Loewenstein Medical Technology S.A.

Patent Trials and Appeals Board

Mar 2, 2022

2021004909 (P.T.A.B. Mar. 2, 2022)

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. 15/887,280 02/02/2018 Matthias SCHWAIBOLD 6580-P50431 3193 13897 7590 03/02/2022 Abel Schillinger, LLP 12414 Alderbrook Drive Suite 201 Austin, TX 78758 EXAMINER MORALES, ALEXANDER ART UNIT PAPER NUMBER 3785 NOTIFICATION DATE DELIVERY MODE 03/02/2022 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): hmuensterer@abel-ip.com mail@Abel-IP.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATTHIAS SCHWAIBOLD Appeal 2021-004909 Application 15/887,280 Technology Center 3700 Before DANIEL S. SONG, BRETT C. MARTIN, and CARL M. DEFRANCO, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 21-40. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Loewenstein Medical Technology S.A. Appeal Br. 3. Appeal 2021-004909 Application 15/887,280 2 CLAIMED SUBJECT MATTER The claims are directed “to a ventilator having at least one ventilation device for producing a respiratory gas flow for ventilating at least one patient.” Spec. 1, ll. 7-8. Claim 21, reproduced below, is illustrative of the claimed subject matter: 21. A ventilator, wherein the ventilator comprises at least one ventilation device which is suitable and configured for producing at least one respiratory gas flow for ventilating a patient and setting the respiratory gas flow to at least one ventilation pressure depending on at least one respiratory phase of the patient, and further comprises at least one monitoring device which is suitable and configured for monitoring a synchronicity between respiratory phase and ventilation pressure by capturing at least one characteristic signal for the ventilation pressure and at least one characteristic signal for the respiratory phase of the patient and comparing the at least one characteristic signal for the ventilation pressure and the at least one characteristic signal for the respiratory phase to one another and determining at least one characteristic for the synchronicity based on the comparison. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Tarassenko US 2005/0027205 A1 Feb. 3, 2005 Masic US 2012/0167885 A1 July 5, 2012 Shelly US 10,137,266 B2 Nov. 27, 2018 Sinderby US 10,376,663 B2 Aug. 13, 2019 REJECTIONS Claims 22, 28-32, and 36-40 stand rejected under 35 U.S.C. § 112(b) as being indefinite. Final Act. 4. Appeal 2021-004909 Application 15/887,280 3 Claims 21, 23-25, 27-35, and 38-40 stand rejected under 35 U.S.C. § 103 as being unpatentable over Shelly and Sinderby. Final Act. 5. Claim 26 stands rejected under 35 U.S.C. § 103 as being unpatentable over Shelly, Sinderby, and Tarassenko. Final Act. 14. Claims 22, 36, and 37 stand rejected under 35 U.S.C. § 103 as being unpatentable over Shelly, Sinderby, and Masic. Final Act. 15. OPINION Indefiniteness In the Answer, the Examiner does not identify any rejections as withdrawn, but in responding to Appellant’s arguments the Examiner states that certain arguments have been found persuasive with respect to claims 22, 28-32, and 36-39. We consider these rejections to have been withdrawn, but, in any event, we also reverse them for formality to ensure a complete disposition of all allegedly pending rejections. The Examiner does not withdraw the rejection of claim 40, however. The Examiner rejects the claim as allegedly unclear due to the inclusion of the phrase “to this end.” Ans. 5. Appellant’s only argument is to state that it does not understand the rejection, which we do not consider a proper argument. Appeal Br. 8. Appellant did not provide any further response to this rejection in its Reply after the Examiner’s Answer further explaining the rejection. Accordingly, we summarily affirm the Examiner’s rejection of claim 40. Obviousness The Examiner finds that Shelly teaches nearly all aspects of the claim 21, but fails to specifically teach “comparing the at least one characteristic Appeal 2021-004909 Application 15/887,280 4 signal for the ventilation pressure and the at least one characteristic signal for the respiratory phase to one another and determining at least one characteristic for the synchrony [phase] based on the comparison.” Final Act. 5-7. The Examiner’s stated motivation is that one of skill in the art would have recognized that the combination of Sinderby with Shelly would “better prevent wasted inspiratory effort by increasing the accuracy of the monitoring device’s dyssynchrony detection.” Final Act. 7 (citation omitted). Appellant attacks half of the motivation in stating that no passages of Shelly or Sinderby support the Examiner’s statement that the combination would prevent wasted inspiratory effort. See, e.g., Appeal Br. 12. Appellant does not, however, meaningfully address the Examiner’s assertion that Sinderby would increase the accuracy, merely stating that Appellant does not see how Sinderby increases accuracy. Id. As the Examiner explains, however, “Sinderby detects the type (trigger and cycling-off errors) and intensity (degree of intensity is shown by percentage rating of the detected trigger or cycling-off error) of the dyssynchrony event to allow a user to more accurately determine how to correct a dyssynchrony event.” Ans. 20. Essentially, the Examiner’s rejection notes that Shelly already detects dyssynchrony, but is silent on being able to adjust to different types of dyssynchrony. The Examiner uses Sinderby’s measuring of the type and/or intensity of the dyssynchrony to improve upon Shelly’s more static detection. This amounts to determining a characteristic for the synchronicity as claimed. Appellant also asserts that “[a]ll that really matters in the instant context is that a dyssynchrony between the ventilation pressure and the respiratory phase of the patient is detected as early as possible.” Appeal Br. 12. The claims, however, do not refer to any time constraint or early Appeal 2021-004909 Application 15/887,280 5 detection and merely claim a comparison to determine a characteristic of the dyssynchrony, which we agree is taught in Sinderby. Accordingly, this argument is not commensurate with the scope of the claims at issue. For the reasons stated above, we sustain the Examiner’s rejection of independent claims 21 and 40, and claims depending therefrom, which Appellant does not separately argue. Appellant relies on the argument against claim 21 and does not make any argument specific to the further inclusion of Tarassenko and Masic, and we likewise sustain those rejections as well. CONCLUSION The Examiner’s indefiniteness rejection of claim 40 is sustained and all other indefiniteness rejections are reversed. The Examiner’s obviousness rejections are sustained. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 22, 28-32, 36-40 112 Indefiniteness 40 22, 28-32, 36-39 21, 23-25, 27-35, 38- 40 103 Shelly, Sinderby 21, 23-25, 27-35, 38- 40 26 103 Shelly, Sinderby, Tarassenko 26 22, 36, 37 103 Shelly, Sinderby, Masic 22, 36, 37 Overall Outcome 21-40 Appeal 2021-004909 Application 15/887,280 6 TIME PERIOD FOR RESPONSE 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