Ball Corporation

Patent Trials and Appeals Board

Dec 16, 2020

2020004686 (P.T.A.B. Dec. 16, 2020)

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.
16/147,101 09/28/2018 Scott K. Brendecke 1604-677-CON 5577
22442 7590 12/16/2020
Sheridan Ross PC
1560 Broadway
Suite 1200
Denver, CO 80202
EXAMINER
WILLIAMS, LELA
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
12/16/2020 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):
e-docket@sheridanross.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SCOTT K. BRENDECKE
____________

Appeal 2020-004686
Application 16/147,101
Technology Center 1700
____________

Before GEORGE C. BEST, JEFFREY R. SNAY, and BRIAN D. RANGE,
Administrative Patent Judges.

SNAY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–8, 10–15, and 19–23. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies Ball Corporation as the real party in interest.
Appeal Br. 1.
Appeal 2020-004686
Application 16/147,101

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BACKGROUND
The invention relates to treatment of wine and wine-type beverages to
remove malodors an unwanted flavors. Spec. 1. According to the
Specification, adding copper or a copper-containing compound to wine
during packaging can remove unwanted sulfur. Id. The occurrence of
unwanted odors and flavor development is said to be particularly
problematic in wines packaged in metallic containers. Id. at 2. Claim 1
reads as follows:
1. A method for treating and bottling a wine in a
metal container, comprising:
treating a raw wine with a fining agent to remove at least
a portion of sulfur and/or sulfur-containing compound to
produce a fine-containing wine;
removing the fining agent from the fine-containing wine
to produce a treated wine;
contacting the treated wine, during the bottling of the
treated wine in the metal container, with a water-soluble
copper-containing compound selected from the group
consisting of a copper sulfate, a copper nitrate, a copper
chloride, and mixtures thereof, wherein the contacting of the
treated wine with the water-soluble copper containing
compound occurs during one of:
(i) when charging the metal container with the treated
wine; or
(ii) after charging the metal container with the treated
wine;
sealing the metal container with a substantially oxygen
impervious metallic end closure; and
removing at least one of an unwanted odor, and an
unwanted flavor formed in the wine with the water-soluble
copper-containing compound, wherein the treated wine contains
no more than 0.2 ppm copper (II).
Appeal Br. 13 (Claims Appendix).
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Claim 11 recites essentially the method of claim 1 with an additional
step of blending the raw wine with non-fermented fruit juice and/or
carbonated water. Each remaining claim on appeal depends from claim 1 or
11.
REJECTIONS
I. Claims 1, 3–8, 10, and 19–23 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Ferrarini,2 Rixford,3 Cowey,4 and More Wine.5
II. Claims 11–15 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Ferrarini, Rixford, Cowey, More Wine, and Martinez.6
OPINION
Rejection I: obviousness over Ferrarini, Rixford, Cowey, and More Wine
With regard to the Examiner’s rejection of claims 1, 3–8, 10, and 19–
23 in Rejection I, Appellant separately argues only claims 1 and 4. See
Appeal Br. 7–12. We address Appellant’s arguments regarding claims 1 and
4 below. Claims 3, 10, and 19–23 stand or fall with claim 1. Claims 5–8
stand or fall with claim 4.

2 R. Ferrarini et al., Packaging of Wine in Aluminium Cans, Oenology
Department of C.R.V.E. Grape and Wine Research Centre-Bologna
University, 1–11 (“Ferrarini”).
3 Emmet H. Rixford, The Wine Press and the Cellar: A Manual for the
Wine-maker (“Rixford”).
4 Geoff Cowey, Excessive Copper Fining of Wines Sealed Under Screwcaps,
Wine Business Monthly, July 15, 2008 (“Cowey”).
5 Copper Sulfate Trials (“More Wine”).
6 ES 2 046 137, published January 16, 1994 (“Martinez”).
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Application 16/147,101

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Claim 1
Relevant to Appellant’s arguments on appeal, the Examiner finds
Ferrarini discloses packaging wine in aluminum cans and finds Cowey
teaches adding copper sulphate to wine at a concentration of 0.5 ppm or less
can remove unwanted sulfide odor. Final Act. 2–3. The Examiner further
finds Ferrarini teaches providing aluminum containers with an inner coating
effective to prevent corrosion. Id. In light of these findings, the Examiner
determines it would have been obvious to one of ordinary skill in the art to
add copper sulphate to wine in Ferrarini’s aluminum packaging process to
reduce unwanted odor due to sulfide. Id. at 4.
Appellant argues adding copper to Ferrarini’s wine would make the
wine unsuitable for packaging in aluminum cans due to the corrosive effect
of copper on aluminum. Appeal Br. 8; Reply Br. 2–4. Appellant also
contends the Examiner improperly relies on a finding that Ferrarini’s
disclosed coatings inherently would have prevented corrosion by copper. Id.
at 7. Appellant particularly points out that Ferrarini discloses two coatings
that failed to prevent corrosion. Id. (citing Ferrarini 8).
Appellant’s arguments are not persuasive of reversible error. There is
no dispute copper may corrode aluminum. See Ferrarini 1 (characterizing
the disclosed study as “investigating the interaction between wine and the
aluminum container in order to minimize the can’s corrosion”); id. at 8
(explaining that copper added to wine increases the corrosive effect). See
also Decl. ¶ 8 (“Aluminum is very susceptible to galvanic corrosion caused
by copper.”).7 Ferrarini refers to three tested coatings, identified as A, B,
and C, and states “this [copper] element added to wine in the amount of 1

7 Declaration of Brent C. Trela, Ph.D., dated June 27, 2019 (“Decl.”).
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Application 16/147,101

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ppm increases the corrosive effect, but in the case of coating C, the
aluminum migration is very limited to the point of being statistically
insignificant.” Ferrarini 8. Thus, we are not persuaded the Examiner’s
rejection is premised on an inherency finding. Rather, Ferrarini expressly
teaches use of a coating that prevents copper corrosion of an aluminum can.
Appellant argues Ferrarini “teaches away” from applying the relied-
upon teaching of Cowey because Cowey relates to bottling wine in glass,
and because Ferrarini “teaches that one skilled in the art must be concerned
with the copper content of a wine to prevent galvanic corrosion.” Appeal
Br. 9. Appellant’s argument is not persuasive. The fact that Cowey
discloses glass-bottled wine does not detract from Cowey’s teaching that
copper sulphate is useful for removing unwanted odor from wine. As
discussed above, Ferrarini teaches a need for appropriate corrosion-resistant
coatings to prevent corrosion when copper is added to wine in metal
containers. Appellant does not point to persuasive evidence why these
teachings would have been viewed by one skilled in the art as discouraging
use of copper in Ferrarini’s process. See In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004) (teaching away requires that a reference “criticize, discredit,
or otherwise discourage the solution claimed”).
Appellant argues Ferrarini does not teach a copper concentration of
not more than 0.2 ppm. Appeal Br. The Examiner, however, bases the
rejection on the combined teachings of the cited prior art. With regard to
copper concentration, the Examiner finds Cowey and More Wine provide
reasons for one of ordinary skill in the art to limit the wine’s copper content
to levels within the recited range. Final Act. 3–4. Appellant’s argument
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does not address the combined disclosures relied upon by the Examiner, and
therefore does not identify error in the Examiner’s rejection.
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 1.
Claim 4
Appellant separately argues claim 4 requires that the metal container
comprises aluminum and that Dr. Trela’s Declaration explains the galvanic
corrosive effects of copper on aluminum. Appeal Br. 11. Appellant raises
the same argument in connection with claim 1, which we address above.
Accordingly, we sustain the Examiner’s rejection of claim 4 for the reasons
stated above for claim 1.
Rejection II: claims 11–15
Appellant relies on the same arguments for claim 11 as are presented
for claim 1. See Appeal Br. 7–11. For the reasons stated concerning claim
1, Appellant’s arguments do not identify reversible error. The Examiner’s
rejection of claims 11–15 also is sustained.
CONCLUSION
The Examiner’s decision rejecting claims 1, 3–8, 10–15, and 19–23 is
affirmed.
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Application 16/147,101

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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3–8, 10,
19–23
103(a) Ferrarini, Rixford,
Cowey, More
Wine
1, 3–8, 10,
19–23

11–15 103(a) Ferrarini, Rixford,
Cowey, More
Wine, Martinez
11–15
Overall
outcome
1, 3–8, 10–
15, 19–23

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED