Ex Parte Kimmel

Patent Trial and Appeal Board

Oct 17, 2018

14379671 (P.T.A.B. Oct. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/379,671 08/19/2014 Steven Adam Kimmel
24737 7590 10/19/2018
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.
2012P00054WOUS 8476
EXAMINER
PACIOREK, JONATHAN S
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
10/19/2018 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 STEVEN ADAM KIMMEL
Appeal2018-001500 1
Application 14/379,671 2
Technology Center 3700
Before HUBERT C. LORIN, BIBHU R. MOHANTY, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1, 2, 4, 6, 7, 9, 11, 12, 14, and 16-21. We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.
1 Our decision references the Appeal Brief ("Appeal Br.," filed June 28,
2017), the Reply Brief ("Reply Br.," filed Nov. 29, 2017), the Examiner's
Answer ("Ans.," mailed Oct. 3, 2017), and the Final Office Action ("Final
Act.," mailed Dec. 27, 2016).
2 According to Appellant, the real party in interest is Koninklijke Philips
Electronics N.V. Appeal Br. 2.
Appeal2018-001500
Application 14/379,671
BACKGROUND
According to Appellant, the application "relates to compensating for
variations in air density in a pressure support device." Spec. ,r 1.
CLAIMS
Claims 1, 6, and 11 are the independent claims on appeal. Claim 1 is
illustrative of the appealed claims and recites:
1. A system configured for compensating for variations in air
density of an ambient environment of a pressure support device,
the system comprising:
a flow generator configured to generate a pressurized flow
of breathable gas for delivery to the airway of a subject;
at least one sensor configured to provide one or more
output signals conveying information relating to one or more
parameters associated with the ambient environment of the
pressure support device; and
one or more processors configured to execute computer
program modules, the computer program modules comprising:
an ambient parameter determination module
configured to determine individual ones of the one or more
parameters associated with the ambient environment of the
pressure support device based on individual ones of the
one or more output signals provided by the at least one
sensor;
an ambient parameter assumption module
configured to determine one or more assumed parameters
associated with the ambient environment of the pressure
support device based on typical sleeping conditions of the
subject;
an ambient air density estimation module
configured to determine an estimated ambient air density
of the ambient environment of the pressure support device
based on individual ones of the one or more parameters
determined by the ambient parameter determination
module and the one or more assumed parameters
2
Appeal2018-001500
Application 14/379,671
determined by the ambient parameter assumption module;
and
a flow generator control module configured to
control the flow generator to adjust a flow rate of the
pressurized flow of breathable gas based on the estimated
ambient air density of the ambient environment of the
pressure support device such that the flow rate of the
pressurized flow delivered to the airway of the subject is
controlled to compensate for variations in ambient air
density.
Appeal Br. 19.
REJECTION3
The Examiner rejects claims 1, 2, 4, 6, 7, 9, 11, 12, 14, and 16-21
under 35 U.S.C. § I03(a) as unpatentable over Smith4 in view of Air
Density5 and Bates. 6
DISCUSSION
As discussed below, we are persuaded of error in the rejection of
claim 1 because the Examiner has not shown that it would have been
obvious to modify Smith to include an ambient air density estimation
module or flow generator control module as claimed.
With respect to claim 1, the Examiner finds that Smith discloses a
system as claimed, except that Smith does not teach the claimed ambient air
3 A rejection under 35 U.S.C. § 112, first paragraph, has been withdrawn.
See Ans. 2.
4 Smith et al., US 2009/0223514 Al, pub. Sept. 10, 2009.
5 "Density of Dry Air, Water Vapor and Moist Humid Air,"
https://web.archi ve.org/web/20060408225656/http:l /www
.engineeringtoolbox.com/density-air-d_ 680.html (visited on Dec. 9, 2016)
("Air Density").
6 Bates, US 6,167,107, iss. Dec. 26, 2000.
3
Appeal2018-001500
Application 14/379,671
density estimation module or a flow generator control module. Final Act. 5-
6. As to the claimed ambient air density estimation module, the Examiner
relies on the Air Density reference. Id. at 6. For the flow generator control
module, the Examiner relies on Bates. Id. at 7. The Examiner concludes
that incorporating the teaching of the Air Density reference would improve
"the calculated pressurized flow rate within the device in order to
accomplish needed airflow." Id. at 6-7. Similarly, the Examiner concludes
that incorporating the teaching of Bates would "maintain the necessary
pressurized flow rate within the device in order to accomplish the needed air
flow." Id. at 7. The Examiner also concludes that modifying Smith based
on the Air Density reference and Bates would "allow[] for a real time
adjustment of the flow rate based on the air density." Ans. 4.
We are persuaded of error by Appellant's argument that the Examiner
has failed to provide an adequate articulated reasoning with some rational
underpinning to support the conclusion of obviousness. See KSR Int 'l. Co.
v. Teleflex, Inc., 550 U.S. 398,418 (2007). As indicated, the Examiner's
reasoning for incorporating Bates's flow controller into Smith is to achieve
needed air flow and allow for real time air flow adjustments based on air
density. Although incorporating Bates's flow controller into Smith might
allow for air flow adjustments based on air density, the Examiner has failed
to explain why one of ordinary skill in the art would have had reason to do
so. Smith discloses a humidifier for a respiratory apparatus that includes,
among other things, a flow generator with buttons that may be used to set
flow parameters. Smith ,r 61, Abstract. Smith also discloses that the flow
rate through the humidifier is adjusted based on a specific "control
algorithm" or in response to specific conditions, such as a leak. Id. ,r 102.
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Appeal2018-001500
Application 14/379,671
Thus, Smith already incorporates a flow controller that can maintain the
desired flow rate in the device.
Yet the Examiner has not provided an explanation why one of
ordinary skill in the art would have had a reason to modify Smith's flow
controller to adjust flow based on estimated ambient air density. The
Examiner points only to known air density equations in the Air Density
reference and the use of air density to maintain volumetric air flow in Bates.
The Examiner does not cite to any portion of the art that might indicate why
one of ordinary skill in the art would have found it beneficial or otherwise
obvious to incorporate the teachings of the Air Density reference and/or
Bates into Smith's device, which already includes a means for controlling
flow through the device.
Based on the foregoing, we determine that the Examiner's conclusion
regarding obviousness is not adequately supported. Accordingly, we do not
sustain the rejection of claim 1. We also do not sustain the rejection of
claims 2, 4, 6, 7, 9, 11, 12, 14, and 16-21, for which the Examiner relies on
the same conclusions.
CONCLUSION
We REVERSE the rejection of claims 1, 2, 4, 6, 7, 9, 11, 12, 14, and
16-21.
REVERSED
5