Ex Parte Wedler et al

Patent Trial and Appeal Board

Aug 21, 2018

13960717 (P.T.A.B. Aug. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/960,717 08/06/2013
13897 7590 08/23/2018
Abel Law Group, LLP
8911 N. Capital of Texas Hwy
Bldg 4, Suite 4200
Austin, TX 78759
FIRST NAMED INVENTOR
Wolfgang W edler
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.
6580-P50125 1060
EXAMINER
HEFFNER, NED T
ART UNIT PAPER NUMBER
3778
NOTIFICATION DATE DELIVERY MODE
08/23/2018 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):
mail@Abel-IP.com
hmuensterer@abel-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WOLFGANG WEDLER,
BJORN TIEMANN, and CHRISTOF GOBEL 1
Appeal2017-011062
Application 13/960, 71 7
Technology Center 3700
Before JAMES P. CAL VE, PAUL J. KORNICZKY, and
BRENT M. DOUGAL, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Office Action
finally rejecting claims 34--45. Appeal Br. 6. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 Loewenstein Medical Technology S.A. is identified as the real party in
interest. Appeal Br. 3.
Appeal 2017-011062
Application 13/960,717
CLAIMED SUBJECT MATTER
Claim 34, the sole independent claim on appeal, is reproduced below.
34. A ventilation device, wherein the ventilation device
comprises a breathing gas source, a control unit connected to at
least one sensor for detecting a test parameter, and a connecting
device for connecting the device to a ventilation mask, and
wherein
- the control unit comprises a step generator for
establishing a predetermined at least temporary, essentially
stepped change in an inspiratory pressure produced by the
breathing gas source;
- the at least one sensor is designed to measure a signal
corresponding to a change in pressure and is connected to an
analyzer which evaluates a change over time in ventilation
volume as analysis signal;
- the step generator increases the inspiratory pressure by
a pressure step during a ventilation cycle following a ventilation
cycle in which a measured value was evaluated if, after a
predetermined time period has elapsed following a preceding
pressure increase, the analyzer determines that the analysis
signal deviates from a limit value by more than a predetermined
difference, and wherein
- after a pressure increase the ventilation pressure is
maintained at a constant level for several ventilation cycles, and
a time interval after which a possible volume reduction is
automatically evaluated extends over several ventilation cycles
of inspiratory and expiratory phases.
Appeal Br. 11 (Claims App.).
REJECTION
Claims 34--45 are rejected under 35 U.S.C. § 102(b) as anticipated by
De Vires (US 5,474,062, iss. Dec. 12, 1995). 2
2 Both parties refer to this reference as De Vries. We refer to it as De Vires
throughout this decision.
2
Appeal 2017-011062
Application 13/960,717
ANALYSIS
The Examiner finds that De Vires discloses ventilator 30, as recited in
independent claim 34, with breathing gas source 32, controller 44 connected
to at least one sensor (proximal pressure transducer) for detecting pressure as
a test parameter, and a connecting device (air supply hose between ventilator
30 and a patient) capable of connecting ventilator 30 to a ventilation mask,
wherein controller 44 creates a stepped flow profile shown in Figures 4---6.
Final Act. 4. The Examiner finds that the stepped increase in flow shown in
Figures 4---6 is equivalent to a stepped increase in pressure because flow and
pressure are related by known equations and "result in increased pressure
delivery to the patient." Id. Based on this finding, the Examiner also finds
that Figure 4 of De Vires discloses the step generator increasing pressure as it
increases flow rate by a pressure step at a first step Ti of a ventilation cycle.
Id. at 5. The Examiner also reasons that De Vires' disclosure of maintaining
a constant pressure upstream of a ball valve while changing a position of the
ball valve varies the pressure outside ( downstream) of the ball valve and this
downstream pressure increase is similar to the pressure that is delivered to
the patient but for a small pressure drop in the connecting air supply tube.
See Ans. 2. As a result, the Examiner reasons that the pressure downstream
of the valve is necessarily varied by action of the valve. Id.
Appellants argue that the device of De Vires operates under a constant
pressure rather than variable pressure as claimed. Appeal Br. 7. Appellants
argue that De Vires discloses that the pressure upstream of orifice 64 of flow
control valve 42 (which delivers pressurized air to a patient) "is maintained
at a constant 20 psig" and pressure downstream of orifice 64 of flow control
valve 42 "is always approximately 16.7 psia or less." Appeal Br. 7-8.
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Appeal 2017-011062
Application 13/960,717
We appreciate the Examiner's findings and reasoning that changes in
the gas flow rate as illustrated in Figures 4---6 of De Vires may cause the gas
pressure to change downstream of flow control valve 42 as the flow rate is
increased. We also appreciate that any changes in gas pressure downstream
of flow control valve 42 may be viewed as "at least temporary, essentially
stepped change" as claimed in the gas pressure immediately downstream of
flow control valve 42. Indeed, De Vires appears to recognize such changes
by operating ventilator 30 with accumulator 38, regulator 40, and pulsation
dampener 41 upstream of flow control valve 42. See De Vires, 5 :55---6: 12,
Fig. 1. Thus, accumulator 3 8 acts as a reservoir for gas drawn during peak
demand periods. Regulator 40 maintains gas flowing from it at a constant
pressure of approximately 20 psig, which is "system pressure." Appeal Br.
7. Pulsation dampener 41 also compensates for rapid changes in flow rate
through regulator to maintain the system pressure constant at 20 psig. Id.
However, the Examiner has not established that stepped changes in
gas flow rate in De Vires necessarily result in a step generator establishing a
predetermined, at least temporary, essentially stepped change in inspiratory
pressure produced by the breathing gas source as claimed. Reply Br. 2. In
this regard, De Vires discloses that gas pressure downstream of orifice 64 of
flow control valve 42 "is a function of the resistance to flow through the
patient's airways and the resilience, or 'compliance,' of the patient's lungs
[and] [t]he less compliant the lungs are, the more pressure will be developed
in the lungs when filled with a given volume of gas [ so that] in adults with
the least compliant lungs, the maximum back pressure which is desirable to
establish within the lungs during normal ventilation is about 2 psig." See
De Vires, 8:66-9:6; see also Appeal Br. 7 (quoting De Vires, 8:49-9:25).
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Appeal 2017-011062
Application 13/960,717
De Vires also discloses that the pressure downstream of orifice 64 "is
always approximately 16.7 psia or less." De Vires, 9:7-8; Appeal Br. 7, 8
( quoting De Vires, 8:49-9:25). Thus, any pressure change resulting from a
change in flow rate does not necessarily result in a change, stepped or not,
of "inspiratory pressure produced by the breathing gas source" as claimed.
De Vires discloses that the proximal pressure at the patient and the machine
pressure measured just downstream of the flow control valve "should be
substantially the same, except that there will be a small pressure drop caused
by the air flow through the air supply tube from the ventilator to the patient."
De Vires, 35:30-37; see also Ans. 2, 3 (citing De Vires, 8:49-9:25).
We are not persuaded that increased flow results in increased pressure
when De Vires teaches that inspiratory pressure stays constant and pressure
drops across flow control valve 41. 3 Thus, stepped increases in flow are not
equivalent to stepped increases in inspiratory pressure. See Final Act. 4.
Nor does maintaining a constant pressure upstream of flow control valve 42
and varying the flow rate through valve 42 necessarily cause "both pressure
and flow [to be] increased in a stepwise fashion in De Vries" (see Ans. 3) in
view De Vires' teachings above to maintain respiratory pressure constant.
Thus, we do not sustain the rejection of claims 34--45.
DECISION
We reverse the rejection of claims 34--45.
REVERSED
3 De Vires discloses a pressure drop across flow control valve 42 from a
constant upstream pressure of about 34. 7 psia to a constant downstream
pressure of about 16.7 psia. De Vires, 8:49-51, 9:7-8.
5