Ex Parte Nair

Patent Trial and Appeal Board

Dec 7, 2018

14171996 (P.T.A.B. Dec. 7, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/171,996 02/04/2014 Lakshmi Deepak Nair
134449 7590 12/11/2018
Grable Martin Fulton PLLC
2709 Dublin Road
Plano, TX 75094
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
ANJA-POOOlUS-NP 9378
EXAMINER
LUARCA, MARGARET M
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
12/11/2018 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):
docketing@gchub.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LAKSHMI DEEP AK NAIR 1
Appeal2018-004263
Application 14/171,996
Technology Center 3700
Before JAMES P. CAL VE, MICHELLE R. OSINSKI, and
NATHAN A. ENGELS, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Office Action
finally rejecting claims 1-20. Appeal Br. 3. We have jurisdiction under
35 U.S.C. § 6(b ).
We AFFIRM.
1 Anjaneya, LLC is identified as the real party in interest (Appeal Br. 1) and
also is the applicant pursuant to 37 C.F.R. § 1.46.
Appeal2018-004263
Application 14/171,996
CLAIMED SUBJECT MATTER
Claims 1, 10, and 20 are independent. Claim 1 is reproduced below.
1. An oxygen mask for delivering oxygen to a
patient, comprising:
a mask body adapted to substantially cover a patient's
nose and mouth and having a peripheral edge adapted to
substantially seal against the patient's face and forming a
compartment;
an oxygen inflow port defined in the mask body;
an L-shaped connector coupled to the oxygen inflow
port;
an oxygen conduit coupled to the L-shaped connector
and having access to the compartment in the mask body via the
oxygen inflow port, the oxygen conduit adapted to conduct
oxygen flow from an oxygen supply to the compartment in the
mask body;
at least one vent opening formed laterally displaced from
a central axis of the mask body; and
an expired gas sampling tube having a perforated
segment and a non-perforated segment, the expired gas
sampling tube being inserted into the mask body through the at
least one lateral vent opening so that its perforated segment is
entirely within the mask body and its non-perforated segment is
entirely outside of the mask body, the perforated segment of the
expired gas sampling tube having a plurality of perforations, the
perforated segment of the expired gas sampling tube being
fixedly attached, along its length, to the interior surface of the
mask body proximate to the patient's nose and mouth so that
the perforated segment has a profile conforming to the contours
of an interior surface of the mask body proximate to the
patient's nose and mouth, the expired gas sampling tube
adapted to couple to an instrument operable to monitor the
expired gases received through the plurality of perforations in
the perforated segment of the expired gas sampling tube.
Appeal Br. 23 (Claims App.).
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Appeal2018-004263
Application 14/171,996
REJECTIONS
Claims 1, 4, 5, 7, 8, 10, 13, 14, 16, 17, 19, and 20 are rejected as
unpatentable over Matula, Jr. (US 2012/0167892 Al, pub. July 5, 2012)
("Matula") and McNeill (US 2012/0271187 Al, pub. Oct. 25, 2012).
Claims 2, 3, 9, 11, 12, and 18 are rejected under 35 U.S.C. § 103 as
unpatentable over Matula, McNeill, and Rugless (US 6,386,198 Bl, iss.
May 14, 2002).
Claims 6 and 15 are rejected under 35 U.S.C. § 103 as unpatentable
over Matula, McNeill, and Scarberry (US 2006/0249160 Al, pub. Nov. 9,
2006).
ANALYSIS
Claims 1, 4, 5, 7, 8, 10, 13, 14, 16, 17, 19, and 20
Unpatentable Over Matula and McNeil!
The main issue is whether Matula and McNeill teach an "expired gas
sampling tube being fixedly attached, along its length, to the interior surface
of the mask body proximate to the patient's nose and mouth so that the
perforated segment has a profile conforming to the contours of the interior
surface of the mask body proximate to the patient's nose and mouth." This
feature is recited in independent claims 1, 10, and 20. Appeal Br. 23, 25, 27.
The Examiner relies on Matula to teach an expired gas sampling tube
with these features and McNeill to teach a perforated gas sampling tube that
is inserted into a mask through a lateral opening as claimed. Final Act. 3--4.
The Examiner reasons it would have been obvious to provide Matula with a
perforated tube to enhance the accuracy of carbon dioxide measurements in
exhaled breath, as McNeill teaches, and a side vent to allow sampling on
masks lacking a port, as McNeill teaches is desirable. Id. at 4; Ans. 2-3.
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Appeal2018-004263
Application 14/171,996
Appellant's argument that Matula lacks a side vent for inserting an
expired gas sampling tube (Appeal Br. 13-14) is not persuasive because the
Examiner relies on McNeill to teach this feature. Final Act. 4; Ans. 2-3.
The Examiner's reason for adding a side vent to Matula is supported by the
teachings of both McN eill and Matula. Matula teaches that using expired
gas tubes and attachment means on a respiratory mask that lacks inhalation
and exhalation ports 24, 26 of Matula's mask would be advantageous. See
Matula ,r 39. McNeill teaches to insert expired gas tubes through an existing
vent hole 126 of a mask. McNeill ,r 85, Fig. 4. McNeill thus teaches how to
retrofit gas tubes onto existing masks via a side vent as Matula and McN eill
teach is desirable to do. KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 417
(2007) (use of known technique to improve similar devices in the same way
is obvious unless its application is beyond the level of ordinary skill in the
art). Appellant does not apprise us of error in the Examiner's findings or
determination of obviousness in this regard. See Appeal Br. 13-14.
Nor are we persuaded that McNeill teaches away from using the use
of a perforated tube in Matula's mask. See id. at 15-16. Matula teaches the
placement and use of an expired gas tube. The Examiner relies on McNeill
merely to teach the advantages of a perforated tube as a way to improve the
detection of carbon dioxide that is exhaled by a patient wearing the mask.
Final Act. 4. McNeill teaches a fixed attachment of the perforated tube to
the mask, e.g., via fitting 107 and positioning relative to a patient's nose and
mouth. McNeill ,r,r 66, 85, 95, 97, 98, 109, 126. McNeill also teaches to fix
the tube securely to the mask so perforations 106 are in the desired location,
e.g., deep in a nasal or oral passage, outside, or just inside, of the mouth or
nose. Id. ,r 86. Matula teaches similar positioning of its tube. Matula ,r 37.
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Appeal2018-004263
Application 14/171,996
Appellant recognizes that McNeill fixedly attaches a gas exhalation
tube to a mask at a desired location and configuration to meet the needs of a
situation and patient. Appeal Br. 15-16. McNeill positions perforated tube
100 adjacent/near to a patient's nose and mouth in Figures 5-7 similar to
Matula's positioning of tube 22. Thus, we are not persuaded that McNeill's
teachings would have discouraged a skilled artisan from adding perforations
to Matula's expired gas tube, which also is positioned adjacent to a patient's
mouth and nose to capture exhaled air. See Matula ,r 37.
We agree with the Examiner that Matula, as modified by teachings of
McNeill, includes a perforated expired gas sampling tube fixedly attached
along its length to the interior surface of the mask body proximate to the
patient's nose and mouth and conforming to contours of the interior surface
of the mask body as claimed. The Examiner correctly finds that Appellant
discloses the expired gas sampling tube 20 as preferably attached at one or
more points to an inside surface of nose portion 12 and preferably positioned
between a patient's nostril and mouth to sample exhaled gases from both
sources. Spec. ,r,r 14, 18, 21, 23.
Matula teaches to secure gas collection tubing 18 along its length to
an interior surface 12 of mask shell 6 by magnetic manipulation elements 34
as shown in Figures 1, 5, 6, and 7. Matula ,r,r 35, 37. Magnetic elements 34
secure tubing 18 to interior surface 12 at four separate points along its length
in Figures 1, 5, and 6. The claims require no more in this regard.
There is no requirement that the gas collection tubing is integrated
into the interior surface or the shell of a mask. The claim language only
requires "being fixedly attached, along its length, to the interior surface of
the mask body." Matula illustrates this claimed arrangement.
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Appeal2018-004263
Application 14/171,996
Indeed, Appellant illustrates side views of the claimed mask in which
perforated segment 21 is positioned at nose portion 12 of mask but is not
embedded into the mask or the inner surface of nose portion 12. Figs. 3, 6.
In both side views, the perforated segment 21 is spaced apart from the inner
surface of nose portion 12 of the mask. The drawings are consistent with the
Specification's disclosure that the tubing is generally attached to the inside
surface of the mask at one or more locations. 2 See Spec. ,r,r 14 ("expired gas
sampling tube 20 is preferably attached at one or more points to an inside
surface of the nose portion 12"), 18 ("gas sampling tube 40 is preferably
attached at one or more points to an inside surface of the mask in the nose
portion 32"), 21 ("expired gas sampling tube is generally attached to the
inside surface of the mask at one or more locations"). Figures 1-6 show gas
tube 20, 40 inserted through a hole in nose portion 32, but neither the
Figures nor the Specification identify any other point of attachment along
the length of tube 20, 40. See 37 C.F.R. § 1.83(a) (drawings must show
every claimed feature).
The side views of Appellant's Figures 3, 5, and 6 show perforated gas
tube 21, 41 to be spaced away from the interior surface of the mask nose
portion 12. The spacing allows perforations to be placed around the entire
circumference of the tubes as depicted in the Figures, including the portions
facing the interior surface of the mask. If gas tube 21, 41 were embedded in
the interior surface of the mask, as Appellant argues to be the case, the holes
contacting the surface of the mask would be covered and ineffective.
2 The Summary of Claimed Subject Matter cites paragraphs 14, 15, and 18
and Figures 1-6 as support for the fixed attachment of the tube along its
length to the interior surface of the mask. Appeal Br. 6, 9, 11.
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Appeal2018-004263
Application 14/171,996
Nothing in the limitation "fixedly attached, along its length" requires
the gas sampling tube be integrated into the interior surface of the mask
body or to be attached at a particular number of points. See Appeal Br. 16.
This is particularly true given the disclosures in the Specification that the gas
sampling tube can be attached to the inside surface of the nose portion at one
or more points as discussed above and the lack of any drawing or disclosure
of an embodiment in which the gas sampling tube is fixedly attached along
its length, in particular any attachment that includes the perforated length.
Matula's magnetic couplers 32, 34 attach tube 18 to interior surface
12 of mask 6 at four points along the length of tube 18 and position tube 18
between a patient's mouth and nose as claimed. Matula ,r 37, Figs. 1, 5, 6.
This fixed attachment of tube 18 along its length also conforms the profile of
tube 18 to the contours of the interior surface of the mask body. See id.
We also agree with the Examiner that Matula's coupling elements 32,
34 fixedly attach tube 18 along its length to an interior surface of the mask
body as claimed. Appellant is correct that coupling elements 32, 34 are
detachable to allow tube 18 to be positioned along an interior surface of the
mask while a patient is wearing the mask. Appeal Br. 14; Reply Br. 3--4;
Matula ,r 37. However, Matula teaches that the magnetic coupling elements
32, 34 are attracted to one another "such that they are coupled together and
held in place on shell 6." Id. ,r 35. As a result, gas tube 18 "will also be held
in place within the chamber defined by shell 6." Id. ,r 36 ( emphasis added).
Magnetic couplers 32, 34 thus fixedly attach tube 18 at multiple points along
its length to interior surface 12 of mask 6 as claimed. Id. ,r 27 ("coupled"
means that the parts are joined or operate together), Figs. 1, 5, 6.
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Appeal2018-004263
Application 14/171,996
The term "fixedly attached" is not used in the Specification, which
merely requires that tube 20 is "preferably attached" or "generally attached"
to the inside surface of the mask. Spec. ,r,r 15, 21. The Specification also
indicates that the "remaining" (i.e., unperforated) segment of gas sampling
tube 20 may be attached to the interior surface of the mask body until the
tube exits the mask so that the perforated segment 21 (Fig. 3) is positioned
proximate to the patient's nose and mouth when the mask is worn by the
patient. Id. f 20. Matula attaches gas tube 18 at multiple points along its
length to an interior surface 12 of mask 6 as claimed. Matula ,r,r 35-37.
As modified by McN eill' s teaching of a side vent attachment, Matula
also would be attached at a side vent where the tube enters the mask, and
possibly at other points along its length. See McNeill ,r,r 97, 109, 126; Ans.
3--4 (citing id.). Thus, we sustain the rejection of claims 1, 4, 5, 7, 8, 10, 13,
14, 16, 17, 19, and 20.
Claims 2, 3, 6, 9, 11, 12, 15, and 18
Rejected Over Matula, McNeil!, and Rugless/Scarberry
The Examiner relies on Rugless and Scarberry to teach features
recited in claims 2, 3, 6, 9, 11, 12, 15, and 18. Final Act. 6-7. Appellant
argues that Rugless or Scarberry do not remedy deficiencies of Matula and
McNeil as to independent claims 1 and 10 from which these claims depend.
See Appeal Br. 20-22. Because we sustain the rejection of claims 1 and 10,
there are no deficiencies for Rugless and Scarberry to remedy, and we also
sustain the rejection of claims 2, 3, 6, 9, 11, 12, 15, and 18.
DECISION
We affirm the rejections of claims 1-20.
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Appeal2018-004263
Application 14/171,996
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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