Ex Parte 5,964,222 et al

Patent Trial and Appeal Board

May 16, 2016

90012355 (P.T.A.B. May. 16, 2016)

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.
90/012,355 06/14/2012 5,964,222 5317-9 2825
15933 7590 05/16/2016
The Law Office of Roger S. Thompson
116 Pinehurst Ave
Suite D-14
New York, NY 10033
EXAMINER
GRAHAM, MATTHEW C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
05/16/2016 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte HYPOXICO, INC.1
Appellant, Patent Owner
____________________

Appeal 2015-004931
Reexamination Control 90/012,355
Patent No. 5,964,2222
Technology Center 3900
____________________

Before JOHN C. KERINS, DANIEL S. SONG, and BRETT C. MARTIN,
Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 Hypoxico, Inc. is the real party in interest (Appeal Brief (hereinafter "App.
Br.") 4).
2 Issued October 12, 1999 (hereinafter “the ’222 patent”).
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Claims 6–11, 13–19, 26–32, 34, and 35 are subject to a Final
Rejection rejected in the present reexamination, and are appealed by the
Patent Owner under 35 U.S.C. §§ 134(b) and 306 (App. Br. 6; Answer
(hereinafter “Ans.”) 2). We have jurisdiction under 35 U.S.C. §§ 134(b) and
306. In addition to the Appeal Brief, the Patent Owner also relies on a Reply
Brief (hereinafter “Reply Br.”), and various declarations of record including
the declarations of Messrs. Ito, Thompson and Rhodes.
The ’222 patent is directed to a hypoxic tent system wherein oxygen
depleted air is transmitted inside the tent (Abstract). Representative
independent claim 6 reads as follows (App. Br. Claims App., amendments
incorporated):
6. A portable travel system for providing a low-
oxygen environment to a user for sleeping comprising:
a breathing tent comprising soft walls supported by a
supporting structure and an entry defining a closed space,
accessible to the user through said entry being selectively
closable so that when closed, the tent is substantially isolated
from the outside environment;
a gas-processing device having an outlet communicating
with said closed space and transmitting an oxygen-depleted gas
mixture through said outlet into said closed space.

The Examiner rejects the following claims under 35 U.S.C. § 103(a)
as unpatentable over the noted combination of references in the record:
1. Claims 6–11, 13–16, 18, 19, 26–30, 32, 34 and 35 over JP ’9583
in view of Gamow.4

3 JP 3-16958 issued to Kawatomo (references to the English translation of
record).
4 U.S. Patent No. 4,974,829, issued December 4, 1990.
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2. Claims 17 and 31 over JP ’958, Gamow, and Baugh.5
3. Claims 26–30 and 32 over JP ’958, Gamow, and Frey.6
4. Claim 31 over JP ’958, Gamow, Frey, and Baugh.
We AFFIRM.

ISSUES
The following issues have been raised in the present appeal.
1. Whether the Examiner erred in finding JP ’958 is prior art.
2. Whether the Examiner erred in concluding that various claims
would have been obvious based on the combination of JP ’958
and Gamow.
3. Whether the Examiner erred in concluding that claims 34 and
35 would have been obvious based on the combination of JP
’958 and Gamow.

ANALYSIS
We note that only those arguments timely made in the briefs of record
in this appeal have been considered. Other arguments not made or those not
properly presented to the Board have not been considered and are deemed to
be waived. See 37 C.F.R. § 41.37 (c)(1)(iv) (“Except as provided for in
§§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the
appeal brief will be refused consideration by the Board for purposes of the
present appeal”).

5 U.S. Patent No. 5,935,516, issued August 10, 1999.
6 U.S. Patent No. 4,439,213, issued March 27, 1984.
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The Patent Owner groups claims 6–11, 13–16, 18, 19, 26–30 and 32
together as “GROUP 1” and argues these claims together (App. Br. 11).
Thus, we deem claim 6 representative. The Patent Owner also groups
claims 34 and 35 together as “GROUP 2” and argues these claims together
(App. Br. 21).

Group 1: Claims 6–11, 13–16, 18, 19, 26–30 and 32
As noted above, each of the rejections is based on combination of JP
’958 and Gamow. The Examiner finds that JP ’958 discloses the claimed
invention except that the disclosed enclosure is not a tent (Ans. 4). The
Examiner further finds that “Gamow shows a portable enclosure with a
controlled atmosphere for the purpose of athletic training. The enclosure
may be a tent as noted in column 9, lines 4-18. See Figure 1.” (Id.). The
Examiner concludes that “[i]t would have been obvious to one of ordinary
skill in the art to have made the room of JP ’958 into an enclosure, such as a
tent, in view of the teaching of Gamow so as to provide portability of the
training environment as taught by Gamow.” (Id.). Thus, contrary to the
Patent Owner’s argument (App. Br. 17), the Examiner has set forth a
sufficient prima facie case of obviousness.

JP ’958 Is Not Prior Art
The Patent Owner argues that JP ’958 is not a prior art reference
because it is not a printed publication within the meaning of 35 U.S.C.
§ 102(b) (App. Br. 11–15). Relying on declarations of Messrs. Ito,
Thompson and Rhodes, the Patent Owner argues that in accordance with the
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procedures in the Japanese Patent Office (hereinafter “JPO”), only the
“claims, bibliographic information and drawings of a Utility Model
application, as well as a reference designator list identifying the elements
shown in the drawings of that application” are initially published in the
Official Gazette of the JPO (App. Br. 12, citing Ito Declaration (hereinafter
“Ito Decl.”) ¶ 6). The Patent Owner argues that “[a]s of the date of
publication of the bibliographic information, the single microfilm copy of
the complete application was laid open for public inspection in the JPO (no
copies were pre-made).” (Id., citing Ito Decl. ¶ 7). Based on these facts, the
Patent Owner asserts:
[t]he law is clear that, where a foreign application is only
available as a single [microfilm] copy in the files of a foreign
patent office, and only bibliographic identifying material is
published, the underlying patent application itself is not a
‘printed publication’ within the meaning of 35 U.S.C. § 102(b).
In re Tenney, 117 U.S.P.Q. 348[, 254 F.2d 619] (C.C.P.A. 1958).
(Id. at 14).
The Examiner finds:
The complete specification of the patent application for JP
’958 was laid open for public inspection on the publication date
of 02/20/1991; therefore, it was made available to interested
persons. The remaining question is whether interested persons,
exercising reasonable diligence, could have located the complete
specification. . . . Upon entry of the utility model publication
number from the Official Gazette, one could access/view the
publication and print it on paper if desired. Therefore, one of
ordinary skill, exercising reasonable diligence, could have
located and printed the published application for JP ’958.
(Ans. 9).
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The Patent Owner’s argument is unpersuasive for various reasons.
Firstly, “[t]he determination of whether a reference is a ‘printed publication’
under 35. U.S.C. § 102(b) involves a case-by-case inquiry into the facts and
circumstances surrounding the reference’s disclosure to members of the
public.” In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004).
Although the Patent Owner relies on Tenney for its position and seeks to
distinguish In re Wyer, 655 F.2d 221 (CCPA 1981) (App. Br. 14–15), the
facts of this case are more similar to the facts of Wyer and Bruckelmyer v.
Ground Heaters, Inc., 445 F.3d 1374 (Fed. Cir. 2006), and Tenney is
distinguishable.
In Bruckelmyer, the issue was whether two figures of a Canadian
application that were withdrawn, and thus, absent in the issued patent but
still of record in the prosecution history, are part of the subsequently
published patent. Bruckelmyer, 445 F.3d at 1377. Bruckelmyer argued that
a patent application located in a foreign patent office that has been laid open
for inspection is not a printed publication, especially considering absence of
evidence indicating that the contents of the file wrapper were disseminated
or copied. Id. at 1377–78.
The court disagreed explaining:
[t]he “printed publication” provision of § 102(b) “was designed
to prevent withdrawal by an inventor . . . of that which was
already in the possession of the public.” . . . Whether a given
reference is a “printed publication” depends on whether it was
“publicly accessible” during the prior period. A given reference
is “publicly accessible”
upon a satisfactory showing that such document has
been disseminated or otherwise made available to
the extent that persons interested and ordinarily
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skilled in the subject matter or art exercising
reasonable diligence, can locate it and recognize
and comprehend therefrom the essentials of the
claimed invention without need of further research
or experimentation.
Bruckelmyer, 445 F.3d at 1378 (internal citations omitted); see also Wyer,
655 F.2d at 226.
With respect to Wyer, the issue was whether an Australian patent
application laid open for public inspection was a printed publication if only
an abstract of the application was published by the Australian Patent Office.
Wyer, 655 F.2d at 223, 226. The court found that although there is no
evidence of actual viewing or dissemination of any copy of the application:
there is no dispute that the records were maintained for this
purpose. Given that there is also no genuine issue as to whether
the application was properly classified, indexed, or abstracted,
we are convinced that the contents of the application were
sufficiently accessible to the public and to persons skilled in the
pertinent art to qualify as a ‘printed publication.’
Id. at 226.
In considering Wyer, the court in Bruckelmyer also explained:
The existence of a published abstract that would have allowed
one skilled in the art exercising reasonable diligence to locate the
foreign patent application and the fact that the application was
classified and indexed in the patent office, were central to the
Wyer court’s conclusion that the application was “publicly
accessible.”
Bruckelmyer, 445 F.3d 1379.
Thus, the decisions in Bruckelmyer and Wyer found the published
documents to be roadmaps to their respective application files, and that, in
view of the disclosure in that document, “no reasonable trier of fact could
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find that a person of ordinary skill in the art interested in the subject matter
of the patents in suit and exercising reasonable diligence could not locate”
the subject application. Id. at 1379; Wyer, 655 F.2d at 222, 226. In the
present case, the allegedly incomplete JP ’958 application as published in
the JPO Official Gazette clearly would have been a roadmap to the complete
application.
In contrast, in Tenney, the patent application at issue was recorded “on
microfilm, along with a large amount of other technical material,” and was
listed in the Bibliography at the Library of Congress with the designation:
PBL 83291. Reichspatentamt, Berlin. German patent
applications on aircraft. (FIAT Microfilm Reel B 134, Frames
8522-9442) 1937-1945. 942 f. Price: Microfilm—.$9.00—
Enlargement print— $120.00 In German.
Tenney, 254 F.2d at 620–21.
No other information or identification of the material recorded on the
frames of the microfilm was present, and the Bibliography was found to
include incorrect information in that “[t]he cited frames of the microfilm
have no relation to aircraft.” Id. at 621. The court found that under such
facts, the microfilmed document at issue was not a printed publication. The
present case does not pose issues with respect to vague and incorrect
information. The facts of the present appeal are more closely aligned with
Bruckelmyer and Wyer than with Tenney.
In view of the above, we agree with the Examiner that the complete JP
’958 application is a printed publication with an effective date of February
20, 1991.
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Secondly, the allegedly incomplete JP ’9587 document published in
the Official Gazette of the JPO (see Ito Decl. ¶ 11, Exhibit A; Thompson
Decl. (dated Dec. 17, 2012), Exhibit D) contained “claims, bibliographic
information and drawings” and “reference designator list identifying the
elements shown in the drawings of that application,” i.e., information
sufficient to support the Examiner’s finding that it discloses each of the
limitations of claim 6 for which JP ‘958 is cited. In particular, according to
the Patent Owner, such information would have included Figures 1 and 2,
Figure 1 being reproduced below.

Figure 1 reproduced above shows “a schematic drawing showing an
embodiment of a position of a training room of the present invention.”
The allegedly incomplete JP ’958 document would have also included
a listing of the components shown in the figures as follows:
1: Training room
2: Oxygen enrichment air unit
3: Oxygen enrichment membrane
4: Air inlet
5: Oxygen enriched air outlet
6: Oxygen reduced air outlet
7: Blower
8: Suction blower

7 Application Number H01-78333.
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9: Booth or room
Moreover, the allegedly incomplete JP ’958 document would have
further set forth the invention through its claim, which states:
(1) A training room comprising a substantially sealed
training room and an oxygen enrichment unit having an inlet for
air with a built-in oxygen enrichment membrane, an outlet for
oxygen enriched air, and an outlet for oxygen reduced air,
characterized in that said outlet for oxygen reduced air
communicates with said training room, and a ventilator is
provided at said outlet for oxygen enriched air and said inlet for
air.
(Id., emphasis added).
Thus, the contents of the allegedly incomplete JP ’958 document
published in the Official Gazette of the JPO would have included sufficient
information to disclose the structural limitations of claim 6 except for the
recited tent limitation as found by the Examiner (Ans. 4). Although the
allegedly incomplete JP ’958 document published in the Official Gazette
may have lacked discussion as to the benefits of training in oxygen-reduced
conditions provided in the complete JP ’958 application, such discussion
pertains to the intended use of the training room.
Because either of the above reasons is a sufficient basis for applying
the JP ’958, we do not agree with the Patent Owner that the Examiner erred.

JP ’958 Is Inoperable
The Patent Owner argues that the training room disclosed in JP ’958 is
inoperable because it is “substantially sealed.” (App. Br. 15–16; Reply Br.
4). The Patent Owner points to the definition of this term provided in JP
’958 which states:
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n this specification[], the phrase, substantially sealed, refer
[sic., refers] to exclusion of open structures in which the outside
air is allowed to enter and exit freely and a predetermined oxygen
concentration cannot be substantially maintained, and even if
there are localized parts with higher oxygen concentration, if the
predetermined oxygen concentration can be maintained in the
majority of parts, it is sufficient.
(JP ’958, pg. 3).
The Patent Owner argues that “according to the teachings of the
Japanese Reference, air is not allowed to escape from the structure disclosed,
and so the structure would become pressurized,” and “pressure in the
substantially sealed structure would push back on the ‘blower’ which
operates to push air into the substantially sealed structure, until the
substantially sealed structure would no longer allow more air to enter.”
(App. Br. 15–16). Thus, the Patent Owner concludes that the training room
disclosed in JP ’958 is inoperable (id.).
However, we agree with the Examiner that “substantially sealed does
not mean completely closed off from the environment such that it is
hermetically sealed. Nothing in JP ’958 states that the environment is
hermetically sealed.” (Ans. 10). We agree. The above reproduced portion
of JP ’958 makes clear that “substantially sealed” refers to a sufficient
degree of sealing to effectuate the predetermined lowered oxygen
concentration in the training room. As also made clear, the training room is
“substantially sealed” because if outside air is allowed to “enter and exit
freely,” then “a predetermined oxygen concentration cannot be substantially
maintained.”
We also agree with the Examiner that “substantially sealed” within the
context of JP ’958 would have been understood by those in the art as being
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essentially the same in meaning as the limitation “substantially isolated”
recited in the claims (id. at 11). The Patent Owner disagrees with the
Examiner’s position and argues that the Specification of the ’222 patent
explains that “substantially isolated” means that the tent allows air to exit or
escape, and that air escape openings may optionally be provided (Reply Br.
4, quoting col. 2, ll. 43–49). However, the Specification of the ’222 patent
also makes clear the extent to which air is allowed to exit or escape, that is,
air exiting around zippers or other closing mechanisms. Hence, we fail to
see any material difference between the terms at issue. The disclosed tent of
the ’222 patent is substantially sealed like the training room of JP ’958, and,
by the same token, JP ‘958 is ‘substantially isolated’ in the manner described
and claimed in the ’222 patent.
The Patent Owner further argues that a “blower” as disclosed in JP
’958 cannot provide a high output volume like a compressor, and that a
blower provides low output volume, which cannot separate oxygen from the
atmosphere through a membrane unit (App. Br. 16–17, citing Rhodes Decl.
¶ 7; see also Reply Br. 5). Accordingly, the Patent Owner asserts that the
training room disclosed in JP ’958 is inoperable on this basis, as well (id.).
The Examiner disagrees, stating that “the Patent Owner has not
provided any actual arguments as to why JP ’958 is inoperable.” (Ans. 10).
We generally agree with the Examiner. It is clear that the two blowers (one
blower on one side of the membrane and a suction blower on the other side
of the membrane) disclosed in JP ’958 are described therein as being
sufficient for the intended use of providing oxygen-reduced air to the
training room.
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Mr. Rhodes declares:
It is my understanding that membrane separators require pressure
differences of the order of several bars across the membrane in
order to promote separation. Such pressure differences are
unlikely to be achieved by “blowers”. In my opinion, an air
compressor would be required to provide the pressure required
for separation.
(Rhodes Decl. ¶ 7).
However, the asserted “understanding” and opinion that such pressure
differences (whatever they may be) are “unlikely to be achieved by
‘blowers,’” are equivocal in nature and are not substantiated by objective
supporting evidence. Thus, while inoperability has been asserted by the
declarant based on the use of “blowers,” the assertion is of little probative
value. See Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d
281, 294 (Fed.Cir.1985) (“Lack of factual support for expert opinion going
to factual determinations, however, may render the testimony of little
probative value in a validity determination”).
In addition, we also are of the opinion that the Patent Owner and its
declarant rely too heavily on the term “blower.” JP ’958 is a Japanese
document and the term “blower” is from the English translation of this
document. The record does not establish that the Japanese term translated
into “blower” excludes devices capable of generating pressure differences
asserted to be required. Therefore, preponderance of the evidence does not
persuasively support the Patent Owner’s assertion of inoperability.
The Patent Owner also asserts that we should reverse the Examiner’s
rejections because the Examiner has not addressed its arguments (App. Br.
17). However, while the Examiner may not have addressed the Patent
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Owner’s arguments to the level of detail desired by the Patent Owner, the
Examiner nonetheless did address them as discussed above.

Teaching Away
The Patent Owner argues that Gamow teaches away from the
suggested combination with JP ’958 (App. Br. 17–21; Reply Br. 5–6). As
discussed supra, JP ’958 discloses a training room wherein oxygen level is
reduced. This allows for training in simulated high altitude conditions. The
Patent Owner argues that in contrast, Gamow describes a portable
hyperbaric chamber that is filled with air having standard oxygen content but
at greater than ambient pressure for use in treating the negative effects of
exposure to low-oxygen environments referred to as “mountain sickness.”
(App. Br. 18, citing Gamow, col. 1, ll. 11–12, 23–64). The Patent Owner
notes that Gamow disparages “the concept of training at altitude,” and
instead, teaches the benefit of training at pressures equal or greater than
normal pressure at sea level (App. Br. 18–19, citing Gamow, col. 2, ll. 17–
18, 26–30; col. 3, ll. 2–10, 21–24). The Patent Owner argues that the
Examiner fails to consider the references in their entireties and engages in
impermissible hindsight by combining “a reference which describes the
benefit of simulating a lower altitude [(i.e., Gamow)] with one which
describes the benefits of a higher altitude [(i.e., JP ’958)].” (App. Br. 19–
20).
The Examiner disagrees and states:
Gamow is relied upon for the teaching of using a tent instead of
a fixed structure for an altered oxygen level training. The tent
and system of Gamow is not being bodily incorporated into JP
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’958. Thus, the use of a tent by Gamow does not teach away
from the device of JP ’985 [sic, JP ’958].
(Ans. 10).
We agree with the Examiner. In our view, it is the Patent Owner that
does not fully consider the references, and relegates a person of ordinary
skill in the art to an automaton. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398,
421 (2007) (“[a] person of ordinary skill is also a person of ordinary
creativity, not an automaton"). The teachings of Gamow to one of ordinary
skill and creativity is not limited to whether high or low altitude training
technique is superior, nor to a hyperbaric chamber. Gamow teaches that the
major problem with the prior art hyperbaric chambers in which athletes train
is as follows:
[h]yperbaric chambers of the prior art have been heavy,
rigid structures, permanently installed. . . . Cylindrical chambers
large enough to admit a human being and allow movement within
the chamber have been disclosed . . . but such structures are not
truly portable, which term is used herein to mean capable of
being dismantled, packaged and carried by an individual person.
(Gamow, col. 3, ll. 27–39).
Gamow then teaches a solution to this problem wherein, instead of the
permanently installed or non-portable chambers as disclosed in the prior art,
a portable chamber is constructed as a tent and erected with flexible wands
of aluminum or fiberglass so that it can be folded or collapsed and carried in
a backpack (id. at col. 3, ll. 21–23, col. 9, ll. 14–19). Thus, the broader
teaching of Gamow, which would have been appreciated by a person of
ordinary skill, is that the disadvantages of permanent/non-portable chambers
for training under altered environmental conditions can be addressed by
using a portable chamber constructed in a manner similar to a tent.
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It is based on this teaching of Gamow that the Examiner suggests
modifying the training room of JP ’958 to make its training room a tent
structure when the Examiner concludes that “[i]t would have been obvious
to one of ordinary skill in the art to have made the room of JP ’958 into an
enclosure, such as a tent, in view of the teaching of Gamow so as to provide
portability of the training environment as taught by Gamow.” (Ans. 4).
There is nothing in either JP ’958 or Gamow that discourages making the
training room of JP ’958 a tent structure so as to be portable, or leads in a
direction divergent from the path that was taken by the inventor of the ’222
patent. In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) (“A reference may
be said to teach away when a person of ordinary skill, upon reading the
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant”).
The Patent Owner further argues that the suggested combination
would change the principle of operation of the references (App. Br. 20).
This argument appears to be again based on the argument against combining
“a reference which describes the benefit of simulating a lower altitude with
one which describes the benefits of a higher altitude.” (Id. at 19). However,
this line of reasoning is unpersuasive for the reasons already discussed. We
see no technical difficulties or change in operation in making the training
room of JP ’958 a tent structure so that it is portable, in view of the teachings
in Gamow.
In view of the above, we agree with the Examiner’s conclusion. The
claimed invention is a combination of familiar elements according to known
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methods or a substitution of one element for another known in the field that
yields predictable results. KSR, 550 U.S. at 415–16.

Group II: Claims 34 and 35
The Patent Owner argues claims 34 and 35 separately, these claims
reciting that the pressure inside the tent is “generally equalized” to the
outside pressure (App. Br., Claims App.). The Patent Owner asserts that the
Examiner failed to establish a prima facie case of obviousness because the
training room of JP ’958 is “substantially sealed” so that interior would be
pressurized, and Gamow discloses a hyperbaric chamber wherein the
pressure is greater than the ambient air (App. Br. 21–22; Reply Br. 6).
This argument is unpersuasive. The Examiner’s rejection specifically
states that “[r]egarding claims 34 and 35, the space within JP ’958 is
‘generally’ equalized with the outside air pressure to the broad degree
claimed.” (Ans. 7). In this regard, as discussed supra, “substantially sealed”
as used in JP ’958 refers to sufficient degree of sealing to effectuate the
predetermined lowered oxygen concentration, not that the training room of
JP ’958 is hermetically sealed so as to allow build-up of pressure therein. To
any extent that substantial sealing of the training room of JP ’958 results in
slight increase in pressure as compared to the ambient air, we agree with the
Examiner that such differences in pressure would be encompassed by the
broad language of these claims that merely require the pressure within the
tent to be “generally equalized” to the outside pressure.

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CONCLUSION
The Examiner’s rejections of claims 6–11, 13–19, 26–32, 34, and 35
are AFFIRMED.

Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

hh

for PATENT OWNER:

The Law Office of Roger S. Thompson
116 Pinehurst Ave
Suite D-14
New York, NY 10033

for THIRD PARTY REQUESTOR:

MARSH, FISCHMANN & BREYFOGLE LLP
8055 EAST TUFTS AVE., SUITE 450
DENVER, CO 80237