Ex Parte Weber et al

Patent Trial and Appeal Board

Sep 28, 2018

13983217 (P.T.A.B. Sep. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/983,217 08/01/2013 Claude Weber
40582 7590 10/02/2018
American Air Liquide, Inc.
Intellectual Property Department
9811 Katy Freeway
Suite 100
Houston, TX 77024
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.
Serie 8745 5105
EXAMINER
FERNANDES, PATRICK M
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
10/02/2018 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):
IP-USOffice@airliquide.com
Neva.Dare-c@airliquide.com
J us tin.Murray@airliquide.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CLAUDE WEBER and PHILIPPE BERNARD 1
Appeal2017-008930
Application 13/983,217
Technology Center 3700
Before DONALD E. ADAMS, JOHN G. NEW, and RYAN H. FLAX,
Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision under 35 U.S.C. § 134(a) involving claims directed
to a device and method for measuring compliance with oxygen therapy
treatment by a patient. Claims 16-18 and 20-30 are on appeal as rejected
under 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the Real Party ( or Parties) in Interest as "L' Air Liquide,
Societe Anonyme pour l 'Etude et I 'Exploitation des Procedes Georges
Claude" and "Air Liquide Sante (International) S.A." Br. 3. Herein we
reference the Substitute Specification of Aug. 1, 2013 ("Spec."); the Non-
Final Office Action of Feb. 19, 2016 ("Non-Final Action"); the Appeal Brief
of May 19, 2016 ("Br."); and the Examiner's Answer of Aug. 23, 2016
("Answer"). No Reply Brief was submitted.
Appeal2017-008930
Application 13/983,217
STATEMENT OF THE CASE
The Specification states that the "invention relates to a device for
measuring compliance with oxygen therapy treatment, and a corresponding
measurement system and method." Spec. 1: 12-13.
Independent claim 16 is representative and is reproduced below:
16. A device for measuring compliance with oxygen therapy
treatment by a patient, comprising a module (4) containing:
- a system configured to detect the oxygen therapy
treatment to evaluate data relating to the treatment; and
- a system (28; 40, 42) configured to measure a state of
physical activity of the patient, characterized in that the
system configured to measure the state of physical activity
of the patient comprises:
- at least one three-dimensional accelerometer (28)
for sensing a movement of a patient's body which
is adapted to output data relating to a spatial
displacement of the patient's body; and
- a data processing device (40, 42) configured to
process the body spatial displacement data to
provide the state of physical activity of the patient
chosen from a sleeping state, a resting state and an
active state.
Br. 9 (Claims Appendix) ( emphasis added to identify the limitation argued
by Appellants).
The following rejection is appealed:
Claims 16-18 and 20-30 stand rejected under 35 U.S.C. § I03(a) over
Ishizaki2 and Sholder. 3 Non-Final Action 2.
2 US 2007 /0023039 Al (pub. Feb. 1, 2007) ("Ishizaki").
3 US 2010/0210953 Al (pub. Aug. 19, 2010) ("Sholder").
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Appeal2017-008930
Application 13/983,217
DISCUSSION
"[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting aprimafacie case ofunpatentability. If
that burden is met, the burden of coming forward with evidence or argument
shifts to the applicant." In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Arguments made by Appellants in the Appeal Brief have been considered in
this Decision; arguments not so-presented in the Brief are waived. See 37
C.F.R. § 4I.37(c)(l)(iv) (2015); see also Ex parte Borden, 93 USPQ2d
1473, 1474 (BPAI 2010) (informative) ("Any bases for asserting error,
whether factual or legal, that are not raised in the principal brief are
waived.").
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007). "In determining
whether the subject matter of a patent claim is obvious, neither the particular
motivation nor the avowed purpose of the patentee controls. What matters is
the objective reach of the claim. If the claim extends to what is obvious, it is
invalid under § 103." Id. at 419.
The Examiner determined the claims would have been obvious over
Ishizaki and Sholder combined. Non-Final Action 2-5 and Answer 2---6
(collectively citing Ishizaki Abstract, ,r,r 30, 38, 50-56, 60-74, 81-86,
Figures 1, 2; Sholder ,r,r 65, 86-92); see also Shoulder Abstract, ,r,r 3, 9, 10,
85, 93-99, Figures 9, 11-14, 22 (discussing and illustrating monitoring
patients' sleep, (bed) rest, and activity periods). We discern no error in the
Examiner's determinations and we adopt the Examiner's findings of fact and
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Appeal2017-008930
Application 13/983,217
rationale in this Decision. Non-Final Action 2-5; Answer 2-6. We address
Appellants' arguments below.
Appellants state that "[t]hese claims stand and fall together,"
therefore, we consider all claims together; claim 16 is representative. Br. 5.
Appellants argue that Sholder "does not disclose 'the state of physical
activity of the patient chosen from a sleeping state, a resting state and an
active state' detected via the measurements from a three-dimensional
accelerometer" as claimed. Id. at 6. Appellants contend that Sholder, to the
contrary, "describe[ s] [only] a two state categorization of patient activity"
citing Sholder's paragraphs 85-87 as support. Id. at 5---6.
This argument is not persuasive. Sholder discloses using piezoelectric
accelerometers to monitor patients' physical activity levels, including awake
time, active time (e.g., walking), sleeping time, and resting time. See, e.g.,
Sholder ,r,r 85-88. Sholder discloses that sleep is monitored. Id. ,r 88.
Sholder discloses that physical activity in excess of bedrest, such as walking,
is monitored. Id. ,r 86. Sholder further discloses that a patient may be home
after surgery spending several days in bed recovering during such
monitoring. Id. ,r 99. Any activity monitoring during such a time in bed
would obviously include, and necessarily be, rest. Therefore, as determined
by the Examiner, sensing a sleeping state, a resting state, and an active state
using a three-dimensional accelerometer would have been obvious in view
of Ishizaki and Sholder.
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Appeal2017-008930
Application 13/983,217
SUMMARY
The obviousness rejection under 35 U.S.C. § 103(a) is affirmed.
TIME PERIOD FOR RESPONSE
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
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