Mark D'Angelo et al.

Patent Trials and Appeals Board

May 27, 2020

2019006263 (P.T.A.B. May. 27, 2020)

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