Ex Parte Watson et alDownload PDFPatent Trial and Appeal BoardApr 28, 201712957188 (P.T.A.B. Apr. 28, 2017) Copy Citation 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. 12/957,188 11/30/2010 Daniel Martin Watson 29823-0004001 1701 26231 7590 05/02/2017 FISH & RICHARDSON P.C. (DA) P.O. BOX 1022 MINNEAPOLIS, MN 55440-1022 EXAMINER STULII, VERA ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 05/02/2017 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): PATDOCTC@fr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIEL MARTIN WATSON and BILLIE SUNDAY WATSON Appeal 2016-002585 Application 12/957,188 Technology Center 1700 Before MICHAEL P. COLAIANNI, CHRISTOPHER C. KENNEDY, and JULIA HEANEY, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) the final rejection of claims 14 and 16—21. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appellants’ invention is directed to methods for aging alcohol at an accelerated rate (Spec. 12). Claim 14 is illustrative: 14. A method for aging alcohol comprising: introducing a volume of a first mixture comprising an ethanol-based solution and an organic compound into a first vessel; increasing a pressure of the first mixture to about 200 psi or greater for a first period of time; Appeal 2016-002585 Application 12/957,188 introducing a volume of a second mixture comprising an ethanol- based solution and an organic compound into a second vessel; increasing a pressure of the second mixture above atmospheric pressure for a second period of time, the first period of time different from the second period of time; depressurizing the first mixture; collecting a vapor produced by the first mixture during or after depressurization of the first mixture; and introducing the collected vapor into the second vessel prior to an end of the second period of time. Appellants appeal the following rejections: 1. Claims 14, 18, and 21 are rejected under 35 U.S.C. § 103(a) as unpatentable over Slobodjanik (RU 2 084 510 Cl; published July 20, 1997) in view of White (US 3,615,665; issued Oct. 26, 1971), Magalhaes Mendes (US 2010/0047422 Al; published Feb. 25, 2010), and Ackermann et al. (DD 212051 A; published Aug. 1, 1984 English abstract). 2. Claims 16 and 17 are rejected under 35 U.S.C. § 103(a) as unpatentable over Slobodjanik in view of White, Magalhaes Mendes, Ackermann, Gross (US 2001/0018086 Al; published Aug. 30, 2001) and Sears (US 4,869,067; issued Sept. 26, 1989). 3. Claim 19 is rejected under 35 U.S.C. § 103(a) as unpatentable over Slobodjanik in view of White, Magalhaes Mendes, Ackermann, and Howell (US 5,102,675; issued Apr. 7, 1992). 2 Appeal 2016-002585 Application 12/957,188 4. Claim 20 is rejected under 35 U.S.C. § 103(a) as unpatentable over Slobodjanik in view of White, Magalhaes Mendes, Ackermann, and Ruiz de Palacios (US 4,350,708; issued Sept. 21, 1982). Appellants argue independent claim 14 only (App. Br. 3—4). FINDINGS OF FACT & ANALYSIS Appellants argue that there is no motivation to combine Slobodjanik’s device having pressures of 2 to 5 atmospheres with the pressures in Ackermann because Slobodjanik does not suggest using a driving force or pressure that exceeds the level of the riveting (App. Br. 3). Appellants contend that Slobodjanik teaches the formation of pores in brandy riveting accelerated with increasing pressure due to intensifying the molecular diffusion to a depth of riveting. Id. Appellants argue that Slobodjanik teaches that using a low pressure enables the use of thin riveting, which is more economical. Id. Appellants contend that Slobodjanik teaches away from using Ackermann’s higher pressures (App. Br. 3). The Examiner finds that Slobodjanik teaches placing a sealed reservoir containing cognac and oak staves at an elevated pressure (i.e., 2 to 5 atm) to increase the rate of maturing cognac (abstract). The Examiner finds that Ackermann teaches a wine maturing process where wine and wood particles are placed together in a reaction vessel and elevated pressure (i.e., 0.1 to 5.0 MPa) is applied to the mixture (abstract). The Examiner concludes that it would have been obvious to use Ackermann’s higher pressure in Slobodjanik’s process in order to reduce maturation time (Ans. 4). 3 Appeal 2016-002585 Application 12/957,188 Appellants’ argument regarding riveting does not direct us to which portion of Slobodjanik, a reference in the Russian language, teaches a desire for thin riveting. Nevertheless, the Examiner has provided a reason for modifying Slobodjanik to use the higher pressure taught by Ackermann (i.e., to accelerate the alcohol maturation process). One of ordinary skill in the art would have realized that along with using a higher pressure to further accelerate the rate of maturing the alcoholic product, the apparatus used must be modified to accommodate such a pressure. Even if Slobodjanik teaches a preference for having thinner rivets, such a teaching does not constitute a teaching away from modifying Slobodjanik’s device to be able to use Ackermann’s pressure (e.g., 200 psi) to further accelerate the wine or cognac maturing process. Appellants argue in the Reply Brief for the first time that Slobodjanik’s vent would be triggered in order to maintain a lower pressure (e.g., 5 atm) so that it would not have been able to achieve Ackermann’s 200 psi pressure. There is no reason why this argument could not have been made in the principal Brief. We shall not consider such an untimely argument. 37 C.F.R. § 41.41(b)(2). Appellants argue that the combination of references merely teaches collecting vapor and distributing on coffee beans before drying (App. Br. 3). Appellants contend that Slobodjanik merely teaches pumping in an inert gas, not an oxygen gas, such that the prior art fails to teach using an oxygen- containing component to increase the pressure to at least 200 psi (App. Br. 3). Appellants’ arguments fail to show reversible error in the Examiner’s finding that Magalhaes Mendes (with an alcoholic beverage) and White 4 Appeal 2016-002585 Application 12/957,188 (with coffee extract) teach that extraction and stripping of the aromas as a result of depressurization of the extraction material and reuse of the extracted aroma to improve organoleptic properties of beverages is well known (Ans. 3). The Examiner concludes that it would have been obvious to capture the vapor released during Slobodjanik’s depressurization step and use it to further enrich the beverage and improve its organoleptic properties as is taught by Magalhaes Mendes and White (Ans. 3—4). Slobodjanik’s teaching to use inert gas is not relevant to the obviousness inquiry because the claim does exclude using an inert gas. Claim 14 does not require that oxygen gas is used to pressurize the reactor. Appellants further contend that the Declaration of Daniel Martin Watson (hereinafter the “Watson Declaration”) shows that at pressures of 200 psi and above the reactions that occur are unpredictable (App. Br. 4). Appellants contend that the additional experiments in the Watson Declaration varied wood-type, time and alcohol by volume (ABV) which declarant alleges show the unpredictable results of the claimed maturation process. Id. Appellants’ argument that the Watson Declaration shows that at pressures of 200 psi and higher the reactions in the alcoholic beverage are unpredictable is not persuasive. It appears that Appellants are attempting to show that it was unexpected that Appellants would have been able to achieve a desirable alcoholic product at a pressure of 200 psi or higher. The Examiner makes findings regarding the evidence in the Watson Declaration (Ans. 7—9), which we adopt as our own. Appellants do not respond to the Examiner’s findings regarding the evidence in the Watson Declaration (Reply Br. generally). Appellants’ evidence is not commensurate in scope 5 Appeal 2016-002585 Application 12/957,188 with the claimed invention. Appellants’ evidence includes a few examples of different types of woods (i.e., bourbon cask, an old log and a split firewood log (oak)) with alcohol by volume (ABV) varied (i.e., 6%, 12%, 30%, 65% and 85%) (Watson Dec. Tflf 7, 11). That evidence is insufficient to rebut the prima facie case, because Appellants’ claim 14 is broader than this showing. Moreover, Appellants’ argument that the reactions in the alcoholic product are unpredictable at 200 psi and higher is undercut by Ackermann’s ability to make a suitable alcoholic product using such pressures in the reaction vessel. In other words, Ackermann shows that Appellants’ result is not unexpected. On this record, we affirm the Examiner’s § 103 rejections. DECISION The 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)(l)(iv). AFFIRMED 6 Copy with citationCopy as parenthetical citation