Ex Parte VanderhaegenDownload PDFPatent Trials and Appeals BoardMar 19, 201913696784 - (D) (P.T.A.B. Mar. 19, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/696,784 01/21/2013 83942 7590 Levy & Grandinetti P.O. Box 18385 Washington, DC 20036 03/19/2019 FIRST NAMED INVENTOR Bart Vanderhaegen 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. ABI183US (10-0009) 5141 EXAMINER STIJLII, VERA ART UNIT PAPER NUMBER 1791 MAIL DATE DELIVERY MODE 03/19/2019 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BART VANDERHAEGEN Appeal2018-004477 Application 13/696,784 Technology Center 1700 Before LINDA M. GAUDETTE, BRIAND. RANGE, and DEBRA L. DENNETT, Administrative Patent Judges. RANGE, Administrative Patent Judge. DECISION ON APPEAL SUMMARY Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's decision finally rejecting claims 1-8 and 16-21. We have jurisdiction. 35 U.S.C. § 6(b ). We AFFIRM. 1 According to Appellant, the real party in interest is ANHEUSER-BUSCH INBEV S.A. Appeal Br. 3. Appeal2018-004477 Application 13/696,784 STATEMENT OF THE CASE2 Appellant describes the invention as relating to an alcohol free or low alcohol content fermented malt based beverage. Spec. 1 :5-7. The invention seeks to have a flavor profile close to normal lager beer while keeping production cost effective. Spec. 3 :7-8. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An alcohol free or low alcohol fermented malt based beverage having an alcohol content of not more than 0.7 vol.%, characterized by a relationship y 2: A xb wherein A= 0.25 and b = 1.5, and wherein x is the ratio between unfermentable over real extracts, wherein the unfermentable extract is the value of the real extract less the total content of real sugars, which consist of fructose, maltose, glucose, maltotriose, and saccharose, and y is the ratio between the combined content of maltopentaose, maltohexaose, and maltoheptaose over the total amount of main sugars, wherein the main sugars consist of fructose, maltose, glucose, saccharose, maltotriose, maltotetraose, maltopentaose, maltohexaose, and maltoheptaose. Appeal Br. (Claims App.) 1. REFERENCES The Examiner relies upon the prior art below in rejecting the claims on appeal: Reuther us 5,242,694 Sept. 7, 1993 2 In this Decision, we refer to the Final Office Action dated January 12, 2017 ("Final Act."), the Appeal Brief filed November 13, 2017 ("Appeal Br."), and the Examiner's Answer dated January 25, 2018 ("Ans."). Appellant did not file a Reply Brief. 2 Appeal2018-004477 Application 13/696,784 Zurcher et al. ("Zurcher") Forrest et al. ("Forrest") GB 2 177 112 A GB 2 181 450 A REJECTIONS The following rejections are before us on appeal: Jan. 14, 1987 Apr. 23, 1987 Rejection 1. Claims 1-8 and 16-21 under 35 U.S.C. § 103(a) as unpatentable over Forrest in view of Reuther. Ans. 2. Rejection 2. Claims 1-8 and 16-21 under 35 U.S.C. § 103(a) as unpatentable over Forrest in view of Zurcher. Id. at 7. ANALYSIS We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections."). After considering the evidence presented in this Appeal and each of Appellant's arguments, we are not persuaded that Appellant identifies reversible error. Thus, we affirm the Examiner's rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. The Appellant does not separately argue any claim aside from claim 1. We thus limit our discussion to claim 1. All remaining claims stand or fall with that claim. 37 C.F.R. § 4I.37(c)(l)(iv) (2013). Rejection 1. The Examiner rejects claim 1 under 35 U.S.C. § 103(a) as unpatentable over Forrest in view of Reuther. Ans. 2. The Examiner 3 Appeal2018-004477 Application 13/696,784 finds that Forrest teaches a low alcohol, low fermentability beer. Id. The Examiner finds Forrest teaches various techniques including addition of non-fermentable sugars to reduce alcohol content in the beer. Id. at 4. With respect to claim 1 's recited "alcohol content of not more than 0.7 vol.%," Forrest teaches, "[t]he alcohol content of the low-alcohol beer-like beverage can be further reduced, for example to less than 1.2 per cent v/v at an original gravity of 1031, by addition of a non-fermentable sugar of low sweetness such as lactose as part of the grist." Forrest 2: 5-7. The Examiner further finds that Reuther teaches a malt fermented beverage with less than 0.5% alcohol by volume. Ans. 5. Appellant does not contest that, prior to Appellant's application, low alcohol beers were known in the art and that a person of skill in the art would have been motivated to modify Forrest to reach a lower alcohol content. Appeal Br. 14. Appellant argues, however, that Forrest was unable to produce beer with less than 0.7% alcohol content. Id. This argument is unpersuasive because Forrest expressly teaches that low alcohol content can be reached by adding non-fermentable sugar of low sweetness as part of the grist. Ans. 12-13. Reuther likewise teaches a process for lowering alcohol content below 0.7%. See Reuther 1:25-54 (explaining that Reuther reaches near beer with "enhanced appearance and flavor" and "alcohol level of 0.5% by volume"); Ans. 5. Appellant lacks persuasive evidence as to why the cited references could not reach an alcohol content of less than 0.7% alcohol. See Estee Lauder Inc. v. L 'Orea!, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) ("[ A ]rguments of counsel cannot take the place of evidence lacking in the record"). 4 Appeal2018-004477 Application 13/696,784 Appellant also argues that Forrest teaches away from restricted fermentation as taught by Reuther. Appeal Br. 15. A references teaches away when it "criticize[s], discredit[s], or otherwise discourage[s] the solution claimed." In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Here, Forrest would not discourage a person of skill in the art from seeking a lower alcohol content beer or from making use of Reuther's teachings. Rather, Forrest teaches that normal wort compositions may be unduly sweet when subjected to restricted fermentation. Ans. 13-14 (explaining Forrest 1: 1-12). Forrest, however, avoids this problem by making use of a low fermentability wort. Id. at 14. Appellant also argues that the combined references do not teach the "y 2: A xb" recitation of claim 1. Appeal Br. 18-20. The equation generally relates the ratio between unfermentable over real extracts (x) to the ratio between combined content of maltopentaose, maltohexaose, and maltoheptaose over the total amount of main sugars. Id. at 18. Appellant argues that the flavor profile of the beer depends on the x to y ratio. Id. The courts have held, however, that "discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art." In re Boesch, 617 F.2d 272,276 (CCPA 1980); In re Aller, 220 F .2d 454, 456 (CCP A 1955) ("[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation."). Here, the Examiner agrees with Appellant that claim 1 's recited formula is "responsible for the ... taste of the beer beverage." Ans. 6. The Examiner determines that "[o]ne of ordinary skill in the art would have been motivated to vary multiple materials and conditions involved in the process for the production of 5 Appeal2018-004477 Application 13/696,784 low-alcoholic beer-like beverage in order to achieve desired organoleptic profile of the final beer beverage." Id. The Examiner's determination that a person of skill in the art would have known to vary the components of the claim 1 equation to reach a desired taste profile is supported by the preponderance of the evidence. See, e.g., Forrest 1:50-55 ("Dextrins are less sweet in taste than glucose and maltose, so beer produced from the wort in this invention has less residual sweetness than low-alcohol beers produced by restricted fermentation in prior art methods."). Appellant does not persuasively dispute this point. Appellant argues that the combined references will not inherently reach the recited ratio. Appeal Br. 18-21. We need not address the Examiner's inherency rationale because the result effective variable rationale, discussed above, is sufficient to sustain the rejection. Because Appellant's arguments do not identify reversible error, we sustain the Examiner's rejection. Rejection 2. The Examiner also rejects claim 1 under 35 U.S.C. § 103(a) as unpatentable over Forrest in view of Zurcher. Ans. 7. The Examiner's findings regarding Forrest are essentially the same as the findings for rejection 1. Id. at 7-10. The Examiner also finds that Zurcher teaches a malt fermented beverages with less than 0.5% alcohol by volume. Ans. 5. Appellant's arguments with regard to this rejection are substantially the same as those discussed with regard to the Examiner's first rejection. Appeal Br. 17-20. For the reasons explained above, those arguments do not identify reversible error. We sustain this rejection. 6 Appeal2018-004477 Application 13/696,784 DECISION For the above reasons, we affirm the Examiner's rejections of claims 1-8 and 16-21. 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 7 Copy with citationCopy as parenthetical citation