Ex Parte Younes

Board of Patent Appeals and Interferences

Sep 25, 2003

08786957 (B.P.A.I. Sep. 25, 2003)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 26
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte MAGDY YOUNES
____________
Appeal No. 2003-1548
Application No. 08/786,957
____________
ON BRIEF
____________
Before COHEN, STAAB and BAHR, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 1-8,
which are all of the claims pending in this application. An amendment after final (see
Paper No. 20) has been entered.
We REVERSE.
BACKGROUND
The appellant’s invention relates to an endotracheal tube for patient ventilation
and for measuring airway pressure. Further understanding of the invention may be
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Application No. 08/786,957
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obtained from a reading of claim 1, which is reproduced in the opinion section of this
decision.
The examiner relied upon the following prior art references in rejecting the
appealed claims:
McGrail 4,584,998 Apr. 29, 1986
Lee 4,672,974 Jun. 16, 1987
The sole rejection before us for review is as follows:
Claims 1-8 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
McGrail in view of Lee.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejection, we make reference to the answer
(Paper No. 24) for the examiner's complete reasoning in support of the rejection and to
the brief (Paper No. 23) for the appellant’s arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. For the reasons
which follow, we cannot sustain the examiner’s rejection.
Claim 1, the sole independent claim on appeal, reads as follows:
1. An endotracheal tube for patient ventilation and for
measuring airway pressure comprising:
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Application No. 08/786,957
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an elongate wall enclosing and defining an
unobstructed elongate passage for delivery of ventilating gas
through an open end thereof to a patient airway,
a chamber formed in said elongate wall adjacent said
open end of said elongate passage, said chamber having a
highly pliant exterior wall which permits airway pressure to
be transmitted directly to the chamber, and
a lumen formed in said elongate wall extending from
said chamber to a location remote from said chamber
connected at such a remote location to a pressure
measuring apparatus for measuring airway pressure
determined by movement of the exterior wall of said
chamber causing compression and decompression of gas in
said chamber in response to changes in airway pressure
and the presence of gas in the lumen.
McGrail discloses an endotracheal tube comprising a plastic tube 4 having a
distal end 6, a central body portion 8 and a proximal end 7. McGrail’s tube comprises a
plurality of lumens, including an irrigation or monitoring lumen 40 for monitoring
pressure (see column 6, lines 40-42) formed in the wall 35 of the tube, as shown in
Figures 2-4. The lumen 40 ultimately communicates at the distal end of the tube with
the inner wall 32 such that the distal opening 42 thereof is located just inside the distal
tip of the tube. While McGrail does mention the use of “pressure sensitive devices”
(column 5, line 52) in connection with the lumen 40, McGrail does not specify the
details of such pressure sensitive devices.
Lee discloses a catheter-tip gauge-pressure transducer system for measurement
of pressure within a body conduit or vessel (column 1, lines 41-42) including a
pressure-responsive diaphragm having a “front” or “pressure-measuring” side 12 and a
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Application No. 08/786,957
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transducer element at the “back” of the diaphragm which provides an electrical signal
related to displacement of the diaphragm (column 4, line 65, to column 5, line 3). A
lumen 11 runs through the catheter for conducting air at substantially atmospheric
pressure from the open proximal end 11p of the lumen to the “back” or “reference
pressure” side of the diaphragm near the distal end 11d of the lumen so as to make the
transducer system read gauge pressure, the pressure relative to the atmosphere
(column 5, lines 5-11). The transducer system also includes electrical leads 17 running
between the transducer element and an external electronics package 20 including a
power and signal processing unit 21 with output leads 22 to a display device 23. The
electrical leads 17 may run through the lumen or be embedded in the solid wall or
center of the catheter.
The examiner concedes on page 3 of the answer that McGrail lacks a chamber
formed in the wall 35 adjacent the open end of the elongate passage having a highly
compliant exterior wall and a lumen formed in the wall extending from the chamber to a
pressure measuring apparatus for measuring airway pressure determined by movement
of the exterior wall causing compression and decompression of gas in the chamber in
response to changes in airway pressure and the presence of gas in the lumen, as
called for in claim 1. According to the examiner, it would have been obvious “to modify
the pressure monitoring lumen of McGrail to be of any well known configuration which
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Application No. 08/786,957
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suits the purpose of measuring airway pressure including the use of a chamber having
a highly pliant exterior wall as taught by Lee” (answer, page 4).
Appellant argues (1) that, since Lee is directed to a “catheter-tip” gauge-pressure
transducer and not specifically to an endotracheal tube, it would not have been obvious
to use Lee’s pressure transducer system in combination with an endotracheal tube and
(2) that, even if combined, the invention recited in claim 1 would not result. In light of
Lee’s reference to pressure measurement using catheter-tip pressure transducers for
measuring pressure within a patient’s blood stream or within some other conduit or
vessel in the body (column 1, lines 39-42) and McGrail’s teaching (column 1, lines 9-24)
of the interchangeable use in the medical art of the terms “catheters” and “tubes” and
the use of the term “catheter” to describe a variety of devices, such as endotracheal
tubes, we agree with the examiner that one of ordinary skill in the art would have
recognized the applicability of Lee’s catheter-tip gauge-pressure transducer system in
combination with an endotracheal tube. In our view, it would have been obvious to one
of ordinary skill in the art to modify the configuration of McGrail’s lumen 40 so as to
communicate the distal end thereof with the external wall of the tube and to provide a
diaphragm and transducer at said distal end and to conduct air at atmospheric pressure
to the “back” or “reference pressure” side of the diaphragm, with electrical leads running
from the transducer through the lumen 40 to an external electronics package, as taught
by Lee to achieve the calibration advantages identified by Lee. Nevertheless, the
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1 Lee’s remote electronics package 20 does not itself measure pressure, but rather simply
receives and processes an electrical signal from the pressure-measuring transducer.
modification of McGrail suggested by Lee would not result in the invention of claim 1.
Specifically, Lee teaches placing the pressure-measuring transducer, which forms at
least part of the structure which corresponds to “pressure measuring apparatus for
measuring airway pressure”1 recited in appellant’s claim 1, at the “back” side of the
diaphragm, near the distal end of the tube, and thus cannot be considered to be at a
“location remote from the chamber,” as called for in claim 1, the chamber being that
portion of the lumen in the vicinity of the diaphragm.
For the foregoing reasons, the combined teachings of McGrail and Lee are not
sufficient to have suggested the subject matter of independent claim 1 or claims 2-8
depending from claim 1. It follows that we shall not sustain the examiner’s rejection.
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CONCLUSION
To summarize, the decision of the examiner to reject claims 1-8 under 35 U.S.C.
§ 103(a) is reversed.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
Appeal No. 2003-1548
Application No. 08/786,957
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MICHAEL I. STEWART
SIM & MCBURNEY
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