Ex Parte Brahmbhatt

Board of Patent Appeals and Interferences

Mar 24, 2010

10779828 (B.P.A.I. Mar. 24, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SUDHIR R. BRAHMBHATT
____________

Appeal 2009-009795
Application 10/779,828
Technology Center 1600
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Decided: March 25, 2010
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Before ERIC GRIMES, DONALD E. ADAMS, and
RICHARD M. LEBOVITZ, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 by the Patent
Applicant from the Patent Examiner’s rejection of claims 1, 3-6, 25, and 26
in U.S. Patent Application No. 10/779,828. The Board’s jurisdiction for this
appeal is under 35 U.S.C. § 6(b). The rejection is reversed.

Appeal 2009-009795
Application 10/779,828

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STATEMENT OF THE CASE
The claims are drawn to fermentation processes in which substantially
pure oxygen is the only gas continuously injected into a fermenter.
According to the Specification, the “invention is based on the discovery that
the use of pure oxygen, injected into a fermentation vessel by a proper
injection technique, significantly improves the oxygen utilization of the
fermentation process, while maintaining a high level of safety. The direct
injection of oxygen provides for safe, controlled dissolution of high purity
oxygen in the fermenter.” (Spec. 8:10-15.)
Claims 1, 3-6, 25, and 26 are pending and stand rejected by the
Examiner under 35 U.S.C. § 103(a) as obvious in view of the combination of
Cheng A (US 2003/0080446 A1, May 1, 2003), Cheng B (US 5,798,254,
Aug. 25, 1998), or Cheng C (US 5,985,652, Nov. 16, 1999); and Forsyth
(EP 0 341 878 A1, Nov. 15, 1989) (Ans. 3).
Claim 1 is representative and reads as follows:
1. In a fermentation process, the process including the steps of
placing a fermentation medium in a vessel, maintaining the
fermentation medium in the vessel for a sufficient time to
enable a fermentation process to occur in the vessel, and
withdrawing a product from the vessel,
the improvement comprising injecting a stream of
substantially pure oxygen into the vessel while the fermentation
process is occurring, wherein the stream of substantially pure
oxygen is the sole reactive gas, from any source external to the
vessel, that is injected into the vessel, and wherein the stream of
substantially pure oxygen is the only gas that is injected
continuously into the vessel, and
wherein the stream of substantially pure oxygen is moved
through the vessel solely due to pressure in an oxygen supply.

Appeal 2009-009795
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ISSUE ON APPEAL
The issue in this appeal is whether the combination of Forsyth with
Cheng A, B, or C suggests a fermentation process in which a stream of
substantially pure oxygen is the only gas that is injected continuously into
the fermentation vessel. The issue turns on the interpretation of claims 1,
25, and 26.
CLAIM INTERPRETATION
There are three independent claims on appeal: claims 1, 25, and 26.
Each of the independent claims is drawn to an improved fermentation
process, where “the improvement compris[es] injecting a stream of
substantially pure oxygen into the vessel while the fermentation process is
occurring.”
Claims 1, 25, and 26 also recite that:
• “the stream of substantially pure oxygen is the sole reactive gas . . .
that is injected into the vessel”; and
• “the stream of substantially pure oxygen is the only gas that is
injected continuously into the vessel.”
Because the Specification does not define the phrase “substantially
pure oxygen,” we turn to its ordinary and customary meaning. The
“ordinary and customary meaning of a claim term is the meaning that the
term would have to a person of ordinary skill in the art in question at the
time of the invention, i.e., as of the effective filing date of the patent
application.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005).
Evidence of the meaning of “pure oxygen,” as it would be understood by the
skilled worker, is provided by Cheng B who discloses that “commercially
pure oxygen” has an oxygen concentration of 99.5 mole percent or more
Appeal 2009-009795
Application 10/779,828

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(Cheng B, col. 4, ll. 4-7). Consequently, we interpret “pure oxygen” as
recited in the claims to refer to a gas with an oxygen concentration of 99.5
mole percent or more.
Claims 1, 25, and 26 expressly recite that “the stream of substantially
pure oxygen is the only gas that is injected continuously into the vessel.”
We therefore interpret the claim to be limited to a process in which a gas of
substantially 99.5 mole percent or more of oxygen is the only gas
continuously injected into the fermentation vessel. The claim excludes other
gases from being injected continuously into the vessel.

FINDINGS OF FACT (FF)
Cheng A
1. Cheng A teaches that “[o]xygen is one of the essential nutrients that
bacteria or fungus requires in an aerobic fermentation process. The oxygen
is usually provided by sparging air through a sparge ring in a submerged
culture fermentation broth. The sparge ring is often a round metal ring with
tens or hundreds of holes drilled on it.” (Cheng A, p. 1, ¶ 2.)
2. Cheng A describes a fermentation vessel “comprising both air spargers
and oxygen spargers therein” (id. at 1, ¶ 7).
3. Cheng A describes a method comprising “injecting air bubbles through
the air spargers at the outer end of the vessel, and injecting oxygen bubbles
downwardly through the oxygen spargers at the center of the vessel” (id.). A
fermentation vessel with oxygen and air spargers in shown in Figs. 2 & 3
(id. at 2-3, ¶¶ 29 & 30).
Appeal 2009-009795
Application 10/779,828

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Cheng B
4. Cheng B describes a fermentation method comprising injecting first and
second oxygen containing gas into a fermentation vessel (Cheng B, col. 2, ll.
29-43).
5. “A first oxygen-containing gas, which is generally and preferably air, is
injected” into the fermentation vessel (id. at col. 3, ll. 45-56).
6. “Second oxygen-containing gas, having an oxygen concentration
exceeding that of the first oxygen-containing gas, is injected” into the
fermentation vessel (id. at col. 3, l. 65 to col. 4, l. 2).
7. “The second oxygen-containing gas may also be commercially pure
oxygen having an oxygen concentration of 99.5 mole percent or more.” (Id.
at col. 4, ll. 4-7.)
Cheng C
8. Cheng C is a divisional of Cheng B (Cheng C, col. 1, ll. 3-5) and contains
the same disclosure as in Cheng B.
Forsyth
9. Forsyth describes a “fermentation process and a fermenter in which
aeration is improved by injecting substantially pure oxygen into a culture
medium by means including a venturi (14) located outside the main body of
the fermenter.” (Forsyth, p. 1, Abstract.)
10. “Air and/or an inert gas is injected into culture in the main body of the
fermenter in a volume greater than the volume of oxygen injected into
culture in the compartment [external to the fermenter].” (Id. at 2, ll. 46-47;
see also ll. 15-20.)
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Application 10/779,828

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11. Forsyth does not describe injecting oxygen into the fermentation vessel;
rather, the oxygen is injected outside the main body of the fermentation
vessel (FF9, FF10).
ANALYSIS
The Examiner interpreted claims 1, 25, and 26 to encompass
fermentation processes comprising continuously injecting an oxygen gas and
a non-reactive gas into a fermenter. Citing Cheng A, B, and C for teaching
the continuous injection of separate oxygen and air streams into a fermenter,
the Examiner found that it would been obvious to have substituted a non-
reactive gas, as taught by Forsyth, for the Cheng’s air stream (Ans. 5).
The Examiner’s rejection is based on an improper interpretation of the
claims. Claims 1, 25, and 26 recite that “the stream of substantially pure
oxygen is the sole reactive gas . . . that is injected into the vessel.” However,
the claims also recite that “the stream of substantially pure oxygen is the
only gas that is injected continuously into the vessel,” excluding the
continuous injection of another gas – reactive or not. (Emphasis added.)
Because the Examiner improperly interpreted the scope of claims 1, 25, and
26, the Examiner did not address the limitation of the claims that required
the substantially pure oxygen to be the only gas continuously injected into
the fermenter. Consequently, we are compelled to reverse the rejection.

Appeal 2009-009795
Application 10/779,828

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CONCLUSION OF LAW
The Examiner improperly interpreted the scope of the claims. Claims
1, 25, and 26 are limited to fermentation processes in which substantially
pure oxygen is the only gas continuously injected into the fermenter vessel.
Because the Examiner did not meet the burden of showing that this
limitation was taught or suggested by the prior art, we reverse the
obviousness rejections claims 1, 3-6, 25, and 26.

REVERSED

alw

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