Ex Parte Whitcher

Patent Trial and Appeal Board

Oct 29, 2018

14343398 (P.T.A.B. Oct. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/343,398 03/07/2014 Douglas Adam Whitcher
24737 7590 10/31/2018
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.
2011P01346WOUS 7432
EXAMINER
DOUGLAS, STEVEN 0
ART UNIT PAPER NUMBER
3649
NOTIFICATION DATE DELIVERY MODE
10/31/2018 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):
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 DOUGLAS ADAM WHITCHER
Appeal2018---001848
Application 14/343,398
Technology Center 3700
Before: CHARLES N. GREENHUT, BENJAMIN D. M. WOOD, and
NATHAN A. ENGELS, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
15. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
Appeal2018---001848
Application 14/343,398
CLAIMED SUBJECT MATTER
The claims are directed to an oxygen concentrator with supply line
overpressure protection. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A portable oxygen concentrator, comprising:
a reservoir configured to store oxygen-enriched gas;
a delivery line configured to deliver the oxygen-enriched gas
from the reservoir to a subject;
an oxygen delivery valve communicating with the
reservoir via the delivery line;
a sensor in fluid communication with the oxygen-
enriched gas flowing through the delivery line and configured
to generate an output signal conveying information related to a
breathing characteristic of the subject;
a controller configured to operate in:
1) a first mode wherein the controller opens the oxygen
delivery valve for continuous delivery of the oxygen-enriched
gas through the delivery line to the subject, and
2) a second mode wherein the controller selectively
opens and closes the oxygen delivery valve responsive to the
output signal of the sensor to deliver the oxygen-enriched gas to
the subject in pulses; and
a relief valve associated with the delivery line and
configured to open and expel the oxygen-enriched gas out of
the delivery line, responsive to pressure within the delivery line
exceeding a predetermined threshold when the oxygen delivery
valve is opened for continuous delivery of the oxygen-enriched
gas through the delivery line to the subject so as to decrease the
pressure within the delivery line.
REFERENCES
The prior art relied upon by the Examiner is:
Vcelka
Forare
Bliss
US 4,152,378 May 1, 1979
US 5,299,568 Apr. 5, 1994
US 2008/0053310 Al Mar. 6, 2008
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Application 14/343,398
REJECTIONS
Claims 1, 2, 4, 7, 9, 12, 14, and 15 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Bliss and Forare.
Claims 3, 8, and 13 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bliss, Forare, and Vcelka.
OPINION
All claims are argued as a group based on limitations appearing in
representative claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv). The Examiner
correctly found that Bliss discloses the basic structure claimed and reasoned
that it would have been obvious to include a relief valve as taught by Forare
in Bliss's delivery line. Final Act. 2-3. The main point of contention raised
by Appellant is as follows:
The alleged "relief' valve described in the '568 patent [to
Forare] does not operate responsive to the pressure in the
delivery line exceeding a pressure threshold when the oxygen
delivery valve is opened for continuous delivery of the oxygen-
enriched gas through the delivery line to the subject
App. Br. 8; Reply. Br 4. The first component of this argument is
premised on fact that "the valve disclosed in the [Forare] patent is simply
concerned with venting excessive pressure in the respiratory gas flow line
(having both oxygen and air mixed in a desired ratio)." App. Br. 8-9;
Reply. Br. 4. This may be true, but is inapposite, as the rejection is
predicated on incorporating the Forare's valve into Bliss's delivery line,
which is undisputedly delivering "oxygen-enriched gas." Appellant's
argument in this regard is an individual attack on Forare and fails to consider
the combined teachings of the references and the rejection as articulated by
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Application 14/343,398
the Examiner. "Non-obviousness cannot be shown by attacking references
individually when the rejection is predicated upon the teachings of a
combination of references." See In re Merck & Co. Inc., 800 F.2d 1091,
1097 (Fed. Cir. 1986)( citation omitted).
The next component of Appellant's argument focuses on the
conditions precedent for the relief valve opening: 1) "pressure within the
delivery line exceeding a predetermined threshold"; and 2) "the oxygen
delivery valve is opened for continuous delivery." App. Br. 9. As far as the
first condition is concerned, it is clearly commensurate with the fundamental
nature of relief valves: to open in overpressure conditions. Appellant does
not present any arguments specifically disputing this. Thus, it appears
Appellant's main concern with this argument is the second condition
precedent. This appears to be confirmed by Appellant's argument in the
Reply Brief: "the newly added relief valve would simply vent gas any time
pressure exceeded a pressure threshold for that valve, whether or not the
device of the '310 [Bliss] publication was in a continuous delivery mode or a
pulsed delivery mode." Reply. Br. 4--5.
First, this argument is clearly not commensurate with the claim scope.
Claim 1 does not contain any language precluding the relief from venting in
pulsed mode or, in other words, requiring relief valve actuation to occur only
when in continuous mode. Furthermore, Appellant's argument is not
commensurate with Appellant's own Specification. Although Appellant was
concerned with overpressure in the continuous mode specifically (Spec.
para. 4), Appellant's Specification does not indicate Appellant's invention
necessarily included provisions to limit relief valve actuation to occur only
during the concentrator's operation in continuous mode: the relief valve can
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Application 14/343,398
simply be an electrical or mechanical valve responsive to pressure alone.
See, e.g., Spec. paras. 45, 46, 54, and 62.
Appellant's final argument relating to the functionality that would be
lost by substituting one of Bliss's other operational valves with a relief valve
(App. Br. 9) does not relate to the rejection articulated by the Examiner
which involves only the addition of Forare's relief valve, not replacement of
one of Bliss's various other valves.
DECISION
For the foregoing reasons, the Examiner's rejection is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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