ANITOX CORPORATIONDownload PDFPatent Trials and Appeals BoardNov 20, 20202020002364 (P.T.A.B. Nov. 20, 2020) 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. 14/356,109 05/02/2014 Julio Pimentel 60288-148003 4682 21888 7590 11/20/2020 THOMPSON COBURN LLP ONE US BANK PLAZA SUITE 3500 ST LOUIS, MO 63101 EXAMINER PYLA, PAUL D ART UNIT PAPER NUMBER 1653 NOTIFICATION DATE DELIVERY MODE 11/20/2020 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): IPDOCKET@THOMPSONCOBURN.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JULIO PIMENTEL and JAMES D. WILSON ____________ Appeal 2020-002364 Application 14/356,109 Technology Center 1600 ____________ Before DONALD E. ADAMS, RICHARD M. LEBOVITZ, and ULRIKE W. JENKS, Administrative Patent Judges. ADAMS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from Examiner’s decision to reject claims 1, 2, 4, 5, 12–16, and 21–26 (see Appeal Br. 5). 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 “Anitox Corporation” (Appellant’s August 8, 2019 Appeal Brief (Appeal Br.) 3). Appeal 2020-002364 Application 14/356,109 2 STATEMENT OF THE CASE Appellant’s disclosure relates to a “method for producing ethanol, by treating carbohydrate material, carbohydrate broth or carbohydrate slurry throughout the fermentation process with a composition containing an aldehyde, a fatty acid, a terpene and a surfactant,” wherein “[e]thanol yields are improved by controlling the formation of biofilms and destroying pre- existing biofilms in the fermentation system” (Spec.2 1). Appellant’s claims 1 and 13 are reproduced below:3 1. A high yield method of fermenting carbohydrate to ethanol in a fermenter, the method comprising: a) mixing a fermentation feedstock with a fermentation broth containing yeast in the fermenter to obtain a mixture; b) treating said mixture by adding a liquid composition to the fermenter, said composition containing: 10 - 90 wt. % of formaldehyde, para- formaldehyde, glutaraldehyde, or mixtures thereof; 1 - 50 wt. % of a surfactant having an HLB (hydrophilic-lipophilic balance) from 4 to 18; 0 - 20 wt. % of an antimicrobial terpene or an essential oil containing the antimicrobial terpene; 1 - 50 wt. % of an organic acid selected from the group consisting of C1 to C24 fatty acids, their salts, and glycerides and esters thereof; and 1 - 50 wt. % water; wherein the concentration of formaldehyde, para- formaldehyde, glutaraldehyde, or mixtures thereof in the 2 Appellant’s May 2, 2014 Specification. 3 “Appellant requests that the Board select claim 1 directed to a method of fermenting carbohydrate to ethanol in a fermenter for consideration of this appeal” (Appeal Br. 6). Appeal 2020-002364 Application 14/356,109 3 fermenter is from about 0.25 to 3 kg/MT of fermentation feedstock; and c) isolating ethanol. (Appeal Br. 17.) 13. The method of claim 1, further comprising adding an antibiotic to control bacteria in an amount less than the antibiotic's minimum inhibitory concentration (MIC) in fermentations compared to when said composition is not added to the fermenter in step b. (Id. at 18.) Grounds of rejection before this Panel for review: Claims 1, 2, 4, 5, 12, 14–16, and 21–26 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Bland4 and Holt.5 Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Bland, Holt, and Hynes.6 ISSUE Does the preponderance of evidence relied upon by Examiner support a conclusion of obviousness? FACTUAL FINDINGS (FF) FF 1. Bland discloses “a process of treating animal feed with aqueous formaldehyde which renders the feed highly resistant to recontamination by pathogenic bacteria such as Salmonella, Streptococcus, Staphylococcus, E. coli, Clostridia and Bacillus” (Bland 1:7–11). 4 Bland et al., US 5,505,976, issued Apr. 9, 1996. 5 Holt et al., US 2007/0292919 A1, published Dec. 20, 2007. 6 Hynes et al., Use of virginiamycin to control the growth of lactic acid bacteria during alcohol fermentation, 18 J. Ind. Microbiol. Biotechnol. 284– 291 (1997). Appeal 2020-002364 Application 14/356,109 4 FF 2. Bland discloses: [A] formaldehyde-treated animal feed which is resistant to contamination by pathogenic bacteria obtained by a process comprising: spraying an aqueous solution containing 10–50 wt. % formaldehyde on a complete animal feed or major ingredient thereof in an amount of 0.2–4.0 pounds dry weight of formaldehyde per ton of said complete animal feed or said major ingredient while mixing . . . and recovering an animal feed comprising 100–1000 grams of hydrolysable formaldehyde adduct per ton of feed distributed a coefficient of variation 7% or less and 1–20% moisture. (Bland 5:9–19.) FF 3. Bland discloses that “[s]uitable major ingredients of animal feed include . . . corn” (Bland 8:15–16). FF 4. Bland’s Figure 1 is reproduced below: Bland’s “FIG. 1 is an end view illustration showing the application of formaldehyde solution to feedstuff in a screw type auger. Formaldehyde is applied by two atomizing spray nozzles located 3 feet apart on opposite sides of the top cover” (Bland 6:7–10 (emphasis omitted)). Appeal 2020-002364 Application 14/356,109 5 FF 5. Bland discloses: The aqueous formaldehyde solution can contain additional ingredients conventionally used to preserve animal feed such as 5–15 wt. % C1–C8-carboxylic acids or salts thereof including formic acid, acetic acid, propionic acid, butanoic acid, benzoic acid, sorbic acid and lactic acid. Suitable salts include alkali, alkaline earth, calcium, sodium and ammonium. The solution may also contain natural terpenes in a concentration of 0.5 to 2.0 wt. %. Terpene addition may also require 0.5 to 2.0 wt. % of a surfactant to solubilize the terpene. Terpenes are thought to help the formaldehyde penetrate the bacterial cell wall during the initial sterilization process. Feedstuffs referred to in this invention preferably have a moisture content from 5 to 20%. Higher water content provides an ideal environment for subsequent bacterial growth making it difficult to prevent recontamination of the feed. The water content is usually between 6–14 wt. % most preferably below 12%. The moisture level of feed can be determined by measuring the moisture weight loss that occurs during heating of feed at 110° C. for 16 hours. (Bland 9:1–20.) FF 6. Examiner finds that Bland does not disclose the treatment of a fermentation broth, fermentation, the production of ethanol, or a “surfactant [that] has an “HLB of 4-18” (Ans. 6). FF 7. Holt “relates to compositions and methods for the improvement of fermentations, and more particularly to compositions and methods for the improvement of the rate, yield, maintenance requirements, and/or other parameters of fermentation operations” (Holt ¶ 3; see also id. ¶ 18 (Holt discloses “composition for increasing the rate of production and/or the yield Appeal 2020-002364 Application 14/356,109 6 of a non-terpene organic compound by a microorganism in a fermentation medium, the composition comprising a terpene, and a surfactant.”); id. at ¶ 37 (Holt prefers that its surfactant has “an HLB value of about 6 to about 25 . . . [a]nd even more preferred is an HLB of from 11 to 16.”)). FF 8. Holt discloses: A fermentation operation that has been increasing in importance is the production and recovery of ethyl alcohol (ethanol) for use as fuel. Ethanol that is produced by fermentation for fuel use has been referred to as bioethanol. In commercial bioethanol production, a starch feedstock, typically corn, is hydrolyzed with enzymes such as amylase to convert complex polysaccharides such as starch into simple sugars that can be metabolized by the fermenting microorganism-usually a yeast such as Saccharomyces cerevisiae. The degraded feedstock is then subjected to anaerobic fermentation to convert the sugars to ethanol and carbon dioxide. (Holt ¶ 9.) FF 9. Holt disclose: Because ethanol for fuel use must be produced at a low cost, in most commercial bioethanol production plants the yeasts that are present in the fermenter at the end of a batch fermentation are recovered for recycle back into a new batch of medium. Due to cost restraints, it is impractical to use rigorous sanitation practices in bioethanol production and contaminating microorganisms, notably acid-producing bacteria, sometimes accumulate in the equipment and in the recycled charge of yeast. If the level of these contaminants rises to noticeable levels, they will convert sugars or ethanol into organic acids–– thus lowering the yield of ethanol per unit of substrate. This situation usually requires treating the yeasts with antibiotics, or replacing the yeasts and shutting down and sanitizing the fermentation equipment. In plants that operate continuous-flow fermentations, it is not uncommon to see a build up of contaminating organisms in various parts of the lines or Appeal 2020-002364 Application 14/356,109 7 fermenters. This condition also requires plant shut down and sanitization and results in a reduction in plant productivity. (Holt ¶ 10; see also id. ¶ 19 (Holt’s methods and compositions “reduce the frequency of plant shutdowns for cleaning and sanitizing . . . increase the yield, rate, or productivity of the fermenter, or . . . entire fermentation plant, and . . . are easy to administer, do not interfere with the operation of the fermentation plant, and are cost effective.).) FF 10. Examiner finds that the combination of “Bland and Holt do not explicitly teach that the method has an antibiotic to control bacteria in an amount less than its MIC in fermentations as compared to not having the composition in step (b) added to the fermenter” and relies on Hynes to make up for this deficiency (Ans. 13). ANALYSIS The rejection over the combination of Bland and Holt: Based on the combination of Bland and Holt, Examiner concludes that, at the time Appellant’s invention was made, it would have been prima facie obvious to add Bland’s composition to Holt’s fermentation method to reduce bacterial contamination and, thereby, enhance the productivity of the fermenter (see Ans. 18–19).7 Bland discloses the application of a composition into a vessel (see FF 2–3). In addition, Holt’s disclosure of a fermentation method implicitly 7 Appellant refers to this rationale as Examiner’s second “alternative articulation[] of obviousness” (see Appeal Br. 7; see also id. at 11–15 (Appellant’s contentions relating to this second rationale)). We, therefore, do not address Appellant’s contentions relating to a different obviousness rationale (see id. at 7 (discussing a first “alternative articulation[] of obviousness); see also id. at 8–11 (Appellant’s contentions relating to a first articulation of obviousness). Appeal 2020-002364 Application 14/356,109 8 includes the addition of fluids to a fermentation apparatus. Therefore, we are not persuaded by Appellant’s intimation that it would be beyond the level of ordinary skill in this art to efficiently apply Bland’s composition to a fermentation vessel as recited in step a) of the claim (see Appeal Br. 11 (“Bland does not actually disclose spraying its antimicrobial composition into a fermentation vessel”)). See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person of ordinary skill is also a person of ordinary creativity, not an automaton.”). For the same reasons, we are not persuaded by Appellant’s contention that it would not have been obvious to a person of ordinary skill in this art to utilize an appropriate device to deliver a liquid into a fermenter (see Appeal Br. 15 (“[A] skiled artisan would be required to substantially change [Bland’s] sprayers[, which] . . . would be inefficient for delivering a liquid composition to [Holt’s] fermenter”); see id. (“Bland unambiguously discloses an apparatus specifically designed for delivering the Bland composition to grain/animal feed as a fine mist . . . [and] [t]he purpose/results disclosed by Bland would not be achieved by the Examiner’s modification” when modified for use with Holt’s fermenter)). The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the Appeal 2020-002364 Application 14/356,109 9 combined teachings of the references would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). On this record, the combination of Bland and Holt suggests including a composition comprising: i. 10–90 wt. % of formaldehyde, para-formaldehyde, glutaraldehyde, or mixtures thereof; ii. 1–50 wt. % of a surfactant having an HLB (hydrophilic- lipophilic balance) from 4 to 18; iii. 0–20 wt. % of an antimicrobial terpene or an essential oil containing the antimicrobial terpene; iv. 1–50 wt. % of an organic acid selected from the group consisting of C1 to C24 fatty acids, their salts, and glycerides and esters thereof; and v. 1–50 wt. % water; in a fermentation method to enhance, inter alia, the productivity of a fermenter that produces, inter alia, ethanol from the fermentation of a feedstock, such as corn (see FF 1–3, 7–9). Therefore, we are not persuaded by Appellant’s assertion that the combination of Bland and Holt results in the addition of Bland’s composition to a fermentation vessel “that includes the Holt composition comprising terpenes and the surfactant having an HLB from 6 to 25” (Appeal Br. 11) As Appellant’s evidence makes clear, at the time of Appellant’s claimed invention, those of ordinary skill in this art were aware of “formaldehyde-hyperresistant strains of the yeast Saccharomyces cerevisiae” (see Appeal Br. 14, n. 33 (emphasis added)). Therefore, we are not persuaded by Appellant’s contentions regarding the addition of a composition comprising formaldehyde to a fermentation process utilizing Saccharomyces cerevisiae (see Appeal Br. 14; see also id. at 12–14). Appeal 2020-002364 Application 14/356,109 10 Bland discloses that “feedstuffs referred to in [its] invention preferably have a moisture content from 5 to 20%. Higher water content provides an ideal environment for subsequent bacterial growth making it difficult to prevent recontamination of the feed” (FF 5). Thus, those of ordinary skill in this art would understand Bland to suggest that a low moisture content is preferred when storing a feedstock (see id.). A person of ordinary skill in this art would understand, however, that when Bland and Holt are considered in combination, the composition suggested by the combination would be effective in the control of contaminants in a fermentation process, which comprises the fermentation of a feedstock (see FF 1–9). Therefore, we are not persuaded by Appellant’s contention that “a skilled artisan would not have a reasonable expectation that the Bland composition would be effective if introduced into a fermentation broth as disclosed by Holt” (Appeal Br. 14). See KSR Int’l Co. v. Teleflex Inc., 550 U.S. at 421 (“A person of ordinary skill is also a person of ordinary creativity, not an automaton.”). The rejection over the combination of Bland, Holt, and Hynes: Based on the combination of over the combination of Bland, Holt, and Hynes, Examiner concludes that, at the time Appellant’s invention was made, it would have been prima facie obvious to add an amount of Hynes’ antibiotic that is less than the antibiotic’s MIC to the fermentation method suggested by the combination of Bland and Holt because the method suggested by Bland and Holt eliminates or reduces the need for antibiotics and, therefore, if needed, only low amounts of an antibiotic would be required (i.e., an amount less than the MIC) to control contamination during Appeal 2020-002364 Application 14/356,109 11 fermentation and, thereby, enhance the fermentor’s productivity (see Ans. 13–14). Appellant does not separately argue the rejection of claim 13, but instead rely upon their contentions regarding the rejection over the combination of Bland and Holt (see Appeal Br. 6 (“Appellant focuses its arguments on independent claim 1. If an independent claim is novel and nonobvious, then any claim depending thereform is novel or nonobvious. Accordingly the remarks below apply to [claim 13], which depend[s] directly . . . from claim 1”) (footnote omitted)). Stated differently, Appellant contends that Hynes fails to make up for the deficiency in the combination of Bland and Holt. Having found no deficiency in the combination of Bland and Holt, as discussed above, we find no error in Examiner’s combination of Bland, Holt, and Hynes. CONCLUSION The preponderance of evidence relied upon by Examiner supports a conclusion of obviousness. The rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable over the combination of Bland and Holt is affirmed. Claims 2, 4, 5, 12, 14– 16, and 21–26 are not separately argued and fall with claim 1. The rejection of claim 13 under 35 U.S.C. § 103(a) as unpatentable over the combination of Bland, Holt, and Hynes is affirmed. Appeal 2020-002364 Application 14/356,109 12 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 5, 12, 14–16, 21–26 103 Bland, Holt 1, 2, 4, 5, 12, 14–16, 21–26 13 103 Bland, Holt, Hynes 13 Overall Outcome 1, 2, 4, 5, 12–16, 21–26 TIME PERIOD FOR RESPONSE 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 Copy with citationCopy as parenthetical citation