THAISEEUSELOBOV
`
`571-272-7822
`
`Paper6
`Entered: March 13, 2024
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`HYDRATION LABS, INC. D/B/A BEVI,
`Petitioner,
`
`V.
`
`SMART SODA HOLDINGS, INC.,
`Patent Owner.
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`Before JEREMY M. PLENZLER, RICHARD H. MARSCHALL,and
`SEAN P. O7HANLON,Administrative Patent Judges.
`
`PLENZLER,Administrative Patent Judge.
`
`DECISION
`Granting Institution ofPost-Grant Review
`35 U.S.C. § 324
`
`
`
`571-272-7822
`
`Paper6
`Entered: March 13, 2024
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`HYDRATION LABS, INC. D/B/A BEVI,
`Petitioner,
`
`V.
`
`SMART SODA HOLDINGS, INC.,
`Patent Owner.
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`Before JEREMY M. PLENZLER, RICHARD H. MARSCHALL,and
`SEAN P. O7HANLON,Administrative Patent Judges.
`
`PLENZLER,Administrative Patent Judge.
`
`DECISION
`Granting Institution ofPost-Grant Review
`35 U.S.C. § 324
`
`
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`I.
`
`INTRODUCTION
`
`A. Background and Summary
`
`Hydration Labs,Inc. d/b/a Bevi (“Petitioner’’) filed a Petition
`
`requesting post-grant review of claims 1—20 ofU.S. Patent No. 11,724,927
`
`B2 (Ex. 1001, “the ’927 patent’). Paper 1 (“Pet.”). Smart Soda Holdings,
`
`Inc. (“Patent Owner’) did notfile a Preliminary Response.
`
`Under 35 U.S.C. § 324(a), a post-grant review maybeinstituted only
`
`if “the information presentedin the petition. .. demonstrate[s] that it is more
`
`likely than not thatat least 1 of the claims challenged in the petition 1s
`
`unpatentable.” For the reasonsstated below, we determinethat Petitioner
`
`has establishedit is more likely than not that it would prevail with respect to
`
`at least one ofthe challenged claims. Thus, weinstitute a post-grant review
`
`in this proceeding. 37 C.F.R. § 42.208(a) (2022) (“Wheninstituting post-
`
`grant review,the Board will authorize the review to proceed onall ofthe
`
`challenged claims andonall grounds ofunpatentability asserted for each
`
`claim.”). Specifically, we grant Petitioner’s request to institute a post-grant
`
`review of claims 1—20 ofthe °927 patent.
`
`B. RelatedMatters
`
`The parties indicate there are no related matters that would be affected
`
`by this proceeding. Pet. 2; Paper 5, 1.
`
`C. The 927 Patent
`
`The ’927 patent “relates to a beverage dispenser and moreparticularly
`
`to [a] system for controlling a beverage dispenserby adding flavored
`
`products and functional products to a liquid.” Ex. 1001, 1:13—16. Figures1,
`
`2, and 4 are reproduced below,and illustratean example ofthe beverage
`
`dispenser and its operation.
`
`
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`
`
`VITSMIN INFUSED FLAVORED WATER 3
`
`SUL OR DRARKUNG
`
`Figure 1 is a schematicillustration ofthe beverage dispenser. Figure 2 1s an
`
`illustration of an exemplary userinterface for selecting flavor and function.
`
`
`
`4
`i
`i
`
`Po
`fy
`
`3 i i j § i ¥ i :
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`
`
`
`
`pocsiosoosmanoceenonennosnusocenanantiing
`CONTROL
`SYSTEM
`
`papprive
`Fepropucr
`
`:
`hantvcenennnnl
`
`8T
`
`Figure 4 illustrates “a schematic drawing showing an exemplary
`
`embodimentof a beverage dispenser and a control system.” Ex. 1001,
`
`1:51-52.
`
`The ’927 patent explains that “user interface 23 hasa flavor selection
`
`area 27 anda function selection area 29.” Ex. 1001, 3:34-35. “The flavor
`
`selection area 27 includes multiple selectable flavors 31” and “[t]he function
`
`selection area 29 includes multiple selectable functions 33.” /d. at 3:35—37.
`
`“A user inputs a requestedflavor(1.e., the selected flavor) and a requested
`
`function (1.e., the selected function)” and the dispenser “then chooses from
`
`
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`the multiple selectable reservoirs 35 a flavor reservoir based on the selected
`
`flavor” and “also chooses from the multiple selectable reservoirs 35 a
`
`function reservoir based on the selected function.” Jd. at 3:43—-48.
`
`The 927 patent provides examples of“[d]ifferent flavored products
`
`(e.g., syrups) [that] may be suitable, including flavors such ascola, diet cola,
`
`root beer, gingerale, lemon lime, orange, ginger beer, black cherry,
`
`raspberry, grapefruit, strawberry, etc.” Ex. 1001, 3:64—67. “[D]ifferent
`
`functions may be suitable,” such as “relax, energize, immunize, or muscle.”
`
`Id. at 3:67-4:2. The functions correspondto the addition of different dietary
`
`supplements.
`
`/d. at 4:5—27.
`
`D.
`
`Illustrative Claim
`
`1. A control system for a beverage dispenserfor dispensing a
`flavored beverage and havinga display and multiple selectable
`reservoirs, wherein the control system comprises circuitry
`configuredto:
`
`cause the display to display a userinterface having a flavor
`selection area and a function selection area, wherein:
`
`the flavor selection area includes multiple selectable flavors;
`and
`
`the function selection area includes multiple selectable
`functions;
`
`receive user input identifying a selected flavor from the flavor
`selection area ofthe user interface;
`
`receive user input identifying a selected function from the
`function selection area ofthe userinterface;
`
`choose from the multiple selectable reservoirs a flavor reservoir
`based on the selected flavor;
`
`choose from the multiple selectable reservoirs a function
`reservoir based on the selected function;
`
`cause the beverage dispenser to generate an enhancedflavored
`mixture by addingto a liquid the selected flavor from the
`
`
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`flavor reservoir and the selected function from the function
`reservoir;
`
`wherein a concentration of a dietary supplement included in the
`selected function that is included in the enhanced flavored
`mixtureis larger than a concentration ofthe dietary
`supplement included in the selected flavor that is included in
`the enhanced flavored mixture; and
`
`cause the beverage dispenser to dispense the enhancedflavored
`mixture.
`
`Ex. 1001, 12:6—35.
`
`E. Evidence andAsserted Grounds
`
`Petitioner asserts that claims 1—20 would have been unpatentable on
`
`the following grounds:
`
`Holler
`
`6.15
`
`19, 20
`
`103
`
`103
`
`Cimatti, Bethuy, and
`O’ Laughlin’
`Cimatti, Bethuy, and Wallace®
`Cimatti, Bethuy, Shannon’, and
`
`"US 2020/0122994 A1, Published Apr. 23, 2020 (Ex. 1003).
`7 US 2016/0368752 A1, Published Dec. 22, 2016 (Ex. 1004).
`> SmartWell Dispenser,(available at https://vimeo.com/3 84394240)
`(Exs. 1005—1009).
`4 SmartSoda JuLi Touch, Facebook(available at https://www.facebook.com/
`drinksmartsoda/photos/a.7644297 16984005/2664422596984698 (Ex. 1016).
`> US 2016/0280526 A1, Published Sept. 29, 2016 (Ex. 1010).
`° EP 1788 916 B1, PublishedAug, 4, 2009 (Ex. 1011).
`TUS 5,012,955, Issued May 7, 1991 (Ex. 1012).
`8 US 2007/0012719 Al, Published Jan. 18, 2007 (Ex. 1013).
`
`6
`
`
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`Petitioner submits Declarations from Pete Wolski (Ex. 1002), Tony
`
`DeCrispino (Ex. 1017), and Matt Cremins (Ex. 1018).
`
`Il. ELIGIBILITY FOR POST-GRANT REVIEW
`
`As a threshold matter, we must determine whether Petitioner has
`
`shownthat the ’927 patentis eligible for post-grant review. See
`
`Commonwealth Sci. & Indus. Res. Org. v. BASF Plant Sci. GmbH,
`
`PGR2020-00033, Paper 11 at 7 (PTABSept. 10, 2020); Afvlan Pharms. Inc.
`
`v. Yeda Res. & Dev. Co., PGR2016-00010, Paper 9 at 10 (PTAB Aug.15,
`
`2016); US Endodontics, LLC v. Gold StandardInstruments, LLC, PGR2015-
`
`00019, Paper 17 at 9-12 (PTABJan. 29, 2016). The post-grant review
`
`provisions in section 6(d) ofthe Leahy-Smith AmericaInvents Act, Pub. L.
`
`No. 112-29, 125 Stat. 284 (September 16, 2011) (“AIA”) apply only to
`
`patents subject to the first-iventor-to-file provisions ofthe AIA. See AIA
`
`§ 6(f)(2)(A)(stating that the provisionsof section 6(d) “shall apply only to
`
`patents described in section 3(n)(1)’”). Patents subject to the first-inventor-
`
`to-file provisions are those that issue from applications that contain or
`
`contained at any time—
`
`(A) aclaim to a claimed invention that has an effective filing date
`as defined in section 100(1) of title 35, United States Code, that
`is on or after [March 16, 2013]; or
`(B) a specific reference under section 120, 121, or 365(c) oftitle
`35, United States Code, to any patent or application that contains
`or contained at any time suchaclaim.
`AIA § 3(n)(1).
`
`Here, Petitioner indicates that the °927 patent is available for post-
`
`grant review becausethe earliest priority date and effective filing date ofthe
`
`°927 patent is March 3, 2021, whichis after March 16, 2013. Pet. 10.
`
`
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`Petitioneralso filed for post-grant review within nine months ofthe ’927
`
`patent’s August 15, 2023, issuance.
`
`I. ANALYSIS
`
`Weturn nowto Petitioner’s asserted groundsofunpatentability to
`
`determine whether Petitioner has met the threshold standard, under
`
`35 U.S.C. § 324(a), for instituting review. For the reasons discussed below,
`
`we determine that Petitioner has met that standard becauseit has
`
`demonstrated that it is morelikely than notthat at least claim 1 is
`
`unpatentable as anticipated by Cimatti.
`
`A. Level ofOrdinary Skill in the Art
`
`Petitioner’s declarant, Pete Wolski, testifies that “[a] person of
`
`ordinary skill in theart at the time ofthe effective filing date would have had
`
`at least a B.S. degree in mechanical engineering or electrical engineering (or
`
`equivalent experience) and would have had at least two yearsofpractical
`
`experience with designing beverage dispensers.” Pet. 12 (citing Ex. 1002
`
`25). At this stage ofthe proceeding,there is no dispute regarding
`
`Petitioner’s articulation ofthe level of skill in the art.
`
`For purposes ofthis decision, we analyze the asserted prior art with
`
`respect to the level of skill set forth by Petitioner.
`
`B. Claim Construction
`
`Petitioner contendsthat “[flor this proceeding, Petitioner does not
`
`believe any claim constructions are needed.” Pet. 10-11.
`
`Our determinationto institute trial does not require an express
`
`construction of any particular claim terms. See Realtime Data LLC v. lancu,
`
`912 F.3d 1368, 1375 (Fed. Cir. 2019) (“The Boardis required to construe
`
`‘only those terms... that are in controversy, and only to the extent
`
`
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`necessary to resolve the controversy.’”
`
`299
`
`(quoting Vivid Techs., Inc. v. Am.
`
`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999))).
`
`C. Cimatti Challenge
`
`1. Cimatti
`
`Cimatti “relate[s] to beverage dispensers and beverage dispensing
`
`systems to create and dispense a custom beverage.” Ex. 1003 49 1. Cimatti
`
`explains that its beverage managementsystem mayinclude beverage
`
`dispensers andacontrol system. /d. 4209-210. An example of Cimatti’s
`
`beverage dispenser is shown in Figure 2, reproduced below.
`
`
`
`PGR2024-00002
`
`Patent 11,724,927 B2
`
`Figure 2 is a front view of a beverage dispenser. “Beverage dispensing
`
`system 10 can includeauserinterface 500to facilitate selection and
`
`dispensing of a beverage,” such as “an electronic display screen [not labeled
`
`in Figure 2] for displaying information to a customer(e.g., a liquid crystal
`
`display (LCD)or a light emitting diode (LED)display, which may bea
`
`touch screen display).” /d. 4121.
`
`Cimatti explains that “[f]lavoring sources 134 can contain flavor
`
`concentrates for mixing with a diluent to create a beverage” and “[e]ach of
`
`10
`
`
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`flavoring sources 134 can includeavalve 140 for connection to the beverage
`
`dispensing system 10.” Ex. 1003 9 142. “As shown in F[igure] 6,
`
`[reproduced below,] beverage dispenser 10 can includea side housing 220.”
`
`Id. ¥ 168.
`
`Figure 6 is a perspective view of a beverage dispenser with the addition ofa
`
`side housing. Side housing 220 can include a cartridge dispenser 220b,
`
`shownin Figure 8 reproduced below.
`
`11
`
`
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`
`
`FIG. 8
`
`Figure 8 is a front view of a cartridge dispenser. “Cartridge dispenser 220b
`
`can contain numerouscartridges 1516 each containing a different beverage
`
`flavor or ingredient giving the consumeradditional choices for a beverage.”
`
`Id. 4170. “[T]he cartridges 1516 can hold other ingredients or flavors, such
`
`as nutrients or vitamins.” /d.
`
`With Cimatti’s dispenser,“a selection of one or more custom
`
`ingredients to a beverage maybereceived via input from the user.” Ex.
`
`1003 § 238. Custom ingredients can include a variety of flavors.
`
`/d. “The
`
`ingredients can also include additives such as vitamins, electrolytes, energy,
`
`calm, protein, fiber, vitamins, antioxidants, sweeteners and other functional
`
`ingredients such as: calcium, sodium, potassium, bicarbonate, magnesium,
`
`caffeine, fiber, protein, taurine, ribose, omega 3, or any combination
`
`thereof.” /d.
`
`12
`
`
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`PGR2024-00002
`Patent 11,724,927 B2
`
`2. Petitioner ’s Contentions
`
`Petitioner cites Cimatti’s control system 206, processors 1501, user
`
`interface 500 includingelectronic display screen 502, and flavoring sources
`
`134 including cartridges as correspondingto the features recited in the
`
`preamble of claim 1. Pet. 21 (citing Ex. 1003 99 1, 121, 144, 170, 210, 293).
`
`Based on the record before us, Petitioner’s contentions are consistent with
`
`the disclosure of Cimatti.
`
`Petitioner cites Cimatti’s user interface 500 as correspondingto the
`
`userinterface that receives user inputs recited in claim 1. Pet. 22—24 (citing
`
`Ex. 1003 4 113, 121, 236, 238, 239, Fig. 57). Petitioner reproduces
`
`portions ofparagraphs 238 and 239 from Cimatti, as well as Figure 57, in
`
`the Petition to illustrate how Cimatti discloses the recited userinterface.
`
`Consistent with Petitioner’s contentions, Cimatti explains that “a
`
`selection of one or more custom ingredients to a beverage may be received
`
`via input from the user.” Ex. 1003 4 238. Based on the record before us, we
`
`agree that Cimatti’s user interface “receive[s] user input identifyinga
`
`selected flavor from the flavor selection area ofthe user interface” and
`
`“receive[s] user input identifying a selected function from the function
`
`selection area ofthe user interface” as recited in claim 1.
`
`With respectto flavor selection, Cimatti explains:
`
`Custom ingredients can include... flavorings suchas: branded
`beverage concentrate, plum, blueberry, mango, cherry, grape,
`kiwi, strawberry, lemon, lime, passion fruit, apple, melon,
`tangerine, raspberry, orange, pomegranate, pineapple, coconut,
`grapefruit, acai, watermelon, peach, or any combination thereof.
`Additionally, the flavorings can include herbs andspices or
`vegetables such as: mint, black tea, green tea, red tea, white tea,
`celery, chamomile, hibiscus, lavender, carrot, cucumber, verba
`
`13
`
`
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`mate, coca extract, ginger, chlorophyll, aloe, cinnamon,
`ginseng, or any combination thereof.
`
`Ex. 1003 § 238. For function selection, Cimatti explains that “the
`
`ingredients can include minerals such as boron, phosphorus, titanium,
`
`chromium, manganese, iron, cobalt, nickel, copper, zinc, molybdenum,
`
`cadmium, aluminum.” /d. And Cimatti specifically notes that “[t]he
`
`ingredients can also include additives such as vitamins, electrolytes, energy,
`
`calm, protein, fiber, vitamins, antioxidants, sweeteners and other functional
`
`ingredients such as: calcium, sodium, potassium, bicarbonate, magnesium,
`
`caffeine, fiber, protein, taurine, ribose, omega 3, or any combination
`
`thereof.” /d.
`
`Petitioner additionally contends that Cimatti’s dispenser chooses from
`
`the multiple selectable reservoirs a flavor reservoir based on the selected
`
`flavor and a function reservoir based on the selected function and causes the
`
`beverage dispenser to generate an enhancedflavored mixture as recited in
`
`claim 1. Pet. 24 (citing Ex. 1003 44 142, 170, 248). Based on the record
`
`before us, Petitioner’s contentions are consistent with the disclosure of
`
`Cimatti. Cimatti explains, for example, that “the interface can send
`
`electronic signals to the valves to cause the dispenser to dispense the custom
`
`beverage accordingto the selected recipe.” Ex. 1003 4248.
`
`Claim 1 additionally recites that “a concentration of a dietary
`
`supplementincludedin the selected function that is included in the enhanced
`
`flavored mixtureis larger than a concentration ofthe dietary supplement
`
`included in the selected flavorthat is included in the enhancedflavored
`
`mixture.” Ex. 1001, 12:28—33. Claim 2 dependsfrom claim 1 and further
`
`recites that “a concentration ofthe dietary supplement included in the
`
`selected flavoris zero.” /d. at 12:36—38. Accordingly, claim 1 allowsfor
`
`14
`
`
`
`PGR2024-00002
`Patent 11,724,927 B2
`
`the concentration ofthe dietary supplement included in the selected flavor to
`
`be zero.
`
`Petitioner contends that some ofthe flavor/dietary supplement
`
`combinations in Cimatti include a flavor that does not have any ofthe
`
`selected dietary supplement(1.e., a zero concentration ofthe dietary
`
`supplement in the flavor). See Pet. 25 (“For example, a user may select
`
`lemon (Cimattiat [0170]) which will include some amount[of] vitamins
`
`naturally. However, Cimatti discloses the ability for a user to select a
`
`vitamin additive or other additive that may not be includedin the flavor
`
`whichwill be a greater concentration in than what wasincluded in the lemon
`
`flavoring. (Ex. 1002 at 954).”).
`
`Basedon the record before us, we agree that Cimatti discloses a
`
`variety of flavor/dietary supplement combinations that would providea zero
`
`concentration of a selected dietary supplementin a selected flavor. See Ex.
`
`1003 § 238. As explained above, such an arrangement meets the limitations
`
`of claim 1. Petitioner’s contentions regarding independent claim 10, which
`
`recites amethod,are similar to those presented for the control system recited
`
`inclaim 1. See Pet. 39-40. Weare also persuaded that Cimatti discloses the
`
`features of claim 10 for reasons similar to those discussed above regarding
`
`claim 1.
`
`Forat least these reasons, we determine that Petitioner has established
`
`that it is more likely than not that it will succeedinits challenge to at least
`
`claims 1 and 10 based on anticipation by Cimatti.
`
`IV. CONCLUSION
`
`After considering the evidence and arguments presented in the current
`
`record, we determine that Petitioner demonstrates that it is more likely than
`
`not that it would prevail in establishing that at least independent claims1
`
`15
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`
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`PGR2024-00002
`Patent 11,724,927 B2
`
`and 10 ofthe ’927 patent are unpatentable. We, therefore, institutetrial on
`
`all challenged claims and grounds raised in the Petition.
`
`Atthis stage ofthe proceeding, we have not madea final
`
`determinationas to the patentability of any challenged claim oras to the
`
`construction of any claim term. Anyfinal determination will be based on
`
`the record developed during trial. We place Patent Owneron express notice
`
`that any argumentnotasserted in a timely-filed Response to the Petition, or
`
`in another manner permitted duringtrial, shall be deemed waived.
`
`Similarly, ifthe parties do not present their proposed claim constructions in
`
`their briefs, or in another mannerpermitted duringtrial, they will be
`
`precluded from presenting such arguments andtheir arguments shall be
`
`deemed waived.
`
`V. ORDER
`
`In consideration ofthe foregoing, it is hereby:
`
`ORDEREDthat, pursuant to 35 U.S.C. § 324, a post-grant review of
`
`claims 1—20 in the ’927 patentis instituted on all challenges included in the
`
`Petition; and
`
`FURTHER ORDEREDthat, pursuantto 35 U.S.C. § 324(a), a post-
`
`grant review ofthe ’927 patent shall commence on the entry date ofthis
`
`Order, and pursuantto 35 U.S.C. § 324(c) and 37 C.F.R. § 42.4, notice is
`
`hereby given oftheinstitution ofa trial.
`
`16
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`
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`PGR2024-00002
`Patent 11,724,927 B2
`
`PETITIONER:
`
`Daniel Huynh
`Adam Thompson
`Anna Malcom
`MORRIS, MANNING & MARTIN, LLP
`dhuynh@mmmlaw.com
`athompson@mmmlaw.com
`amalcom@mmmlaw.com
`
`PATENT OWNER:
`
`Mark C. Johnson
`Sarah L. Boone
`Grant J. Steyer
`RENNER OTTO
`mjohnson@rennerotto.com
`sboone@rennerotto.com
`gsteyer@rennerotto.com
`
`17
`
`
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