Ex Parte Sandt

Patent Trial and Appeal Board

Feb 24, 2016

12218384 (P.T.A.B. Feb. 24, 2016)

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.
12/218,384 07/16/2008 Bernd W. Sandt BWS 08-08 3199
46725 7590 02/24/2016
BERND W. SANDT
900 DEERFIELD COURT
MIDLAND, MI 48640
EXAMINER
STULII, VERA
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
02/24/2016 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BERND W. SANDT
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Appeal 2014-006968
Application 12/218,384
Technology Center 1700
____________

Before TERRY J. OWENS, WESLEY B. DERRICK, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.

DERRICK, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1–8. We have jurisdiction pursuant to
35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
Appellant’s invention relates to a method for improving malolactic
fermentation in wines using lactic acid bacteria with a dispersing agent.
Spec. Abstract.
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Application 12/218,384

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Claim 15—the sole independent claim—is illustrative:
15. A method for conducting the malolactic fermentation of
wine, comprising dispersing a viable count of leuconostoc
bacteria in wine with an added GRAS dispersing agent selected
from the class consisting of phospholipids, guar gum,
carageenan and xanthan, after the essential completion of the
alcoholic fermentation, in sufficient quantity to distribute the
bacteria in the wine.
App. Br., Claim Appendix 1.
REJECTIONS
The Examiner maintains the following grounds of rejection for
obviousness under 35 U.S.C. § 103(a):
1. claims 15, 16, 19, and 21 over Paragraphs 2‒4 of the
Specification, deemed to be Admitted Prior Art (APA), in view of
Charpentier et al. (US 6,033,887, issued March 7, 2000) (“Charpentier”) and
Ishimoto et al. (US 2007/0092625 A1, published April 26, 2007)
(“Ishimoto”);
2. claim 20 over APA in view of Charpentier, Ishimoto, and
Amerine et al., Table Wines The Technology of Their Production, 2nd ed.
(1970), University of California Press), xi, 108‒109, 496‒505, 667‒69
(“Amerine”);
3. claims 17 and 18 over APA in view of Charpentier, Ishimoto,
and Bors et al. (DE 3546511 A, published May 21, 1987) (“Bors”); and
4. claims 22 and 23 over APA in view of Charpentier, Ishimoto,
and Daeschel et al. (US 5,059,431, issued October 22, 1991) (“Daeschel”).
Appeal 2014-006968
Application 12/218,384

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DISCUSSION
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred.1 As highlighted in Appellant’s
Appeal and Reply Briefs, we find that the Examiner erred in equating use of
a rehydrated gel immobilizing microorganisms, disclosed in Charpentier,
with “dispersing . . . bacteria in wine with . . . dispersing agent . . . to
distribute the bacteria in the wine” as set forth in claim 15. Ans. 3‒5, 8‒9;
App. Br. 4‒6; Reply Br. 2‒3. We determine that this issue is dispositive as
to all claims. It follows, therefore, that we will reverse the Examiner’s
rejection of claims 1‒8.
We begin our analysis by determining the meaning of the claims,
giving terms the broadest reasonable interpretation consistent with the
Specification as it would be interpreted by one of ordinary skill in the art.
See, e.g., In re Suitco Surface, Inc., 603 F.3d 1255, 1259–60 (Fed. Cir.
2010); In re Morris, 127 F.3d 1048, 1054–55 (Fed. Cir. 1997).
With the above principles of law in mind, we consider the proper
meaning of “dispersing” and “dispersing agent” as used in the claims.
Turning to the Specification, we find it describes that “[t]he dispersing agent
is added in concentration sufficient to cause uniform distribution of the
bacteria in the wine” (Spec. 3 ll. 28‒30) and that “[c]oncentrations can vary
widely but should be sufficient to evenly distribute the bacteria” (Spec. 6 ll.
1‒2). In addressing the concentrations to be used, the Specification thus
informs us that “dispersing” is to cause to become widely spread and that a

1 We refer to the Final Office Action (mailed October 4, 2013), the Appeal
Brief (filed December 24, 2013), the Examiner’s Answer (mailed April 20,
2014), and the Reply Brief (filed May 21, 2014).
Appeal 2014-006968
Application 12/218,384

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“dispersing agent” facilitates or promotes the dispersal of bacteria in the
wine. It then follows that an agent that immobilizes bacteria is not
consistent with the proper meaning of “dispersing agent.”
Turning to the rejections, the Examiner relies on Charpentier’s
disclosure of “microorganisms in a polysaccharide gel” where the
“rehydrated gel is used for the secondary fermentation of wine.” Ans. 4
(Charpentier Abstract). The Examiner concludes “one of ordinary skill”
would have been led to “employ the re-hydrated and re-activated gel
composition containing lactic bacteria and polysaccharide gelling agent.”
Ans. 4. The Examiner finds Charpentier discloses that re-hydrated and re-
activated compositions are rehydrated in water for up to 24 hours (col. 7, ll.
64‒67) and up to 4 days (col. 8, ll. 14‒16). The Examiner notes Charpentier
is silent as to the polysaccharide being insoluble. Ans. 9.
Because we determine that “dispersing” and “dispersing agent” are
inconsistent with the use of a gel that immobilizes bacteria, the Examiner
has failed to set forth a sufficient basis for us to sustain the rejection without
turning to impermissible speculation or unfounded assumptions or rationales
to cure the deficiencies in the rejections before us. In re Warner, 379 F.2d
1011, 1017 (CCPA 1967). In particular, on this record, the Examiner has
failed to set forth a basis or rationale for the polysaccharide being provided
in a form other than a gel (see, generally, Final Act. and Ans.) and we
decline to speculate or to assume that a rehydrated gel, as disclosed in
Charpentier, dissolves and disperses the immobilized bacteria. We likewise
decline to scour the record in the first instance for facts that might support
the rejection, as our primary role is review, not examination de novo.
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Application 12/218,384

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The Examiner relies on Charpentier’s polysaccharide gel for all of the
rejections. Even in the rejection of claims 17 and 18 (Rejection 3), limiting
the dispersing agent to a phospholipid and lecithin in particular, respectively,
the Examiner fails to establish a basis for Bors’ disclosed lecithin as the
dispersing agent in the stead of the polysaccharide gel, but instead relies on
its additional inclusion for activating microorganisms. Ans. 6‒7, 10.
Accordingly, Rejection 3 is likewise deficient because the polysaccharide
gel immobilizing bacteria in the relied-on combination does not provide for
dispersing bacteria as claimed.
It follows that we will reverse the rejections as to all claims.
CONCLUSION
The Examiner’s rejections of 1–8 are REVERSED.

REVERSED