Ex Parte Sibenaller et al

Patent Trial and Appeal Board

Jun 19, 2018

14007751 (P.T.A.B. Jun. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/007,751 09/26/2013 Sara Marie Sibenaller
24737 7590 06/21/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2011P00283WOUS 6352
EXAMINER
SIPPEL, RACHEL T
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
06/21/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SARA MARIE SIBENALLER, MANUEL LAURA LAPOINT,
and LEONARDO ALBERTO BALOA WELZIEN 1
Appeal2017-010278
Application 14/007, 7 51
Technology Center 3700
Before: DANIEL S. SONG, MICHAEL L. HOELTER, and
ARTHUR M. PESLAK, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner's
Final Office Action (hereinafter "Final Act.") rejecting claims 1, 4---6, 9--11,
and 14--18 in the present application (App. Br. 2). We have jurisdiction
under 35 U.S.C. §§ 6(b) and 134.
We AFFIRM.
1 Collectively referred to as "Appellant" herein. The real party in interest is
Koninklijke Philips Electronics N.V. (Appeal Brief (hereinafter "App. Br.")
2).
Appeal2017-010278
Application 14/007, 7 51
The claimed invention is directed to a pressure support system, such
as those used in Continuous Positive Airway Pressure ("CP AP") therapy,
and a method for controlling a pressure generator (Title; Abstract; Spec. ,r,r
2, 23). Independent claim 1, which is illustrative of the claimed invention,
reads as follows (App. Br. 14, Claims App'x, emphasis added):
1. A pressure support system comprising:
a pressure generator configured to generate a pressurized
flow of breathable gas for delivery to the airway of a subject;
one or more sensors configured to generate during a
therapy session one or more output signals conveying
information related to one or more gas parameters of the gas
breathed by the subject or to one or more physiological
characteristics of the subject;
a processor configured to execute computer program
modules, the computer program modules comprising:
a first mode module configured to control the pressure
generator in accordance with a first mode of therapy, wherein
breathing cues are delivered to the subject in accordance with a
breathing regime through the pressurized flow of breathable gas,
wherein the breathing cues prompt the subject to consciously
alter one or more breathing parameters of respiration;
a second mode module configured to control the pressure
generator in accordance with a second mode of therapy different
from the first mode of therapy, wherein the flow of breathable
gas is provided to the airway of the subject at a selected pressure
or selectively variable pressures; and
a transition module configured to, responsive to a trigger
event, control the pressure generator to gradually adjust the one
or more parameters of the gas in the pressurized flow of
breathable gas using at least the one or more output signals
generated during the therapy session such that the first mode of
therapy gradually transitions to the second mode of therapy and
that the adjustments are made during the same therapy session,
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Application 14/007, 7 51
wherein the trigger event comprises expiration of a time
period, a change in a sleep and/or awake state of the subject,
detection of sleep onset of the subject, a predetermined pattern,
or user input via a user interface.
Independent claim 6 is directed to a method of controlling a pressure
generator to provide pressure support to an individual, while independent
claim 11 directed to a pressure support system having means for performing
the steps recited in claim 6 (App. Br. 15-16, Claims App'x). Independent
claims 6 and 11 include limitations similar to that italicized in the above
reproduced claim 1.
The Examiner rejects claims 1, 4--6, 9-11, and 14--18 under 35 U.S.C.
§ 103(a) as obvious over the combination of Gilmore et al. (US 5,931,160,
iss. Aug. 3, 1999 (hereinafter "Gilmore")) in view of Kirby et al. (US
7,556,038 B2, iss. July 7, 2009 (hereinafter "Kirby")), and Estes et al. (US
5,551,418, iss. Sept. 3, 1996 (hereinafter "Estes")) (Final Act. 3).
ANALYSIS
Only those arguments actually made by the Appellant have been
considered in this decision. Arguments that the Appellant could have made
but chose not to make have not been considered and are deemed to be
waived. See 37 C.F.R. § 4I.37(c)(l)(iv); In re Jung, 637 F.3d 1356, 1365-
66 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 1072, 1075-76 (BPAI 2010
(precedential) ).
The Examiner rejects independent claims 1, 6, and 11 as obvious over
the combination of Gilmore, Kirby, and Estes (Final Act. 3--4). The
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Application 14/007, 7 51
Examiner finds that Gilmore discloses most of the limitations recited in
these claims but does not disclose the recited details as to the first mode
therapy (id. at 4). The Examiner finds that Kirby remedies this deficiency,
and concludes that it would have been obvious to a person of ordinary skill
in the art to modify the first mode of therapy of Gilmore in accordance with
Kirby "for the purpose of better suiting a patient's needs." (Id. at 4--5, citing
Kirby, col. 7, 11. 18-25; Abstract; col. 2, 11. 30-40).
The Examiner also concedes that the combination of Gilmore and
Kirby "is silent regarding controlling the pressure generator to gradually
adjust the one or more parameters of the gas in the pressurized flow ... such
that the first mode of therapy gradually transitions to the second mode of
therapy." (Final Act. 5). The Examiner finds that:
Estes teaches a transition module (ramp function, Col. 6, 11. 35-
5 8) controlling the pressure generator to gradually adjust the one
or more parameters of the gas in the pressurized flow of
breathable gas using at least the one or more output signals (Col.
6, 11. 35-58) generated during the therapy session such that the
first mode of therapy gradually transitions to the second mode of
therapy (Col. 6, 11. 35-58 the pressure of the gas being provided
can be controlled as to vary over time based on a user's sensed
breathing, the therapy also transitions in response to inhalations
and/or exhalations or other conscious actions by the patient
during therapy) and that the adjustments are made during the
therapy session ( the ramp transitions occur during the therapy
session when the output signals are received) .... The modified
Gilmore discloses that the trigger event comprises a
predetermined pattern (Col. 6, 11. 35-58 of inhalations and/or
exhalations Estes).
(Final Act. 5---6).
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Application 14/007, 7 51
The Examiner concludes that it would have been obvious to apply the
teachings of Estes to modify the transition module of Gilmore to result in the
invention claimed "for the purpose of not overwhelming the patient with
pressure from one therapy to another." (Final Act. 6). We agree with the
Examiner's findings and conclusion of obviousness.
The Appellant argues that the cited references fail to disclose the
above italicized limitation (App. Br. 7) because:
the current claims are directed to an adjustment of gas
parameters using output signals that are generated during a
transition ( e.g., while a therapy session is ongoing). In direct
contrast, [Estes] at best discloses or suggests: (i) beginning (e.g.,
for a subsequent therapy session)~ predetermined transition of
gas parameters based on output signals generated just before the
therapy session begins; and (ii) adjusting gas parameters for a
transition using output signals generated during a previous
therapy session (i.e., well before the current therapy session and
thus well before the transition itself).
(App. Br. 10, italics added).
According to the Appellant:
Once the apparatus of [Estes] determines that the
transition (ramp cycle) begins, the output signals are no longer
used. That is, the transition (ramp cycle) occurs the same way
( e.g., from the predetermined minimum positive pressure to the
predetermined increased pressure) regardless of what the output
signals indicate during the transition itself. In direct contrast to
[Estes], which only uses output signals before
beginning/activating a transition (i.e., before beginning a therapy
session), the claimed technique uses output signals for the
transition itself, e.g., during the transition of the therapy session.
And the therapy session of [Estes] does not begin (i.e., begin by
outputting a predetermined minimum positive pressure) until a
ramp is triggered. [Estes], 5:7-13.
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Application 14/007, 7 51
(App. Br. 10-11, italics added; see also Reply Br. 3).
While noting that an alternative embodiment of Estes uses the results
from a previous sleep study to adjust the shape of the pressure curve, the
Appellant argues that this embodiment also fails to satisfy claim 1, which
requires "usage of the output signal(s) from the 'same' therapy session."
(App. Br. 11, citing Estes, col. 5, 11. 40-49).
These arguments are generally unpersuasive because "they are not
based on limitations appearing in the claims .... " In re Self, 671 F.2d 1344,
1348 (CCPA 1982). There is no real dispute between the Appellant and the
Examiner that Estes discloses a predetermined transition curve that provides
gradual transition between two different modes. However, the broadest
reasonable interpretation of the claims in view of the Specification does not
exclude such a predetermined transition. In re Am. A cad. of Sci. Tech. Ctr.,
367 F.3d 1359, 1364 (Fed. Cir. 2004) (Claims are to be given their broadest
reasonable interpretation consistent with the specification, reading claim
language in light of the specification as it would be interpreted by one of
ordinary skill in the art).
As the Examiner determines, the broadest reasonable interpretation of
the claims merely require that "transitions just occur based on the output
signals. According to the claim language it does not matter if the transition
curve is pre-determined since the output signals can be used to simply
determine that a transition should occur." (Final Act. 9, emphasis added).
Indeed, we agree with the Examiner that the Appellant's argument:
is not taken well since the claims do not recite that the output
signals are us[ ed] during the transition or that the transition
changes or [that] the shape of the ramp is different depending on
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Application 14/007, 7 51
the output signals. The claims merely state that the transition
occurs based on the output signals. Therefore the output signals
only need to trigger a transition, which Estes teaches.
(Ans. 11).
The Specification discloses that "[t]ransition module 36 may adjust
the pressure level or other parameters of the breathing gas provided to
subject 12 according to a predetermined pattern or shape during
transition," or "according to user input via user interface 18." (Spec. ,r 51,
emphasis added). Thus, it is evident that the Examiner's interpretation in
which the claims encompass a predetermined transition such as that
disclosed by Estes is supported, and consistent with, the disclosure within
the Specification. In that regard, the Examiner is also correct that therapy
session has not been defined in the claims or in the Specification of the
application, and thus "must be given its broadest reasonable interpretation,
which includ[ es] any time during which respiratory gas is provided to a
patient or when a respiratory parameters are being detected just prior to
respiratory gas being provided." (Ans. 11 ).
The Appellant responds that in Estes, "the patient's sound/breathing
merely triggers the initiation of [Estes's] ramp cycle," and points out that the
claims specify a "trigger event" that triggers the claimed gradual adjustment
(Reply Br. 4). Accordingly, the Appellant asserts that
[a] person having ordinary skill in the art (PHOSITA) would
thus readily understand that the recited trigger event initiates
the claimed gradual adjustment but then the sensor output
signals are used to control the gradual adjustment of the gas
parameters (to gradually transition from the first mode of
therapy to the second mode of therapy)
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Application 14/007, 7 51
so that the claimed invention is distinguished over the cited art (Reply Br. 4 ).
However, the Specification discloses that the recited gas parameter
sensor that generates the output signals may sense, inter alia, pressure,
velocity, and acoustics, as well as "a parameter indicative of respiration,
and/or other gas parameters." (Spec. ,r 32). The Specification also merely
generally discloses "a transition module configured to transition between the
first mode of therapy and a second mode of therapy wherein one or more
parameters of the gas in the pressurized flow of breathable gas is adjusted in
response to a trigger event." (Spec. ,r 3; see also id. ,r 49). The Specification
does not disclose some specialized trigger sensor or a signal therefrom, or
otherwise preclude the disclosed parameter sensor and its output signal from
indicating the occurrence of the trigger event. Indeed, the claims merely
recite that the transition module is responsive to a trigger event, and
gradually adjust a parameter using the output signal. Thus, in view of the
Specification, the broadest reasonable interpretation of the claims encompass
a transition module that results from the suggested combination, which is
responsive to a trigger event sensed by a parameter sensor, and because the
transition module begins its transition based on this output signal, it adjusts
the parameter "using at least the one or more output signals generated during
the therapy session." Hence, the Appellant's arguments are unpersuasive
because they are not based on the broadest reasonable interpretation of the
claims in view of the Specification.
Although the Appellant may have intended to claim that a trigger
event is distinctly sensed and indicated by a separate trigger signal, and that
the output signals are used during/within the transition itself to effectuate
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Application 14/007, 7 51
change in a parameter of the gas during transition from the first mode to the
second mode so that such transition does not always occur the same way,
this is not what the claims require.
Therefore, in view of the above considerations, we do not find the
Appellant's arguments directed to independent claims 1, 6, and 11
persuasive, and, accordingly, affirm the Examiner's rejection thereof. The
Appellant relies on dependency of claims 4, 5, 9--10, and 14--18, and "for the
features they recite individually" for patentability, without submitting any
detailed arguments pertaining thereto (App. Br. 11-12). Thus, these
dependent claims also fall with their respective independent claim. 3 7
C.F.R. 4I.37(c )(1 )(iv).
CONCLUSIONS
The Examiner's rejection of claims 1, 4--6, 9--11, and 14--18 is
AFFIRMED.
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
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