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`EXHIBIT 1002
`EXHIBIT 1002
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`
`Hydration Labs, Inc. d/b/a Bevi,
`Petitioner
`
`v.
`
`Smart Soda Holdings, Inc.,
`Patent Owner
`
`U.S. Patent No. 11,724,927
`Filing Date: August 9, 2022
`Priority Date: March 3, 2021
`Issue Date: August 15, 2023
`Title: On Demand Function Beverage Dispenser
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`
`
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`
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`DECLARATION OF PETE WOLSKI
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`I.
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`TABLE OF CONTENTS
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`Assignment ......................................................................................................................... 1
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`II.
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`Qualifications ...................................................................................................................... 1
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`III.
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`Summary of Conclusions .................................................................................................... 3
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`IV. Materials Considered .......................................................................................................... 4
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`V.
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`Understanding of Governing Law ...................................................................................... 4
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`VI.
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`Person of Ordinary Skill in the Art ..................................................................................... 6
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`VII. Relevant Prior Art ............................................................................................................... 6
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`VIII. Relevant Beverage Dispensing Technology ....................................................................... 7
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`IX.
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`The 927 Patent .................................................................................................................... 8
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`X.
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`Summary of the Relevant Prosecution History ................................................................... 9
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`XI.
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`Effective Filing Date ......................................................................................................... 10
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`XII. Claim Construction ........................................................................................................... 10
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`XIII. Detailed Prior Art Discussion ........................................................................................... 11
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`XIV. Cimatti anticipates claims 1–5, 7–14, and 16–18 ............................................................. 16
`A.
`Claim 1 .................................................................................................................. 16
`B.
`Claims 2 and 11 .................................................................................................... 21
`C.
`Claims 3 and 12 .................................................................................................... 23
`D.
`Claims 4 and 13 .................................................................................................... 24
`E.
`Claims 5 and 14 .................................................................................................... 28
`F.
`Claim 7 .................................................................................................................. 28
`G.
`Claim 8 .................................................................................................................. 29
`H.
`Claim 9 .................................................................................................................. 31
`I.
`Claim 10 ................................................................................................................ 31
`J.
`Claim 16 ................................................................................................................ 32
`K.
`Claim 17 ................................................................................................................ 33
`L.
`Claim 18 ................................................................................................................ 33
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`XV. Bethuy anticipates claims 1–5, 7, and 9-14, and 16-20 .................................................... 33
`A.
`Claim 1 .................................................................................................................. 33
`B.
`Claims 2 and 11 .................................................................................................... 40
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`

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`C.
`D.
`E.
`F.
`G.
`H.
`I.
`J.
`K.
`L.
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`Claims 3 and 12 .................................................................................................... 41
`Claims 4 and 13 .................................................................................................... 42
`Claims 5 and 14 .................................................................................................... 46
`Claim 7 .................................................................................................................. 46
`Claim 9 .................................................................................................................. 47
`Claim 10 ................................................................................................................ 47
`Claim 16 ................................................................................................................ 51
`Claim 18 ................................................................................................................ 52
`Claim 19 ................................................................................................................ 52
`Claim 20 ................................................................................................................ 54
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`XVI. Smartwell Dispenser anticipates claims 1–3, 5–15, 17, and 18 ........................................ 55
`A.
`Claim 1 .................................................................................................................. 55
`B.
`Claims 2 and 11 .................................................................................................... 65
`C.
`Claims 3 and 12 .................................................................................................... 67
`D.
`Claims 5 and 14 .................................................................................................... 68
`E.
`Claim 6 and 15 ...................................................................................................... 69
`F.
`Claim 7 .................................................................................................................. 69
`G.
`Claim 8 .................................................................................................................. 71
`H.
`Claim 9 .................................................................................................................. 72
`I.
`Claim 10 ................................................................................................................ 72
`J.
`Claim 17 ................................................................................................................ 72
`K.
`Claim 18 ................................................................................................................ 73
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`XVII. SmartSoda JuLi Touch anticipates claims 1-20 ................................................................ 73
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`XVIII. Cimatti, Bethuy, and O’Laughlin render claims 6 and 15 obvious ................................... 73
`A.
`Claim 6 and 15 ...................................................................................................... 73
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`XIX. Cimatti, Bethuy, and Wallace render claims 6 and 15 obvious ........................................ 75
`A.
`Claim 6 and 15 ...................................................................................................... 75
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`XX. Cimatti, Bethuy, Shannon, and Holler render claims 19 and 20 obvious ......................... 77
`A.
`Claim 19 ................................................................................................................ 77
`B.
`Claim 20 ................................................................................................................ 79
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`2
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`I, Pete Wolski, declare as follows:
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`I.
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`ASSIGNMENT
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`1.
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`I have been retained on behalf of Hydration Labs, Inc. d/b/a Bevi (“Bevi” or “Petitioner”)
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`to offer technical opinions related to U.S. Patent No. 11,724,927 (“The 927 Patent”)
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`(EX1001). I understand that Bevi is requesting the Patent Trial and Appeal Board
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`(“PTAB” or “Board”) to institute a post-grant review (“PGR”) proceeding of the 927
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`Patent.
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`2.
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`I have been asked to provide my independent analysis of the 927 Patent in light of the
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`prior art cited in this declaration. Bevi has specifically asked for my analysis from the
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`perspective of a POSITA in the beverage dispensing industry.
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`3.
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`I am not and never have been, an employee of Bevi. I received no compensation for this
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`declaration beyond my normal hourly compensation based on my time actually spent
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`analyzing the ’927 Patent, the prior art cited below, and issues related thereto, and I will
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`not receive any added compensation based on the outcome of this PGR or other
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`proceeding involving the 927 Patent.
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`II.
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`QUALIFICATIONS
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`4.
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`I have been personally involved in the beverage dispensing industry for over 20 years. I
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`have a wealth of experience in the development and functionality of post-mix beverage
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`dispensers. I have managed teams of engineers that were responsible for the research and
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`development of beverage dispensers for a leading industry player.
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`5.
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`I received my Bachelors of Science in mechanical engineering in 1984 from Syracuse
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`University.
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`6.
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`From 1993 to 2001, I held a number of key technical roles including Director of
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`Engineering and Quality and Vice President of Engineering for IMI Cornelius where I managed
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`1
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`a team of engineers responsible for product development. IMI Cornelius is an industry leader in
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`the design and manufacture of commercial beverage dispensing and ice making equipment.
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`7.
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`From 2001 to 2002, I was promoted to Executive Vice President of Engineering for IMI
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`Cornelius where I was responsible for all engineering and research and development programs
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`managed within the US division. During that time, products developed included state of the art
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`post-mix soda fountain dispensers, dispensing valves, post-mix juice dispenser, frozen
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`carbonated beverage dispensers, among others.
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`8.
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`In addition, I was assigned direct management of IMI Cornelius’ patent portfolio
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`beginning in 2001 and concluding in 2007. During that time, I was responsible for the
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`maintenance of approximately 263 patents assigned to the company and for applying for and
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`acquiring intellectual property rights. My duties also included the management and coordination
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`of outside legal counsel including coordinating any defense against patent infringement claims
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`by other entities. I also was in charge of preventing infringement of third-party patents.
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`9.
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`From 2002 to 2005, I was again promoted to Executive Vice President of Products,
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`Services, and Technology where I was given greater responsibility within the company assuming
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`responsibility for all product and general marketing, program management, technical field
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`service and training, as well as all engineering and research and development. As such, I was
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`keenly aware of the state of beverage dispensing technology in the industry at the time.
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`10. In 2005, I moved away from managing the day to day engineering of beverage
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`dispensers and managed the market development for IMI Cornelius while retaining the program
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`management of all product development. I worked with many large companies introducing
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`beverage programs and new products for companies like McDonald’s, Coca-Cola, PepsiCo, and
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`Yum! Brands.
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`11. Since 2014, I have offered my services as an independent consultant providing business
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`and product development advice to many global brands.
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`12. My curriculum vitae is included as Appendix A.
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`13. I am being compensated at my customary hourly rate of $330. This compensation is
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`unrelated to the outcome of this matter.
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`14. Based on my work experience, described above and in detail in my curriculum vitae, I
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`am knowledgeable about post-mix beverage dispensing including the functionality of individual
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`components of post-mix beverage dispensers.
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`15. I am over the age of 18 and am competent to write this declaration. I have personal
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`knowledge, or have developed knowledge, of the technologies discussed in this declaration based
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`upon my education, training, or experience with the matters discussed herein.
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`III.
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`SUMMARY OF CONCLUSIONS
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`16. This Declaration explains the conclusions that I have formed based on my analysis. To
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`summarize those conclusions:
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` Ground A: Based upon my knowledge and experience and my review of the prior art in
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`this declaration, the claims 1–5, 7–14, 16–18 of the 927 Patent are anticipated by Cimatti.
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` Ground B: Based upon my knowledge and experience and my review of the prior art in
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`this declaration, the claims 1–5, 7, 9–20 of the 927 Patent are anticipated by Bethuy.
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` Ground C: Based upon my knowledge and experience and my review of the prior art in
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`this declaration, the claims 1–3, 5–15, 17, 18 of the 927 Patent are anticipated by the
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`SmartWell Dispenser.
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`3
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` Ground D: Based upon my knowledge and experience and my review of the prior art in
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`this declaration, the claims 6 and 15 of the 927 Patent are rendered obvious by Cimatti,
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`Bethuy, and O’Laughlin.
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` Ground E: Based upon my knowledge and experience and my review of the prior art in
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`this declaration, the claims 6 and 15 of the 927 Patent are rendered obvious by Cimatti,
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`Bethuy, and Wallace.
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` Ground F: Based upon my knowledge and experience and my review of the prior art in
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`this declaration, the claims 19 and 20 of the 927 Patent are rendered obvious by Cimatti,
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`Bethuy, Shannon, and Holler.
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`IV. MATERIALS CONSIDERED
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`17. In forming my opinions, I have reviewed and am familiar with the ’286 Patent and its
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`prosecution history, the materials cited herein, and exhibits to the Petition
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`V.
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`UNDERSTANDING OF GOVERNING LAW
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`18. I am not an attorney. For the purposes of this declaration, I have been informed about
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`certain aspects of the law that are relevant to forming my opinions. My understanding of the law
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`is as follows.
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`19. I understand that a patent claim may be “anticipated” if each element of that claim is
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`present either explicitly or inherently in a single prior art reference, and that the elements should
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`be arranged in the reference as in the claim. I understand that for a claimed limitation to be
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`inherently present, the prior art reference need not expressly disclose the limitation, so long as
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`the claimed limitation necessarily flows from a disclosure in the reference.
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`20. I understand that that a patent claim can be considered to have been obvious to a person
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`of ordinary skill in the art at the time of the claimed invention. This means that, even if all of the
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`requirements of a claim are not found in a single prior art reference, the claim is not patentable if
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`the differences between the prior art and the subject matter in the claim would have been obvious
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`to a person of ordinary skill in the art at the time of the claimed invention.
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`21. I understand that a determination of whether a claim would have been obvious should be
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`based upon several factors, including, among others: (i) the level of ordinary skill in the art at the
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`time of the claimed invention; (ii) the scope and content of the prior art; (iii) what differences, if
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`any, existed between the subject matter of the claimed invention and the prior art; and (iv)
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`secondary considerations of non-obviousness.
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`22. I understand that a single reference can render a patent claim obvious if any differences
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`between that reference and the claims would have been obvious to a person of ordinary skill in
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`the art. Alternatively, the teachings of two or more references may be combined in the same way
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`as disclosed in the claims, if such a combination would have been obvious to one having
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`ordinary skill in the art. In determining whether a combination based on either a single reference
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`or multiple references would have been obvious, it is appropriate to consider, among other
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`factors:
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`a. whether the teachings of the prior art references disclose known concepts
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`combined in familiar ways, and when combined, would yield predictable results;
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`b. whether a person of ordinary skill in the art could implement a predictable
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`variation, and would see the benefit of doing so;
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`c. whether the claimed elements represent one of a limited number of known
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`design choices, and would have a reasonable expectation of success by those
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`skilled in the art;
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`d. whether a person of ordinary skill would have recognized a reason to combine
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`known elements in the manner described in the claim;
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`5
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`e. whether there is some teaching or suggestion in the prior art to make the
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`modification or combination of elements claimed in the patent; and/or
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`f. whether the innovation applies a known technique that had been used to
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`improve a similar device or method in a similar way.
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`23. I understand that that in considering obviousness, I should keep in mind that a person of
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`ordinary skill in the art has ordinary creativity and is not an automaton.
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`24. I understand that in considering obviousness, it is improper to determine obviousness
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`using the benefit of hindsight derived from the patent being considered.
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`VI.
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`PERSON OF ORDINARY SKILL IN THE ART
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`25. A person of ordinary skill in the art (“POSITA”) at the time of the effective filing date
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`would have had at least a B.S. degree in mechanical engineering or electrical engineering (or
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`equivalent experience) and would have had at least two years of practical experience with
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`designing beverage dispensers.
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`VII. RELEVANT PRIOR ART
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`26. The prior art that I have reviewed and relied upon in this declaration are as follows:
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` U.S. Pub. No. 2020/0122994 (hereinafter “Cimatti”) published on April 23, 2020 and
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`priority to October 22, 2018.
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` U.S. Pub. No. 2016/0368752 (hereinafter “Bethuy”) published on December 22, 2016 and
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`priority to August 31, 2016
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` SmartWell Dispenser on sale as early as April 23, 2019.
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` U.S. Pub. No. 2016/0280526 (hereinafter “O’Laughlin”) published on September 29,
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`2016 and priority to March 23, 2015.
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` EP1788916 (hereinafter “Wallace”) published on April 8, 2009 and priority to August 6,
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`2004.
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` U.S. Patent No. 5,012,955 (hereinafter “Shannon”) published on May 7, 1991 and
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`priority to October 30, 1989.
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` U.S. Pub. No. 2007/0012719 (hereinafter “Holler”) published on January 18, 2007 and
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`priority to June 2, 2005.
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`VIII. RELEVANT BEVERAGE DISPENSING TECHNOLOGY
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`27. The first commercial use of a machine to automatically dispense soft drinks occurred at
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`the 1933 World’s Fair when Coca-Cola introduced the first automatic drink dispenser. The
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`dispenser model was named the Dole Master Dispenser and was manufactured by The Dole
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`Valve Company as shown below. The introduction of the Dole Master Dispenser was the
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`beginning of the development of beverage dispensers that create and dispense soft drinks on-
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`premise for immediate consumption.
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`28. User interfaces also evolved from simple lever actuated approaches to multi button
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`portion selector panels and LED based communications. For example, in 2009, Coca-Cola
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`introduced the Freestyle dispenser that used a touchscreen interface to allow a consumer to select
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`a customized beverage.
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`29. Also, as early as 2009, the industry explored adding neutraceuticals such as vitamins and
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`medicines as an option when dispensing beverages.
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`IX.
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`THE 927 PATENT
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`30. The 927 Patent generally describes a beverage dispenser that allows a user to select a
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`flavor and “function” to be added to a beverage that is to be dispensed. In particular, the 927
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`Patent describes displaying a user interface with “a flavor selection area and a function selection
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`area.” 927 Patent at claim 1. The beverage dispenser receives the user input, “chooses from the
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`multiple selectable reservoirs,” and dispenses the beverage. Id. The functions “include at least
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`one of relax, energize, immunize, or muscle.” Id. at claim 3. FIG. 11 illustrates the process for
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`dispensing the beverage:
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`8
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`X.
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`SUMMARY OF THE RELEVANT PROSECUTION HISTORY
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`31. In the first and only office action for the 927 Patent, the examiner rejected claims 1–18
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`for non-statutory double patenting with U.S. Patent 11,407,630 (the “630 Patent”). Ex. 1014.
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`The examiner indicated that claims 19 and 20 were objected to as being dependent upon a
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`rejected base claim, but would be allowable if rewritten into independent form. The applicant
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`filed a terminal disclaimer to overcome the double patenting rejection and claims 1–20 were
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`allowed. The examiner never rejected the Challenged Claims under 35 U.S.C. §§ 102 or 103.
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`32. The 927 Patent application claims priority to Application No. 17/190,665, which issued
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`as the 630 Patent. During prosecution of the 630 Patent, the examiner rejected some of the
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`pending claims under 35 U.S.C. §§ 102 and 103 over Beavis (U.S. Pub. No. 2013/0292407) and
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`9
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`an Official Notice.1 Ex. 1015. However, the examiner indicated that claims 5 and 10–15 were
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`objected to as being dependent upon a rejected base claim, but would be allowable if rewritten
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`into independent form. The applicant amended the independent claims to incorporate the
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`limitations of claim 5, which, as originally filed, read:
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`The control system of claim 1, wherein a concentration of a dietary supplement
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`included in the selected function that is included in the enhanced flavored mixture
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`is at least five times larger than a concentration of the dietary supplement
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`included in the selected flavor that is included in the enhanced flavored mixture.
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`In the next action, an Ex Parte Quayle action, the examiner objected to the drawings, but
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`indicated that the pending claims were allowable.
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`XI.
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`EFFECTIVE FILING DATE
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`33. The 927 Patent issued from Application No. 17/884,074, which was filed on August 9,
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`2022. Application No. 17/884,074 claimed priority to Application No. 17/190,665, which was
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`filed on March 3, 2021. Thus, the earliest priority date and effective filing date of the 927 Patent
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`is March 3, 2021.
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`XII. CLAIM CONSTRUCTION
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`34. I understand that the terms should of the Challenged Claims should be construed “in
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`accordance with the ordinary and customary meaning of such claim as understood by one of
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`ordinary skill in the art and the prosecution history pertaining to the patent.” 37 C.F.R. §
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`42.200(b); see Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005). For this proceeding, I
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`1 The Official Notice indicated that claim 6 was “an obvious design choice to a person of ordinary skill in the art.”
`Non-final Office Action (September 22, 2021), p. 4, U.S. Application No. 17/190,665. Claim 6, which, as originally
`filed, read: “The control system of claim 1, wherein the selected function included in the enhanced flavored mixture
`includes a dietary supplement in a quantity greater than or equal to 50% of a daily Recommended Dietary Allowances
`(RDA) for the dietary supplement.” The applicant did not object to the Official Notice when responding to the Office
`Action.
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`understand that the Petitioner does not believe any claim constructions are needed. Petitioner
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`reserves the right to respond to any constructions offered by Patent Owner or adopted by the
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`Board in accordance with due process.
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`XIII. DETAILED PRIOR ART DISCUSSION
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`35. Cimatti (U.S. Pub. No. 2020/0122994) was published on April 23, 2020 and has a
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`priority date of October 22, 2018. Cimatti is prior art as of October 22, 2018 under 35 U.S.C. §
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`102(a)(2). In the addition, Cimatti is prior art as of April 23, 2020 under 35 U.S.C. § 102(a)(1).
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`Cimatti discloses a prior art beverage dispenser and “a method for dispensing a custom
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`beverage.” Cimatti, paragraph [0004]. Cimatti describes that “a user may select flavoring by
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`pressing one or more of user input selections 528.” Id. at [0239]. The beverage dispenser
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`includes “functional ingredients,” such as “minerals, vitamins, electrolytes, energy, calm,
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`protein, fiber, vitamins, antioxidants, sweeteners and other functional ingredients.” Id. at [0120].
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`36. Bethuy (U.S. Pub. No. 2016/0368752) was published on December 22, 2016 and has a
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`priority date of August 31, 2016. Bethuy is prior art as of August 31, 2016 under 35 U.S.C. §
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`102(a)(2). In addition, Bethuy is prior art as of December 22, 2016 under 35 U.S.C. § 102(a)(1).
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`Bethuy discloses a prior art beverage dispenser that “vends beverages that may be made from
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`hot, cold or carbonated water, and everything from plain filtered water, to standard soft drinks, to
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`fully custom beverages that are designed by the customer.” Bethuy, paragraph [0005]. Bethuy
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`describes that “user[s] may optionally select a nutritional supplement mix, like immune boost,
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`energy boost, multi-vitamin, etc., select their relative percentages, and then vary the amount,
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`maybe according to body weight.” Id. at [0006].
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`37. The SmartWell Dispenser is a prior art beverage dispenser that allows users to dispense
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`custom water-based beverages. The SmartWell Dispenser includes a touchscreen display that
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`allows users to dispense their selected beverage. The SmartWell Dispenser dispenses still or
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`11
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`sparkling water. In addition, the SmartWell Dispenser allows users to select flavors, sweeteners,
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`and enhancements such as Vitamin C, electrolytes, and caffeine, to create their beverage. The
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`SmartWell Dispenser is described in several videos posted and available on YouTube and Vimeo
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`(Exs. 1005 and 1006, collectively, “SmartWell Videos”) and in printed marketing materials (Ex.
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`1007–1009, collectively, “SmartWell Publications”). The earliest of the SmartWell Videos were
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`published on YouTube and Vimeo and was publicly accessible on April 23, 2019.
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`38. The SmartWell Dispenser is prior art under 35 U.S.C. § 102(a)(1) because the
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`SmartWell Dispenser was in public use, on sale, and otherwise available to the public before the
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`effective filing date of the 927 Patent. See 35 U.S.C. § 102(a)(1). I understand that “[a]n offer
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`for sale, sale, or public use, if [before the effective filing date of the patent application], will bar
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`patenting of the product, even if the sale was not authorized by the patentee.” ResQNet.com, Inc.
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`v. Lansa, Inc., 594 F.3d 860, 866 (Fed. Cir. 2010) (citing In re Cavaney, 761 F.2d 671, 675 (Fed.
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`Cir. 1985); see also Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc., 139 S.Ct. 628, 633–34
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`(2019) (“[W]e presume that when Congress reenacted the same language [‘on sale’] in the AIA,
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`it adopted the earlier judicial construction of that phrase.”). The SmartWell Dispenser was on
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`sale as early April 23, 2019, as evidenced by the SmartWell Videos advertising the dispenser.2
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`39. The 927 Patent is invalid under 35 U.S.C. § 102 as anticipated by the SmartWell
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`Dispenser, the SmartWell Videos, and the SmartWell Publications. The SmartWell Videos and
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`the SmartWell Publications are additional references that can be properly considered under 35
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`U.S.C. § 102. The additional references, the SmartWell Videos and the SmartWell Publications,
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`simply “show that the claimed subject matter, as disclosed [by the SmartWell Dispenser], was in
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`2 Petitioner reserves the right to seek additional discovery to obtain affidavits from Elkay, the owners of the
`SmartWell Dispenser.
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`12
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`the public’s possession” before the effective filing date. I understand that the following case law
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`is relevant: In re Donohue, 766 F.2d 531, 534 (Fed. Cir. 1985) (citing In re Samour, 571 F.2d
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`559, 563 (CCPA 1978)) (considering multiple references for a § 102 is proper when the
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`additional references are relied on to show that the primary reference discloses the claimed
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`subject matter); see also MPEP § 2131.01(I). The SmartWell Videos and the SmartWell
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`Publications document that each limitation of the Challenged Claims are taught by the
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`SmartWell Dispenser. Further, even if the SmartWell Publications were published after the
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`priority date of the 927 Patent, which Petitioner does not concede, I understand that the
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`SmartWell Publications are “acceptable as evidence of characteristics of prior art products,”
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`namely, the SmartWell Dispenser. Ex Parte Lisziwicz, 2010 WL 1607520, Appeal 2010-000027
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`(PTAB 2010) (citing In re Wilson, 311 F.2d 266, 268 – 69 (CCPA 1962) (“The board considered
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`that the publication was properly cited to show a state of fact. After reading the entire
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`publication, so do we. It [is] clearly a discussion of the properties of polyurethane foam products
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`generally, products made by the processes of the prior art of record in this case.… As evidence
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`of the characteristics of prior art foam products, however, we know of no reason in law why it is
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`not acceptable.”)).
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`40. In addition, I understand that the SmartWell Videos are printed publications under 35
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`U.S.C. § 102(a)(1). The SmartWell Videos, listed below, are authentic and were publicly
`
`accessible as of April 23, 2019 and January 12, 2020, respectively. Regarding authenticity, I
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`understand that there is significant and reliable evidence that the SmartWell Videos are what
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`they purport to be. Fed. R. Evid. 901(b)(4). Identical copies of each SmartWell Video were
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`posted on both YouTube and Vimeo on the same day. Each SmartWell Video remains posted on
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`YouTube and Vimeo. Further, in numerous cases, I understand that Google Custodians of
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`Record have given sworn testimony that “[a]s explained on YouTube’s support website, the date
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`listed under a video is the date it was published and, if the video was posted publicly, that is the
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`date on which it became available to anyone for viewing. See, e.g., London Luxury LLC v. E &
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`E Co., Ltd., Petition for Post-Grant Review of U.S. Patent No. 10,820,376, PGR2021-00083
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`(May 12, 2021); see also YouTube Help, Schedule Video Publish Time
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`(https://support.google.com/youtube/answer/1270709?hl=en) (“When you make a video public
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`on YouTube, the date on the watch page is based on Pacific Standard Time (PST). If you want a
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`certain date to show beneath your video, upload your video on that date.”).
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`41. Regarding public accessibility, MPEP § 2128 states that “[a]n electronic publication,
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`including [digital video], is considered to be a ‘printed publication’ within the meaning of 35
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`U.S.C. § 102(a)(1) provided the publication was accessible to persons concerned with the art to
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`which the document relates.” MPEP § 2128(II)(A) (citing In re Wyer, 655 F.2d 221, 227 (CCPA
`
`1981) (videos are considered printed publications provided that they are “accessible to persons
`
`concerned with the art to which the [videos] relates”)). The SmartWell Videos were posted on
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`April 23, 2019 and January 12, 2019 and publicly accessible and available as of that date. MPEP
`
`§ 2128(II)(B) (“Prior art disclosures on the Internet or on an online database are considered to be
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`publicly available as of the date the item was publicly posted.”).
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`42. Further, the SmartWell Publications are printed publications under 35 U.S.C. §
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`102(a)(1). The SmartWell Publications were accessible as early as April 23, 2019, when the
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`SmartWell Dispenser was on sale. In addition, the SmartWell Publications, User Manual and
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`Troubleshooting, include 2020 copyright dates and were published and accessible by the end of
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`2020.
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`43. The following is a list of all the SmartWell prior art:
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`Reference
`SmartWell Video (available on Vimeo at
`https://vimeo.com/384394240 and available on
`YouTube at
`https://www.youtube.com/watch?v=4wdn3hHft9c)
`SmartWell Video
`(available on Vimeo at
`https://vimeo.com/332051430 and available on
`YouTube
`at
`https://www.youtube.com/watch?v=SgebX-
`WIceI)
`SmartWell Publication, User Manual
`SmartWell Publication, Troubleshooting
`SmartWell Publication, Flavors
`
`
`Dates
`January 12, 2020
`
`Prior Art Basis
`§ 102(a)(1)
`
`April 23, 2019
`
`§ 102(a)(1)
`
`April 23, 2019
`April 23, 2019
`April 23, 2019
`
`§ 102(a)(1)
`§