SERVICES MEDICAUX ARNOLD ET JOAN ZIDULKA INC.

Patent Trials and Appeals Board

Oct 25, 2021

2021001149 (P.T.A.B. Oct. 25, 2021)

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.
15/798,866 10/31/2017 Arnold ZIDULKA P1610US00 9220
39500 7590 10/25/2021
Anglehart et al.
1939 de Maisonneuve Ouest
Montreal, QUEBEC H3H 1K3
CANADA
EXAMINER
STANIS, TIMOTHY A
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
10/25/2021 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):
james.anglehart@anglehart.et-al.ca
martine@anglehart.et-al.ca
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARNOLD ZIDULKA
Appeal 2021-001149
Application 15/798,866
Technology Center 3700
Before CHARLES N. GREENHUT, ANNETTE R. REIMERS, and
WILLIAM A. CAPP, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 9–21, 23, and 25–29. See Final
Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Services Medicaux
Arnold Et Joan Zidulka Inc. Appeal Br. 2.
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Application 15/798,866
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CLAIMED SUBJECT MATTER
The claims are directed to a device and method of delivering particles
in the upper respiratory tract. Claim 1, reproduced below, with emphasis
added, is illustrative of the claimed subject matter:
1. A method of delivering a dose of a substance to the pharynx
and nasal passages of a person, the method comprising:
a) the person placing a mouthpiece of a device in a mouth
of the person for orally administering said substance in aerosol
form or in powder form;
b) spraying said dose of said substance into a chamber in
communication with the mouthpiece, wherein the chamber is
configured to maintain particles of said substance in suspension
within the chamber until the person inhales the particles through
the mouthpiece;
c) the person inhaling said substance by oral inhalation
into the pharynx and the larynx of the person;
d) the device impeding said oral inhalation by the person
before any substantial amount of said substance reaches the
trachea, lower airways and lungs of the person;
e) in response to said impeding, the person arresting oral
inhalation;
f) the person preventing oral exhalation by closing a soft
palate of a roof of a mouth of the person against a tongue of the
person;
g) the person nasally exhaling said substance; and
h) repeating steps (c) through (g) a number of times within
one minute to deliver said dose.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Schuster US 5,906,202 May 25, 1999
Puderbaugh US 6,026,807 Feb. 22, 2000
Bethke US 8,371,292 B2 Feb. 12, 2013
Longest WO 2015/042352 A1 Mar. 26, 2015
Fattah, “The Frenzel Technique, Step-by-Step” (2001)
http://www.ericfattah.com/equalizing.html (last visited Oct. 15, 2021)

REJECTIONS
Claims 1, 9, 16–18, 20, 25, and 26 are rejected under 35 U.S.C. § 103
as unpatentable over Longest, Puderbaugh, or in the alternative Longest,
Puderbaugh, and Fattah. Final Act. 2.
Claims 27–29 are rejected under 35 U.S.C. § 103 as unpatentable over
Longest and Puderbaugh. Final Act. 7.
Claims 10–15, 21, and 23 are rejected under 35 U.S.C. § 103 as being
unpatentable over Longest, Puderbaugh (or Longest, Puderbaugh and
Fattah), and Schuster. Final Act. 9.
Claim 19 is rejected under 35 U.S.C. § 103 as being unpatentable over
Longest, Puderbaugh (or Longest, Puderbaugh and Fattah), and Bethke.
Final Act. 12.
OPINION
Concerning the disputed chamber limitation emphasized above and
appearing in each of the independent claims before us (claims 1 and 27) the
Examiner clarifies the position taken by the Examiner in the final rejection
by stating in the Examiner’s Answer:
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the primary reference of Longest already includes a chamber in
communication with the mouthpiece, whereby it is likely that
Longest already maintains aerosolized particles in suspension
until the person inhales (Longest, [0094]-[0095] discloses an air
space or air chamber that is configured to minimize the
deposition of the aerosol). Longest does not explicitly state that
aerosolized particles are kept in suspension until inhalation by
the patient. Insofar as addressing the chamber limitation, the
secondary reference of Puderbaugh is only being applied to
explicitly show that aerosolized particles in a spacer/chamber can
be held in suspension until the patient inhales. This position is
explained in the Final Rejection of 2/12/20 on Pages 3-4.
Puderbaugh is not being used to teach in the general concept of
a cloud chamber/spacer (the primary reference of Longest
already has this), but rather the concept of using the existing
spacer of Longest as a chamber that suspends particles until the
person inhales through the mouthpiece.
Ans. 14; see also Final Act 4 (“it is noted that the air spacer of Longest is
configured to minimize the deposition of the aerosol ([0095]), which implies
that the spacer of Longest is configured to maintain the particles in
suspension within the spacer until the person inhales the particles.”)
Facts upon which a rejection is predicated must be supported by a
preponderance of the evidence during prosecution before the PTO. In re
Caveney, 761 F.2d 671, 674, (Fed. Cir. 1985). Although this is a very close
case, the cited portions of Longest ultimately do not provide sufficient
evidence to support the Examiner’s findings concerning the purported
structure and function of Longest’s spacer or chamber by a preponderance of
the evidence. Longest does not provide detailed structural or functional
details of either the spacer or chamber.2 It appears, but is not entirely clear

2 At times Longest uses the terms “chamber” and “spacer” interchangeably.
See, e.g., paras. 95–98 (“Figs. 8A-8B illustrate actuation of an exemplary
embodiment of a chamber . . . In the embodiments of Figs. 8A-8B and Fig.
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from Longest, that the term “spacer” is sometimes used to refer to a structure
that seems to take the form of a simple passageway having an exit placed in
the patient’s mouth, in order to place the aerosol generator in fluidic
communication with the patient’s mouth. Paras. 95, 76. It appears, but is
again not entirely clear, that the term “chamber” is used, sometimes
interchangeably with the term “spacer,” to refer to what may take the form
of a slidable housing 88, or bag 108, used to store a volume of air or gas
(e.g., 88a), that is inhaled after the aerosol generator is fired. Paras. 76, 95–
96.
The preferred location for Longest’s chamber or spacer is “behind the
aerosol generator.” Para. 95; Figs 8A, 8B, 9. In such arrangements, it would
seem that the aerosol generator would not spray its contents “into [the]
chamber” as required by claims 1 and 27. See Figs 8A, 8B, 9 (illustrating the
aerosol spray being directed away from the chambers). It is noted that, in
paragraph 98, which was not cited by the Examiner, Longest does indicate
that “one of skill in the art will appreciate that the air spacer could be
disposed in front of the aerosol generator.” Such an arrangement is not
illustrated or discussed in detail and, as the Examiner recognizes, there is no
express indication that, even in such an arrangement, Longest’s spacer can

9, the air spacer is positioned behind the aerosol generator”; “Fig. 9
illustrates another exemplary embodiment of an air spacer . . . A flexible
chamber, such as a bag 108 is coupled to the inhaler 102”). At times Longest
suggests the “chamber” and “spacer” may be discrete structures. See, e.g.,
para. 94 (“the exemplary methods employed the use of an air chamber or a
chamber and a spacer”). The Examiner and Puderbaugh use the terms
“spacer” and “chamber” interchangeably. Final Act. 3; Puderbaugh col. 1, ll.
19, 22.
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“maintain particles of said substance in suspension within the chamber until
the person inhales the particles through the mouthpiece.” Reply Br. 2.
The minimization of deposition, cited by the Examiner to support the
Examiner’s determination that the particles in Longest must therefore be in
suspension (Final Act. 4 (citing Longest para. 95)), is discussed in greater
detail in Longest with reference to Figures 4A–7F. Longest para. 76 et seq.
Those figures illustrate computational fluid dynamic (CFD) modeling of an
arrangement wherein a “spacer” 242 does seem to be located “in front of the
aerosol generator.” However, this appears to be a situation wherein the
“spacer” is used to refer to a simple passageway with an exit placed in the
patient’s mouth. The CFD model does not detail the structure of the spacer.
As Appellant points out (Reply Br. 2), just because the aerosol is fired into
the spacer and minimal deposition occurs, it does not necessarily mean the
particles are maintained in suspension in the spacer until the patient inhales:
the aerosol could simply pass through the chamber while, or prior to, being
combined with air or gas from the spacer or chamber. Longest’s descriptions
of the inhalation processes (Longest para. 76 et seq.) do not make this clear,
and are, in any case, not cited or discussed by the Examiner. The possibility
that the aerosol could simply pass through the chamber while, or prior to,
being combined with air or gas from the spacer or chamber not only
undermines the Examiner’s conclusion with regard to Longest implicitly or
inherently teaching a “chamber [that] is configured to maintain particles of a
substance in suspension within the chamber until the person inhales,” it also
undermines the Examiner’s determination of the purported similarities of the
Longest and Puderbaugh chambers upon which the Examiner’s proposed
combination is based.
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The Examiner does not make clear how, in light of Puderbaugh,
effectiveness and efficiency would be improved by maintaining particles in
suspension in Longest’s chamber. See Final Act. 4 (“would have been
obvious . . . in order to deliver the medication in an effective and efficient
means with little unwanted deposition on the tongue or inside the mouth
(due to the use of the cloud chamber)”). Appellant argues Longest already
has a system of using hygroscopic expedients to discourage unwanted
deposition on the tongue or inside the mouth. App. Br. 11. The embodiments
of Longest utilizing pressurized, or mechanically advanced, air or gas would
also seem to be a mechanism for discouraging such unwanted deposition on
the tongue or inside the mouth without requiring the use of a cloud chamber
for maintaining particles in suspension. Appellant asserts that Longest would
therefore not further benefit, and may actually suffer, from the use of a cloud
chamber maintaining particles in suspension. App. Br. 12. Appellant also
sets forth other reasons why a cloud chamber of the type disclosed in
Puderbaugh would not be appropriate or effective in Longest. App. Br. 10–
13. The Examiner’s only rebuttal to all of Appellant’s arguments along these
lines is based on the insufficiently supported assertion that “Longest already
uses a spacer (Longest, [0095]), which is a cloud chamber.” Ans. 14–16. In
light of the arguments presented and the Examiner’s response, we cannot say
that, on the totality of the record before us, the Examiner has demonstrated
that the evidence of obviousness outweighs the evidence against.
For the foregoing reasons, we do not sustain the Examiner’s rejections
on the record presently before us for review.
CONCLUSION
The Examiner’s rejections are REVERSED.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 9, 16–18,
20, 25, 26
103 Longest,
Puderbaugh, with
or without Fattah
1, 9, 16–18,
20, 25, 26
27–29 103 Longest,
Puderbaugh
27–29
10–15, 21,
23
103 Longest,
Puderbaugh, with
or without Fattah,
Schuster
10–15, 21,
23
19 103 Longest,
Puderbaugh, with
or without
Fattah, Bethke
19
Overall
Outcome
1, 9–21, 23,
25–29

REVERSED