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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on July 8, 2026 was filed after the mailing date of the Non Final Rejection mailed on May 26, 2026. 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 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 1-6, 8, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Yoakim et al. US 2011/0041702 in view of Appleford et al. US 2020/0231370 as further evidenced by Parker et al. US 2020/0063373 and Riebel et al. US 5,593,625.
Regarding Claim 1, Yoakim et al. discloses a capsule (capsule 1) comprising a cup shaped body (frustoconical body 2) with a bottom wall (inlet wall 5), a lateral wall (sidewall 4), and a flange (rim 3), and a cover (lower delivery wall 7) sealed onto the flange (rim 3) for closing the cup shaped body (frustoconical body 2) (‘702, Paragraphs [0046] and [0048]). The bottom wall (inlet wall 5) comprises at least a fluid injection portion (structure 8) and at least a surrounding portion surrounding the fluid injection portion (structure 8). The cup shaped body (frustoconical body 2) comprises a cellulose pulp layer (‘702, Paragraphs [0039] and [0055]). The cup shaped body is integrally molded formed by the bottom wall (inlet wall), lateral wall (sidewall), and flange (rim) (‘702, Paragraph [0032]). Therefore, the cellulose pulp layer from which the cup shaped body is made extends throughout the bottom wall, lateral wall, and flange since the cup shaped body is integrally molded and formed by the bottom wall, lateral wall, and flange. The thickness of the fluid injection portion (structure 8) is less than the thickness of the at least a surrounding portion (‘702, FIG. 1) (‘702, Paragraph [0049]).
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Yoakim et al. discloses the capsule body being molded (‘702, Paragraph [0032] and the reduced thickness rea representing the fluid injection portion being obtained by molding (‘702, Paragraph [0052]). Parker et al. provides evidence that it was known in the beverage container art that a paperboard coffee container (‘373, Paragraph [0645]) made by using a mold to compress wet formed fibrous articles onto the mold cavity to remove liquid from the fibers and reducing the thickness subsequently increases the density of the walls of the article (‘373, FIG. 57) (‘373, Paragraph [0688]). Therefore, the molded capsule of Yoakim et al. that has altered wall thicknesses that are reduced relative to a surrounding portion necessarily has increased density in the areas that have reduced thickness as evidenced by Parker et al. (‘373, Paragraph [0688]).
Further regarding Claim 1, Yoakim et al. is silent regarding an oxygen barrier liner attached to the cellulose pulp layer and the density of at least a portion of the cellulose pulp layer of the fluid injection portion being increased with respect to the density of the cellulose pulp layer of the surrounding portion and a stiffness of the fluid injection portion being increased with respect to a stiffness of the surrounding portion.
Appleford et al. discloses a capsule comprising a cup shaped body with a bottom wall (base), a lateral wall, and a flange, and a cover (lid) sealed onto the flange for closing the cup shaped body (‘370, Paragraph [0014]). The bottom wall comprises at least a fluid injection portion (3) and at least a surrounding portion surrounding the fluid injection portion (3) wherein the thickness of the fluid injection portion (3) is less than the thickness of the at least a surrounding portion (‘370, FIG. 2) (‘370, Paragraph [0078]). The cup shaped body comprises a molded pulp layer (‘370, Paragraph [0014]) and an oxygen barrier liner (internal biopolymer liner) attached to the molded pulp layer (‘370, Paragraphs [0079] and [0106]). Appleford et al. also discloses altering the wall thickness through the design of the final mold sets providing varied density of the wall to provide the ability to locally strengthen the capsule (‘370, Paragraphs [0064]-[0065]). The fluid injection portion (3) of the bottom wall is capable of being pierced by a piercing member of a beverage preparation device (‘370, Paragraphs [0072] and [0078]) wherein the pulp fiber capsule is designed such that the piercing area is improved via a thinner wall section and increased fiber compression (‘370, Paragraph [0078]).
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Riebel et al. provides evidence that it was known in the art that biocomposite particulate materials made from a ground leguminous crop and cellulosic material that forms a structurally rigid thermoset biocomposite material upon fusing the particulate material (‘625, Column 1, lines 14-20) have pressure formed materials exhibiting greater strength, stiffness, density, hardness, and durability than particle board or other wood composite or cellulose based composite board products (‘625, Column 4, lines 45-54) wherein the mechanical and physical properties of the pressure formed materials is controlled and engineered as desired such as the strength of the pressure formed products is varied to a representative fiberboard (‘625, Column 13, lines 22-37). Therefore, the areas of reduced thickness having improved piercing having increased fiber compression disclosed by Appleford et al. (‘370, Paragraph [0078]) necessarily has greater stiffness in the areas of reduced thickness that are pressure formed as evidenced by Riebel et al.
Both Yoakim et al. and Appleford et al. are directed towards the same field of endeavor of beverage capsules made by molding processes which beverage capsules are used in beverage preparation machines to prepare a beverage. Both beverage capsules of Yoakim et al. and Appleford et al. are made of pulp based materials, e.g. cellulose, and contain a bottom wall comprising a fluid injection portion having a reduced thickness compared to a surrounding portion. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage capsule of Yoakim et al. and incorporate an oxygen barrier liner that is attached to the pulp layer as taught by Appleford et al. in order to improve the barrier properties of the capsule and to reduce the likelihood of pulp fibers entering the coffee product (‘370, Paragraph [0079]). Furthermore, the disclosure of both Yoakim et al. and Appleford et al. having reduced thickness areas necessarily reads on the stiffness being increased with respect to a stiffness of the surrounding portion as evidenced by Riebel et al.
Further regarding Claim 1, the limitations “for the preparation of a beverage in a beverage preparation device,” “suitable for being pierced by a piercing member of the beverage preparation device,” and “such as to improve the piercing of said fluid injection portion by the piercing member” 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. Nevertheless, Yoakim et al. discloses the capsule being used for the preparation of a beverage in a beverage preparation device (injection device 50) (‘702, FIG. 4) (‘702, Paragraph [0046]). The bottom wall is capable of being pierced by a piercing member (blades 20, 21, 22) of the beverage preparation device (injection device 50) (‘702, FIGS. 4 and 10) (‘702, Paragraph [0049]) to improve the piercing of the fluid injection portion (structure 8) by the piercing member (blades 20, 21, 22) (‘702, Paragraph [0030]).
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Regarding Claim 2, Yoakim et al. discloses the thickness of the fluid injection portion being decreased (reduced) by at least 20 to 30% compared to that of the sidewall or of the inlet wall outside the annular portion (‘702, Paragraph [0011]), which overlaps the claimed thickness of the fluid injection portion being decreased by 10%-80% with respect to the thickness of the at least a surrounding portion. Where the claimed decrease in thickness of the fluid injection portion relative to the thickness of the at least a surrounding portion overlaps decrease in thickness of the fluid injection portion relative to the thickness of the at least a surrounding portion 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, Yoakim et al. discloses the locally reduced thickness of the inlet wall compared to the thickness of the inlet wall outside the structure decreases perforation resistance compared to the other parts of the body of the capsule to facilitate piercing by the blades (‘702, Paragraph [0030]). Differences in the thickness of the fluid injection portion relative to the thickness of the at least a surrounding portion will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such thickness of the fluid injection portion relative to the thickness of the at least a surrounding portion 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 would adjust the thickness of the fluid injection portion relative to the thickness of the at least a surrounding portion based upon the desired degree of easiness of which to pierce the fluid injection portion.
Regarding Claim 3, Yoakim et al. modified with Appleford et al. is silent regarding the thickness of the portion of the cellulose pulp layer of the fluid injection portion being less than the thickness of the portion of the cellulose pulp layer of the at least a surrounding portion wherein the thickness of the oxygen barrier liner remains the same both in the fluid injection portion and in the at least a surrounding portion. However, Appleford et al. discloses different thicknesses being created to locally strengthen the coffee capsule (‘370, Paragraphs [0064]-[0065]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Yoakim et al. and adjust the thicknesses of various areas of the capsule as desired based upon the desired strength of various areas of the capsule as taught by Appleford et al.
Regarding Claim 4, Appleford et al. discloses altering the wall thickness through the design of the final mold sets providing varied density of the wall to provide the ability to locally strengthen the capsule (‘370, Paragraphs [0064]-[0065]). Although Appleford et al. does not explicitly disclose the density of the fluid injection portion being greater than the density of the at least a surrounding portion by 5% to 10%, the particular placement of the more dense area is held to be an obvious matter of design choice in view of In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (MPEP § 2144.04.VI.C.). Additionally, differences in the ratio of the thickness of the fluid injection portion relative to the at least a surrounding portion will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating cush ratio of the thickness of the fluid injection portion relative to the at least a surrounding portion 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.). Appleford et al. generally teaches varying the density of the wall at different areas.
Regarding Claim 5, Yoakim et al. discloses the cup shaped body (frustoconical body) being made of cellulose based material (‘702, Paragraph [0055]). Appleford et al. discloses the cup shaped body being made entirely of molded pulp fibers (‘370, Paragraph [0014]). The disclosure of the cup shaped body being made entirely of molded pulp fibers is equivalent to stating that the cellulose pulp layer from which the cup shaped body is made is 100% of pulp fibers, which falls within the claimed cellulose fibers ranging from 80% to 100% by weight. Where the claimed cellulose fiber concentration of the cup shaped body overlaps cellulose fiber concentration of the cup shaped body 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 cellulose fiber concentration of the cup shaped body will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such cellulose fiber concentration of the cup shaped body 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 6, Appleford et al. discloses the oxygen barrier liner comprising a thermoformable polymer (internal biopolymer liner formed from a mold) (‘370, Paragraphs [0079] and [0106]).
Regarding Claim 8, the limitations “wherein said capsule is a single use coffee capsule” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 1. One of ordinary skill in the art would utilize the capsule of modified Yoakim et al. to be used a single time and thus be a single use coffee capsule. Furthermore, Appleford et al. discloses the capsule being a single use (single serve) capsule (‘370, Paragraph [0002]).
Regarding Claim 14, the limitations “wherein the cellulose pulp layer of the fluid injection portion is ultrasonically stiffened” are product by process limitations. Even though product by process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Yoakim et al. US 2011/0041702 in view of Appleford et al. US 2020/0231370 as further evidenced by Parker et al. US 2020/0063373 and Riebel et al. US 5,593,625 as applied to claim 1 above in further view of Orler US 2020/0253413.
Regarding Claim 7, Appleford et al. discloses the capsule being made of compostable materials (‘370, Paragraph [0006]). However, Yoakim et al. modified with Appleford et al. is silent regarding the cellulose layer of the cup shaped body, the oxygen barrier liner, and the cover being made of “home” compostable materials.
Orler discloses a capsule comprising a body made of a cellulose based material (‘413, Paragraph [0044]) and a liner made of a metal foil, a different natural plant and/or combination of materials having a different density than the body (‘413, Paragraph [0081]) wherein the liner provides a hermetic and/or semi-hermetic seal for a portion of the cartridge (‘413, Paragraph [0082]) wherein the capsule is home compostable (‘413, Paragraph [0100]).
Both modified Yoakim et al. and Orler are directed towards the same field of endeavor of beverage capsules used in a beverage preparation device for preparing a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage capsule of modified Yoakim et al. and construct all of the components of the beverage capsule out of “home” compostable materials as taught by Orler since the selection of a known material 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). Orler teaches that there was known utility in the beverage capsule art to construct the materials of the beverage capsule out of “home” compostable materials.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Yoakim et al. US 2011/0041702 in view of Appleford et al. US 2020/0231370 as further evidenced by Parker et al. US 2020/0063373 and Riebel et al. US 5,593,625 as applied to claim 1 above in further view of Longo et al. US 2004/0126524.
Regarding Claim 12, Appleford et al. discloses the liner having barrier properties (‘370, Paragraphs [0079] and [0106]), which indicates that the oxygen barrier liner necessarily comprises a core layer having oxygen and/or moisture barrier properties. However, Yoakim et al. modified with Appleford et al. is silent regarding the oxygen barrier layer having a sealing layer sealing the oxygen barrier liner to the cellulose pulp layer.
Longo et al. discloses a laminated liner for food packages (‘524, Paragraph [0030]) wherein the liner comprises a core layer (gas barrier layer 2 made of EVOH) having oxygen and/or moisture barrier properties surrounded by a sealing layer (heat sealable layer 1) sealing the oxygen barrier liner to the food container (at food contact layer) (‘524, FIG. 1) (‘524, Paragraphs [0039]-[0040]).
Both modified Yoakim et al. and Longo et al. are directed towards the same field of endeavor of food containers. It would have been obvious to modify the capsule of modified Yoakim et al. that already has a liner and construct the liner from a multilayered laminate having a core layer having oxygen barrier properties surrounded by a sealing layer sealing the oxygen barrier liner to the food contacting container layer since Longo et al. teaches that there was known utility in the food and beverage packaging art to construct an oxygen barrier liner in the claimed multilayered configuration.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Yoakim et al. US 2011/0041702 in view of Appleford et al. US 2020/0231370 as further evidenced by Parker et al. US 2020/0063373 and Riebel et al. US 5,593,625 as applied to claim 1 above in further view of Slat et al. US 6,524,672.
Regarding Claim 13, Yoakim et al. modified with Appleford et al. is silent regarding the barrier layer of the oxygen barrier liner comprising PVOH.
Slat et al. discloses a food and beverage container (‘672, Column 4, lines 4-17) comprising an oxygen barrier liner (inner liner 10) comprising a barrier layer (barrier layers 14, 18) (‘672, Column 3, lines 26-42) made of PVOH (‘672, Column 5, lines 28-35).
Both modified Yoakim et al. and Slat et al. are directed towards the same field of endeavor of food and beverage containers. Both food and beverage containers of modified Yoakim et al. and Slat et al. contain an oxygen barrier liner. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the barrier layer of modified Yoakim et al. to be made of PVOH as taught by Slat et al. since the selection of a known material 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). Slat et al. teaches that there was known utility in the food and beverage container art to construct a barrier layer of an oxygen barrier liner out of PVOH.
Further regarding Claim 13, it is noted that Claim 13 recites the limitation “wherein the oxygen barrier liner comprises one or more of the following layers…a barrier layer comprising a polymer selected from…PVOH.” Since the prior art combination teaches the barrier layer being made of the claimed PVOH material in view of Slat et al., the other claimed layers of an outermost polymeric layer, a first tie layer, a second tie layer, and an innermost polymeric layer are optional limitations by virtue of the phrase “one or more of the following layers.”
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Yoakim et al. US 2011/0041702 in view of Appleford et al. US 2020/0231370 as further evidenced by Parker et al. US 2020/0063373 and Riebel et al. US 5,593,625 as applied to claim 1 above in further view of Tatsumi et al. “Ultrasonic treatment to improve the quality of recycled pulp fiber” (published 2000) (herein referred to as “Tatsumi et al.”).
Regarding Claim 14, the limitations “wherein the cellulose pulp layer of the fluid injection portion is ultrasonically stiffened” are product by process limitations and as such are rejected for the same reasons regarding product by process as enumerated above. However, in the event that it can be shown by applicant that the ultrasonic stiffening method results in a cellulose pulp layer having different properties, Tatsumi et al. discloses a method of applying ultrasound to a recycled pulp fiber suspension wherein the ultrasonic treatment induces an increase in the sedimentation volume of the fiber to increase the flexibility and bulkiness of the fiber (Tatsumi et al., Page 405).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Yoakim et al. and construct the cellulose pulp layer of the fluid injection portion by an ultrasonic stiffening method since Tastumi et al. teaches that applying ultrasound to a pulp fiber suspension increases the flexibility and bulkiness of the fiber (Tastumi et al., Page 405).
Response to Arguments
Examiner notes that the previous Claim Objection have been withdrawn in view of the amendments.
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Applicant’s arguments with respect to the obviousness rejections of Claim 1 under 35 USC 103(a) has been considered but are moot because the new ground of rejection does not rely on the rationale applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The new rationale was required in view of the amended claims.
Applicant's arguments filed August 5, 2026 with respect to the obviousness rejections under 35 USC 103(a) with respect to the primary reference of Yoakim et al. have been fully considered but they are not persuasive.
Applicant argues on Page 4 of the Remarks that Yoakim et al. teaches away from having a fluid injection portion with an increased stiffness and that Paragraph [0030]) of Yoakim teaches that the recessed structure has a reduced thickness in order to decrease the perforation resistance. Applicant contends that Yoakim teaches that the capsule body can have reinforcement members to ensure improved rigidity of the wall during penetration of the blades but that the recessed structure itself should be substantially free of reinforcement members to not interfere with the insertion of the blades. Applicant contends that Yoakim teaches that reinforcement members should be included in other portions of the capsule and not in the recessed structure itself in order to increase the rigidity of the wall and that a person of ordinary skill in the art would expect that increasing the stiffness of the recessed structure would be counterproductive and would interfere with the insertion of the blades.
Examiner argues the Yoakim et al. only teaches a specific embodiment of incorporating reinforcement members in Paragraphs [0012], [0038] and [0059]). The Office Action does not rely upon the embodiment of Yoakim et al. that teaches incorporating reinforcement members. Paragraph [0012] of Yoakim et al. recites “If desired…the capsule body further comprising inner or outer reinforcement members.” Paragraph [0037] of Yoakim et al. recites “The inlet wall of reduced thickness may also comprise (inner and/or outer) reinforcement members extending locally on the inlet wall. Paragraph [0059] of Yoakim et al. recites “When more rigidity is necessary depending on the specific rigidity of the polymer and/or biodegradable material, reinforcing members are provided in or on the walls. None of the Paragraphs cited by Yoakim et al. pertaining to the embodiment incorporating reinforcement members are cited to or relied upon in the rejection. Additionally, the phrases “if desired,” “may also comprise,” and “when more rigidity is necessary” indicates that the incorporation of reinforcement members is an optional embodiment. FIG. 1 of Yoakim et al. does not show any reinforcement members. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader or nonpreferred embodiments in view of In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (MPEP § 2123.I.). Therefore, this argument is not found persuasive.
Applicant argues on Page 6 of the Remarks with respect to Claim 7 that specific reference to the materials of the capsule being home compostable materials according to international standard EN 13432 which Orler allegedly does not teach.
Examiner argues Claim 7 does not recite any particular standard associated with the claimed home compostable term. Though understanding the claim language may be aided by explanations contained in the written description, it is important not to import into a claim limitations that are not part of the claim in view of Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875, 69 USPQ2d 1865, 1868 (Fed. Cir. 2004). See also Liebel-Flarsheim Co. v. Medrad Inc., 358 F.3d 898, 906, 69 USPQ2d 1801, 1807 (Fed. Cir. 2004) (discussing recent cases wherein the court expressly rejected the contention that if a patent describes only a single embodiment, the claims of the patent must be construed as being limited to that embodiment); E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369, 67 USPQ2d 1947, 1950 (Fed. Cir. 2003) (MPEP § 2111.02.II.). Orler teaches the materials being home compostable as claimed (‘413, Paragraph [0100]). Therefore, this argument is not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Footz et al. US 2023/0111111 (63190652) discloses compression refers to the insertion of a part into a mold wherein the mold applies pressure to the part in order to modify a physical property of the part wherein a cellulose outer shell is inserted into a mold and compression applied to the mold to reduce the thickness of the cellulose fiber walls by flattening the fibers due to the compressibility of the cellulose fiber or its capacity to be flattened or reduced in size by pressure (‘111, Paragraph [0018]) wherein a beverage pod with walls thicker than is optimal may be difficult to penetrate by the brewing pin of a beverage brewing device and thus prone to failure if the brewing fails to fully pierce the beverage pod (‘111, Paragraph [0025]) wherein compression of two layers of heated materials fused together causes the fused layers to decrease in thickness (‘111, FIG. 2) (‘111, Paragraph [0027]).
Parker et al. US 11,420,784 discloses a food packaging container made from cellulose fibers and cellulose ester fibers having enhanced stiffness or thickness at equivalent grammage basis weights or maintaining one or more of these properties while lowering the basis weight of the container.
Heydel US 2023/0312229 discloses stiffness is the extent to which an object resists deformation in response to an applied force, e.g. resistance to bend (‘229, Paragraph [0025]).
Alden et al. US 2020/0318292 discloses a cellulose bulk sheet for a packaging material having high bending stiffness with overall low density, i.e. a high stiffness to weight ratio (‘292, Paragraph [0070]) wherein fiber coarseness is defined as weight per fiber length and is normally expressed in units of mg/m or g/m wherein coarseness depends on fiber diameter, cell wall thickness, cell wall density, and fiber cross section wherein a high coarseness value indicates a thick fiber wall giving stiff fibers unable to collapse wherein thin walled fibers with low coarseness value gives flexible fibers and a denser sheet wherein the coarser the fibers the stronger and stiffer they will be and coarser fibers make bulky paper (‘292, Paragraph [0146]) wherein the cellulosic fiber material is used for food packaging (‘292, Paragraph [0059]).
Tuszkiewicz et al. US 2018/0313039 discloses a method of making paperboard having an improved basis weight to bending strength relationship wherein increased thickness or caliper of a paperboard positively impacts bending stiffness of paperboard wherein starch is added to increase internal bonding of the cellulose fibers and increase paperboard strength (‘039, Paragraph [0035]).
Everett et al. US 2020/0299900 discloses a method of making a wet laid nonwoven using an ultrasonic process generating heat energy through localized frictional forces created by ultrasonic sound waves which ultrasonic vibrations cause alternating compressive forces which resulting stresses on the fibers or wet laid nonwoven are converted to heat energy softening the localized area of fibers or wet laid nonwoven presses against each other wherein the local area cools and solidifies the bond points once the ultrasonic vibration is discontinued (‘900, Paragraph [0642]) wherein the wet laid products are food and drink paper containers (‘900, Paragraph [0605]).
Pitois et al. US 2017/0321378 discloses pressboard is a class of cellulose based material typically constructed of one or several layers/plies of paper which, when compressed using heat and pressure, form a stiff, dense material in a range of weights (‘378, Paragraph [0008]).
Schenone US 2020/0223623 discloses a capsule comprising an intermediate layer creating a barrier to oxygen gas wherein the intermediate layer is made of EVOH or PVOH (‘623, Paragraph [0021]).
Nordqvist et al. US 2019/0119036 discloses a capsule comprising a based body comprising a core layer made of a gas barrier polymer such as EVOH or PVOH which core layer has increased barrier properties to oxygen compared to the outer layers of the multilayer section (‘036, Paragraph [0032]).
Andreae et al. US 2017/0008694 discloses a capsule comprising an oxygen barrier made of compostable PVOH or biodegradable EVOH (‘694, Paragraph [0009]).
Pramanik et al. US 2012/0244362 discloses a multilayer sheet structure including a barrier layer (‘362, Paragraph [0005]) comprising EVOH or PVOH (‘362, Paragraph [0043]).
Furneaux US 2007/0259139 discloses a capsule comprising an oxygen barrier layer including PVOH or EVOH which are compostable (‘139, Paragraph [0015]).
Kuiper US 2023/0166895 discloses an intermediate tie layer of PBAT to protect both sides of a biofilms to avoid the functional layer getting affected by water (‘895, Paragraph [0168]) wherein a biodegradable polyester liner such as a PBS and/or a PBAT and/or PBST liner coats a lid (‘895, Paragraph [0152]).
Shabudin et al. US 2017/0326617 discloses a laminated material comprising one or more polymer layers (‘617, Paragraph [0030]) wherein the one or more polymer layers incorporates tie layers and/or one or more barrier layers for inhibiting transmission of moisture and/or oxygen (‘617, Paragraph [0035]).
Benson et al. US 2021/0323265 discloses liners are used for packing food wherein liners are made from paper based substrates and coated on both sides with paraffin layers that control absorption and emission of liquid to and from the paper based substrates (‘265, Paragraph [0003]).
Mortiz et al. US 2021/0276311 discloses a can liner film comprising one or more layers comprising a can side or inside layer of a heat seal or metal bonding layer, an outside layer, a product contact layer, and core layers between the layer bonded to the metal surface and the product contact side layer in direct contact with the food stored inside the can (‘311, Paragraph [0083]).
Shi US 2021/0171255 discloses a multilayer induction heat seal liner comprising a paper layer (‘255, Paragraph [0017]).
Kuiper et al. US 2021/0009327 discloses a food container comprising a liner or seal connected directly to molded pulp material with an adhesive (‘327, Paragraph [0072]).
Roddy US 2020/0324516 discloses a multilayered liner used in food and beverage containers wherein the liner prevents leakage or contamination of the container contents and provides an indication of tampering with the container or its contents (‘516, Paragraph [0001]).
Lahti et al. US 2020/0305637 discloses a food package comprising a polymer based liner connected to a fiber based component (‘637, Paragraph [0013]) wherein the liner comprises an exterior surface layer connected to any components of the package (‘637, Paragraph [0046]) wherein one or more inner layers of the liner comprises a barrier polymer such as polymide or EVOH which barrier polymers or barrier materials reduce the transmission of a gas or water vapor through the film (“637, Paragraph [0052]).
Rabiea US 2020/0031562 discloses a multilayer packing liner for insulating food (‘562, Paragraph [0028]).
Wallace US 2018/0272666 discloses a thermoformable sheet for lining a container composed of a substrate (‘666, Paragraph [0006]) wherein the liner includes a substrate binding layer made from PE or PP that is peelable (‘666, Paragraph [0042]).
Wallace US 2013/0142975 discloses a laminated peelable liner for food containers (‘975, Paragraph [0056]).
Chambers et al. US 2005/0208243 discloses a multilayer sheet or liner for packaging hood foods comprising a first inner layer comprising a water wicking material with a second layer comprising an absorbent and highly thermally insulating material which multilayer sheet provides improved moisture control while retaining heat retention (‘243, Paragraph [0009]).
Bettle III et al. US 4,977,004 discloses a barrier liner for food packages comprising twin layers of EVOH wherein one layer is interposed between two moisture barriers of HDPE, EVOH compatible adhesives, or LDPE wherein the innermost EVOH layer provides a solvent barrier against loss of flavor components while the second EVOH layer serves as an oxygen barrier.
Richardson US 2020/0087057 discloses a beverage capsule (pod 35) comprising a cup shaped body (lower member 38) comprising entirely out of a cellulose pulp layer (‘057, Paragraphs [0099], [0119], and [0129]) wherein the cup shaped body comprising a flange (lip 46) made of cellulose (‘057, FIG. 3) (‘057, Paragraph [0129]).
Wahhas US 2014/0342058 discloses a beverage capsule comprising a cup shaped body comprising entirely out of a cellulose pulp layer (paper) (‘058, Paragraphs [0013]-[0014]).
Helou Jr. et al. US 2010/0237069 discloses a biodegradable food and drink container comprising a cup shaped body with a bottom wall, a lateral wall, and a flange and a cover sealed onto the flange wherein the cup shaped body comprises a cellulose pulp layer extending throughout the bottom wall, lateral wall, and flange, and an oxygen barrier liner (inner film) attached to the cellulose pulp layer (‘069, FIG. 1) (‘069, Paragraphs [0013] and [0015]) wherein the oxygen barrier liner is an inner laminated film (‘6069, Paragraph [0019]).
Kim US 2007/0071918 discloses a biodegradable starch bowl having improved sterilizing, deodorizing, preservative, releasing, water resistance, and strength properties (‘918, Paragraph [0013]).
Takano US 2022/0242622 discloses a compressed part of a paper material increases the fiber density of said paper material (‘622, Paragraph [0163]).
Henderson et al. US 2020/0071056 discloses compressing paper particles results in higher density (‘056, Paragraph [0029]).
Henderson et al. US 8,454,795 discloses a method for manufacturing bonded fiber/cellulose products comprising the steps of forming a blend of paper particles to form a mixture and then forming a continuous batt from a controlled amount of the mixture which is heated and compressed to form a bonded fiber/cellulose product with a desired thickness or density (‘795, Column 2, lines 45-59).
Kean et al. US 6,475,315 discloses a method of making a nonwoven fibrous product comprising the step of compressing a web to less than about 80% of its fused thickness for product uniformity and control of the final density wherein compression is desirable if a higher density nonwoven product is made (‘315, Column 5, lines 13-20).
Karkuheto et al. US 5,612,129 discloses the density of a core layer can be set by varying the pressure exposed during compression.
Elsen et al. US 4,869,950 disclose a product made of a web that is compacted if it is desired to produce a web of increased density (‘950, Column 6, lines 26-30) wherein the fiber web is used to make containers (‘950, Column 4, lines 43-54).
Goldberg et al. US 2024/0352679 discloses a method of making fiber based food container products (‘679, Paragraph [0002]) wherein wet molded pulp is compressed and dried to increase the fiber density of the fiber material (‘679, Paragraph [0005]).
Grankvist et al. US 2024/0181683 discloses a compression molding tool for manufacturing a fibrous pulp tray suitable for food packaging (‘683, Paragraph [0036]) wherein the fibrous pulp material is compressed in one portion to have a density equal to or higher than a density of the remainder of the ray wherein the density can be controlled by controlling the properties of the fibrous pulp suspension and the distance between mold elements in a pressing step and the pressing force used (‘683, Paragraph [0046]).
Chung et al. US 2020/0277738 discloses a fiber based biodegradable and compostable coffee container (‘738, Paragraph [0009]) wherein wet molded pulp manufacturing compresses and dries fiber material to increase density (‘738, Paragraph [0008]).
The prior art made of record, cited on a previous 892 Notice of References Cited form, and not relied upon is considered pertinent to applicant's disclosure.
Marcinkowski US 2017/0355515 discloses a capsule comprising a laminated liner made of compostable biopolymers and a layer of EVOH and a metallic foil (‘515, Paragraph [0025]).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to 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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