Ex Parte DiMatteo et al

Board of Patent Appeals and Interferences

Jun 24, 2009

11210976 (B.P.A.I. Jun. 24, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte MARK DIMATTEO, MICHAEL E. MORT, and JEFFREY
KEPLER
__________

Appeal 2009-001556
Application 11/210,976
Technology Center 3700
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Decided:1June 24, 2009
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Before DONALD E. ADAMS, ERIC GRIMES, and FRANCISCO C.
PRATS, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
mounting assembly for a blower. The Examiner has rejected the claims as

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-001556
Application 11/210,976

anticipated by or obvious in view of the prior art. We have jurisdiction
under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
Claims 1-10 and 12-18 are pending and on appeal. Claim 1 is
representative and reads as follows:
1. A gas delivery system comprising:
an external housing:
a flow generator disposed in the external housing,
wherein the flow generator includes a flow generator housing having a
peripheral surface;
a vibration damper body disposed within the external
housing and formed of one or more compliant materials shaped to be
complementary to the peripheral surface of the flow generator housing so as
to engage the peripheral surface of the flow generator housing, and wherein
the vibration damper body and flow generator housing are configured to
form, when engaged, an air gap between a lower housing portion of the flow
generator housing and the vibration damper body.

The claims stand rejected as follows:
• Claims 1-4, 6, 7, 9, 10, and 12-18 under 35 U.S.C. § 102(e) as
anticipated by Deane2 (Ans. 4);
• Claim 5 under 35 U.S.C. § 103(a) as obvious in view of Deane
(Ans. 6); and
• Claim 8 under 35 U.S.C. § 103(a) as obvious in view of Deane and
Glucksman3 (Ans. 7).

2 Deane et al., US 2005/0072426 A1, Apr. 7, 2005.
3 Glucksman, U.S. Patent 5,512,086, Apr. 30, 1996.
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Appeal 2009-001556
Application 11/210,976

Issue
The Examiner finds that Deane discloses a product that includes,
among other things, a “vibration damper body . . . shaped to be
complementary to the peripheral surface of the flow generator housing,” as
required by claim 1 (Ans. 4).
Appellants contend that “the claimed invention recites that the damper
body is ‘complementary to the peripheral surface’ of the flow generator
housing so as to ‘engage the peripheral surface’ of the flow generator
housing. In contrast, Deane teaches that the bottom or lower surface of the
flow generator housing (1106) rests on the vibration damper body.” (Reply
Br. 12.)
The dispositive issue in this appeal is: Did the Examiner err in
finding that Deane discloses a vibration damper body shaped to be
complementary to the peripheral surface of a flow generator housing?
Findings of Fact
1. The Specification states that “[m]edical devices that provide a flow
of gas to an airway of a patient are used in a variety of situations” (Spec. 1,
¶ 2).
2. The Specification states that “any such device that delivers a flow
of gas to the airway of the patient, invasively or non-invasively, is referred
to herein as a gas delivery system” (id.).
3. The Specification states that “a flow generator is any device that
generates the flow of gas for delivery to the patient, that elevates a pressure
of gas above the ambient pressure, or both” (id. at 1, ¶ 3).
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Application 11/210,976

4. The Specification discloses “a mounting assembly for mounting a
flow generator within a gas delivery system that effectively and efficiently
reduces operating noise caused by the flow generator” (id. at 1, ¶ 5).
5. The relevant part of the Specification’s Figure 2 is reproduced
below (with unneeded reference numerals omitted):

The figure is an exploded view showing some of the components of
the disclosed gas delivery system, including external housing 16, vibration
damper body 18, and flow generator 14.
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Appeal 2009-001556
Application 11/210,976

6. The Specification discloses that “flow generator housing 70
includes a peripheral surface 98 disposed about the rotational blower axis,
and an axially facing lower surface 100 disposed along the rotational blower
axis” (id. at 6, ¶ 27).
7. The Specification discloses that “[v]ibration damper body 18 is
adapted for installation within external housing 16, and forms a cavity 102
shaped to receive the flow generator housing 70. Specifically, cavity 102 is
shaped to be complementary to peripheral surface 98 of the flow generator
housing 70.” (Id. at 7, ¶ 29.)
8. The Specification discloses that “[c]avity 102 is formed within
vibration damper body 18 to correspond roughly in size and shape with flow
generator housing 70. . . . A plurality of support surfaces 114 are formed in
vibration damper body 18.” (id. at 8, ¶ 31.)
9. The Specification discloses that “the shape and position of support
surfaces 114 are designed to be complementary to, and engage with, support
structures 76 and 88 . . . of flow generator housing 70 as flow generator
housing 70 is introduced into cavity 102” (id. at 9, ¶ 36).
10. The Specification discloses that “flow outlet 96 is seated in flow
outlet seating portion 118 of vibration damper body 18” (id.) in the
assembled product.
11. Deane discloses a “gas fractionalization apparatus that provides
oxygen rich air to patients” (Deane, abstract).
12. Deane’s Figure 11 is reproduced below (with unneeded reference
numerals omitted):
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Application 11/210,976

The figure shows the components inside one of the compartments of
Deane’s device, including “compressor 1108 rest[ing] on an upper surface
1118 of the compressor mount 406” (id. at 7, ¶ 79).
13. Deane discloses that “a vibration damping member 1128 is
interposed between the compressor mount 406 and the compressor 1108 to
further reduce transfer of vibrational energy from the compressor to the
housing” (id. at 8, ¶ 81).
14. Deane’s Figure 12 is shown below:
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Appeal 2009-001556
Application 11/210,976

The figure shows “vibration damping member 1128 [which]
comprises a grommet 1202 configured to mate with the annular compressor
mount” (id.).
15. Deane discloses that the “ribs 1204, 1208 substantially reduce the
amount of vibration transferred to the grommet 1202 which is in contact
with the compressor mount” (id.).
Principles of Law
[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant’s specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
“Under 35 U.S.C. § 102, every limitation of a claim must identically
appear in a single prior art reference for it to anticipate the claim.” Gechter
v. Davidson, 116 F.3d 1454, 1457 (Fed. Cir. 1997).
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Appeal 2009-001556
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“The test of obviousness vel non is statutory. It requires that one
compare the claim’s ‘subject matter as a whole’ with the prior art ‘to which
said subject matter pertains.’” In re Ochiai, 71 F.3d 1565, 1569 (Fed. Cir.
1995) (quoting 35 U.S.C. § 103). A proper analysis under § 103 requires
“a searching comparison of the claimed invention – including all its
limitations – with the teaching of the prior art.” Ochiai, 71 F.3d at 1572.
Analysis
Claim 1 is directed to a product comprising, among other things, a
“vibration damper body . . . shaped to be complementary to the peripheral
surface of the flow generator housing.” Claims 12 and 18, the only other
independent claims, also require that the vibration damper body is shaped to
be complementary to the peripheral surface of the flow generator housing.
The Examiner finds that Deane’s “vibration damper body (1128) . . .
[is] shaped to be complementary to the peripheral surface of the flow
generator housing (1106)” (Ans. 4) because the “upper ribs (1204) of the
vibration damper body (1128) engage a peripheral surface of the flow
generator housing (1106) and complement the shape of the flow generator
housing (1106)” (id. at 8). The Examiner cites a dictionary definition of
“complementary” as meaning “[c]ompleting. Either of two parts that
complete the whole or mutually complete each other” (id.) and reasons that
the “vibration damper body (1128) has a shape that completes the attachment
of the vibration damper body (1128) to the flow generator housing (1106)”
(id. at 9).
We disagree with the Examiner’s interpretation of the claim language.
The Examiner’s definition requires that two “complementary” parts either
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Appeal 2009-001556
Application 11/210,976

complete a whole or mutually complete each other. In other words, the
shape of each complementary part depends on the shape of the other part:
where one part has a bump, the other part has a notch into which the bump
fits. The Specification provides an example of a vibration damper body that
is complementary to the peripheral surface of a flow generator housing,
because it includes a cavity that “correspond[s] roughly in size and shape
with flow generator housing 70” (FF 8), support surfaces 114 that are shaped
and positioned to accommodate support structures 76 and 88 (FF 9), and a
flow outlet seating portion shaped and positioned to fit flow outlet 96 in the
assembled product (FF 10). The Specification’s descriptions of vibration
damper body 18 and flow generator housing 70 therefore fit the Examiner’s
definition of “complementary.”
The Examiner has not shown, however, that Deane’s vibration damper
body and flow generator housing fit together to complete a whole or
mutually complete each other. Deane’s vibration damper body has ribs on
its upper surface (the surface that contacts flow generator housing). The
Examiner has not pointed to any evidence to show that the bottom surface of
the flow generator housing has depressions that the ribs of the vibration
damper body fit into.
The evidence, in fact, shows that the shapes of Deane’s vibration
damper body and flow generator housing are not intended to be
complementary. Deane’s Figure 12 shows that the vibration damper body
has an annular shape (FF 14). Deane discloses that this shape allows the
vibration damper body “to mate with the annular compressor mount” (id.),
not to complement the shape of the flow generator housing. Deane’s Figure
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11 shows that the flow generator housing does not have an annular or
cylindrical shape (FF 12). Finally, Deane discloses that the ribs of the
vibration damper body “substantially reduce the amount of vibration
transferred to the grommet 1202 which is in contact with the compressor
mount” (FF 15), suggesting that the ribs reduce the amount of surface area
of the vibration damper body that is in contact with the flow generator
housing. Complementary shapes, by contrast, would increase the amount of
surface area in contact.
Conclusion of Law
The Examiner erred in finding that Deane discloses a vibration
damper body shaped to be complementary to the peripheral surface of a flow
generator housing.
SUMMARY
We reverse the rejection of claims 1-4, 6, 7, 9, 10, and 12-18 as
anticipated by Deane. Because claims 5 and 8 on claim 1, and the Examiner
provided no basis on which to conclude that the limitation missing from
Deane would have been obvious based on Deane or Glucksman, we also
reverse the rejections of claims 5 and 8 under 35 U.S.C. § 103(a).

REVERSED

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