Ex Parte Watson et al

Patent Trial and Appeal Board

Mar 30, 2017

12957108 (P.T.A.B. Mar. 30, 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.
12/957,108 11/30/2010 Daniel Martin Watson 29823-0002001 1547
26231 7590 04/03/2017
FISH & RICHARDSON P.C. (DA)
P.O. BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
STULII, VERA
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
04/03/2017 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL MARTIN WATSON and BILLIE SUNDAY WATSON
Appeal 2016-002581
Application 12/957,108
Technology Center 1700
Before MICHAEL P. COLAIANNI, CHRISTOPHER C. KENNEDY, and
JULIA HEANEY, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-002581
Application 12/957,108
Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
1—10, 15, and 17. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention is directed to methods of aging alcohol at an
accelerated rate (Spec. 12).
Claim 1 is illustrative:
1. A method for accelerating aging of an alcoholic spirit
comprising:
introducing into a container an ethanol-based solution;
introducing an inert gas into the ethanol-based solution that
increases a pressure in the container to at least 200 psi;
combining charcoal or activated charcoal to the ethanol-
based solution;
sealing the charcoal or activated charcoal and the ethanol-
based solution in the container with a substantially air-tight
seal; and
increasing an average kinetic energy of the ethanol-based
solution and the inert gas in the container for a designated time
period.
Appellants appeal the following rejections:
Claims 1—10, 15, and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Slobodjanik (RU 2 084 510, published July 20, 1997) in
view of Duggins (US 4,173,656, issued Nov. 6, 1979) and Ackermann (DE
1990-335562, published June 6, 1990).
Appellants argue independent claim 1 only (App. Br. 2-3)
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Appeal 2016-002581
Application 12/957,108
FINDINGS OF FACT & ANALYSIS
Appellants argue that there is no motivation to combine Slobodjanik’s
device that uses pressures of 2 to 5 atmospheres with the higher pressures in
Ackermann because Slobodjanik does not suggest using a driving force or
pressure that exceeds the level of the riveting (App. Br. 2). Appellants
contend that Slobodjanik teaches the formation of pores in brandy riveting
accelerated with increasing pressure due to intensifying the molecular
diffusion to a depth of riveting (App. Br. 2). Appellants further contend that
the Declaration of Daniel Watson (hereinafter the “Watson Declaration”)
shows that at pressures of 200 psi and above the reactions that occur are
unpredictable (App. Br. 3). Appellants contend that the additional
experiments in the Watson Declaration varied wood-type, time and alcohol
by volume (ABV), which declarant alleges show the unpredictable results of
the claimed maturation process. Id.
The Examiner finds that Slobodjanik1 teaches placing a sealed
reservoir containing cognac and oak staves at an elevated pressure (i.e., 2 to
5 atm) to increase the rate of maturing cognac (abstract). The Examiner
finds that Ackermann teaches a wine maturing process where wine and
wood particles are placed together in a reaction vessel and elevated pressure
(i.e., 0.1 to 1.5 MPa) and temperature (i.e., 30 to 80°C) are applied to the
mixture (abstract). Ackermann teaches that the process produces wines
similar to cask matured wine but at lower cost due to the accelerated process
(abstract). The Examiner concludes that it would have been obvious to use
1 Appellants do not contest the Examiner’s findings regarding Duggins or
the combination of Duggins with Slobodjanik (App. Br. 2—3). Accordingly,
we limit our discussion to the combination of Slobodjanik and Ackermann.
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Appeal 2016-002581
Application 12/957,108
Ackermann’s higher pressure in Slobodjanik’s process in order to reduce
maturation time (Ans. 4—5).
Appellants’ argument regarding riveting does not direct us to which
portion of Slobodjanik, a reference in the Russian language, teaches a desire
for thin riveting. Nevertheless, the Examiner has provided a reason for
modifying Slobodjanik to use the higher pressure taught by Ackermann (i.e.,
to accelerate the alcohol maturation process). One of ordinary skill in the art
would have realized that along with using a higher pressure to further
accelerate the rate of maturing the alcoholic product, the apparatus used
must be modified to accommodate such a pressure. Even if Slobodjanik
teaches a preference for having thinner rivets, such a teaching does not
constitute a teaching away from modifying Slobodjanik’s device to be able
to use Ackermann’s pressure (e.g., 200 psi) to further accelerate the wine or
cognac maturing process.
Appellants argue in the Reply Brief for the first time that
Slobodjanik’s vent would be triggered to maintain a lower pressure (e.g., 5
atm) so that it would not have been able to achieve Ackermann’s 200 psi
pressure. There is no reason why this argument could not have been made in
the principal Brief. We have not considered such an untimely argument. 37
CFR§ 41.41(b)(2).
Appellants’ argument that the Watson Declaration shows that at
pressures of 200 PSI and higher the reactions in the alcoholic beverage are
unpredictable is not persuasive. It appears that Appellants are attempting to
show that it was unexpected that Appellants would have been able to
achieve a desirable alcoholic product at a pressure of 200 psi or higher. The
Examiner makes findings regarding the evidence in the Watson Declaration
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Appeal 2016-002581
Application 12/957,108
(Ans. 8—10), which we adopt as our own. Appellants do not respond to the
Examiner’s findings regarding the evidence in the Watson Declaration
(Reply Br. generally). Appellants’ evidence is not commensurate in scope
with the claimed invention. Appellants’ evidence includes a few examples
of different types of woods (i.e., bourbon cask, an old log and a split
firewood log (oak)) with alcohol by volume (ABV) varied (i.e., 6%, 12%,
30%, 65% and 85%) (Watson Dec. Tflf 7, 11). Appellants’ claim 1 is broader
than this showing such that it is insufficient to rebut the prima facie case.
Moreover, Appellants’ argument that the reactions in the alcoholic
product are unpredictable at 200 p si is undercut by Ackermann’s ability to
make a suitable alcoholic product using such pressures in the reaction vessel.
In other words, Ackermann shows that Appellants’ result is not unexpected
or beyond the skill of the ordinarily skilled artisan.
On this record, we affirm the Examiner’s § 103 rejection.
DECISION
The Examiner’s decision 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). 37 C.F.R.
§ 1.136(a)(l)(iv).
ORDER
AFFIRMED
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