Maquet Critical Care AB

Patent Trials and Appeals Board

Jun 18, 2020

2019006325 (P.T.A.B. Jun. 18, 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.
14/427,843 03/12/2015 Mats Wallin 40225/00401
(P41500983US0
1015
30636 7590 06/18/2020
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
EXAMINER
DIXON, ANNETTE FREDRICKA
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
06/18/2020 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):
mmarcin@fkmiplaw.com
okaplun@fkmiplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MATS WALLIN, MARIO LONCAR,
CHRISTER AHLMÉN, and PÄR EMTELL

Appeal 2019-006325
Application 14/427,843
Technology Center 3700
____________

Before JOHN C. KERINS, MICHAEL J. FITZPATRICK, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant, Maquet Critical Care AB,1 appeals under 35 U.S.C.
§ 134(a) from the Examiner’s final decision rejecting claims 1–3, 6–8, 10–
12, 15–17, 20, and 21. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies itself as the sole real party in interest. Appeal Br. 2.
Appeal 2019-006325
Application 14/427,843

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STATEMENT OF THE CASE
The Specification
The Specification “pertains in general to the field of inhalational
anesthesia systems,” and more particularly, “to controlling oxygen delivered
to a patient, who is fluidly connected to the system, in order to avoid
hypoxia of the patient.” Spec. 1:7–9.
The Claims
Claims 1–3, 6–8, 10–12, 15–17, 20, and 21 are rejected. Final Act. 1.
Claims 4, 5, 9, 13, 14, and 18 are objected to. Id. No other claims are
pending. Id. Claims 1, 10, and 20 are independent. Claim 1 is illustrative
and reproduced below.
1. An anesthesia system, comprising:
a unit providing a measured inspired oxygen value
(FiO2) for oxygen delivered to a patient fluidly connected to
said system; and
a control unit triggering an alarm action in said system
for an inspiratory oxygen alarm if said measured inspired
oxygen value (FiO2) is below a first threshold value and above
a second threshold value that is lower than the first threshold
value; and wherein
said control unit is configured to set said system to an
operational safety mode for increasing delivery of oxygen to
said patient, and wherein said control unit is configured to
activate said operational safety mode if said measured inspired
oxygen value (FiO2) is below the second threshold value.
Appeal Br. 15.
The Examiner’s Rejections
The rejections before us, both pursuant to 35 U.S.C. § 103(a), are as
follows:
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Application 14/427,843

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1. claims 1, 2, 6–8, 10, 11, 15–17, 20, and 21 as unpatentable over
Baker2 and Raemer3 (Final Act. 24); and
2. claims 3 and 12 as unpatentable over Baker, Raemer, and
Jamison5 (id. at 6).
DISCUSSION
Rejection 1
Independent Claim 1
The Examiner found that Baker teaches the subject matter of claim 1
except for “the feature of ‘a second threshold value that is lower than the
first threshold value’ with respect to the measured inspired oxygen value
(FiO2).” Final Act. 3 (quoting claim 1). The Examiner found that Raemer
teaches first and second thresholds and determined
it would have been obvious to one having ordinary skill in the art
to modify the anesthesia system of Baker to additionally the [sic]
closed loop control system as taught by Raemer wherein the
threshold values of the measured inspired oxygen value (FiO2)
are correlated with the preferred fractional amounts of oxygen
and the minimum desirable level of the preferred amounts of
oxygen so that an alarm can be provided to the physician to
ensure patient safety.
Id. at 5.
Of particular relevance to our Decision is the Examiner’s finding that
“Baker discloses . . . an operational safety mode (‘safety feature’ Paragraph
0048) for increasing delivery of oxygen (‘controlling the amount of oxygen

2 EP 2 363 163 A1, published Sept. 7, 2011 (“Baker”).
3 US 5,365,922, issued Nov. 22, 1994 (“Raemer”).
4 The heading for this rejection omits claims 10 and 21, but the rejection
clearly includes claims 10 and 21 per the Examiner’s analysis and as
acknowledged by Appellant. Final Act. 2; Appeal Br. 4.
5 US 2010/0175695 A1, published July 15, 2010 (“Jamison”).
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Application 14/427,843

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let into the stream of breathing gas’ Paragraph 0050) to said patient.” Id. at
2–3 (quoting Baker ¶¶48, 50). Appellant argues, among other things, that
“the enhanced safety feature of Baker does [not] meet the limitations of an
operational safety mode as required by the recited claim.” Appeal Br. 6.
Claim 1 recites “an operational safety mode for increasing delivery of
oxygen to said patient, and wherein said control unit is configured to activate
said operational safety mode if said measured inspired oxygen value (FiO2)
is below the second threshold value.”
Baker discloses:
As another example, user interface 26 may be configured to
accept user settings for high and low limits on FiO2 of the
breathing gas delivered to patient 10 that would prevent gas
delivery control system 22 from adjusting FiO2 of the breathing
gas delivered to patient 10 beyond those limits. The teachings of
the present disclosure may provide enhanced safety features in
comparison to traditional controller for gas delivery systems
(e.g., reducing the risk of hypoxia resulting from reduced FiO2
of the breathing gas delivered to patient 10 and/or reducing the
risk of oxygen toxicity resulting from excess FiO2 of the
breathing gas delivered to patient 10 over the long term). The
teachings of the present disclosure may be used to control
delivery of breathing gas to a patient based on any combination
of ventilation parameters and may provide these or additional
benefits.
Baker ¶48.
Appellant argues, per Baker’s disclosure, “gas having FiO2 values
below the defined lower limit is never delivered to the patient” because the
measured FiO2 is prevented from falling below the low limit. Thus, “the
enhanced safety feature could not be activated by such a condition,” i.e.,
falling below the defined lower limit. Appeal Br. 7. The Examiner does not
adequately rebut this argument. See generally Ans.
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We agree with Appellant’s reading of Baker’s enhanced safety
feature. That feature prevents FiO2 from falling below a threshold value;
thus that feature consequently does not teach increasing oxygen delivery to a
patient in response to FiO2 falling below that threshold.
For the foregoing reason, we reverse the rejection of claim 1.
Independent Claims 10 and 20
Claims 10 and 20 each recite “an operational safety mode” similar to
that of claim 1. Appeal Br. 17 (claim 10), 18–19 (claim 20). The Examiner
relies on the same findings for these claims as with respect to claim 1. Final
Act. 2–5. Accordingly, for a similar reason as discussed above, we like
reverse the rejections of claims 10 and 20.
Dependent Claims 2, 6–8, 11, 15–17, and 21
Each of claims 2, 6–8, 11, 15–17, and 21 ultimately depends from
either claim 1 or claim 10. Accordingly, we reverse the rejection of claims
2, 6–8, 11, 15–17, and 21. See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir.
1988) (“Dependent claims are nonobvious under section 103 if the
independent claims from which they depend are nonobvious.”).
Rejection 2
The Examiner rejected claims 3 and 12 over Baker, Raemer, and
Jamison. Final Act. 6. Claims 3 and 12 depend from claims 1 and 10,
respectively. The Examiner’s application of Jamison in the rejection of
claims 3 and 12 does not cure the deficiency in the rejection of claims 1 and
10. See id. at 6. Accordingly, we reverse the rejection of claims 3 and 12.
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SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 6–8, 10,
11, 15–17,
20, 21
103(a) Baker, Raemer 1, 2, 6–8,
10, 11,
15–17, 20,
21
3, 12 103(a) Baker, Raemer,
Jamison
3, 12
Overall
Outcome
1–3, 6–8,
10–12,
15–17, 20,
21

REVERSED