Ex Parte Melisch et al

Patent Trials and Appeals Board

May 31, 2013

11881533 - (D) (P.T.A.B. May. 31, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/881,533 07/27/2007 Klaus U. Melisch 22616-3 1324
1059 7590 05/31/2013
BERESKIN & PARR LLP/S.E.N.C.R.L., s.r.l.
40 KING STREET WEST
40th Floor
TORONTO, ON M5H 3Y2
CANADA
EXAMINER
ANDERSON, JERRY W
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
05/31/2013 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 KLAUS U. MELISCH and STEFAN RIEDELSHEIMER
______________

Appeal 2012-002111
Application 11/881,533
Technology Center 1700
_______________

Before CHUNG K. PAK, CHARLES F. WARREN and
DONNA M. PRAISS, Administrative Patent Judges.

PER CURIAM.
DECISION ON APPEAL
Applicants appeal to the Board from the final rejection of claims 1-11
under 35 U.S.C. § 103(a) over Atwood (US 2,694,641) and Murray (US
5,346,706). We have jurisdiction. 35 U.S.C. §§ 6 and 134(a) (2002);
37 C.F.R. § 41.31(a) (2011).
We affirm the decision of the Primary Examiner.
OPINION
We are of the opinion Appellants’ arguments do not establish that the
preponderance of the evidence in the totality of the record weighs in favor of
the nonobviousness of the claimed brewing methods (representative claims
8, 11) and kit (representative claim 1) for home brewed beer. App. Br.
Appeal 2012-002111
Application 11/881,533
2
17-18 (Claim App’x). In this respect, we are in agreement with the
Examiner’s analysis of the evidence in Atwood and Murray and the findings
of fact stated in the Answer.
We cannot agree with Appellants that the Examiner erred in
combining Attwood and Murray, and determining therefrom that one of
ordinary skill in the art would have used Murray’s pasteurized low alcoholic
malt beer, comprising a wort having a pH of about 4.6 and an alcohol
content of about 0.36% v/v, in the bottle of Atwood’s kit for home brewing
to further ferment Murray’s pasteurized beer following Atwood’s
fermentation process, thus arriving at methods and a kit falling within claims
8, 11 and 1. Atwood, e.g., col.1 ll.15-19, 28-31 and 40-57; Murray, e.g.,
col.5 l.61, col.6 ll.17-21. Ans. 5-6, 9-10, 11, 12-15; App. Br. 8-13; Reply
Br. 2-3.
Indeed, we agree with the Examiner’s response to Appellants’
contentions with respect to the method of claim 8 in the Appeal Brief, which
contentions are further relied on by Appellants with respect to claims 11 and
1. Ans. 12-14; App. Br. 8-11, 12, 13. We are of the view that Appellants’
reply to the Examiner’s position in the Reply Brief reiterates the position
advanced in the Appeal Brief. App. Br. 10; Reply Br. 2-3.
Accordingly, we affirm the ground of rejection of appealed claims
1-11 under 35 U.S.C. § 103(a).
The Primary Examiner’s decision 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)(1)(iv).
AFFIRMED