Ex Parte Ujhazy et al

Patent Trial and Appeal Board

Jun 30, 2016

13030488 (P.T.A.B. Jun. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/030,488 02/18/2011
530 7590 07/05/2016
LERNER, DAVID, LITTENBERG,
KRUMHOLZ & MENTLIK
600 SOUTH A VENUE WEST
WESTFIELD, NJ 07090
FIRST NAMED INVENTOR
Anthony John Ujhazy
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.
RESMED 3.9-049 CON 2808
EXAMINER
DIXON, ANNETTE FREDRICKA
ART UNIT PAPER NUMBER
3778
NOTIFICATION DATE DELIVERY MODE
07/05/2016 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):
eOfficeAction@ldlkm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTHONY JOHN UJHAZY,
JONATHAN CALDWELL WRIGHT,
JOANNE ELIZABETH DREW, and
MICHAEL BERTHON-JONES
Appeal2014-000957
Application 13/030,488
Technology Center 3700
Before ANNETTE R. REIMERS, BRANDON J. WARNER, and
LEE L. STEPINA, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Anthony John Ujhazy et al. (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision to reject claims 1-26. Appeal Br. 2.
Claims 27---60 have been canceled. Id. We have jurisdiction under 35
U.S.C. § 6(b). An oral hearing in accordance with 37 C.F.R. § 41.47 was
held on June 16, 2016.
We REVERSE.
Appeal2014-000957
Application 13/030,488
CLAIMED SUBJECT MATTER
The claimed subject matter "relates to devices that may be used to
detect, diagnose, treat, manage and/ or prevent asthma symptoms in
patients." Spec. 1 :7-9, Fig. 2.
Claim 1, the sole independent claim on appeal, is representative of
the claimed subject matter and recites:
1. An apparatus for the delivery of treatment for a patient
with asthma, comprising:
a blower to generate a flow of breathable gas under
pressure, with an inlet for receiving breathable gas to said
blower,
a patient interface to provide said flow of breathable gas
to the respiratory system of a patient,
a conduit between said interface and said blower to lead
said flow of breathable gas to said interface,
a flow meter to generate a flow signal representative of
flow to the patient,
a controller to control said blower's generation of said
flow of breathable gas based in part on said flow signal, and
a cleaning device to clean said breathable gas to
substantially prevent allergen particulates from reaching the
patient.
REJECTIONS 1
I. Claims 1, 2, and 7-11 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Klockseth (US 5,950,621; iss. Sept. 14, 1999).
II. Claims 3 and 4 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Klockseth and Flaherty (US 5,776,213; iss. July 7,
1998).
1 The Examiner includes Froehlich (US 5,503,146; iss. Apr. 2, 1996) as
extrinsic evidence in the Advisory Action. See Adv. Act. 2 (mailed Mar. 25,
2013).
2
Appeal2014-000957
Application 13/030,488
Ill. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Klockseth and Drew (US 6,581,594 B 1; iss. June
24, 2003).
IV. Claim 12 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Klockseth and Cotner (US 5,645,054; iss. July 8, 1997).
V. Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Klockseth and Burton (US 6,349,724 Bl; iss. Feb. 26, 2002).
VI. Claims 14--17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Klockseth, Burton, and Remmers (US 6,286,508
Bl; iss. Sept. 11, 2001).
VII. Claims 18-26 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Klockseth and Riggs (US 5,186,166; iss. Feb. 16,
1993).
ANALYSIS
Rejection I
Claims 1, 2, and 7-11
Claim 1 recites an apparatus for the treatment of a patient with
asthma that includes, in relevant part, "a controller to control said blower's
generation of said flow of breathable gas based in part on said flow signal."
Appeal Br. 21, Claims App. The Examiner finds that Klockseth discloses
an apparatus for the treatment of a patient with asthma that includes "a
controller (16) to control the blower's (2) generation of breathing gas based
on the flow signal." Final Act. 2-3 (citing Klockseth, 4:26-30); see also
Ans. 12.2
2 We note that although Klockseth discloses Powered Air-Purifying
Respirators (PAPRs) (see Abstract), Klockseth states that "the invention may
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Appeal2014-000957
Application 13/030,488
Appellants contend that the portions of Klockseth cited by the
Examiner "merely describes collection, uploading, and analysis of data. As
such, [they do] not support the assertion that the 'data collection means'
controls the blower's generation of a flow of breathable gas based in part on
a flow signal." Reply Br. 3 (emphasis added); see also id. at 2; Appeal Br.
7-9. According to Appellants, the Examiner "repeatedly chang[es] the
disclosed purpose of the data collection module 16 into the 'controller' of
claim 1 as if it were a well-established undisputed fact. The disclosure of
Klockseth simply provides no basis for such a characterization of the data
collection module." Appeal Br. 15; see also id. at 7-9; Reply Br. 2-3.
Klockseth discloses:
The pump unit 2 also includes data collection electronics
16 which receives inputs from motor 8, battery 9, flow meter 10
and pressure sensors 11, 12 and 13. The collected data may be
time stamped every time a record is logged. Data processing
logic within the data collection module 16 responds to the inputs
to provide \~1arnings to the \~1earer. In particular, electronics 16
measures the instantaneous flow of filtered air through pipe 4,
and this is combined with a measurement of the time during
which the respirator has been in use to determine the volume of
air that has passed through filter 6. This information can be used
to provide an alarm when the filter nears or reaches the end of its
working life.
Klockseth, 4:27-39. In other words, data collection module 16 of
Klockseth receives and responds to inputs from motor 8, battery 9, flow
meter 10, and pressure sensors 11, 12, and 13 to provide warnings (an
alarm) to the wearer that filter 6 is nearing or reaching the end of its
working life. As to exerting any control, however, we agree with
be applied to any other form of respirator." Klockseth, 5:4-5.
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Appeal2014-000957
Application 13/030,488
Appellants that nothing in the above-cited portion of Klockseth, "identifies
that the 'data collection module' [16] of Klockseth controls a blower's
generation of a flow of breathable gas based in part on a flow signal."
Appeal Br. 7; see id. at 7-9. We further agree with Appellants that the
portions of Klockseth cited by the Examiner "merely describe[] a
component [data collection module 16] for collection, uploading, and
analysis of data." Reply Br. 2; see id. at 3; Appeal Br. 7-9; Final Act. 2-3;
Ans. 11-12. The Examiner does not direct us to any discussion in
Klockseth that data collection module 16 actually controls blower 2' s
generation of a flow of breathable gas based in part on a flow signal. See
Final Act. 2-3; Adv. Act. 2; Ans. 11-12. Moreover, column 4, lines 16-18,
of Klockseth merely discloses that electronic motor 8 drives fan 7 and
rechargeable battery 9 provides electrical power to the respirator. The
Examiner does not direct us to any discussion in Klockseth that motor 8
drives fan 7 "via operational instructions received by the 'data collections
electronics 16. "' Ans. 12. As such, based on the foregoing reasons, the
Examiner fails to establish by a preponderance of the evidence that
Klockseth anticipates the device of claim 1. 3
3 We note that any consideration of what a skilled artisan may deem obvious
regarding possible advantages of a controller to control a blower's generation
of the flow of breathable gas is immaterial to the anticipation rejection made
here and before us for review. We further note that the Patent Trial and
Appeal Board is a review body, rather than a place of initial examination, and
we therefore decline to make a determination of what a skilled artisan may
conclude; rather, we leave it to the Examiner to determine the appropriateness
of any further course of action based on such a conclusion should there be
further prosecution of this application.
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Appeal2014-000957
Application 13/030,488
Accordingly, we do not sustain the Examiner's rejection of
independent claim 1, and claims 2 and 7-11, depending directly or
indirectly therefrom, as anticipated by Klockseth.
Rejections II-VII
Claims 3-6 and 12-2 6
The Examiner's obviousness rejections of claims 3---6 and 12-26 are
each based on the same unsupported findings discussed above with respect
to independent claim 1. See Final Act. 3-8. The Examiner does not rely on
Flaherty, Drew, Cotner, Burton, Remmers, or Riggs to remedy the
deficiency of Klockseth regarding controlling the blower. Accordingly, for
reasons similar to those discussed above for claim 1, we do not sustain the
Examiner's obviousness rejections of claims 3---6 and 12-26.
DECISION
\Ve REVERSE the decision of the Examiner to reject claims 1-26
REVERSED
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