Ex Parte Carlson

Patent Trial and Appeal Board

Jun 18, 2018

13638238 (P.T.A.B. Jun. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/638,238 09/28/2012
33072 7590 06/20/2018
KAGAN BINDER, PLLC
SUITE 200, MAPLE ISLAND BUILDING
221 MAIN STREET NORTH
STILLWATER, MN 55082
FIRST NAMED INVENTOR
David Charles Carlson
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.
POE0035/US 5656
EXAMINER
FAN,LYNNY
ART UNIT PAPER NUMBER
1651
NOTIFICATION DATE DELIVERY MODE
06/20/2018 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):
docketing@kaganbinder.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID CHARLES CARLSON 1
Appeal2017-006646
Application 13/638,238
Technology Center 1600
Before DONALD E. ADAMS, RYAN H. FLAX, and DAVID COTTA,
Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision under 35 U.S.C. § 134(a) involving appealed claims
directed to a method for producing a fermentation product from biomass.
The Examiner's rejections of claims 14--21, 23-26, 29-31, 33, and 34 under
35 U.S.C. § 103(a) are appealed. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 The Real Party in Interest is identified as "POET Research, Inc." Appeal
Br. 4.
Appeal2017-006646
Application 13/638,238
STATEMENT OF THE CASE
The Background of the Specification states:
In the preparation of [] biomass for fermentation, the
biomass is typically pretreated, for example, using an acid such
as sulfuric acid. In order to achieve high ethanol concentration
from the fermentation of acid-pretreated biomass (e.g., com
cobs), the C6 sugar-containing stream of the pretreated biomass
is ideally fed into an enzyme hydrolysis reaction (i.e., a
saccharification reaction) at a high solids loading. However,
mixtures of acid-pretreated biomass (e.g., com cobs) above about
10% solids are typically viscous and difficult to process in a
traditional stirred tank reactor. As a result, it is typical for the
enzymatic hydrolysis reaction to be carried out in either a fed
batch mode or at a low solid loading. This lowers the efficiency
of the process, however, and results in a lower concentration (i.e.,
a lower titer) of ethanol in the resulting fermentation product.
Spec. ,r 8.
Independent claim 14 is representative and is reproduced below:
14. A method for producing a fermentation product from
biomass comprising:
(a) preparing the biomass into prepared biomass;
(b) pre-treating the biomass into pre-treated biomass;
( c) separating the pre-treated biomass into a first
component comprising polymeric glucan and a second
component;
( d) continuously supplying the first component to a
liquefaction stirred reactor;
( e) treating the first component by application of a first
enzyme formulation to at least partially hydrolyze the polymeric
glucan and form a liquefied first component, wherein the
liquefied first component comprises oligomeric glucan and
glucose and wherein the liquefaction stirred reactor is in parallel
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Appeal2017-006646
Application 13/638,238
fluid communication with two or more batch saccharification
stirred reactors;
(f) supplying a portion of the liquefied first component to
a batch saccharification stirred reactor;
(g) treating the liquefied first component by application
of a second enzyme formulation to hydrolyze the polymeric
glucan and oligomeric glucan to form a saccharified first
component so that glucose is made available, wherein treating
occurs in the batch saccharification stirred reactor according to a
batch process;
(h) supplying the saccharified first component to a
fermentation reactor;
(i) supplying an ethanologen to the saccharified first
component so that the glucose can be converted to ethanol; and
(j) supplying an additional portion of the liquefied first
component to at least one additional batch saccharification
stirred reactor,
wherein the first enzyme formulation comprises a
cellulase enzyme mixture;
wherein the biomass comprises lignocellulosic material;
and
wherein the lignocellulosic material comprises at least one
of com cobs, com plant husks, com plant leaves and com plant
stalks.
Appeal Brief 15-16 (Claims App'x). 2
2 Appellant's arguments take the position that the claims are directed to
using the system disclosed in the Specification at Figure 7, which shows a
liquefaction rector 710 connected serially with a plurality of saccharification
vessels 720, which are connected to one another in parallel. See Appeal Br.
6-14; Spec. Fig. 7. While we agree that the Specification's embodiment
disclosed at Fig. 7 is within the scope of the claims, we note that the
broadest reasonable interpretation of the claimed method also includes a
system where such a liquefaction reactor and a plurality of saccharification
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Appeal2017-006646
Application 13/638,238
The following rejection is on appeal:
Claims 14--21, 23-26, 29-31, 33, and 34 stand rejected under 35
U.S.C. § I03(a) over Wyman, 3 Penttila, 4 Nagy, 5 Smith, 6 and Blunk. 7 Final
Action 2.
DISCUSSION
"[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting aprimafacie case ofunpatentability. If
that burden is met, the burden of coming forward with evidence or argument
shifts to the applicant." In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007). "[T]he analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ." Id. at
418. "In determining whether the subject matter of a patent claim is
obvious, neither the particular motivation nor the avowed purpose of the
reactors are all connected in parallel, respective of one another, based on the
plain language of the claims.
3 US 2006/0188965 Al (pub. Aug. 24, 2006) ("Wyman").
4 WO 2005/118828 Al (pub. Dec. 15, 2005) ("Penttila").
5 US 2004/0252580 Al (pub. Dec. 16, 2004) ("Nagy").
6 WO 2006/101832 A2 (pub. Sept. 28, 2006) ("Smith").
7 S.L. Blunk & B.M. Jenkins, Combustion Properties of Lignin Residue from
Lignocellulose Fermentation 1-15 (Department of Biological and
Agricultural Engineering, University of California 2000) ("Blunk").
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Appeal2017-006646
Application 13/638,238
patentee controls. What matters is the objective reach of the claim. If the
claim extends to what is obvious, it is invalid under§ 103." Id. at 419.
The Examiner determined the rejected claims would have been
obvious over the Wyman-Penttila-Nagy-Smith-Blunk prior art combination.
Final Action 2-10; Answer 3-11. We discern no error in the Examiner's
determinations and we adopt the Examiner's findings of fact as set forth in
the Final Action and Answer. See Final Action 2-10; Answer 3-11.
We conclude, in agreement with the Examiner's findings and
determinations, that Wyman generally teaches a system and process for
fermenting cellulosic biomass (i.e., any feedstock, including com stover) by
a pre-treatment step, a continuous flow-through hydrolysis liquefaction
treatment step with cellulase enzymes, a saccharification treatment step also
with enzymes, and a fermentation step to produce ethanol with a fermenting
microorganism. Wyman Abstract, ,r,r 22--40, Figure 1. Wyman does not
teach an initial separation of a pre-treated biomass into first and second
components (it is, however, focused on treating primarily solid fractions in
the fashion discussed above); Wyman also does not teach any reactors,
specifically saccharification reactors ( with or without a liquefaction stirred
reactor or "LSR"), configured in parallel. See, e.g., id. at Fig. 1.
Penttila, which, like Wyman, is directed to the fermentation of fibrous
lignocellulosic materials to produce ethanol, teaches a step of separating
solid and liquid fractions, which, also like Wyman, is followed by
hydrolyzing the solid fraction to liquefy using cellulase, hydrolyzing again
to saccharify using more enzymes, and fermenting using yeast to produce
ethanol. Penttila Abstract, at 4--10, Fig. 1. Moreover, Nagy, which is
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Appeal2017-006646
Application 13/638,238
directed to a system for performing batch reactions on solids or liquid
materials, teaches stirred batch reactors set up in parallel, which can be fed
continuously and operated simultaneously. Nagy Abstract, ,r,r 4, 6, 18-23,
33, 37, 41, 42; Figs. 1, 2.
The reasons for and advantages of combining the teachings of Penttila
with Wyman are apparent - liquefied solids for fermentation have better
flowability, which makes the system work more easily. See, e.g., Penttila 8.
The reasons for and advantages of combining the teachings of Nagy with
Wyman are also apparent - Nagy's system mitigates contamination,
provides system flexibility, and expands the system's capacity (e.g., ten
rather than just one batch reactor can be used simultaneously). See, e.g.,
Nagy ,r,r 33, 37.
Appellant argues that Wyman fails to teach the "continuously
supplying" step, the "parallel fluid communication" limitation, the step of
"supplying a portion of the liquefied first component to a batch
saccharification stirred reactor," and the step of "supplying an additional
portion of the liquefied first component to at least one additional batch
saccharification stirred reactor," as claimed. Appeal Br. 9-10. Appellant
agues Wyman's disclosed reactors provided in series does not teach the
claimed "parallel fluid communication" and there would have been "no
apparent reason or benefit" to modify Wyman's system (using Nagy's
disclosed parallel reactor system) to provide such a parallel system. Id. at
11, 13. Appellant argues that modifying Wyman's system to have a parallel
system as claimed would change a principle upon which the Wyman system
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Application 13/638,238
is based. Id. at 11. Appellant argues, generally, Penttila, Smith, and Blunk
fail to cure such deficiencies. Id. at 13-14.
These arguments are not persuasive. As noted above, Wyman teaches
and suggests continuous batch processing and that its hydrolysis reactor
vessel 140 is a continuous, flow-through reactor, which renders obvious the
"continuously supplying" claim element. As also noted above, Wyman does
not teach saccharification reactors provided in parallel, but Nagy does and,
when combined with Wyman, providing some liquefied component to one
such saccharification reactor and some liquefied component to another
saccharification reactor would have been obvious. As also discussed above,
there would have been good reasons to use Nagy's parallel batch processor
system with the fermentation system of Wyman. There is no evidence that
modifying Wyman's system of in-series hydrolysis reactors to be an
expanded system having at least multiple saccharification reactors in parallel
would negatively affect Wyman's system or process in any way.
For the reasons discussed above, we are unpersuaded by Appellant's
arguments and affirm the Examiner's obviousness rejection.
SUMMARY
The obviousness rejection is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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