Ex Parte TANG et al

Patent Trial and Appeal Board

Jan 29, 2018

13890302 (P.T.A.B. Jan. 29, 2018)

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.
13/890,302 05/09/2013 Zhuo Ran TANG PTB-4398-1342 5144
23117 7590 01/31/2018
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
DOUGLAS, STEVEN O
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
01/31/2018 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):
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 ZHUO RAN TANG, CEM TARAKCI,
JOHN MICHAEL SNOW, KENNETH LEE,
STEVEN PAUL FARRUGIA, DMITRI ANATOLIEVICH DOUDKINE,
and IAN MALCOLM SMITH
Appeal 2017-002662
Application 13/890,302
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
LYNNE H. BROWNE, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Zhuo Ran Tang et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 41—45 and 64—78. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal 2017-002662
Application 13/890,302
CLAIMED SUBJECT MATTER
Appellants’ invention relates to a low cost Continuous Positive
Airway Pressure (CPAP) flow generator and humidifier assembly. Spec,
para. 2.
Claims 41, 68, and 78 are independent. Claim 41 is illustrative and is
reproduced below:
41. A method for controlling a humidifier of a Continuous
Positive Airway Pressure (CPAP) device including a controller
comprising:
controlling a heating element in the humidifier with
command signals from the controller;
sensing a temperature of a fluid in the humidifier with a
sensor in the humidifier that transmits signals to the controller;
establishing an acceptable operating range for the signal
transmitted to the controller;
determining whether the transmitted signal is within the
acceptable operating range;
if the signal is within the acceptable operating range
treating the signal as being indicative of the temperature of the
fluid in the humidifier and using the signal to control the heating
element, and
if the signal is outside of the acceptable operating range,
the controller determines the humidifier to be unavailable.
THE REJECTION ON APPEAL
The Examiner has rejected claims 41—45 and 64—78 under 35 U.S.C.
§ 103(a) as being unpatentable over Gradon (US 6,349,722 Bl, issued Feb.
26, 2002) and Jung (US 5,938,984, issued Aug. 17, 1999).
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Appeal 2017-002662
Application 13/890,302
ANALYSIS
Regarding claim 41, the Examiner finds that Gradon discloses a
method for controlling a humidifier 4 of a Continuous Positive Airway
Pressure (CPAP) device including a controller 77, comprising: controlling a
heating element in the humidifier 4 with command signals from the
controller 77; sensing a temperature of a fluid in the humidifier 4 with a
sensor 27 in the humidifier 4 that transmits signals to the controller 77;
establishing an acceptable operating range for the signal transmitted to the
controller 77; determining whether the transmitted signal is within the
acceptable operating range, and if the signal is within the acceptable
operating range treating the signal as being indicative of the temperature of
the fluid in the humidifier and using the signal to control the heating
element. See Final Act. 2—3 (citing Gradon, Fig. 6, item 53); see also
Gradon, Fig. 5. The Examiner acknowledges that Gradon fails to disclose
making the humidifier unavailable if the signal is outside the acceptable
range. Final Act. 2.
The Examiner finds that Jung discloses a humidifying apparatus
having a controller “that puts the apparatus out of service (i.e. by turning the
associated heater OFF[]) when temperatures and humidity levels are outside
acceptable ranges.” Id. (citing Jung, Fig. 3, item SI3). The Examiner
concludes that it would have been obvious to modify the device of Gradon
by making the humidifier unavailable if the signal is outside the acceptable
range, in view of the teachings of Jung, to prevent a hazardous situation. Id.
at 2—3.
Appellants contend that Jung does not disclose determining that a
humidifier is unavailable. Appeal Br. 8. In support, Appellants argue that
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Appeal 2017-002662
Application 13/890,302
the humidifier of Jung remains available even when power is removed from
the heater because Jung discloses a cold humidification mode where the
heater is turned off. Id. (citing Jung, Fig. 3, items S8, S10, S12, S13, and
SIS). Appellants further argue that even though the heater may be turned
off, the humidification can still be provided. Id. (citing Jung, Fig. 3, items
S7, SI2, SI3, and SIS). As such, Appellants contend that the disclosure of
Jung would not have rendered obvious determining that a humidifier is
unavailable. Id. at 9.
The Examiner responds that Jung teaches, in Figure 3 via item SI3,
putting the humidifier out of service by turning the heater of the humidifier
off, thus making the humidifier unavailable for use. Ans. 5. The Examiner
explains that if a humidifier is turned off, then it is unavailable to humidity.
Id.
Appellants’ arguments are persuasive. The Examiner’s finding that
Jung discloses putting the humidifier out of service by turning off the
humidifier and thus, making the humidifier unavailable for use, is not
supported by the evidence. Although Figure 3 of Jung discloses that the
heater can be turned off (SI3), it does not disclose turning off the humidifier
completely. Figure 3 of Jung shows that the humidifier can operate in a cold
humidification mode (S8, SI2) while the heater is turned off (SI 3) and the
fan/vibrator remains on (SIS). See Jung, Fig. 3, col. 3,1. 57—col. 4,1. 61.
Thus, the Examiner has not adequately established how it can be said that
Jung teaches making the humidifier unavailable for use by turning off the
heater.
The Examiner has not established a prima facie case of obviousness
directed to claim 41. The rejection of claim 41, and claims 42-45 and 64—67
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Appeal 2017-002662
Application 13/890,302
depending therefrom, is not sustained. Independent claims 68 and 78
include limitations similar to those discussed above with respect to claim 41
and the Examiner relies on the same erroneous finding. See Final Act. 2—3.
Accordingly, the rejection of those claims, and of claims 69-77 depending
from claim 68, is also not sustained.
DECISION
The rejection of claims 41—45 and 64—78 is reversed.
REVERSED
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