Ex Parte Frater

Patent Trial and Appeal Board

Apr 8, 2014

10270611 (P.T.A.B. Apr. 8, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte ROBERT H. FRATER1
__________

Appeal 2012-000104
Application 10/270,611
Technology Center 3700
__________

Before DONALD E. ADAMS, ERIC GRIMES, and ULRIKE W. JENKS,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
apparatus for use in respiratory therapy, which have been rejected as
obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 Appellant identifies the Real Party in Interest as ResMed Limited (App. Br.
3).
Appeal 2012-000104
Application 10/270,611

2
STATEMENT OF THE CASE
“Generally, Continuous Positive Airway Pressure (CPAP) systems are
used for either the treatment of OSA [obstructive sleep apnea] or the
application of assisted ventilation for other purposes. Assisted ventilation is
typically provided by an externally powered device.” (Spec. 1, ¶ 2.) The
Specification discloses an apparatus for supplying breathable gas to a patient
that uses only stored mechanical work done by the patient during exhalation
to assist the patient during inhalation (id. at 2, ¶ 8), or uses such stored
mechanical work in combination with an external power source (id. at 28,
¶ 111).
Claims 22-27, 29-32, 34-43, and 48-57 are on appeal. Claim 22 is
illustrative and reads as follows (emphasis added):
22. A breathable gas supply apparatus for a patient, comprising:
a housing having an inspiration chamber and an exhalation chamber,
both the inspiration chamber and exhalation chamber being structured to
selectively communicate with atmosphere;
a flexible mechanical structure provided to the housing; and
a respiratory mask assembly in communication with the inspiration
chamber and the exhalation chamber,
wherein the flexible mechanical structure is constructed and arranged
to:
(1) expand in response to a force of patient expiration to draw fresh
air from the atmosphere into the inspiration chamber and to allow air
exhaled by the patient to accumulate within the exhalation chamber during
an exhalation phase of a respiratory cycle of the patient, the expanded
flexible mechanical structure adapted to store mechanical energy in the form
of mechanical work done by the patient during the exhalation phase, and
(2) contract in response to patient inspiration to provide a source of
pressurized fresh air at a substantially constant positive pressure from the
inspiration chamber to the patient and to provide a force that utilizes stored
mechanical energy in the form of mechanical work done by the patient to
Appeal 2012-000104
Application 10/270,611

3
expunge the exhaled air accumulated within the exhalation chamber into the
atmosphere during an inhalation phase of the respiratory cycle of the patient,
wherein the flexible mechanical structure includes a weight that is at
least partially determinative of the pressure.

Claims 27, 32, and 37, the only other independent claims, also require
using a weight to provide air to a patient at a substantially constant positive
pressure (App. Br., Claims App’x).
DISCUSSION
Issue
The Examiner has rejected claims 22-25, 27, 29-32, 34-43, and 48-57
under 35 U.S.C. § 103(a) as obvious based on Arnott2 and McQueen3 (Ans.
3), and has rejected claim 26 under 35 U.S.C. § 103(a) as obvious based on
Arnott, McQueen, and Archeta Mota4 (Ans. 7). The same issue is
dispositive for both rejections.
The Examiner finds that Arnott discloses all of the limitations of the
claimed method and apparatus, except that Arnott uses a spring to contract
an inspiration chamber rather than the weight required by the claims (id. at
3-4). The Examiner finds that McQueen discloses that a weight and a spring
are known alternatives for contracting a variable-volume chamber (id. at 4),
and concludes that it would have been obvious to substitute a weight for
Arnott’s spring because McQueen teaches that a weight is simpler and more
economical (id.).

2 Arnott, US 6,595,212 B1, July 22, 2003.
3 McQueen, US 3,557,785, Jan. 26, 1971.
4 Arecheta Mota, US 3,216,413, Nov. 9, 1965.
Appeal 2012-000104
Application 10/270,611

4
Appellant argues, among other things, that Arnott uses a spring,
“which provides a force that is proportional to the level of displacement of
the spring, i.e., pressure is not constant” (App. Br. 10), because Arnott’s goal
is “to cause a momentary burst or bolus of pressurized airflow to be ejected
into the patient’s airway” (id. at 9). Appellant argues that, by contrast, “[t]he
‘weight’ as claimed in independent claims 22, 27, 32, and 37 allows
substantially constant positive pressure to be provided to the patient
throughout the inhalation phase as the maximum driving force of the weight
is always available” (id.). Appellant argues that using a weight as an
alternative to Arnott’s spring would “change its primary objective of
delivering a pressurized burst or bolus of air to the patient” (id. at 10).
We agree with Appellant that the Examiner has not provided
sufficient evidence or sound technical reasoning to support the conclusion
that it would have been obvious to modify Arnott’s apparatus to include a
weight instead of a spring.
Arnott discloses an “apparatus capable of delivering a pressurized
burst or pulse of air to a patient’s nasopharyngeal airway at the moment of
termination of the patient’s breath exhalation during the breathing cycle”
(Arnott, col. 1, ll. 64-67). Arnott’s apparatus “deliver[s] ambient air to a
patient’s airway in the form of an air bolus, wherein the patient’s exhaled air
is utilized to actuate an energy storing means to cause delivery of the air
bolus into the airway” (id. at col. 2, ll. 6-9).
Arnott’s apparatus includes “an exhalation chamber 72 and a bolus
chamber 74” (id. at col. 4, l. 67), both of which “have pleated accordion-like
exterior sidewalls 88 and 90 which facilitate expansion of the chambers” (id.
Appeal 2012-000104
Application 10/270,611

5
at col. 5, ll. 15-17) and are linked so that “chamber 74 expands . . . in
response to the expansion of chamber 72 . . . [and] takes in ambient air” (id.
at col. 5, ll. 17-25).
“The expansion of the chambers 72 and 74 . . . causes a compression
spring 94 to compress” (id. at col. 5, ll. 25-27). “When both chambers 72
and 74 have fully expanded and the exhalation has ended, the force of
energy in the spring 94 causes . . . simultaneous discharge airflows” from
both chambers (id. at col. 5, ll. 29-34). “The bolus of air forced out of
chamber 74 . . . constitutes air available for delivery to a patient’s airway”
(id. at col. 5, ll. 40-42). “The pulse of pressurized airflow is sufficient to
prevent the development of airway tissue occlusion and maintain the airway
open for normal breathing” (id. at col. 1, l. 67 to col. 2, l. 3).
McQueen discloses an apparatus for administering gases, particularly
anesthetic gases, to animals (McQueen, col. 1, ll. 34-59). McQueen’s
apparatus includes “a variable-volume sub chamber 25 . . . [and] actuator
means 23 for urging the variable-volume subchamber between a minimum
and maximum volume state in motion corresponding to changes in gas
pressure within the apparatus” (id. at col. 2, ll. 18-23). McQueen states that
actuator means 23 “comprises a weight 34 . . . [so that the] force of gravity
on weight 34 serves to urge the end portion 27 of the movable wall or
bellows 24 downward . . . [and] compresses the bellows in response to low
gas pressure in the apparatus and thus urges the variable-volume
subchamber to a minimum volume” (id. at col. 4, ll. 21-33). McQueen
discloses that weight 34 can be replaced by other actuator means, such as
“springs, manually or mechanically-operated plungers and the like” (id. at
Appeal 2012-000104
Application 10/270,611

6
col. 4, ll. 63-64) but “the pressure and gravity-operated actuator means of the
invention are simple and economical to construct and to operate and are
much to be preferred” (id. at col. 4, ll. 66-68).
Thus, as the Examiner found, McQueen teaches that both a spring and
a weight were known in the art as alternative means for compressing a
variable-volume chamber, such as the bolus chamber of Arnott’s device.
However, as Appellant has pointed out, the spring in Arnott’s device does
not provide a constant amount of force. Rather, a person of ordinary skill in
the art would recognize that the force supplied by a compressed spring is
proportional to the degree to which the spring was compressed, as expressed
in Hooke’s law (F = kX).
Arnott’s apparatus is expressly designed to provide “a momentary
burst of pressurized airflow” to a patient (Arnott, col. 2, ll. 52-55). In
Arnott’s apparatus, the “pressurized airflow is only momentary, whereby
completion of air inhalation occurs naturally and voluntarily by the patient”
(id. at col. 2, ll. 55-57). The instant Specification, by contrast, describes an
apparatus that includes a weight for compressing an inhalation chamber,
while a patient is inhaling, to provide a substantially constant positive
pressure (Spec. 9-10, ¶ 44; pressure provided is proportional to the mass of
the weight compressing the inhalation chamber and the cross-sectional area
of the inhalation chamber).
Thus, although a weight undoubtedly could be used to compress the
bolus chamber in Arnott’s device, the Examiner has not provided evidence
or sound technical reasoning to show that a weight would compress the
bolus chamber in the manner desired by Arnott; i.e., to provide a
Appeal 2012-000104
Application 10/270,611

7
momentary, pressurized airflow, rather than a substantially constant positive
pressure. In addition, even assuming that a weight could be used to provide
the same effect as Arnott’s spring, the Examiner has not shown that a person
of ordinary skill in the art would consider Arnott’s bolus of air to meet the
limitation of providing a source of pressurized air “at a substantially constant
positive pressure,” as recited in the claims.
SUMMARY
Because the Examiner has not shown that the cited references would
have made obvious an apparatus meeting the limitations of the claims, we
reverse both of the rejections on appeal.

REVERSED

lp