ANITOX CORPORATION

Patent Trials and Appeals Board

Nov 20, 2020

2020002364 (P.T.A.B. Nov. 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.
14/356,109 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).
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Application 14/356,109

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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).
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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).
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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)).
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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
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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
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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).
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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

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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).
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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
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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.

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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