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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 3/27/26 has been entered.
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1, 5-11, 13 and 16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of copending Application 18817424 in view of Noth et al. (WO2015063094). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-19 fully encompass the limitations of claims 1, 5-11, 13 and 16 of the instant application, though silent to alerting a user of the drink maker in response to determining the phase change condition has occurred. It would have been obvious to one of ordinary skill at the time the invention was filed to provide in response to determining the condition, i.e. completion, an alert to the user for its art recognized purpose of providing information to a user of the status of the product such as in the instant case a finished phase as taught by Noth (pg 35 lines 31-32). This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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, 5-11, 13 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Noth et al. (WO2015063094) in view of Elsom (WO2014123842).
Noth teaches a drink maker (pg. 16 lines 8-16 smoothie, milk shake; pg. 7 lines 16-17; smoothie) comprising:
a mixing vessel (pg. 16 lines 18-20) configured to receive a drink product (pg. 15 lines 22-27), wherein the drink product is mixed within the mixing vessel (pg. 17 lines 17-20);
a cooling circuit configured to cool the drink product within the mixing vessel (pg. 21 lines 11-20);
a temperature sensor (pg. 14 lines 9-11) configured to repeatedly detect (pg. 39 lines 24-35, 31-32; relative multiple phases; pg. 14 lines 19-20 having reached target temperature) a temperature of the drink product and output periodic temperature signals indicative of the detected temperature (pg. 39 lines 24-25, lines 31-32; pg. 36 lines 13-20 till predetermined temperature met); and
a controller configured to:
repeatedly determine (pg. 39 lines 24-35, 31-32; relative multiple phases; pg. 14 lines 19-20 having reached target temperature) during mixing of the drink product (pg. 39 lines 24-35, 31-32; relative multiple phases; pg. 14 lines 19-20 having reached target temperature) a change of temperature of the drink product (pg. 39 lines 24-35, 31-32; relative multiple phases; pg. 14 lines 19-20 having reached target temperature; pg. 14 lines 9-11, line 16) based on the temperature signals (pg. 36 lines 13-20)
determine the temperature of the drink product is equal to a threshold temperature (pg. 36 lines 13-20 pg. 39 lines 24-35, 31-32; relative multiple phases; pg. 14 lines 19-20 having reached target temperature)
determine that a phase change (col. 16 lines 8-10; at least partially frozen) of the drink product has occurred (pg. 36 lines 12-20) based on determining that the temperature of the drink product is equal to the threshold temperature (pg. 39 lines 5-6, lines 22-25, 31-32), where the phase change occurs when at least some of the drink product has started to change from a liquid to a solid state (pg. 16 lines 8-10 at least partially frozen).
In response to determining that the phase change (pg. 16 lines 8-16) of the drink product has occurred (pg. 36 lines 12-20), alert a user of the drink maker (pg. 35 lines 31-32, pg. 36 lines 12-20)
Noth teaches a control unit indicating the end of a preparation step in response to meeting certain product and/or process condition in the last phase of the product preparation (pg. 36 lines 12-20). Noth teaches temperature sensors for detecting predetermined temperatures during the reduction of temperature of the drink product to achieve a product meeting predetermined properties specific to drink type (pg. 8 lines 20-32) and thus one of ordinary skill in the art would have been motivated to look to the art of adaptive controllers to achieve beverage products by a same comparison of temperatures during the preparation.
Elsom teaches a drink maker (pg. 4 lines 17-18) comprising:
a mixing vessel configured to receive a drink product (pg. 5 lines 9-12), wherein the drink product is mixed within the mixing vessel (pg. 5 lines 26-29);
a cooling circuit configured to cool the drink product within the mixing vessel (pg. 4 lines 20-25);
a temperature sensor (pg. 4 lines 26-29) configured to repeatedly detect (pg. 7 lines 11-19) a temperature associated with the drink product and output periodic temperature signals indicative of the detected temperature (pg. 7 lines 5-9); and
a controller (pg. 5 lines 2-3) configured to:
determine a rate of change of temperature (pg. 7 lines 26-30; pg. 9 lines 1-8) associated with a product (pg. 4 line 19) based on the temperature signals (pg. 9 lines 2-3)
determine that the rate of change of temperature is less than or equal to a threshold rate of change, i.e. a threshold is met (pg. 8 lines 26-27; pg. 7 lines 26-30; pg. 9 lines 4-9).
Elsom teaches wherein the condition associated with the frozen product comprises a threshold rate of change (pg. 9 lines 1-5), and the controller is further configured to determine a rate of change of temperature based on the temperature signals (pg. 9 lines 1-5).
Thus since both teachers controllers which control cooling of the product based on temperature sensors, since Noth teaches detecting temperature of the drink product and output periodic temperature signals indicative of the detected temperature (pg. 39 lines 24-25, lines 31-32; pg. 36 lines 13-20 till predetermined temperature met), since both teach a same detected temperature signal for controlling cooling of the product using a same claimed temperature sensors, since both teach controllers for determining product specific end points including temperature and since Elsom teaches the obvious alternative of determining a rate of change of temperature of the sensors or comparing sensed temperature (pg. 9 lines 1-5)
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to substitute one determination of a desired phase change by temperature detected as taught by Noth with a threshold rate of change as taught by Elsom (pg. 9 lines 1-5). Thus providing an obvious alternative, for its art recognized purpose of attaining status variables including temperature and time as taught by Noth, which are indicative of a finally desired predetermined temperatures during the reduction of temperature of the drink product to achieve a product meeting predetermined properties specific to drink type (pg. 8 lines 20-32) to achieve beverage products by a same comparison of temperatures during the preparation as taught by both.
Since both teach a same detected temperature for controlling cooling of the product, since both teach controllers for determining product specific end points including temperature and since Elsom teaches the obvious alternative of determining a rate of change of temperature of the product or comparing sensed temperature (pg. 9 lines 1-5) indicating the end of preparation.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to substitute one determination of a desired phase change has occurred by temperature reduction detected as taught by Noth with a threshold rate of change (pg. 9 lines 1-5) as taught by Elsom. For its art recognized purpose of attaining status variables including temperature which are indicative of a finally desired predetermined temperatures during the reduction of temperature of the drink product to achieve a product meeting predetermined properties specific to drink type (pg. 8 lines 20-32) to achieve beverage products by a same comparison of temperatures during the preparation as taught by both.
In addition, since both teach a same detected temperature for controlling cooling of the product, since both teach controllers for determining product specific end points including temperature and since Elsom teaches the obvious alternative of determining a rate of change of temperature of the product or comparing sensed temperature (pg. 9 lines 1-5) indicating the end of preparation.
“The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to substitute one determination of a desired phase change has occurred by temperature reduction detected as taught by Noth with a threshold rate of change (pg. 9 lines 1-5) as taught by Elsom. For its art recognized purpose of attaining status variables including temperature which are indicative of a finally desired predetermined temperatures during the reduction of temperature of the drink product to achieve a product meeting predetermined properties specific to drink type (pg. 8 lines 20-32) to achieve beverage products by a same comparison of temperatures during the preparation as taught by both.
With respect to claim 5, "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to periodically detect the temperature of the product as taught by Noth, at an interval in a range of about 0.1 seconds to about 5 seconds thus achieving a same comparison for providing the control unit information specific to the individual phases and providing the phase parameters till a set temperature is attained.
Claim 6, at least one output device, the at least one output device comprising at least one of a display (pg. 35 lines 31-32), a speaker (pg. 35 lines 31-32 acoustic), or a light indicator (pg. 36 line 1), wherein the controller is configured to, when alerting the user of the drink maker:
cause the at least one output device to alert the user of the drink maker (pg. 35 lines 19-pg. 36 lines 1-5).
Claim 7, wherein the at least one output device comprises at least one speaker and at least one light indicator, and wherein the controller is configured to, when alerting the user of the drink maker:
cause the at least one speaker to produce an aural alert (pg. 35 line 32 acoustic)
and cause the at least one light indicator to produce a visual alert (pg. 35 line 32).
With respect to claim 8, Noth teaches providing an acoustic signal. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide a series of sounds relative the acoustic signal taught thus providing a continuous alert and achieve the same desired alerting of the user to the process being complete (pg. 35 line 32-pg. 36 lines 15).
Claim 9, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the series of sounds comprises a plurality of sounds having, when produced in series, at least one of descending pitch or descending volume relative the acoustic signal taught thus providing a continuous alert and achieve the same desired alerting of the user to the process being complete (pg. 35 line 32-pg. 36 lines 15).
Claim 10, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the series of sounds comprises a plurality of sounds having, when produced in series, at least one of ascending pitch or ascending volume relative the acoustic signal taught thus providing a continuous alert and achieve the same desired alerting of the user to the process being complete (pg. 35 line 32-pg. 36 lines 15).
With respect to claim 11, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach a plurality of light indicators, and wherein the at least one output device is configured to, when caused by the controller to alert the user of the drink maker, illuminate the plurality of light indicators in sequence relative the visual signal taught thus providing a continuous alert and achieve the same desired alerting of the user to the process being complete (pg. 35 line 32-pg. 36 lines 15).
With respect to claim 13, "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the threshold rate of change has a value in a range of about 0.002 degrees Celsius/second to about 0.006 degrees Celsius/second thus achieving a same finally desired predetermined temperatures during the reduction of temperature of the drink product to achieve a product meeting predetermined properties specific to drink type (pg. 8 lines 20-32) to achieve beverage products by a same comparison of temperatures during the preparation as taught by both.
Claim 16, Noth teaches wherein the at least one output device comprises at least one speaker and at least one light indicator, and wherein the controller is configured to, when alerting the user of the drink maker:
cause the at least one speaker to produce an alert (pg. 35 line 32) that the phase change has occurred (pg. 36 lines 3; stop signal).
Response to Arguments
With respect to applicant urging of examples 2 and 3 of Noth, Noth is cited with respect to examples of determined temperature. Thus with respect to applicants urging directed to Noth and applicants urgings Noth teaches phases relative steps of preparation and not phases of matter. Noth specifically teaches preparation of drinks which are “at least partially frozen” (col. 16 lines 8-10), in addition to teaching temperature reduction thresholds of “at least partially frozen” products and more specifically temperature signals indicative a phase change has started from a liquid to solid (pg. 39 lines 5-6, lines 24-25, 31-32).
It is further noted with respect to applicants urgings that Noth teaches increase in viscosity of the product as a threshold. Though not relied upon, importantly this further emphasis phase change of at least “partially frozen” products as taught by Noth.
The Office does not deny that Noth teaches phases relative to different preparation phases. However and importantly and as noted by applicant, Noth teaches phases of “preparation parameters” as defined by temperature, where the initial ingredients are in liquid form (pg. 15 lines 22) for its art recognized and intended purposes of “at least partially frozen” products (col. 16 lines 8-10).
With respect to applicants urging Elsom is silent to detecting a product temperature. Elsom is not relied upon to teach such.
With respect to applicants urging of threshold rate of change, Elsom compares the calculated rate of change of temperature over a time unit to a set or calculated value.
With respect to applicants urging of “conflict in the combination of the disparate teachings”. Importantly Noth teaches detecting the temperature of the products and outputting temperature signals for the purpose of monitoring if a temperature threshold or target temperature has been met (pg. 14 lines 15-24).
Elsom does teach a same detected temperature for controlling cooling of the product using a same claimed temperature sensors, Elsom teaches the controller for determining product specific end points as defined by temperature and more specifically Elsom teaches the obvious alternative of comparing sensed temperature (pg. 9 lines 1-5) as determining a rate of change of temperature of the sensors (pg. 9 lines 1-5).
Thus and importantly, Elsom teaches same temperature signals, Elsom teach the controller programmed with respect to determining a rate of change of temperature of the sensors (pg. 9 lines 1-5).
Though urged as not temperature of the product, the temperature information is provided as a signal and thus one of ordinary skill in the art would recognize a direct temperature to temperature correlation for controlling cooling as taught by both.
More specifically Elsom teaches the controller configured for the obvious alternative of comparing sensed temperature (pg. 9 lines 1-5), as taught by Noth, as determining a rate of change of temperature of the sensors (pg. 9 lines 1-5).
With respect to applicants urging of “assumes vs actually detects”. Noth specifically “actually detects” temperature of the product to determine specific end points (pg. 14 lines 11-23).
With respect to applicants urging directed to the compressor of Elsom, importantly Elsom teaches a same temperature signals which determine that the rate of change of temperature is less than or equal to a threshold rate of change, i.e. a threshold is met (pg. 8 lines 26-27; pg. 7 lines 26-30; pg. 9 lines 4-9).
With respect to applicants urging of Nexus of the compressor of Elsom and the teachings of Noth. Importantly it is a same controller configured to detect temperature signals. Both teach the controller capable of a same determine specific end points by sensed temperature. Applicants urgings of different function of the temperature signals taught by Elsom does not address the fact that both teaches controllers which control cooling of the product based on temperature sensors, both teach a same detected temperature for controlling cooling of the product using a same claimed temperature sensors, both teach controllers for determining product specific end points including temperature and Elsom specifically teaches the obvious alternative of determining a rate of change of temperature of the sensors or comparing sensed temperature (pg. 9 lines 1-5).
With respect to Applicant demonstrated that the Office's abstract observation, that both references use "status variables", does not establish a reasoned motivation to select Elsom's particular variable (evaporator-temperature slope for compressor duty control) and repurpose it as a phase- change condition for the drink product. While the Office Action responded, "Noth and Elsom teach the same status variables required including time and temperature" (Office Action, p. 12), this single sentence does not engage with the Applicant's argument about specificity. Instead, the Office Action has restated the conclusion without addressing the deficiency that the nature of time and temperature are drastically different between Noth and Elsom.
Importantly there is no more specificity than a same temperature signal received by a controller.
With respect to applicant urging directed to KSR rejection. Both teach a same detected temperature for controlling cooling of the product, since both teach controllers for determining product specific end points including temperature and since Elsom teaches the obvious alternative of determining a rate of change of temperature of the product or comparing sensed temperature (pg. 9 lines 1-5) indicating the end of preparation.
“The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to to substitute one determination of a desired phase change has occurred by temperature reduction detected as taught by Noth with a threshold rate of change (pg. 9 lines 1-5) as taught by Elsom. For its art recognized purpose of attaining status variables including temperature which are indicative of a finally desired predetermined temperatures during the reduction of temperature of the drink product to achieve a product meeting predetermined properties specific to drink type (pg. 8 lines 20-32) to achieve beverage products by a same comparison of temperatures during the preparation as taught by both.
With respect to B:
Noth teaches detecting the temperature of the products and outputting temperature signals for the purpose of monitoring if a temperature threshold or target temperature has been met (pg. 14 lines 15-24).
With respect to applicants urging the office merely strips out the word rate of change with respect to the temperature based thresholds of Noth. The rejection is not a 102 rejection.
With respect to applicants urging Noth being silent to rate of change and thus 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), and thus while Noth does not disclose all the features of the present claimed invention, Elsom specifically teaches a certain concept, and in combination with the Noth, discloses the presently claimed invention.
With respect to applicants urging Noth is phase dependent, importantly the phases as urged are defined by temperature thresholds, including temperature of the product.
With respect to applicants urgings directed to the rate of change calculations of Elsom. As noted, Elsom specifically teaches rate of change, Elsom specifically teaches “rate of change in temperature per unit time”.
Noth teaches repeatedly determine (pg. 39 lines 24-35, 31-32; relative multiple phases; pg. 14 lines 19-20 having reached target temperature) during mixing of the drink product (pg. 39 lines 24-35, 31-32; relative multiple phases; pg. 14 lines 19-20 having reached target temperature) a change of temperature of the drink product (pg. 39 lines 24-35, 31-32; relative multiple phases; pg. 14 lines 19-20 having reached target temperature; pg. 14 lines 9-11, line 16) based on the temperature signals (pg. 36 lines 13-20)
determine the temperature of the drink product is equal to a threshold temperature (pg. 36 lines 13-20 pg. 39 lines 24-35, 31-32; relative multiple phases; pg. 14 lines 19-20 having reached target temperature)
determine that a phase change (col. 16 lines 8-10; at least partially frozen) of the drink product has occurred (pg. 36 lines 12-20) based on determining that the temperature of the drink product is equal to the threshold temperature (pg. 39 lines 5-6, lines 22-25, 31-32), where the phase change occurs when at least some of the drink product has started to change from a liquid to a solid state (pg. 16 lines 8-10 at least partially frozen).
In response to determining that the phase change (pg. 16 lines 8-16) of the drink product has occurred (pg. 36 lines 12-20), alert a user of the drink maker (pg. 35 lines 31-32, pg. 36 lines 12-20).
With respect to applicants urging of the combination theory proposes substituting Noth's temperature-threshold endpoint detection with Elsom's compressor duty-based rate-of-change methodology (Office Action, p. 5 and 6). But, as demonstrated above, Elsom's rate-of-change methodology uses an evaporator-mounted sensor, not a product temperature sensor, and operates as a discrete compressor duty-control check. To arrive at amended independent claim 1 from the combination, a skilled artisan would need to, at least: (1) relocate Elsom's sensor from the evaporator to a position measuring the temperature of the drink product itself; (2) transform Elsom's discrete, subroutine-based slope calculation into a repeated temperature determination during mixing for the purpose of phase-change detection; and (3) re-purpose the output of that entirely re-architected calculation from compressor actuation to product phase change detection and user notification.
The rejection does not rely on compressor control, Elsom is relied upon with respect to teaching a same claimed “rate of change in temperature per unit time” and controller configured for the obvious alternative of comparing sensed temperature (pg. 9 lines 1-5), as taught by Noth, as determining a rate of change of temperature of the sensors (pg. 9 lines 1-5).
Thus and importantly, Elsom teaches same temperature signals, Elsom teach the controller programmed with respect to determining a rate of change of temperature of the sensors (pg. 9 lines 1-5).
Though urged as not temperature of the product, the temperature information is provided as a signal and thus one of ordinary skill in the art would recognize a direct temperature to temperature correlation for controlling cooling as taught by both.
More specifically Elsom teaches the controller configured for the obvious alternative of comparing sensed temperature (pg. 9 lines 1-5), as taught by Noth, as determining a rate of change of temperature of the sensors (pg. 9 lines 1-5).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Steven Leff whose telephone number is (571) 272-6527. The examiner can normally be reached on Mon-Fri 8:30 - 5:00.
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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/STEVEN N LEFF/Primary Examiner, Art Unit 1792