`Tel: 571-272-7822
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`Paper 18
`Entered: January 4, 2017
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`
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`KEURIG GREEN MOUNTAIN, INC.,
`Petitioner,
`
`v.
`
`TOUCH COFFEE & BEVERAGES, LLC,
`Patent Owner.
`
`Case IPR2016-01392
`Patent 9,149,149 B2
`
`Before CHRISTOPHER L. CRUMBLEY, CHRISTOPHER M. KAISER,
`and MICHELLE N. ANKENBRAND, Administrative Patent Judges.
`
`KAISER, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
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`IPR2016-01392
`Patent 9,149,149 B2
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`A. Background
`
`INTRODUCTION
`
`Keurig Green Mountain, Inc. (“Petitioner”) filed a Petition (Paper 2,
`
`“Pet.”) requesting inter partes review of claims 1–5, 8–14, 16, 17, and 20–
`
`22 of U.S. Patent No. 9,149,149 B2 (Ex. 1001, “the ’149 patent”). Touch
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`Coffee & Beverages, LLC (“Patent Owner”) filed a Preliminary Response
`
`(Paper 6, “Prelim. Resp.”).
`
`We have authority to determine whether to institute an inter partes
`
`review. 35 U.S.C. § 314(b); 37 C.F.R. § 42.4(a). The standard for
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`instituting an inter partes review is set forth in 35 U.S.C. § 314(a), which
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`provides that an inter partes review may not be instituted unless “there is a
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`reasonable likelihood that the petitioner would prevail with respect to at least
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`1 of the claims challenged in the petition.”
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`After considering the Petition, the Preliminary Response, and the
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`evidence currently of record, we determine that Petitioner has not
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`demonstrated that there is a reasonable likelihood that it would prevail with
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`respect to at least one of the claims challenged in the Petition. Accordingly,
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`we do not institute inter partes review.
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`B. Related Matters
`
`The parties note that the ’149 patent is the subject of Keurig Green
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`Mountain, Inc. v. Touch Coffee & Beverages, LLC, Case No. 1:16-CV-
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`10142-DJC (D. Mass.). Pet. v; Paper 5, 1. Petitioner also challenges the
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`’149 patent in a co-pending petition for inter partes review, IPR2016-01396.
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`In addition, Petitioner challenges related patents in IPR2016-01390
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`(challenging U.S. Patent No. 9,144,343); IPR2016-01394 (challenging U.S.
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`2
`
`
`
`IPR2016-01392
`Patent 9,149,149 B2
`
`Patent No. 9,149,151); and IPR2016-01395 (challenging U.S. Patent No.
`
`9,149,150). Pet. v; Paper 5, 1.
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`C. The Asserted Grounds of Unpatentability
`
`Petitioner contends that claims 1–5, 8–14, 16, 17, and 20–22 of the
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`’149 patent are unpatentable based on the following grounds (Pet. 13–55):1
`
`Statutory
`Ground
`§ 103
`§ 103
`
`Basis
`
`Challenged Claim(s)
`
`Castellani2 and Yoakim3
`Castellani, Rivera,4 and
`Sylvan5
`
`1–5, 8–14, 16, 17, and 20–22
`1–5, 8–14, 16, 17, and 20–22
`
`D. The ’149 Patent
`
`The ’149 patent “is directed to a beverage brewing system, and in
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`particular, to a brewing system for making hot beverages.” Ex. 1001, 1:18–
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`19. In particular, it “is directed to a cartridge system adapted to brew a
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`beverage through a brewer having a brewing chamber adapted to receive the
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`cartridge system.” Id. at 4:24–26. “The cartridge system may include a
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`holder adapted to receive a first beverage cartridge and a second beverage
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`cartridge,” where the second cartridge is taller than the first. Id. at 4:50–53.
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`“The holder may also have a first needle and a second needle,” where “[t]he
`
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`1 Petitioner also relies on a declaration from Paul A. Phillips. Ex. 1012.
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`2 Castellani, WO 2013/153473 A1, published Oct. 17, 2013 (Ex. 1002,
`“Castellani”).
`
`3 Yoakim et al., U.S. Patent No. 7,569,243 B2, issued Aug. 4, 2009
`(Ex. 1003, “Yoakim”).
`
`4 Rivera, U.S. Patent No. 9,232,871 B2, issued Jan. 12, 2016 (Ex. 1008,
`“Rivera”).
`
`5 Sylvan et al., U.S. Patent No. 5,325,765, issued July 5, 1994 (Ex. 1009,
`“Sylvan”).
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`3
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`IPR2016-01392
`Patent 9,149,149 B2
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`first needle may be adapted to pierce through the first beverage cartridge,
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`and the second needle may be adapted to pierce through the second beverage
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`cartridge.” Id. at 4:55–60. The design of the cartridges and the placement of
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`the needles within the holder are such that each type of cartridge is only
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`pierced by the needle designed to pierce it, and not by the other needle. Id.
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`at 4:61–65. Those features are shown in Figures 7 and 11 of the ’149 patent,
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`which are reproduced below.
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`
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`Figure 7 depicts holder 116 with short cartridge 100 inserted and
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`being pierced by first needle 130 and not second needle 132. Id. at 10:15–
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`16, 10:20–23. Figure 11 depicts the same holder with tall cartridge 300
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`inserted in place of the short cartridge of Figure 7. Id. at 13:12–13. The tall
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`4
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`IPR2016-01392
`Patent 9,149,149 B2
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`cartridge is pierced by second needle 132 but not by first needle 130. Id. at
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`13:18–23.
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`E. Illustrative Claims
`
`Of the challenged claims in the ’149 patent, claims 1, 10, 13, and 22
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`are independent. Ex. 1001, 33:27–36:46. Claims 1 and 10 are illustrative;
`
`they recite:
`
`1. A method of brewing a beverage from either one of a first
`beverage cartridge having a beverage ingredient therein and a
`second beverage cartridge having a beverage ingredient therein,
`which is taller than the first beverage cartridge, with a brewer
`having an inlet needle, a first outlet needle, and a second outlet
`needle, the method comprising the steps of:
`
`piercing the first beverage cartridge with the inlet needle and,
`at a first predetermined piercing location within the
`brewer, piercing the first beverage with the first outlet
`needle;
`
`not piercing the first beverage cartridge at a second
`predetermined piercing location within the brewer, that is
`vertically offset from the first predetermined piercing
`location, with the second outlet needle;
`
`injecting liquid into the first beverage cartridge with the inlet
`needle; and
`
`draining beverage from within the first beverage cartridge
`with the first outlet needle.
`
`Id. at 33:27–44.
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`
`
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`5
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`10. A method of brewing a beverage with a brewer having an
`inlet needle, a first outlet needle, and a second outlet needle
`located in spaced relation to the first outlet needle, the method
`comprising the steps of:
`
`piercing a first beverage cartridge having a first configuration
`and a beverage ingredient therein with the inlet needle and
`with the first outlet needle;
`
`not piercing the first beverage cartridge with the second outlet
`needle;
`
`injecting liquid into the first beverage cartridge with the inlet
`needle;
`
`draining beverage from within the first beverage cartridge
`with the first outlet needle;
`
`after the first beverage cartridge has been removed from the
`brewer, piercing a second beverage cartridge having a
`second configuration that is different than the first
`configuration and a beverage ingredient therein with the
`inlet needle and with the second outlet needle;
`
`not piercing the second beverage cartridge with the first outlet
`needle;
`
`injecting liquid into the second beverage cartridge with the
`inlet needle; and
`
`draining beverage from within the second beverage cartridge
`with the second outlet needle.
`
`Id. at 34:39–62.
`
`A. Claim Construction
`
`ANALYSIS
`
`In an inter partes review, we construe claim terms in an unexpired
`
`patent according to their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); see
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`Cuozzo Speed Techs. LLC v. Lee, 136 S. Ct. 2131, 2144 (2016) (upholding
`
`the use of the broadest reasonable interpretation standard). Claim terms
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`Patent 9,149,149 B2
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`generally are given their ordinary and customary meaning, as would be
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`understood by one of ordinary skill in the art in the context of the entire
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`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
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`2007). Both parties suggest that three terms need to be construed: “beverage
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`ingredient,” “vertically offset,” and “needle.” Pet. 9–12; Prelim. Resp. 8–9.
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`But the parties do not disagree on the proper construction of any of those
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`terms, Prelim. Resp. 8–9, and, rather than offering an actual proposed
`
`construction for any term, Petitioner merely asks us to hold Patent Owner to
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`positions it has taken in the related litigation. Pet. 9–12. Thus, there is no
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`actual dispute over those terms for us to resolve. Accordingly, we need not
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`construe any of those terms expressly. See Vivid Techs., Inc. v. Am. Sci. &
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`Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“only those terms need be
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`construed that are in controversy, and only to the extent necessary to resolve
`
`the controversy”).
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`B. Asserted Obviousness over Castellani and Yoakim
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`Petitioner argues that claims 1–5, 8–14, 16, 17, and 20–22 would have
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`been obvious to a person of ordinary skill in the art given the teachings of
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`Castellani and Yoakim. Pet. 13–42.
`
`1. Castellani
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`Castellani teaches “capsules for producing a beverage, or more
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`generally an edible product, by flowing hot and possibly pressurized water
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`through the capsule, which contains at least one or more ingredients for the
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`preparation of edible product.” Ex. 1002, 1:2–4. Specifically, Castellani
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`teaches brewing two different types of coffee from the same cartridge.
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`“Brewing espresso coffee requires flowing hot and pressurized water
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`through the capsule containing coffee powder,” whereas “‘American coffee’
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`IPR2016-01392
`Patent 9,149,149 B2
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`is usually produced by flowing a large amount of water at reduced or zero
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`pressure across a coffee powder bed.” Id. at 1:14–19. Castellani purports to
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`solve the problem of making those two types of coffee “having variable
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`organoleptic characteristics using the same single-serving package.” Id. at
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`1:22–25. The disclosed method of doing so is illustrated in Figures 4, 5, and
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`5A of Castellani, which are reproduced below.
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`
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`Figures 4 and 5 depict brewing chamber 15 with lower brewing
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`chamber 15A including capsule recess 17. Id. at 10:15–24. Both figures
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`show capsule 1 introduced into capsule recess 17. Id. at 10:22–24. Piercing
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`members 27 and 29, containing hollow ports 27A and 29A, respectively, are
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`placed on the bottom of capsule recess 17 projecting upward. Id. at 11:12–
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`15. Piercing member 29 projects further into capsule recess 17 than does
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`piercing member 27. Id. at 11:26–29.
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`Capsule 1 may be introduced into capsule recess 17 in two alternative
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`ways, one shown in Figure 4, and one shown in Figure 5. In Figure 4,
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`capsule 1 is introduced so that wall portion 7A is pressed against piercing
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`member 27, causing piercing member 27 to puncture wall portion 7A before
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`IPR2016-01392
`Patent 9,149,149 B2
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`brewing begins. Id. at 12:2–7. In Figure 5, capsule 1 is introduced so that
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`wall portion 7A does not make contact with piercing member 27, and no
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`puncturing of capsule 1 occurs before brewing begins. Id. at 12:8–12. As
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`shown in Figure 5 (before brewing begins) and Figure 5A (after sufficient
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`pressure develops inside capsule 1 during brewing), piercing member 29
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`does not puncture capsule 1 until sufficient pressure develops inside
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`capsule 1 to deform wall 7. Id. at 12:13–23.
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`The two different possible orientations of capsule 1 in capsule
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`recess 17 permit the same capsule to be used to conduct two different
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`brewing operations. In the Figure 4 orientation, “water can flow at a
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`relatively high flow rate and low pressure through the capsule.” Id. at 13:7–
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`11. That produces “‘American’ coffee.” Id. at 13:12–13. In the Figure 5
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`orientation, “brewing will be performed at a higher water pressure and lower
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`flow rate, obtaining for example an espresso coffee with a top cream layer.”
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`Id. at 13:14–27.
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`Castellani describes other embodiments in which, in contrast to the
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`embodiment illustrated in Figures 5 and 5A, piercing member 29 does
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`partially or entirely perforate wall 7 of capsule 1 before brewing begins. Id.
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`at 12:13–13:4. Each of those embodiments, however, is described as not
`
`permitting any liquid to exit capsule 1 via port 29A until the pressure inside
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`capsule 1 rises to a sufficient value to deform wall 7. Id.
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`2. Yoakim
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`Yoakim “relates to a device for preparing a food product from a
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`capsule,” where the device is adapted to accommodate capsules of at least
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`two different sizes. Ex. 1003, 1:41–54, Figs. 8–11. That allows a large
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`capsule to be used to brew “a concentrated drink in a cup of large capacity,”
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`9
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`Patent 9,149,149 B2
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`rather than forcing a user “to use two capsules of product in succession to
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`obtain the desired concentration.” Id. at 1:30–37. Each of Yoakim’s
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`capsules has a flat bottom when placed into the brewing device. Id. at
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`Figs. 3–6.
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`3. Analysis
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`Petitioner argues that, between them, Castellani and Yoakim teach or
`
`suggest each of the limitations of claims 1–5, 8–14, 16, 17, and 20–22 of the
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`’149 patent. Pet. 13–42. Petitioner also argues that a person of ordinary
`
`skill in the art would have found it obvious to combine the teachings of
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`Castellani and those of Yoakim. Id. at 20–22. After reviewing the Petition,
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`the Preliminary Response, and the evidence currently of record, we conclude
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`that Petitioner has not shown sufficiently a reason to combine the teachings
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`of Castellani and Yoakim.
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`First, the combination of Castellani and Yoakim Petitioner proposes
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`would eliminate the benefits of the device of Castellani alone. Petitioner
`
`argues that the combined teachings of Castellani and Yoakim would have
`
`led the person of ordinary skill in the art to use Castellani’s brewer, one tall
`
`cartridge of the type and in the position shown in Castellani Figure 4, and
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`one short cartridge of the same type and in the same position, but modified
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`to have a flat bottom. Pet. 23, 34–35. Thus, in Petitioner’s proposed
`
`combination, Castellani’s brewer is used with two different cartridges of
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`different sizes and configurations to brew two beverages of different sizes.
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`But the sole benefit that Castellani teaches is solving the “need for a system
`
`which is capable of producing beverages having variable organoleptic
`
`characteristics using the same single-serving package.” Ex. 1002, 1:22–24.
`
`By modifying Castellani to remove that benefit, the proposed combination
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`10
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`IPR2016-01392
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`renders Castellani unsatisfactory for its intended purpose. This eliminates
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`any reason to modify Castellani using the teachings of Yoakim. In re
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`Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984).
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`Moreover, Petitioner offers only one reason for the combination:
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`“allow[ing] Castellani’s brewer to . . . mak[e] beverages in different sizes.”
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`Pet. 20. But Yoakim’s brewer can be used on its own to make beverages in
`
`different sizes, making it unclear why a person of ordinary skill would
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`abandon it in favor of using Castellani’s brewer.
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`Second, Petitioner does not show sufficiently that a person of ordinary
`
`skill in the art would have had a reason to make all the modifications needed
`
`to make the combination of Castellani and Yoakim work as intended.
`
`Petitioner argues that the Castellani brewer would need no modification to
`
`work with the proposed flat-bottom cartridge. Pet. 20–23. But the evidence
`
`of record establishes that some modifications to the brewer would have been
`
`necessary, without establishing that those modifications would have been
`
`obvious to a person of ordinary skill in the art. Petitioner’s declarant, Paul
`
`A. Phillips, testifies that “any modifications necessary to the piercing
`
`element 29” to enable coffee to be made using the modified cartridge would
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`have been obvious. Ex. 1012 ¶ 66. But that testimony is insufficiently
`
`supported. It does not explain why Mr. Phillips is of the opinion that those
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`modifications would have been obvious, nor does it even explain what those
`
`modifications would have been. “Expert testimony that does not disclose
`
`the underlying facts or data on which the opinion is based is entitled to little
`
`or no weight.” 37 C.F.R. § 42.65(a). Accordingly, the testimony of
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`Mr. Phillips is insufficient to support the obviousness of the modifications to
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`11
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`Castellani’s piercing element 29 that would have been necessary for the
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`brewer to make coffee.
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`An obviousness argument cannot succeed without Petitioner
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`establishing a reason to combine the relevant references. There must be
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`“some articulated reasoning with some rational underpinning” to combine
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`the known elements in the manner required in the claim at issue. KSR Int’l
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`Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Because Petitioner does not
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`provide adequate “articulated reasoning,” we determine that Petitioner has
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`not established a reasonable likelihood of prevailing in showing the
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`obviousness of the challenged claims over the combination of Castellani and
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`Yoakim.
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`C. Asserted Obviousness over Castellani, Rivera, and Sylvan
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`Petitioner argues that claims 1–5, 8–14, 16, 17, and 20–22 would have
`
`been obvious to a person of ordinary skill in the art given the teachings of
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`Castellani, Rivera, and Sylvan. Pet. 42–55.
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`1. Sylvan and Rivera
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`Sylvan discloses a beverage filter cartridge with a base, a cover, and a
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`filter. Ex. 1009, 3:48–53, Fig. 1. The filter “contains coffee powder,” and
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`the base “has the shape of an inverted truncated cone.” Id. Rivera
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`incorporates Sylvan by reference and further describes Sylvan’s cartridge.
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`Ex. 1008, 1:25–31, 2:28–43, Fig. 1. Rivera describes Sylvan’s cartridge as
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`having a flat bottom and a frusto-conical shape. Id. at 2:28–43, Fig. 1. The
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`cartridge “includes a pierceable shell 14 and contains brewing material 16.”
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`Id. at 2:32–33.
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`2. Analysis
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`Petitioner argues that, between them, Castellani, Rivera, and Sylvan
`
`teach or suggest each of the limitations of claims 1–5, 8–14, 16, 17, and 20–
`
`22 of the ’149 patent. Pet. 42–55. Petitioner also argues that a person of
`
`ordinary skill in the art would have found it obvious to combine the
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`teachings of Castellani and those of Rivera and Sylvan. Id. at 42–49. After
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`reviewing the Petition, the Preliminary Response, and the evidence currently
`
`of record, we conclude that Petitioner has not shown sufficiently a reason to
`
`combine the teachings of Castellani, Rivera, and Sylvan.
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`First, as with the combination of Castellani and Yoakim discussed
`
`above, the combination of Castellani, Rivera, and Sylvan that Petitioner
`
`proposes would eliminate the benefits of Castellani alone. Petitioner argues
`
`that the combined teachings of Castellani, Rivera, and Sylvan would have
`
`led the person of ordinary skill in the art to use Castellani’s brewer, one tall
`
`cartridge of the type and in the position shown in Castellani Figure 4, and
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`one short cartridge of the type disclosed in Rivera and Sylvan. Pet. 47–48;
`
`Ex. 1012 ¶ 69. Thus, in Petitioner’s proposed combination, Castellani’s
`
`brewer is used with two different cartridges of different sizes and
`
`configurations to brew two beverages of different sizes. But the sole benefit
`
`that Castellani teaches is solving the “need for a system which is capable of
`
`producing beverages having variable organoleptic characteristics using the
`
`same single-serving package.” Ex. 1002, 1:22–24. By modifying Castellani
`
`to remove that benefit, the proposed combination renders Castellani
`
`unsatisfactory for its intended purpose. This eliminates any reason to
`
`modify Castellani using the flat-bottom cartridge teachings of Rivera and
`
`Sylvan. Gordon, 733 F.2d at 902.
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`Moreover, Petitioner offers only one reason for the combination: the
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`cartridges disclosed in Rivera and Sylvan were widely used, effective, and a
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`market leader available in over 200 varieties, so a person of ordinary skill in
`
`the art would want to use them in any brewer. Pet. 43. But Rivera and
`
`Sylvan disclose the existence of brewers designed to make use of the
`
`cartridges described therein, making it unclear why a person of ordinary skill
`
`in the art would have abandoned those brewers in favor of Castellani’s
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`brewer. Ex. 1008, 1:23–31 (noting that the cartridge of Ex. 1009 is designed
`
`“for use in a Keurig® coffee maker”); Ex. 1008, 2:28–32 (noting that the
`
`cartridge of Fig. 1 is the cartridge of Ex. 1009).
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`Second, Petitioner does not show sufficiently that a person of ordinary
`
`skill in the art would have had a reason to make all the modifications needed
`
`to make the combination of Castellani, Rivera, and Sylvan work as intended.
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`Petitioner argues that the Castellani brewer would need no modification to
`
`work with the proposed shorter, flat-bottom cartridge. Pet. 45. But the
`
`evidence of record establishes that some modifications to the brewer would
`
`have been necessary, without establishing that those modifications would
`
`have been obvious to a person of ordinary skill in the art. Petitioner itself
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`acknowledges that the size of the Castellani brewing chamber would need to
`
`be chosen properly, that Castellani’s tag sensor would need to be moved,
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`and that the Castellani brewer would need to be reprogrammed. Id. at 45–
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`46. Mr. Phillips testifies that those modifications would have been obvious,
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`Ex. 1012 ¶¶ 67–68, but, as with the testimony discussed above, that
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`testimony is unsupported. Accordingly, it is insufficient to support the
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`obviousness of the modifications Petitioner argues would have been
`
`necessary for the proposed combination to work properly.
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`Third, Petitioner has not explained sufficiently how the teachings of
`
`Castellani and those of Rivera and Sylvan would have been combined to
`
`allow the Rivera/Sylvan cartridge to work with the Castellani brewer. As
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`noted above, Petitioner argues that no changes to the Castellani brewing
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`chamber other than changes to its size would be required to use the
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`Castellani brewing chamber with the cartridges disclosed in Rivera and
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`Sylvan. Pet. 45. That argument is supported by the testimony of
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`Mr. Phillips. Ex. 1012 ¶ 67. Accordingly, Petitioner does not propose
`
`moving any part of the Castellani brewer from the locations described in
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`Castellani. But the evidence of record establishes that Castellani’s piercing
`
`element 29 is located so as to pierce the center of any cartridge inserted into
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`the brewing chamber, whereas the cartridges disclosed in Rivera and Sylvan
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`would not have worked if pierced in the center. Ex. 1002, Fig. 4A; Ex. 2011
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`¶ 107. Petitioner does not direct us to sufficient record evidence that
`
`explains how a person of ordinary skill in the art would have modified those
`
`apparently incompatible components to achieve compatibility.
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`Because Petitioner does not provide adequate “articulated reasoning,”
`
`we determine that Petitioner has not established a reasonable likelihood of
`
`prevailing in showing the obviousness of the challenged claims over the
`
`combination of Castellani, Rivera, and Sylvan.
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`CONCLUSION
`
`Upon consideration of the Petition, the Preliminary Response, and the
`
`evidence before us, we determine that Petitioner has not demonstrated a
`
`reasonable likelihood that it would prevail in showing that any of claims 1–
`
`5, 8–14, 16, 17, and 20–22 is unpatentable. Accordingly, we do not institute
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`15
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`inter partes review of those claims on either of the grounds advanced by
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`Petitioner.
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`
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`It is hereby
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`ORDER
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`ORDERED that, pursuant to 35 U.S.C. § 314, the Petition is denied,
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`and no inter partes review is instituted.
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`PETITIONER:
`
`Richard F. Giunta
`Robert E. Hunt
`WOLF GREENFIELD & SACKS, P.C.
`RGiunta-PTAB@wolfgreenfield.comRHunt-PTAB@wolfgreenfield.com
`
`
`
`PATENT OWNER:
`
`Sang N. Dang
`BLUE CAPITAL LAW FIRM, P.C.
`sdang@bluecapitallaw.com
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