Archangel Inc.

Patent Trials and Appeals Board

Mar 25, 2021

2020006671 (P.T.A.B. Mar. 25, 2021)

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.
15/558,700 09/15/2017 Allen M. ZIEGLER 10380-001-USP 3881
46317 7590 03/25/2021
Trenner Law Firm, LLC
Mark D. Trenner
14143 Denver West Pkwy, Ste 100-94
Golden, CO 80401
EXAMINER
PYLA, PAUL D
ART UNIT PAPER NUMBER
1653
NOTIFICATION DATE DELIVERY MODE
03/25/2021 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):
docket@us-patentattorney.com
mark@us-patentattorney.com
uspto@dockettrak.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALLEN M. ZIEGLER
Appeal 2020-006671
Application 15/558,700
Technology Center 1600
Before DONALD E. ADAMS, RACHEL H. TOWNSEND, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
TOWNSEND, 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, 4–6, 9, and 30. (See Non-Final
Action 1.) We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as
ARCHANGEL, INC. (Appeal Br. 2.) We note that Appellant’s brief filed
February 24, 2020, has no page numbers. We consider the first page thereof
as page 1 with the succeeding pages being numbered consecutively.
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STATEMENT OF THE CASE
“Microorganisms, such as yeast, fungi and bacteria, are used to
produce a number of fermentation products, such as industrial grade ethanol,
distilled spirits, beer, wine, pharmaceuticals, and nutraceuticals (foodstuff
that provides health benefits, such as fortified foods and dietary
supplements), baking-industry ingredients, and industrial chemicals.” (Spec.
1.) “Bacterial or microbial contamination reduces the fermentation product
yield.” (Id. at 3.) A number of methods are known to reduce bacterial or
other undesirable microorganism during fermentation, including the use of
antimicrobials. (Id. at 4–5.) However, according to Appellant, “the use of
antimicrobials will always add cost to operations and products and thus more
effective ways to achieve microbial control are sought.” (Id. at 5–6.)
Appellant’s claims are directed to such a method. (Id. at 7.)
Claims 1, 4–6, 9, and 30 are on appeal. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method of controlling undesirable microorganism
concentration in an aqueous fluid solution employed in a
fermentation process, the method comprising the steps of:
introducing a fermentable carbohydrate to the aqueous
fluid solution;
introducing at least one desirable microorganism that is
capable of fermenting carbohydrate to the aqueous fluid solution;
and
introducing at least one lauric arginate (LAE) compound
as a preservative into the aqueous fluid solution at a rate of
between about 2 pounds and about 50 pounds per ton of
distiller’s grain.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Chapman US 8,772,002 B1 July 8, 2014
Coughlin US 2010/0324137 A1 Dec. 23, 2010

REJECTIONS
The following grounds of rejection by the Examiner are before us on
review:
Claims 6 and 9 are rejected under 35 U.S.C. § 112(b) as being
indefinite.
Claims 1, 4–6, 9, and 30 are rejected under 35 U.S.C. § 103 as
obvious over Chapman and Coughlin.
DISCUSSION
I. Indefiniteness
The Examiner finds that claim 6 depends from a claim that is
cancelled, i.e., claim 2, and thus, the claims is unclear with respect to its
dependency. (Non-Final Action 3.) In addition, the Examiner finds that,
apart from the dependency issue, the term “the at least one acid” lacks
antecedent basis. (Id.)
Regarding claim 9, the Examiner finds that claim 1 indicates that the
LAE is dosed into the “fluid solution at a rate of 2 lb./ton (1000ppm) to 50
lb./ton (25000 ppm) and it appears that the dosage in claim 9 is outside of
this dosing range.” (Id.)
Appellant does not dispute that there is error in both claims. (Appeal
Br. 4.) Appellant contends that the errors in claim 6 are typographical in
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nature such that the dependency should be from claim 1 and that the “the”
should be removed before the “at least one acid.” (Id.) Whether or not the
errors are typographical in nature and could be fixed does not obviate the
fact that, as currently drafted, the claim is indefinite for currently depending
from a cancelled claim as stated by the Examiner. (Non-Final Action 3;
Ans. 12.) We also agree with the Examiner’s statement in the Answer that
Appellant’s proposed correction removing the term “the” before “at least
one acid” does not obviate ambiguity in the claim. Using the indefinite
article “a” in lieu of “the” does not address whether claim 6 is “introducing a
new acid . . . not [recited] in claim 1 or it is an attempt to broadly refer back
to a lauric arginate compound as the acid.” (Ans. 12.)
As for claim 9, Appellant agrees that the claim as written is indefinite
because the limitations thereof are inconsistent with claim 1. (Appeal Br. 5.)
In light of the foregoing admissions by Appellant, we affirm the
Examiner’s rejection of claims 6 and 9 as being indefinite.

II. Obviousness
Appellant’s arguments concerning this rejection focus only on claim
1, without separate argument for the remaining claims rejected. Claims 4–6,
9 and 30, therefore, fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
Regarding claim 1, the Examiner finds that Chapman teaches a
method of controlling undesirable microorganism concentration in an
aqueous fluid solution in a fermentation process that can include food based
fermentation products by the addition of hops acid extract into the fluid as
well as an organic acid, such as citric acid or its salts. (Non-Final Action 5
(citing Chapman 5:1–6:2); Ans. 5, 16.) The hops acid extract and citric acid
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are taught to be added into the aqueous system and to result, in combination,
in an improved antimicrobial efficiency. (Ans. 5–6 (citing Chapman 7:2–
4).) The Examiner notes that the amount of hops acid extract can be from
0.5 ppm to 120 ppm and the organic acid can be from 100 ppm to 12500
ppm. (Id. at 6–7 (citing Chapman 7:47–55, 9:58–59); Non-Final Action 6–
7.) The Examiner further finds that Chapman teaches determining the
concentration that achieves acceptable microbial control is something that
can be determined by someone of ordinary skill in the art, and that it is
dependent on the fermentation matrix. (Id. at 7 (citing Chapman 10:14–17).)
The Examiner recognizes that Chapman does not teach inclusion of
LAE in the method of controlling undesirable microorganisms. (Non-Final
Action 7; Ans. 8.) However, the Examiner finds that Coughlin teaches LAE
is a known food preservative, is food safe, and can be used in a solution to
disinfect vegetables and fruit because of its antimicrobial property. (Non-
Final Action 8–9 (citing Coughlin ¶¶ 3, 4, 6–9), 13; Ans. 8–9.) The
Examiner further finds that Coughlin teaches that LAE can be used in
combination with citric acid, and that the combination enhances the
antimicrobial effect of LAE. (Non-Final Action 8 (citing Coughlin ¶ 3);
Ans. 8.) In addition, the Examiner finds that Coughlin teaches that when
LAE is used in combination with citric acid, the LAE concentration will be
40 to 400 ppm. (Non-Final Action 8 (citing Coughlin ¶ 9); Ans. 8.)
The Examiner finds that it would have been obvious to one of
ordinary skill in the art to add the LAE-citric acid antimicrobial composition
of Coughlin to the antimicrobial composition of Chapman for controlling
undesirable microorganisms and maximizing the benefits of the
antimicrobial elements of the composition, since each of the antimicrobial
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compositions of the references were known to have antimicrobial effects
with respect to foods. (Non-Final Action 8–9; Ans. 9–10.) The Examiner
determines that “‘[T]he idea of combining them flows logically from their
having been individually taught in the prior art.’ In re Kerkhoven, 626 F.2d
846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted;
MPEP2144.06).” (Non-Final Action 10; Ans. 10–11.)
Regarding the amount and rate at which the claims require the LAE to
be introduced, i.e., between about 2 pounds and about 50 pounds per ton of
distiller’s grain, the Examiner finds that such would have been obvious to
one of ordinary skill in the art given Chapman’s teaching of including an
organic acid from 0.2 pounds to 25 pounds per ton of cellulosic material and
Coughlin’s teaching of the ratio of LAE to citric acid varying from 1:10 to
10:1 by weight. (Non-Final Action 7, 8.) Moreover, the Examiner notes
that “differences in concentration . . . will not support the patentability of
subject matter encompassed by the prior art unless there is evidence
indicating such concentration . . . is critical.” (Id. at 11.) The Examiner
explains that “‘where the general conditions of a claim are disclosed in the
prior art, it is not inventive to discover the optimum or workable ranges by
routine experimentation.’ In re Aller, 220 F.2d 454, 456 . . . (CCPA 1955)
(MPEP § 2144.05(II)(A).” (Id.)
We agree with the Examiner’s findings regarding the teachings of the
references and the conclusion of obviousness.
Appellant argues that the rejection is in error because Chapman
teaches adding an organic acid and not LAE. (Appeal Br. 6.) This argument
is not persuasive. The Examiner’s rejection relies on a combination of the
teachings of Chapman together with Coughlin. Coughlin is relied upon for
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teaching the use of LAE in combination with citric acid (Coughlin ¶¶ 3, 7, 9)
for the purposes of controlling unwanted microbial growth on surfaces,
including on food products,2 where the combination is known to enhance the
antimicrobial effect of the LAE “thereby reducing the amount of LAE
required, and thus its cost” (id. ¶ 3). “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. . . . [The reference] must
be read, not in isolation, but for what it fairly teaches in combination with
the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986). As the Examiner explained in both the Non-Final Action and the
Answer, “[i]t is prima facie obvious to combine two compositions each of
which is taught by the prior art to be useful for the same purpose, in order to
form a third composition which is to be used for the very same purpose. . . .
[T]he idea of combining them flows logically from their having been
individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850
(CCPA 1980). Chapman and Coughlin both teach antimicrobial
compositions to be used to inhibit unwanted microbial growth, where citric
acid enhances the effect of another anti-microbial component. Thus, we
agree with the Examiner that it would have been obvious to add LAE to the
Chapman process which includes citric acid and hops acid extract introduced

2 Appellant’s argument that Coughlin is non-analogous art because it uses
LAE as a hard surface disinfectant (Appeal Br. 7) is, thus, not persuasive.
Even if one were to narrowly construe the inventor’s field of endeavor, here,
as use of antimicrobials in fermentation processes, which we do not think is
correct, Coughlin is still reasonably pertinent to the problem with which the
inventor is involved, i.e., preventing spoilage of an organic product by
unwanted bacterial growth without using an antibiotic in a non-cost
prohibitive way. (See Spec. 2–3, 4–6; Coughlin ¶¶ 1–4, 14.)
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to an aqueous system with the reasonable expectation of achieving
additional anti-microbial growth.
Appellant’s claim 1 is a method “comprising” certain identified steps.
“The transition ‘comprising’ in a method claim indicates that the claim is
open-ended and allows for additional steps.” Invitrogen Corp. v. Biocrest
Mfg., L.P., 327 F.3d 1364, 1368 (Fed. Cir. 2003). Thus, although
Appellant’s claim 1 does not positively recite adding citric acid or hops acid
extract in the method of controlling undesirable microorganism growth in
the process, such is not precluded by the claim language. Indeed,
Appellant’s Specification indicates that the combination “of LAE and
hops/organic acids” is a contemplated embodiment of the invention. (Spec.
16–17.) For the foregoing reasons, we also do not find persuasive
Appellant’s argument that “the teachings of Chapman are contrary to those
recited in Applicant’s claim 1.” (Appeal Br. 6.)
Appellant also argues that the rejection impermissibly relies “on a
very specific range in one reference, [even though] that reference does not
even refer to the recited LAE” and the other reference that discloses LAE
does not disclose the specific range. (Appeal Br. 6.) We do not find this
argument persuasive as Coughlin clearly indicates that the amount of LAE in
combination with citric acid that provides anti-microbial properties is a
result-effective variable that one of ordinary skill in the art would be capable
of determining. (Coughlin ¶ 9 (providing ranges of concentrations of LAE
and acids to use in combination therewith) and Example 1 (showing results
of testing LAE with octenyl succinic acid in different amounts to assess the
extent of anti-microbial activity).) Furthermore, Chapman teaches that it is
routine in the art for one of ordinary skill to determine appropriate amounts
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of anti-microbials to add in the fermentation process that are of various
scales. (See Chapman cols. 9–10; see especially id. at 10:14–17 (“A person
of ordinary skill in the art using the teaching described herein can determine
the concentration of the composition required to achieve acceptable
microbial control, and that the concentration is dependent on the matrix”).)
Thus, we agree with the Examiner’s conclusion that the amount/rate of
addition of LAE claimed would have been obvious to one of ordinary skill in
the art.
“‘[I]t is not inventive to discover the optimum or workable ranges by
routine experimentation.’ In re Aller, 220 F.2d 454, 456 (CCPA 1955).
Only if the ‘results of optimizing a variable’ are ‘unexpectedly good’ can a
patent be obtained for the claimed critical range. In re Antonie, 559 F.2d
618, 620 (CCPA 1977).” In re Geisler, 116 F.3d 1465, 1469 (Fed. Cir.
1997) (some internal citations omitted.) Appellant has not established with
factual evidence that the range of LAE recited in the claim provides an
unexpectedly good result. “To be particularly probative, evidence of
unexpected results must establish that there is a difference between the
results obtained and those of the closest prior art, and that the difference
would not have been expected by one of ordinary skill in the art at the time
of the invention.” Bristol-Myers Squibb Co. v. Teva Pharms. USA, Inc., 752
F.3d 967, 977 (Fed. Cir. 2014). Moreover, “it is well settled that unexpected
results must be established by factual evidence. ‘Mere argument or
conclusory statements in the specification does not suffice.’” In re Geisler,
116 F.3d at 1470 (quoting In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir.
1984)).
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Although Appellant cites to paragraph 33 of the published Application
to assert the “important aspect” of the claimed rate of introduction of LAE
(Appeal Br. 7), that paragraph does not establish any difference between the
claimed process and that of the closest prior art, e.g., Chapman.
Furthermore Paragraph 33 of the Specification refers to positive results of a
process that includes LAE administration and an organic acid. And, it does
not establish that the differences Appellant asserts, (namely: reduction in
antibiotic requirement and/or preserving distiller’s grains average shelf life
by three to five days,3) would have been unexpected, given that it was
known from Coughlin that LAE in combination with citric acid has an
enhanced antibacterial activity using lower amounts of LAE (Coughlin ¶ 3).
Thus, we do not find paragraph 33 of the published Application supports a
conclusion of
Thus, for the foregoing reasons we affirm the Examiner’s rejection of
claim 1 as being obvious from Chapman and Coughlin, and as discussed
above claims 4–6, 9 and 30 fall with claim 1.

3 We note, that while paragraph 33 that Appellant reproduces in the brief
refers to “enhanced production yields of ethanol without the use of
antibiotics,” it does not identify a particular time period by which distiller’s
grain average shelf-life is extended.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
6, 9 112(b) Indefiniteness 6, 9
1, 4–6, 9, 30 103 Chapman,
Coughlin
1, 4–6, 9, 30
Overall
Outcome
1, 4–6, 9, 30

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED