Biorefining, Inc.

Trademark Trial and Appeal Board

Aug 12, 2005

No. 78206550 (T.T.A.B. Aug. 12, 2005)

Mailed: August 12, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Biorefining, Inc.
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Serial No. 78206550
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Janal M. Kalis of Schwegman Lundberg Woessner & Kluth for
Biorefining, Inc.

Gina M. Fink, Trademark Examining Attorney, Law Office 103
(Michael Hamilton, Managing Attorney).
_______

Before Quinn, Bucher and Holtzman, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

An application has been filed by Biorefining, Inc. to
register the mark BIOREFINING for the following services, as
amended: "Custom manufacture of specialty chemicals for others
in the nature of L-arabinose, hemicellulose, pectins, proteins,
monosaccharides, oligosaccharides, and polysaccharides using
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 78206550
2
pressure and temperature based reaction kinetics" in
International Class 40.1
The trademark examining attorney has refused registration
on the ground that applicant's mark is merely descriptive of
applicant's services under Section 2(e)(1) of the Trademark Act.
When the refusal was made final, applicant appealed. Briefs
have been filed. An oral hearing was not requested.
The examining attorney argues that the mark BIOREFINING is
descriptive of a feature of applicant's services in that
applicant's custom manufacturing services "free sugars from
unwanted material using the science of biology." (Brief, p. 3.)
In support of her position, the examining attorney relies on a
dictionary definition of "bio" as a "prefix indicating that the
word has something to do with life, living things, or the science
of biology";2 definitions of "refining" as "to free (as metal,
sugar or oil) from impurities or unwanted material"3 and "the
process of removing impurities (as from oil or metals or sugar
etc.)";4 excerpts of abstracts and summaries of patent
applications and granted patents; a page from applicant's website

1 Application Serial No. 78206550 filed January 23, 2003 based upon an
allegation of a bona fide intention to use the mark in commerce.

2 http://biotech.icmb ("BioTech Life Science Dictionary").

3 www.m-w.com ("Merriam-Webster Online").

4 http://onelook.com ("OneLook Dictionary Search"; "Quick
definitions").
Serial No. 78206550
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(www.biorefining.com) describing applicant's process for
manufacturing chemicals; pages from third-party websites
referring to "biorefineries"; and excerpts of articles from the
NEXIS database containing references to "biorefining" and
"biorefineries."
Based on this evidence, the examining attorney concludes
that "biorefining" describes processes for extracting sugars and
specialty chemicals; that the process of "biorefining" is not
limited to the applicant's proprietary process; and that
applicant's process is merely another way of "biorefining"
materials.
In response to the examining attorney's contention that the
term is descriptive, applicant states:
The Applicant is using a patented, novel process for
extracting chemicals heretofore not extractable in
their native form. The process is novel in that it
relies upon a sophisticated use of temperature and
pressure and does not rely upon traditional wet
chemistry, as is used in the examples presented by the
Examiner. This novel process imparts a specific type
of process signature -- products are extracted in high
yield in their native form. The term "Biorefining" is
then not used to mark a run of the mill ethanol-type
extraction, but a distinguishable patented, unique and
unexpectedly successful process that yields novel
products." (Response dated January 12, 2004, p. 1; see
also Brief, p. 2.)

Applicant disputes the examining attorney's characterization
of "biorefining" as "the process of removing impurities (as from
oil or metals or sugar, etc.) using the science of biology" and
Serial No. 78206550
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her characterization of applicant's process as "custom
manufacturing services [that] free sugars from unwanted material
using the science of biology." Applicant maintains that it "does
not use the 'science of biology' to manufacture specialty
chemicals but rather uses pressure and temperature-based reaction
kinetics" which, according to applicant, "are not the 'science of
biology.'" and that the chemicals produced by applicant "are not
living matter."5 (Reply Brief, pp. 1, 3.)
A term is merely descriptive within the meaning of
Section 2(e)(1) if it immediately conveys knowledge of a
quality, feature, function or characteristic of the services in
connection with which it is used. In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987). Moreover, the question of whether
a particular term is merely descriptive must be determined not in
the abstract or on the basis of guesswork, but in relation to the
services for which registration is sought. See In re Remacle, 66

5 Applicant, for the first time in its reply brief, refers to the
results of a Google search for "pressure temperature based reaction
kinetics," cites to an online dictionary definition of "biology," and
lists as "references" certain technical journals and publications, all
apparently to support its explanation of applicant's proprietary
technology. This evidence is untimely and will not be considered. We
will not take judicial notice of an online dictionary when there is no
indication that the dictionary also exists in printed form; and
applicant has neither specified what information in its brief was
obtained from or based on the referenced publications nor submitted the
relevant portions of the publications. We point out, however, that
even if this evidence were considered of record, it would not be
persuasive of a different result in this case.
Serial No. 78206550
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USPQ2d 1222 (TTAB 2002); and In re Engineering Systems Corp., 2
USPQ2d 1075 (TTAB 1986).
Applicant custom manufactures specialty chemicals for others
in the nature of L-arabinose, hemicellulose, pectins, proteins,
monosaccharides, oligosaccharides, and polysaccharides using
pressure and temperature based reaction kinetics. We agree with
the examining attorney that the term BIOREFINING, in the context
of these services, immediately describes a feature of applicant's
manufacturing services and, in particular, the nature of the
process used by applicant to manufacture the chemicals.
The specialty chemicals manufactured by applicant are
derived from plant matter. As stated on applicant's website,
"Biorefining, Inc.'s principal objective is to maximize the
extraction of marketable co-products naturally contained in crop
or plant matter through use of its proprietary technology."
We have gleaned from the evidence as a whole that "biorefining"
is a broad term referring generally to the manufacturing
processes or technologies for converting plant matter into
chemicals and other valuable products.6 This plant matter (also

6 The term "biorefining" may have even broader meanings and
applications. The evidence shows that it also refers to processes used
in the petroleum refining industry to remove unwanted materials such as
nitrogen and metals from gasoline and crude oil by using biological
catalysts (enzymes) rather than the traditional purely chemical
processes. See, e.g., excerpt from Financial Times (London, England)
August 3, 1995 ("Oil companies have already turned to microbes as a way
of "eating" oil spills.") For purposes of this decision, however, we
Serial No. 78206550
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referred to as "biomass"7) may consist of food crops such as
corn, soybeans, or wheat, and the waste from food crops such as
wheat straw and corn stover (leaves, stalks and husks of corn).8
More specifically, the biorefining manufacturing process
involves extracting or separating the components (i.e., "sugars")
from the plant matter. The components are then refined to
produce sugar-derived fuels, such as ethanol, or further refined
to produce highly valued sugar-derived chemicals, including those
produced by applicant's processes. Thus, the term "bio," in the
context of applicant's services, refers to the biological origin
of the bulk materials used to manufacture the chemicals or the
separated components of the materials; and "refining" refers to
the processing of the bulk materials and components.

have focused on use of the term only as it relates to deriving products
from biological resources.

7 We take judicial notice of the definition of "biomass" as "plants or
biological wastes, such as those produced from agriculture or food
processing, that are grown to be available for conversion by
biotechnological processes to high-grade fuels and specialty chemicals.
..." The Language of Biotechnology A Dictionary of Terms (Second
Edition) (American Chemical Society, Washington, DC 1995).

8 The printout from http://biorefining.waaha.net ("Center for
BioRefining") describes the purpose of "biorefining" as follows: "We
must find alternative energy and chemical feedstock sources to
supplement the fossil oil supply.... One viable option is to derive
energy, materials, and chemicals from biomass – an infinite and
renewable source. A new concept "Biorefinery," which is equivalent to
a petroleum or oil refinery, is being widely accepted throughout the
world. This concept suggests that a wide range of products such as
fuels, materials, chemicals, etc., which are traditionally derived from
fossil oil, can also be produced from biological resources. ..."
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The nature and concept of "biorefining" (or "biorefinery")
and the various processes and technologies encompassed by this
term are described in the following excerpts from NEXIS articles,
patent summaries and third-party websites (emphasis added):
Biorefining is the process of applying new technologies
to biobased resources in an effort to extract their
hidden economic value. For example, microorganisms can
be used to ferment straw into ethanol, but more
valuable products can be made from the sugars locked
within the straw. Through fermentation, the sugars can
be unlocked and made into 1,3-propanediol, a chemical
that can be converted into a high performance polyester
polymer. www.ecw.org (August 2004).

The inventors have come up with an original and
effective solution of biological separation
("biorefining") of lignine [lignin] cellulosic
materials, by which the components of these materials
are separated by low cost processes. The result is the
separation of lignine cellulosic materials into
pentozes, [pentoses] lignine and pure cellulose. The
separation of pentozes is effected through a hydrolysis
process ... Excerpt of summary for Patent No. 5766895
("Method for production of ethyl alcohol").

A "biorefinery" is a relatively new term referring to
the conversion of biomass feedstock into a host of
valuable chemicals and energy with minimal waste and
emissions. The core technology is a unique thermal
reactor devoted to sequential, linear biomass
fractionation [separation] through steam auto-
hydrolysis. ...the reactor uses heat to generate
natural acids from the biomass feedstock to effect
controlled decomposition... . www.biovisiontech.ca.

Researchers Shahab Sokhansanj and Janet Cushman predict
that biomass use may reach more than half-billion tons
annually during the next decade as lignocellulosic
conversion technologies mature and the concept of
biorefining is put into practice. ... Clark Dale of
Bio-Process Innovation ...has been developing and
commercializing reactors for production of ethanol from
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whey, raw starch and other sugar sources. BioCycle
(August 2002).

A feasibility study is also under way with Commercial
Alcohols (Toronto) on a 120-million liter ethanol plant
to be supplied with Quebec corn; construction could
begin this year at a site at Varennes, says Dauphin.
The ethanol plant could serve as a platform for
additional biorefining processes, she says. Chemical
Week (July 19, 2000).

Our FY 2005 request for the Interior-funded portion of
the biomass program is $8.7 million. The request
supports continuing R&D on processes for the production
of chemicals and materials that can be integrated into
biorefineries. Projects with industrial partners will
focus on novel separations technologies; bio-based
plastics; novel products from oils; and lower cost and
energy use in biomass harvesting, preprocessing, and
storage. Additional work with industry, universities,
and the national laboratories will focus on
improvements to increase the efficiency of individual
process steps; for example, catalysts and separations.
Federal Document Clearing House Congressional Testimony
(March 4, 2004).

We at the Department of Energy ...believe a more
focused, visible, and integrated national effort can
meet the challenges and make the U.S. the world leader
in production of bioenergy and bio-based products.
Some of those challenges lie in: improving crop
yields; introducing new crop varieties tailored for
biorefining: ... Federal News Service (October 28,
1999).

Among the exhibits at the Expo, some will feature:
...Biorefining Technology – Demonstrating how
biorefining technology utilizes diverse, low-value
biomass such as corn stover and wheat straw as the
feedstock to produce fuel ethanol, specialty chemicals
and energy. Federal Information and News Dispatch,
Inc./State Department (June 20, 2003).

Ethanol is made from sugars. In the United States,
corn is the primary source of the sugars. In Brazil
sugar comes from sugar cane, in Europe from wheat.
Soon the sugars will be extracted from astonishingly
Serial No. 78206550
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abundant cellulosic materials like corn stalks, wheat
straw, grasses and urban organic wastes. ... Sugar-
derived fuels compare favorably with hydrogen fuels.
Thanks to previous public policy, Minnesota boasts some
14 biorefineries. Star Tribune (Minneapolis, MN)
(January 9, 2004).

Connelly said Sorona has been a springboard toward the
development of a biorefinery that ferments the entire
corn plant – not just the grain – to produce chemical
feedstocks and ethanol for fuel. Philadelphia Inquirer
(December 3, 2003 Wednesday CITY-D EDITION).

DuPont is part of a consortium including Deere & Co.
..., enzyme discovery firm Diversa, ... and the
National Renewable Energy Laboratory...that recently
received $19 million from DOE to develop a biorefinery.
Diversa has a six-year alliance with DuPont to discover
and develop novel biocatalysts for the production of
ethanol, PDO and other chemicals from renewable
resources such as corn and biomass. ... Cargill Dow has
funding from DOE to develop biorefineries that use low-
cost biomass such as corn stover and other nonfood
portions of food crops to produce fuel and chemicals.
Chemical Week (February 11, 2004).

Biomass and Biorefinery Systems R&D focuses on advanced
technologies to transform the Nation's domestic biomass
resources into high value chemicals, fuels, and power.
...Work will continue with industry on improved process
integration capabilities for industrial biorefineries,
...Additional partnerships may further improve the
procession operations leading to cheaper biomass-based
sugars. Projects to test and evaluate the performance
and costs of converting corn fiber to fuels and co-
products will also continue. Department of Energy
Documents (Congressional Testimony) (March 3, 2004).

It can be seen from these excerpts that the concept of
"biorefining" relates not only to the conversion of plant matter
to ethanol as applicant contends but also to the conversion of
plant matter to chemicals, such as those produced by applicant.
The evidence further demonstrates that the term "biorefining" is
Serial No. 78206550
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broad enough to encompass any of the emerging technologies used
to accomplish this, including applicant's technology, regardless
of how novel and unique the technology may be.
It is clear from applicant's own website that its
proprietary technology falls squarely within the recognized
meaning of "biorefining" (emphasis in original):
Biorefining currently maintains three processing
technologies that lead to the extraction of finer and
finer fractions contained in the biomass. The first
level of processing, the Biomilling™ Process, focuses
on the gross fractionation [separation] of corn,
producing feed and food grade commodity products, while
increasing ethanol yields and decreasing energy
consumption for an ethanol facility. Biorefining's
second level of processing, the Bio-Extraction Process,
further fractionates the gross fractions contained in
plant matter into higher-valued components such as
specialty sugars and proteins. The final level of
Biorefining's processing, the Bio-Conversion Process,
focuses on the finest processing of bio-based products,
either from the Bio-Extraction Process or obtained
elsewhere, into the rarest and most valuable components
such as L-Ribose and Levoglucosenone.

Based on the evidence, we find that "biorefining" is a
merely descriptive term for the collective processes and
technologies involved in manufacturing specialty chemicals and
other valuable products from plant matter and that the term is
therefore merely descriptive of applicant's manufacturing
services.
Decision: The refusal to register under Section 2(e)(1) of
the Trademark Act is affirmed.