Ex Parte Russell

Patent Trial and Appeal Board

Jan 11, 2018

12472045 (P.T.A.B. Jan. 11, 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.
12/472,045 05/26/2009 James T. RUSSELL 2006P02707US02 6981
24737 7590 01/16/2018
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue NEGIN, RUSSELL SCOTT
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
1631
NOTIFICATION DATE DELIVERY MODE
01/16/2018 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 JAMES T. RUSSELL
Appeal 2017-000631
Application 12/472,045
Technology Center 1600
Before RICHARD M. LEBOVITZ, RICHARD J. SMITH, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
MAJORS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 submits this appeal under 35 U.S.C. § 134 involving
claims to an airway adapter. The Examiner rejected the claims as
anticipated and obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
STATEMENT OF THE CASE
According to the Specification, “it is an object of the present invention
to provide an airway adapter that overcomes the shortcomings of
conventional [pressure] monitoring systems.” Spec. 1 6. The claimed
1 Appellant identifies the real party in interest as Koninklijke Philips N.V.
Br. 2.
Appeal 2017-000631
Application 12/472,045
airway adapter comprises, inter alia, a housing, a pressure transducer, and a
“channel” with certain characteristics. Id. 17.
Claims 10, 12, 14—16, and 26 are on appeal. Claim 10, the only
independent claim, is illustrative:
10. An airway adapter comprising:
a housing comprising:
a flow path,
a first pressure port that communicates with the
flow path,
a second pressure port that communicates with the
flow path, wherein the first pressure port is spaced apart
from the second pressure port, and
a flow restriction disposed in the flow path between
the first pressure port and the second pressure port to
create a pressure differential;
a pressure transducer that generates a signal that reflects
the pressure differential created between the first pressure port
and the second pressure port; and
a channel formed within the housing that communicates
the first pressure port with the second pressure port, the channel
having two walls that are substantially parallel to each other and
are substantially parallel to a portion of the flow path that
includes the flow restriction, wherein a wall of the two walls
contacts the portion of the flow path that includes the flow
restriction, wherein the pressure transducer comprises a
diaphragm disposed within the housing and communicating with
the channel, the channel being formed proximate to an outer
surface of the flow path and being substantially parallel to the
portion of the flow path that includes the flow restriction.
Br. 11—12 (Claims App.) (emphases added).
The claims stand rejected by the Examiner as follows:
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Application 12/472,045
I. Claims 10, 12, 14, and 15 under 35 U.S.C. § 102(b) as anticipated
by Thurston.2
II. Claims 16 and 26 under 35 U.S.C. § 103(a) as obvious over
Thurston and Fallet.3
DISCUSSION
Appellant’s drawings are helpful in understanding the claimed
invention and, more specifically, the disputed claim elements. Fig. 3B,
reproduced below, is an embodiment of an airway adapter encompassed by
claim 10.
2 Thurston, et al., US 5,127,173, issued July 7, 1992.
3 Fallet, WO 2005/108932 Al, published Nov. 17, 2005.
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Appeal 2017-000631
Application 12/472,045
Spec., Fig. 3B. Fig. 3B is cross-sectional view of an airway adapter (16) and
shows, inter alia, a housing (24) and a flow path (26) having first (28) and
second (30) ends, are connected to a respiratory circuit when in use with a
patient. Id. 47-48. Fig. 3B further shows a first pressure port (40), a
second pressure port (42), and a channel (44) (having substantially parallel
upper and lower channel walls (not numbered)) that runs from the first (40)
to the second (42) pressure ports. Id. 146.
According to the Specification, “changes in the cross section of flow
path 26 (e.g., from first section [28] to chamber 32, from chamber 32 to
second section 30, etc.) act as flow restrictions that create the pressure
differential between first pressure port 40 and second pressure port 42.” Id.
1 57. “[A] diaphragm 50a [] [the claimed “diaphragm disposed within the
housing and communicating with the channel] is disposed in communication
with channel 44 to substantially seal channel 44 from flow path 26 at second
pressure port 42, so that a pressure differential is created between a first side
52a of diaphragm 50a and a second side 54a of diaphragm 50a.” Id. 1 50.
As the Specification explains, “the pressure differential between first side
52a of diaphragm 50a and second side 54a of diaphragm 50a is substantially
equivalent to the pressure differential between first pressure port [40] and
second pressure port [42].” Id. A pressure transducer (48a) is further
claimed “that generates a signal that reflects the pressure differential created
between the first pressure port and the second pressure port.” To accomplish
this function, in one embodiment, as shown, in Fig. 3B reproduced above,
the pressure transducer (48) can comprise an optical section and sensor
element that measures the extent of deformation of the diaphragm 50a
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Application 12/472,045
caused by the pressure differential at the sides (52a and 54a) of the
diaphragm, and allows for a determination of the pressure differential
between the pressure ports. Id. Tflf 50-51.
The Examiner rejected claim 10 as anticipated by Thurston. Final
Act.4 3^4. The Examiner primarily relies on Thurston’s Fig. 1, reproduced
below, as disclosing the airway adapter of claim 10. Id.
4 Final Rejection mailed Jan. 27, 2015 (hereinafter “Final Act.”)
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Application 12/472,045
Thurston, Fig. 1. Fig. 1 is a cross-sectional representation of a volumetric
flowmeter. Id. at 2:42-45. According to the Examiner, Fig. 1 of Thurston
shows, among other things, “housing (label 12),” “first and second pressure
ports (labels 34 and 36, respectively),” and “a channel (label 32) formed
within the housing that communicates the first pressure port with the second
pressure port. . . [and that] has a wall that contacts a portion of the flow path
that includes the flow restriction.” Final Act. 4. The Examiner finds “labels
16 and 40 of Figure 1 . . . illustrate a flow restriction ... in the flow path
between the first and second pressure ports.” Id. The Examiner finds Fig. 1
shows “a diaphragm (label 78) disposed within the housing and
communicating with the channel.” Id.
Further, with respect to the channel, the Examiner finds “[t]he channel
(i.e.[,] the specific portion of label 32 containing label 14 in Figure 1 of
Thurston et al.) contains a portion that is parallel to the flow path (label 16
of Figure 1 of Thurston et al.).” Id. In the Advisory Action (mailed Apr. 3,
2015), the Examiner states that “labels 58 and 60 of the cover figure of
Thurston et al. are not cited as the channel.” Adv. Act. 2. In the Examiner’s
Answer, however, the Examiner states “that labels (32), (58) or (60), and
(32) collectively form a channel.” Ans. 2. Thus, the Examiner appears to
rely on alleged channel portions (58) and (60) of Thurston as satisfying
claim 10’s recitation of “the channel having two walls that are substantially
parallel to each other and are substantially parallel to a portion of the flow
path that includes the flow restriction.” Id.', see Br. 11 (Claim App.). In
Thurston, structures 58 and 60 are described as “negative fluid feedback
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Application 12/472,045
channels” within the “fluidic oscillator 14” and oscillator “housing 42.”
Thurston, Fig. 1, 3:36—52, 4:19-21.
We are not persuaded that the preponderance of the evidence supports
the Examiner’s finding that Thurston anticipates claim 10. As we explain
below and as argued by Appellant, Thurston does not teach a channel with
the particular features recited in claim 10. Br. 7—9.
Importantly, claim 10 requires, first, “the channel having two walls
that are substantially parallel to each other and are substantially parallel to a
portion of the flow path that includes the flow restriction” and, second, “a
wall of the two walls contacts the portion of the flow path that includes the
flow restriction.” Br. 11 (Claim App.). The phrase “a wall of the two walls”
refers back to the “walls” in the claim limitation that preceded it, which
walls must be substantially parallel to each other and to the portion of the
flow path having the flow restriction. In other words, claim 10 requires at
least one channel wall (i) that is substantially parallel to another channel
wall, (ii) that is substantially parallel to a particular portion of the flow path,
and (iii) that contacts the particular portion of the flow path.
In Thurston, the only walls of bypass passage (32) that contact the
flow path5 are not substantially parallel to the flow path. Thurston, Fig. 1,
col. 3:25—31. Quite the opposite, the walls of bypass passage (32) are
perpendicular to the flow path where those walls contact inlet port (34) and
return port (36). Id. Fig. 1; Br. 9 (“bypass passage 32 is substantially
perpendicular to the portion of the flow path that includes the flow
5 The flow path is indicated by the left-to-right arrows entering fluidic flow
passage 12 in Fig. 1 of Thurston. Thurston, Fig. 1, col. 2:56—62.
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Application 12/472,045
restriction-venturi nozzle/opening 16, 40”). Even if Thurston’s negative
feedback channels (58 and 60) include a wall that is substantially parallel to
the flow path in passage 12, the walls of the negative feedback channels (58
and 60) do not contact the flow path, much less the portion of the flow path
including the flow restriction (allegedly shown by structure 16 and 40 of
Thurston). To the contrary, negative feedback channels (58 and 60) are in
the fluidic oscillator (14) — indeed, in a different housing (42) from flow
passage (12).6 7Thurston, Fig. 1, 3:36-52, 4:19-21.
Neither are we persuaded that, even assuming a fluidic or physical
connection exists between walls of Thurston’s bypass passage (32) and the
negative feedback channels (58 and 60), the skilled person would interpret
the walls of the bypass passage and walls of the negative feedback channels
as one and the same. Were it otherwise, a circular or rectangular channel,
viewed longitudinally, could be characterized as having only one “wall”
because all the sides of the channel are physically connected in some way.
Similarly, regardless of the distinct structures that a channel may traverse
6 Thurston does not appear to describe “a channel formed within the
housing” and “a diaphragm disposed within the housing” as required by
claim 10. The Examiner identifies structure 12 of Thurston as the
“housing,” yet the alleged channel and diaphragm are not in that housing.
We note the Examiner’s assertion, earlier in prosecution, that the “perimeter
of Figure 1 of Thurston et al. is interpreted to be the housing that houses all
of the recited components of the claimed airway adapter.” See Office Action
7 (mailed Dec. 12, 2012). This “interpretation,” essentially drawing an
imaginary box around Thurston’s Fig. 1 is debatable, at best, under § 102.
But, because Appellant does not clearly argue that Thurston fails to disclose
the “within the housing” limitations of claim 10, we decline to treat these
issues as decisive here.
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Application 12/472,045
and whatever turns that channel may take, it could still be characterized as
having only one wall — or perhaps only two if viewed in cross section.
That is not the reasonable interpretation of the art and the claims here. On
this point, the present Specification is informative. For example,
notwithstanding a physical connection between the sides of the adapter’s
detection chamber (32) through which air flows, the sides are described as
distinct walls (e.g., 31, 33, 35). See, e.g., Spec. Fig. 2, Fig. 3B, |41.
For these reasons, we conclude the preponderance of the evidence
does not support the Examiner’s finding that Thurston describes the airway
adapter of claim 10. Accordingly, we reverse the Examiner’s rejection of
claim 10 (and dependent claimsl2, 14, and 15) as anticipated by Thurston.
The rejection of dependent claims 16 and 26 as obvious over Thurston
and Fallet relies upon the Examiner’s finding that Thurston anticipates claim
10. Thurston does not anticipate claim 10 for reasons explained above, and
the Examiner does not assert or show that Fallet makes up for Thurston’s
deficiencies. The obviousness rejection is, thus, reversed as well.
SUMMARY
We reverse the rejection of claims 10, 12, 14, and 15 as anticipated by
Thurston. We also reverse the rejection of claims 16 and 26 as obvious over
Thurston and Fallet.
REVERSED
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