Mark D'Angelo et al.Download PDFPatent Trials and Appeals BoardMay 27, 202013976038 - (D) (P.T.A.B. May. 27, 2020) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/976,038 06/26/2013 Mark Dominic D'Angelo 2011P00071WO US 5644 24737 7590 05/27/2020 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus Avenue Suite 340 Valhalla, NY 10595 EXAMINER MURPHY, VICTORIA ART UNIT PAPER NUMBER 3785 NOTIFICATION DATE DELIVERY MODE 05/27/2020 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): katelyn.mulroy@philips.com marianne.fox@philips.com patti.demichele@Philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARK DOMINIC D’ANGELO and BENJAMIN IRWIN SHELLY Appeal 2019-006263 Application 13/976,038 Technology Center 3700 ____________ Before JAMES A. WORTH, KENNETH G. SCHOPFER, and BRADLEY B. BAYAT, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–21. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “KONINKLIJKE PHILIPS ELECTRONICS N.V.” Appeal Br. 2. Appeal 2019-006263 Application 13/976,038 2 BACKGROUND The Specification “relates to measuring continuity of therapy associated with a respiratory treatment device.” Spec. 1. CLAIMS Claims 1, 6, and 11 are the independent claims on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A method for measuring continuity of therapy associated with a respiratory treatment device with a system including one or more processors, the method comprising: receiving, with the one or more processors, information relating to therapy administered via the respiratory treatment device to a subject during a therapy session, the therapy session being a single period of therapy during which the respiratory treatment device is operating continuously; determining, with the one or more processors, based on the received information, a quantity of therapy interruption events that occurred during the therapy session, the therapy interruption events indicating events that interrupt therapy administered to the subject during the therapy session, wherein a therapy interruption event includes one or more of, a ramp sequence of the respiratory treatment device being engaged during the therapy session, or the respiratory treatment device being disconnected from the subject during the therapy session; and determining, with the one or more processors, a continuity indicator based on the quantity of therapy interruption events that occurred during the therapy session, the continuity indicator indicative of continuity of therapy associated with the respiratory treatment device during the therapy session. Appeal Br. 16. Appeal 2019-006263 Application 13/976,038 3 REJECTIONS 1. The Examiner rejects claims 1–21 under 35 U.S.C. § 102(e) as anticipated by Yruko.2 2. The Examiner rejects claims 1–21 under 35 U.S.C. § 103(a) as unpatentable over Yruko in view of Deighan.3 DISCUSSION Anticipation Each of the independent claims requires receiving information regarding “therapy administered via the respiratory treatment device to a subject during a therapy session, the therapy session being a single period of therapy during which the respiratory treatment device is operating continuously.” With respect to this claim requirement, the Examiner finds that Yruko teaches using one or more processors to receive information related to a therapy session, which is “equivalent to [Yruko’s] measurement cycle” that contains seven compliance periods in Yruko’s example 1. Final Act. 3. The Examiner further finds that this therapy session is a single period of therapy in which the device is operating continuously because Yruko teaches that the device continuously monitors usage during this seven day compliance period. Id. Appellant argues that Yruko’s measurement cycle including “[s]even individual periods, which each have their own starting and stopping times, and include[s] periods of time where therapy is not provided to a patient at all, do not a single period of therapy where therapy is delivered to the 2 Yruko et al., US 7,890,342 B1, iss. Feb. 15, 2011. 3 Dieghan et al., US 5,517,983, iss. May 21, 1996. Appeal 2019-006263 Application 13/976,038 4 subject continuously.” Appeal Br. 10 (emphasis omitted). As discussed below, we agree with Appellant. We determine the scope of the claims in patent applications based upon giving claims “their broadest reasonable interpretation consistent with the specification” and “in light of the specification as it would be interpreted by one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). After review of the Specification, we determine that the Examiner’s implied interpretation of the claimed therapy session is unreasonably broad because it is not consistent with how one of ordinary skill in the art would interpret the claim language in light of the written description provided in the Specification. In particular, the Specification describes: sensor 110 is configured to generate output signals conveying information relating to therapy administered via respiratory treatment device 102 to subject 108 during a therapy session. A therapy session may include a single period of therapy (e.g., a single night), a portion of a period of therapy (e.g., three hours during a night), and/or a series of periods of therapy (e.g., several nights). By way of non-limiting example, information relating to therapy administered via respiratory treatment device 102 to subject 108 during a therapy session may include interactions with the respiratory treatment device by the subject 108 ( e.g., turning therapy on or off, pressing the ramp button, and/or other input to the device), connects/disconnects from respiratory treatment device 102 by the subject, and/or information indicative thereof ( e.g., leak, total airflow, subject airflow, and/or other device performance metrics), and/or other information relating to the therapy. Spec. 7. This portion of the written description provides that a therapy session is a broader term than “period of therapy” and that a therapy session may include multiple periods of therapy. The Specification also makes a Appeal 2019-006263 Application 13/976,038 5 distinction between administered therapy and a therapy session. See, e.g., Spec. at 15 (“information relating to therapy administered via a respiratory treatment device to a subject during a therapy session”). One of ordinary skill in the art would understand that therapy is only “administered” when the device is operating to provide respiratory treatment. Thus, one of ordinary skill in the art would understand from the Specification that a therapy session may include multiple periods of therapy and that these periods of therapy are periods during which respiratory therapy is actually being provided by the treatment device. Based on the foregoing, the broadest reasonable interpretation of the claim requires receiving information related to therapy that is administered during a therapy session that is a single period of therapy such that the respiratory treatment device is continuously operating to administer therapy during a single period of time. In other words, one of ordinary skill in the art would understand the claim to require a therapy session that includes only a single period of time during which the respiratory treatment device is operating to provide continuous respiratory therapy. Even if we were to agree with the Examiner that Yruko teaches that the respiratory treatment device is “monitoring continuously” during the seven day compliance period, we are not persuaded that Yruko discloses receiving information related to administered therapy as required by the claim, i.e., based on the broadest reasonable interpretation of the claim, as discussed above. Specifically, as discussed, the claim requires the therapy session to include only a single period of time during which the treatment device is operating to provide continuous respiratory therapy. The claim further requires determining a quantity of therapy interruption events that Appeal 2019-006263 Application 13/976,038 6 occur during such a therapy session. Yet, Yruko only discloses determining the number of periods, during a week-long measurement cycle, in which the respiratory treatment device was in use for a predetermined period of time. See Yruko col. 5, ll. 42–54. The Examiner has not established that Yruko makes any determination regarding a quantity of interruption events during a single period of time during which the treatment device is operating to provide continuous respiratory therapy. For these reasons, we determine that the Examiner has not established that Yruko anticipates any of the independent claims. Accordingly, we do not sustain the rejection of independent claims 1, 6, and 11 as anticipated by Yruko. For the same reasons, we do not sustain the anticipation rejection of the dependent claims. Obviousness With respect to the obviousness rejection, the Examiner specifically relies on Yruko as teaching “determining a quantity of therapy interruption events that occurred during the therapy session.” See Ans. 4. As discussed above, we find that Yruko does not disclose such a determination. Thus, for the reasons previously discussed and because the Examiner does not rely on Deighan to cure the deficiency, we do not sustain the obviousness rejection of claims 1–21. CONCLUSION We REVERSE the rejections of claims 1–21. In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1–21 102(e) Yruko 1–21 1–21 103(a) Yruko, Deighan 1–21 Appeal 2019-006263 Application 13/976,038 7 Claims Rejected 35 U.S.C. § Basis Affirmed Reversed Overall Outcome 1–21 REVERSED Copy with citationCopy as parenthetical citation