Ex Parte Watson et alDownload PDFPatent Trial and Appeal BoardMar 30, 201712957108 (P.T.A.B. Mar. 30, 2017) Copy Citation 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) 2 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. 3 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 4 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 5 Copy with citationCopy as parenthetical citation