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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 3/10/26 has been entered.
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 1-17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Elsom et al. (WO2014123842) in view of Mavridis et al. (20080092580).
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 periodically detect (pg. 7 lines 11-19) a temperature associated with the drink product and output periodic temperature signals indicative of the periodically detected temperature (pg. 7 lines 5-9); and
a controller (pg. 5 lines 2-3) configured to:
determine whether cooling of the drink product has occurred based on the periodic temperature signals (pg. 7 lines 4-7; occurred thus necessitating cooling) where, when determining whether the cooling has occurred, the controller is configured to
determine whether at least some of the drink product has started to cool based on at least one rate of change in temperature determined from periodic temperature signals (pg. 7 lines 23-29) and
in response to determining whether at least some of the drink product has started to cool based on the at least one rate of change in temperature (pg. 9 lines 2-3), control the cooling circuit based on whether at least some of the drink product has started to change to a cooling temperature (pg. 9 line 8 cooling no longer needed; pg. 9 lines 26-32; pg. 7 lines 8-9 needs cooling).
Elsom teaches temperature controlled cooling of chilled food product. Elsom teaches multiple hoppers (fig. 1 ref. 120, 220) and automated controllers (pg. 5 lines 1-3) wherein the controller is further configured to determine the target temperature value based on the predefined temperature value (pg. 8 line 26) and thus one of ordinary skill in the art would have been motivated to look to the art of automated controlled preparation of different cooled products as taught by Mavridis.
Mavridis teaches an automated machine for making semi-frozen products. Mavridis teaches product consistency control based on temperature of the product in the mixing vessel directly (par. 0034).
Thus since Elsom teaches temperature sensors, though silent to specifically a defined location and since Elsom teaches the temperature sensors checked to determine if cooling of the barrel is necessary and/or if a minimum temperature has been reached (pg. 9 lines 1-7).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the taught temperature sensors of Elsom, with respect to the teaching of located at or near the evaporator unit (fig. 1 ref. 114 and 214) such as in the instant case positioned within the mixing vessel as taught by Mavridis thus achieving a same temperature status by a same checking of temperature sensors to determine if cooling of the barrel is necessary and/or if a minimum temperature has been reached (pg. 9 lines 1-7) and a same product consistency control based on temperature of the product in the mixing vessel directly as taught by Mavridis (par. 0034) of the product being processed as taught by both.
Though teaching chilled products, a compressor controller to achieve a minimum temperature and that a same taught refrigeration unit is known for changing unfrozen food to frozen food (pg. 1 lines 13-15). Elsom is silent to specifically teaching phase change.
Mavrides teaches and as is known in the art, phase change is a result of cooling temperatures and viscosity (par. 0034). Decreased temperature results in increased viscosity when cooled (par. 0033).
Thus since Elsom teaches chilled products, since Elsom teaches determining product conditions relative decreasing temperature using temperature sensors, since Elsom teaches the same determining of cooling as a result of rate of change in detected temperatures and since Mavridis teaches product consistency controlled based on direct temperature measurement of the product during cooling (par. 0034).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the temperature signals as taught by both and determining whether a phase change has occurred, in the instance of a desired final product, such as in the instant case frozen as taught by Mavridis for a same art recognized and purpose of Elsom of determining by a same checking of temperature sensors if cooling of the barrel is necessary and/or if a minimum temperature has been reached (pg. 9 lines 1-7).
Though Elsom is silent to determine whether at least some of the drink product has started to change from a liquid to a solid state, since the control constant is temperature and since Mavridis teaches control of temperature relative a change of phase from liquid to solid (par. 0034). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to determine whether at least some of the drink product has started to cool based on at least one rate of change in temperature determined from periodic temperature signals as taught by Elsom (pg. 7 lines 23-29), where the cooling is indicative of liquid to solid as taught by Mavridis and in response to determining whether at least some of the drink product has started to change phases, use a same rate of change in temperature as taught by Elsom (pg. 9 lines 2-3) for its art recognized purpose as taught by both of control the cooling circuit based on whether at least some of the drink product has started to change to a cooling temperature (pg. 9 line 8 cooling no longer needed; pg. 9 lines 26-32; pg. 7 lines 8-9 needs cooling), such as in the instant case from a liquid to a solid as taught by Mavridis.
With respect to claim 2, wherein the controller is further configured to:
receive the periodic temperature signals during mixing of the drink product (pg. 7 lines 25-30);
determine, for each of the periodic temperature signals, a rate of change of temperature over a period of time based on the received periodic temperature signals (pg. 8 lines 1-3;
determine, for each determined rate of change, whether the determined rate of change is less than or equal to a threshold rate of change (pg. 8 lines 26-27); and
determine that the phase change of the drink product has occurred (pg. 9 lines 6-8 cooling no longer needed) based on determining that, for a first periodic temperature signal of the periodic temperature signals, the determined rate of change for a first respective period time corresponding to the first periodic temperature signal is less than or equal to the threshold rate of change (pg. 9 lines 6-8).
With respect to claims 3-5, where it is noted the claims are directed to an apparatus, the recitation in the claims “the threshold rate of change is in a range of about 0.08 degrees Celsius / 30 seconds to 0.18 degrees Celsius / 30 seconds, wherein the temperature sensor is configured to periodically detect the temperature at an interval in a range of about 0.1 seconds to about 5 seconds and wherein each respective period of time has a duration in a range of about 5 seconds to 60 seconds” is merely an intended use.
Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Elsom discloses calculating rate of change and a temperature sensor for periodically detecting as presently claimed, it is clear that the drink maker of Elsom would be capable of performing the intended use, i.e. the threshold rate of change is in a range of about 0.08 degrees Celsius / 30 seconds to 0.18 degrees Celsius / 30 seconds, wherein the temperature sensor is configured to periodically detect the temperature at an interval in a range of about 0.1 seconds to about 5 seconds and wherein each respective period of time has a duration in a range of about 5 seconds to 60 seconds, as presently claimed and as required in the above cited portion of the MPEP, and thus, one of ordinary skill in the art would have arrived at the claimed invention.
Claim 6, wherein the temperature sensor is configured to periodically detect the temperature at a plurality of intervals (pg. 10 lines 2-5; pg. 7 lines 26-30), each periodic temperature signal of the periodic temperature signals corresponding to a respective interval of the plurality of intervals (pg. 7 lines 26-30) and being associated with the temperature detected at the respective interval (pg. 7 lines 26-30), and wherein the first respective period of time includes one or more of the plurality of intervals occurring before an interval corresponding to the first periodic temperature signal (pg. 7 lines 26-30 prior to min. temp. reached pg. 9 lines 6-8).
Claim 7, though Elsom is silent to determine whether at least some of the drink product has started to change from a liquid to a solid state, since the control constant is temperature and since Mavridis teaches control of temperature relative a change of phase from liquid to solid (par. 0033-0034). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to determine whether at least some of the drink product has started to cool based on at least one rate of change in temperature determined from periodic temperature signals (pg. 7 lines 23-29), where the cooling is indicative of liquid to solid as taught by Mavridis and in response to determining whether at least some of the drink product has started to change phases, use a same rate of change in temperature as taught by Elsom (pg. 9 lines 2-3) for its art recognized purpose as taught by both of control the cooling circuit based on whether at least some of the drink product has started to change to a cooling temperature (pg. 9 line 8 cooling no longer needed; pg. 9 lines 26-32; pg. 7 lines 8-9 needs cooling), such as in the instant case from a liquid to a solid as taught by Mavridis.
Claim 8, wherein the controller is further configured to:
receive the periodic temperature signals during mixing of the drink product (pg. 7 lines 5-9);
determine, for each of the periodic temperature signals, a rate of change of temperature over a period of time based on the periodic temperature signals (pg. 8 lines 1-3)
determine, for each determined rate of change, whether the determined rate of change is less than or equal to a threshold rate of change (pg. 8 lines 26-27) and
determine that the phase change of the drink product has occurred based on determining that, for a first periodic temperature signal of the periodic temperature signals, the determined rate of change for a first respective period time corresponding to the first periodic temperature signal is less than or equal to the threshold rate of change (pg. 9 lines 6-8),
wherein the temperature sensor is configured to periodically detect the temperature at a plurality of intervals (pg. 7 lines 26-30), each periodic temperature signal of the periodic temperature signals being associated with the temperature detected at a respective interval of the plurality of intervals (pg. 7 lines 26-30, and wherein the phase change temperature value is determined from one or more temperature values detected for one or more intervals within the first respective period of time for which it is determined that the phase change has occurred (pg. 9 lines 7-8).
Claim 9, wherein the phase change temperature value is set to a temperature value detected for at least one of the one or more intervals within the first respective period of time (pg. 8 lines 26-27).
Claim 10, the controller is further configured to:
calculate a target temperature value based on the phase change temperature value (pg. 7 lines 8-10) and
control the cooling circuit to attain the target temperature value for the drink product in the mixing vessel (pg. 7 lines 11-16).
Claim 11, the controller is further configured to:
compare the phase change temperature value to a threshold temperature value (pg. 8 lines 26-27) and
in response to the phase change temperature value being greater than the threshold temperature value (pg. 9 lines 25-31), control performance of a corrective action to address the associated condition (pg. 9 lines 25-31 needs cooling).
Claim 12, wherein the associated condition comprises the drink product not being capable of being properly slushed by the drink maker due to an insufficient amount of one or more ingredients (pg. 6 lines 25-28; requires update status variable).
With respect to claim 13, where it is noted the claims are directed to an apparatus, the recitation in the claims “wherein the one or more ingredients include at least one of: sugar, alcohol, or any combination thereof” is merely an intended use.
Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Elsom discloses a food product as presently claimed, it is clear that the drink maker of Elsom would be capable of performing the intended use, i.e. a desired ingredients, as presently claimed and as required in the above cited portion of the MPEP, and thus, one of ordinary skill in the art would have arrived at the claimed invention.
Claim 14, wherein the controller is further configured to: determine when a target temperature value for the drink product in the mixing vessel has been attained (pg. 8 lines 26-27);
determine whether the phase change of the drink product has occurred prior to the target temperature value being attained (pg. 8 lines 1-3; determined by rate of change);
and in response to determining that the phase change of the drink product has not occurred prior to the target temperature value being attained, keep a compressor of the cooling circuit on until a phase change of the drink product is determined (pg. 9 lines 13-14, pg. 10 lines 2-5).
Claim 15, the controller is further configured to, in response to a phase change of the drink product being determined, cycle the cooling circuit on and off to maintain the temperature associated with the drink product at about the target temperature value (pg. 10 lines 2-5).
With respect to claim 16. Though silent to pulse the drive motor of the dasher to trigger nucleation of the drink product since Mavridis teaches control of a desired frozen consistency and control of a motor of the dasher to promote freezing (par. 0029). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to control the motor of the dasher as taught by Elsom, which is capable of on and off, to pulse during the mixing thus achieving a same desired agitation of the food corresponding to control of attaining a mixed product of a minimum temperature as desired by Elsom which includes initiating nucleation, i.e. promoting freezing as taught by Mavridis.
Claim 17, wherein the controller is further configured to, in response to determining that the phase change of the drink product has occurred prior to the target temperature being attained, cycle the cooling circuit on and off to maintain the temperature at about the target temperature value (pg. 10 lines 2-5).
Claim 19, wherein the controller is further configured to: determine whether a temperature of the drink product has descended below a low temperature threshold (pg. 9 lines 6-7)
and in response to determining that the temperature of the drink product has descended below the low temperature threshold, perform at least one of: turning off the cooling circuit and a drive motor of the drink maker (pg. 9 lines 6-8, pg. 5 lines 28-32) or cycling the cooling circuit off and on to prevent the temperature of the drink product from being reduced further (pg. 10 lines 3-5).With respect to claim 16, Elsom teaches the drink maker further comprising a dasher (pg. 5 lines 27-29), driven by a drive motor (pg. 5 lines 27-29), configured to mix the drink product within the mixing vessel, wherein the controller is further configured to, in response to determining that the phase change of the drink product has not occurred prior to the target temperature being attained (pg. 9 lines 13-14; needs cooling relative threshold temperature) mixing the product (pg. 5 lines 27-29).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Elsom et al. (WO2014123842) in view of Mavridis et al. (20080092580) and Kelly et al. (WO2020076674).
Elsom and Mavridis are taken as above.
Kelly teaches a memory configured to store a drink data object representing a drink type corresponding to the drink product (par. 0072), the drink data object specifying a predefined temperature value for the drink product (par. 0043)
Thus since all teach determining temperature specific information to determine proper preparation for cooling, since all teach the temperature information compared to set information and since Mavridis teaches detecting product temperature during cooling directly (par. 0034). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to further provide a memory configured to store a drink data object representing a drink type corresponding to the drink product, the drink data object specifying a predefined temperature value for the drink product as taught by Kelly (par. 0072) relative the teachings of the controllers of Elsom and temperature sensing directly of the product for its art recognize purpose of providing the advantage of providing prestored parameters which are specific to the type of cooled product to be prepared and desired texture as taught by Kelly and desired by Elsom and Mavridis.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to further provide a user interface as taught by Kelly for its art recognized purpose of allowing users to enter commands and navigate for beverage selection and start the product recipe as taught by Kelly.
Response to Arguments
With respect to applicants urging directed to Elsom, importantly Elsom teaches chilled products, a compressor controller to achieve a minimum temperature and that a same taught refrigeration unit is known for changing unfrozen food to frozen food (pg. 1 lines 13-15). It is further noted applicants claims rely on a same temperature sensor and temperature signals for comparison during temperature reduction of the product to a set or calculated temperature for controlling the compressor (pg. 7 lines 5-7).
With respect to applicants urging of the determining step and the product of Elsom does not undergo phase change. As noted above the determining is specific to temperature. Elsom teaches temperature sensors and the temperature sensors checked to determine if cooling of the barrel is necessary and/or if a minimum temperature has been reached (pg. 9 lines 1-7).
Mavridis is relied upon with respect to phase change. Mavridis teaches an automated machine for making semi-frozen products. Mavridis teaches product consistency control based on same temperature of the product in the mixing vessel directly (par. 0034).
With respect to applicants urging directed to phase change. Importantly as a result of phase change due to cooling in addition to the temperature being reduced the viscosity is reduced due to increase in consistency.
With respect to applicants urging Mavridis is silent to concepts like "phase change", "liquid", "fluid", "solid", "state", or "matter" and none of these terms or equivalents appear in Mavridis. As noted by applicant Marvidis teaches “semi-frozen consistency”. The Office has not taken official notice but cited what one of ordinary skill in the art would recognize and principals of phase change. As opposed to detecting viscosity of the product, i.e. a direct measurement of phase change, the claims determine based on a same controlling factor, a same temperature sensor signal as taught.
More specifically Marvidis teaches as alternative to motor detection for determining product consistency, product temperature can be sensed directly (par. 0034).
With respect to applicants urging that Marvidis is silent to a change from a liquid to solid state. It is initially noted applicants claims are not limited to a liquid state but “at least some of the drink product has started to change from a liquid to solid state”.
Thus with respect to a semi-frozen product as urged by applicant, Mavridis importantly teaches when the product becomes too cold (par. 0033), i.e. “at least some of the drink product has started to change from a liquid to solid state”. Mavridis teaches too cold with respect to product consistency, i.e. viscosity. Mavridis teaches control based on this determining factor and Marvidis teaches control based on this controlling factor and “blocking flow of refrigerant”, i.e. in response. Mavridis teaches as opposed to detecting viscosity of the product, i.e. a direct measurement of phase change, determine based on a same controlling factor, a same temperature sensor signal as taught (par. 0034).
Thus since Elsom teaches chilled products, since Elsom teaches determining product conditions relative decreasing temperature using temperature sensors, since Elsom teaches the same determining of cooling as a result of rate of change in detected temperatures and since Mavridis teaches product consistency controlled based on direct temperature measurement of the product during cooling (par. 0034).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the temperature signals as taught by both and determining whether a phase change has occurred, in the instance of a desired final product, such as in the instant case frozen as taught by Mavridis for a same art recognized and purpose of Elsom of determining by a same checking of temperature sensors if cooling of the barrel is necessary and/or if a minimum temperature has been reached (pg. 9 lines 1-7).
Though Elsom is silent to determine whether at least some of the drink product has started to change from a liquid to a solid state, since the control constant is temperature and since Mavridis teaches control of temperature relative a change of phase from liquid to solid (par. 0034). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to determine whether at least some of the drink product has started to cool based on at least one rate of change in temperature determined from periodic temperature signals as taught by Elsom (pg. 7 lines 23-29), where the cooling is indicative of liquid to solid as taught by Mavridis and in response to determining whether at least some of the drink product has started to change phases, use a same rate of change in temperature as taught by Elsom (pg. 9 lines 2-3) for its art recognized purpose as taught by both of control the cooling circuit based on whether at least some of the drink product has started to change to a cooling temperature (pg. 9 line 8 cooling no longer needed; pg. 9 lines 26-32; pg. 7 lines 8-9 needs cooling), such as in the instant case from a liquid to a solid as taught by Mavridis.
With respect to applicants urging Elsom is limited to temperature of the compressor and the not product itself. Importantly Elsom teaches the same temperature sensor and temperature sensor rate of change to determine if a minimum temperature has been achieved or if additional cooling of the barrel is needed.
More specifically though applicant urges Elsom teaches specific location of the temperature sensor due to the phrase “preferable located near or at the evaporator unit”, importantly Elsom does not teach away from other positions and merely teaches “preferably”.
However and importantly, Elsom teaches the temperature sensors checked to determine if cooling of the barrel is necessary and/or if a minimum temperature has been reached (pg. 9 lines 1-7).
With respect to applicants urging Mavridis is silent to the temperature sensor position in the mixing vessel, Mavridis specifically teaches “based on the temperature of the product in the bowls 10”.
With respect to applicants urging Mavridis is silent to the temperature sensor position in the mixing vessel due to infrared temperature sensing, Marvidis specifically teaches such with respect to product temperature sensed “directly or indirectly”. Mavridis specifically teaches “based on the temperature of the product in the bowls 10” and more specifically “directly” as opposed to indirectly.
With respect to applicants urging directed to KSR. The rejection does not rely on such in the instant case given the teachings and level of ordinary skill in the art.
Since the control constant is temperature as taught both and since Mavridis teaches control of temperature relative a change of phase from liquid to solid (par. 0034). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to determine whether at least some of the drink product has started to cool based on at least one rate of change in temperature determined from periodic temperature signals as taught by Elsom (pg. 7 lines 23-29), where the cooling is indicative of liquid to solid as taught by Mavridis and in response to determining whether at least some of the drink product has started to change phases, use a same rate of change in temperature as taught by Elsom (pg. 9 lines 2-3) for its art recognized purpose as taught by both of control the cooling circuit based on whether at least some of the drink product has started to change to a cooling temperature (pg. 9 line 8 cooling no longer needed; pg. 9 lines 26-32; pg. 7 lines 8-9 needs cooling), such as in the instant case from a liquid to a solid as taught by Mavridis.
Conclusion
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN N LEFF whose telephone number is (571)272-6527. The examiner can normally be reached on M-F 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)270-34753475. 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