DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Claims
Claims 1-3 and 5-21 are pending in this application. Claims 1 and 5-14 are under examination. Claims 2-3 and 15-21 are withdrawn.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1 and 5-14, in the reply filed on 03/12/2026 is acknowledged. Claims 2-3 and 15-21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention(s), there being no allowable generic or linking claim.
Specification
The disclosure is objected to because of the following informalities:
Page 18, [0092] states, “THYM slurry is mixed with… organic acid… to lower the pH to >4 and kill yeast cells.” The greater than sign “>” should be changed to a less than sign “<” since the disclosure states the acid is used to lower the pH and kill yeast cells. The sentence would then read as follows, “THYM slurry is mixed with… organic acid… to lower the pH to <4 and kill yeast cells.” Appropriate correction is required.
Claim Objections
Claim 13 is objected to because of the following informalities:
Claim 13 line 3 recites, “in volume ratios of 1:2:2, respectively. to obtain a pH greater than 4.” The period after “respectively” should be removed and replaced with a comma. The claim would then read as follows: “in volume ratios of 1:2:2, respectively, to obtain a pH greater than 4.” Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1 and 5-14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 lines 4-6 recite, “the brewery wastes comprising a trub…”, “a volume ratio of trub to spent yeast…” and “a volume ratio of hot trub to cold trub.” However, it is unclear if the recitations in line 4 and 5 of “the brewery wastes comprising a trub…” and “a volume ratio of trub to spent yeast…” are referring to any trub, e.g., hot trub or cold trub, or if they are referring to the combination of hot trub and cold trub, i.e., the total trub waste. For the purpose of examination, the limitations recited in lines 4 and 5 regarding “trub” will be viewed as a combination of hot trub and cold trub, i.e., the total trub waste.
Claim 13 recites, “comprising mixing the THYM with… organic acid mix… to obtain a pH greater than 4.” However, it is unclear how adding an organic acid mixture will raise the pH to greater than 4. Upon review of the specification, it states in [0092] that the acid is added to lower the pH and kill yeast cells. Thus, the limitation of claim 13 is still viewed as unclear upon further review of the specification.
Claims 5-12 and 14 are included in the rejection because they depend from a rejected base claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 14 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 14 recites, “wherein a volume ratio of trub to spent yeast in the THYM is between approximately 1:5 to 5:1, inclusive.” However, claim 1 lines 4-5 recite, “a volume ratio of trub to spent yeast is between approximately 1:5 and 5:1, inclusive.” Thus, claim 14 does not further limit claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 5-10 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Rachwal et al., Utilization of brewery wastes in food industry, Peer J., in view of Phipps et al., Utilizing craft brewing side streams of trub, hops and yeast mix (THYM) as a novel feed additive and an alternative to monensin in beef cattle diets, Journal of Animal Science Vol. 98, Suppl. S2, and Almena et al., Optimising food dehydration processes: energy-efficient drum-dryer operation, Energy Procedia 161, 2019, and as evidenced by Lewis et al, Essays in Brewing Science, Springer, 2006
Regarding claims 1 and 14, Rachwal teaches a method to produce a food product (beer brewing generates by-products, these wastes are suitable for reuse in the food industry and as a feed and food additives; Abstract), the method comprising collecting brewery wastes from at least one of: a fermenter or a whirlpool, as required by claim 1 (residual yeast is removed from the fermentation vessel, hot trub, which contains spent hops is removed from the wort using a separator; pgs. 1-2 paragraph 1, Figure 1).
Rachwal discloses the brewery wastes comprise a trub and yeast mix, as required by claim 1 (dried trub and yeast mixture is used as feed; pg. 6 Brewery industry by-products as animal feed paragraphs 4-5). However, Rachwal is silent to hops being in the mixture, as required by claim 1.
Phipps teaches a method to produce a food product, the method comprising collecting brewery wastes (evaluate craft brewing side streams; Abstract); the brewery wastes comprising a trub, hops, and yeast mix (THYM) as a replacement for monensin in growing beef cattle rations, where the THYM has no negative impact on animal performance (Abstract). It is noted that “trub” in Phipps reference is being viewed as hot trub and cold trub.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Rachwal to incorporate the teachings of Phipps by having the brewery wastes comprise the THYM mixture of claim 1 because THYM can be used as a potential replacement for monensin in growing beef cattle rations and THYM has no negative impact on animal performance, as recognized by Phipps (Abstract).
Rachwal teaches the volume of hot trub is 0.2-0.4% and the volume of spent yeast is 1.5-3% (pg. 4 Hot trub paragraph 1; pg. 4-5 Brewer’s spent yeast (BSY) paragraph 1). Rachwal in view of Phipps is silent as to the amount of cold trub produced as brewery waste and used in feed.
Lewis reviews brewing qualities and processes, looking at process causes and effects that affect beer properties such as color, foam and haze (Title; pg. vii-viii, Contents; pg. v, Preface, paragraph 1). As evidenced by Lewis, cold trub (cold break) is present in brewery waste at 40 to 350 mg/L (pg. 48 Chapter 5, Breaks, paragraph 1).
When looking at the amount of trub (hot and cold) and spent yeast produced in brewery waste, as discussed in Rachwal and evidenced by Lewis, this calculates to be a volume ratio of trub (which is considered to be a combination of hot trub and cold trub) to spent yeast of approximately 1:14.7 to 1:3.4. This overlaps the range of 1:5 and 5:1 of trub to spent yeast, as required by claims 1 and 14. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Additionally, when calculated the volume ratio of hot trub to cold trub is approximately 100:1 to 5.7:1. This is near the ratio of hot trub to cold trub of approximately 5:1, as required by claim 1. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Rachwal in view of Phipps as evidenced by Lewis to have the ratio of hot trub to cold trub be within the claimed ratio range because Rachwal teaches that the amount of hot trub can vary and could be higher or lower than these approximations (in general these residues represent a certain percentage; pg. 4 Hot trub paragraph 1), allowing it to be within the claimed range.
Rachwal teaches providing the food product by dewatering the THYM, as required by claim 1 (feed contained a dried trub-yeast mixture; pg. 6 Brewery industry by-products as animal feed paragraph 4). However, Rachwal is silent as to the moisture content of the THYM.
Alema teaches a method to produce a dried food product from a wet slurry using a drum dryer to obtain a moisture content of below 10%, which moisture content ensures safety and extends shelf life of dried products (Abstract; pg. 176 1. Introduction paragraphs 2-3). This overlaps the claim 1 range of a moisture content between 3-93%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Rachwal in view of Phipps to incorporate the teachings of Almena by having the moisture content be within the claim 1 range because this moisture content ensures safety and extends shelf life of dried products, as recognized by Almena (Abstract; pg. 176 1. Introduction paragraphs 2-3).
Regarding claims 5 and 6, Rachwal in view of Phipps and Alema teach the method of claim 1, as discussed above. Rachwal is silent as to the means of drying the dried trub-yeast mixture.
Almena teaches wherein the dewatering comprises feeding wet slurry through a double drum dryer with a center feed, as required by claims 5 and 6 (Abstract; pg. 177 Fig. 1). Alema discloses using an optimized double drum dryer reduces energy demand during processing and achieves a more sustainable and efficient drying technology (Abstract).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Rachwal in view of Phipps and Almena to further incorporate the teachings of Almena by using a double drum dryer with a center feed for dewatering as claimed because an optimized double drum dryer reduces energy demand during processing and achieves a more sustainable and efficient drying technology, as recognized by Almena (Abstract).
Almena discloses the double drum dryer has two drums, as required by claim 6 (Abstract; pg. 177 Fig. 1). Almena teaches each drum is heated to an operating temperature above 100°C (pg. 176, 2. Process description, paragraph 1). This overlaps the drum temperature of 85-105°C, as required by claim 6. See MPEP 2144.05(I).
Regarding claim 7, Rachwal in view of Phipps and Alema teach the method of claim 6, as discussed above. Alema teaches the residence time (seconds the slurry/THYM is exposed to a heated surface on at least one drum) is dependent on the drums rotating velocity, which can be adjusted, and is dependent on the slurry thickness on the drum, where thicker slurries require longer residence times and thinner slurries require shorter residence time and this residence time can be optimized (pg. 176, 2. Process description, paragraph 1; pg. 180, 6. Conclusions, paragraph 1).
Alema does not limit the slurry (THYM) exposure to a heated surface to a specific residence time as long as the method is optimized and the required final moisture content is reached (residence time of operation is defined by the rotation speed and adjusted based on the final moisture content of the product; pg. 178, 4. Energy-efficient operation conditions (ii)). Thus, a person of ordinary skill would have been able to arrive at a time as claimed taking into account the parameters as discussed by Alema.
Additionally, there are only so many combinations of exposure time on the heated drum surface (residence time), speed of rotation, slurry thickness and final moisture content that can be applied in the method, giving a finite number of solutions. Therefore, a person of ordinary skill through routine experimentation would have been able to find a combination which would provide the desired final moisture content, meeting the needs at hand. Thus, the exposure time on the heated surface of at least one drum can be adjusted to meet the needs at hand and is a result-effective variable.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Rachwal in view of Phipps and Alema to further incorporate the teachings of Alema by having the exposure time be any amount of time on the heated drum surface including the claimed 90 seconds because exposure time is considered a result effective variable that can be easily found through routine experimentation as there are a finite number of solutions to achieve the desired moisture content. Noting, “[W]here 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.” See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (see MPEP § 2144.05, II.).
Regarding claim 8, Rachwal in view of Phipps and Alema teach the method of claim 6, as discussed above. Alema teaches the slurry is scraped from a heated surface of at least one drum after the at least one drum has rotated approximately 180 degrees from when the slurry contacted the at least one drum. After the slurry is smoothed onto the rollers at the center feed, there is approximately 180 degrees of rotation until the dried slurry is scraped from the roller (pg. 177 Fig. 1).
Regarding claim 9, Rachwal in view of Phipps and Alema teach the method of claim 6, as discussed above. The limitation, “wherein the double drum dryer flash pasteurizes the THYM” is considered a result of the exposure time on at least one drum surface and the temperature of the at least one drum. Modified Rachwal does not specifically state its drum drying process flash pasteurizes the THYM slurry. However, since modified Rachwal teaches a substantially identical method of drum drying with the claimed drum temperature and drum exposure time, which can be adjusted to meet the needs at hand, it is considered to have the same result on the THYM slurry, specifically wherein the double drum dryer flash pasteurizes the THYM. Thus, the double drum dryer of modified Rachwal would necessarily perform a flash pasteurization on the THYM slurry, absent convincing arguments or evidence to the contrary. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977), In re King, 801 F.2d 1324, 231 USPQ 136 (Fed. Cir. 1986), and MPEP §2112.02 (I).
Regarding claim 10, Rachwal in view of Phipps and Alema teach the method of claim 6, as discussed above. Alema teaches the slurry is fed through the double drum dryer at a speed and temperature to provide a moisture content of below 10% (input steam temperature and rotation speed of the drums are adjusted and chosen according to the desired final moisture content of the product and defines the residence time of the operation), which moisture content ensures safety and extends shelf life of dried products (Abstract; pg. 176 1. Introduction paragraphs 2-3, pg. 177 Fig. 1, pg. 178, 4. Energy-efficient operation conditions (i-ii)). This overlaps the claimed range of a moisture content between 4-11%. See MPEP 2144.05(I).
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Rachwal et al., Utilization of brewery wastes, Peer J., in view of Phipps et al., Utilizing craft brewing side streams of THYM, Journal of Animal Science Vol. 98, Suppl. S2, and Almena et al., Optimising food dehydration processes, Energy Procedia 161, 2019 as applied to claim 1 above, and further in view of Bryant et al., Spent Craft Brewer’s Yeast Reduces Production of Methane and Ammonia by Bovine Rumen Microbes, Frontiers in Animal Science, October 2021, Volume 2.
Regarding claims 11 and 12, Rachwal in view of Phipps and Almena teach the method of claim 1, as discussed above. Rachwal is silent as to the amount of combined alpha-hop and beta-hop acid levels in the THYM mixture.
Bryant teaches the correlation between the quantities of hop acids in spent yeast and the reduction of methane and ammonia in bovine rumen microbes, inhibiting methane and ammonia production to a greater degree than the industry-standard antibiotic monensin (pg. 1 Abstract). Bryant analyzed six spent yeast samples from craft beer where the combined alpha-hop and beta-hop acids levels ranged from 4.3 mg/g from sample craft yeast A to 71 mg/g from sample craft yeast F (pg. 7 paragraph 1, Table 1). This is within the claimed range of greater than 2 mg/g, as required by claim 11, and less than 100 mg/g, as required by claim 12.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Rachwal in view of Phipps and Almena to incorporate the teachings of Bryant by having the hop acids levels within the claimed ranges because these quantities of hop acids reduce the production of methane and ammonia in bovine rumen microbes, inhibiting methane and ammonia production to a greater degree than the industry-standard antibiotic monensin, as recognized by Bryant (pg. 1 Abstract).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Rachwal et al., Utilization of brewery wastes, Peer J., in view of Phipps et al., Utilizing craft brewing side streams of THYM, Journal of Animal Science Vol. 98, Suppl. S2, and Almena et al., Optimising food dehydration processes, Energy Procedia 161, 2019 as applied to claim 1 above, and further in view of BASF Aktiengesellschaft, GB 1582397 (hereinafter Basf), and in view of Linton et al., US 4055667.
Regarding claim 13, Rachwal in view of Phipps and Almena teach the method of claim 1, as discussed above. Rachwal teaches prior to the dewatering, further comprising mixing the THYM with organic acid (brewer’s spent yeast (BSY) can be used in dried form, before administration in dried form to animals, addition of organic acid to the yeasts). Rachwal discloses the organic acids are added to inactivate the yeasts. Rachwal does not specify which combination of organic acids are used, such as a mixture of formic, acetic and propionic acids, but only states “organic acids” are used (pg. 7, first partial paragraph at top of page). It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Rachwal in view of Phipps and Almena to use any organic acids mixture, including a mixture of formic, acetic and propionic acids as claimed, to inactivate the yeasts. See MPEP 2144.08.
Regardless, Basf teaches a method to produce a food product (feed supplement) comprising liquid brewers’ yeast (pg. 1 L39-41). Basf discloses adding organic acid to the liquid brewers’ yeast, where adding the organic acid does not have any of the disadvantages of boiling, but instead is a lower cost investment, has fewer labor requirements for operating a plant, increases the digestibility of the nutrients in the yeast and has no drop in the yeast’s nutritional value (pg. 1 L33-45). Basf teaches a mixture of two or more organic acids may be used, where the organic acids are mixed with the liquid brewers’ yeast, where the mixture comprises 0.5-4 wt.% organic acids, or in other words 0.005 to 0.04 parts of organic acid mix (pg. 2 L3-9). This overlaps the claimed range of 0.003 to 0.03 parts organic acid. See MPEP 2144.05(I). Basf teaches the mixture of two or more organic acids, wherein the organic acids comprise formic, acetic and propionic acids (pg. 2 L7-9). Basf doesn’t limit the proportions of each organic acid that can be used but only states that it is preferred that propionic acid is used as one of the acids (pg. 2 L7-9), allowing the acids to be in any ratio, including the claimed ratio of formic, acetic and propionic.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Rachwal in view of Phipps and Alema to incorporate the teachings of Basf by having the organic acids be a mix of formic, acetic and propionic acids as claimed in the amounts and proportions as claimed because this increases digestibility of the nutrients, does not cause a drop in nutritional value of the yeast and requires less labor for operating and lower cost investment than other methods, as recognized by Basf (pg. 1 L33-45).
Rachwal is silent as to the pH obtained after adding the organic acid. Linton teaches a method to obtain a feed supplement using a mixture that comprises spent brewers’ yeast, where the yeast is inactivated (destroyed) using an acid and the pH is adjusted to below 5 in order to inhibit mold growth (Abstract, C3 L15-25, C8 L4-8). This overlaps the claimed pH range of greater than 4. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Rachwal in view of Phipps, Alema and Basf to incorporate the teachings of Linton by obtaining a pH within the claimed range because pH of below 5 and within the claimed range inhibits mold growth, as recognized by Linton (C8 L4-8).
Rachwal does not recite volume ratios for the mixture of formic, acetic and propionic acids. However, as noted above Rachwal does state the organic acids are added to inactivate the yeasts (pg. 7, first partial paragraph at top of page) and Rachwal in view of Phipps, Alema, Basf and Linton state the yeast is inactivated (destroyed) using an acid and the pH is adjusted to below 5 in order to inhibit mold growth, as recognized by Linton (C3 L15-25, C8 L4-8). The instant specification teaches an organic acid mix is mixed with the THYM slurry to lower the pH and kill yeast cells [0092]. Thus, it would have been obvious to a person of ordinary skill in the art to incorporate any ratio of formic, acetic and propionic acids, including the claimed ratios, in order to achieve the inactivation of the yeast cells (killing of the yeast cells) and a pH below 5 to inhibit mold growth, as discussed in modified Rachwal.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE GERLA whose telephone number is (571)270-0904. The examiner can normally be reached Mon.-Wed. and Fri. 7-12 pm; Th. 7-2pm.
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/S.R.G./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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