Kambiz Yadidi

Patent Trials and Appeals Board

Jul 31, 2020

2020000449 (P.T.A.B. Jul. 31, 2020)

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.
13/006,367 01/13/2011 Kambiz Yadidi 67RW-298266 4357
30764 7590 07/31/2020
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
650 Town Center Drive, 10th Floor
Costa Mesa, CA 92626
EXAMINER
SIPPEL, RACHEL T
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
07/31/2020 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):
DOCKETING@SHEPPARDMULLIN.COM
SheppardMullin_Pair@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KAMBIZ YADIDI
____________________

Appeal 2020-000449
Application 13/006,367
Technology Center 3700
____________________

Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
SEAN P. O’HANLON, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–4, 6–12, 14–20, 22–28, and 30–36. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Sinutopic, Inc.
Appeal Br. 4.
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Application 13/006,367

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THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A system, for delivering medication to a patient’s upper
respiratory tract above the trachea, comprising:
a mesh that vibrates to aerosolize medication;
a nozzle, in communication with the mesh, such that the
aerosolized medication from the mesh passes through the
nozzle;
a connecting portion coupled to the nozzle and in
communication with the mesh, the connecting portion having a
lumen to conduct aerosolized medication to a patient’s nasal
passageway from the mesh, the connecting portion having a
length, from a first end to a second end, of less than 6cm, and
the connecting portion having an elbow that separates a first
section of the connecting portion and a second section of the
connecting portion, the elbow having an angle, such that the
second section extends, relative to the first section, at an angle
of between 45° and 135°;
a nosepiece coupled to the connecting portion, the
nosepiece having an aperture at a distal end, that delivers
aerosolized medication to a patient’s upper respiratory tract
directly through a patient’s nose from the aperture;
a detachable nosepiece adapter that mechanically locks
the connecting portion extending to the nosepiece with the
nebulizer, whereby the nosepiece adapter cannot be properly
positioned on the nebulizer unless the connecting portion, or the
nosepiece, is properly coupled to the nebulizer.

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EVIDENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Armstrong US 5,715,810 Feb. 10, 1998
Sevy US 7,878,418 B2 Feb. 1, 2011
Immel US 2011/0120456 A1 May 26, 2011
Luber US 2012/0085344 A1 Apr. 12, 2012
REJECTIONS
I. Claims 1–3, 7, 8, 18, 19, 23, and 24 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Luber, Armstrong, and
Sevy.2
II. Claims 4, 6, 9–12, 14–17, 20, 22, 25–28, and 30–36 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over Luber,
Armstrong, Sevy, and Immel.
OPINION
Rejection I – Obviousness based on Luber, Armstrong, and Sevy
Appellant presents arguments for patentability of independent claim 1
(Appeal Br. 17–22) and relies on the same arguments for independent claim
18 and dependent claims 2, 3, 7, 8, 19, 23, and 24 (see id. at 22). We select
claim 1 as representative, and claims 2, 3, 7, 8, 18, 19, 23, and 24 stand or
fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).

2 The Examiner’s inclusion of claim 21 in the statement of this rejection on
page 2 of the Final Action is presumed to be an inadvertent error, as this
claim was cancelled in the amendment filed July 7, 2014, and, thus, is not
involved in this appeal.
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In rejecting claim 1, the Examiner finds that Luber discloses a system
for delivering medication to a patient’s upper respiratory tract including, in
relevant part,
a connecting portion (narrowed portion just downstream of
nebulizer chamber 32 and just upstream of 16) coupled to the
nozzle and in communication with the mesh, the connecting
portion having a lumen to conduct aerosolized medication to a
patient’s nasal passageway from the mesh, the connecting
portion having a length, from a first end to a second end, but is
silent regarding having a length of less than about 6 cm.
Final Act. 2–3. However, the Examiner finds that Armstrong discloses “a
nasal inhalation device (Col. 3, ll. 31–35) having an airflow length of 2 to 4
inches (Col. 10, ll. 20, 5.08 cm to 10.16 cm and the length from the insertion
of medication to the outlet is about half of that).” Id. at 3. The Examiner
determines that it would have been obvious to modify Luber so that the
connecting portion is less than 6 cm in length “for the purpose of providing a
short airflow path to prevent deposition of medicament on the walls of the
path and provide as much medication to a user as possible.” Id.
The Examiner also finds that “modified Luber discloses a connecting
portion, a nebulizer and a nosepiece, but is silent regarding coupling the
connecting portion with the nebulizer with a detachable nosepiece adapter
that mechanically locks the connecting portion with the nebulizer.” Final
Act. 3. However, the Examiner finds that, “Sevy teaches an atomizer having
a nebulizer 12[] mechanically attached to a connecting portion 16 via locks
90 coupled to nosepiece 17.” Id. (citing Sevy, Fig. 7). The Examiner
determines that it would have been obvious to further modify Luber to have
the “nosepiece coupled to the connecting portion and the connecting portion
locked to the nebulizer, as taught by Sevy, for the purpose of providing
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removable parts for cleaning or replacement.” Id. at 4. The Examiner
explains that,
[a]dditionally, it would have been obvious to make Luber’s
nebulizer and connecting portion separable for purposes of
cleaning and replacement of parts. (see MPEP section 2144.04
V. B.). The modified Luber discloses that the nosepiece
adapter (tabs 90 Sevy) cannot be properly positioned on the
nebulizer unless the connecting portion is properly coupled to
the nebulizer (the tabs 90 on the connecting portion must be
aligned properly with the slots 88 on the nebulizer, Sevy).
Id.
Appellant argues that “Sevy fails to teach or suggest a detachable
nosepiece adapter as recited in claim 1. In contrast, Sevy merely teaches the
use of tabs 90 formed on connector 15b that engage slots 88 on connector
15a to secure the atomizer 16 to the housing 12.” Appeal Br. 18 (citing
Sevy, col. 5, ll. 15–31, col. 8, ll. 22–26, Figs. 1, 7). Pointing to Appellant’s
Figure 3 and Sevy’s Fig. 1, Appellant asserts that the “structure disclosed by
Sevy is clearly distinct” from the claimed invention. Id.; see also id. at 19
(asserting that “there is a clear structural difference between Sevy’s atomizer
16 / housing 12 connection and the recited atomizer / nosepiece
connection”). According to Appellant,
Sevy’s connection tabs 90 and slots 88 are employed to connect
the atomizer 16 to a housing 12, rather than connecting the
atomizer with [a] detachable nosepiece. That is, Sevy fails to
teach or suggest an adaptor at all, but instead teaches
connecting atomizer 16 directly to housing 12. In other words,
[t]he nosepiece 17 of Sevy is fixedly attached to the nebulizer
16.
Id. at 18 (emphasis omitted). We are not persuaded by this argument.
The Examiner responds that “Sevy is applied to simply provide a
detachable connection between two passageway portions of a nebulizing
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device in order to allow for cleaning or replacement of parts.” Ans. 16–17.
The Examiner explains that
Luber [discloses] a nebulizer (considered the system as a whole,
which includes all structure in fig. 4 of Luber) and a connecting
portion (14 of Luber) and Sevy is applied to teach the nosepiece
adapter (90 and 88, Fig. 7 Sevy) that mechanically locks a
connecting portion (the passageway of 16 of Sevy) to a
nebulizer (portion of nebulizer, 12 of Sevy).
Id. at 17. The Examiner also explains that “the definition of an adapter is
‘one that adapts, such as a device used to effect operative compatibility
between different parts of one or more pieces of apparatus,’ and thus the tabs
90 and slots 88 are adapted to provide compatibility between parts 16 and 12
of Sevy.” Id. (citing American Heritage Dictionary of the English Language
(5th ed. 2011), available at https://www.thefreedictionary.com/adapter). In
this regard, Appellant does not persuasively refute the Examiner’s position.
Namely, Appellant does not proffer any evidence or persuasive technical
explanation to apprise us of error in the Examiner’s interpretation that
Sevy’s tabs 90 and slots 88 constitute “a detachable nosepiece adapter,” as
recited in claim 1.
Appellant argues that the Examiner’s rejection improperly relies on a
per se rule of obviousness. See Appeal Br. 20–21. In particular, Appellant
asserts that,
recognizing that Sevy does not actually teach or suggest a
detachable adapter as recited by the present claims, the
Examiner attempts to fill in the gap with the baseless assertion
that “it would have been obvious to make Luber’s nebulizer and
connecting portion separable for purposes of cleaning and
replacement of parts.” Office Action, at 4. However, the
Office Action fails to put forward even a shred of evidence in
support of this assertion. This type of per se rule has been
expressly rejected by this Board.
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Id. (italics omitted). According to Appellant, “the Examiner’s bald assertion
that ‘it would be obvious’ to deconstruct the connecting portion of Luber’s
nebulizer to build a detachable adapter like the one recited in the present
claims is a general proposition that fails to rest on sound evidence, and is
therefore legally incorrect.” Id. at 21. This argument is unpersuasive.
In an obviousness analysis, the relevant inquiry is whether the
Examiner has set forth “some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007).3 Here, as discussed above, the
Examiner articulates adequate reasoning based on rational underpinnings as
to why it would have been obvious to one of ordinary skill in the art to
modify Luber, based on the teachings of Sevy, to include a detachable
nosepiece adapter and separable nebulizer and connecting portion. See Final
Act. 3–4 (reasoning that such a modification would facilitate cleaning and
replacement of parts); see also Ans. 18 (explaining that “Sevy is specifically
applied to teach the detachable nosepiece adapter”). The Examiner explains
that
Luber’s connecting portion (14 Luber) and nebulizer
(considered the system, including all structure in fig. 4 of
Luber) was modified to include a mechanically locking adapter
between a portion of a nebulizer (12 including pump 14, Sevy)

3 To the extent Appellant is suggesting that the Examiner’s reasoning must
be set forth in the cited prior art, this line of argument is unavailing; the
motivation for combining teachings from references need not come from the
references themselves. See Ball Aerosol v. Ltd. Brands, 555 F.3d 984, 993
(Fed. Cir. 2009). The Supreme Court has stated that a rigid insistence on
teaching, suggestion, or motivation is incompatible with its precedent
concerning obviousness. KSR, 550 U.S. at 419.
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and a connecting portion (passageway of 16, Sevy), as taught
by Sevy, in order to allow for cleaning and replacement of
parts, which is common in the art, especially in passageways
whose walls can accumulate medicament. Additionally, it
would have been obvious to one of ordinary skill in the art to
make Luber’s nebulizer and connecting portion separable for
the purposes of cleaning and replacement of parts, as is
common in the art.
Ans. 19 (citing MPEP § 2144.04(V)(C)). However, Appellant does not
specifically address the Examiner’s reasoning that one of ordinary skill in
the art would have been prompted to make the proposed modification of
Luber in order to allow cleaning and replacement of parts. In particular,
Appellant does not offer any factual evidence or persuasive technical
rationale to refute the Examiner’s reasoning or explain why it would be
deficient.
For the foregoing reasons, Appellant does not apprise us of error in
the Examiner’s conclusion of obviousness with respect to claim 1.
Accordingly, we sustain the rejection of claim 1, and claims 2, 3, 7, 8, 18,
19, 23, and 24 falling therewith, under 35 U.S.C. § 103(a) as unpatentable
over Luber, Armstrong, and Sevy.

Rejection II – Obviousness based on Luber, Armstrong, Sevy, and Immel
In contesting this rejection, Appellant relies on the same arguments
and reasoning we found unpersuasive in connection with claim 1. See
Appeal Br. 22 (relying on the alleged deficiencies in the combination of
Luber, Armstrong, and Sevy, and asserting that Immel fails to remedy such
deficiencies). Accordingly, for the same reasons discussed above with
respect to Rejection I, we also sustain the rejection of claims 4, 6, 9–12,
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14–17, 20, 22, 25–28, and 30–36 under 35 U.S.C. § 103(a) as unpatentable
over Luber, Armstrong, Sevy, and Immel.
CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 7, 8,
18, 19, 23,
24
103(a) Luber, Armstrong,
Sevy
1–3, 7, 8, 18,
19, 23, 24

4, 6, 9–12,
14–17, 20,
22, 25–28,
30–36
103(a) Luber, Armstrong,
Sevy, Immel
4, 6, 9–12,
14–17, 20, 22,
25–28, 30–36

Overall Outcome 1–4, 6–12,
14–20, 22–28,
30–36

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)(1)(iv).
AFFIRMED