Ex Parte Gollar

Patent Trial and Appeal Board

Jun 15, 2017

12886725 (P.T.A.B. Jun. 15, 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.
24436-5 1123
EXAMINER
CATINA, MICHAEL ANTHONY
ART UNIT PAPER NUMBER
3735
MAIL DATE DELIVERY MODE
12/886,725 09/21/2010
24256 7590 06/15/2017
DINSMORE & SHOHL LLP
255 East Fifth Street, Suite 1900
CINCINNATI, OH 45202
Edward Collar
06/15/2017 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 EDWARD GOLLAR1
Appeal 2016-001700
Application 12/886,725
Technology Center 3700
Before JOHN G. NEW, TAWEN CHANG, and RYAN H. FLAX,
Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) involving
claims directed to detecting gaseous component levels in breath. Claims 1—
20 and 23 are on appeal as rejected under 35 U.S.C. § 103(a). We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellant identifies the Real Party in Interest as OmegaPoint Systems,
LLC. App. Br. 3.
Appeal 2016-001700
Application 12/886,725
STATEMENT OF THE CASE
The Specification states “[t]he present invention relates to the field of
gaseous breath detection systems, and methods for using the same, and more
particularly, to the field of portable personal gaseous breath detection
apparatus and methods for using same.” Spec. 1:10—13.
Claims 1,10, 14, 20, and 23 are independent claims; claims 1,10, and
23 are representative and are reproduced below:
1. A method for detecting gaseous component levels in a breath,
comprising:
receiving a breath through a breath channel, wherein the breath
channel is in continuous fluid communication with a flow rate
sensor and an electrochemical fuel cell gas sensor while the
entire breath is received, and wherein the flow rate sensor and
the electrochemical fuel cell gas sensor are in electrical
communication with a processing device;
measuring a flow rate of the breath received through the breath
channel utilizing the flow rate sensor and transmitting a
corresponding flow rate signal to the processing device;
measuring a gas level of the breath received through the breath
channel with the electrochemical fuel cell gas sensor and
transmitting a corresponding gas level signal to the processing
device;
measuring a first time, wherein the first time corresponds to an
amount of time elapsed while receiving the breath in the breath
channel;
calculating a current gaseous component level on the processing
device utilizing the flow rate signal, the first time and the gas
level signal from the gas sensor, wherein the gaseous component
level is proportional to the gas level signal, the flow rate and the
first time.
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10. A method for detecting an error condition while measuring
gaseous component levels in a breath, comprising:
receiving a breath through a breath channel, wherein the breath
channel is in continuous fluid communication with a flow rate
sensor and an electrochemical fuel cell gas sensor while the
breath is being received, and wherein the flow rate sensor and the
electrochemical fuel cell gas sensor are in electrical
communication with a processing device;
measuring a flow rate of the breath received through the breath
channel, and transmitting a corresponding flow rate signal to the
processing device;
measuring a first time, wherein the first time corresponds to an
amount of time elapsed while receiving the breath in the breath
channel;
measuring a peak output from the electrochemical fuel cell gas
sensor and transmitting the peak output signal to the processing
device;
determining, utilizing the processor, if the peak output occurs
while breath is still being received in the breath channel; and
if the peak output occurs while breath is still being received m
the breath channel, alerting a user of an error condition.
23. A method for detecting gaseous component levels in a
breath, comprising:
receiving a breath through a breath channel, wherein the breath
channel is in continuous fluid communication with an
electrochemical fuel cell gas sensor while the entire breath is
received, wherein the electrochemical fuel gas sensor is in
electrical communication with a processing device;
measuring a volume of the breath received through the breath
channel;
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Application 12/886,725
calculating on the processing device a current gaseous
component level utilizing the volume and an output from the gas
sensor.
App. Br. 39-41, 43 (Claims App’x).
The following rejections are on appeal:
Claims 1—3, 5, 14, 15, and 23 stand rejected under 35 U.S.C. § 103(a)
over Albarda2 and Chang.3 Final Action 2.
Claim 4 stands rejected under 35 U.S.C. § 103(a) over Albarda,
Chang, and Rodder.4 Id. at 4.
Claims 6 and 16 stand rejected under 35 U.S.C. § 103(a) over
Albarda, Chang, and Fiorenza.5 Id.
Claims 7 and 17 stand rejected under 35 U.S.C. § 103(a) over
Albarda, Chang, and Leddy.6 Id. at 5.
Claims 7, 8, 17, and 18 stand rejected under 35 U.S.C. § 103(a) over
Albarda, Chang, and Chow.7 Id. at 6.
Claims 9 and 19 stand rejected under 35 U.S.C. § 103(a) over
Albarda, Chang, Leddy, and Forrester.8 Id. at 7.
Claims 10-12 and 20 stand rejected under 35 U.S.C. § 103(a) over
Albarda, Chang, Leddy, and Forrester. Id.
2 U.S. Patent No. 4,300,385 (issued Nov. 17, 1981) (“Albarda”).
3 U.S. Patent No. 3,966,579 (issued June 29, 1976) (“Chang”).
4 U.S. Patent No. 3,949,739 (issued Apr. 13, 1976) (“Rodder”).
5 U.S. Patent No. 6,135,967 (issued Oct. 24, 2000) (“Fiorenza”).
6 U.S. Patent No. US 7,421,882 B2 (issued Sept. 9, 2008) (“Leddy”).
7 U.S. Patent No. 5,048,321 (issued Sept. 17, 1991) (“Chow”).
8 U.S. Patent No. US 7,122,154 B1 (issued Oct. 17, 2006) (“Forrester”).
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Application 12/886,725
Claim 13 stands rejected under 35 U.S.C. § 103(a) over Albarda,
Chang, Leddy, Forrester, and Rodder. Id. at 10.
DISCUSSION
Except where otherwise indicated herein, we adopt the Examiner’s
findings of fact, reasoning on scope and content of the claims and prior art,
and conclusions set out in the Final Action and Answer. Only those
arguments made by Appellant in the Briefs have been considered in this
Decision. Arguments not presented in the Briefs are waived. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2015).
The rejection of claims 1—3, 5, 14, 15, and 23 over Albarda and
Chang
The Examiner combines Albarda and Chang in rejecting the claims,
citing Albarda as disclosing each of the claim elements except “that the
sensor is an electrochemical sensor,” for which Chang is cited. Final Action
2-3.
Appellant presents several arguments (largely focused on the
contention that Albarda does not disclose the recited processing device),
including the argument that neither Albarda nor Chang teach “calculating a
current gaseous component level on the processing device utilizing the flow
rate signal, the first time and the gas level signal from the gas sensor,”
“wherein the gaseous component level is proportional to the gas level signal,
the flow rate and the first time.” App. Br. 15; see also claim 1 (reciting the
“wherein” clause). While we are not persuaded by Appellant’s other
arguments on this rejection, we find this argument persuasive with regard to
independent claims 1 and 14 and their dependent claims.
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Regarding Albarda, while the reference objectively discloses, in
relation to breath-gas-component detection/measurement (Albarda,
Abstract), measuring breath flow rate (id. at 2:23—24, 2:50-52, 4:13—15,
4:35—36), measuring gas levels (id. at 1:37—39, 2:42-43, 3:18—21),
measuring a time of breathing (id. at 1:23—25, 1:39-42, 2:22—25), and using
various combination of these to calculate a gas component level, Albarda
does not teach or suggest using each of these measured variables to calculate
a gas component level that is proportional to all three variables. Moreover,
Albarda’s invention is directed to an optical sensor device, which essentially
takes a snapshot measurement of gas component concentration in breath at
the moment a predetermined quantity of breathing air has passed (id. at
3:12—26); therefore, there would not necessarily be a need to use a breath
volume (flow rate) or a time interval as variables to calculate such a
component’s concentration that would be proportional thereto. Albarda
similarly discloses using a time interval to identify whether a breath
exhalation threshold has been met in testing blood alcohol levels so that the
air tested is from the alveoli. Id. at 2:33—54. Thus, these measured flow and
time variables are disclosed as used merely to assure a dependable sample of
breath is obtained for the optical sensing, and their measurements are not
taught to be proportional to the calculated gas level, as recited by claims 1
and 14.
Further, as Appellant identifies, Chang, while disclosing an
electrochemical sensor, also does not disclose “calculating a current gaseous
component level on the processing device utilizing the flow rate signal, the
first time and the gas level signal from the gas sensor, wherein the gaseous
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component level is proportional to the gas level signal, the flow rate and the
first time,” as recited by claims 1 and 14. See App. Br. 19. While Chang
discloses using a timer, arguably measuring a time interval, and discloses
using a volumetric flow detector, arguably measuring a flow rate, it discloses
using such measurements only to ensure alveolar air is the sample tested and
any gas level calculations made are not taught as being proportional to these
variables. Chang 8:24—38.
Because we are persuaded by Appellant’s argument, as discussed
above, we reverse this rejection as to claims 1 and 14 and their dependent
claims.
We conclude differently with respect to claim 23, which does not
include the limitation from claim 1 that we conclude is non-obvious over
Albarda and Chang. Claim 23 requires, generally, receiving a breath in a
channel having an electrochemical sensor (with an associated processor),
measuring breath volume, and calculating the gas component level using that
breath volume and the output of the sensor. This, as found by the Examiner,
is taught or suggested by Albarda and Chang (see supra Discussion).
We conclude that it would be obvious to use the sensor of Chang (see
Chang, Figs. 1—3) in a device configuration as taught by Albarda (see
Albarda, Fig. 1). “The combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 416
(2007). As discussed above and as found by the Examiner, Albarda and
Chang each teach measuring breath volume and using that measurement in a
calculation of gas component concentration (use as a threshold is considered
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Application 12/886,725
use in the calculation). Final Action 2—3. We also agree with the Examiner
that Albarda’s indicator, or even its alcohol meter, holding circuit, and
indicator grouped as a unit, is considered to be a processor (and it was also
well known that a microprocessor could be used in place of such sensor
output analyzing elements, as evidenced by Leddy (9:54—58, 16:5—7, claim
8), and Forrester (5:5—6)).
Thus, we agree with the Examiner’s determination that the method of
claim 23 would be obvious over Albarda and Chang and we affirm this
rejection.
The rejection of claim 4 over Albarda, Chang, and Rodder
Claim 4 depends from independent claim 1, which we find would not
be obvious over Albarda and Chang. “[Dependent claims are nonobvious if
the independent claims from which they depend are nonobvious.” In re
Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992). The Examiner cites Rodder in
combination with Albarda and Chang for its disclosure of a thermistor to
identify breath flow (we note, Chang also discloses a thermistor for such a
use). Rodder does not overcome the shortcomings of the Albarda-Chang
combination identified above with respect to claim 1 (it does not teach the
calculating limitation). Therefore, we reverse this rejection.
The rejection of claims 6 and 16 over Albarda, Chang, and Fiorenza
Claim 6 depends from independent claim 1, and claim 16 depends
from independent claim 14, which we find would not be obvious over
Albarda and Chang. “[Dependent claims are nonobvious if the independent
claims from which they depend are nonobvious.” In re Fritch, 972 F.2d at
1266. The Examiner cites Fiorenza in combination with Albarda and Chang
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for its disclosure of measuring a plurality of flow rates. Fiorenza does not
overcome the shortcomings of the Albarda-Chang combination identified
above with respect to claims 1 and 14 (it does not teach the calculating
limitation). Therefore, we reverse this rejection.
The rejection of claims 7 and 17 over Albarda, Chang, and Leddy
Claim 7 depends from independent claim 1, and claim 17 depends
from independent claim 14, which we find would not be obvious over
Albarda and Chang. “[Dependent claims are nonobvious if the independent
claims from which they depend are nonobvious.” In re Fritch, 972 F.2d at
1266. The Examiner cites Leddy in combination with Albarda and Chang
for its disclosure of using peak signal levels to determine analyte
concentrations. Leddy, while disclosing measuring gas in breath over time
(proportionally), does not overcome the shortcomings of the Albarda-Chang
combination identified above with respect to claims 1 and 14 (it does not
teach the calculating limitation). Therefore, we reverse this rejection.
The rejection of claims 7, 8, 17, and 18 over Albarda, Chang, and
Chow
Claims 7 and 8 depend from independent claim 1, and claims 17 and
18 depend from independent claim 14, which we find would not be obvious
over Albarda and Chang. “[Dependent claims are nonobvious if the
independent claims from which they depend are nonobvious.” In re Fritch,
972 F.2d at 1266. The Examiner cites Chow in combination with Albarda
and Chang for its disclosure of using peak signal voltages for BAC (blood
alcohol content) determinations and measuring a second time interval.
Chow does not overcome the shortcomings of the Albarda-Chang
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combination identified above with respect to claims 1 and 14 (it does not
teach the calculating limitation). Therefore, we reverse this rejection.
The rejection of claims 9 and 19 over Albarda, Chang, Leddy, and
Forrester
Claim 9 depends from independent claim 1, and claim 19 depends
from independent claim 14, which we find would not be obvious over
Albarda and Chang. “[Dependent claims are nonobvious if the independent
claims from which they depend are nonobvious.” In re Fritch, 972 F.2d at
1266. The Examiner cites Leddy for its disclosure of using peak signal
levels to determine (differentiate between) analyte concentrations and cites
Forrester as disclosing a system that determines too-early peaks in BAC
testing and eliminates or discards such signals as not indicative of actual
BAC. Leddy and Forrester do not overcome the shortcomings of the
Albarda-Chang combination identified above with respect to claims 1 and 14
(it does not teach the calculating limitation). Therefore, we reverse this
rejection.
The rejection of claims 10—12 and 20 over Albarda, Chang, Leddy,
and Forrester
Claim 10 does not include the limitation of claim 1 we identify, supra,
as lacking in the Albarda-Chang combination. Claim 10, other than
providing a system like that recited by claim 1, requires, generally,
measuring flow, measuring a time interval, measuring a peak sensor output,
relaying these three variable measurements to a processor, determining if the
peak occurred while the breath was still being provided and, if so, alerting
the user. The Examiner determined that such subject matter was obvious
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over the combination of Albarda and Chang, as discussed above regarding
claim 1, and also including Leddy’s disclosure of utilizing the peak sensor
output in similar breath testing analysis and Forrester’s disclosure of a
similar breath alcohol testing device that identifies too-early BAC signal
peaking as not indicative of alveolar air sampling and so discards such data.
Final Action 9 (citing Leddy (11:58—12:12, 18:10-54, 2:33—40, 7:1—32)
Forrester (1:25—50)).
We find the Examiner has established that claim 10 would have been
obvious over the cited prior art. Further, we find there would have been
motivation to combine the cited prior art, at least because each reference is
directed to devices and techniques for analyzing breath analyte
concentrations. Thus, combining the various attributes of each reference’s
disclosed subject matter would have been obvious and reasonably expected
to succeed. Appellant has not produced evidence showing, or persuasively
argued, that the Examiner’s determination is incorrect. We address
Appellant’s arguments below.
Similar to Appellant’s arguments for the patentability of claim 1, here
Appellant argues the prior art combination does not teach the processing
device recited by claim 10 or the transmission of measurement data thereto.
App. Br. 29-31. We did not find this argument persuasive with regard to
claim 1 and do not find it persuasive with regard to claim 10. As discussed,
supra, Albarda’s indicator, or even its alcohol meter, holding circuit, and
indicator grouped as a unit, is considered to be a processor (and it was well
known that a microprocessor could be used in place of such sensor output
analyzing elements, as evidenced by Leddy (9:54—58, 16:5—7, claim 8), and
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Forrester (5:5—6)). The mere inclusion of such a routine component of
breathalyzer systems and its use in a customary way does not confer
patentability here.
Appellant argues that Forrester cannot be combined with Chang
because Forrester utilizes an infrared sensor and Chang uses an
electrochemical fuel cell sensor. App. Br. 31—32. We are not persuaded.
Forrester is not cited for the type of sensor it utilizes, but is cited for the
principle that if a BAC test produces a peak signal too early in the test
(before alveolar air is tested), then the test is not indicative of BAC.
Appellant argues the cited prior art combination does not teach the
breath channel is in communication with the flow rate sensor and gas sensor.
Id. at 32. This is not persuasive. Such a system is obvious over the system
of Albarda, which is disclosed as having its sensor and gas meter on the
same breathing tube. See Albarda, Fig. 1.
Appellant argues that the system of the combination of the cited prior
art would not require a volume measurement to calculate BAC. This is not
persuasive. Unlike claim 1, which recites a definitive relationship between
breath flow rate and gas analyte calculation, claim 10 only requires
measuring certain variables, not that such a flow rate variable is used in
calculating gas levels or that the gas levels calculated is proportional to
breath flow rate.
For the reasons above, we are not persuaded by Appellant’s
arguments regarding claim 10 and we affirm the rejection.
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The rejection of claim 13 over Albarda, Chang, Leddy, Forrester, and
Rodder
Claim 13 depends from independent claim 10 and adds “wherein the
flow rate sensor comprises a temperature sensor.” The Examiner cites
Rodder (2:30-3:7) as disclosing using a thermistor to measure breath flow
rate. Final Action 10. We note, Chang also discloses using a thermistor to
detect breath flow in a sensor system. Chang 6:28—30, 8:20-55. We agree
with the Examiner’s determination that adding Rodder’s (or Chang’s)
thermistor to the otherwise combined Albarda, Chang, Leddy, and Forrester,
would have been obvious as it is merely substituting one known sensor for
another to a predicable end.
Appellant’s arguments over claim 13 are largely cumulative of those
discussed above and are not persuasive. App. Br. 37—38.
We affirm the rejection.
SUMMARY
The rejection of claims 1—3, 5, 14, 15, and 23 over Albarda and Chang
is reversed with respect to claims 1—3, 5, 14, and 15, and is affirmed with
respect to claim 23.
The rejection of claim 4 over Albarda, Chang, and Rodder is reversed.
The rejection of claims 6 and 16 over Albarda, Chang, and Fiorenza is
reversed.
The rejection of claims 7 and 17 over Albarda, Chang, and Leddy is
reversed.
The rejection of claims 7, 8, 17, and 18 over Albarda, Chang, and
Chow is reversed.
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The rejection of claims 9 and 19 over Albarda, Chang, Leddy, and
Forrester is reversed.
The rejection of claims 10-12 and 20 over Albarda, Chang, Leddy,
and Forrester is affirmed.
The rejection of claim 13 over Albarda, Chang, Leddy, Forrester, and
Rodder is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
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