Joerg Kowalczyk et al.

Patent Trials and Appeals Board

May 20, 2020

14605295 - (D) (P.T.A.B. May. 20, 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.
14/605,295 01/26/2015 Joerg Kowalczyk G5005.0073 2876
32172 7590 05/20/2020
BLANK ROME LLP
1825 Eye Street NW
Washington, DC 20006
EXAMINER
WONG, LESLIE A
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
05/20/2020 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):
washingtondocketing@BlankRome.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JEORG KOWALCZYK, STEPHAN HAUSSMANS, and
TILLMANN DOERR
____________________

Appeal 2018-005696
Application 14/605,295
Technology Center 1700
____________________

Before BEVERLY A. FRANKLIN, DONNA M. PRAISS, and N.
WHITNEY WILSON, Administrative Patent Judges.

WILSON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
August 1, 2017 decision finally rejecting claims 1–3 and 8–11 (“Final
Act.”). We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Sudzucker Aktiengesellschaft
Mannheim/Ochsenfurt as the real party in interest (Appeal Br. 2).
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CLAIMED SUBJECT MATTER
Appellant’s disclosure relates to an antioxidant for food, animal feed,
cosmetics, and pharmaceuticals (Abstract). The claims are directed to a
method for improving the shelf-life of beer and related beverage products by
incorporating a trehalulose-containing composition containing an
antioxidant effective amount of trehalulose and a synergistically effective
amount of isomaltulose into the beverage. Details of the claimed process are
set forth in claim 1, which is reproduced below from the Claims Appendix to
the Appeal Brief:

1. A method for improving the aging stability, the oxygen
stability and/or shelf-life of an oxygen-sensitive food
containing at least one oxygen-sensitive component comprising
incorporating a trehalulose-containing composition containing
an antioxidant effective amount of trehalulose and a
synergistically effective amount isomaltulose into the oxygen-
sensitive food, wherein the content of trehalulose in the
composition is at least 50 wt.-% or more and the content of
isomaltulose is 50 wt.-% or less, and wherein the food is beer,
mixed beer beverage, alcohol-free beer or reduced-alcohol beer
or mixed beer beverage.

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REJECTION2
Claims 1–3 and 8–11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Sugitani3 and Nishimoto4 in view of Dietlin5 and Liu
Jing.6

DISCUSSION
Appellant does not make separate arguments regarding any of the
claims. Accordingly, we focus our analysis on the rejection of claim 1.
The Examiner’s findings underlying the rejection are set forth at pages
3–5 of the Final Action. The Examiner finds that Sugitani discloses a
composition containing both trehalulose and isomaltulose in the claimed
proportions (Final Act. 3, citing, inter alia, Sugitani, Table 2). The
Examiner further finds that Nishimoto discloses using a composition
containing trehalulose and maltulose in food compositions, including
alcoholic beverages (Final Act. 3, citing Nishimoto, 5:38–6:40). The
Examiner also finds that Dietlin discloses that trehalulose and isomaltulose
have anti-oxidant properties, and that Liu Jing shows that it was known that
anti-oxidants have additive, and sometimes synergistic, effects when used in
combination (Final Act. 4). The Examiner concludes by stating:

2 The Examiner withdrew a rejection under 35 U.S.C. § 112, second
paragraph of claims 1–3 and 8–11 (Ans. 4). Consequently, that rejection is
not before us.
3 Sugitani et al., EP 0 483 755 A2, published May 6, 1992.
4 Nishimoto et al., US 6,294,360 B1, issued September 25, 2001.
5 Dietlin et al., US 6,992,218 B2, issued January 31, 2006.
6 Translation of “Seven Steps For Designing Food Formulae” (bottom of
page 255).
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It would have been obvious to a person of ordinary skill
in the art, at the time the invention was made, to use trehalulose
and isomaltulose as antioxidants in compositions containing an
oxidation sensitive component to improve stability because the
art has recognized the use of trehalulose and isomaltulose as
antioxidants to improve stability. Applicant is using known
components for their art-recognized function to obtain no more
than expected results. In the absence of a showing to the
contrary, Applicant's results are not unexpected.
(Final Act. 5).
We have considered the arguments set forth by Appellant in the
Appeal Brief and the Reply Brief, and determine that the preponderance of
the evidence of record does not support reversing the rejection.
First, Appellant argues that none of the references disclose or suggest
the use of trehalulose and/or isomaltulose7 with beer and beer-related
beverage products (Appeal Br. 4–5, 8–9, Reply Br. 3–4). This argument is
not persuasive. Nishimoto discloses the use of trehalulose and isomaltulose
in alcoholic beverage compositions: “alcoholic beverages such as sake,
synthetic sake, wine, and liquors” (Nishimoto, 6:21–22). Thus, Nishimoto
explicitly states that its composition may be used with alcoholic beverages,
which includes beer. Though beer is not explicitly included in the list of
exemplary alcoholic beverages set forth above, a person of skill in the art
would certainly understand that beer is an alcoholic beverage. Beer is the

7 Nishimoto does not explicitly disclose the use of isomaltulose. However,
the Examiner finds, and Appellant does not dispute, that Nishimoto teaches a
maltose/trehalose converting enzyme which would result in the production
of maltulose and trehalulose, and Sugitani discloses a mixture of trehalulose
and isomaltulose in the claimed ratio (Final Act. 3).
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only broad class of alcoholic beverage8 not explicitly identified by
Nishimoto, but a person of skill in the art would know that beer would be
included in the class of alcoholic beverages, which is disclosed generally.9
Appellant also argues that the Examiner has not adequately
established that a person of skill in the art would have been motivated to:
(2) select trehalulose from the list of antioxidants set forth in
Dietlin, and incorporate the trehalulose into a beer product,
even though Dietlin does not relate to a beer product or
anything like a beer product;
(3) select isomaltulose for incorporation into the same beer
product, from the list of antioxidants set forth in Dietlin,
without de-selecting trehalulose, even though Dietlin does not
suggest using trehalulose and isomaltulose (or any combination
of antioxidants) together; and
(4) use the trehalulose and isomaltulose in the relative and
absolute amounts recited in the claims, even though none of the
references suggests using trehalulose and isomaltulose together
as an antioxidant composition, much less for a beer product.
(Appeal Br. 7).
With respect to item (2)10 above, the Examiner does not rely on
Dietlin for selecting trehalulose. Instead, Dietlin is relied on for showing

8 By “broad class of alcoholic beverage,” we mean wine, beer, and liquor.
9 Nishimoto states that its composition can be used with “alcoholic
beverages such as sake, synthetic sake, wine, and liquors,” (emphasis
added). Thus, a person of skill in the art would not have presumed that the
alcoholic beverages in which the composition could be used would be
limited to those following the “such as” phrase, and would understand that
beer was another class of alcoholic composition with which the composition
could be used.
10 Item (1) in the list was the alleged lack of motivation to use the
trehalulose/isomaltulose composition with beer products. That argument
was addressed above and deemed not persuasive.
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that it was known that trehalulose had antioxidant properties. With respect to
item (3), again the Examiner is not relying on Dietlin to provide a reason to
make a composition containing trehalulose and isomaltulose. Those
teachings are provided by Sugitani and Nishimoto. Similarly, with respect
to item (4), Sugitani is the source of the teaching regarding the relative
amounts of the two components.
In essence, these arguments are attacks on the individual references.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986). The relevant inquiry is whether the claimed subject matter would
have been obvious to those of ordinary skill in the art in light of the
combined teachings of those references. See In re Keller, 642 F.2d 413, 425
(CCPA 1981).
The preponderance of the evidence record supports the Examiner’s
statement that the claimed method uses known components for their art-
recognized function to obtain no more than expected results. Accordingly,
we sustain the rejection.

CONCLUSION

In summary:

Claims
Rejected
35 U.S.C.
§ Basis Affirmed Reversed
1–3, 8–11 103(a) Sugitani, Nishimoto, Dietlin, Liu Jing 1–3, 8–11
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED