Douglas Adam. Whitcher et al.

Patent Trials and Appeals Board

Sep 13, 2019

14343395 - (D) (P.T.A.B. Sep. 13, 2019)

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.
14/343,395 03/07/2014 Douglas Adam Whitcher 2011P01331WOUS 6180
24737 7590 09/13/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
MURPHY, VICTORIA
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
09/13/2019 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DOUGLAS ADAM WHITCHER,
BRADLEY STEWART KOEPPEL,
BERNHARD LEWIS HABERLAND, and
JEREMY WEBSTER BLAIR
____________________

Appeal 2019-000746
Application 14/343,3951
Technology Center 3700
____________________

Before PHILIP J. HOFFMANN, CYNTHIA L. MURPHY, and
TARA L. HUTCHINGS, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner’s rejection of claims 1–3, 5, 9–11, 13, and 16–18. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 “The real party in interest is KONINKLIJKE PHILIPS N.V.” Appeal
Br. 2.
Appeal 2019-000746
Application 14/343,395

2
According to Appellants, their invention relates to “a portable
apparatus for concentrating oxygen by adsorption from air[,] and methods
for using such apparatus.” Spec. ¶ 2. Claims 1, 9, and 16 are the
independent claims on appeal. Below, we reproduce claim 1 as illustrative
of the appealed claims.
1. A portable oxygen concentrator configured to
operate in two or more modes of operation, the two or more
modes of operation including a first mode of operation and a
second mode of operation, wherein the first mode of operation
includes pulse delivery of oxygen-enriched gas, and wherein the
second mode of operation includes continuous delivery of
oxygen-enriched gas, comprising:
a plurality of sieve beds configured to absorb nitrogen
from air, wherein the plurality of sieve beds includes a first sieve
bed and a second sieve bed, wherein the first sieve bed includes
a first upstream port and a first downstream port, wherein the
second sieve bed includes a second upstream port and a second
downstream port;
an oxygen side balance valve coupled to the first
downstream port and the second downstream port, the oxygen
side balance valve configured to balance bed pressure in the first
and second sieve beds;
at least one reservoir, communicating with the first
downstream port and the second downstream port, configured to
store oxygen-enriched gas exiting from the first downstream port
and the second downstream port;
a compressor configured to deliver air at one or more
desired pressures to the first upstream port and the second
upstream port;
a proportional oxygen delivery valve communicating with
the reservoir via a delivery line to deliver the oxygen-enriched
gas;
Appeal 2019-000746
Application 14/343,395

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a mass flow sensor configured to generate a signal
conveying a flow measurement of a mass flow rate of the
oxygen-enriched gas through the delivery line;
an oxygen sensor configured to generate an oxygen signal
conveying a measurement of oxygen-concentration in the
delivery line; and
a controller configured to control a degree of opening and
closing of the proportional oxygen delivery valve to deliver the
oxygen-enriched gas from the reservoir to the user, based on the
mass flow measurement and the oxygen-concentration
measurement, at a constant mass of oxygen,
wherein the controller is further configured to control the
degree of opening and closing of the proportional oxygen
delivery valve to deliver the oxygen-enriched gas from the
reservoir to the user at a constant volume of oxygen-enriched gas
based on the mass flow measurement and based on ambient
pressure, and
wherein the controller is further configured such that,
while the portable oxygen concentrator operates in the first mode
of operation, the oxygen-enriched gas is delivered through the
proportional oxygen delivery valve in pulses timed to respiratory
activity of the user, and while the portable oxygen concentrator
operates in the second mode of operation, the oxygen-enriched
gas is delivered continuously through the proportional oxygen
delivery valve, and wherein the controller is configured to
increase a target reservoir pressure responsive to the measured
oxygen-concentration being below a concentration threshold
value.

REJECTIONS AND PRIOR ART2
The Examiner rejects the claims as follows:
I. Claims 1–3, 9–11, 16, and 18 under 35 U.S.C. § 103(a) as
unpatentable over Sward et al. (US 2009/0145428 A1, pub.

2 See, e.g., Answer 2.
Appeal 2019-000746
Application 14/343,395

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June 11, 2009) (“Sward”) and Bliss et al.
(WO 2007/118055 A2, pub. Oct. 18, 2007) (“Bliss”); and
II. Claims 5, 13, and 17 under 35 U.S.C. § 103(a) as unpatentable
over Sward, Bliss, and McFarland, Jr. (US 6,729,327 B2, iss.
May 4, 2004) (“McFarland”).

ANALYSIS
Rejection I
As set forth above, independent claim 1 recites, in relevant part,
a mass flow sensor configured to generate a signal
conveying a flow measurement of a mass flow rate of the
oxygen-enriched gas through the delivery line; . . . and
a controller configured to control a degree of opening and
closing of the proportional oxygen delivery valve to deliver the
oxygen-enriched gas from the reservoir to the user, based on the
mass flow measurement and the oxygen-concentration
measurement, at a constant mass of oxygen.
Appeal Br., Claims App. (emphasis added). The Examiner’s determination
of obviousness relies upon a finding that Sward teaches the mass flow sensor
and the controller configuration required by independent claim 1. See Final
Action 4–5.
In response to Appellants’ Appeal Brief, the Examiner agrees with
Appellants that Sward does not expressly describe a mass flow rate sensor,
as claimed. See, e.g., Answer 3. However, according to the Examiner,
Sward’s sensor 140 provides a flow measurement that “is easily convertible
to mass flow rate” (see Final Action 5; see also Answer 3), and Sward’s
control unit 190 delivers oxygen-enriched gas based on this flow
measurement (see Final Action 4).
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Application 14/343,395

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Appellants argue that Sward’s control unit 190 “does not control
delivery of the oxygen gas based on the [mass] flow measurements required
by the claims.” Appeal Br. 13. Appellants persuade us by this argument.
Even if Sward’s flow measurement could be “easily convertible to mass
flow rate” (Answer 5), the Examiner does not establish why one of ordinary
skill would configure Sward’s control unit 190 to do such a conversion,
when Sward “does not indicate any need for control based on mass flow.”
Reply Br. 2.
Thus, based on the foregoing, we do not sustain the Examiner’s
obviousness rejection of independent claim 1. We also do not sustain the
Examiner’s rejection of independent claims 9 and 16 that the Examiner
rejects with, and which include recitations similar to those discussed above
with respect to, independent claim 1. Further, we do not sustain the
Examiner’s rejection of claims 2, 3, 10, 11, and 18 that depend from, and
which the Examiner rejects with, the independent claims.

Rejection II
The Examiner does not rely on McFarland to disclose anything that
would remedy the above-discussed deficiency in the independent claims’
rejection. Thus, we do not sustain the Examiner’s obviousness rejection of
dependent claims 5, 13, and 17.

Appeal 2019-000746
Application 14/343,395

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DECISION
We REVERSE the Examiner’s obviousness rejections of claims 1–3,
5, 9–11, 13, and 16–18.

REVERSED