Anheuser-Busch InBev S.A.

Patent Trials and Appeals Board

Sep 14, 2020

2019006654 (P.T.A.B. Sep. 14, 2020)

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.
14/372,432 07/15/2014 Bart Vanderhaegen ABI194US (ABI-031) 5313
83942 7590 09/14/2020
Levy & Grandinetti
P.O. Box 18385
Washington, DC 20036
EXAMINER
STULII, VERA
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
09/14/2020 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
____________

Appeal 2019-006654
Application 14/372,432
Technology Center 1700
____________

Before TERRY J. OWENS, CATHERINE Q. TIMM, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–4 and 11. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM and designate our affirmance as a NEW GROUND OF
REJECTION pursuant to 37 C.F.R. § 41.50(b) because our decision relies on
a translation of the primary reference to Paulaner that is not of record and

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Anheuser-Busch InBev S.A. as the
real party in interest. Appeal Br. 3.
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was used by the Examiner to support the facts and reasoning for the
rejections.2
The invention relates to a low alcohol or alcohol free fermented malt
based beverage, such as beer having a flavor profile very close to regular
lager beer. Spec. 1. Claim 1 is illustrative of the subject matter on appeal
and is reproduced below:
1. Alcohol free or low alcohol fermented malt based
beverage having an alcohol content of not more than 1.0 vol.%,
comprising:
(a) 7.00-30.00 ppm ethyl acetate, and
(b) 0.01-0.10 ppm ethyl butyrate, that together contribute
with esters and higher alcohols to defining a flavoring profile of
the alcohol free or low alcohol fermented malt based beverage
close to a lager beer.

Appellant requests review of the following rejections from the
Examiner’s Final Office Action:
I. Claims 1 and 2 rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Paulaner (DE 20 2005 021 293 U1, published September
6, 2007, and relying on an Derwent English Abstract and an English
machine translation, both dated February 22, 2017), ESTERS (document
from beersencoryscience.wordpress.com dated July 14, 2014), and Cha (KR
2003-0039830 A, published May 22, 2003).

2 The Examiner relied on an English machine translation of DE 20 2005 021
293 U1 to Paulaner dated February 22, 2017. This translation is not of
record. In addition, our staff contacted Appellant’s representative and, at
best, Appellant’s representative is not aware of this translation. Out of
abundance of caution, we designate our decision as a new ground of
rejection to afford Appellant a fair opportunity to consider the translation the
Examiner relied upon.
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II. Claims 3, 4, and 11 rejected under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over Paulaner, ESTERS, Cha, and Chicoye (US 4,068,005,
issued January 10, 1978).

Appellant presents arguments only for independent claim 1 and relies
on these arguments to address the respective rejections of claim 2–4 and 11.
See generally Appeal Br. Accordingly, we select claim 1 as representative
of the claimed subject matter and decide all issues for this appeal based on
the arguments for patentability of claim 1.

OPINION
After review of the respective positions that Appellant provides in the
Appeal Brief3 and the Examiner provides in the Final Action and the
Answer, we AFFIRM the Examiner’s prior art rejections of claims 1–4 and
11 for the reasons the Examiner presents. We add the following for
emphasis.
Claim 1
Claim 1 recites a non-alcoholic beer comprising specific amounts of
ethyl acetate and ethyl butyrate to provide a flavoring profile close to a lager
beer.
The Examiner finds Paulaner teaches a non-alcoholic beer having
desired organoleptic properties that are characteristics of the regular
alcoholic beer. Final Act. 2; Paulaner 1. The Examiner finds that Paulaner’s
non-alcoholic beer comprises the claimed amount of ethyl acetate. Final
Act. 3–4. As the Examiner explains, Paulaner discloses an exemplary non-
alcoholic white beer comprising an ethyl acetate content of 18.8 mg/l or

3 Appellant did not file a Reply Brief.
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ppm,4 which falls within the claimed concentration of 7.00–30.00 ppm for
this component. Ans. 16; Paulaner 9. The Examiner finds that Paulaner
does not teach (1) a non-alcoholic beer comprising ethyl butyrate or (2) a
non-alcoholic beer having a flavoring profile close to a lager beer. Final
Act. 4, 7. Regarding difference (1), the Examiner relies on the combined
teachings of the ESTERS document and Cha to establish that it is known to
use ethyl butyrate as a beer component to provide a specific flavoring to a
beer product. Final Act. 4; ESTERS 3; Cha 1. Regarding difference (2), the
Examiner finds that Paulaner’s disclosure of making non-alcoholic beers by
removing alcohol from a regular beer would have motivated one skilled in
the art desirous of making a non-alcoholic beer having a taste profile close to
a lager beer to do so by subjecting a regular lager beer to a dealcoholization
process as taught by Paulaner. Final Act. 2, 6; Paulaner 1. The Examiner
determines that it would have been obvious to one skilled in the art to arrive
at the claimed invention from the teachings of the cited art. Final Act. 6–8.
Appellant argues that there is no basis in Paulaner or otherwise to
conclude that the beer disclosed by Paulaner necessarily include ethyl
acetate at all or in the recited concentrations. Appeal Br. 7. According to
Appellant, the Examiner has not demonstrated that the taste of Paulaner’s
beer is due to the presence or concentration of ethyl acetate, or whether the
regular beer disclosed in Paulaner necessarily included ethyl acetate. Id.
Appellant also contends that the Examiner does not state grounds sufficient
for a finding of disclosure by inherency. Id. at 7–9.

4 A concentration of 1 mg/l is approximately 1 ppm. See
https://www.unitconverters.net/concentration-solution/milligram-liter-to-
part-million-ppm.htm.
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Appellant’s arguments do not identify reversible error in the
Examiner’s determination of obviousness. As the Examiner notes in the
Answer, Paulaner discloses an exemplary non-alcoholic white beer
comprising an ethyl acetate content of 18.8 ppm, which falls within the
claimed concentration of 7.00–30.00 ppm for this component. Ans. 16;
Paulaner 9. Appellant has not refuted this finding by the Examiner.
Appellant argues that the ESTERS reference merely shows that ethyl
acetate and various esters can be found in beer. Appeal Br. 8. According to
Appellant, claim 1 recites a particular combination of features that requires
ethyl acetate in the claimed amount to achieve a synergistic effect. Id. In
addition, Appellant contends that the claimed amount of ethyl butyrate
combined with the claimed amount of ethyl acetate synergistically result in
an advantageous flavor and organoleptic profile. Id. That is, Appellant
contends that the recited ranges for ethyl acetate and ethyl butyrate result
unexpectedly in an advantageous flavor and organoleptic profile for the
claimed non-alcoholic beer. In support of this contention, Appellant directs
attention to data presented in Table 1 in the Specification as evidence of
synergistic results. Id. at 10; Spec. 12 (Table 1).
When evidence of secondary considerations is submitted, we begin
anew and evaluate the rebuttal evidence along with the evidence upon which
the conclusion of obviousness was based. In re Rinehart, 531 F.2d 1048,
1052 (CCPA 1976). The burden of establishing unexpected results rests on
the Appellant. Appellant may meet this burden by establishing that the
difference between the claimed invention and the closest prior art was an
unexpected difference. See In re Klosak, 455 F.2d 1077, 1080 (CCPA
1972). Appellant must establish the unexpected results with factual
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evidence; attorney statements are insufficient to establish unexpected results.
See In re Geisler, 116 F.3d 1465, 1470–71 (Fed. Cir. 1997). Further, a
showing of unexpected results with evidentiary support must be reasonably
commensurate in scope with the degree of protection sought by the claims
on appeal. In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re
Clemens, 622 F.2d 1029, 1035 (CCPA 1980).
We have considered Appellant’s evidence of unexpected results and
agree with the Examiner’s analysis that the evidence is insufficient to show
nonobviousness. Ans. 16.
First, there is no recognition in the Specification that claimed amounts
of ethyl acetate and ethyl butyrate lead to synergistic results. While the
Specification discloses that “[i]t is surprising to observe that all the
comparative beers on the market comprise relatively small amounts of ethyl
acetate” (Spec. 11), this disclosure is insufficient to show unexpected results
for the claimed invention. Moreover, as the Examiner finds, ESTERS
teaches that the claimed amounts for ethyl acetate and ethyl butyrate are
commonly found in beer products and can provide a fruity aroma. Ans. 12;
Esters 2–3. The disclosure that experts sitting in panel tasting sessions
concluded that the inventive non-alcoholic beers have an overall flavor
profile closer to the ones typical of alcoholic lager beers than the
comparative examples (Spec. 16) is equally insufficient because there are no
details as to how the tasting sessions were conducted. In addition, it is not
clear that Appellant has compared the claimed invention against the closest
prior art (Paulaner). Further, Appellant compares only two inventive
examples of non-alcoholic beers against various comparative examples. The
inventive examples have an ethyl acetate concentration of 16.90 and 18.13
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ppm and an ethyl butyrate concentration of 0.037 and 0.034 ppm. Appellant
does not explain why these two inventive non-alcoholic beers are
representative of the broad scope of non-alcoholic beers claimed.
Thus, on this record, Appellant has not explained adequately why one
of ordinary skill in the art would have found the evidence relied upon
unexpected or why that evidence is reasonably commensurate in the scope
with the claims.
Appellant argues that “Cha merely discloses using ethyl butanoate[,
also known as ethyl butyrate,] for its commonly known purpose to provide a
pineapple flavor or aroma to alcoholic beer in order to yield a pineapple
flavored beer.” Appeal Br. 9. Appellant also argues that “Cha does not
disclose adding ethyl butanoate to non-alcoholic beer and does not disclose
or suggest the importance of ethyl butyrate in enhancing flavor of non-
alcoholic beer to compensate for loss of ethanol.” Id. at 10. In addition,
Appellant argues that Cha uses ethyl butyrate at 0.145 mg/l, which is outside
the claimed 0.01 to 0.10 ppm range. Id.
This argument also fails to identify reversible error in the Examiner’s
determination of obviousness.
Cha is generally directed to beer products having a fruity
aroma/flavor. Cha 1. As the Examiner explains, Cha is relied upon to show
that it is known to combine different esters, such as ethyl acetate and ethyl
butyrate, to achieve a desired aroma/flavor. Ans. 13. In terms of the
claimed amounts for the components, the Examiner relies on ESTERS. Id.
at 12–13. Thus, Appellant’s arguments do not address the rejection the
Examiner presents. Moreover, ESTERS recognizes that both ethyl acetate
and ethyl butyrate add a fruity aroma to the beer product. “It is prima facie
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obvious to combine two compositions each of which is taught by the prior
art to be useful for the same purpose, in order to form a third composition
which is to be used for the very same purpose.” In re Kerkhoven, 626 F.2d
846, 850 (CCPA 1980).
While Appellant argues that Cha and ESTERS are directed to
alcoholic beers (Appeal Br. 8–10), Appellant does not explain adequately
why the addition of flavoring esters commonly used in alcoholic beer
products would not be suitable for non-alcoholic beers given that non-
alcoholic beer products are conventionally made from alcoholic beers and
Paulaner teaches the use of these esters in non-alcoholic beers.
We have considered Appellant’s arguments about the distinction
between lager and ale style beers. Appeal Br. 11–12. Appellant, however,
fails to provide a technical explanation why esters typically used in beer
products to provide aroma/flavor would not be suitable for lager style beers.5
Accordingly, we affirm the Examiner’s prior art rejection of claims
1–4 and 11 under 35 U.S.C. § 103(a) for the reasons the Examiner presents
and the reasons we give above.

5 Appellant directs us to an article entitled “Lager Beer vs. Ale Beer - Does
It Matter?” in support of the argument. Appeal Br. 11. However, the article
is not of record nor provided as an appendix to the Appeal Brief.
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DECISION SUMMARY

In summary:

Claims
Rejected
35
U.S.C.
§
References/Basis Affirmed Reversed New Ground
1, 2 103(a) Paulaner,
ESTERS, Cha
1, 2 1, 2
3, 4, 11 103(a) Paulaner,
ESTERS, Cha,
Chicoye
3, 4, 11

3, 4, 11
Overall
Outcome 1–4, 11 1–4, 11

TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
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claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.

Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED; 37 C.F.R. § 41.50(b)