Ex Parte Kwok et al

Patent Trial and Appeal Board

Sep 25, 2017

12382383 (P.T.A.B. Sep. 25, 2017)

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.
12/382,383 03/16/2009 Philip Rodney Kwok BKK-4398-966 4080
23117 7590 09/27/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
LOUIS, LATOYA M
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
09/27/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIP RODNEY KWOK and DONALD DARKIN
Appeal 2015-008083
Application 12/382,383
Technology Center 3700
Before HUBERT C. LORIN, CYNTHIA L. MURPHY, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s
rejections of claims 1, 3—5, 9-16, and 26—36. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 “The real party in interest is ResMed Limited.” (Appeal Br. 3.)
Appeal 2015-008083
Application 12/382,383
STATEMENT OF THE CASE
The Appellants’ invention relates to “[a] method and apparatus for
humidifying breathable gas provided to a user.” (Abstract.)
Illustrative Claim
1. A method for humidifying breathable gas pressurized
by a blower and subsequently provided to a user’s airways, the
method comprising:
producing moisture or water derived from ambient
environmental surroundings by applying a current to a Peltier
plate assembly to create condensation; and
channeling the pressurized breathable gas from the
blower along an air flow path, said flow path including access
to at least a portion of the moisture or water produced by the
Peltier plate assembly for increased humidification of the
pressurized breathable gas, for delivery to the airways of the
user.
Johnson
Hosoda
Harris
DeGregoria
Snoeren
Krohn
Kawamoto
Schlotzer
References
US 3,295,522
US 4,135,370
US 4,950,316
US 5,617,913
US 5,703,352
US 6,332,462 B1
US 2003/0219197 A1
US 2004/0035138 A1
Jan. 3, 1967
Jan. 23, 1979
Aug. 21, 1990
Apr. 8, 1997
Dec. 30, 1997
Dec. 25, 2001
Nov. 27, 2003
Feb. 26, 2004
Rejections2
I. The Examiner rejects claims 1, 3—5, 9—11, 13—16, and 26—30
under 35 U.S.C. § 103(a) as unpatentable over Hosoda and Johnson. (Final
Action 3.)
2 The Examiner’s rejection of claims 9, 33, and 34 under 35 U.S.C. § 112
has been withdrawn. (See Final Action 2—3; Answer 9.)
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Appeal 2015-008083
Application 12/382,383
II. The Examiner rejects claim 12 under 35 U.S.C. § 103(a) as
unpatentable Hosoda, Johnson and DeGregoria. (Final Action 7.)
III. The Examiner rejects claims 31, 32, 35, and 36 under 35 U.S.C.
§ 103(a) as unpatentable Hosoda, Johnson, and Harris. (Final Action 8.)
IV. The Examiner rejects claims 9, 33, and 34 under
35 U.S.C. § 103(a) as unpatentable Krohn and DeGregoria. (Final
Action 6.)
ANALYSIS
Claims 1, 9, and 10 are the independent claims on appeal, with the rest
of the claims on appeal (i.e., claims 3—5, 11—16, and 26—36) depending
therefrom. (See Appeal Br., Claims App.) Independent 1, 9, and 10 recite
“[a] method for humidifying breathable gas pressurized by a blower and
subsequently provided to a user’s airways.” (Id.)
Rejections I—III
Independent claims 1, 9, and 10 each recites a step involving the
“channeling the pressurized breathable gas” along “an air flow path” for
“delivery to the airways of a user.” (Appeal Br., Claims App.) The
Examiner finds that Hosoda teaches an air-humidifying method in which
pressurized air is so channeled. (See Final Action 4.) In Hosoda’s humidity-
control apparatus, fan-pressurized air flows through ducts inside a case 14
and exits through a “discharge port 27-1 to the space to be humidified.”
(Hosoda, col. 3,11. 32—38; see also id. Fig. 1.) The Examiner explains that a
person within this space will breathe the discharged humidified air into his
or her airways, and thus Hosoda “channels” a breathable gas “for delivery”
to the airways of a user. (See Answer 9.)
3
Appeal 2015-008083
Application 12/382,383
The Appellants argue that, in Hosoda, the breathable gas is channeled
for delivery to an ambient space, not the airways of a person who happens to
be standing somewhere in this ambient space. (See Appeal Br. 6—8.) We are
persuaded by this argument because, in the claimed context, “channeling” a
gas along a flow “path” “for delivery” to a certain place, requires a
recognizable passage, course, or route to the delivery destination (i.e., a
user’s airways).3 In Hosoda, there is no such recognizable passage
extending to the person standing in the ambient space.
The Examiner’s further findings with respect to Hosoda and the other
references of record (see Final Action 4—6, 7—9) do not compensate for
Hosoda’s failure to show or suggest the channeling required by the
independent claims.4 Thus, we do not sustain the Examiner’s rejection of
claims 1,3-5,9-11, 13—16, and 26—30 under 35 U.S.C. § 103(a) as
unpatentable over Hosoda and Johnson; we do not sustain the Examiner’s
3 A dictionary definition of “channel” (noun) is “a usually tubular enclosed
passage,” a dictionary definition of “channel” (verb) is “to convey or direct
into or through a channel,” a dictionary definition of the word “path” is a
“course” or “route,” a dictionary definition of the word “deliver” is “to send
(something aimed or guided) to an intended target or destination,” and a
dictionary definition of the word “delivery” is “the act or manner of
delivering something.” See https://www.merriam-webster.com/“channel”
“path” “deliver” “delivery.”
4 The Examiner does additionally find that “Johnson teaches that air
delivered to ambient is delivered to a user’s airways.” (Answer 10.)
Johnson discloses a wearable breathing unit that “cool[s] an external air
intake stream before it is drawn into the lungs by the normal respiratory
action of the wearer.” (Johnson, col. 1,11. 8—12.) However, the Examiner
does not explain, and we do not see, how this relates to Hosoda’s channeling
of pressurized air from its fan 5 along a flow path in its case 4 to discharge
port 27—1.
4
Appeal 2015-008083
Application 12/382,383
rejection of claim 12 under 35 U.S.C. § 103(a) as unpatentable Hosoda,
Johnson and DeGregoria; and we do not sustain the Examiner’s rejection of
claims 31, 32, 35, and 36 under 35 U.S.C. § 103(a).
Rejection IV
As indicated above, independent claim 9 recites a step involving the
channeling of gas along an air flow path. (Appeal Br., Claims App.)
Independent claim 9 also recites steps involving “producing moisture or
water derived from ambient environmental surroundings” and “introducing
said moisture or water into the air flow path.” (Id.) The Examiner finds that
Krohn discloses channeling an air stream along a flow path, producing
moisture, and introducing the produced moisture into the air stream. (See
Final Action 6—7.) In Krohn’s respiratory device, an airstream on route to a
breathing mask 6 is “cooled in [a] heat exchanger 12” below the ambient
temperature and this increases “the relative air humidity of the air stream.”
(Krohn, col. 3,11. 47—50.) The Examiner explains that Krohn’s heat
exchanger 12 produces increased “humidity/moisture via cooling which is
added to the air stream.” (Answer 21.)
The Appellants argue that “the amount of moisture in the airflow of
Krohn does not change” and therefore “there is no introduction of moisture
into the airflow path.” (Reply Br. 15.) We are persuaded by this argument
because, upon increasing the relative humidity of Krohn’s air stream, any
allegedly produced moisture is already in the airflow path. As such, in
Krohn, there would be no separate step of introducing (e.g., inserting or
bringing into) this allegedly-produced moisture into the airflow path.
The Examiner’s further findings with respect to Krohn and the other
references of record (see Final Action 6—7) do not compensate for Krohn’s
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Appeal 2015-008083
Application 12/382,383
failure to show or suggest the introduction of moisture required by
independent claim 9. Thus, we do not sustain the Examiner’s rejection of
claims 9, 33, and 34 under 35 U.S.C. § 103(a) as unpatentable Krohn and
DeGregoria.
DECISION
We REVERSE the Examiner’s rejections of claims 1, 3—5, 9—16,
and 26—36.
REVERSED
6