Richard JonesDownload PDFPatent Trials and Appeals BoardMay 21, 20212020003520 (P.T.A.B. May. 21, 2021) 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. 14/801,947 07/17/2015 Richard L. Jones 25729-P43567US01 5789 1059 7590 05/21/2021 BERESKIN & PARR LLP/S.E.N.C.R.L., s.r.l. 40 KING STREET WEST 40TH FLOOR TORONTO, ONTARIO M5H 3Y2 CANADA EXAMINER COX, STEPHANIE A ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 05/21/2021 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): ipprocessingcentre@bereskinparr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RICHARD L. JONES Appeal 2020-003520 Application 14/801,947 Technology Center 1700 Before LINDA M. GAUDETTE, DEBRA L. DENNETT, and LILAN REN, Administrative Patent Judges. GAUDETTE, Administrative Patent Judge. DECISION ON APPEAL1 The Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision finally rejecting claims 1–11 and 22 under 35 U.S.C. 103(a) as unpatentable over Poinsard (US 4,112,829, iss. Sept. 12, 1978) in view of Ebner (“State-of-the-art Adsorption and Membrane Separation Processes for Carbon Dioxide Production from Carbon Dioxide Emitting Industries,” 1 The following documents are of record in this appeal: Specification filed July 17, 2015 (“Spec.”); Non-Final Office Action dated March 15, 2019 (“Final”); Appeal Brief filed September 18, 2019 (“Appeal Br.”); and Examiner’s Answer dated January 10, 2020 (“Ans.”). 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Aromaloc Inc. Appeal Br. 3. Appeal 2020-003520 Application 14/801,947 2 Separation Science and Technology, 44:1273-1421, 2009). See Appeal Br. 5; Non-Final Act. 3.3 We REVERSE. CLAIMED SUBJECT MATTER The invention relates to a method for preserving the aroma of a fermentable beverage. Spec. ¶ 2. In a typical beverage fermentation process, carbon dioxide gas produced during fermentation is vented to the atmosphere to avoid increasing pressure in the fermentation container. Id. ¶ 4. A problem with this method is that desirable aroma compounds that have diffused into the headspace above a fermenting beverage, such as wine, are released with the carbon dioxide gas. Id. ¶ 5. This aroma loss in the escaping carbon dioxide gas, known as “carbon dioxide stripping,” decreases the concentration of the aroma compounds in the finished consumable beverage. Id. When the present application was filed, known methods of preserving fermentable beverage aromas included fermenting at cooler temperatures, and capturing and isolating aroma compounds during fermentation for later reintroduction to the beverage. Spec. ¶ 12. These processes are typically time consuming or complex. Id. According to the Appellant, the inventive method overcomes these drawbacks by “slow[ing] the loss of aroma from the fermenting beverage in order to augment its aroma rather than directly adding condensed aroma to the beverage.” Appeal Br. 7 (emphasis omitted). More specifically, in the inventive method, the headspace fluid mixture exits the fermentation container into a flow passage where a carbon dioxide 3 We have jurisdiction under 35 U.S.C. § 6(b). Appeal 2020-003520 Application 14/801,947 3 scrubber separates the carbon dioxide gas from the aromatic fluid. Spec. ¶ 42. Some of the separated carbon dioxide gas exits the flow passage, while a modified fluid mixture containing a higher aromatic fluid content reenters the headspace. Id. As a result, the difference in aroma concentrations between the headspace gas and fermenting beverage is reduced, which in turn slows the rate at which aroma escapes from the fermenting beverage to the headspace. Id. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method for preserving the aroma of a fermentable beverage, the method comprising: fermenting the beverage in a fermentation container to produce a headspace fluid mixture comprising at least carbon dioxide gas and an aromatic fluid in a headspace located above the beverage contained in the fermentation container, each of the headspace fluid mixture and the aromatic fluid being in a gaseous or vapor form; permitting the headspace fluid mixture to exit the container into a flow passage; permitting the headspace fluid mixture to flow through the flow passage and into contact with a carbon dioxide scrubber to separate the carbon dioxide gas in the headspace fluid mixture from the aromatic fluid in the headspace fluid mixture by permitting at least a portion of the carbon dioxide gas to exit the flow passage and retaining at least a portion of the aromatic fluid in the flow passage to thereby retain a modified fluid in the flow passage, wherein the modified fluid is in a gaseous or vapor form, and has a lower carbon dioxide gas concentration and a higher aromatic fluid concentration than the headspace fluid mixture; and permitting the modified fluid remaining in the flow passage after contacting the carbon dioxide scrubber to reenter Appeal 2020-003520 Application 14/801,947 4 the headspace to at least partially retain the aromatic fluid in the fermentable beverage in the fermentation container. Appeal Br. 20 (Claims App.). OPINION The Appellant and the Examiner agree that Poinsard describes a method of preserving fermentable beverage aromas in which a condenser connected to the fermentation container receives the container’s headspace gas. See Appeal Br. 9; Ans. 6; Poinsard 1:31–35. The aroma vapors, such as wine vapors, in the headspace gas are condensed and the liquid aromas are returned to the fermenting liquid in the fermentation container, while purified carbonic gas is extracted. See Appeal Br. 9; Ans. 6–7; Poinsard 1:35–40, 65–68. In other words, there is no dispute that Poinsard does not disclose the claim 1 steps of using a carbon dioxide scrubber to remove a portion of carbon dioxide gas from the headspace fluid and returning aromatic fluid in a gaseous or vapor form to the headspace. See Appeal Br. 7; Ans. 7. The Examiner found that “Ebner discloses various carbon dioxide removal technologies and further teaches using a carbon dioxide scrubber.” Non-Final Act. 4. The Examiner determined that the ordinary artisan would have substituted Poinsard’s condenser with Ebner’s scrubber “to obtain the predictable result of removing carbon dioxide from the ferment vapors of Poinsard.” Id. Responsive to the Appellant’s argument that neither Poinsard nor Ebner returns a gas- or vapor-modified fluid having a higher aromatic concentration to a fermentation container headspace (see Appeal Br. 13–14), the Examiner explains that “Poinsard recognizes the utility of keeping wine Appeal 2020-003520 Application 14/801,947 5 vapors in the fermentation vessel,” and the use of a scrubber necessarily would retain aroma vapors in a gaseous form. Ans. 8–9. We agree with the Appellant that the Examiner’s fact finding and reasoning is not supported by the record evidence. See, e.g., Appeal Br. 13– 14. As the Appellant notes (see id.), Poinsard repeatedly states that a goal of the invention is to extract the wine vapors, condense them, and return this liquid condensate to the fermenting liquids. See, e.g., Poinsard 1:14–17, 31– 40, 5–68, 4:22–40. “Ebner is a journal review of absorption, adsorption, membrane, and cryogenic CO2 separation techniques used in power, petrochemical, and other CO2 emitting industries to combat global warming.” Appeal Br. 18 (citing Ebner, Abstr.). The Examiner does not dispute the Appellant’s argument that Ebner is silent as to using these separation techniques in beverage fermentation processes or returning fluids separated by a scrubber to a vessel headspace. See id. at 13, 18; Ans. 9–10; Ebner 1298 (discussing membrane technology for separating CO2 from natural gas streams). In sum, the Appellant has persuaded us that the Examiner relied on improper hindsight reasoning in determining that the ordinary artisan would have replaced Poinsard’s condenser with a carbon dioxide scrubber, and returned aromatic fluid in a gaseous or vapor form to the fermentation container headspace instead of returning an aromatic liquid condensate to the fermenting liquids. Accordingly, we do not sustain the rejection of claims 1–11 and 22. Appeal 2020-003520 Application 14/801,947 6 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–11, 22 103 Poinsard, Ebner 1–11, 22 REVERSED Copy with citationCopy as parenthetical citation