Ex Parte Budaraju et al

Patent Trial and Appeal Board

Sep 25, 2017

12889142 (P.T.A.B. Sep. 25, 2017)

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.
12/889,142 09/23/2010 Srinivas Budaraju 210P-068-US
(ALBR:0401)
5773
42982 7590 09/27/2017
Rnrlcwe.11 Automation Tnr /FY
EXAMINER
Attention: Linda H. Kasulke E-7F19
1201 South Second Street
JOHNSON, KARA D
Milwaukee, WI 53204 ART UNIT PAPER NUMBER
1657
NOTIFICATION DATE DELIVERY MODE
09/27/2017 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):
howell@fyiplaw.com
docket@fyiplaw.com
raintellectu alproperty @ ra.rockwell .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SRINIVAS BUDARAJU and JAMES F. BARTEE
Appeal 2016-006981
Application 12/889,1421
Technology Center 1600
Before JEFFREY N. FREDMAN, ULRIKE W. JENKS, and
DAVID COTTA, Administrative Patent Judges.
COTTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
for controlling a batch fermentation process. The Examiner rejected the
claims on appeal as obvious under 35 U.S.C. § 103(a).
We affirm.
1 According to Appellants, the real party in interest is Rockwell Automation
Technologies, Inc. App. Br. 2.
Appeal 2016-006981
Application 12/889,142
STATEMENT OF THE CASE
Claims 1—3, 6—11, 13, and 21 are on appeal.2 Claim 1 is illustrative
and reads as follows:
1. A method for controlling a batch fermentation process,
comprising:
injecting a mash into a fermenter during a fill cycle of the
batch fermentation process;
sensing process data comprising properties of the
fermenter via a sensor, wherein the properties comprise an
ethanol concentration and yeast properties of the mash;
determining a current activity of the yeast in the fermenter
based on the process data and a yeast activation model; and
injecting a liquid ammonia into the fermenter during the
fill cycle and after the fill cycle ends, wherein the liquid ammonia
is injected in a closed-loop based upon the current activity of the
yeast and the ethanol concentration of the mash.
App. Br. 23.
The Examiner rejected claims 1—3, 6—11, 13, and 21 under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Bartee ’852,3 Bartee ’048,4
Schisler,5 and Silhankova.6
2 Although not strictly related, Application No. 12/889,170 has the same
inventors and is directed to similar subject matter. In that case, we affirmed
the Examiner’s rejection of similar claims over much the same art at issue
here. See Ex parte Budaraju, Appeal No. 2015-003073 (PTAB Jan. 25,
2017), http://e-foia.uspto.gov/Foia/PTABReadingRoom.jsp.
3 Bartee et al., US Patent Publication No. 2008/0167852 Al, published July
10, 2008 (“Bartee ’852”).
4 Bartee et al., US Patent Publication No. 2008/0108048 Al, published May
8, 2008 (“Bartee ’048”).
5 Schisler et al., US Patent Publication No. 2009/0017164 Al, published Jan.
15, 2009 (“Schisler”).
6 Silhankova, US Patent No. 4,186,252, issued Jan. 29, 1980 (“Silhankova”).
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The Examiner also indicated that a rejection of claims 1—3, 6—11, 13,
21, and 22 for obviousness type double-patenting over claims 1—3, 6—11, 13,
21—25 and 27 of US Application No. 12/889,170 was being held in abeyance
until such time as the claims are found to be allowable. As this rejection is
not presently before us, we do not consider it in this appeal.
ANALYSIS
The Examiner found that Bartee ’852 disclosed “using predictive
models of yeast growth for managing the fermentation process.” Final Act.
4.7 Bartee further disclosed that “yeast growth models may take into
account key components of the fermentation process, such as mash flow
(paragraph 110), volume of mash in the fermenter (paragraph[s] 228, 234),
addition of yeast (paragraph 110), ethanol concentration (paragraph 110), pH
(paragraph 173), and others (paragraph 110).” Id. The Examiner also found
that Bartee ’852 disclosed that “[djata about the fermentation process, such
as yeast growth, may be acquired by testing various parameters and/or by
using computer modeling.” Id.
The Examiner acknowledged that Bartee ’852 did not disclose using
sensors. Id. at 5. The Examiner found that this element was supplied by
Bartee ’048, which taught “[djata about the fermentation process may be
acquired by using sensors to monitor various parameters of the fermentation
process and other related sub-processes.” Id. The Examiner concluded that
it would have been obvious to incorporate sensors like those disclosed in
Bartee ’048 in the fermentation management method of Bartee ’852 because
7 Office Action mailed July 28, 2015 (“Final Act.”).
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the “use of sensors allows for real time data acquisition for testing various
controllable parameters as disclosed in Bartee ‘852.” Id.
The Examiner also acknowledged that the combination of Bartee ’852
and Bartee ’048 did not disclose the use of liquid ammonia as a nitrogen
source. The Examiner found Silhankova supplied this element, teaching that
“yeast requires a nitrogen source as an essential nutrient for the growth of
yeast,” and that “liquid ammonia may be used as a source of nitrogen.”
Final Act. 5—6. The Examiner concluded that it would have been obvious to
use liquid ammonia as a nitrogen source in the method of Bartee ’852
because it was a “simple substitution of a known nitrogen source for another
known nitrogen source, with the predictable result that the liquid ammonia
provides an essential nutrient for the growth of yeast.” Id. at 6.
The Examiner acknowledged that Bartee ’852, Bartee ’048 and
Silhankova did not disclose that “the liquid ammonia may be added to the
fermenter during the fill cycle and after the fill cycle ends.” Id. The
Examiner found that Schisler supplied this element teaching that “yeast
require a nitrogen source, such as ammonia, for growth” and that “ammonia
may be added to the fermenter based on control loops, in response to
fermentation variables, such as ethanol concentration and carbon dioxide
off-gassing rate.” Id. The Examiner also found that Schisler disclosed that
“additions of yeast and nitrogen can minimize yeast stress and maximize
ethanol production.” Id. The Examiner thus concluded that it would have
been obvious that “liquid ammonia may be added to a fermenter during a fill
cycle and after the fill cycle in the method of the combined references to
improve ethanol yields.” Id.
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We adopt the Examiner’s findings of fact and reasoning regarding the
scope and content of the prior art (Final Act. 3—12; Ans. 2—14) and agree
that the claims are obvious over Bartee ’852, Bartee ’048, Silhankova, and
Schisler. We address Appellants’ arguments below.
Claims 1—3, 6—11, and 21
Appellants argue claims 1—3, 6—11, and 21 together as a group. We
designate claim 1 as representative for the group.
Appellants contend that the combination of references does not render
the claimed method obvious because the references do not disclose sensing
“yeast properties of the mash.” App. Br. 6. Appellants contend that “the
data about the fermentation process that is acquired via testing in Bartee
‘852 does not include yeast properties of the mash” and that “the
information sensed in Bartee ‘048 excludes yeast properties of the mash, as
well as ethanol concentration.” Id. We are not persuaded.
We begin by construing the term “yeast properties.” “[D]tiring
examination proceedings, claims are given their broadest reasonable
interpretation consistent with the specification.” In re Hyatt, 211 F.3d 1367,
1372 (Fed. Cir. 2000); see also, In re Zletz, 893 F.2d 319, 321 (Fed. Cir.
1989) (“[D]tiring patent prosecution when claims can be amended,
ambiguities should be recognized, scope and breadth of language explored,
and clarification imposed.”).
Appellants contend that the term “yeast properties” includes “yeast
activity but is not the same as ethanol concentration.” App. Br. 9.
Appellants do not specify whether “yeast properties” includes any properties
in addition to “yeast activity.” The Examiner contends that “yeast
properties” may be “any variable of the fermentation process which affects
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yeast activity and/or growth, including sugar concentration and ethanol
concentration.” Ans. 7. We find that the Examiner has the better position.
The only reference to “yeast properties” in the Specification is in the
context of the following passage:
In certain embodiments, a yeast activation model 70 may provide
a prediction of yeast activity to the module 52. Specifically, the
yeast activation model 70 may be based on empirical models,
inferential models, laboratory data, data obtained during
fermenter batches, and so forth, as described more fully in U.S.
Patent Application No. 11/927,960 [Bartee ’852], incorporated
by reference herein. The module 52 may send process data, such
as, but not limited to, fermenter 22 temperature, pH value,
fermentation time, mash properties, yeast properties, and
ammonia properties to the yeast activation model 70. Using this
information, the yeast activation model 70 may be able to predict
the current activity of the yeast in the fermenter 22 and send this
information to the module 52.
Spec. 127. Based on this disclosure, “yeast properties” are not themselves
“yeast activity,” but rather are one among multiple types of data that can be
used in a “yeast activation model” to predict “yeast activity.” This is
consistent with the language of claim 1, which indicates that the “current
activity of the yeast” is determined based on “process data” which comprises
“yeast properties.”
As suggested by the Specification, we turn to US Patent Application
No. 11/927,960 (i.e., Bartee ’852) to discern what type of data is used by the
yeast activation model to predict yeast activity. Bartee ’852 discloses that
yeast activity is influenced by, inter alia, active yeast concentration,
fermentable sugar concentration, ethanol concentration, the fermenter
temperature, and the initial yeast inoculation. Bartee ’852 || 98—103. The
“[t]hree main factors in yeast growth are the fermenter temperature, the
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concentration of fermentable sugars (e.g., dextrose) and the concentration of
ethanol.” Bartee ’852 198; see also, Ans. 7 (discussing same).
Accordingly, we agree with the Examiner that ‘“yeast properties,’ as
presently claimed, may be any variable of the fermentation process which
affects yeast activity and/or growth, including sugar concentration and
ethanol concentration.” Ans. 7.
Having construed the claim, we turn to Appellants’ argument that
Bartee ’852 does not disclose “yeast properties.” We find this argument to
be incongruous. On the one hand, Appellants rely in their Specification on
Bartee ’852 to “describ[e] more fully” the information used in a yeast
activation model to predict yeast activity. Spec. 127. On the other hand,
Appellants assert in this Appeal that Bartee ’852 does not disclose yeast
properties — i.e., data used with a yeast activation model to determine
current yeast activity. In any event, Bartee ’852 expressly discloses
determining yeast activity based on several types of data that meet the
definition of “yeast properties” as presently construed, including, e.g.,
ethanol concentration, sugar concentration, active yeast concentration and
initial yeast inoculation. Bartee ’852 || 98—103. To the extent “yeast
properties” include additional variables that are required to determine yeast
activity that are not expressly disclosed, they are inherently present. In re
Best, 562 F.2d 1252, 1254—55, (CCPA 1977).
Appellants argue that the term “yeast properties” cannot include
ethanol concentration because the claim separately lists “yeast properties”
and “ethanol concentration.” App. Br. 8. Appellants contend “[i]f ethanol
concentration and yeast properties were equal, then reciting both of them in
the claim language would be redundant and unnecessary.” Id. We are not
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persuaded because the Examiner’s interpretation of the term “yeast
properties” does not give the term “yeast properties” the same scope as
“ethanol concentration.” While yeast properties include ethanol
concentration, they also include other variables such as sugar concentration.
The Examiner’s construction of yeast properties is thus not redundant
because it interprets yeast properties as broader than, but inclusive of,
ethanol concentration.
Appellants argue that because the claims require that yeast properties
be sensed by sensor, and because the Specification discloses that yeast
activity may be sensed by a sensor, yeast properties must include yeast
activity. App. Br. 9. We are not persuaded at least because, as discussed,
“yeast properties” are not themselves “yeast activity,” but rather are one
among multiple types of data that can be used in a “yeast activation model”
to predict “yeast activity.” Moreover, the Specification discloses that
sensors may be used to sense properties other than yeast activity. See, e.g.,
Spec. H25, 31, 35, 36, 37 (disclosing sensors that sense a variety of
properties).
Appellants argue that that “[although the predictive model of Bartee
‘048 describes using ethanol concentration as a factor to model metabolic
yeast activity in paragraph 145 of Bartee ‘048, nowhere does Bartee ‘048
describe that the ethanol concentration is sensed in the fermenter via a
sensor.” App. Br. 12. Appellants argue that the data disclosed as being
sensed in paragraphs 40-41 of Bartee ’048 relates to a “nonlinear predictive
integrating temperature model” rather than to the predictive model that
model metabolic activity of the yeast. Id. at 12—13. Appellants thus contend
that Bartee ’048 “does not explicitly disclose that predictive modeling of
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yeast activity may be based on sensed process data including yeast
properties and ethanol concentration of the mash.” Id. at 13. Appellants
further argue that there would be no motivation to test for yeast properties
since the variables disclosed in Bartee ’048 and Bartee ’852 “may be
sufficient.” Id. at 11. We are not persuaded.
One cannot show non-obviousness by attacking references
individually when the rejection is based on a combination of references. In
re Keller, 642 F.2d 413, 425, 426 (CCPA 1981); In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references.”).
Here, the combination of references clearly suggests obtaining process
information via a sensor. As the Examiner explains, Bartee ’852 discloses
yeast growth models that incorporate data about the fermentation process,
including “key components of the fermentation process, such as mash flow
(paragraph 110), volume of mash in the fermenter (paragraph[s] 228, 234),
addition of yeast (paragraph 110), ethanol concentration (paragraph 110), pH
(paragraph 173), and others (paragraph 110).” Ans. 3. Bartee ’852 further
discloses that “data about the fermentation process . . . may be acquired by
testing various parameters and/or by using computer modeling (paragraph[s]
18-19 .. .).” Id. Bartee ’048 demonstrates that “[djata about the
fermentation process may be acquired by using sensors to monitor various
parameters of the fermentation process and other related sub-processes, such
as disturbance variables (paragraph[s] 40, 143).” Id. at 4. When these
references are considered in combination, we agree with the Examiner that it
“would have been obvious to one of ordinary skill in the art to use sensors
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disclosed in Bartee ‘048 in the methods of the combined references, as use
of sensors allows for real time data acquisition for testing various
controllable parameters as disclosed in Bartee ‘852.” Id.
Appellants argue that “Schisler does not explicitly disclose injecting
liquid ammonia during the fill cycle and after the fill cycle ends in a closed-
loop based upon the current activity of the yeast and ethanol concentration ”
as required by claim 1. App. Br. 14. Appellants contend that Schisler
discloses “adding a first portion of the free amino nitrogen during the
fermenter fill cycle and subsequently adding the remainder continuously
over a scheduled time period in a control loop having variables such as
ethanol concentration.” Id. at 13—14. Appellants assert that “[tjhere is no
mention of utilizing current activity of the yeast as an input variable to the
control loop.” Id. at 14. We are not persuaded.
Schisler discloses that FAN (free amino nitrogen)8 may be added
“before, after and/or simultaneously with the addition of other fermentation
components.” Schisler 156. Schisler further discloses that yeast require a
nitrogen source, such as ammonia, for growth. Id. 141. In one of the
embodiments of Schisler, “FAN and/or glucoamylase addition rates can be
controlled as an output from a continuous control loop having one or more
fermentation variables as inputs, such as, for example, glucose
concentration, ethanol concentration, impurity concentration, yeast addition
rate, density and/or carbon dioxide off-gassing rate.” Id. 1 56. When these
disclosures are considered in combination with Bartee ’852 and Bartee ’048,
we agree with the Examiner that it would have been obvious to adjust the
8 Schisler discloses that “[tjypical added FAN sources include urea,
ammonium sulfate and ammonia (ammonium hydroxide).” Schisler 142.
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rate at which ammonia is added based on information derived from sensed
process data, such as yeast activity in order to “improve ethanol yields.”
Ans. 5.
Appellants contend that the affidavits of the inventors, Srinivas
Budaraju and James F. Bartee, demonstrate that at the time of the invention
it was common practice to manually add yeast to a fermenter. App. Br. 15.
Further relying on the inventor affidavits, Appellants assert that “systems
and methods to control batch fermentation processes did not use feedback
with respect to yeast activity to prompt the automatic addition of yeast to the
mash during the fill cycle and after the fill cycle ends.” Id. (citing Bartee
Aff.9 and Budaraju Aff.10). Therefore, Appellants conclude, it would not
have been obvious to “control a batch fermentation process by adding liquid
yeast during a fill cycle and after the fill cycle ends in a closed-loop based
upon the current activity of the yeast and ethanol concentration of the
mash.” Id.
We have considered the Budaraju and Bartee Affidavits, but note that
neither Declaration provides evidence supporting the opinions regarding
timing of yeast addition or obviousness. See In re Am. Acad, of Sci. Tech
Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004) (“[T]he Board is entitled to
weigh the declarations and conclude that the lack of factual corroboration
warrants discounting the opinions expressed in the declarations.”). We also
are not persuaded because the claims at issue require the addition of liquid
9 Affidavit of James F. Bartee Under 37 C.F.R. § 1.132, dated Sept. 12, 2014
(“Bartee Aff.”).
10 Affidavit of Srinivas Budaraju Under 37 C.F.R. § 1.132, dated Sept. 11,
2014 (“Budjaraju Aff.”).
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ammonia, not liquid yeast.11 Moreover, for the reasons discussed above, we
concluded that it would have been obvious to add liquid ammonia “during
the fill cycle and after the fill cycle ends” based on feedback from the
fermentation process.
Appellants argue that Bartee ’852 teaches away from the injection of
yeast and that this teaching conflicts with Schisler’s teaching to add yeast
later in the fermentation cycle. App. Br. 14. We are not persuaded. As
noted above, the claims do not require the injection of yeast. Moreover, a
reference teaches away from a claimed invention if it “criticize[s],
discredits], or otherwise discourage[s]” modifying the reference to arrive at
the claimed invention. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
The statement in Bartee ’852 that Appellants allege teaches away from
subsequent yeast addition does not meet this standard. It simply states:
“once the initial inoculation is complete, the yeast growth is relatively
independent of the inoculation, but is dependent on temperature, sugar
concentration, and ethanol concentration.” Bartee ’852 1105; App. Br. 18
(citing Bartee ’852 1105). We agree with the Examiner that this statement
is “merely an explanation of why a single inoculation is utilized in Bartee
‘852; a single inoculation is sufficient for their purpose[].” Ans. 11. As the
statement in Bartee ’852 does not criticize subsequent yeast addition (or
liquid ammonia addition), we find that it does not constitute a teaching
away. DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick
11 We note that the same affidavits were offered in connection with Appeal
No. 2015-003073, which Appellants identify as a related case, and which
includes claims requiring the addition of liquid yeast.
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Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006) (“We will not read into a
reference a teaching away from a process where no such language exists.”).
Accordingly, we affirm the Examiner’s rejection of claim 1 over
Bartee ’852, Bartee ’048, and Schisler. Because they were not argued
separately, claims 2, 3, 6—11, and 21 fall with claim 1.
Claim 13
Appellants argue that claim 13 is patentable for the reasons advanced
in connection with claim 1. We do not find these arguments persuasive for
the reasons discussed above.
In addition Appellants argue that claim 13 is independently patentable
because the combined references do not meet the requirement of claim 13
for: “sensing volume, mass, or percentage fill of the mash in the fermenter
and a yield of the fermenter or a pH value of the mash via one or more
sensors.” App. Br. 19—21 (emphasis omitted).12 Appellants concede that
“Bartee ‘852 discloses that volume of mash and pH may be variables
acquired by testing,” but argue that this “is not tantamount to percentage fill
of the mash in the fermenter and a yield of the fermenter.” Id. at 20. We are
not persuaded.
The limitation at issue requires that a first variable is sensed from a
first group of three fermentation variables (volume, mass, or percentage fill
of the mash) and a second variable is sensed from a second group of two
12 Appellants appear to have inadvertently recited the language of claim 13
of the related appeal. We expect that Appellants intended to recite the below
language of present claim 13: “wherein the liquid ammonia is injected in a
closed-loop as a function of the volume, the mass, or the percentage fill of
the mash in the fermenter, and the yield of the fermenter, the pH value of the
mash, or any combination thereof.”
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fermentation variables (a yield of the fermenter or a pH value of the mash).
As Appellants concede, Bartee ’852 discloses obtaining the volume of the
mash and pH by testing. Id. (citing Bartee ’852 1110); see also Bartee ’852
11 195, 172. We find that it would have been obvious to obtain this
information by sensing rather than testing for the reasons discussed above.
Accordingly, we affirm the Examiner’s rejection of claim 13.
SUMMARY
For these reasons set out above and those set forth in the Examiner’s
Answer, and the Final Office Action, the Examiner’s final decision to reject
claims 1—3, 6—11, 13, and 21 is affirmed.
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).
AFFIRMED
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