Ex Parte Watson et al

Patent Trial and Appeal Board

Apr 28, 2017

12957138 (P.T.A.B. Apr. 28, 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.
12/957,138 11/30/2010 Daniel Martin Watson 29823-0003001 1605
26231 7590 05/02/2017
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
05/02/2017 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 2016-002583
Application 12/957,138
Technology Center 1700
Before MICHAEL P. COLAIANNI, CHRISTOPHER C. KENNEDY, and
JULIA HEANEY, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) the final rejection of
claims 1 and 3—13. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention is directed to methods for aging alcohol at an
accelerated rate (Spec. 12).
Claim 1 is illustrative:
1. A method for rapidly aging spirits, comprising:
introducing an ethanol-based solution including organic compounds in
a pressure vessel, the pressure vessel having a volume greater than a volume
formed by the ethanol-based solution, the ethanol-based solution including
alcohols;
Appeal 2016-002583
Application 12/957,138
substantially sealing the ethanol-based solution in the pressure vessel;
and
increasing a reaction rate between the alcohols and the organic
compounds by increasing a pressure to above 500 psig including increasing
a temperature in a range from 110 to 450 °F in the pressure vessel for a
period of time.
Appellants appeal the following rejections:1
1. Claims 1, 3—5, and 7—13 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Ackermann et al. (DD 212051 A; published Aug. 1,
1984 with English abstract).
2. Claim 6 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Ackermann in view of Duggins (US 4,173,656; issued Nov. 6, 1979).
Appellants argue independent claim 1 only (App. Br. 2—3).
FINDINGS OF FACT & ANALYSIS
Appellants argue that there is no motivation to combine Slobodjanik’s
device with the pressures of 2 to 5 atmospheres with the pressures in
Ackermann because Slobodjanik does not suggest using a driving force or
pressure that exceeds the level of the riveting (App. Br. 2—3). Appellants
contend that Slobodjanik teaches the formation of pores in brandy riveting
1 Due to an after final action amendment to the claims, the Examiner finds
that the Slobodjanik reference is not necessary for the rejection (Ans. 2).
The Examiner withdrew Slobodjanik from the statement of the rejection and
rejected the claims using Ackermann as the primary reference (Ans. 2—6).
The Examiner finds that this does not constitute a new ground of rejection,
which Appellants do not dispute (Ans. 2; Reply Brief 1—2). Therefore, we
understand the rejection (1) to be over Ackermann alone, and rejection (2) to
be over Ackermann in view of Duggins.
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Appeal 2016-002583
Application 12/957,138
accelerated with increasing pressure due to intensifying the molecular
diffusion to a depth of riveting (App. Br. 3). Appellants argue that
Slobodjanik teaches that using a low pressure enables the use of thin
riveting, which is more economical (App. Br. 3). Appellants contend that
Slobodjanik teaches away from using Ackermann’s higher pressures (App.
Br. 2). Appellants further contend that the Declaration of Daniel Martin
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.
Appellants’ arguments regarding Slobodjanik are not persuasive
because the Examiner does not rely on Slobodjanik in the rejection (Ans. 2).
The Examiner, rather, relies on Ackermann alone to teach and suggest the
subject matter of claim 1 (Ans. 2—4). Although the Examiner removed
Slobodjanik as part of the rejection in the Answer, Appellants do not argue
that the rejection is a new ground or otherwise traverse the removal of the
Slobodjanik reference (Reply Br. generally).
The Examiner finds that Ackermann teaches temperatures and
pressures that overlap with the temperatures and pressures recited in the
claims (Ans. 3—4). The Examiner finds that the overlap in temperature and
pressure establishes a prima facie case of obviousness with respect to the
claimed temperatures and pressures. Id. Appellants do not dispute these
findings of the Examiner.
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Appeal 2016-002583
Application 12/957,138
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 shall not consider such an untimely argument.
37 C.F.R. § 41.41(b)(2). Moreover, the Examiner no longer relies on
Slobodjanik in the rejection, so the argument is moot.
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
(Ans. 7—9), 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 psi and higher 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.
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Appeal 2016-002583
Application 12/957,138
On this record, we affirm the Examiner’s § 103 rejections.
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)(l)(iv).
AFFIRMED
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