WEINMANN GERAETE FUER MEDIZIN GMBH + CO. KG

Patent Trials and Appeals Board

May 28, 2021

2020006027 (P.T.A.B. May. 28, 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.
14/300,662 06/10/2014 Arnold FRERICHS 6580-P50144 6795
13897 7590 05/28/2021
Abel Schillinger, LLP
12414 Alderbrook Drive
Suite 201
Austin, TX 78758
EXAMINER
MURPHY, VICTORIA
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
05/28/2021 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):
hmuensterer@abel-ip.com
mail@Abel-IP.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ARNOLD FRERICHS and MARTIN BECHTEL

Appeal 2020-006027
Application 14/300,662
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, KENNETH G. SCHOPFER, and
AMEE A. SHAH, 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 41–51 and 53. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

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
“LOEWENSTEIN MEDICAL TECHNOLOGY S.A.” Appeal Br. 3.
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BACKGROUND
The Specification discloses that “[t]he invention relates to a head
harness for positioning a patient interface on the head of a user.” Spec. 1,
ll. 9–10.
INDEPENDENT CLAIM
Claim 41 is the only independent claim on appeal and recites:
41. A set of holding arrangements for a head harness, wherein
the set of holding arrangements comprises at least a first holding
arrangement for an upper portion of a patient interface and a
second holding arrangement for a lower portion of the patient
interface, which first and second holding arrangements comprise
identification markings in a region of the patient interface which
render the first holding arrangement distinguishable from the
second holding arrangement, wherein said first and second
holding arrangements are configured differently for the upper
and lower portions of the patient interface, wherein the set further
comprises a plurality of holding elements which serve to connect
the head harness to the patient interface at at least four contact
points, wherein the identification markings are provided by
similar coloring of corresponding components of the plurality of
holding elements of the first and second holding arrangements,
which corresponding components of the first and second holding
arrangements comprise at least two of a harness clip, an adapter,
and a mount, and wherein an inner side and an outer side of the
head harness are designed in different colors.
Appeal Br. 14.
REJECTIONS2
1. The Examiner rejects claim 44 under 35 U.S.C. § 112(b) as indefinite.

2 The Examiner has withdrawn the rejection under 35 U.S.C. § 112(a). See
Ans. 3.
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2. The Examiner rejects claims 41–51 and 53 under 35 U.S.C. § 103(a) as
unpatentable over Lubke3 in view of Rummery4 and cpapXchange.5
DISCUSSION
Indefiniteness
The Examiner rejects claim 44 because “[i]t is unclear what is inserted
into an orifice.” Final Act. 4. The Examiner determines that the claim may
be interpreted such that either the harness clip or the end stoppers can be
inserted into an orifice. Ans. 4. Appellant argues that “grammar
unambiguously dictates that according to claim 44, the end stoppers can be
inserted into an orifice.” Appeal Br. 8 (emphasis omitted). We agree with
Appellant.
Claim 44 recites “end stoppers which, following pre-fitting of the
harness clip, can be inserted into an orifice.” Id. at 15. This phrase, taken
by itself, clearly refers to the end stoppers as able to be inserted into an
orifice after pre-fitting of the harness clip. And in the context of the claim as
a whole we see no other reasonable grammatical interpretation of the claim.
The Examiner appears to indicate that the claim can be interpreted such that
the phrase “which, following pre-fitting of the harness clip, can be inserted
into an orifice” modifies the claims “harness clip,” but this reading of the
claim unreasonably ignores the intervening language, and we determine
there is no reasonable grammatical connection between the claimed “said

3 Lubke et al., US 2006/0283461 A1, pub. Dec. 21, 2006.
4 Rummery et al., US 2010/0307502 A1, pub. Dec. 9, 2010.
5 cpapXchange, Quattro™ FX For Her Full Face CPAP/BiLevel Mask with
Headgear, 1–2 (https://web.archive.org/web/20111127214709/
http://www.cpapxchange.com/rm-quattrof) (last visited Nov. 16, 2016).
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harness clip” and the language “which, following pre-fitting of the harness
clip, can be inserted into an orifice.” Id. at 8. Thus, the only reasonable
interpretation of this language is that it is the end stoppers that can be
inserted into an orifice. Accordingly, we do not sustain this rejection.
Obviousness
With respect to the rejection over Lubke in view of Rummery and
cpapXchange, Appellant groups all claims together. See Appeal Br. 8–12.
We select claim 41 as representative of this group of claims, and claims
42–51 and 53 will stand or fall with claim 41. See 37 C.F.R. 41.37(c)(1)(iv).
Regarding claim 41, the Examiner finds that Lubke discloses a set of
holding arrangements for a head harness as claimed except that Lubke does
not disclose color-coded identification markings on the holding
arrangements or different colors on the inner and outer side of the head
harness. Final Act. 5–7. Regarding the colored identification markings, the
Examiner first determines that such markings merely consist of printed
matter on the claimed device and there is no functional relationship between
the markings and the associated product. Id. at 7. Alternatively, the
Examiner relies on Rummery as teaching “that it is well known to
distinguish between two components using identification markings . . .
and/or codings . . . in a region of the patient interface in order to distinguish
between separate components.” Id. (citing Rummery ¶¶ 245–248). The
Examiner determines that to the extent there is a functional relationship
between the claimed color-coding and the device, it is akin to the functional
relationship disclosed by Rummery, i.e., “[t]here is no difference in the
functional relationship between the identification markings . . . of Rummery
and the ‘similar coloring’ claimed.” Id. at 8. Relying on the teaching of
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identification markings in Rummery, the Examiner determines that the use
of color-coded identification markings would have been obvious to one of
ordinary skill in the art “for the purpose of more intuitive assembly for the
user . . . and to ensure correct alignment of the patient interface structure.”
Id. (citing Rummery ¶¶ 245, 246). Finally, regarding the different coloring
of the inner and outer sides of the claimed head harness, the Examiner relies
on cpapXchange and determines that such coloring would have been
obvious “for the purpose of identifying the inside or outside of the harness,
or simply for aesthetics.” Id. at 8–9.
As discussed below, we are not persuaded of reversible error in the
rejection of claim 41 to the extent the Examiner relies on the combination
with Rummery to show that providing identification markings, such as the
claimed coloring of components, would have been obvious.6
Rummery discloses a patient interface structure for delivery of
respiratory therapy to a patient, such as a continuous positive airway
pressure (“CPAP”) device. Rummery ¶ 2. In relevant part, Rummery
discloses that such an interface structure may include left and right
connectors connected to corresponding straps through left and right
connectors. Id. ¶ 245. Rummery discloses:
The geometry of the connectors 322l, 322r matches the geometry
of the cut outs 84l, 84r to provide an intuitive assembly for the
user. The user may get a tactile indication that the connectors
322l, 322r are properly inserted into the cut outs 84l, 84r and
assembled in the connected position.

6 Because we rely on this alternative analysis provided by the Examiner, we
do not address whether the claimed “similar coloring of corresponding
components” represents printed matter and if so, if the printed matter has a
functional relationship to a substrate.
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Id. Further, Rummery discloses that connectors may be provided with
indicia such as alignment indicators “to ensure correct alignment of the
patient interface structure 320” and indicia indicating the left and right side
connectors. Id. ¶ 246.
Based on this disclosure, we agree with the Examiner that Rummery
teaches that is was known to provide identification markings on a patient
interface for a CPAP machine to distinguish between separate components,
to provide for a more intuitive assembly of the device, and to ensure correct
alignment. See Final Act. 7–8. We also agree with the Examiner’s
determination that it would have been obvious to one of ordinary skill in the
art to use such markings in Lubke’s device to achieve the same benefits. Id.
at 8. Further, we agree with the Examiner that the use of color coded parts,
as claimed, serves the same functional purpose as, for example, Rummery’s
use of identification markings for identifying the left and right sides of the
interface and connecting straps. Based on the foregoing, we agree with the
Examiner that the use of color coding markings would have been an obvious
alternative to the use of the identification markings as disclosed by
Rummery.
We are not persuaded otherwise by Appellant’s argument that “the
Examiner has not explained why [Rummery] does not even mention this
allegedly obvious alternative to the identification markings disclosed
therein.” Appeal Br. 11. Appellant also notes that Lubke does not use the
term “color.” Id. (emphasis omitted). However, the Supreme Court has
made clear that the obviousness analysis, “need not seek out precise
teachings directed to the specific subject matter of the challenged claim,
[and] can take account of the inferences and creative steps that a person of
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ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)). As discussed, we determine that a person of ordinary skill in the art
would have recognized the use of coloring coding as functionally the same
as, and thus an obvious alternative for, the identification markings taught by
Rummery even though Rummery does not specifically disclose the use of
color coding.
Appellant also argues:
In any event, the question here is not even whether one of
ordinary skill in the art would have found it obvious to replace
the identification markings in the mask of RUMMERY by those
recited in the instant claims but whether one of ordinary skill in
the art would have found it obvious to provide the mask of
LUBKE (which differs significantly from the mask of
RUMMERY) with identification markings and in particular,
those which are recited in the instant claims and which are not
even taught for the mask of RUMMERY.
Appeal Br. 12 (emphasis omitted). We are not persuaded. Although
Appellant appears to correctly note that the rejection relies on a modification
of Lubke, Appellant has not identified any error in the rejection. The
Examiner determines that the subject matter of claim 41 would have been
obvious because it would have been obvious to modify Lubke to include
identification markings in the form of color coding, as claimed, based on the
identification markings and reasoning taught by Rummery. See, e.g., Ans. 8.
Based on the foregoing, we are not persuaded of error in the rejection
of claim 41. As discussed above, claims 42–51 and 53 fall with claim 41.
Accordingly, we sustain the rejection of claims 41–51 and 53.
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CONCLUSION
We REVERSE the rejection of claim 44 under 35 U.S.C. § 112(b).
We AFFIRM the rejection of claims 41–51 and 53 under 35 U.S.C. § 103(a).
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
44 112(b) Indefiniteness 44
41–51, 53 103(a) Lubke, Rummery,
cpapXchange
41–51, 53
Overall
Outcome
41–51, 53

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136 (a). See 37 C.F.R.
§ 1.136 (a)(l)(iv).

AFFIRMED