Ex Parte Matthews et al

Patent Trial and Appeal Board

Feb 25, 2016

11924275 (P.T.A.B. Feb. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111924,275 10/25/2007 Greg Matthews
30031 7590 02/29/2016
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
P.O. BOX 3001
BRIARCLIFF MANOR, NY 10510
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2001P03l77US02 1964
EXAMINER
PATEL, NIHIR B
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
02/29/2016 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):
debbie.henn@philips.com
marianne.fox@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREG MATTHEWS, WINSLOW K. DUFF, DANIEL MARTIN,
UDA Y S. SHANKAR, and HEATHER RESSLER
Appeal 2013-007597 1,2
Application 11/924,275
Technology Center 3700
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
BRUCE T. WIEDER, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1, 2, 7, 9-11, and 16-23. We have jurisdiction under 35 U.S.C.
§ 6(b ).
1 Our decision references Appellants' Specification ("Spec.," filed Oct. 25,
2007), Appeal Brief ("Appeal Br.," filed Oct. 18, 2012), and Reply Brief
("Reply Br.," filed May 22, 2013), as well as the Examiner's Answer
("Answer," mailed Mar. 29, 2013).
2 Appellants identify the real parties in interest as "RIC Investments LLC,
and Koninklijke Philips Electronics N.V., which is a parent corporation of
RIC Investments LLC." Appeal Br. 1.
Appeal2013-007597
Application 11/924,275
We REVERSE.
According to Appellants, the invention "pertains to a pressure support
system and method of treating disordered breathing, and, in particular, to [a]
bi-level auto-titration pressure support system and to a method of
automatically titrating a pressure support system to optimize the inspiratory
and expiratory pressure delivered to the patient." Spec. i-f 2. Claims 1, 10,
and 19 are the only independent claims on appeal. We reproduce
independent claim 1 as representative of the appealed claims.
1. A bi-level auto-titration pressure support system
compnsmg:
(a) a pressure generating system adapted to generate a flow
of breathing gas at an inspiratory positive airway pressure (IP AP)
during inspiration and at an expiratory positive airway pressure
(EP AP) during expiration;
(b) a patient circuit having a first end adapted to be
coupled to the pressure generating system and a second end
adapted to be coupled to an airway of a patient;
( c) a monitoring system associated with the patient circuit
or the pressure generating system and adapted to measure a
parameter indicative of a pressure at a patient's airway, a flow of
gas in such a patient's airway, or both and to output a pressure
signal, a flow signal indicative thereof, respectively, or both; and
( d) a controller coupled to the monitoring system and the
pressure generating system, for controlling the pressure
generating system based on the output of the monitoring system,
wherein the controller is programmed to monitor each of the
following conditions: (1) snoring, (2) apneas, (3) hypopneas, and
( 4) a big leak in the pressure support system, wherein the big leak
is a system leak that is substantially greater than any intentional
system leaks, and wherein the controller is programmed to: (a)
increase the EP AP without changing the IP AP, responsive to a
determination that the patient is experiencing only apneas and
not hypopneas, or is experiencing a combination of apneas and
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Application 11/924,275
hypopneas, (b) decrease the IP AP without changing the EP AP,
responsive to a detection of the big leak, ( c) increase the IP AP
without changing the EP AP, responsive to a determination that
the patient is experiencing only hypopneas and not apneas, and
( d) either increase the EP AP without changing the IP AP [or sic]
increase the IP AP without changing the EP AP responsive to a
determination that the patient is snoring.
Appeal Br., Claims App.
REJECTION AND PRIOR ART
The Examiner rejects claims 1, 2, 7, 9-11, and 16-23 under 35 U.S.C.
§ 102(b) as anticipated by Froehlich (US 5,551,419, iss. Sept. 3, 1996). See
Answer 4--12.
ANALYSIS
Claims 1, 2, 7, 9-11, and 16-18
Independent claim 1 recites:
wherein the controller is programmed to: (a) increase the EP AP
without changing the IP AP, responsive to a determination that
the patient is experiencing only apneas and not hypopneas, or is
experiencing a combination of apneas and hypopneas, (b)
decrease the IP AP without changing the EP AP, responsive to a
detection of the big leak, ( c) increase the IP AP without changing
the EP AP, responsive to a determination that the patient is
experiencing only hypopneas and not apneas, and ( d) either
increase the EP AP without changing the IP AP [or sic] increase
the IP AP without changing the EP AP responsive to a
determination that the patient is snoring.
Appeal Br., Claims App. Independent claim 10 recites a similar limitation.
See id.
The Examiner relies on Froehlich's description of a bi-level operating
mode of controller 17 to teach the claimed controller programming. See
Answer 5---6 (citing Froehlich, col. 6, 11. 33--40). According to the Examiner,
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Application 11/924,275
Froehlich's disclosure of a bi-level mode in which the desired IPAP and
EP AP pressures may be set with pressure set input 23 inherently teaches a
controller programmed as recited in claims 1 and 10. See Answer 13-15
(citing Froehlich, col. 6, 11. 21-26). \Ve detenninei however, that the
Examiner fails to establish that Froehlich 's bi-level rnode teaches
independently adjusting these pressures in response to certain conditions, as
recited in independent claims 1 and 10. See Appeal Br. 5----7; see also Reply
Br. 1----4. For example, Froehlich' s disclosure of different IP AP and EP AP
pressures does not necessarily mean that there is an increase in the EP AP
without changing the IPAP, responsive to a determination that the patient is
experiencing only apneas and not hypopneas, or is experiencing a
combination of apneas and hypopneas, as required by the claims. See In re
Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) ("To establish inherency, the
extrinsic evidence must make clear that the missing descriptive matter is
necessarily present in the thing described in the reference, and that it would
be so recognized by persons of ordinary skill.") (citations and internal
quotation marks omitted).
Based on the foregoing, we do not sustain the rejection of independent
claims 1 and 10. We also do not sustain the rejection of dependent claims 2,
7, 9, 11, and 16-18.
Claims 19-23
Independent claim 19 recites:
wherein the controller is programmed to operate according to one
control layer in a set of prioritized control layers, wherein each
control layer in the set of prioritized control layers competes for
control of the pressure generating system with the other control
layers, and wherein each control layer implements a unique
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Application 11/924,275
pressure control process for controlling the IP AP, the EP AP, or
both.
Appeal Br., Claims App. (emphasis added). Appellants argue (see Appeal
Br. 9-11) that the Examiner erroneously relies on the alternative operating
modes of Froehlich's controller to teach the claimed set of prioritized control
layers (see Answer 9 (citing Froehlich, col. 5, 11. 5-15, 30-40, col. 6, 11. 35-
45)). In response to Appellants' argument, the Examiner relies on the bi-
level mode of Froehlich's controller for the claimed set of prioritized control
layers. See id. at 16-17 (citing Froehlich, col. 6, 11. 21-26). According to
the Examiner:
When defining inhalation as one control layer in a set of
prioritized control layers (the inhalation and exhalation define a
set of prioritized control layers) each control layer in the set of
prioritized control layers competes for control of the pressure
generating system with the other control layers, for example
when inhaling, the pressure generating system supplies more air
and when exhaling the pressure generating system supplies little
or no air.
Id. at 16 (original emphasis omitted, our emphasis added). Based on our
review of the record, the Examiner does not establish that Froehlich teaches
the claimed prioritized control layers. For example, the Examiner does not
point to anything in Froehlich disclosing that the various operating modes
are assigned a priority value and compete for control of the pressure
generating system, or that inhalation and exhalation are assigned a priority
value and compete for control. Further, we note that Froehlich discloses
that, in the bi-level mode, either more air or less air is supplied depending on
whether the patient is inhaling or exhaling, respectively, rather than based on
some priority value or values assigned to IP AP and EP AP. See, e.g.,
Froehlich, col. 3, 11. 6-15.
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Based on the foregoing, we do not sustain the rejection of independent
claim 19 and claims 20-23 that depend from claim 19.
DECISION
We REVERSE the Examiner's rejection under 35 U.S.C. § 102(b) of
claims 1, 2, 7, 9-11, and 16-23.
REVERSED
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