Ex Parte Vanderhaegen

Patent Trials and Appeals Board

Mar 19, 2019

13696784 - (D) (P.T.A.B. Mar. 19, 2019)

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.
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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
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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").
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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
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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.
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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
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