Ex Parte Collazo et al

Patent Trial and Appeal Board

Jan 29, 2018

14483960 (P.T.A.B. Jan. 29, 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.
14/483,960 09/11/2014 Louis Javier Collazo 02080006COA 1043
62008 7590 01/31/2018
MAIER & MAIER, PLLC
345 South Patrick Street
ALEXANDRIA, VA 22314
EXAMINER
STUART, COLIN W
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
01/31/2018 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):
patent @ maierandmaier. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LOUIS JAVIER COLLAZO and SHARA HERNANDEZ
Appeal 2017-003705
Application 14/483,960
Technology Center 3700
Before KEN B. BARRETT, EDWARD A. BROWN, and
ANTHONY KNIGHT, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Louis Javier Collazo and Shara Hernandez (Appellants)1 appeal under
35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—20. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 RespCare, Inc. is identified as the real party in interest. Br. 2.
Appeal 2017-003705
Application 14/483,960
CLAIMED SUBJECT MATTER
Claims 1, 7, and 14 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A ventilation device, comprising:
a ventilation interface adapted to connect to a gas source
supplying a gas to the ventilation interface;
a cushioned facial interface coupled with the ventilation
interface, the cushioned facial interface having a gas exit
configured to seal over a mouth of a user, and at least one nasal
opening;
at least one removable nasal pillow with at least one
receiving flange; and
the cushioned facial interface having at least three
flanges proximate the at least one nasal opening, at least two of
the flanges are used to receive the at least one receiving flange
to couple the cushioned facial interface to the at least one
removable nasal pillow.
Br. 14 (Claims App.).
REJECTION2
Claims 1—20 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Davidson (WO 2005/063328 Al, published July 14, 2005).
ANALYSIS
Claims 1—6
The Examiner finds that Davidson discloses a ventilation device
comprising a cushioned facial interface (cushion 42) having at least one
nasal opening (“see [Davidson] Fig. 37, nasal opening defining where the
2 Rejections of claims 1—20 under the ground of non-statutory, obviousness-
type double patenting have been withdrawn. Ans. 10; Final Act. 11—23.
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Application 14/483,960
nasal pillow is attached to the cushioned facial interface as shown”), and at
least one removable nasal pillow (nozzle 17) with at least one receiving
flange (“see Fig. 37 which shows nasal pillow [17] with two receiving
flanges with a groove therebetween”), the cushioned facial interface having
a flange proximate the nasal opening to receive the at least one receiving
flange to couple the pillow and cushioned facial interface (citing Fig. 37).
Final Act. 2—3. The Examiner finds that Davidson does not describe the
cushioned facial interface as having at least three flanges, two of which are
used to receive the at least one receiving flange of the nasal pillow. Id. at 3.
The Examiner also finds, however, that “Davidson discloses that the
stepped edge shown in Fig. 37, which shows a single step or flange, can be a
stepped edge with multiple steps or flanges with grooves therebetween.” Id.
(citing Davidson 1105). The Examiner concludes that it would have been
obvious to modify the cushioned facial interface to include at least three
flanges, as suggested in Davidson, to provide “selective height adjustment.”
Id. The Examiner reasons that this modification would have been an
obvious design choice to one of ordinary skill in the art to provide a desired
amount of height adjustment range. Id.
Paragraph 105 of Davidson describes (emphasis added):
Fig. 37 illustrates an arrangement wherein each nozzle mounting
portion 25 provides an opening defined by edges having a
stepped configuration. The base portion 23 of each nozzle 17 has
an annular recess that receives the stepped edge of the opening
therein, so as to secure each nozzle 17 within the respective
opening. The stepped edge may include one or more resilient
protrusions (in dashed lines) to improve the seal between the
cushion 42 and nozzles 17. Also, the stepped edge may have
multiple steps to allow for selective height adjustment.
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Application 14/483,960
Accordingly, the “stepped edge” is the portion of nozzle mounting portion
25 received in the annular recess of base portion 23 of nozzle 17, and on
which “resilient protrusions” are shown. Id.', see also Davidson, Fig. 37.
Appellants contend that Davidson does not teach or suggest the claim
limitation of “the cushioned facial interface having at least three flanges
proximate the at least one nasal opening, at least two of the flanges are used
to receive the at least one receiving flange to couple the cushioned facial
interface to the at least one removable nasal pillow.” Br. 11. Appellants
disagree that “Davidson discloses that the stepped edge shown in Fig. 37,
which shows a single step or flange, can be a stepped edge with multiple
steps or flanges with grooves therebetween.” Id. at 5; see Final Act. 3.
Appellants contend, “Davidson defines a ‘step’ as a feature on the
structure ‘stepped edge’ — ‘the stepped edge may have multiple steps’. For
example, Fig 37 shows that the ‘stepped edge’ has two ‘steps’ (a top step
and a bottom step).” Br. 6. Appellants assert that “one of ordinary skill in
the art would understand the ‘stepped edge’ structure is substantially
equivalent to one of the flanges of the present invention” {id.), and the
Examiner mischaracterizes Davidson’s “step” as corresponding to the flange
{id. at 7). “Notably, a ‘step’ as shown in Fig. 37, is merely an additional
structure (e.g. a step or stair) on the ‘stepped edge’ structure (i.e. a stair on
the flange).” Id.
Appellants note the following statement made by the Examiner:
One of ordinary skill in the art would have recognized that the
attachment mechanism explicitly shown in Fig. 37 does not
provide for selective height adjustment as there is only a single
flange/stepped edge which interfaces with the flanges and groove
of the nasal pillow. However, para. 0105 further discloses that
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Application 14/483,960
the arrangement shown in Fig. 37 can be provided with multiple
steps “to allow for selective height adjustment”. In light of this
teaching, one of ordinary skill in the art at the time the invention
was made would have recognized that in order to accomplish this
expressly stated height adjustment feature in para. 0105, the
stepped edge/flanges of the cushioned facial interface 42 of Fig.
37 would not be a single flange as currently shown, but would
include multiple flanges with accompanying grooves
therebetween . . .” (emphasis added).
Br. 7—8; see Final Act. 22—23. Appellants interpret this statement to mean,
“[djespite the explicit disclosure in paragraph [0105] of Davidson regarding
selective height adjustment that forms the basis of the Office’s prima facie
case, that Davidson does not enable selective height adjustment.” Br. 8.
Appellants contend that Davidson does enable selective height
adjustment with the “explicit structure” disclosed. Id. (bold type omitted).
In support, Appellants provide annotated versions of Figure 37 of Davidson.
See Ev. App. II. (FIGS. A—E). Figure B indicates the locations of a ‘“first
step’” and “‘second step’” on the “stepped edge.” Id. Figure C shows an
“alternative embodiment” where the “annular recess” of base portion 23 of
nozzle 17 is “taller.” Id. Figures D and E show the nozzle in a “‘lower
height position’” and an “‘upper height position,”’ respectively, in the
alternative embodiment. Id. Appellants contend that in the “‘lower height
position’” of the nozzle, “the first step (i.e. the top step) of the stepped edge
of the cushion is shown contacting the top wall of the annular recess of the
nozzle,” and in the “‘upper height position’” of the nozzle, “the second step
(i.e. the bottom step) of the stepped edge of the cushion is shown contacting
the bottom wall of the annular recess of the nozzle.” Br. 9. Appellants
contend that these figures show that a single stepped edge with multiple
steps allows for selective height adjustment in Davidson. Id. at 10.
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Appellants’ contentions are not persuasive. Appellants appear to
agree with the Examiner’s position that the stepped edge shown in Figure 37
of Davidson corresponds to a single “flange” on the claimed cushioned
facial interface. Br. 5 (“one of ordinary skill in the art would understand the
‘stepped edge’ structure is substantially equivalent to one of the flanges of
the present invention”); Final Act. 3.
We are not persuaded by Appellants’ contentions that the Examiner
erred in finding that the stepped edge structure shown in Figure 37 of
Davidson is a “single step.” Final Act. 3. In this regard, we are not
persuaded that Figure 37 shows that “the ‘stepped edge’ has two ‘steps’ (a
top step and a bottom step).” Br. 6. Figure 37 shows that when the stepped
edge is received in the annular recess of nozzle 17, a small gap exists
between the stepped edge and the surface of nozzle 17 defining the annular
recess. Davidson does not describe that this mating structure provides
“height adjustment” of nozzle 17 relative to cushion 42. Davidson discloses
that “resilient protrusions” may be provided on the stepped edge, as depicted
in Figure 37, “to improve the seal between the cushion 2 and nozzles 17.”
Davidson 1105. Davidson does not describe that the resilient protrusions
provide “selective height adjustment.” We agree with the Examiner that the
structure shown in Figure 37 “provides for no selective height adjustment.”
Ans. 11 (citing “annotated Fig. 37 on the right”).
Additionally, Davidson does not describe that the stepped edge
structure shown in Figure 37 has more than one step. Davidson discloses
that “the stepped edge may have multiple steps to allow for selective height
adjustment” (Davidson 1105), but does not describe that Figure 37 depicts
such a stepped edge structure having “multiple steps.” Accordingly, we are
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Application 14/483,960
not persuaded that the Examiner has mischaracterized Davidson’s “step” as
corresponding to the flange of the present invention. Br. 7.
Regarding Appellants’ “alternative embodiment” of Figure 37 of
Davidson, Appellants do not direct us to any disclosure in Davidson that
supports modifying the annular recess of nozzle 17 to make the annular
recess “taller” as shown, to thereby enable the stepped edge to be moved
vertically within the annular recess to such “upper height position” and
“lower height position.” See Ev. App. II. (FIGS. C—E). This absence of
disclosure is noted by the Examiner, stating “Examiner cannot find anything
in the Davidson reference which suggests modifying the nasal pillow 17, and
in particular the flange/groove structure thereof, in order to provide for the
selective height adjustment feature.” Ans. 18. Also, as noted above,
Davidson describes “the seal between the cushion 42 and nozzles 17.”
Davidson 1105. It is not apparent how the proposed “taller” annular recess
would enable such a seal between these elements.
It is further not apparent how in Figure E, for example, nozzle 17
would be retained in the “upper height position” by the interaction between
the stepped edge and annular recess. As explained by the Examiner:
as the Davidson device is a positive pressure device (see
paragraph 0002 of Davidson for example), it would appear that
the positive pressure would act on the nasal pillow 17 of
Appellant’s Fig. D in such a way as to push the pillow up and
would arrive at the position of Appellant’s Fig. E, thus providing
no selective height adjustment in use.
Ans. 19 (emphasis added). Accordingly, it is not apparent how the “single
stepped edge with multiple steps” shown in Figures D and E actually allows
selective height adjustment of nozzle 17 relative to cushion 42, and thus,
might be contemplated by Davidson’s disclosure.
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Application 14/483,960
The Examiner explains how the description in Davidson that “the
stepped edge may have multiple steps to allow for selective height
adjustment” would be interpreted by one of ordinary skill in the art. Ans.
10. The Examiner indicates how cushion 42 shown in Figure 37 would be
modified to include “multiple steps.” Id. at 11 (“annotated Fig. 37 on the
left”). The Examiner explains:
The annotated Fig. 37 on the left shows how one of ordinary skill
in the art would interpret the language “the stepped edge may
have multiple steps to allow for selective height adjustment”. As
can be seen on the left side annotated Fig. 37, the only
modification to the figure is providing the stepped edge 25 of
cushioned interface 42 with multiple steps (three as shown) and
one would have recognized that such a configuration would
allow for selective height adjustment as the groove defined by
the two flanges of the nasal pillow 17 can be selectively inserted
into a different flange or step of the stepped edge 25 of the
cushioned interface 42.
Id. (emphasis added). We are not apprised of error in this position.
Appellants also contend that the Examiner’s motivational statement
for modifying Davidson is merely conclusory and not supported by any
evidence of record. Br. 10. We disagree. As noted above, the Examiner
proposes to modify the cushioned facial interface in Davidson to include at
least three flanges to provide “‘selective height adjustment.’” Final Act. 3.
This rationale is supported by Davidson’s explicit teaching that “the stepped
edge may have multiple steps to allow for selective height adjustment.”
Davidson 1105. The Examiner reasons that the particular number of steps
provided on Davidson’s stepped edge would have been an obvious design
choice based on the desired amount of height adjustment range. Id.
Appellants do not apprise us of any error in Examiner’s reasoning.
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Accordingly, we sustain the rejection of claim 1, and of dependent
claims 2—6 which are not separately argued, as unpatentable over Davidson.
Claims 7—13
As to claim 7, Appellants contend that Davidson fails to teach or
suggest the limitation of “the cushioned facial interface having a gas exit
configured to seal over a mouth of a user and having at least two receiving
flanges at a receiving hole.” Br. 11; see also id. at 15. For reasons similar
to those discussed above for claim 1, we likewise sustain the rejection of
claim 7, and of dependent claims 8—13 which are not separately argued, as
unpatentable over Davidson.
Claims 14—20
As to claim 14, Appellants contend that Davidson fails to teach or
suggest the limitation of “the cushioned facial interface having a receiving
hole with at least two flans.es and one groove formed between the at least
two flanges, wherein the groove receives at least one receiving flange to
couple with the at least one removable nasal pillow.” Br. 11; see also id. at
16—17. For reasons similar to those discussed above for claim 1, we
likewise sustain the rejection of claim 14, and of dependent claims 15—20
which are not separately argued, as unpatentable over Davidson.
DECISION
The Examiner’s decision to reject claims 1—20 is affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended according to 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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