Ex Parte Duff et al

Patent Trial and Appeal Board

Feb 16, 2017

13131612 (P.T.A.B. Feb. 16, 2017)

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.
13/131,612 05/27/2011 Winslow Kevin Duff 2008P01747WOUS 7049
24737 7590 02/21/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue DOUGLAS, STEVEN O
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
02/21/2017 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):
marianne. fox @ philips, com
debbie.henn @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 WILSON KEVIN DUFF and PETER D. HILL
Appeal 2015-003128
Application 13/131,6121
Technology Center 3700
Before THOMAS F. SMEGAL, JEFFREY A. STEPHENS, and
GORDON D. KINDER, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Wilson Kevin Duff and Peter D. Hill (Appellants) seek our review
under 35 U.S.C. § 134 of the Examiner’s final rejection under 35 U.S.C.
§ 102(b) of claims 1—19 as anticipated by Kane (US 2006/0070624 Al, pub.
Apr. 6, 2006). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Koninklijke
Philips Electronics N.V. Appeal Br. 1.
Appeal 2015-003128
Application 13/131,612
CLAIMED SUBJECT MATTER
Claims 1 and 12 are independent. Claim 1 is reproduced below and
illustrates the claimed subject matter, with disputed limitations emphasized.
1. A pressure support system, comprising:
a pressure generating system adapted to produce a flow of
breathing gas;
a patient circuit operatively coupled to the pressure
generating system to deliver the flow of breathing gas to an
airway of a patient; and
a controller operatively coupled to the pressure generating
system, the controller being adapted to determine a measure
associated with an inspiratory time of the patient while using the
pressure support system and to control the pressure generating
system to: (i) deliver the flow of breathing gas to the patient at
an inspiratory positive airway pressure (IPAP) level during at
least a portion of an inspiratory phase of the patient and deliver
the flow of breathing gas to the patient at an expiratory positive
airway pressure (EPAP) level that is less than the IPAP level
during at least a portion of an expiratory phase of the patient, and
(ii) automatically set a rise time associated with a transition from
the EPAP level to the IPAP level based on the measure
associated with the inspiratory time of the patient.
ANALYSIS
Anticipation of Claims 1—19 by Kane
Claims 1—3, 6, 8—12, 15, and 17—19
Appellants argue claims 1—3, 6, 8—12, 15, and 17—19 together in
contesting the rejection of these claims as anticipated by Kane. Appeal Br.
4—6; see also Reply Br. 1—2. We select claim 1 as the representative claim
for this group, and the remaining claims stand or fall with claim 1. See 37
C.F.R. § 41.37(c)(l)(iv). Appellants present arguments under separate
headings for claims 4, 5, 7, 13, 14, and 16 (Appeal Br. 7—8; Reply Br. 3),
which we address infra.
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Appeal 2015-003128
Application 13/131,612
The Examiner finds that Kane anticipates claim 1 by disclosing a
system and method of delivering breathing gas to an airway of a patient that
contemplates “that the rise time and the shape or profile of the pressure or
flow waveform during EPAP to IPAP transition can be controlled by the
system, preferably to maximize comfort,” and that “such disclosure can
only be construed as automatic setting of the rise time, since it is the
function of the device to optimize these settings ... to maximize the comfort
of the patient.” Final Act. 2—3 (citing Kane 1133; Fig. 4).
In taking issue with the analysis and conclusions presented in the
Final Office Action, Appellants first contend that “the system [of Kane] may
control the rise time and the shape or profile of the pressure or flow
waveform to maximize patient comfort,” but “does not. . . control the
pressure generating system to . . . automatically set a rise time associated
with a transition from the EPAP level to the IPAP level based on [a]
measure associated with the inspiratory time of the patient’ as recited in
claim 1.” Appeal Br. 5.
Appellants continue by asserting that paragraph 133 of Kane “only
focuses on automatic setting of the rise time but does not specify what such
automatic setting should be based upon, [and] ignores the express limitation
of claim 1 that recites ‘automatically set a rise time associated with a
transition . . . based on the measure associated with the inspiratory time of
the patient.'1'’'’2 Id.; see also Reply Br. 2.
However we agree with the Examiner that “[t]he flow waveform (see
as, for example, the wave form shown in Figure 5). . . is based on measured
2 Independent claim 12 recites substantially the same limitation. See Appeal
Br. 12, Claims App.
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Appeal 2015-003128
Application 13/131,612
data during both the inspiratory and expiratory cycles over time (see the
horizontal axis thereof).” Ans. 5. Furthermore, Kane specifically teaches
that the automatic setting of the rise time is determined over a five (5)
minute time window, i.e., a “predetermined time period,” disclosed in the
Specification (| 7) as “a measure associated with the inspiratory time of the
patient,” as recited by claim 1. See, for example, paragraph 135 of Kane,
disclosing calculations “so that the inspiratory periods over the last 5
minutes worth of inspiratory cycles are averaged.”
Appellants further assert that Kane “‘can only be construed’ as
describing automatic setting of the rise time, [and contend that] the
Examiner appears to be relying on the alleged ‘inherent’ teachings of
[Kane],” which “is not proper.” Appeal Br. 6. However, we are not
persuaded by Appellants’ contention. We agree with the Examiner that, as
disclosed in paragraph 133 of Kane, “the ‘user set’ embodiment would
imply manually setting and the ‘system set’ would imply some sort of
automated setting,” so that the Examiner “has properly relied on what would
be readily [apparent as] inherent to one of ordinary skill.” Ans. 5.
Based on the foregoing, we sustain the Examiner’s rejection of claims
1—3, 6, 8—12, 15, and 17—19 as anticipated by Kane.
Claims 4, 5, 7, 13, 14, and 16
While first contending that claims 4, 5, 7, 13, 14, and 16 are allowable
because of their dependency on either claim 1 or 12, Appellants also recite
the additional limitations of each of these claims and further contend that
Kane “does not teach or suggest these features.” Appeal Br. 7—8; Reply Br.
3. However, these additional arguments amount to nothing more than a
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Application 13/131,612
naked assertion of patentability. See In re Lovin, 652 F. 3d 1349, 1357 (Fed.
Cir. 2011).
Thus, we sustain the Examiner’s rejection of claims 4, 5, 7, 13, 14,
and 16 as anticipated by Kane.
DECISION
We AFFIRM the Examiner’s rejection.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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