Appeal no. 1997-3953
Application 08/392,615
Henick-Kling, et al. (Henick-Kling), “Inhibition of Bacterial Growth and Malolactic
Fermentation in Wine by Bacteriophage,” Journal of Applied Bacteriology, Vol. 61, pp.
287-293 (1986).
The Examiner’s Answer (paper no. 39) refers to a non-final rejection (paper no. 28)
for the statement of the rejection; paper no. 28, in turn, refers to the final rejection (paper
no. 20) in parent application serial no. 08/273,772 for the statement of the rejection. That
rejection applied to claims 1 through 6, claims since amended or canceled. Needless to
say, the examiner’s handling of this procedural matter was improper under the rules extant
at the time the Answer was written. Nevertheless, we shall decide the issues raised by the
rejection as they apply to the claims in their present form. As matters now stand, claims 3
through 5 and 8 through 22 stand rejected under 35 U.S.C. § 103 as unpatentable over
Henick-Kling.
We reverse.
DISCUSSION
According to the specification (pages 1 and 2):
Lactic acid bacteria (LAB) are of considerable importance in winemaking . .
. [M]alolactic fermentation (MLF), the conversion of L-malic acid to L-lactic
acid and CO by certain strains of lactic acid bacteria [reduces the acidity of
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wine and] contributes much to the final wine quality.
Typically, spontaneous MLF occurs in wines of pH above 3.4 and is much
delayed and irregular in wines of pH below 3.4 where MLF is most desirable
for deacidification. This is due to the strong inhibition of growth of LAB at
low pH. Inoculation of such wines with a large number of viable bacteria
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