Ex Parte Ujhazy et alDownload PDFPatent Trial and Appeal BoardMar 11, 201310467601 (P.T.A.B. Mar. 11, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ANTHONY JOHN UJHAZY, JONATHAN CALDWELL WRIGHT, JOANNE ELIZABETH DREW, and MICHAEL BERTHON-JONES ____________________ Appeal 2010-006411 Application 10/467,601 Technology Center 3700 ____________________ Before: GAY ANN SPAHN, JOHN W. MORRISON, and RICHARD E. RICE, Administrative Patent Judges. MORRISON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-006411 Application 10/467,601 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 27-56. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The claims relate to devices and methods that may be used to detect, diagnose, treat, manage and/or prevent asthma symptoms in patients. Spec. 1. Claim 27, reproduced below, is illustrative of the claimed subject matter: 27. An apparatus for the delivery of treatment for a patient with asthma, comprising: a blower with an inlet to supply breathable gas to a patient interface, a transducer to generate a flow signal representative of flow of the patient, a transducer to generate a pressure signal representative of pressure supported by the blower, a processor to receive data from said flow signal and said pressure signal with programmed instructions for controlling said blower and to detect an asthma symptom from an analysis of said data, and a filter to substantially remove allergen particulates from the breathable gas flow. EVIDENCE RELIED UPON The evidence relied upon by the Examiner in rejecting the claims on appeal is: Faithfull Kwok US 6,041,777 US 6,561,190 B1 Mar. 28, 2000 May 13, 2003 Mark H. Beers, M.D. and Robert Berkow, M.D., Eds., Section 6 – Pulmonary Disorders, Chapter 68 - Chronic Obstructive Airway Disorders, The Merck Manual of Diagnosis and Therapy: 17th Edition, 556-57 (1999). Mark H. Beers, M.D. and Robert Berkow, M.D., Eds., Section 6 – Pulmonary Disorders, Chapter 76 - Hypersensitivity Diseases of the Lungs, The Merck Manual of Diagnosis and Therapy: 17th Edition, 627-34 (1999). Appeal 2010-006411 Application 10/467,601 3 REJECTIONS The following rejections are before us for review: Claims 27-30, 33-37, and 38 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Faithfull. Claims 31, 32, and 39-56 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Faithfull and Kwok. ANALYSIS Addressing claim 27, the Examiner finds that Faithfull discloses an apparatus for the delivery of treatment for a patient with asthma, particularly during sleep, comprising: a blower (214) with an inlet to supply breathable gas to a patient interface, a transducer to generate pressure and flow signals (196), a processor (200) to receive data from said flow signal and said pressure signals, and a filter (172) to substantially remove allergen particulates from the breathable gas flow. (Figure 4). Ans. 3. First, Appellants argue that “Faithfull does not disclose removing allergen particulates. Faithfull includes no direct mention of allergy, asthma, or removal of allergens.” App. Br. 7. The Examiner responds [the] filter (172) of Faithful[l] is a carbon dioxide separator that is utilized by the system to filter and remove particulates in the form of waste gases from the patient's expiratory gas. (Column 12, Lines 45-55). As these waste gases are being excised from the body, aerosol particulates will also be trapped within the filter (172) as a result of the transport of air-born particles from the lungs. Ans. 5-6. However, the characterization of the carbon separator 172 of Figure 4 as a “filter” is erroneous. As described with respect to Figure 2, Appeal 2010-006411 Application 10/467,601 4 the carbon dioxide separator 72 (analogous to the carbon separator 172 of Figure 4) is described as follows [the] carbon dioxide separator 72 comprises one or more canisters containing a material such as soda lime, sodium hydroxide or lithium hydroxide in a solid form. As the expiratory gas, comprising unrespired oxygen, carbon dioxide and any respiratory promoter passes through the canisters, the carbon dioxide reacts with the base to form a carbonate on the exposed surface and water. Faithfull, col. 14, ll. 49-55. Nothing in this description of the carbon separator 72 would lead one skilled in the art to conclude that it was a “filter” to separate allergen particles as found by the Examiner. Next, the Examiner finds “Faithful[l] discloses the removal of allergen particles via optional filter (50) (Column 12, Line 65 thru Column 12, Line 1).” Ans. 6. Appellants counter that element 50 does not disclose either removing particulates from breathable air or cleaning breathable air by removing particulates. Faithfull describes element 50 only within the context of prior art. Element 50 appears only in Fig. 1. App. Br. 8. The filter 50 is clearly described as an “optional” feature of the prior art embodiment of Figure 1, not the embodiment of Figure 4. Further, we agree with Appellants that the filter 50 does not remove particles from a “breathable gas flow.” The flow from the filter 50 is not directed to the patient, but “is vented into the surrounding environment through exhaust aperture 44.” See Faithfull, col. 13, ll. 13-14; fig. 1. We find error in the Examiner’s finding that the carbon dioxide separator 172 is a filter within the meaning of claim 1. We find further error in the Examiner’s finding that the filter 50 of the prior art of Figure 1 is a filter that is placed in a Appeal 2010-006411 Application 10/467,601 5 breathable airflow. Moreover, the filter 50 is associated with the prior art embodiment of Figure 1 and is not associated with the embodiment of Figure 4 that the Examiner finds anticipates claim 27. As such, we do not sustain the rejection of claim 27, or claims 28-30 and 33-37 which depend therefrom. Addressing claim 38, the Examiner relies on the same erroneous findings related to claim 27 above to anticipate the method step of “cleaning said breathable air in conjunction with the delivery of said breathable air to the patient to substantially remove allergen particulates from said air before said patient inhales said allergen particulates.” Ans. 3-4. For the same reasons as discussed above, we do not sustain the rejection of independent claim 38. Obviousness over Faithfull and Kwok Addressing claims 31, 32, and 39-56, the Examiner introduces Kwok to disclose elements of the dependent claims. However, none of the Examiner’s findings relating to Kwok cure the underlying deficiency of Faithfull’s failure to disclose “a filter to substantially remove allergen particulates from the breathable gas flow” as required by independent claim 27. As such, we do not sustain the rejection of claims 31 and 32 which depend from claim 27. Additionally, none of the Examiner’s findings related to Kwok cure the underlying deficiency of Faithfull’s failure to disclose the step of “cleaning said breathable air in conjunction with the delivery of said breathable air to the patient to substantially remove allergen particulates from said air before said patient inhales said allergen particulates” as Appeal 2010-006411 Application 10/467,601 6 required by independent claim 38. As such, we do not sustain the rejection of claims 39-56 which depend from claim 38. DECISION For the above reasons, the Examiner’s rejections of claims 27-56 are reversed. REVERSED hh Copy with citationCopy as parenthetical citation