Ex Parte Tehrani

Patent Trial and Appeal Board

Dec 7, 2013

11841806 (P.T.A.B. Dec. 7, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte FLEUR T. TEHRANI
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Appeal 2012-001852
Application 11/841,806
Technology Center 3700
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Before DONALD E. ADAMS, FRANCISCO C. PRATS, and ERICA A.
FRANKLIN, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL1
This appeal under 35 U.S.C. § 134 involves claims 1-5, 7-9, 11-19,
23-46, and 48-67 (App. Br. 4).2 Examiner entered rejections under 35
U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
The claims are directed to a method encoded on a data storage
medium as executable software for optimizing mechanical ventilation of a
patient, an apparatus for optimizing mechanical ventilation of a patient, and

1 The Real Party in Interest is the inventor, Dr. Fleur T. Tehrani (App. Br. 4).
2 Pending “[c]laims 6, 10, 20-22 and 47 stand objected to for being
dependent on rejected claims” (App. Br. 4).
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a method for automatically controlling a mechanical ventilator to wean a
patient from mechanical ventilation. Claims 1, 33, and 43 are representative
and are reproduced in the Claims Appendix of Appellant’s Brief.
Claims 33, 34, 40, 41, 43-45, 57, and 60 stand rejected under 35
U.S.C. § 103(a) as unpatentable over the combination of Biondi3 and
Wallace.4
Claims 1, 2, 11, 19, 23-32, 35-39, 42, 46, 58, 59, and 61-67 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of
Biondi, Wallace, and Clemmer.5
Claims 3-5, 7-9, 12-14, and 16-18 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Biondi, Wallace, Clemmer,
and Tehrani I.6
Claims 48-52 and 54-56 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Biondi, Wallace, and Tehrani I.
Claims 15 and 53 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Biondi, Clemmer, Wallace, Tehrani I,
and Tehrani II.7
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?

3 Biondi et al., US 6,463,930 B2, issued October 15, 2002.
4 Wallace et al., US 6,269,812 B1, issued August 7, 2001.
5 Clemmer et al., US 6,148,814, issued November 21, 2000.
6 Tehrani, US 4,986,268, issued January 22, 1991.
7 Fleur Tehrani, PhD, et al., CLOSED-LOOP CONTROL OF THE
INSPIRED FRACTION OF OXYGEN IN MECHANICAL VENTILATION,
17 JOURNAL OF CLINICAL MONITORING AND COMPUTING 367-376 (2002).
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FACTUAL FINDINGS (FF)
FF 1. Appellant discloses “[a] method of providing treatment advice for
patients on mechanical ventilation [that] includes[, inter alia,] . . . computing
and recommending optimal ventilator requirements” (Spec. 2: ¶ [0006]; see
also id. at 4-5: ¶ [0017] (“the invention may provide a fully automatic
control system for monitoring and operating the mechanical ventilator”)).
FF 2. Biondi suggests “a medical mechanical ventilator device adapted for
use in weaning a patient from mechanical ventilation” (Biondi, col. 1, ll. 47-
49).
FF 3. Biondi suggests that the device’s “display controller . . . may
calculate a value for the gas flow resistance,” which is then “provided to the
[device’s] embedded controller . . . [to] adjust[] one or more controls of the
pneumatic system . . . to compensate for the resistance to flow” (id. at col. 7,
ll. 41-47; see generally Ans. 5).
FF 4. Biondi suggests a simulator that “uses a set of breath parameters
provided by the clinician,” thereby allowing “the clinician . . . [to]
experiment with new or old settings, while the actual settings remain
unchanged and the patient . . . unaffected” (id. at 15, ll. 45-56; see also id. at
15, ll. 7-20; Ans. 5).
FF 5. Biondi suggest an Automatic Pressure Support (APS)-Variable
Pressure Control (VPC) device mode to wean “a patient from a ventilator,”
wherein the device automatically decreases the pressure support level at a
constant preset rate, once the patient has “transition[ed] from VPC to APS”
(id. at col. 20, ll. 27-39; see generally Ans. 5).
FF 6. Examiner finds that Biondi fails to suggest “receiving data indicative
of [a] patient’s ideal body weight to determine optimal ventilation” and
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relies on Wallace to make up for this defiency in Biondi (Ans. 5; see
Wallace, Abstract and col. 3, ll. 45-47 (Wallace suggests a ventilation
control system that comprises a processor “programmed to require that a so
called ‘ideal body weight’ be entered before beginning ventilation of a
patient”)).
FF 7. Examiner finds that the combination of Biondi and Wallace fails to
suggest the determination of “required levels of FIO and PEEP based on the
patient[’s] oxygen level data and the patient[’s] FIO and PEEP data” and
relies on Clemmer to make up for this deficiency in the combination of
Biondi and Wallace (Ans. 8).
FF 8. Examiner finds that the combination of Biondi, Wallace, and
Clemmer fails to suggest that “optimal respiratory rate is computed to
minimize respiratory work rate” and relies on Tehrani I to make up for this
deficiency in the combination of Biondi, Wallace, and Clemmer (Ans. 12).
FF 9. Examiner finds that the combination of Biondi and Wallace fail to
suggest the calculation of optimal respiratory rate and VALV as set forth in
Appellant’s claims 48-52 and 54-56, and relies on Tehrani I to make up for
this deficiency in the combination of Biondi and Wallace (Ans. 13-14).
FF 10. Examiner finds that the combination of Biondi, Wallace, and
Clemmer fails to suggest the formula for calculating PaO2 as set forth in
Appellant’s claims 15 and 23 and relies on Tehrani II to make up for this
deficiency in the combination of Biondi, Wallace, and Clemmer (Ans. 14).
ANALYSIS
Based on the combination of Biondi and Wallace, Examiner
concludes that, at the time Appellant’s invention was made, it would have
been prima facie obvious “to provide the database of Biondi with the
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additional input data of a patient’s ideal body weight to control a ventilator
as taught by Wallace to provide settings appropriate for a patient with a
specific ideal body weight” (Ans. 5-6).
Appellant’s claimed invention requires, inter alia, the device to
determine a patient’s optimal ventilation level based on a number of patient
specific measurements that includes respiratory airway resistance (see
Claims 1, 33, and 43; see also FF 1; Ans. 15 (“The term ‘optimum
ventilation’ can be defined as the level of ventilation required to sufficiently
and/or comfortably ventilate the patient”)). Accordingly, we are not
persuaded by Examiner’s alternative definition of “optimum ventilation,”
which simply requires the device to perform according to the parameters set
by a physician (see Ans. 15; see generally Reply Br. 4-5).
While, Biondi suggests automatically controlling a device’s
“pneumatic system . . . to compensate for the resistance to flow,” Biondi
fails to suggest a device or method that determines optimal ventilation levels
as required by Appellant’s claimed invention (see FF 3; Cf. FF 4-5 (wherein
user input is required to manipulate simulation values (FF 4) or preset values
(FF 5)); App. Br. 10 (“In Biondi, all comparison levels that determine the
weaning rules are set by the clinician and none is determined by the system
based on changing requirements of the patient”); Reply Br. 2-3; see also id.
at 3 (Allowing a “patient [to] exhale easier . . . has nothing to do with
changing ventilation to any ‘optimum’ value)).
Examiner failed to establish an evidentiary basis on this record to
support a conclusion that Wallace, Clemmer, Tehrani I or Tehrani II alone or
in combination make up for the foregoing deficiency in Biondi (see FF 6-
10).
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CONCLUSION OF LAW
The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness.
The rejection of claims 33, 34, 40, 41, 43-45, 57, and 60 under 35
U.S.C. § 103(a) as unpatentable over the combination of Biondi and Wallace
is reversed.
The rejection of claims 1, 2, 11, 19, 23-32, 35-39, 42, 46, 58, 59, and
61-67 under 35 U.S.C. § 103(a) as unpatentable over the combination of
Biondi, Wallace, and Clemmer is reversed
The rejection of claims 3-5, 7-9, 12-14, and 16-18 under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Biondi, Wallace, Clemmer,
and Tehrani I is reversed.
The rejection of claims 48-52 and 54-56 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Biondi, Wallace, and Tehrani I is
reversed.
The rejection of claims 15 and 53 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Biondi, Clemmer, Wallace, Tehrani I,
and Tehrani II is reversed.
REVERSED

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