Ex Parte Seiver et al

Patent Trial and Appeal BoardJun 9, 2016

12812545 (P.T.A.B. Jun. 9, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/812,545 07/12/2010 Adam Seiver 24737 7590 06/13/2016 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. 2008P01342WOUS 8456 EXAMINER HAN,MARKK ART UNIT PAPER NUMBER 3778 NOTIFICATION DATE DELIVERY MODE 06/13/2016 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): marianne.fox@philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ADAM SEIVER, SAMIR AHMAD, and PETER R. DOYLE Appeal2014-002224 Application 12/812,545 Technology Center 3700 Before KEN B. BARRETT, JAMES P. CAL VE, and FREDERICK C. LANEY, Administrative Patent Judges. CAL VE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134 from the final rejection of claims 4 and 30-36. Appeal Br. 2. Claims 3 and 10-25 are cancelled. Id. Claims 1, 2, 5-9, and 26-29 are allowed. Id.; Final Act. 7. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We REVERSE. Appeal2014-002224 Application 12/812,545 CLAIMED SUBJECT MATTER Claims 4 and 31 are independent. Claim 4 is reproduced below. 4. A ventilator that provides a flow of gas for delivery to an airway of a subject, the ventilator comprising: a flow generating system adapted to generate a gas flow having one or more properties that facilitate respiration of a subject; a processor adapted to control the flow generating system to control the one or more properties of the gas flow; a patient interface that is readily accessible to the subject and is adapted to receive a selection of an adjustment from the subject for at least one of the one or more properties of the gas flow, and a caregiver interface that is separate from the patient interface, wherein the processor is configured to make the at least one of the one or more properties of the gas flow (a) adjustable via the patient interface and (b) restricted to adjustments to current levels of the at least one of the one or more properties that fall within a predetermined acceptable range to maintain a safety of ventilation for the subject, such that (i) if the at least one of the one or more properties of the gas flow will remain within the predetermined acceptable range to maintain the safety of the ventilation after the selected adjustment received via the patient interface is made, the processor controls the flow generating system to make the selected adjustment, and/or (ii) if the at least one of the one or more properties of the gas flow will fall outside of the predetermined acceptable range to maintain the safety of the ventilation after the selected adjustment received via the patient interface is made, the processor does not control the flow generating system to make the selected adjustment which prevents an improper adjustment that could expose the subject to risks to health and/or safety, and wherein the predetermined acceptable range is configurable by the caregiver via the caregiver interface. 2 Appeal2014-002224 Application 12/812,545 REJECTIONS 1 Claims 31-36 are rejected under 35 U.S.C. Â§ 102(b) as anticipated by Servidio (US 5,927,274; iss. July 27, 1999). Claims 4 and 30 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Servidio and Bowen (US 7,225,809 Bl, iss. June 5, 2007). ANALYSIS Claims 31-36 as anticipated by Servidio Independent claim 31 recites a ventilator that allows adjustment of a selected gas flow property of a set of properties via a patient interface when the set of gas flow properties will remain within a predetermined acceptable range for safe ventilation and prevents adjustments that will cause the set of gas flow properties to fall outside the predetermined acceptable range, and thereby prevent improper adjustment that could expose the patient to risk to health and/ or safety. The Examiner found that Servidio discloses a ventilator; as recited in claim 31, including processor 220, patient interface 12, and control knobs 39 that adjust a set of properties of the system. Final Act. 4. The Examiner also found that Servidio discloses five rotary control knobs 39 that adjust at least two properties within a predetermined acceptable range. Ans. 8. The Examiner illustrated how a combination of values for a set of two properties would fall within a predetermined range, i.e., as illustrated by a gray box as reproduced below. 1 The Examiner withdrew the rejection of claims 31-36 under 35 U.S.C. Â§ 112, second paragraph. Ans. 2; see Adv. Action mailed June 26, 2013. 3 Appeal2014-002224 Application 12/812,545 Figure A: Depiction of Prndetem1ined Acceptable Range For Set of Properties 111 and i'i2, Figure A above depicts the Examiner's findings that Servidio discloses sets of properties # 1 and #2 that can be set within predetermined acceptable ranges. Ans. 9. Appellants argue that Servidio' s processor independently adjusts each gas flo\'l/ property \'l1ith individual control knobs \'l1ithin a limit set for each property and does not treat the properties as a set having a predetermined acceptable range for the set of properties. Appeal Br. 9; Reply Br. 7. The Examiner has not established by a preponderance of evidence that Servidio discloses a ventilator and processor that restrict adjustments of one selected gas flow property of a set of properties "when the set of properties of the gas flow will fall outside of the predetermined acceptable range" as recited in claim 31. Rather, Servidio discloses that each gas flow property is adjusted separately by individual control knobs 39 within a defined range for that property without reference to any other gas flow property or to any set of values of any other gas flow properties regulated by other control knobs 39. Servidio, 5:64--6:5. We do not sustain the rejection of claims 31-36. 4 Appeal2014-002224 Application 12/812,545 Claims 4 and 30 as unpatentable over Servidio and Bowen The Examiner found that Servidio discloses a ventilator, as claimed, with processor 220 and patient interface 12 with control knobs 39 that allow control of system parameters by a user until a limit is reached. Final Act. 5. The Examiner found that Servidio teaches a caregiver interface 14 but does not teach predetermined, acceptable ranges of parameters can be configured at caregiver interface 14. Id. at 6. The Examiner found that Bowen teaches a ventilator 32 that can be configured remotely at a caregiver interface. Id. The Examiner determined that it would have been obvious to modify Servidio' s caregiver interface to configure the ventilator remotely and thus increase patient compliance without the need to travel to the site. Id. Appellants argue that Bowen discloses that operating parameters such as new pressures can be communicated to the ventilator via external device 160, but neither Servidio nor Bowen teaches that maximum and minimum values of Servidio' s rotary digital encoders can be configured by a user. Appeal Br. 5, 7. Appellants also argue that nothing in Servidio teaches that an acceptable range of parameters is entered and configured via remote unit because the range limits are set only by the individual who programmed the system software. Id. at 7; Reply Br. 3--4. Appellants argue that Bowen sets prescription gas flow values for a pressure support device for a particular patient via remote programming center 7 4 and removable data storage device 34 rather than by setting limits or predetermined acceptable ranges of gas flow properties that restrict the adjustments of properties for safe operation of the ventilator. Reply Br. 5. Appellants also argue that the principal motivation of Bowen's invention is to prohibit any patient adjustments of gas flow properties. Id. 5 Appeal2014-002224 Application 12/812,545 The Examiner has not established by a preponderance of evidence that the combined teachings of Servidio and Bowen render obvious a ventilator with a processor that can adjust one or more gas flow properties via a patient interface within a predetermined acceptable range that is set by the caregiver via a caregiver interface, as recited in claim 4. Servidio teaches a ventilator 10 that adjusts gas flow properties via rotary knobs 39 on main unit 12 and remote unit 14 within a defined range set by software. Servidio, 5:53---6:16, 7:57---65, Figs. 1, 2. Main unit 12 or remote unit 14 can control the pressure delivery settings. Id. at 6:16-18, 7:30-44. If control settings of main unit 12 and remote unit 14 are enabled simultaneously, the last device to change a parameter determines the current setting. Id. at 6:23-26. Servidio does not teach, nor does the Examiner contend that Servidio teaches, that remote unit 14 can set predetermined ranges of gas flow properties that limit the values selected by a person using knobs 39 on main unit 12, as claimed. Bowen does not remedy this deficiency. Bowen teaches a ventilator 30 where gas flow properties are set remotely on information storage device 34 and then the information and instructions are transferred to system 30 to control operation of system 30. Bowen, 8:37-54, Fig. 1. Thus, information storage device 34, which can be programmed at remote location 74, provides the operating mode and/or operating parameters to controller 36 to operate system 30 within the pressure parameters specified on information storage device 34. Id. at 11 :44---62. Because only the device provider can change operating parameters stored on information storage device 34, it is virtually impossible for a patient to alter the parameters of the system 30 intentionally or inadvertently. Id. at 12: 19-27. Thus, Bowen does not teach a remote interface that sets predetermined ranges for a patient interface, as claimed. 6 Appeal2014-002224 Application 12/812,545 The Examiner's reason for combining Servidio and Bowen is not supported by rational underpinnings because modifying Servidio' s system for remote configuration, as taught by Bowen, will not increase patient compliance by allowing settings to be overridden by a new information storage device with new operating parameters. See Final Act. 6; Ans. 3--4. This is so because Servidio teaches that main unit 12 or remote unit 14 can alter system parameters and the last unit to do so determines the current settings of the system, as discussed above. Thus, Servidio, already teaches that main unit 12 can override settings made by remote unit 14, and vice versa, as discussed above. Bowen's teaching of setting system parameters that cannot be changed would change this principle of operation of Servidio and also would prevent a patient or other person from using main unit 12 to adjust system parameters within a range of predetermined values set by an information storage care of caregiver interface, as required by claim 4. We do not sustain the rejection of claims 4 and 30. DECISION We REVERSE the rejections of claims 4 and 30-36. REVERSED 7