Ex Parte Walker et al

Patent Trial and Appeal Board

Feb 29, 2016

11688543 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/688,543 0312012007
25005 7590
Intellectual Property Dept.
Dewitt Ross & Stevens SC
2 East Mifflin Street
Suite 600
Madison, WI 53703-2865
03/02/2016
FIRST NAMED INVENTOR
Teresa L. Walker
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
68006.003 1197
EXAMINER
STIJLII, VERA
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
03/02/2016 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):
docket-ip@dewittross.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TERESA L. WALKER, LARS PETERSEN, and
ROBERT H. MENZIES
Appeal2014-004448
Application 11/688,543
Technology Center 1700
Before TERRY J. OWENS, MICHAEL P. COLAIANNI, and
JULIA HEANEY, Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review pursuant to 35 U.S.C. § 134(a) of a
decision of the Examiner to reject claims 1-13, 15-23, and 31-38 of
Application 11/688,543. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm-in-part.
1 Appellants identify the real party in interest as Gusmer Enterprises, Inc.
Br. 2.
Appeal2014-004448
Application 11/688,543
BACKGROUND
The subject matter on appeal relates to a composition for sustained
release of additives for a fermentation process. The composition can be used
in winemaking to enhance healthy fermentation, and reduce stuck or
sluggish fermentation. Br. 2; Spec. 6.
Representative claim 1 is reproduced from the Claims Appendix of
the Appeal Brief as follows:
1. A composition for the sustained release of additives in a
fermentation fluid comprising: a gelling agent, at least one
additive, and a binder, wherein the at least one additive includes
a yeast-derived additive, and wherein the gelling agent and the
binder are present in amounts effective to allow the sustained
release of the at least one additive in the fermentation fluid for a
period of time up to 96 hours.
THE REJECTIONS
1. Claims 1--4, 7-13, 18, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Sandine,2 Chaney,3 and Ingledew.4
2. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Sandine, Chaney, Ingledew, and Gidwani. 5
2 Sandine et al., US 4,282,255, issued Aug. 4, 1981 (hereinafter "Sandine").
3 Chaney et al., Managing high-density commercial scale wine
fermentations, 1364-5072 J. APPL. MICROBIO. 689---698 (2006) (hereinafter
"Chaney").
4 W. M. Ingledew & Ralph E. Kunkee, Factors Influencing Sluggish
Fermentations of Grape Juice, 36 AM. J. ENOL. VITIC. 65-76 (1985)
(hereinafter "Ingledew").
5 Gidwani et al., EP 1 195 160 Al, published Apr. 10, 2002 (hereinafter
"Gidwani").
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Application 11/688,543
3. Claims 15-17, 19, 21-23, 31-3 6, and 3 8 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Sandine, Chaney,
Ingledew, and Dulau. 6
4. Claim 37 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Sandine, Ingledew, Dulau, and McLaren.7
DISCUSSION
I. Claims 1--4, 7, 8, 12, 13, 18, and 20
The dependent claims in this group all depend from claim 1, which is
representative. Br. 3-10. Appellants do not present separate argument for
the dependent claims, and therefore we need only address claim 1.
Appellants' arguments against the rejection focus on Chaney, which
discloses monitoring yeast cell viability during fermentation and incremental
nitrogen supplementation to avoid stuck fermentation. Id.; Chaney 689-90,
696-97. On the other hand, Sandine, and the claimed subject matter, are
directed to controlled release of additives to maximize fermentation. E.g.,
Sandine 2:27-30. Appellants argue that a person of ordinary skill in the art
would not view incremental addition and controlled release as alternatives
because Chaney teaches that "predicting stuck fermentations is difficult" and
"monitoring yeast cell viability and yeast vitality during fermentation" is
important because it "may alert oenologists to the potential for a stuck
fermentation before it happens." Br. 3-5; Chaney 696-97. As to Chaney
combined with Ingledew, Appellants argue that because Chaney explicitly
6 Dulau et al., US 2004/0213889 Al, published Oct. 28, 2004 (hereinafter
"Dulau").
7 McLaren, WO 99/61646, published Dec. 2, 1999.
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Application 11/688,543
cites Ingledew as teaching that "under-addition of nitrogen can result in
decreased yeast viability" (Br. 5; Chaney 690), and that Ingledew itself
teaches that yeast extract does not provide enough nitrogen to prevent
sluggish fermentation (Br. 6; Ingledew 70-71), a person of ordinary skill in
the art would not be motivated to use the yeast extract of Ingledew as a
nitrogen source in a controlled release composition as taught by Sandine. Id.
Appellants do not persuade us of harmful error in the rejection.
Sandine discloses a composition for sustained release of an additive to
ensure viability of cells and suitable conditions for the growth of bacteria,
comprising an additive, a gelling agent, and a binder. Sandine 2:27-38; 4: 1-
22, 51-56; 6:29-31, 65. Ingledew discloses the problems of sluggish or
incomplete fermentation and teaches yeast extract as an additive to increase
the rate of fermentation. Ingledew 69 ("the free amino acids present in yeast
extract eliminated sluggishness in the nitrogen gassed flasks and promoted a
very rapid fermentation in air flushed flasks (Fig. 1).") Further, Sandine
itself teaches yeast extract as a nitrogen source in its growth media (Sandine
5:41-50, Exs. 3-5); in light of Sandine's teaching, we are not persuaded by
Appellants' argument that a person of ordinary skill would not use yeast
extract as a nitrogen source in Sandine' s process. Br. 5---6. Thus, as the
Examiner correctly finds, a person of ordinary skill in the art would have
been led to modify Sandine in view of Ingledew, to employ yeast extract as a
source of nitrogen additives, for the reasons discussed in Ingledew. See Ans.
8. Accordingly, we affirm the rejection of claims 1--4, 7, 8, 12, 13, 18, 20,
and 31.
II. Claims 5 and 6
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Application 11/688,543
Claims 5 and 6 depend from claim 1 and contain additional limitations
relating to selection of an alginate as the gelling agent. The Examiner finds
that Gidwani discloses use of an alginate as a gelling agent in a sustained
release composition, and concludes that it would have been obvious for a
person of ordinary skill to substitute the alginate of Gidwani as a gelling
agent in the composition of Sandine. Ans. 10. Appellants argue that
Gidwani is directed to oral pharmaceutical compositions, and because the
environment of the stomach is different than the environment of a yeast
culture medium, it would not have been obvious that Gidwani's alginates
would be suitable for a sustained release composition for yeast fermentation.
Br. 11-12. We are persuaded by Appellants that Gidwani is not reasonably
pertinent to the particular problem which their invention addresses.
Accordingly, we reverse the rejection of claims 5 and 6.
III. Claims 9-11, 21-23, and 32-38
Claims 9-11 depend from claim 1 and contain additional limitations
reqmrmg that the composition of claim l further comprises "a calcium
source present in an amount effective to allow the sustained release of the
additive in the fermentation fluid for a period of at least 12 hours."
Appellants argue that Sandine, while teaching calcium salts as neutralizing
agents, fails to teach calcium salts as binders capable of allowing sustained
release of additives in a fermentation fluid for at least 12 hours. Br. 10-11;
see Sandine 4: 1-50. The Examiner does not dispute that Sandine teaches
calcium salts as neutralizing agents, but not as a binder. Ans. 15. Further,
the Examiner has not shown that the calcium salts which are present as a
neutralizer in Sandine's composition are present in an amount effective to
allow sustained release of an additive for at least 12 hours, even after the
calcium salts are used for neutralization. Id. Thus, the Examiner has not
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Application 11/688,543
established prima facie obviousness as to claims 9-11, and accordingly, we
reverse the rejection with respect to those claims. Claims 21-23 and 34--38
also contain a limitation reciting "a binder that includes a calcium source,"
against which the Examiner asserted Sandine. Final Act. 12. We reverse the
rejection of claims 21-23 and 34--3 8 for the same reason as claims 9-11.
IV. Claims 15-17, 19, and 31
Each of the dependent claims in this group contains an additional
limitation relating to selection of additives. Appellants do not separately
argue any of the claims, although they argue against the Dulau reference.
Br. 12-15. The Examiner finds that Dulau discloses "supplementary
nutrients that include inactive yeast or a yeast derivative, and further sources
of organic or inorganic nitrogen, vitamins, mineral salts, fatty acids, sterols,
or natural sources rich in these elements" (claim 19); the nutrients may be
chosen from nitrogen sources including ammonium salts, nitrates, urea,
amino acids, peptides, proteins or a biological source rich in nitrogen (claims
15-17); and the yeast derived additive may be yeast hulls (claim 31 ). Ans.
11-12, 15, citing Dulau i-fi-133, 35, and 45.
Appellants do not dispute that Dulau discloses the supplementary
nutrients found by the Examiner, in the amounts recited by claim 15. Br.
12-14. Appellants' only argument against Dulau is that a person of ordinary
skill would not have been led to include any of Dulau's supplementary
nutrients in a sustained-release composition, because Dulau teaches adding
the ingredients all at once to a rehydration medium. Id. We are not
persuaded by that argument, because the Examiner relies on Dulau only as a
modification to the primary reference, Sandine, which undisputedly teaches
sustained release of nutrient additives. Ans. 16-17. Further, Dulau does not
criticize, discredit or otherwise discourage sustained release of
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Application 11/688,543
supplementary nutrients. Accordingly, we affirm the rejections of claims
15-17, 19, and 31.
SUMMARY
We affirm the rejection of claims 1--4, 7, 8, 12, 13, 15-20, and 31.
We reverse the rejection of claims 5, 6, 9-11, 21-23, and 32-38.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
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