Ex Parte Collet et al

Patent Trial and Appeal Board

Jan 18, 2018

14324140 (P.T.A.B. Jan. 18, 2018)

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.
14/324,140 07/04/2014 Christophe Collet LT94US1 6821
19135 7590 01/22/2018
LanzaTech New Zealand Limited
8045 Lamon Ave, Suite 400
Skokie, IL 60077
EXAMINER
AFREMOVA, VERA
ART UNIT PAPER NUMBER
1653
NOTIFICATION DATE DELIVERY MODE
01/22/2018 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):
ip @ lanzatech. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHE COLLET, JAN YAN NG, and
DAVID NATHANIEL ASTON1
Appeal 2018-000436
Application 14/324,140
Technology Center 1600
Before DEMETRA J. MILLS, FRANCISCO C. PRATS, and
RYAN H. FLAX, Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) involving
claims directed to a process for inoculating multiple bioreactors utilizing a
central bleed line and/or for maintaining stable fermentation of a gaseous
substrate across multiple bioreactors. Claims 1—13 and 20-22 are on appeal
as rejected under 35 U.S.C. §§ 102 and 103. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellants identify the Real Party in Interest as “LanzaTech New Zealand
Limited.” App. Br. 2.
Appeal 2018-000436
Application 14/324,140
STATEMENT OF THE CASE
Claims 1 and 2 are the independent claims, are representative, and are
reproduced below:
1. A process for inoculating multiple bioreactors utilising a
central bleed line, the process comprising:
a. supplying a gaseous substrate to a first primary bioreactor
comprising a liquid nutrient media;
b. inoculating the first primary bioreactor with one or more
microorganisms;
c. fermenting the gaseous substrate to produce a
fermentation broth comprising one or more microorganisms
and one or more products;
d. passing at least a portion of the fermentation broth from
the first primary bioreactor via a central bleed line to inoculate
at least one other primary bioreactor;
e. operating the at least one other primary bioreactor at
conditions to primarily promote microbial growth; and
f. passing at least a portion of the fermentation broth from at
least one primary bioreactor via the central bleed line to
inoculate at least one secondary bioreactor, the secondary
bioreactor operated at conditions to primarily produce
products.
2. A process for maintaining stable fermentation of a gaseous
substrate across multiple bioreactors, comprising:
a. supplying a gaseous substrate to two or more primary
bioreactors comprising a liquid nutrient media containing one
or more microorganisms;
b. fermenting the gaseous substrate in the two or more
primary bioreactors to produce a fermentation broth
comprising one or more microorganisms and one or more
products;
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c. passing at least a portion of the fermentation broth from
one primary bioreactor to one or more secondary bioreactors
via a central bleed line; and
d. determining whether one or more of the primary
bioreactors of (c) is operational or not, wherein if one or more
of the primary bioreactor is non-operational, at least a portion
of fermentation broth from one or more operational primary
bioreactors is provided to the one or more secondary
bioreactors of (c) via the central bleed line.
App. Br. 13 (Claims App’x).
The following rejections are on appeal:
Claims 1—11 and 20 stand rejected under 35 U.S.C. § 102 as
anticipated Laatsch.2 Answer 2.
Claims 1, 6, and 10—13 stand rejected under 35 U.S.C. § 102 as
anticipated by Gaddy.3 Final Action 6; Answer 8.
Claims 1—13 and 20—22 stand rejected under 35 U.S.C. § 103 over
Laatsch, Gaddy, and Simpson.4 Final Action 9; Answer 10—11.
DISCUSSION
“Anticipation requires that all of the claim elements and their
limitations are shown in a single prior art reference.” In re Skvorecz, 580
F.3d 1262, 1266 (Fed. Cir. 2009). “[I]f a reference is ambiguous and can be
interpreted so that it may or may no[t] constitute an anticipation of an
appellant’s claims, an anticipation rejection under 35 U.S.C. § 102 based
2 US 3,591,454 (issued July 6, 1971) (“Laatsch”).
3 US 5,173,429 (issued Dec. 22, 1992) (“Gaddy”).
4 WO 2008/115080 A1 (pub. Sept. 25, 2008) (“Simpson”).
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upon the ambiguous reference is improper.” In re Brink, 419 F.2d 914, 917
(CCPA 1970).
In analyzing obviousness “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
416 (2007). “[I]f a technique has been used to improve one device [or
process], and a person of ordinary skill in the art would recognize that it
would improve similar devices [or processes] in the same way, using the
technique is obvious unless its actual application is beyond his or her skill.”
Id.
“[Dependent claims are nonobvious [or not anticipated] if the
independent claims from which they depend are nonobvious [or not
anticipated].” In reFritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992).
Except as otherwise indicated herein, we adopt the Examiner’s
findings of fact as set forth in the Final Action and Answer. Final Action 2—
15; Answer 2—21.
Anticipation of Claims 1—11 and 20 by Laatsch
The Examiner determined that Laatsch anticipated claims 1 and 2 in
that Laatsch’s container K, containing mother yeast (starter) and a liquid
malt, disclosed the claimed first primary bioreactor comprising a liquid
nutrient media, Laatsch’s container J, which is fed yeast from container K,
disclosed the claimed other primary bioreactor, and the air fed to these
containers K and J disclosed the claimed gaseous substrate. Answer 2-A.
Further, the Examiner determined that Laatsch’s fermentation vessels Oi—Os
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disclosed the claimed secondary bioreactor and that a side-branch of the
main flow (line) A of mashes disclosed the claimed central bleed line. Id.
Regarding claim 1, the Examiner concluded that the identified
gaseous substrate (air) was fermented to produce the claimed fermentation
broth, i.e., propagating an inoculum in a liquid malt, but the Examiner did
not specify where this fermenting occurred. Id. at 3. The Examiner
determined that the fermentation broth was passed from container K to
container J via the side-branch of the main flow A and that container J was
operated to promote microbial grown because it produced yeast. Id. Finally,
the Examiner determined that a portion of the fermentation broth was passed
from one of the containers J and K to a fermentation vessel, e.g., Oi, to
produce a product, e.g., alcohol or ethanol. Id.
Regarding claim 2, the Examiner determined that Laatsch disclosed
fermenting the gaseous substrate (air) in both containers K and J to produce
a fermentation broth and passing a portion of the fermentation broth from
one of those containers K and J to a secondary container, e.g., vessel Oi, via
a central line originating from the main flow A. Id. at 4. The Examiner
determined that Laatsch disclosed determining whether one of the containers
J and K are/is nonoperational and, if so, providing the fermentation broth to
the vessel Oi from one of J and K that is operational, citing Laatsch’s
disclosure of a continuous flow and ability to switch overflow pipes that
interconnect the fermentation vessels with regulating devices. Id. (citing
Laatsch 1:30-44, 4:30—55).
Appellants argue Laatsch does not disclose the “gaseous substrate” of
claims 1 and 2, which, Appellants contend, must be interpreted to mean the
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‘“molecule upon which an enzyme acts’,” which is “‘transformed into one or
more products’,” because the Specification defines the term to mean “‘any
gas which contains a compound or element used by a microorganism as a
carbon source and optionally energy source in fermentation.’” App. Br. 6
(quoting Wikipedia, https://en.wikipedia.org/wiki/Substrate_(chemistry) (no
website access date is provided by Appellants, but we note that such a
definition was provided at the cited website as of Jan. 12, 2018), and Spec.
145, respectively). Appellants argue the air or oxygen disclosed as being
fed to the vessels in Laatsch does not quality as the gaseous substrate
because air and oxygen are not carbon containing gases and the actual
substrate of Laatsch is starch-containing raw products, not gas. Id. at 6—7.
Regarding claim 1, Appellants also argue that the containers K and J
of Laatsch, determined by the Examiner to disclose the two primary
bioreactors of the claim, are not equivalent to one another, that the transfer
of yeast between containers K to J might amount to inoculation (with
microorganism, i.e., yeast), but that there is no transfer of fermentation broth
between containers J and K as required by claim 1, and that no fermentation
takes place in containers J and K, even if it occurs later (in other containers,
e.g., vessel Oi) under anaerobic conditions. App. Br. 7.
Of the above-identified arguments, we find Appellants’ argument
regarding claim 1 persuasive to the extent that the Examiner has not
established that Laatsch discloses a fermentation broth is produced in either
of its disclosed containers K or J or passed between these containers.
Laatsch suggests that fermentation (i.e., the anaerobic breakdown of an
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energy-rich compound)5 that occurs in its disclosed system happens in
fermentation vessels Oi-Og (Laatsch 5:64—6:7), while aerobic yeast
production happens in containers K and J {id. at 5:21—66). Therefore,
Laatsch fails to disclose steps “c” and “d” of claim 1, which require
fermenting a gaseous substrate in a primary bioreactor to produce a
fermentation broth that is then passed to another primary bioreactor.
Regarding Appellants’ other argument, we note that, while the Specification
discusses the meaning of the claim term “gaseous substrate,” it merely states
that the term “includes any gas which contains a compound or element used
by a microorganism as a carbon source,” which is instructive on the scope of
the term, to a degree, but is not necessarily exclusive in defining the claim
term; we conclude it does not necessarily exclude the components of
atmospheric air based on the evidence of record. See Spec. 145.
Regarding claim 2, Appellants take issue with the Examiner’s
equating Laatsch’s fermentation vessels, e.g., Oi, to the secondary
bioreactors of claim 1, but also to the primary bioreactors of claim 2, arguing
that these consistently-used claim terms cannot be inconsistently equated to
the features of the prior art reference. App. Br. 8. Appellants also argue that
there is no disclosure in Laatsch of the claimed step of “determining whether
one or more of the primary bioreactors of [step] (c) is operational or not,”
because Laatsch does not teach multiple containers/reactors that could be
considered primary bioreactors and, further, because Laatsch does not
disclose that any “measurements are made” except the number of yeast cells
5 See Merriam Webster Dictionary, fermentation, https://www.merriam-
webster.com/dictionary/fermentation, Jan. 12, 2018.
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in container J. Id. Also, Appellants argue Laatsch does not disclose the
claimed “central bleed line” feature because line A of Laatsch, identified by
the Examiner to be just that, does not connect the multiple fermentation
vessels Oi-Og, which are instead connected by several other lines. Id.
Of Appellants’ arguments over claim 2, we are persuaded that Laatsch
does not disclose claim 2’s step “d.” The Examiner has not identified where
or how Laatsch teaches determining whether any of its containers are
functioning as intended, i.e., operational or not. The Examiner cites Laatsch
1:30-44 and 4:30-55 as disclosing that Laatsch’s fermentation process is
“continuous” and “without interruptions” and also disclosing selecting
desired vessels to avoid interruption of the process; however, these concepts
do not equate to determining whether any specific parts of the Laatsch
system are operational or not, much less specifically containers that could be
considered the primary bioreactors of claim 2, and then selecting (if
necessary) an operational primary bioreactor to provide fermentation broth
to a secondary bioreactor.
We conclude independent claims 1 and 2 are not anticipated by
Laatsch; therefore, the claims dependent on claims 1 and 2 are likewise not
anticipated. Lor the reasons set forth above, we reverse the rejection.
Anticipation of Claims 1, 6, and 10—13 by Gaddy
The Examiner determined Gaddy disclosed producing ethanol by
fermentation using Clostridium bacteria fed CO, CO2, and/or Lf, using a
two-stage process where acetate is first produced during a bacterial growth
phase and ethanol is then produced under non-growth conditions. Answer 8
(citing Gaddy in toto, but specifically the Abstract). The Examiner
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determined Gaddy disclosed two primary bioreactors as Gaddy’s seed
maintenance container and a first chemostat container and disclosed a
secondary bioreactor as a second chemostat container connected in series to
the first chemostat container. Id. (citing Gaddy 3:29, 8:18—22). The
Examiner determined that each of the identified first primary bioreactors
was fed a gaseous substrate as a synthesis gas (CO, CO2, and/or EE). Id.
(citing Gaddy 3:29, 8:49). The Examiner also stated that Gaddy disclosed “a
generic ‘central bleed line’,” as claimed. Id.
The Examiner also determined a fermentation broth was passed from
Gaddy’s seed container, which was identified as the claimed first primary
bioreactor, to a first stage bioreactor A, the claimed second primary
bioreactor, via a central bleed line. Id. at 9 (citing Gaddy 8:20). The
Examiner was not specific about what the central bleed line of Gaddy is or
where Gaddy disclosed fermentation broth. The Examiner also, similarly,
determined that the Gaddy fermentation broth was passed from the
bioreactor A, via the central bleed line, to a secondary bioreactor B. Id. at
9-10.
Appellants argue Gaddy does not disclose two primary bioreactors
because the incubator (“seed”) container and growth container (bottles) of
Gaddy have different liquid media. App. Br. 9. Appellants argue, in Gaddy,
there is no passing of fermentation broth from one primary reactor to
another. Id. Appellants also argue Gaddy does not disclose a central bleed
line, used to pass fermentation broth from one primary bioreactor to another
and from a primary bioreactor to a secondary bioreactor, as claimed. Id.
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Of Appellants’ arguments over claim 2, we find the last persuasive.
At best, assuming arguendo all the containers disclosed by Gaddy were
interconnected to pass and receive fluids between them, which is not
expressly disclosed by Gaddy, the Gaddy seed container serially precedes
the growth container, which in turn would serially precede the non-growth
container. There is no specific disclosure of such a set-up, but if it were
utilized there is no specific disclosure of a central bleed line or even a need
therefor.
We conclude independent claim 1 is not anticipated by Gaddy;
therefore the claims dependent on claim 1 are likewise not anticipated. For
the reasons set forth above, we reverse the rejection.
Obviousness
In determining that the claims would have been obvious, the
Examiner combines the teachings of Laatsch and Gaddy (and also Simpson
for disclosure of microorganisms), determining that Gaddy teaches a two-
stage fermentation process utilizing a gaseous substrate (CO, CO2, and/or
H2), microbial culture (Clostridium), liquid nutrients, and fermentation broth
and products (acetate and ethanol) as required by the claims, while Laatsch
discloses the multiple primary and secondary bioreactors (containers J and K
and vessels, e.g., Oi—O3, respectively) connected via a central line (main
flow A and its side-branches), as required by the claims. Answer 11—12.
The Examiner determined it would have been obvious to combine the cited
references to utilize the fermentation process of Gaddy and the plumbing
system of Laatsch, with reasonably expected success, because it would allow
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for the stable fermentation of substrates across multiple bioreactors to
produce and enhance production. Id.
We conclude, in view of the above-cited precedent and evidence of
record, the Examiner established a prima facie case that claims 1,3,6, and
10—13 would have been obvious over the prior art combination. However,
we conclude the balance of evidence does not support that claims 2, 4, 5, 7—
9, and 20-22 would have been obvious.
Appellants present largely the same arguments over the Laatsch and
Gaddy references, combined, as presented over the respective anticipation
rejections. App. Br. 10-11. Regarding claim 1, while we agree with
Appellants that neither Laatsch nor Gaddy individually teaches or suggests
the two primary bioreactors and secondary bioreactor and production and
passing via a central line steps of the claim, combined, Gaddy and Laatsch
render the method of claim 1 obvious. It would have been obvious to look
to the system of Laatsch to produce ethanol via Gaddy’s fermentation
process (which is the process disclosed in the Specification) on a larger scale
than Gaddy’s counter-top process would have allowed.
Regarding claim 2, we remain persuaded, in view of Appellants’
arguments, that neither Laatsch nor Gaddy (nor Simpson) teaches or
suggests step “d” of the claim, which requires,
determining whether one or more of the primary bioreactors of
(c) is operational or not, wherein if one or more of the primary
bioreactor is non-operational, at least a portion of fermentation
broth from one or more operational primary bioreactors is
provided to the one or more secondary bioreactors of (c) via the
central bleed line.
Therefore, the rejection is reversed as to claim 2 and its dependent claims.
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Regarding claim 4, which depends from claim 1, Appellants argue
Laatsch and Gaddy do not disclose using a first primary bioreactor to
inoculate more than one other primary bioreactors or secondary bioreactors
simultaneously (“at substantially the same time”). App. Br. 11. The
Examiner identifies that Laatsch discloses a system where the product
produced in its container J could be streamed to three secondary,
fermentation vessels O1-O3 at the same time; however, Laatsch does not
disclose doing so, but, rather, teaches first filling the first fermentation
vessel Oi to capacity, which then overflows to the next and so on. See
Answer 16—17; cf Laatsch 5:64—74.
Regarding claim 5, which depends from claim 1, Appellants argue
Laatsch does not disclose more than one primary bioreactor. App. Br. 11.
The Examiner contends that because the products produced in Laatsch’s
containers J and K each eventually get to the fermentation containers, this
claim’s limitation is disclosed. We conclude that Laatsch and Gaddy do not
teach or suggest passing a fermentation broth from multiple primary
bioreactors to secondary bioreactors, even though such might be possible
based on Laatsch’s plumbing system (Simpson is not cited for such a
teaching). Laatsch’s Container K is not taught as supplying product to the
fermentation containers, but is disclosed as provided to supply starter to the
yeast-growing container J. It is not clear from the evidence presented why
the skilled artisan would perform a step as required by claim 5.
Regarding claim 6, which depends from claim 1, Appellants argue
“passing broth from one or more primary reactor to another primary reactor
or a secondary reactor is not present in the combination of Laatsch and
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Gaddy.” App. Br. 11. The Examiner determined that Laatsch “clearly
describes increase of volume of fermentation broth in one primary bioreactor
K” and also “increase of volume of fermentation broth in one primary
bioreactor J before passing ‘a portion of fermentation broth’ to inoculate at
least one secondary bioreactor 01.” Answer 5—6. Here, we find the balance
of evidence favors the Examiner’s position. As illustrated and described by
Laatsch, its container J is configured with several outlets to allow the
container to fill to various capacities of 930 L, 1240 L, 1550 L, and 1860 L,
for example, before emptying to supply product to the fermentation vessels,
e.g., Oi. See Laatsch Fig. 1, 5:35—68. Thus, we conclude the combined
prior art teaches or suggest the limitation of claim 6 requiring substantially
increasing the volume of fermentation broth.
Regarding claim 10, Appellants argue Laatsch and Gaddy do not
teach the separate trains required by the claim. However, Laatsch discloses
a primary bioreactor, e.g., container J, connected in a train with the
fermentation vessel Oi, such that the bioreactors would be operated in a train
via the main flow A. Such a process comports with the two-stage
fermentation process disclosed by Gaddy.
Appellants do not present separate arguments for claims 3 and 11—13
other than those presented regarding the anticipation rejections over Laatsch
and Gaddy. App. Br. 11.
SUMMARY
The anticipation rejection over Laatsch is reversed.
The anticipation rejection over Gaddy is reversed.
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The obviousness rejection is affirmed as to claims 1, 3, 6, and 10—13,
and is reversed as to claims 2, 4, 5, 7—9, and 20-22.
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)(l)(iv).
AFFIRMED-IN-PART
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