Archangel Inc.Download PDFPatent Trials and Appeals BoardMar 25, 20212020006671 (P.T.A.B. Mar. 25, 2021) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/558,700 09/15/2017 Allen M. ZIEGLER 10380-001-USP 3881 46317 7590 03/25/2021 Trenner Law Firm, LLC Mark D. Trenner 14143 Denver West Pkwy, Ste 100-94 Golden, CO 80401 EXAMINER PYLA, PAUL D ART UNIT PAPER NUMBER 1653 NOTIFICATION DATE DELIVERY MODE 03/25/2021 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): docket@us-patentattorney.com mark@us-patentattorney.com uspto@dockettrak.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALLEN M. ZIEGLER Appeal 2020-006671 Application 15/558,700 Technology Center 1600 Before DONALD E. ADAMS, RACHEL H. TOWNSEND, and DEVON ZASTROW NEWMAN, Administrative Patent Judges. TOWNSEND, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 4–6, 9, and 30. (See Non-Final Action 1.) We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as ARCHANGEL, INC. (Appeal Br. 2.) We note that Appellant’s brief filed February 24, 2020, has no page numbers. We consider the first page thereof as page 1 with the succeeding pages being numbered consecutively. Appeal 2020-006671 Application 15/558,700 2 STATEMENT OF THE CASE “Microorganisms, such as yeast, fungi and bacteria, are used to produce a number of fermentation products, such as industrial grade ethanol, distilled spirits, beer, wine, pharmaceuticals, and nutraceuticals (foodstuff that provides health benefits, such as fortified foods and dietary supplements), baking-industry ingredients, and industrial chemicals.” (Spec. 1.) “Bacterial or microbial contamination reduces the fermentation product yield.” (Id. at 3.) A number of methods are known to reduce bacterial or other undesirable microorganism during fermentation, including the use of antimicrobials. (Id. at 4–5.) However, according to Appellant, “the use of antimicrobials will always add cost to operations and products and thus more effective ways to achieve microbial control are sought.” (Id. at 5–6.) Appellant’s claims are directed to such a method. (Id. at 7.) Claims 1, 4–6, 9, and 30 are on appeal. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of controlling undesirable microorganism concentration in an aqueous fluid solution employed in a fermentation process, the method comprising the steps of: introducing a fermentable carbohydrate to the aqueous fluid solution; introducing at least one desirable microorganism that is capable of fermenting carbohydrate to the aqueous fluid solution; and introducing at least one lauric arginate (LAE) compound as a preservative into the aqueous fluid solution at a rate of between about 2 pounds and about 50 pounds per ton of distiller’s grain. Appeal 2020-006671 Application 15/558,700 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Chapman US 8,772,002 B1 July 8, 2014 Coughlin US 2010/0324137 A1 Dec. 23, 2010 REJECTIONS The following grounds of rejection by the Examiner are before us on review: Claims 6 and 9 are rejected under 35 U.S.C. § 112(b) as being indefinite. Claims 1, 4–6, 9, and 30 are rejected under 35 U.S.C. § 103 as obvious over Chapman and Coughlin. DISCUSSION I. Indefiniteness The Examiner finds that claim 6 depends from a claim that is cancelled, i.e., claim 2, and thus, the claims is unclear with respect to its dependency. (Non-Final Action 3.) In addition, the Examiner finds that, apart from the dependency issue, the term “the at least one acid” lacks antecedent basis. (Id.) Regarding claim 9, the Examiner finds that claim 1 indicates that the LAE is dosed into the “fluid solution at a rate of 2 lb./ton (1000ppm) to 50 lb./ton (25000 ppm) and it appears that the dosage in claim 9 is outside of this dosing range.” (Id.) Appellant does not dispute that there is error in both claims. (Appeal Br. 4.) Appellant contends that the errors in claim 6 are typographical in Appeal 2020-006671 Application 15/558,700 4 nature such that the dependency should be from claim 1 and that the “the” should be removed before the “at least one acid.” (Id.) Whether or not the errors are typographical in nature and could be fixed does not obviate the fact that, as currently drafted, the claim is indefinite for currently depending from a cancelled claim as stated by the Examiner. (Non-Final Action 3; Ans. 12.) We also agree with the Examiner’s statement in the Answer that Appellant’s proposed correction removing the term “the” before “at least one acid” does not obviate ambiguity in the claim. Using the indefinite article “a” in lieu of “the” does not address whether claim 6 is “introducing a new acid . . . not [recited] in claim 1 or it is an attempt to broadly refer back to a lauric arginate compound as the acid.” (Ans. 12.) As for claim 9, Appellant agrees that the claim as written is indefinite because the limitations thereof are inconsistent with claim 1. (Appeal Br. 5.) In light of the foregoing admissions by Appellant, we affirm the Examiner’s rejection of claims 6 and 9 as being indefinite. II. Obviousness Appellant’s arguments concerning this rejection focus only on claim 1, without separate argument for the remaining claims rejected. Claims 4–6, 9 and 30, therefore, fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv). Regarding claim 1, the Examiner finds that Chapman teaches a method of controlling undesirable microorganism concentration in an aqueous fluid solution in a fermentation process that can include food based fermentation products by the addition of hops acid extract into the fluid as well as an organic acid, such as citric acid or its salts. (Non-Final Action 5 (citing Chapman 5:1–6:2); Ans. 5, 16.) The hops acid extract and citric acid Appeal 2020-006671 Application 15/558,700 5 are taught to be added into the aqueous system and to result, in combination, in an improved antimicrobial efficiency. (Ans. 5–6 (citing Chapman 7:2– 4).) The Examiner notes that the amount of hops acid extract can be from 0.5 ppm to 120 ppm and the organic acid can be from 100 ppm to 12500 ppm. (Id. at 6–7 (citing Chapman 7:47–55, 9:58–59); Non-Final Action 6– 7.) The Examiner further finds that Chapman teaches determining the concentration that achieves acceptable microbial control is something that can be determined by someone of ordinary skill in the art, and that it is dependent on the fermentation matrix. (Id. at 7 (citing Chapman 10:14–17).) The Examiner recognizes that Chapman does not teach inclusion of LAE in the method of controlling undesirable microorganisms. (Non-Final Action 7; Ans. 8.) However, the Examiner finds that Coughlin teaches LAE is a known food preservative, is food safe, and can be used in a solution to disinfect vegetables and fruit because of its antimicrobial property. (Non- Final Action 8–9 (citing Coughlin ¶¶ 3, 4, 6–9), 13; Ans. 8–9.) The Examiner further finds that Coughlin teaches that LAE can be used in combination with citric acid, and that the combination enhances the antimicrobial effect of LAE. (Non-Final Action 8 (citing Coughlin ¶ 3); Ans. 8.) In addition, the Examiner finds that Coughlin teaches that when LAE is used in combination with citric acid, the LAE concentration will be 40 to 400 ppm. (Non-Final Action 8 (citing Coughlin ¶ 9); Ans. 8.) The Examiner finds that it would have been obvious to one of ordinary skill in the art to add the LAE-citric acid antimicrobial composition of Coughlin to the antimicrobial composition of Chapman for controlling undesirable microorganisms and maximizing the benefits of the antimicrobial elements of the composition, since each of the antimicrobial Appeal 2020-006671 Application 15/558,700 6 compositions of the references were known to have antimicrobial effects with respect to foods. (Non-Final Action 8–9; Ans. 9–10.) The Examiner determines that “‘[T]he idea of combining them flows logically from their having been individually taught in the prior art.’ In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted; MPEP2144.06).” (Non-Final Action 10; Ans. 10–11.) Regarding the amount and rate at which the claims require the LAE to be introduced, i.e., between about 2 pounds and about 50 pounds per ton of distiller’s grain, the Examiner finds that such would have been obvious to one of ordinary skill in the art given Chapman’s teaching of including an organic acid from 0.2 pounds to 25 pounds per ton of cellulosic material and Coughlin’s teaching of the ratio of LAE to citric acid varying from 1:10 to 10:1 by weight. (Non-Final Action 7, 8.) Moreover, the Examiner notes that “differences in concentration . . . will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration . . . is critical.” (Id. at 11.) The Examiner explains that “‘where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456 . . . (CCPA 1955) (MPEP § 2144.05(II)(A).” (Id.) We agree with the Examiner’s findings regarding the teachings of the references and the conclusion of obviousness. Appellant argues that the rejection is in error because Chapman teaches adding an organic acid and not LAE. (Appeal Br. 6.) This argument is not persuasive. The Examiner’s rejection relies on a combination of the teachings of Chapman together with Coughlin. Coughlin is relied upon for Appeal 2020-006671 Application 15/558,700 7 teaching the use of LAE in combination with citric acid (Coughlin ¶¶ 3, 7, 9) for the purposes of controlling unwanted microbial growth on surfaces, including on food products,2 where the combination is known to enhance the antimicrobial effect of the LAE “thereby reducing the amount of LAE required, and thus its cost” (id. ¶ 3). “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. . . . [The reference] must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). As the Examiner explained in both the Non-Final Action and the Answer, “[i]t is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition which is to be used for the very same purpose. . . . [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980). Chapman and Coughlin both teach antimicrobial compositions to be used to inhibit unwanted microbial growth, where citric acid enhances the effect of another anti-microbial component. Thus, we agree with the Examiner that it would have been obvious to add LAE to the Chapman process which includes citric acid and hops acid extract introduced 2 Appellant’s argument that Coughlin is non-analogous art because it uses LAE as a hard surface disinfectant (Appeal Br. 7) is, thus, not persuasive. Even if one were to narrowly construe the inventor’s field of endeavor, here, as use of antimicrobials in fermentation processes, which we do not think is correct, Coughlin is still reasonably pertinent to the problem with which the inventor is involved, i.e., preventing spoilage of an organic product by unwanted bacterial growth without using an antibiotic in a non-cost prohibitive way. (See Spec. 2–3, 4–6; Coughlin ¶¶ 1–4, 14.) Appeal 2020-006671 Application 15/558,700 8 to an aqueous system with the reasonable expectation of achieving additional anti-microbial growth. Appellant’s claim 1 is a method “comprising” certain identified steps. “The transition ‘comprising’ in a method claim indicates that the claim is open-ended and allows for additional steps.” Invitrogen Corp. v. Biocrest Mfg., L.P., 327 F.3d 1364, 1368 (Fed. Cir. 2003). Thus, although Appellant’s claim 1 does not positively recite adding citric acid or hops acid extract in the method of controlling undesirable microorganism growth in the process, such is not precluded by the claim language. Indeed, Appellant’s Specification indicates that the combination “of LAE and hops/organic acids” is a contemplated embodiment of the invention. (Spec. 16–17.) For the foregoing reasons, we also do not find persuasive Appellant’s argument that “the teachings of Chapman are contrary to those recited in Applicant’s claim 1.” (Appeal Br. 6.) Appellant also argues that the rejection impermissibly relies “on a very specific range in one reference, [even though] that reference does not even refer to the recited LAE” and the other reference that discloses LAE does not disclose the specific range. (Appeal Br. 6.) We do not find this argument persuasive as Coughlin clearly indicates that the amount of LAE in combination with citric acid that provides anti-microbial properties is a result-effective variable that one of ordinary skill in the art would be capable of determining. (Coughlin ¶ 9 (providing ranges of concentrations of LAE and acids to use in combination therewith) and Example 1 (showing results of testing LAE with octenyl succinic acid in different amounts to assess the extent of anti-microbial activity).) Furthermore, Chapman teaches that it is routine in the art for one of ordinary skill to determine appropriate amounts Appeal 2020-006671 Application 15/558,700 9 of anti-microbials to add in the fermentation process that are of various scales. (See Chapman cols. 9–10; see especially id. at 10:14–17 (“A person of ordinary skill in the art using the teaching described herein can determine the concentration of the composition required to achieve acceptable microbial control, and that the concentration is dependent on the matrix”).) Thus, we agree with the Examiner’s conclusion that the amount/rate of addition of LAE claimed would have been obvious to one of ordinary skill in the art. “‘[I]t is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456 (CCPA 1955). Only if the ‘results of optimizing a variable’ are ‘unexpectedly good’ can a patent be obtained for the claimed critical range. In re Antonie, 559 F.2d 618, 620 (CCPA 1977).” In re Geisler, 116 F.3d 1465, 1469 (Fed. Cir. 1997) (some internal citations omitted.) Appellant has not established with factual evidence that the range of LAE recited in the claim provides an unexpectedly good result. “To be particularly probative, evidence of unexpected results must establish that there is a difference between the results obtained and those of the closest prior art, and that the difference would not have been expected by one of ordinary skill in the art at the time of the invention.” Bristol-Myers Squibb Co. v. Teva Pharms. USA, Inc., 752 F.3d 967, 977 (Fed. Cir. 2014). Moreover, “it is well settled that unexpected results must be established by factual evidence. ‘Mere argument or conclusory statements in the specification does not suffice.’” In re Geisler, 116 F.3d at 1470 (quoting In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984)). Appeal 2020-006671 Application 15/558,700 10 Although Appellant cites to paragraph 33 of the published Application to assert the “important aspect” of the claimed rate of introduction of LAE (Appeal Br. 7), that paragraph does not establish any difference between the claimed process and that of the closest prior art, e.g., Chapman. Furthermore Paragraph 33 of the Specification refers to positive results of a process that includes LAE administration and an organic acid. And, it does not establish that the differences Appellant asserts, (namely: reduction in antibiotic requirement and/or preserving distiller’s grains average shelf life by three to five days,3) would have been unexpected, given that it was known from Coughlin that LAE in combination with citric acid has an enhanced antibacterial activity using lower amounts of LAE (Coughlin ¶ 3). Thus, we do not find paragraph 33 of the published Application supports a conclusion of Thus, for the foregoing reasons we affirm the Examiner’s rejection of claim 1 as being obvious from Chapman and Coughlin, and as discussed above claims 4–6, 9 and 30 fall with claim 1. 3 We note, that while paragraph 33 that Appellant reproduces in the brief refers to “enhanced production yields of ethanol without the use of antibiotics,” it does not identify a particular time period by which distiller’s grain average shelf-life is extended. Appeal 2020-006671 Application 15/558,700 11 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 6, 9 112(b) Indefiniteness 6, 9 1, 4–6, 9, 30 103 Chapman, Coughlin 1, 4–6, 9, 30 Overall Outcome 1, 4–6, 9, 30 RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation