Ex Parte FRERICHS et al

Patent Trials and Appeals Board

Mar 15, 2019

14300662 - (D) (P.T.A.B. Mar. 15, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/300,662 06/10/2014
13897 7590 03/19/2019
Abel Schillinger, LLP
8911 N. Capital of Texas Hwy
Bldg 4, Suite 4200
Austin, TX 78759
FIRST NAMED INVENTOR
Arnold FRERICHS
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.
6580-P50144 6795
EXAMINER
MURPHY, VICTORIA
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
03/19/2019 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):
mail@Abel-IP.com
hmuensterer@abel-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARNOLD FRERICHS and MAR TIN BECHTEL
Appeal2018-006599 1
Application 14/300,6622
Technology Center 3700
Before MICHAEL C. ASTORINO, KENNETH G. SCHOPPER, and
AMEE A. SHAH, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 20 and 24--40. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references the Appeal Brief ("Appeal Br.," filed Feb. 9,
2018), the Reply Brief ("Reply Br.," filed June 1, 2018), the Examiner's
Answer ("Ans.," mailed Apr. 3, 2018), the Final Office Action ("Final Act.,"
mailed Sept. 11, 2017), and the Advisory Action ("Adv. Act.," mailed Dec.
4, 2017).
2 According to Appellants, the real party in interest is Loewenstein Medical
Technology S.A. Appeal Br. 3.
Appeal2018-006599
Application 14/300,662
BACKGROUND
According to Appellants, "[t]he invention relates to a head harness for
positioning a patient interface on the head of a user." Spec. 1, 11. 9-10.
CLAIMS
Claims 20 and 39 are the independent claims on appeal. Claim 20 is
illustrative of the appealed claims and recites:
20. A set of holding arrangements for a head harness, wherein
the set comprises at least a first holding arrangement for an upper
portion of a patient interface and a second holding arrangement
for a lower portion of the patient interface, each of the first and
second holding arrangements comprising a holding element for
a right portion of the patient interface and a holding element for
a left portion of the patient interface, and wherein at least one of
the first and second holding arrangements comprises
identification markings and/or codings in a region of the patient
interface which render the holding element for the right portion
of the patient interface distinguishable from the holding element
for the left portion of the patient interface, the holding elements
of at least one of the first and second holding arrangements being
configured differently for the right and left portions of the patient
interface.
Appeal Br. 16.
REJECTI0NS 3
1. The Examiner rejects claims 20, 24, 25, 28-37, and 39 under 35 U.S.C.
§ 103 as unpatentable over Gunaratnam4 in view ofRummery. 5
3 The Examiner indicates that "[Appellants'] ... reply has overcome the
following rejection[]: 112(b) rejection[] to claims 20, 24--40." Adv. Act. 1.
4 Gunaratnam et al., US 2009/0114227 Al (pub. May 7, 2009).
5 Rummery et al., US 2010/0307502 Al (pub. Dec. 9, 2010).
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Application 14/300,662
2. The Examiner rejects claim 38 under 35 U.S.C. § 103 as unpatentable
over Gunaratnam in view of Rummery and cpapXchange. 6
3. The Examiner rejects claims 20, 26, 27, 37, and 40 under 35 U.S.C.
§ 103 as unpatentable over Lubke 7 in view of Barlow. 8
DISCUSSION
Obviousness Over Gunaratnam and Rummery
Appellants argue claims 20, 24, 25, 28-37, and 39 as a single group.
See Appeal Br. 7-10. We select claim 20 as representative of this group,
and the remaining claims stand or fall with claim 20.
With respect to claim 20, the Examiner finds that Gunaratnam
discloses a set of holding arrangements for a head harness as claimed, except
that Gunaratnam does not disclose the use of identification markings as
required by the claim. Final Act. 3--4 (citing Gunaratnam Fig. 5±). More
specifically and in relevant part, the Examiner finds that Gunaratnam teaches
a first holding arrangement with right and left hand holding elements at the
sides of a forehead support 162. Id. at 4. The Examiner also indicates that
the rejection relies on slots "for receiving a strap on each side of the
forehead support" as the claimed first holding arrangement. See Adv.
Act. 2. Further, the Examiner finds that Rummery teaches a holding
arrangement with identification markings, and the Examiner concludes that
it would have been obvious to modify Gunaratnam to include identification
6 cpapXchange, Quattroâ„¢ FX For Her Full Face CP AP/BiLevel Mask with
Headgear, 1-2 (https://web.archive.org/web/20111127214
709/http://www.cpapxchange.com/rm-quattrof) (last visited Nov. 16, 2016).
7 Lubke et al., US 2006/0283461 Al (pub. Dec. 21, 2006).
8 Barlow et al., US 2013/0220327 Al (pub. Aug. 29, 2013).
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Application 14/300,662
markings "for the purpose of an intuitive assembly for the user ... and to
ensure correct alignment of the patient interface structure." Final Act. 4--5
( citing Rummery Figs. 18g-181; ,r,r 245--48).
We agree with and adopt the Examiner's findings and conclusion with
respect to the obviousness rejection of claim 20 over Gunaratnam and
Rummery. See Final Act. 3-5; see also Ans. 2---6. As discussed below, we
are not persuaded of error by Appellants' arguments.
Appellants argue that Gunaratnam fails to disclose a first holding
arrangement at the upper portion of the patient interface. Appeal Br. 7. In
support, Appellants assert that Gunaratnam does not include any disclosure
regarding the alleged first holding arrangement identified in the rejection,
and only describes the forehead support as being adjusted through the use of
an actuator button and without reference to any holding arrangement. Id.
at 8 (citing Gunaratnam ,r 64). Appellants assert that "GUNARATNAM
does not mention the alleged 'slots' [in the alleged first holding
arrangement] at all (in contrast to the connectors 200 [in the second holding
arrangement])." Id. at 9 (citing Gunaratnam ,r 61). Further, Appellants
assert that it "is not clear at all from the figures ... that what the Examiner
considers to be a slot actually is a slot and not, e.g., a protrusion or the like
(see particularly the rights side of Fig. 5c in this regard)." Id. Finally,
Appellants assert that no strap or other attachment would be necessary on
Gunaratnam's forehead support because the support is adjustable using the
actuator button, and strapping the forehead support to the patient's head
would make the adjustment mechanism superfluous. Id.
We are not persuaded of error. As an initial matter, we note that the
claim does not require any particular structure for the "first holding
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Application 14/300,662
arrangement" other than the requirement that it includes right and left
portions. We agree with the Examiner that Gunaratnam discloses right and
left portions of the forehead support that may be considered a first holding
arrangement as they are capable of holding the left and right portions of a
head harness.
Further, we are not persuaded of error in the rejection to the extent the
Examiner relies on slots in Gunaratnam' s forehead support as the claimed
holding elements in the first holding arrangement. We agree with the
Examiner that one of ordinary skill in the art would understand that
Gunaratnam's forehead support is capable of acting as a holding
arrangement with holding elements, such as with straps in a manner similar
to the prior art depicted in Gunaratnam's Figure 1. See Ans. 4. Further,
although the claim does not require that the holding elements include any
particular structure for holding, we also agree with the Examiner that
Figures 5c and 5d of Gunaratnam show slots on the right and left side of the
forehead support, and that a close inspection of the forehead support in
Figure 5c shows a slot at the right side, which is indicated by the fact that
one can see a tab through the slot. See id. Finally, we agree with the
Examiner that the adjustment of the forehead support using the actuator
would not be superfluous if a holding means were used. Rather, one of
ordinary skill in the art would understand that adjustment with the actuator
allows for the forehead support to conform with "a wide scope of facial
geometries" while a holding means, such as straps, would work to hold the
forehead support in place on the forehead. See Gunaratnam ,r 64.
Based on the foregoing, we are not persuaded of error in the rejection
of claim 20. Accordingly, we sustain the rejection of claim 20 as obvious
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Application 14/300,662
over Gunaratnam and Rummery. We also sustain the rejection of claims 24,
25, 28-37, and 39 on this ground because those claims fall with claim 20.
Obviousness Over Gunaratnam, Rummery, and cpapXchange
Appellants do not provide separate arguments with respect to the
rejection of claim 38 other than to assert that cpapXchange does not cure the
deficiency in the rejection over Gunaratnam. See Appeal Br. 14. Having
found no such deficiency, we also sustain the rejection of claim 38.
Obviousness over Lubke and Barlow
Appellants argue claims 20, 26, 27, 37, and 40 as a single group. See
Appeal Br. 10-14. We select claim 20 as representative of this group, and
claims 26, 27, 37, and 40 stand or fall with claim 20.
With respect to claim 20 here, the Examiner finds that Lubke teaches
a set of holding arrangements for a head harness as claimed except that
Lubke does not disclose identification markings or different configurations
of the right and left portions of the holding elements of one of the holding
arrangements. Final Act. 12-13 (citing Lubke Fig. 152). With respect to
these missing elements, the Examiner relies on Barlow. Id. at 13-14.
Specifically, the Examiner finds that Barlow teaches a holding arrangement
with identification markings and right and left side holding elements that are
configured differently. Id. (citing Barlow Figs. 6-5---6-8; ,r,r 113-15). The
Examiner concludes that it would have been obvious to modify Lubke to
include identification markings and different configurations as taught by
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Application 14/300,662
Barlow, "for the purpose of an intuitive assembly for the user and to ensure
correct alignment of the patient interface structure." Id. 9
We agree with and adopt the Examiner's findings and conclusion
regarding the rejection of claim 20 over Lubke and Barlow. See Final
Act. 12-14; see also Ans. 6-7. As discussed below, we are not persuaded of
error by Appellants' arguments.
Appellants argue that "there is only a single orientation in which the
mask system of [Lubke] ... can be positioned on a patient's head," and thus,
"there apparently is no need whatsoever to make the right side and ... left
side ... distinguishable." Appeal Br. 11-12. Appellants also assert that
Lubke's upper and lower stabilizing elements are configured differently,
"which is yet another ( additional) reason why there is no need to make the
right and left sides of the mask system ... distinguishable." Id. at 12.
Further, Appellants assert that there is hardly any difference between the
right and left sides of Barlow's headgear such that the identification
markings are necessary, in contrast to Lubke's headgear, "which not only
has two extra ( and differently configured) connection points for mask and
headgear but also features crown straps ... , which make it impossible to
position the mask to the patient's head in more than one orientation." Id.
at 13-14.
We are not persuaded of error because we determine that the Examiner has
provided a sufficient articulated reasoning with rational underpinnings to
support the conclusion of obviousness. See KSR Int 'l Co. v. Teleflex Inc.,
9 We consider the Examiner's reference to Rummery here to be an
inadvertent typographical error and that the Examiner intended to reference
Barlow.
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Application 14/300,662
550 U.S. 398,418 (2007) (quoting In re Kahn, 441 F.3d 977,988 (Fed. Cir.
2006)). First, we agree with the Examiner that Barlow teaches the use of
orientation indicators and that those indicators allow the user to correctly
orient the mask and headgear for use. See Barlow ,r,r 113-15. We also
agree that one of ordinary skill in the art would understand that the use of
such indicators allows for the user to more intuitively assembly the device
with the correct alignment. Further, although Lubke discloses a device with
crown straps and different connection means for the upper and lower
connection points, we are not persuaded that there would be no benefit to
modifying Lubke to include indicators, as taught by Barlow. We agree with
the Examiner that this would allow for the user to more intuitively orient the
device in the appropriate manner to avoid any discomfort and provide for
quicker assembly.
Based on the foregoing, we are not persuaded of error in the rejection
of claim 20 as obvious over Lubke in view of Barlow. Accordingly, we
sustain the rejection of claim 20. For the same reasons, we sustain the
rejection of claims 26, 27, 37, and 40 because those claims fall with
claim 20.
CONCLUSION
We AFFIRM the rejections of claims 20 and 24--40.
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
8