Ex Parte Hansen et al

Patent Trial and Appeal Board

Jun 4, 2013

11980256 (P.T.A.B. Jun. 4, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/980,256 10/30/2007 Craig N. Hansen E100.12.22 6691
87092 7590 06/04/2013
Bartz & Bartz, P.A.
6950 FRANCE AVENUE SOUTH, STE. 119
Edina, MN 55435
EXAMINER
YU, JUSTINE ROMANG
ART UNIT PAPER NUMBER
3771
MAIL DATE DELIVERY MODE
06/04/2013 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 CRAIG N. HANSEN, PAUL C. CROSS,
and LONNIE J. HELGESON1
__________

Appeal 2011-005153
Application 11/980,256
Technology Center 3700
__________

Before DONALD E. ADAMS, ERIC GRIMES, and MELANIE L.
McCOLLUM, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims relating to
an apparatus for increasing clearance of mucus from the respiratory tract.
The Examiner has rejected the claims as obvious. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm-in-part.

1 The real party in interest is Electromed, Inc. (Appeal Br. 1).
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STATEMENT OF THE CASE
“Abnormal respiratory mucus clearance is a manifestation of many
medical conditions such as pertussis [and] cystic fibrosis” (Spec. 1, ¶ 0003).
“Chest physiotherapy … is typically a part of standard medical regimens to
enhance respiratory mucus transport” (id. at 2, ¶ 0004). The Specification
discloses “a medical device used to deliver high-frequency chest wall
oscillations to promote airway clearance and improve bronchial drainage”
(id. at 8, ¶ 0019).
Claims 1-5 and 8-20 are on appeal. Claims 1 and 4 are representative
and read as follows (emphasis added):
1. An apparatus for applying pressure and high frequency pressure
pulses to the upper body of a person comprising:
a vest having a chamber for accommodating air adapted to be placed
about the upper body of a person,
an air pressure and high frequency air pressure pulse generator for
supplying air under pressure and air pressure pulses to the chamber of the
vest,
said generator having diaphragms,
an air pulsing chamber located between the diaphragms,
air pumping chambers associated with the diaphragms,
a manifold chamber open to the air pumping chambers to allow air to
flow from the air pumping chamber into the manifold chamber,
a check valve allowing air to flow from the manifold chamber to the
air pulsing chamber and prevent air from flowing from the pulsing chamber
to the manifold chamber,
a power transmission operable to move the diaphragms to pump air in
the pumping chambers and pulse air in the pulsing chamber,
a single electric motor drivably connected to the power transmission
for moving the diaphragms for different periods of time and varying speeds
to generate air pressure and high frequency air pressure pulses in the pulsing
chamber,
a member having an air passage connecting the air pulsing chamber of
the generator to the vest for transferring air pressure and high frequency air
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pressure pulses from the generator to the chamber of the vest whereby high
frequency pressure pulses are applied to the upper body of the person,
an electric motor controller operable to connect an electric power
supply to the electric motor,
said controller including first programmable electronic components
for controlling the time of operation of the electric motor to change the
duration of operation of the generator and
second programmable electronic components for controlling the
speed of the electric motor to change the frequency of the pressure pulses,
an airflow regulator for restricting the flow of air into the manifold
chamber of the generator to control the pressure of the air discharged by the
generator to the chamber of the vest,
said regulator including a valve having a passage to allow air to flow
through the valve,
an air flow restrictor located in the passage to regulate the flow of air
through said passage, and
a control having a manually operated member connected to the
restrictor to adjust the position of the restrictor in the passage thereby adjust
the rate of flow of air through the passage and into the manifold chamber of
the generator thereby manually controlling the pressure of the air in the
chamber of the vest.

4. The apparatus of Claim 1 including: electronic components for
randomly controlling the speed of the motor thereby randomly changing the
frequency of the pressure pulses.

Issue
The Examiner has rejected all of the claims on appeal under 35 U.S.C.
§ 103(a) as obvious in view of Hansen2 and Van Brunt.3 The Examiner
finds that the “only difference between claim 1 and Hansen is whether or not
the control includes programmable electronic components for controlling the
speed of the motor” (Answer 4).

2 Hansen, US 2002/0016560 A1, Feb. 7, 2002.
3 Van Brunt et al., US 7,121,808 B2, Oct. 17, 2006.
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The Examiner finds that “Van Brunt discloses an apparatus for
applying high frequency pressure pulses to the upper body of a person … in
which the device can be programmed to operate in different modes” using a
programmable controller (id.). The Examiner finds that Van Brunt discloses
“first programmable electronic components for controlling the time of
operation of the electric motor and … second programmable electronic
components for controlling the speed of the electric motor” (id.). The
Examiner concludes that it “would have been obvious to one of ordinary
skill in the art to modify Hansen to use a programmable controller as taught
by Van Brunt to better control the operation of the device … [because] Van
Brunt teaches the advantages of providing different programmable modes of
operation (SWEEP, STEP and MANUAL).” (Id. at 5.)
Appellants contend that combining Hansen’s device with Van Brunt’s
controller “does not result in programmable electronic components in an
open loop motor control system which are preset to a selected duration of
operation and speed of motor … as defined in the claims” (Appeal Br. 12).
Appellants also contend that the combined references do not disclose
electronic components for randomly changing the frequency of pressure
pulses, as recited in claims 4, 12, and 18 (id. at 14-15).
The issues presented are:
(1) Does the evidence of record support the Examiner’s conclusion
that it would have been obvious to modify Hansen’s device to include
programmable electronic components for controlling the speed and time of
operation of the motor?
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(2) Does the evidence of record support the Examiner’s conclusion
that Van Brunt discloses electronic components for randomly controlling the
speed of the motor?
Findings of Fact
1. The Examiner finds that Hansen discloses an apparatus that meets
all of the limitations of claim 1 except for a “control includ[ing]
programmable electronic components for controlling the speed of the motor”
(Answer 4). Appellants do not dispute this finding (see Appeal Br. 11-12).
2. Hansen discloses that “[k]nobs 71 and 72 are manually rotated to
adjust the frequency of the air pressure pulses and the air pressure in [the]
vest” (Hansen 4, ¶ 0050).
3. Hansen discloses that a “control knob 76 is used to select a time of
a treatment cycle” (id.).
4. Van Brunt discloses a “chest wall oscillation device that provides
greater ease of use by the patient” (Van Brunt, col. 1, ll. 38-40).
5. Van Brunt discloses that the device includes “a control board
which carries electronic circuitry for controlling the air pulse module” (id. at
col. 1, ll. 42-44).
6. Van Brunt discloses that a “user interface 28 allows patient P to
control air pulse generator 16” (id. at col. 3, ll. 40-41).
7. Van Brunt discloses that “[u]ser interface 28 also allows operation
of air pulse generator 16 in several different modes, such as MANUAL,
SWEEP or STEP” (id. at col. 3, ll. 40-41).
8. Van Brunt discloses that the “SWEEP mode presets air pulse
generator 16 to sweep over a range of oscillation frequencies.… SWEEP
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mode provides three different sweep ranges, although any number or range
of frequencies are programmable through user interface 28.” (Id. at col. 4,
ll. 36-41.)
9. Van Brunt discloses that “STEP mode presets air pulse generator
16 to step over a range of oscillation frequencies.… STEP mode provides
three different step ranges, although any number or range of frequencies is
programmable through user interface 28.” (Id. at col. 4, l. 65 to col. 5, l. 3.)
10. Van Brunt discloses that “[i]n SWEEP RUN and STEP RUN
modes, … [o]scillation proceeds through the pre-selected or default sweep
settings while the backlit display panel 110 shows relative pressure (using
vertical bars) and remaining session time…. The time counts down to zero in
whole minute increments.” (Id. at col. 8, l. 61 to col. 9, l. 3.)
11. Van Brunt states that “successful use [of chest wall oscillation
devices] in the home is dependent on regular use of the device by the
patient…. Ease of use is an important factor in gaining acceptable patient
compliance.” (Id. at col. 1, ll. 32-34.)
Analysis
The Examiner finds, and Appellants do not dispute, that Hansen
discloses an apparatus that meets the limitations of claim 1 except that it
does not include programmable electronic components for controlling the
speed or time of operation of the motor (Answer 3-4). Van Brunt discloses a
chest wall oscillation device that contains programmable electronic circuitry
that allows for programming of different frequencies of the pressure pulses
in “SWEEP mode” or “STEP mode” (FFs 7-9). Van Brunt’s device also
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includes programming to change the “session time” (FF 10); i.e., its motor’s
duration of operation.
It would have been obvious for one of ordinary skill in the art to
modify Hansen’s device to include programmable electronic components for
controlling the electric motor speed (and the pressure pulse frequency)
because Van Brunt discloses that programmable electronic components are
useful in providing different pulse frequency patterns such as “STEP”
patterns and “SWEEP” patterns. It would have been obvious for one of skill
in the art to modify the Hansen device to include programmable electronic
components that control the speed and time of operation of the air pulse
generator’s motor because Van Brunt discloses that making such devices
easy to use promotes regular use of the device, which is necessary for
successful in-home use of the device (FF 11).
Appellants argue that the Examiner’s conclusion that it would have
been obvious to modify Hansen’s device to “use a programmable controller
as taught by Van Brunt … is not supported by the structures and operations”
of Hansen and Van Brunt (Appeal Br. 12). Appellants argue that Hansen’s
apparatus has “an open loop motor control system” while Van Brunt’s
apparatus has programmable controls in “a closed loop motor control
system” with feedback systems (id.). Appellants argue that “[p]roviding
microprocessor controllers to host software required by Van Brunt would
render the Hansen device inoperable” (Reply Br. 5). Appellants argue that
there “is no teaching or suggestion of microprocessor controllers hosting
software specific to the Hansen device to control the time of operation and
speed of a single electric motor” (id.).
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This argument is not persuasive. “The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference.… Rather, the test is what the
combined teachings of those references would have suggested to those of
ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Here, the combined references would suggest including programmable
electronic components to control motor speed and time of operation in an
apparatus for applying high frequency pressure pulses to the upper body of a
person, because Van Brunt discloses such components and the advantage of
making such a device easy to use. Appellants have not provided evidence or
persuasive reasoning showing that modifying Hansen’s device to include
programmable controls like those disclosed by Van Brunt would not have
been routine for one of ordinary skill in the art.
Appellants also argue that claim 1’s
programmable electronic components do not merely provide an
automatic or mechanical means to replace a manual activity….
The first and second programmable electronic components
allow time and frequency settings to be stored for later preset
uses. Separate treatment protocols can be saved which allows
one-touch user-friendly control of preset treatments.
(Appeal Br. 13-14.)
This argument is also unpersuasive, because Appellants have not
provided a persuasive basis for concluding that the programmable
components recited in claim 1 differ from those in Van Brunt’s device that
carry out the programmable SWEEP and STEP modes.
Thus, we affirm the rejection of claim 1 as unpatentable based on
Hansen and Van Brunt. Claims 2, 3, 5, 8-11, 13-17, 19, and 20 have not
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been argued separately and therefore fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv).
Appellants also present arguments with respect to dependent claims 4,
12, and 18, which require “randomly controlling” the speed of the motor.
Appellants argue that the Examiner erred in finding that Van Brunt discloses
electronic components for randomly controlling the speed of the motor to
randomly change the frequency of the pressure pulses (Appeal Br. 14-15).
We agree with Appellants that the Examiner has not adequately
shown that the cited references disclose randomly controlling the speed of
the motor. The Examiner reasons that Van Brunt teaches a manual mode of
operation, and that “the user may change the frequency of the pressure
pulses randomly during Manual Run operation by merely using the up and
down arrow buttons…. The electrical components allow the patient to
randomly adjust the frequency of the pressure pulses.” (Answer 7-8.)
We disagree with the Examiner’s interpretation of the claims. When a
user changes the pulse frequency in Van Brunt’s apparatus by pushing the
up and down arrow buttons, the user is deliberately increasing or decreasing
the frequency by a particular amount. A deliberate change at a chosen time
by a chosen amount is not a random change. Thus, electronic components
that allow a deliberate change in pulse frequency are not electronic
components for “randomly controlling” the speed of the motor, as required
by claims 4, 12, and 18.
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that it
would have been obvious to modify Hansen’s device to include
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programmable electronic components for controlling the speed and time of
operation of the motor. However, the evidence of record does not support
the Examiner’s conclusion that Van Brunt discloses electronic components
for randomly controlling the speed of the motor.
SUMMARY
We affirm the rejection of claims 1-3, 5, 8-11, 13-17, 19, and 20 under
35 U.S.C. § 103(a). We reverse the rejection of claims 4, 12, and 18.
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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