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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Objections
Claims 1, 6 are objected to because of the following informalities: Claim 1 recites the limitation, “wherein at least one half-shell comprises” on line 6. For matters of form, this limitation should be amended to recite, “wherein at least one half-shell of the two half-shells comprises”.
Claim 1 recites the limitation, “pre-cut hole’s pattern or scratch’s pattern,” on lines 12-13. For matters of form, this limitation should be amended to recite, “forming a pattern” in order to simplify the language.
Claim 1 recites “A primary layer”; “A secondary layer” and “An at least partial tertiary layer,” on lines 7-10. The terms, “A” and “An” at the beginning of these limitations should be lowercase.
Claim 6 recites, “and combination thereof” on the 2nd to last line. It appears that this should recite, “and combinations thereof.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-18 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation, “the half-shell” on line 13, which lacks proper antecedent basis such that it is not clear whether it is referring to “the at least one half-shell” or some other half-shell.
Claim 1 recites the limitation, “the other half-shell” on line 16 which lacks proper antecedent basis. This rejection can be overcome by amending the limitation to recite, “the other half-shell of the two half-shells.”
Claims 2-18 are rejected based on their dependence to a rejected claim.
Claim 5 recites, “the pre-cut hole(s) and/or scratch(es)” which lacks proper antecedent basis.
Claim 5 recites the limitation, “the primary layer thickness,” which lacks proper antecedent basis as there is no previous recitation of a thickness of the primary layer.
Claim 7 recites, “wherein the primary layer comprises between 1 and 150 holes.” This limitation is not clear as to whether it is referring to the “at least one non-traversing, pre-cut hole and/or scratch” or some other holes.
Claim 8 recites the limitation, “wherein the primary layer and/or the scratch pattern comprises,” on line 2. Since claim 1 recites that the at least one half shell comprises a hole or scratch in the alternative (see line 12), claim 8 is not clear whether it is intending to positively recite the presence of the scratch instead of the hole.
Claim 8 also recites that “the scratch” is on the external surface of said primary layer at the location of the injection portion. This is unclear because claim 1 recites that the scratch would have been over a delivery portion (see lines 12-13). Therefore claim 8 is not clear because it appears to recite a scratch as part of a different location from where the scratch has been disclosed in claim 1.
Claim 9 recites the limitation, “preferably compostable and comprises a coating or a preferably multilayer, compostable plastic film structure.” The term, “preferably” makes the claim unclear as to whether the following the term are required or not. Additionally, the claim is not clear as to what the first recitation of “preferably” is modifying, being compostable and comprising a coating, or only being compostable. In view of this, the scope of what is required by the claim is not clear.
Claim 10 recites the limitation, “the preferably multilayer compostable film,” on line 3, which lacks proper antecedent basis.
Claim 10 also recites the term, “preferably” on lines 2 and 3 which makes the claim unclear as to whether the following the term are required or not.
Claim 11 recites the limitation, “said layer” on line 3, which lacks proper antecedent basis.
Claim 12 recites the limitation, “the coating” on line 2, which lacks proper antecedent basis.
Claims 13-15, 17 and 18 recite, “the tertiary layer.” This limitation lacks proper antecedent basis because it is not clear whether this is intending to refer to “an at least partial tertiary layer” as recited in claim 1.
Claim 16 recites the limitation, “loosely” on line 3, which is a relative term that has not been defined by the claims or specification and therefore makes the scope of the claim unclear as to what can be construed as being “loosely” linked.
Claim 18 recites, “the half-shell’s flange” on line 3-4, which lacks proper antecedent basis because it is not clear which of the two half-shells are being referred to.
Claim Rejections - 35 USC § 103
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, 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 for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 3-5, 8, 9, 11, 12, and 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over Stas (EP 3381838) in view of Yoakim (US 20040115310) and Andreae (US 20170158422).
Kuiper (US 20230166895) has been relied on as evidence.
Regard claim 1 Stas teaches a pod for preparing a beverage in a beverage production machine (see figure 11), wherein the pod is made of a biodegradable material composition (see paragraph 3, “manufactured completely…from biodegradable material”) and comprises a pod body composed of two half-shells (see figure 11) being connected to each other along their respective circumferential flange (see figure 11, where item 75’ and 73’ are bonded at the flange) so as to define a chamber for containing a substance for the preparation of the beverage (see paragraph 22 and 44 and at least, column 10, claim 1, “ground coffee”)
Stas discloses that at least one half-shell comprises in a layered manner:
a primary layer that can be made of a paper-based material (Figure 1, item 13 is the primary layer; see paragraph 19, column 4, lines 4-5 which discloses that the first layer can be paper).
a secondary layer with at least an oxygen barrier function (figure 1 and 2, item 19, 15; see paragraph 18 and 45 disclosing the second layer can be provided with an oxygen barrier; see paragraph 30 and 35) and
an at least partial tertiary layer with a filter function (see figure 1, item 17 and paragraph 31),
wherein the primary layer of said at least one half-shell comprises at least one non-traversing, pre-cut hole and/or scratch (see figure 1, item 9c; figure 4, item 30), over at least a delivery portion of the half-shell.
Stas’s pod is adapted to interact with external opening elements of the beverage production machine, under the effect of rising pressure of the fluid being injected into the pod through an injection portion on the other half-shell, to dispense the prepared beverage from the pod. (see column 9, line 52 to column 10, line 1; paragraph 4; see figure 5 where one part of the pod has an injection portion and an opposing part of the pod has a delivery section (see paragraph 41). Since Stas teaches at paragraph 44 that both walls of the pod as shown in figure 11 can have the same structure (i.e. they can both have “said wall part” which is disclosed as the structure shown in figure 1 and 2, item 7; see paragraph 22, 29 and 30), Stas is teaching a pod with at least two half shells which would have been adapted to interact with opening elements of a beverage production machine through an injection portion on one of the two half-shells and to dispense a prepared beverage from the pod.
If it could have been construed that Stas did not provide sufficient specificity as to the primary layer being made of a paper based material, then Yoakim further teaches that it has been conventional to provide beverage pod with a layer (figure 1, item 4) made of paper and which can comprise weakened or pre-scored regions (see paragraph 6) that open under pressure for achieving the requisite extraction (see paragraph 16 and 23). Therefore, it would have been obvious to one having ordinary skill in the art to have modified Stas if necessary to specifically use a paper-based material as the primary layer, since Stas suggests this and because Yoakim further evidences using paper for the same function as taught by Stas.
Stas teaches that there are pre-cut holes (9c, 30), but claim 1 differs in specifically reciting that the holes are in a pattern.
However, Stas also teaches that patterns and/or stripes can be applied to create the locally weakened part of the shell (see paragraph 32, column 7, lines 30-38). Additionally, Andreae also teaches a sealing film (see figure 1, item 2) which comprises an inner non-woven layer (figure 1, item 3), then a barrier layer (figure 1, item 5, paragraph 41: PVOH) and an outermost cellulose layer (figure 1, item 6) which outermost cellulose layer can have pre-cut holes (see figure 1, item 7; Paragraph 41). In figure 6, Andreae further teaches that such cuts can be in a pattern and which pattern can control the rupturing (see paragraph 5). Andreae is teaching a similar function as that of Stas of rupturing of the sealing layer when pressure is generated within the pod (see paragraph 8 and 45).
Therefore it would have been obvious to one having ordinary skill in the art to have applied the pre-cut holes in any pattern as an obvious matter of design choice and for controlling the rupturing of the film.
Regarding claim 3, Stas teaches that the primary layer is arranged opposite to the chamber with respect to the secondary layer because in figures 1, 2 and 4, the primary layer is the outermost layer 13, 27 and the secondary layer is a sandwiched layer 15, 19, 28.
Regarding claim 4, Stas teaches the tertiary layer is arranged facing the chamber with respect to the secondary layer, because in figures 2, 3 and 4, layer 17 and 29 is a filtering layer directly adjacent to the chamber.
Regarding claim 5, the limitation of, “non-traversing” has been construed to mean that the pre-cut holes, scratches, cuts or scorings only extend in the primary layer and do not extend in the secondary layer (see page 5, lines 15 and 23-24; page 11, lines 15-22). In view of this, Stas teaches in figure 1 that the pre-cut holes and/or scratches (see figure 1, item 9c) can extend only in the primary layer and do not extend in the secondary layer (i.e figure 1, item 19). Stas teaches that any weakening into layer 15 is only as a preference (see column 8, lines 1-4, “as desired”) and therefore is teaching and suggesting pre-cut holes and/or scratches that can be construed as non-traversing and extend over the primary layer thickness. This is further supported by Andreae at figure 1, item 6 and 7 where the weakening is only in the primary layer thickness. Therefore it would have been obvious to one having ordinary skill in the art to have modified Stas to only use pre-cut holes that are present only in Stas’s primary layer, as an obvious matter of engineering and/or design for controlling the particular strength and desired weakness of the primary layer.
Regarding claim 8, since Stas teaches that the primary layer can comprise a plurality of pre-cut holes and/or scratches, this can be construed as a decoration on the primary layer that provides localized weakness of the primary layer.
If it could have been construed that Stas did not specifically teach the primary layer as comprising decoration, logo, information and/or coded elements that provide localized weakness of the primary layer, then it is noted that Andreae teaches a pattern that can be construed as a decoration providing localized weakness of the primary layer (see figure 1, item 7 and figure 6; see paragraph 5 and 44).
To therefore modify Stas to have a pattern which therefore comprises decoration would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design, such as for controlling the rupturing of the film as already taught by Andreae.
Regarding claims 9 and 11, Stas teaches that the secondary layer 19 can be a layer of polyvinyl alcohol (see paragraph 26 and 35), which is known to be biodegradable because Stas teaches that the end wall and side wall can be manufactured from material that is completely biodegradable (paragraph 3) and provided with an oxygen impermeable layer or coating such as polyvinyl alcohol. At paragraph 26, Stas also teaches biodegradable materials for the barrier layer. Nonetheless, Kuiper (US 20230166895) evidences that polyvinyl alcohol is biodegradable (see paragraph 18).
Regarding claim 12, it is noted that the claim is directed to the product and not the method of making. Therefore, the structure implied by claim 12 is the secondary layer is attached to the primary layer. In this regard, Stas teaches that the secondary layer can be a multilayer (figure 2, item 15, 19; paragraph 6) and where the layers are connected to each other over the entire surface (see column 2, lines 31-32) thus teaching the secondary layer attached to the primary layer.
Regarding claim 14, Stas teaches that the tertiary layer can be a non-woven structure (column 4, lines 3-4). This is further supported by Andreae teaching non-woven structures as filters (see paragraph 12), such that it would have been obvious to one having ordinary skill in the art to use non-woven materials as the innermost layer for allowing liquid to pass through the shell while retaining beverage ingredients.
Regarding claim 15, Stas teaches that the tertiary layer extends over the entirety of the delivery portion of the half-shell because Stas teaches in figure 11 that each sheet 75’ and 73’ can comprise the structure as shown in figure 2 and because figure 2 shows the tertiary layer extending over the entirety of the primary and secondary layers. This is further supported by Andreae teaching a laminate structure (see figure 1 and 7).
Regarding claim 16, Stas teaches that the layers can be loosely attached or can be attached in their entirety and therefore teaches that the tertiary layer would be at least partially linked to the secondary layer (see paragraph 7). This is further supported by Andreae teaching a laminate structure (see figure 1 and 7) and therefore suggesting the tertiary layer at least partially linked to the secondary layer.
Regarding claim 17, since Stas teaches at paragraph 7 that the primary layer, the secondary layer and the tertiary layer can be attached to each other over the entire surface, Stas teaches and suggests a laminated triplex structure.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, which relies on Stas (EP 3381838) as the primary reference, and in further view of Schwaiger (US 20220064867) and Perentes (US 20140305315).
Regarding claim 2, Stas teaches that the first layer can be a paper based layer (see column 4, lines 4-6) and can be a rigid layer with a modulus of elasticity of greater than 2000 N/mm2 (see paragraph 11 and 12).
Claim 2 differs from Stas in specifically reciting, wherein the primary layer is made of stretchable and/or formable paper-based material having an elongation at break of at least 6%.
Schwaiger teaches paper layers that can be part of beverage producing capsules (see paragraph 29) where the paper layer can have an elongation at break of 9.29% in the machine direction and 7.93% in the cross direction (see paragraph 41) for controlling the strength of the paper layer (see paragraph 12 and 19).
Perentes teaches capsules with a weakened paper layer (see paragraph 43; see figure 1, item 3; see paragraph 95) and layer can have an elongation of break of 10% for example (see paragraph 35) which would also help to rupture the layer (paragraph 36).
Since Stas teaches that the paper layer can have some degree of elasticity while also being rigid, to therefore modify Stas and to provide the paper layer with an elongation at break of 7.93%, 9.29%, as taught by Schwaiger or 10% as taught by Perentes would therefore have been obvious to one having ordinary skill in the art for the purpose of controlling the strength and rupturing of the paper layer.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, which relies on Stas (EP 3381838) as the primary reference, and in further view of Gres (WO 2020114995 A2).
Regarding claim 6, Stas teaches that the first layer (i.e. the primary layer) can be paper (see column 4, lines 4-5) and that the entirety of the capsule is biodegradable (see column 1, lines 36-40 - “can be manufactured completely… from biodegradable material”). This would therefore suggest that the paper is biodegradable as well.
Claim 6 differs from Stas in specifically reciting, the primary layer has a grammage comprised between 50 and 150 g/m2.
Gres teaches a closing lid that can have a paper layer as an outer layer (page 11, lines 23-29) and where the paper layer can have a grammage of 20-120 gsm (see page 12, lines 1-16) thus overlapping with and falling within the claimed range while allowing properties such as the requisite degree of perforability (see page 5, lines 7-10)
Since Stas does not provide any specificity regarding the specific basis weight of the paper layer, to modify Stas’s paper layer to have a grammage of 120gsm, for example, would have been obvious to one having ordinary skill n the art for achieving the requisite strength and perforability of Stas’s paper layer.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, which relies on Stas (EP 3381838) as the primary reference, and in further view of Diem (WO 2012145854).
Regarding claim 7, Stas teaches that there can be a number of openings in the first layer (see figure 1 and 4, item 9a-9c and 30; column 6, lines 3-8; paragraph 40) based on the degree of pressure buildup desired (see paragraph 40).
Claim 7 differs in specifically reciting, that the primary layer comprises between 1 and 150 holes
Diem teaches a weakened layer for exit of a prepared beverage (see figure 9, item 14 and paragraphs 286,287 of the machine translation) and which layer produces openings (see paragraph 287) and which can control the pressure drop for controlling coffee extraction and foam formation (See paragraph 162). Diem teaches that there can be for example, 50, 100 or 150 holes for this purpose (see paragraph 162).
To therefore modify Stas and to provide 50, 100 or 150 holes would have been obvious to one having ordinary skill in the art for the purpose of providing the desired pressure drop for controlling coffee extraction and foam formation, as taught by Diem.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, which relies on Stas (EP 3381838) as the primary reference, and in further view of Kuiper (US 20230166895).
Claim 10 differs from Stas in specifically reciting, wherein at least a layer, is enriched with Calcium Carbonate (CaCO3) in a range between 1 and 70 weight%.
Kuiper teaches beverage capsules (see figure 2D; paragraph 61, 88) with a paper cover layer (see paragraph 37) having barrier properties (paragraph 53) and where including a filler such as calcium carbonate can smoothen the paper layer while reducing fiber welling and penetration of compounds such as coffee into the matrix and/or fibers, while also enhancing the strength and stiffness properties and barrier properties (see paragraph 68). Kuiper teaches using for example 5-10% calcium carbonate (see paragraph 69).
To therefore modify Stas and to include 5-10% calcium carbonate as part of a layer such as the paper layer would have been obvious to one having ordinary skill in the art for the purpose of enhancing the strength, stiffness and barrier properties of the layer, as taught by Kuiper.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, which relies on Stas (EP 3381838) as the primary reference, and in further view of Meyer (US 20210300002).
Regarding claim 13, Stas already teaches a filter layer and further teaches that the pod can be completely biodegradable (see paragraph 3, “manufactured completely…from biodegradable material”). This therefore suggests that the filter layer 17 would also have been biodegradable, but Stas is not specific in this regard.
Nonetheless, Meyer teaches filter layers as part of a composite structure (see figure 1) which filter layer can be made from PLA or PHA (see paragraph 24) and therefore is teaching and suggesting a biodegradable filter layer.
To therefore modify Stas and to use PLA or PHA as the fibers for the filter layer would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design, based on conventional biodegradable fibers recognized in the art to be used for beverage pods.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, which relies on Stas (EP 3381838) as the primary reference, and in further view of Sandherr (WO 2021224348).
Regarding claim 18, Stas teaches a circumferentially sealed pod (see figure 11). Stas further teaches using an adhesive layer at the location of the flange (see column 4, lines 15-19) and therefore is suggesting a sealing layer at least at the location of the half-shell’s flange.
Nonetheless, Sandherr teaches a beverage capsule (see figure 3) which comprises two half shells (see figure 3, item 3 and 3’) and which half-shells comprise three layers (see at least, paragraphs 109-111 of the machine translation). Sandherr further teaches that there can be an innermost adhesive coating on the inner face of each sheet (see paragraph 63) to make it easier to seal the two sheets together at the peripheral flange (see paragraph 64 and 120)
Therefore it would have been obvious to one having ordinary skill in the art to have modified Stas and to have provided a sealing layer to Stas’s flange area for the purpose of ensuring that the two half-shells remained sealed together.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1, 3, 4, 5, 8, 9, 11, 12 and 14-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18843350 in view of Stas (EP 3381838) in view of Yoakim (US 20040115310) and Andreae (US 20170158422). Kuiper (US 20230166895) has been relied on as evidence.
Regarding claim 1, copending claim 7 teaches a pod made of biodegradable material and comprising a pod body composed of two half-shells being connected to each other to define a chamber for containing a beverage preparation substance. The pod comprises an injection and delivery wall, and which delivery wall is adapted to be opened under the effect of rising pressure within the pod (see copending claim 1). Copending claim 7 further teaches that one of the half-shells shells comprises a cellulose based primary layer, a secondary layer with an oxygen barrier function and a tertiary filtering layer.
Claim 1 differs from copending claim 7 in specifically reciting that the primary layer has at least one pre-cut hole and/or scratch and that the primary layer is made of a paper-based material.
Stas teaches a pod for preparing a beverage in a beverage production machine (see figure 11), wherein the pod is made of a biodegradable material composition (see paragraph 3, “manufactured completely…from biodegradable material”) and comprises a pod body composed of two half-shells (see figure 11) being connected to each other along their respective circumferential flange (see figure 11, where item 75’ and 73’ are bonded at the flange) so as to define a chamber for containing a substance for the preparation of the beverage (see paragraph 22 and 44 and at least, column 10, claim 1, “ground coffee”)
Stas discloses that at least one half-shell comprises in a layered manner:
a primary layer that can be made of a paper-based material (see paragraph 19, column 4, lines 4-5 which discloses that the first layer can be paper; see paragraph 17 which discloses that the first layer can be PLA or cellulose; Figure 1, item 13 is the first layer). That is, Stas is suggesting on column 4, lines 4-5 that the first layer, which has been disclosed as being PLA or cellulose can also be a paper layer, thus reading on a paper-based material.
If it could have been construed that Stas did not provide sufficient specificity as to the primary layer being made of a paper based material, then Yoakim further teaches that it has been conventional to provide beverage pod with a layer (figure 1, item 4) made of paper and which can comprise weakened or pre-scored regions (see paragraph 6) that open under pressure for achieving the requisite extraction (see paragraph 16 and 23).
Since the copending claims already suggest that the primary layer that is weakened and is a cellulose layer and since paper is a known cellulose layer, it would have been obvious to one having ordinary skill in the art to have modified the copendign claims and to use paper as the weakened layer, as an obvious substitution of one conventional external layer for another, both recognized to perform the same function of allowing dispensing of a beverage after generating a particular degree of pressure within the pod.
Claim 1 also differs from the copending claims in specifically reciting that the pre-cut hole and/or scratch forms a pattern over at least a delivery portion to interact with opening elements of a beverage production machine.
However, Stas teaches that the pre-cut holes and/or scratch of the primary layer interact with external opening elements of the beverage production machine, under the effect of rising pressure of the fluid being injected into the pod through an injection portion on the other half-shell, to dispense the prepared beverage from the pod. (see column 9, line 52 to column 10, line 1; paragraph 4; see figure 5 where one part of the pod has an injection portion and an opposing part of the pod has a delivery section (see paragraph 41). Stas also suggests a pattern to the pre-cut holes or scratches (see paragraph 32, column 7, lines 30-38).
Additionally, Andreae also teaches a sealing film (see figure 1, item 2) which comprises an inner non-woven layer (figure 1, item 3), then a barrier layer (figure 1, item 5, PVOH) and an outermost cellulose layer (figure 1, item 6) which outermost cellulose layer can have pre-cut holes (see figure 1, item 7)(Paragraph 41). In figure 6, Andreae further teaches that such cuts can be in a pattern and which pattern can control the rupturing (see paragraph 5). Andreae is teaching a similar function as that of Stas of rupturing of the sealing layer when pressure is generated within the pod (see paragraph 8 and 45).
Since the copending claims already recite that the delivery wall is adapted to be opened, it would have been obvious to one having ordinary skill in the art to have applied the pre-cut holes to the primary layer for controlling the rupturing of the sealing film.
Regarding claim 3, copending claim 13 teaches that the primary layer is arranged opposite to the chamber with respect to the secondary layer
Regarding claim 4, the copending claims teach a filter layer as the tertiary layer, but claim 4 differs in specifically reciting that the filter layer is facing the chamber with respect to the secondary layer.
However, Stas teaches that the filter layer can be positioned closest to the chamber (see figure 1, item 17 and paragraph 31) and to therefore modify the copending claims to position the filter layer as facing the chamber with respect to the secondary layer would have been obvious to one having ordinary skill in the art based on conventional positioning of similar layers used for the same function of containing the beverage ingredients within the beverage pod.
Regarding claim 5, the claim differs from the copending claims in reciting that the pre-cut hole and/or scratch are non-traversing and extend over the primary layer thickness.
Stas teaches in figure 1 that the pre-cut holes and/or scratches (see figure 1, item 9c) can extend only in the primary layer and do not extend in the secondary layer (i.e figure 1, item 19). Stas teaches that any weakening into layer 15 is only as a preference (see column 8, lines 1-4, “as desired”) and therefore is teaching and suggesting pre-cut holes and/or scratches that can be construed as non-traversing and extend over the primary layer thickness. This is further supported by Andreae at figure 1, item 6 and 7.
Since the copending claims already recite that the delivery wall is adapted to be opened, it would have been obvious to one having ordinary skill in the art to have applied the pre-cut holes that are non-traversing and extend over the primary layer thickness for the purpose of controlling the dispensing of the contents from the delivery wall.
Regarding claim 8, in view of Stas the combination teaches that the primary layer can comprise a plurality of pre-cut holes and/or scratches, this can be construed as a decoration on the primary layer that provides localized weakness of the primary layer.
If it could have been construed that Stas did not specifically teach the primary layer as comprising decoration, logo, information and/or coded elements that provide localized weakness of the primary layer, then it is noted that Andreae teaches a pattern that can be construed as a decoration providing localized weakness of the primary layer (see figure 1, item 7 and figure 6; see paragraph 5 and 44).
To therefore modify the combination to have a pattern which therefore comprises decoration would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design, such as for controlling the rupturing of the film as already taught by Andreae.
Regarding claims 9 and 11, in view of Stas the combination teaches that the secondary layer 19 can be a layer of polyvinyl alcohol (see paragraph 26 and 35), which is known to be biodegradable because Stas teaches that the end wall and side wall can be manufactured from a biodegradable compositable material and provided with an oxygen impermeable layer or coating such as polyvinyl alcohol. At paragraph 26, Stas also teaches biodegradable materials for the barrier layer. Nonetheless, Kuiper (US 20230166895) evidences that polyvinyl alcohol is biodegradable (see paragraph 18).
Since the copending claims already teach using a secondary layer that has a barrier function, it would have been obvious to one having ordinary skill in the art to have modified the copending claims to use a biodegradable barrier layer and where such a layer can comprise PVOH for the purpose of reducing the environmental impact of the pod by using more biodegradable materials.
Regarding claim 12, it is noted that the claim is directed to the product and not the method of making. Therefore, the structure implied by claim 12 is the secondary layer is attached to the primary layer. In this regard, the claim differs from the copending claims because the copending claims do not specifically recite the primary layer attached to the secondary layer.
Stas teaches that the secondary layer can be a multilayer (figure 2, item 15, 19; paragraph 6) and where the layers are connected to each other over the entire surface (see column 2, lines 31-32) thus teaching the secondary layer attached to the primary layer. To modify the copending claims to have the secondary layer attached to the primary layer would have been obvious to one having ordinary skill in the art based on a known configuration of a laminate structure used for allowing pressure to be accumulated within a beverage producing pod prior to dispensing a beverage therefrom.
Regarding claim 14, the claim differs from the copending claim in specifically recitintg that the tertiary layer is a non-woven structure. However, Stas teaches that the tertiary layer can be a non-woven structure (column 4, lines 3-4). Since the copending claims already teach a filter layer, it would have been obvious to one having ordinary skill in the art to have modified the copending claims and to use a non-woven structure based on conventional filtering layers used for the same purpose.
Regarding claim 15, the claim differs in specifically reciting that the tertiary layer extends at least over the delivery portion of the half shell, however Stas teaches that the tertiary layer extends over the entirety of the delivery portion of the half-shell because Stas teaches in figure 11 that each sheet 75’ and 73’ can comprise the structure as shown in figure 2 and because figure 2 shows the tertiary layer extending over the entirety of the primary and secondary layers. To modify the copending claims and to have the tertiary filter layer extend over the entirety of the delivery half shell would have been obvious to one having ordinary skill in the art, for ensuring that the beverage ingredients remained contained within the pod.
Regarding claim 16, the claim differs from the copending claims in specifically reciting that the at least partial tertiary layer is positioned on the secondary layer loosely or is at least partially linked to the secondary layer. Stas teaches that the layers can be loosely attached or can be attached in their entirety and therefore teaches that the tertiary layer would be at least partially linked to the secondary layer (see paragraph 7). Therefore to modify the copending claims and to have the filter layer at least partially linked to the secondary layer would have been obvious to one having ordinary skill in the art, as a matter of design based on conventional expedients for how one can arrange a filter layer as part of a beverage producing pod.
Regarding claim 17, the copending claims teach a triplex structure but claim 17 differs in specifically reciting that a laminated triplex structure. However, Stas teaches at paragraph 7 that the primary layer, the secondary layer and the tertiary layer can be attached to each other over the entire surface, Stas teaches and suggests a laminated triplex structure.
Therefore to modify the copending claims and to have a laminated three layer structure would have been obvious to one having ordinary skill in the art, as a matter of design based on conventional expedients for how one can arrange a primary, secondary and tertiary layer as part of a beverage producing pod.
This is a provisional nonstatutory double patenting rejection.
Claim 2 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18843350 as applied to claim 1 above, and in further view of Schwaiger (US 20220064867) and Perentes (US 20140305315).
Regarding claim 2, in view of Stas the combination teaches that the first layer can be a paper based layer (see column 4, lines 4-6) and can be a rigid layer with a modulus of elasticity of greater than 2000 N/mm2 (see paragraph 11 and 12).
Claim 2 differs from the combination as applied to claim 1 in specifically reciting, wherein the primary layer is made of stretchable and/or formable paper-based material having an elongation at break of at least 6%.
Schwaiger teaches paper layers that can be part of beverage producing capsules (see paragraph 29) where the paper layer can have an elongation at break of 9.29% in the machine direction and 7.93% in the cross direction (see paragraph 41) for controlling the strength of the paper layer (see paragraph 12 and 19).
Perentes teaches capsules with a weakened paper layer (see paragraph 43 and figure layer that can comprise paper (see paragraph 69; see figure 1, item 3, paragraph 66) and which upper wall can have an elongation of break of 10% for example (see paragraph 35) which would also help to rupture the layer (paragraph 36).
To therefore modify the combination and to provide the paper layer with an elongation at break of 7.93%, 9.29%, as taught by Schwaiger or 10% as taught by Perentes would therefore have been obvious to one having ordinary skill in the art for the purpose of controlling the strength and rupturing of the paper layer.
This is a provisional nonstatutory double patenting rejection.
Claim 6 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18843350 as applied to claim 1 above, and in further view of Gres (WO 2020114995 A2).
Regarding claim 6, in view of Stas the combination teaches that the first layer (i.e. the primary layer) can be paper (see column 4, lines 4-5) and that the entirety of the capsule is biodegradable (see column 1, lines 36-40 - “can be manufactured completely… from biodegradable material”). This would therefore suggest that the paper is biodegradable as well.
Claim 6 differs from the combination as applied to claim 1 in specifically reciting, the primary layer has a grammage comprised between 50 and 150 g/m2.
Gres teaches a closing lid that can have a paper layer as an outer layer (page 11, lines 23-29) and where the paper layer can have a grammage of 20-120 gsm (see page 12, lines 1-16) thus overlapping with and falling within the claimed range while allowing properties such as the requisite degree of perforability (see page 5, lines 7-10)
To therefore modify the combination and to use a paper layer having a grammage of 120gsm, would have been obvious to one having ordinary skill in the art for achieving the requisite strength and perforability of the paper layer.
This is a provisional nonstatutory double patenting rejection.
Claim 7 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18843350 as applied to claim 1 above, and in further view of Diem (WO 2012145854).
Regarding claim 7, in view of Stas the combination teaches that there can be a number of openings in the first layer (see figure 1 and 4, item 9a-9c and 30; column 6, lines 3-8; paragraph 40) based on the degree of pressure buildup desired (see paragraph 40).
Claim 7 differs from the combination as applied to claim 1 in specifically reciting, that the primary layer comprises between 1 and 150 holes
Diem teaches a weakened layer for exit of a prepared beverage (see figure 9, item 14 and paragraphs 286,287) and which layer produces openings (see paragraph 287) and which can control the pressure drop for controlling coffee extraction and foam formation (See paragraph 162). Diem teaches that there can be for example, 50, 100 or 150 holes for this purpose (see paragraph 162).
To therefore modify the combiantion and to provide 50, 100 or 150 holes would have been obvious to one having ordinary skill in the art for the purpose of providing the desired pressure drop for controlling coffee extraction and foam formation, as taught by Diem.
This is a provisional nonstatutory double patenting rejection.
Claim 10 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18843350 as applied to claim 1 above, and in further view of Kuiper (US 20230166895).
Claim 10 differs from the combination as applied to claim 1 in specifically reciting, wherein at least a layer, is enriched with Calcium Carbonate (CaCO3) in a range between 1 and 70 weight%.
Kuiper teaches beverage capsules (see figure 2D; paragraph 61, 88) with a paper cover layer (see paragraph 37) having barrier properties (paragraph 53) and where including a filler such as calcium carbonate can smoothen the paper layer while reducing fiber welling and penetration of compounds such as coffee into the matrix and/or fibers, while also enhancing the strength and stiffness properties and barrier properties (see paragraph 68). Kuiper teaches using for example 5-10% calcium carbonate (see paragraph 69).
To therefore modify the combination and to include 5-10% calcium carbonate as part of a layer such as the paper layer would have been obvious to one having ordinary skill in the art for the purpose of enhancing the strength, stiffness and barrier properties of the layer, as taught by Kuiper.
This is a provisional nonstatutory double patenting rejection.
Claim 13 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18843350 as applied to claim 1 above, and in further view of Meyer (US 20210300002).
Regarding claim 13, the copending claims already teaches a filter layer (see copending claim 7).
Claim 13 differs in reciting that the tertiary layer is biodegradable.
Meyer teaches filter layers as part of a composite structure (see figure 1) which filter layer can be made from PLA or PHA (see paragraph 24) and therefore is teaching and suggesting a biodegradable filter layer.
To therefore modify the filter of the copending claims and to use PLA or PHA as the fibers for the filter layer would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design, based on conventional biodegradable fibers recognized in the art to be used for beverage pods.
This is a provisional nonstatutory double patenting rejection.
Claim 18 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18843350 as applied to claim 1 above, and in further view of Sandherr (WO 2021224348).
Regarding claim 18, the copending claims teach two half shells that define an interior chamber but claim 18 differs in specifically reciting a sealing layer at the flange for allowing sealing of the two half shells together. teaches a circumferentially sealed pod (see figure 11).
Stas further teaches using an adhesive layer at the location of the flange (see column 4, lines 15-19) and therefore is suggesting a sealing layer at least at the location of the half-shell’s flange.
Sandherr teaches a beverage capsule (see figure 3) which comprises two half shells (see figure 3, item 3 and 3’) and which half-shells comprise three layers (see at least, paragraphs 109-111 of the machine translation). Sandherr further teaches that there can be an innermost adhesive coating on the inner face of each sheet (see paragraph 63) to make it easier to seal the two sheets together at the peripheral flange (see paragraph 64 and 120)
Therefore it would have been obvious to one having ordinary skill in the art to have modified the copending claims and to have provided a sealing layer for the purpose of ensuring that the two half-shells remained sealed together.
This is a provisional nonstatutory double patenting rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Goglio (WO 2013053655) discloses pre-scoring an injection and delivery wall for (see figure 6, item 40, 41) for facilitating rupture at a desired pressure (page 3, lines 30-33).
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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