WTI, Inc.

Patent Trials and Appeals Board

Aug 20, 2020

15177408 - (D) (P.T.A.B. Aug. 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.
15/177,408 06/09/2016 Ertan Ergyunov Hyuseinov 822322-1040 1409
24504 7590 08/20/2020
THOMAS | HORSTEMEYER, LLP
3200 WINDY HILL ROAD, SE
SUITE 1600E
ATLANTA, GA 30339
EXAMINER
MORNHINWEG, JEFFREY P
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
08/20/2020 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):
docketing@thomashorstemeyer.com
ozzie.liggins@tkhr.com
uspatents@tkhr.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ERTAN ERGYUNOV HYUSEINOV and
WOLFGANG PETER LUDWIG

Appeal 2019-004898
Application 15/177,408
Technology Center 1700
____________

Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and
JULIA HEANEY, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction 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 the real party in interest as World
Technology Ingredients, Incorporated. Appeal Br. 3.
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Appellant’s invention is directed to methods of preparing concentrated
natural acetate food additives from vinegar as well as compositions
containing the concentrated naturally-derived acetate (Spec. ¶ 2; Claim 1).
Claim 1 is representative of the subject matter on appeal:
1. A method of preparing a concentrated food additive
comprising:
(a) treating vinegar with a basic neutralizing agent to
partially neutralize the vinegar to a pH in the range of about 4.0
to less than 5.5; and
(b) evaporating water from and drying the product of step
(a) to produce the concentrated food additive having an acetate
and an acid in the form of a dry powder.

Appellant appeals the following rejection:
Claims 1–20 are rejected under 35 U.S.C. § 103 as unpatentable over
Ludwig (US 2010/0310738 A1, pub. Dec. 9, 2010) in view of Toledo (US
2007/0059423 A1, pub. Mar. 15, 2007).

Appellant argues claims 1 and 10 only (Appeal Br. 12). Appellant
untimely argues the subject matter of dependent claims 5, 6, 16, and 17 on
page 11 of the Reply Brief. We will not consider such untimely arguments.
37 C.F.R. § 41.41(b)(2). Therefore, any claim not argued separately will
stand or fall with our analysis of the rejection of claims 1 and 10.

FINDINGS OF FACT & ANALYSIS
The Examiner’s findings and conclusions regarding the rejection of
claims 1 and 10 over Ludwig in view of Toledo are located on pages 3–5 of
the Final Action.
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Appellant argues that the Examiner has not shown where each and
every feature is taught or suggested by the prior art (Appeal Br. 12).
Appellant contends that the combination of Ludwig and Toledo fails to teach
treating vinegar with a basic neutralizing agent to partially neutralize the
vinegar to a pH range of 4.0 to 5.5 and evaporating water to produce a
concentrated food additive having an acetate and an acid in dry powder form
(Appeal Br. 13). Appellant argues that Toledo fails to render obvious
treating vinegar with a basic neutralizing agent to partially neutralize the
vinegar to a pH of 4.0 to 5.5 (Appeal Br. 13). Appellant contends that
Toledo fails to teach forming a concentrated food additive having an acetate
and an acid in dry powder form (Appeal Br. 13). Appellant argues that
Toledo’s teaching to completely neutralize the acid in the vinegar teaches
away from partially neutralizing the vinegar with basic neutralizing agent to
a pH of 4.0 to 5.5 (Appeal Br. 13–14). Appellant contends that Toledo does
not teach using a basic neutralizing agent to partially neutralize the acid in
the vinegar and achieve a pH of 4.76 (Appeal Br. 14). Appellant contends
that Toledo’s teaching regarding the pH involves adding untreated vinegar to
the neutralized vinegar to achieve the desired pH (Appeal Br. 15). Appellant
contends that Toledo’s complete neutralization of the acid in the vinegar
would have achieved a pH of 7 (Appeal Br. 15). Appellant argues that the
teachings of Ludwig and Toledo as a whole would have suggested complete
neutralization of the acid in the vinegar, not partial neutralization as required
by the claim (Appeal Br. 15–16). Appellant contends that Ludwig does not
teach the step of evaporating water from the treated vinegar would result in a
concentrated food additive having an acid, but would only include an acetate
in Ludwig’s concentrated product (Appeal Br. 16). Appellant argues that
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neither Ludwig nor Toledo teaches producing a concentrated food additive
having an acetate and an acid in the form of a dry powder (Appeal Br. 16).
We have considered Appellant’s arguments and find them
unpersuasive for the following reasons. The Examiner finds that Ludwig
alone teaches the subject matter of claims 1 and 10 except for an explicit
recitation of the claimed pH range (Final Act. 3–5). The Examiner finds that
Ludwig discloses that the vinegar is partially neutralized to a pH of “below
about 7” (Final Act. 3, 5). The Examiner finds that Ludwig’s teaching that
the pH of the partially neutralized vinegar is “below about 7” does not
constitute a teaching away from the claimed pH range of 4.0 to 5.5 (Ans. 7).
In other words, the Examiner finds that Ludwig’s disclosed pH range of
“below about 7” overlaps with the pH range recited in claims 1 and 10.
Because the pH ranges overlap, the Examiner has established a prima facie
case of obviousness. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003)
(“A prima facie case of obviousness typically exists when the ranges of a
claimed composition overlap the ranges disclosed in the prior art.”).
We find that the Examiner relies on Toledo as merely a teaching
reference of typical pH values for treated vinegar (Final Act. 4, Ans. 7).
Accordingly, Appellant’s arguments about Toledo’s complete vinegar
neutralization teaching away from the claimed invention are not persuasive
because Ludwig teaches partial neutralization of the vinegar (Ans. 9;
Ludwig ¶ 56). The Examiner finds and we agree that because Ludwig only
partially neutralizes the vinegar in the initial step, some residual acid must
remain after evaporating the treated vinegar to form a dry powder (Ludwig
¶¶ 56, 59–62; Ans. 10). Ludwig discloses adding vinegar (i.e., a liquid) to
the acetate achieved by the drying process in step (b) to produce a vinegar-
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acetate dry powder (¶ 62, claim 10). We find that such disclosure indicates
that the acetate formed by evaporating the water is a dried powder to which
is added liquid vinegar because if liquid vinegar were added to liquid acetate
then no dry powder would have resulted in Ludwig.
Appellant’s argument that Toledo’s complete neutralization teaches
away from the claimed method focuses on the teachings of the references
individually and fails to appreciate that Ludwig teaches to neutralize
partially the vinegar. Rather, as the Examiner finds, Ludwig teaches all the
requirements of claims 1 and 10, including a pH range that overlaps with
that recited in the claims (Ans. 6). The Examiner relies on Toledo as
teaching that a mixture of acetic acid and acetate has a pH of 4.76 (Ans. 7;
Final Act. 3–4, 5). The Examiner is not suggesting the bodily incorporation
of Toledo’s method into Ludwig’s method as Appellant appears to argue. In
re Wood, 599 F.2d 1032, 1037 (CCPA 1979) (“The test for obviousness is
not whether the features of one reference may be bodily incorporated into
another reference.”). Rather, the Examiner relies on Toledo as a reference to
teach the typical pH for an acetate/acetic acid mixture (Final Act. 3-5).
Appellant’s argument that Ludwig and Toledo use untreated vinegar
to acidify the treated vinegar instead of partially neutralizing the vinegar to a
pH of 4.0 to 5.5 is not persuasive for three reasons. First, claim 1 uses the
open ended transitional claim language comprising which does not exclude
additional steps to achieve a pH range of 4.0 to 5.5 as part of the neutralizing
process. For example, the Examiner finds that a partial neutralization of the
vinegar may include adding additional acid to reach a pH in the range of 4.0
to 5.5 and acid in the dry powder (Ans. 10). Secondly, Ludwig teaches the
partially neutralized vinegar has a pH range (i.e., below about 7) that
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overlaps with that recited in claim 1 (i.e., 4.0 to 5.5). Third, claim 10 is a
product-by-process claim and as such, the process used to achieve the pH in
the end-product is not material. In re Thorpe, 777 F.2d 695, 697 (Fed. Cir.
1985) (“The patentability of a product does not depend on its method of
production.”).
Moreover, Appellant has not proffered any evidence of criticality in
pH range recited in claims 1 and 10. On this record, we affirm the
Examiner’s § 103 rejection of claims 1–20 over Ludwig and Toledo.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 103 Ludwig, Toledo 1–20

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED