Ex Parte Knepper

Board of Patent Appeals and Interferences

Jun 8, 2011

11035124 (B.P.A.I. Jun. 8, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte MICHAEL B. KNEPPER
____________________

Appeal 2009-012238
Application 11/035,124
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, LINDA E. HORNER, and FRED A.
SILVERBERG, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-012238
Application 11/035,124
2
STATEMENT OF CASE
Michael B. Knepper (Appellant) appeals under 35 U.S.C. § 134 from
the Examiner’s rejection of claims 1-8 under 35 U.S.C. § 102(e) as being
anticipated by Yurko (US 6,532,960 B1, iss. Mar. 18, 2003). We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
The Invention
The claims are directed to a method for acclimating a patient to
continuous positive airway pressure (CPAP) therapy. Spec., paras. 3 and 4.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A method for controlling startup of CPAP apparatus which
applies an IPAP pressure to a patient's airway during inhalation
and an EPAP pressure to the patient's airway during exhalation,
said method comprising the steps of applying a therapeutic
IPAP pressure to the patient's airway during a startup period,
and at the beginning of the startup period applying an EPAP
pressure below the therapeutic IPAP pressure to the patient's
airway and increasing the EPAP pressure to the therapeutic
IPAP pressure during the startup period.

OPINION
Claims 1-3
The acronym IPAP is recognized in the CPAP field as an “inspiratory
positive airway pressure,” and is the pressure provided during a patient’s
inspiratory phase. See, e.g., Spec., para. 4; Yurko, col. 1, ll. 34-36. The
acronym EPAP is recognized in the CPAP field as an “expiratory positive
airway pressure,” and is provided during the patient’s expiratory phase. See,
e.g., Spec., para.6; Yurko, col. 1, ll. 36-38. In rejecting claims 1-3, the
Examiner attempts to read the step of “increasing the EPAP pressure to the
Appeal 2009-012238
Application 11/035,124
3
therapeutic IPAP pressure during the startup period” on Yurko’s ramping of
the pressure curve 102 from the EPAP level at point 120 to the IPAP level at
point 125. See Ans. 3; Yurko, fig. 1B. However, Yurko does not describe
this ramping portion of the pressure curve as the EPAP pressure, or as an
increase in EPAP pressure. The only pressure on Yurko’s pressure curve
identified by Yurko as EPAP pressure is the portion of the curve to the left
of point 120 in figure 1B (points 130 and 140 in figures 1C1 and 1D),
andYurko’s pressure curve remains constant at level 105 over this portion of
the curve. Yurko describes the ramping portion from point 120 to point 125
as a transition from EPAP to IPAP. See Yurko, col. 3, ll. 38-42; col. 4, ll.
24-27.2 Indeed, Yurko discloses that point 120 in figure 1B represents the
end of the expiration phase, or the beginning of the inspiration phase.
Yurko, col. 4, ll. 19-24. Therefore, the ramping portion of Yurko’s pressure
curve does not represent expiratory positive airway pressure (EPAP), and
hence does not represent an increase in EPAP. Instead, Yurko shows EPAP
pressure remaining constant at level 105.
Accordingly, the Examiner’s finding of anticipation of the subject
matter of claim 1 is based in part on an erroneous finding that Yurko’s
ramping satisfies the step of “increasing the EPAP pressure to the
therapeutic IPAP pressure during the startup period” called for in claim 1.

1 Though not specifically discussed by Yurko, the portion of the pressure
curve labeled “105” on the right of figure 1C, also represents EPAP.
2 We note that Yurko incorporates by reference U.S. Patents 5,535,738 and
5,794,615, and U.S. Patent Application 09/041,195 (now U.S. Patent
6,105,575) for their teachings of “varying the IPAP and/or [EPAP] pressure
as a function of patient flow or a preestablished flow profile.” Yurko, col. 4,
ll. 28-34. The Examiner has not relied on this portion of Yurko’s disclosure,
and we have not reviewed the teachings of the incorporated patents to
determine whether they might anticipate or render obvious the subject matter
of the claims on appeal.
Appeal 2009-012238
Application 11/035,124
4
We do not sustain the rejection of claim 1, or of claims 2 and 3, which
depend from claim 1.
Claims 4-8
The Examiner’s rejection of claims 4-8 is similarly flawed. The
Examiner points out that Yurko teaches that the ramping need not be linear,
and can be, for example, exponential. See Ans. 4; Yurko, col. 4, ll. 25-27
(noting that the ramping may be any transitional waveform from one
generally constant level to another). However, the Examiner still relies on
the transitional ramping of the applied pressure from the generally constant
EPAP pressure. As discussed above, this ramping does not represent an
increase in EPAP pressure.
Accordingly, the Examiner’s finding of anticipation of the subject
matter of claim 4 is based in part on an erroneous finding that Yurko’s
ramping satisfies the steps of increasing the IPAP pressure and increasing
the EPAP pressure.
Moreover, claim 4 further requires steps of increasing the EPAP
pressure and the IPAP pressure along two different trajectories to the
predetermined therapeutic pressure during the startup period. Even if the
ramping portion of Yurko’s pressure curve were, as the Examiner contends,
an increase in EPAP pressure and an increase in IPAP pressure, in order to
reach the same therapeutic pressure as the IPAP pressure along that ramping
portion, the EPAP pressure would have to be increased along the same
trajectory as the IPAP pressure increase (i.e., the top of the ramp), not a
different trajectory as called for in claim 4. See Ans. 4. We do not sustain
the rejection of claim 4, or of claims 5-8, which depend from claim 4.

Appeal 2009-012238
Application 11/035,124
5
DECISION
For the above reasons, the Examiner’s decision is reversed.
REVERSED

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