Ex Parte Wedler et alDownload PDFPatent Trial and Appeal BoardAug 21, 201813960717 (P.T.A.B. Aug. 21, 2018) Copy Citation 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. 3 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). 4 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 Copy with citationCopy as parenthetical citation