shaped seal. Applicant continues that the sealing profile of Pucci is the flange itself and does not disclose a sealing member arranged on the flange and the flange of Pucci s made from plastic material or a metallic material and fails to disclose coloring a cellulose material or an independent sealing member comprising an outer layer made from cellulose and coloring a cellulose material. Applicant continues that Harif fails to disclose a sealing member arranged on the upper side of the flange or a sealing member comprising a layer of cellulose material and mentions that the sealing member made from a polymer can be colored and Paragraph [0060] of Harif teaches coating the sealing member made of a polymer and fails to disclose a mass colored cellulose material. This is not found persuasive because Gort-Barten discloses the seal can be a different color to the color of the capsule (‘144, Page 5, lines 28-32) wherein the sealing member comprises a first layer 53 made of cellulose based material and a further layer 56 comprising an adhesive (‘144, Page 4, lines 16-23). The further layer 56 comprising an adhesive would necessarily correspond to the claimed inner layer comprising an adhesive and the first layer 53 made of cellulose based material would correspond to the outer layer of the sealing member. The secondary reference Pucci discloses the sealing member (sealing profile) being made with different colors (‘915, Paragraph [0021]) and Harif also discloses the sealing member (sealing member 200) being colored (‘355, Paragraph [0060]). The primary reference of Gort-Barten already teaches the sealing member being disposed on the flange (‘144, FIG. 2). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Furthermore, the technical feature is also taught by the combination of references enumerated below in the obviousness rejections under 35 USC 103(a).
The requirement is still deemed proper and is therefore made FINAL.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on March 7, 2024 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claims 2-11, 16-18, and 20 are objected to because of the following informalities:
Claims 2-11 and 16-18 all recite the limitation “A capsule according to claim [a claim that ultimately depends from claim 1].” It appears the claims should recite “The capsule according to claim” for grammatical purposes.
Claim 20 recites the limitation “A capsule according to claim 19” in line 1. It appears the claim should recite “The capsule according to claim 19” for grammatical purposes.
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 1-11 and 16-20 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 “beverage ingredients” in line 3. It is unclear if this refers to “beverage ingredients” recited in Claim 1, line 3 or to entirely different beverage ingredients. For purposes of examination Examiner interprets the claim to refer to the same beverage ingredients.
Claim 1 recites the limitation “an outer layer having a mass colored cellulose material” in line 13. It is unclear what is meant by the term “mass” in the context of a colored cellulose material. For purposes of examination Examiner interprets the claim to require an outer layer to be made of a colored cellulose material.
Claim 10 recites the limitation “the water repellant material” in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation “beverage ingredients” in line 3. It is unclear if this refers to “beverage ingredients” recited in Claim 19, line 1 or to entirely different beverage ingredients. For purposes of examination Examiner interprets the claim to refer to the same beverage ingredients.
Claim 19 recites the limitation “an outer layer having a mass colored paper or mass colored cardboard” in line 13. It is unclear what is meant by the term “mass” in the context of a colored paper or colored cardboard. For purposes of examination Examiner interprets the claim to require an outer layer to be made of a colored paper or a colored cardboard.
Clarification is required.
Claims 2-9, 11, 16-18, and 20 are rejected as being dependent on a rejected base claim.
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 1-3, 8-9, 11, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Gort-Barten WO 2019/092144 (cited on Information Disclosure Statement filed March 7, 2024) in view of Chen et al. US 2024/0083648 and Wilbur US 2019/0062042.
Regarding Claim 1, Gort-Barten discloses a capsule (capsule 1) comprising a body (main body 2) defining a cavity wherein the body comprises an upper portion (upper end 3) and a lower portion, a sidewall extending from the upper portion (upper end 3) to the lower portion, the lower portion comprising an annular flange (flange 7) outwardly extending from the sidewall, the annular flange (flange 7) comprising an upper side facing towards the upper portion (upper end 3) of the body (main body 2) (‘144, Page 3, lines 23-27) and a sealing member (ring shaped seal 10) arranged on the upper side of the annular flange (flange 7) (‘144, Page 4, lines 7-8). The sealing member (ring shaped seal 10) comprises an inner layer (further layer 56) facing the upper side of the annular flange (flange 7) comprising an adhesive (‘144, Page 4, lines 16-23) (‘144, Page 5, line 1) and an outer layer (first layer 53) made of a cellulose material (‘144, FIGS. 2 and 5B) (‘144, Page 4, lines 16-23).
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Gort-Barten discloses the seal to be a “mass” colored material (‘144, Page 5, lines 28-32). However, Gort-Barten is silent regarding specifically the outer layer of the sealing member which outer layer is made of a cellulose material to be a mass colored material.
Wilbur discloses in many applications it is desirable to print information and/or graphics to be visible on the outer envelope and may provide color and logo for branding purposes wherein printing is done on the outside of the packaging layer and material is solid in color (‘042, Paragraph [0041]). Chen et al. discloses a beverage capsule (‘648, Paragraph [0062]) made from a fibrillated cellulose material (‘648, Paragraph [0002]) wherein a composite of fibrillated cellulose and polymer includes a colorant such as pigments and/or dyes (‘648, Paragraph [0058]).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the outer layer of the sealing material which layer is made of cellulose and which sealing material is a colored material of the capsule of Gort-Barten and construct specifically the outer layer of the sealing member to be a “mass” colored material since Wilbur teaches that it can be desirable to print information and/or graphics including color that is visible for branding purposes (‘042, Paragraph [0041]). It is noted that Chen et al. teaches that there was known utility in the beverage capsule art to construct a composite of fibrillated cellulose and polymer with colorants.
Further regarding Claim 1, the limitations “for containing beverage ingredients configured to be inserted in a beverage production device” and “to contain beverage ingredients” are seen to be recitations regarding the intended use of the “capsule.” 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.
Regarding Claims 2-3, Gort-Barten discloses the outer layer of the sealing member being made of a cellulose material of paper (‘144, Page 6, lines 12-18) that is capable of swelling when the coffee machine is in use which swelling enables a better seal (‘144, Page 4, lines 29-30). Applicant discloses absorption by water of the cellulose material is configured to expand or swell when water is absorbed (Specification, Page 4, lines 25-33). Therefore, the disclosure of the paper material of the sealing member of Gort-Barten reads on the claimed outer layer of the sealing member being configured to absorb a predetermined amount of water and being configured to expand (swell) when water is absorbed. It is noted that the claims do not specify the particular predetermined amount of water.
Regarding Claim 8, Gort-Barten discloses the “mass” colored cellulose material being a “mass” colored cardboard (‘144, Page 4, lines 9-15). Chen et al. also discloses the cellulose material being a cellulose paperboard (‘648, Paragraph [0071]).
Regarding Claim 9, Gort-Barten discloses the sealing member (sealing ring 10) comprising an intermediate layer (aluminum foil layer 55) between the outer layer (first layer 53) and the inner layer (further layer 56) (‘144, FIG. 5B) (‘144, Page 4, lines 16-23).
Regarding Claim 11, Gort-Barten discloses the thickness of the sealing member (ring shaped seal 10) being between 0.1-0.3 mm (‘144, FIG. 2) (‘144, Page 4, lines 7-8), which converts to a sealing member thickness of between 100 µm and 300 µm, which overlaps the claimed sealing member thickness of between 200 µm and 700 µm. It would have been obvious to one of ordinary skill in the art at the time of the invention to make the sealing member have the claimed thickness as taught by Gort-Barten since where the claimed sealing member thickness ranges overlaps sealing member thickness ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the sealing member thickness will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such sealing member thickness is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 18, Gort-Barten discloses the thickness of the sealing member (ring shaped seal 10) being between 0.1-0.3 mm (‘144, FIG. 2) (‘144, Page 4, lines 7-8), which converts to a sealing member thickness of between 100 µm and 300 µm, which is close to but does not overlap the claimed sealing member thickness of between 330 µm and 550 µm. A prima facie case of obviousness exists where the claimed sealing member thickness ranges do not overlap with the prior art but are merely close in view of Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (MPEP § 2144.05.I.).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Gort-Barten WO 2019/092144 (cited on Information Disclosure Statement filed March 7, 2024) in view of Chen et al. US 2024/0083648 and Wilbur US 2019/0062042 as applied to claim 1 above in further view of Raue et al. US 2016/0114557.
Regarding Claim 4, Gort-Barten modified with Chen et al. and Wilbur is silent regarding a color of the outer layer of the sealing member being substantially uniform along the whole thickness of the outer layer.
Raue et al. discloses a multilayered food casing which does not comprise a non-uniformly colored surface (‘557, Paragraph [0019]).
Both Gort-Barten and Raue et al. are directed towards the same field of endeavor of multilayered food containers. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the color of the outer layer of the sealing member to be substantially uniform along the whole thickness of the outer layer since Raue et al. teaches that there was known utility in the food container art to have a casing having a uniformly colored surface. Furthermore, matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art in view of In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (MPEP § 2144.04.I.).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Gort-Barten WO 2019/092144 (cited on Information Disclosure Statement filed March 7, 2024) in view of Chen et al. US 2024/0083648 and Wilbur US 2019/0062042 as applied to claim 1 above in further view of Planchard et al. US 2022/0402669.
Regarding Claim 5, Gort-Barten modified with Chen et al. and Wilbur is silent regarding the outer layer of the sealing member comprising a porosity between 550 and 800 cm3/ min according to the Bendtsen porosity test defined in ISO 5636-3:2013.
Planchard et al. discloses a lid for sealing a beverage capsule (‘669, Paragraph [0001]) comprising a cellulose (‘669, Paragraph [0058]) wherein the cellulose fiber base sheet has a sufficient porosity as measured using a Bendtsen porosity tester according to the ISO 5636-3 standard to allow easier penetration of a gelatinizing agent used in the parchmentizing process into the fibrous structure of the cellulose fiber base sheet (‘669, Paragraph [0031]) wherein a low porosity of the cellulose fiber sheet does not allow the gelatinizing agent to reach the core of the fibrous structure and too high of a porosity results in a cellulose fiber sheet that does not have enough mechanical strength to run through the parchmentizing process and results in a more easily ruptured cellulose fiber (‘669, Paragraph [0032]).
Both Gort-Barten and Planchard et al. are directed towards the same field of endeavor of beverage capsules comprising a component made of cellulose. Although Planchard et al. does not explicitly state the particular porosity of the outer layer of the sealing member to be between 550 and 800 cm3/min according to the Bendtsen porosity test, Planchard et al. teaches the porosity of the cellulose fiber sheet influencing the mechanical strength/rupturability of the cellulose fiber. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of Gort-Barten and adjust the porosity of the outer layer of the sealing member to fall within the claimed porosity range since differences in the porosity of the outer layer of the sealing member will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such porosity of the outer layer of the sealing member is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would adjust the porosity of the outer layer of the sealing member of Gort-Barten based upon the desired mechanical strength/rupturability of the cellulose fiber that makes up the sealing member as suggested by Planchard et al.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Gort-Barten WO 2019/092144 (cited on Information Disclosure Statement filed March 7, 2024) in view of Chen et al. US 2024/0083648 and Wilbur US 2019/0062042 as applied to claim 1 above in further view of Martin-Portugues et al. US 2007/0172687.
Regarding Claim 5, Gort-Barten modified with Chen et al. and Wilbur is silent regarding the outer layer of the sealing member comprising a porosity between 550 and 800 cm3/ min according to the Bendtsen porosity test defined in ISO 5636-3:2013.
Martin-Portugues et al. discloses a laminated substrate comprising paper (‘687, Paragraph [0001]) comprising cellulose fibers (‘687, Paragraph [0016]) wherein the paper has a Bendtsen porosity of from 400 to 1200 ml/min (‘687, Paragraph [0017]), which converts to a porosity of between 400 to 1200 cm3/min, which encompasses the claimed porosity range of between 550 and 800 cm3/min. Martin-Portugues et al. also discloses the porosity being appropriately adapted to the impregnation requirements (‘687, Paragraph [0017]).
Both Gort-Barten and Martin-Portugues et al. are directed towards the same field of endeavor of cellulosic compositions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of Gort-Barten and adjust the porosity of the outer layer of the sealing member to fall within the claimed porosity range as taught by Martin-Portugues et al. since where the claimed porosity of the cellulose based outer layer of the sealing member overlaps the porosity of cellulose based materials disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the porosity of the outer layer of the sealing member will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such porosity of the outer layer of the sealing member is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would adjust the porosity of the outer layer of the sealing member of Gort-Barten based upon the desired amount of resins to be impregnated with the cellulose as suggested by Planchard et al. (‘687, Paragraphs [0017] and [0059]).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Gort-Barten WO 2019/092144 (cited on Information Disclosure Statement filed March 7, 2024) in view of Chen et al. US 2024/0083648 and Wilbur US 2019/0062042 as applied to claim 1 above in further view of Brivois US 2022/0348402.
Regarding Claim 6, Gort-Barten modified with Chen et al. and Wilbur is silent regarding the outer layer of the sealing member comprising a water absorptiveness of between 200 and 300 g/m2 according to the Cobb test at 60 seconds defined in ISO 535:2014.
Brivois discloses a capsule (‘402, Paragraph [0031]) comprising a sealing member (sealing ring 10) made from an absorbent paper based material having a water absorption rate greater than or equal to 200 ml/cm3 as measured by the Cobb method in standard NF ISO 535 to improve the sealing effect by absorbing quantities of liquid (‘402, Paragraph [0047]) which Cobb test is measured for an exposure time of 60 seconds (‘402, Paragraph [0053]). The disclosure of Brivois of the paper based sealing member having a water absorptiveness of greater than or equal to 200 ml/cm3 as measured by the Cobb method in standard NF ISO 535 encompasses the claimed water absorptiveness of between 200 and 300 g/m2 according to the Cobb test at 60 seconds defined in ISO 535:2014.
Both Gort-Barten and Brivois are directed towards the same field of endeavor of beverage capsules. Both beverage capsules of Gort-Barten and Brivois comprise a sealing member made at least partially of paper/cellulose. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the water absorptiveness of the paper based sealing member of Gort-Barten to have the claimed water absorptiveness as taught by Brivois since where the claimed sealing member water absorptiveness ranges overlaps sealing member absorptiveness ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Brivois discloses that the claimed water absorption rate improves the sealing effect by absorbing quantities of liquid (‘402, Paragraph [0047]).
Claims 7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Gort-Barten WO 2019/092144 (cited on Information Disclosure Statement filed March 7, 2024) in view of Chen et al. US 2024/0083648 and Wilbur US 2019/0062042 as applied to claim 1 above in further view of Oh US 2022/0227574.
Regarding Claims 7 and 16, Gort-Barten modified with Chen et al. and Wilbur is silent regarding the outer layer of the sealing member comprising an internal bond strength between 150 and 250 J/m2 or between 170 and 220 J/m2 according to the Scott test defined in TAPPI T569.
Oh discloses a capsule (beverage pod 10) (‘574, Paragraph [0063]) comprising first and second bonds that are permanent or peelable depending on the application wherein the desired strength of the bond is adjusted (‘574, Paragraph [0068]).
Both Gort-Barten and Oh are directed towards the same field of endeavor of beverage capsules. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the internal bond strength of the outer layer of the sealing member of Gort-Barten since differences in the internal bond strength of the outer layer of the sealing member will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such internal bond strength of the outer layer of the sealing member is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Oh discloses that there was known utility in the beverage capsule art to adjust the bond strength to the desired levels (‘574, Paragraph [0068]).
Claims 10 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Gort-Barten WO 2019/092144 (cited on Information Disclosure Statement filed March 7, 2024) in view of Chen et al. US 2024/0083648 and Wilbur US 2019/0062042 as applied to claim 9 above as further evidenced by Bartoli et al. US 2022/0388763 and Byun US 2018/0009601.
Regarding Claims 10 and 17, Gort-Barten discloses the sealing member comprising an intermediate layer of aluminum (aluminum foil layer 55) (‘144, Page 4, lines 16-23). Bartoli et al. provides evidence that it was known in the beverage capsule art (‘763, Paragraph [0001]) that aluminum is a material that is resistant to liquids and/or gases (‘763, Paragraph [0069]), i.e. aluminum is a water repellant material. Byun also provides evidence that it was known in the beverage container art (‘601, Paragraph [0007]) that aluminum is a type of water resistant material (‘601, Paragraph [0115]), i.e. aluminum is a water repellant material.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Gort-Barten WO 2019/092144 (cited on Information Disclosure Statement filed March 7, 2024) in view of Chen et al. US 2024/0083648 and Wilbur US 2019/0062042 as applied to claim 11 above in further view of Harif US 2018/0105355.
Regarding Claim 18, Gort-Barten renders obvious the limitations regarding the claimed thickness of the sealing member as enumerated in the rejection of Claim 18 above. However, in the event that it can be shown with objective evidence that the claimed sealing member thickness being between 330 µm and 550 µm is critical, Harif discloses a capsule comprising a sealing member (ring 210) having a thickness of 300-800 µm (‘355, FIG. 6B) (‘355, Paragraph [0059]), which overlaps the claimed sealing member thickness of between 330 µm and 550 µm.
Both Gort-Barten and Harif are directed towards the same field of endeavor of beverage capsules. Both beverage capsules of Gort-Barten and Harif have a sealing member. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the thickness of the sealing member of Gort-Barten to fall within the claimed sealing member thickness as taught by Harif since where the claimed sealing member thickness ranges overlaps sealing member thickness ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Gort-Barten WO 2019/092144 (cited on Information Disclosure Statement filed March 7, 2024) in view of Chen et al. US 2024/0083648, Wilbur US 2019/0062042, and Raue et al. US 2016/0114557.
Regarding Claim 19, Gort-Barten discloses a capsule (capsule 1) comprising a body (main body 2) defining a cavity wherein the body comprises an upper portion (upper end 3) and a lower portion, a sidewall extending from the upper portion (upper end 3) to the lower portion, the lower portion comprising an annular flange (flange 7) outwardly extending from the sidewall, the annular flange (flange 7) comprising an upper side facing towards the upper portion (upper end 3) of the body (main body 2) (‘144, Page 3, lines 23-27) and a sealing member (ring shaped seal 10) arranged on the upper side of the annular flange (flange 7) (‘144, Page 4, lines 7-8). The sealing member (ring shaped seal 10) comprises an inner layer (further layer 56) facing the upper side of the annular flange (flange 7) comprising an adhesive (‘144, Page 4, lines 16-23) (‘144, Page 5, line 1) and an outer layer (first layer 53) made of a cellulose material (‘144, FIGS. 2 and 5B) (‘144, Page 4, lines 16-23) of cardboard (‘144, Page 4, lines 9-11).
Gort-Barten discloses the seal to be a “mass” colored material (‘144, Page 5, lines 28-32). However, Gort-Barten is silent regarding specifically the outer layer of the sealing member which outer layer is made of a cellulose material to be a mass colored material.
Wilbur discloses in many applications it is desirable to print information and/or graphics to be visible on the outer envelope and may provide color and logo for branding purposes wherein printing is done on the outside of the packaging layer and material is solid in color (‘042, Paragraph [0041]). Chen et al. discloses a beverage capsule (‘648, Paragraph [0062]) made from a fibrillated cellulose material (‘648, Paragraph [0002]) wherein a composite of fibrillated cellulose and polymer includes a colorant such as pigments and/or dyes (‘648, Paragraph [0058]).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the outer layer of the sealing material which layer is made of cellulose and which sealing material is a colored material of the capsule of Gort-Barten and construct specifically the outer layer of the sealing member to be a “mass” colored material since Wilbur teaches that it can be desirable to print information and/or graphics including color that is visible for branding purposes (‘042, Paragraph [0041]). It is noted that Chen et al. teaches that there was known utility in the beverage capsule art to construct a composite of fibrillated cellulose and polymer with colorants.
Further regarding Claim 19, Gort-Barten modified with Chen et al. and Wilbur is silent regarding a color of the outer layer of the sealing member being substantially uniform along the whole thickness of the outer layer.
Raue et al. discloses a multilayered food casing which does not comprise a non-uniformly colored surface (‘557, Paragraph [0019]).
Both Gort-Barten and Raue et al. are directed towards the same field of endeavor of multilayered food containers. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the color of the outer layer of the sealing member to be substantially uniform along the whole thickness of the outer layer since Raue et al. teaches that there was known utility in the food container art to have a casing having a uniformly colored surface. Furthermore, matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art in view of In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (MPEP § 2144.04.I.).
Further regarding Claim 19, the limitations “for containing beverage ingredients configured to be inserted in a beverage production device” and “to contain beverage ingredients” are seen to be recitations regarding the intended use of the “capsule.” 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.
Regarding Claim 20, Gort-Barten discloses the outer layer of the sealing member being made of a cellulose material of paper (‘144, Page 6, lines 12-18) that is capable of swelling when the coffee machine is in use which swelling enables a better seal (‘144, Page 4, lines 29-30). Applicant discloses absorption by water of the cellulose material is configured to expand or swell when water is absorbed (Specification, Page 4, lines 25-33). Therefore, the disclosure of the paper material of the sealing member of Gort-Barten reads on the claimed outer layer of the sealing member being configured to absorb a predetermined amount of water and being configured to expand (swell) when water is absorbed. It is noted that the claims do not specify the particular predetermined amount of water.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Footz et al. US 2021/0354405 discloses materials having low porosity tend to be slower to break down than similar materials with higher porosity and increased porosity contributes to greater surface area at the microscopic scale wherein by combining one material having a lower porosity with another material having higher porosity relative to the first material decomposition of the material with lower porosity may be accelerated based on the first and the second materials being included in a single container (‘405, Paragraph [0049]).
Clausi et al. US 5,135,764 discloses a tea bag material having a porosity of from about 300 cubic feet per minute to about 650 cubic feet per minute of air per square foot at 0.5 inches of water pressure.
Kay US 2022/0388764 discloses a capsule comprising a sealing member made of fibers and/or paper material that has been coloured with ink or provided with some kind of ink printing at its outer surface (‘764, Paragraph [0017]).
Petrie US 2018/0354691 discloses cardboard is capable of absorbing liquids such as oil and/or water wherein when cardboard absorbs a liquid the cardboard may lose its strength (‘691,Paragraph [0004]).
Pilipski US 2018/0319978 discloses paper and other cellulosic materials are used as packaging materials for liquid goods wherein cellulose is a hygroscopic material that absorbs water and many other liquid substances (‘978, Paragraph [0013]).
Meelker et al. US 2013/0064936 discloses a capsule comprising a swellable sealing member made as a laminate including an adhesive layer, an absorbing layer, and a water transmitting anti adhesive top coating wherein the swelling or volume increase is caused by the presence of water or by a rise in temperature wherein the swellable seal is made from super absorbent polymer, i.e. crosslinked hydrogels in the form of nonwovens, natural fibers such as paper or cardboard, or materials having a large thermal coefficient of expansion (‘936, Paragraph [0100]).
Kamerbeek et al. US 2012/0231124 discloses a capsule comprising a sealing member (sealing member 216B) made with a water repellant substance of PTFE or a different water repellant substance and suppresses radial water leakage of water absorbed in the sealing member (‘124, Paragraph [0065]) wherein the sealing member (ring shaped sealing member 216B) is provided with ring shaped strips of adhesive material to provide an improved sealing effect (‘124, Paragraph [0073]) wherein the sealing member (sealing member 216B) is made of a fibrous and/or paperlike material (‘124, Paragraph [0064]).
MacMahon et al. US 2009/0311384 discloses a capsule (pod) comprising a sealing member (gasket seal on or adjacent the upper surface for sealing against a pod holder of a beverage preparation machine) (‘384, Paragraph [0047]) which seal allows for improved water flow through the pod by limiting or eliminating water by pass in the pod holder of the beverage preparation machine (‘384, Paragraph [0050]).
Reilly et al. US 2014/0037916 discloses a single cup brew lid (‘916, Paragraph [0002]) comprising a colored paper (‘916, Paragraph [0042]).
Braumadnl et al. US 2021/0049852 discloses a capsule comprising pigment particles provided in or on the body of the capsule or also in or on the film closing the body wherein the particles are contained in a transparent film and/or to the body laminated thereto (‘852, Paragraph [0050]).
Gerbaulet et al. US 2019/0225411 discloses a capsule comprising a laminated structure having an outer polymer film reverse printed at its inner surface wherein the outer polymer film comprises a colored ink (‘411, Paragraph [0024]).
Dolan Jr. US 2016/0244250 discloses a capsule comprising lecuo dye coating applied to thermal paper to provide visible color changes at temperature transition levels of around 180F common in the coffee brewing process (‘250, Paragraph [0078]).
Chen et al. US 2019/0062998 discloses a coffee capsule made of nanofibrillated cellulose (‘998, Paragraph [0007]).
Zimmer et al. US 2024/0165936 discloses a coffee capsule made from a multilayer packaging structure (‘936, Paragraph [0037]) comprising a paperboard layer comprising an external layer of pigment coating (‘936, Paragraphs [0039]-[0040]).
Segal US 2019/0249369 discloses a capsule (coffee pod) (‘369, Paragraph [0081]) comprising a waterproof laminate comprising paper (‘369, Paragraph [0083]).
Maccone et al. US 2003/0134972 discloses it is well known that paper used for packaging coffee is necessary that the paper be treated with components capable of conferring resistance to oils and fats (‘972, Paragraph [0004]).
Sinclair et al. US 5,444,113 discloses a polymer composition comprising hydroscopic additives of cellulosic compounds such as starches and wood flour and pigments added to color the polymer compositions if desired.
Thibado et al. US 2017/0144813 discloses a food packaging container comprising one or more exterior layers arranged on an outer or exposed surface of sheet material of the food packaging container wherein the exterior layer includes one or more pigments (‘813, Paragraph [0027]).
Wittekind et al. US 4,863,601 discloses a method of making paperboard hydrophobic by treating the paperboard with a water insoluble water repellant compound containing an aqueous sodium stearate and aluminum acetate solution.
Furneaux US 2007/0259139 discloses a capsule comprising two different sealing layers wherein a second heat sealable layer has a lower sealing initiation energy than the material of a first heat sealable layer wherein it is possible to bond the sheet with a light sealing strength such that just sufficient energy is used to bond both sealant layers together (‘139, Paragraph [0016]).
Kelly et al. US 2022/0274729 discloses a beverage container (‘729, Paragraph [0200]) comprising marks that each have a uniform color to convey information related to the container (‘729, Paragraph [0218]).
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.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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