Koninklijke Philips N.V.

Patent Trials and Appeals Board

Mar 31, 2020

14651064 - (D) (P.T.A.B. Mar. 31, 2020)

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.
14/651,064 06/10/2015 Kevin Daniel HIMES JR. 2012P00581WOUS 5427
24737 7590 03/31/2020
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
STUART, COLIN W
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
03/31/2020 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEVIN DANIEL HIMES JR. and ELIZABETH EURY

Appeal 2019-004574
Application 14/651,064
Technology Center 3700
____________

Before BENJAMIN D. M. WOOD, MICHAEL J. FITZPATRICK, and
PAUL J. KORNICZKY, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant, Koninklijke Philips N.V.,1 appeals under 35 U.S.C.
§ 134(a) from the Examiner’s final decision rejecting claims 1–6, 10, 12, and
14. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Appellant refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies itself as the sole real party in interest. Appeal Br. 1.
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STATEMENT OF THE CASE
The Specification
The Specification “relates to a patient interface device for transporting
a gas to and/or from an airway of a user, and, in particular, to a patient
interface device comprising a cushion with integral straps.” Spec. ¶2.
The Claims
Claims 1–6, 10, 12, and 14 are rejected. Final Act. 1. No other
claims are pending. Id. Claims 1 and 10 are independent. Appeal Br. 8–10
(Claims App.). Claim 1 is illustrative and reproduced below.
1. An integrated cushion and headgear strap system
for a patient interface device adapted to provide a regimen of
respiratory therapy to a patient, which comprises:
a cylindrical hub member structured to be connected to a
fluid connector, the cylindrical hub member having a circular
cross section and being made of a thermoplastic material,
two or more headgear straps made of a flexible polymeric
material, wherein each headgear strap of the two or more
headgear straps has a proximal end and a distal end, and
wherein each distal end of each headgear strap of the two or
more headgear straps is capable of attaching to or engaging a
headgear system, and
a cushion having a first side structured to contact a face
of the patient responsive to the patient interface device being
donned by the patient and a second side opposite the first side,
the cushion made of the flexible polymeric material and
integrally connected to each proximal end of each headgear
strap of the two or more headgear straps,
wherein the two or more headgear straps and the cushion
form a continuous piece which is overmolded to the cylindrical
hub member such that the cylindrical hub member is positioned
in an opening formed in the second side of the cushion and is
surround by the second side of the cushion.
Id. at 8.
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The Examiner’s Rejections
The following rejections, both pursuant to 35 U.S.C. § 103, are before
us:
1. claims 1–3, 6, 10, 12, and 14 as unpatentable over McAuley2
and Formica3 (id. at 4); and
2. claims 4 and 5 as unpatentable over by McAuley, Formica, and
Allan4 (id. at 10).
DISCUSSION
Rejection 1
Independent Claim 1
McAuley “relates to a breathing assistance apparatus for treating sleep
[apnea].” McAuley ¶3. The Examiner found that McAuley discloses most
of the subject matter of claim 1 save “a cylindrical hub member with a
circular cross-section provided in the opening and surrounded by the cushion
to connect to a fluid connector and also being made of a thermoplastic
material” and “overmolding the headgear straps and cushion to the hub
member.” Final Act. 4–6 (citing McAuley Figs. 2a–d, 69a, 76–78b, 81–83,
85, ¶¶ 1146, 1181, 1187, 1191, 1212, 1214).
Formica “relates to a mask system used for Non-invasive Positive
Pressure Ventilation (NPPV) and for continuous positive airway pressure
(CPAP) therapy of sleep disordered breathing (SDB) conditions such as
obstructive sleep apnea (OSA).” Formica ¶2. The Examiner found that
Formica teaches a device similar to McAuley’s and “which includes a

2 US 2012/0204870 A1, published Aug. 16, 2012 (“McAuley”).
3 US 2013/0199537 A1, published Aug. 8, 2013 (“Formica”).
4 US 2011/0146685 A1, published June 23, 2011 (“Allan”).
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cylindrical hub member of circular cross-section made of thermoplastic
material which is positioned in and surrounded by an opening of an external
side of a cushion and structured to connect to a fluid connector.” Final Act.
5–6 (citing Formica Figs. 29-1, 29-3, 53, ¶¶ 496).
The Examiner concluded:
It would have been obvious to one of ordinary skill in the art at
the time the invention was made to modify the McAuley system
to include a cylindrical hub member made of thermoplastic and
positioned in and surrounded by the opening on the second side
of the cushion, as taught by Formica, in order to provide a swivel
connection between the fluid connector/respiratory conduit and
the integrated cushion/headgear strap system to allow for relative
movement to accommodate changing patient position with
respect to the source of respiratory gas without breaking patient
seal.
Id. at 6.
The Examiner conceded that this purported combination lacks an
explicit disclosure of overmolding the headgear straps and cushion to the
hub member. Id. The Examiner further found, however, that McAuley
discloses molding/overmolding of various components of the system and
concluded that it would have been obvious to overmold the headgear straps
and cushion to the hub member because it was well a known technique for
connecting two elements in a respiratory system. Id. (citing McAuley
¶¶1146, 1154, 1155).
In the Appeal Brief, Appellant argues that “McAuley not only fails to
disclose or suggest a cylindrical hub member and a continuous piece which
is overmolded to such a cylindrical hub member, as generally provided in
claim 1, but instead McAuley actually teaches away from such arrangement
by teaching connecting to a rigid manifold.” Appeal Br. 5 (citing McAuley
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¶1214). However, in the very next paragraph of McAuley, it teaches “using
a rigid or semi-rigid manifold.” McAuley ¶1215 (emphasis added).
Regardless, per the Examiner’s combination, “the arrangement of McAuley
is still connected to [McAuley’s] manifold.” Ans. 10. The modification in
view of Formica is that “a cylindrical swivel hub member is provided
therebetween which connects the [McAuley] manifold to the continuous
piece integrated cushion and two or more headgear straps.” Id.
In the Reply Brief, Appellant argues: “As connectors for conduits are
commonly of a swivel type, the existing hub of the arrangement of McAuley
would provide for all of the alleged benefits of the proposed additional hub,
hence there is no motivation for the combination of McAuley and Formica
suggested by the Examiner.” Reply Br. 2. Appellant does not provide any
citation for its premise that “connectors for conduits are commonly of a
swivel type.” Id. Accordingly, it constitutes attorney argument, which is
not a substitute for evidence. See Facebook, Inc. v. Windy City Innovations,
LLC, No. 2018-1400, 2020 WL 1285039, at *14 (Fed. Cir. Mar. 18, 2020)
(“Facebook’s position, which is based on attorney argument rather than
evidence in the record, does not persuade us that the Board’s understanding
of Roseman’s system is incorrect.”); Johnston v. IVAC Corp., 885 F.2d
1574, 1581 (Fed. Cir. 1989) (“Attorneys’ argument is no substitute for
evidence.”). Further, even if the swivel feature were common, that would
not mean it is necessarily present in the embodiment of McAuley (i.e., prior
to the Examiner’s modification of McAuley in view of Formica).
In the Reply Brief, Appellant also argues that “it is not apparent how
such combination would actually be carried out as it is apparent from
[McAuley Figure 78b] that the manifold of McAuley utilizes a flared
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interlocking structure that is disposed within the integrated cushion. Such
flared structure would likely not function with a circular hub such as
suggested by the Examiner.” Reply Br. 2. This bodily incorporation
argument is not persuasive as a matter of law. See In re Keller, 642 F.2d
413, 425 (CCPA 1981) (“The test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the structure of the
primary reference . . . Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.”).
For the foregoing reasons, we are not apprised of Examiner error in
the rejection of claim1. The rejection of claim 1 is affirmed.
Independent Claim 10
Independent claim 10 is a method claim directed to substantially the
same subject matter as claim 1. See Appeal Br. 8–9 (claims 1 and 10). The
Examiner’s rejection of claim 10 closely tracks the rejection of claim 1.
Compare Final Act. 4–6 (rejection of claim 1), with id. at 7–10 (rejection of
claim 10). Appellant argues the rejection of claim 10 separately from claim
1. Appeal Br. 5–6. In doing so, however, Appellant merely presents the
same arguments. Id. Thus, Appellant does not apprise us of Examiner error.
The rejection of claim 10 is affirmed.
Dependent Claims 2, 3, 6, 12, and 14
Appellant argues against the rejection of dependent claims 2, 3, 6, 12,
and 14 solely on the basis of their dependency from either claim 1 or claim
10. Appeal Br. 6. Thus, Appellant fails to apprise us of Examiner error.
The rejection of claims 2, 3, 6, 12, and 14 is affirmed.
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Rejection 2
Claims 4 and 5 ultimately depend from claim 1. Appeal Br. 8. The
Examiner rejected dependent claims 4 and 5, relying on Allan (in addition to
McAuley and Formica) with respect to the additional limitations recited in
claims 4 and 5. Final Act. 10–11. Appellant argues against the rejection
merely on the basis that “the additionally cited reference of Allan fails to
address the deficiencies of the suggested combination of McAuley and
Formica previously discussed [with respect to] independent claim 1.”
Appeal Br. 6. Because Appellant did not show any such deficiencies above,
it likewise does not apprise us of Examiner error here.
The rejection of claims 4 and 5 is affirmed.

SUMMARY
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
1–3, 6, 10,
12, 14
103 McAuley,
Formica
1–3, 6, 10,
12, 14

4, 5 103 McAuley,
Formica, Allan
4, 5
Overall
Outcome
1–6, 10,
12, 14

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)(1)(iv).

AFFIRMED