Richard Jones

Patent Trials and Appeals Board

May 21, 2021

2020003520 (P.T.A.B. May. 21, 2021)

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

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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
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Application 14/801,947

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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
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Application 14/801,947

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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.
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Application 14/801,947

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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–11, 22 103 Poinsard, Ebner 1–11, 22

REVERSED