Ex Parte Gaubert

Board of Patent Appeals and Interferences

Jan 5, 2006

08978055 (B.P.A.I. Jan. 5, 2006)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GUY GAUBERT
____________

Appeal No. 2005-2705
Application No. 08/978,055
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HEARD: DECEMBER 13, 2005
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Before FRANKFORT, NASE and BAHR, Administrative Patent Judges.
BAHR, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 1-4, 12,
13, 19 and 21-24, which are all of the claims pending in this application.1

BACKGROUND

1 Claim 21 was amended subsequent to the final rejection (see amendment filed May 13, 2004) to
correct a minor informality. Although the advisory action mailed May 24, 2004 does not indicate whether
this amendment was entered, the examiner's agreement on page 2 of the answer (mailed October 20,
2004) with the appellant's statement on page 2 of the brief (filed July 28, 2004) that the amendment has
been entered indicates the examiner's approval of entry of the amendment.
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Application No. 08/978,055

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The appellant's invention relates to a method of inerting a vat containing a
consumable liquid such as wine, wherein the inerting gas is injected into the vat below
the upper wall of the vat and above but close to the free surface of the liquid
(specification, page 1). A copy of the claims under appeal is set forth in the appendix to
the appellant's brief.

The Applied Prior Art
The examiner relied upon the following prior art references of record in rejecting
the appealed claims:
Lindberg 3,814,147 Jun. 4, 1974

Spencer WO 93/20181 Oct. 14, 1993

Lewis, “Blanketing in Storage Tanks,” The Australian Grapegrower & Winemaker, pp.
96-99, April 1990.

Westrick, “Managing Oxygen in White Wine Production,” Practical Winery & Vinyard,
pp. 49-52, May/June 1996.

Allen, “Gas Diffuser Proves Beneficial,” Winepress, p. 14, June 1996.

The Rejections
The following rejections are before us for review.
Claims 1-3, 12, 13 and 21-24 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Lewis or Westrick in view of Lindberg.
Claims 4 and 13 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Lewis or Westrick in view of Lindberg and further in view of Spencer.
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Claim 19 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Lewis or Westrick in view of Allen.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejections, we make reference to the answer
for the examiner's complete reasoning in support of the rejections and to the brief and
reply brief (filed December 3, 2004) for the appellant's arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
Lewis discloses a method of inerting a wine storage tank by injecting an inerting
gas, such as carbon dioxide, by lowering a gas diffuser to the liquid surface. Westrick
discloses a method of inerting a wine tank by layering argon onto the surface of the tank
by lowering a gassing bell slowly to the bottom of the tank, filling the tank and then
gassing any head space left by applying argon slowly to the surface of the wine
(presumably by lowering a gassing bell to the surface of the wine). Neither of Lewis and
Westrick discloses any of the details of the venting or purging of gas from the wine tank
or vat and thus neither fully meets the limitations of appellant's independent claims 1
and 21. In particular, neither reference meets the limitations directed to the single vat
opening and a tubular connector fitted into the opening, with the connector having two
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Application No. 08/978,055

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passages comprising an inlet for the inerting gas and an outlet for the excess gas and
the side wall of the connector being provided with a purge orifice.
In order to fill the gaps in the disclosures of Lewis and Westrick, the examiner
relies on the teachings of Lindberg directed to a fluid filling system for filling a tank, such
as a stationary fuel tank, without disturbing the sediment collected at the bottom of the
tank. Lindberg discloses passing a filling pipe 12 into entrance conduit 11 of the tank,
the lower portion of the pipe 12 being provided with a series of transverse slots 36
through which the fuel or other liquid with which the tank is to be filled exits from the
filling pipe. A slidable sealing fixture 17 is mounted near the upper end of the filling pipe
for partially sealing the upper edge of the entrance conduit 11. A closure valve 24 is
formed in the sidewall of the fixture 17. The closure valve 24 is normally closed at the
start of the filling operation and will remain closed if the tank being filled has a vent of its
own. If the tank has no vent, or if its vent is closed, the pressure within the tank will
open the valve 24 and permit air to escape.
Like the examiner, we appreciate that the teachings of Lindberg are not directed
exclusively to stationary fuel tanks. Nevertheless, as they are directed to the filling of
the tank and not to inerting of a tank or introduction of inerting gas into the tank, they
would have provided no suggestion to one of ordinary skill in the wine making art to
modify the structure of either Lewis or Westrick for inerting wine tanks so as to establish
a prima facie case of obviousness of the subject matter of claims 1 and 21. Thus, we
cannot sustain the rejection of independent claims 1 and 21, and claims 2, 3, 12, 13 and
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22-24 depending therefrom, as being unpatentable over Lewis or Westrick in view of
Lindberg.
The examiner's application of Spencer provides no cure for the deficiency of the
combination of Lewis or Westrick in view of Lindberg discussed above. It thus follows
that we also cannot sustain the rejection of dependent claims 4 and 13 as being
unpatentable over Lewis or Westrick in view of Lindberg and further in view of Spencer.
In rejecting claim 19, the examiner's position is that it would have been obvious
to use a diffuser as taught by Allen in the process of Lewis or Westrick because it
reduces the amount of gas usage and, further, that it would have been obvious to
modify that diffuser so that the upper and lower disk portions are attached by perforated
means as a matter of design choice (answer, page 6). Be that as it may, such a
modification would still not result in the subject matter recited in claim 19. Specifically,
such combination still does not address the limitations in claim 1, from which claim 19
depends, directed to the single vat opening and a tubular connector fitted into the
opening, with the connector having two passages comprising an inlet for the inerting
gas and an outlet for the excess gas and the side wall of the connector being provided
with a purge orifice.
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CONCLUSION
To summarize, the decision of the examiner to reject claims 1-4, 12, 13, 19 and
21-24 under 35 U.S.C. § 103 is reversed.

REVERSED

CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
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Application No. 08/978,055

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