Nathan John. Berry Ann et al.

Patent Trials and Appeals Board

Mar 18, 2020

14422012 - (D) (P.T.A.B. Mar. 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.
14/422,012 02/17/2015 Nathan John Berry Ann 2012P01003WOUS 7470
24737 7590 03/18/2020
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
LUARCA, MARGARET M
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
03/18/2020 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte NATHAN JOHN BERRY ANN and
WILLIAM ANTHONY TRUSCHEL

Appeal 2019-000264
Application 14/422,012
Technology Center 3700
____________

Before JOHN C. KERINS, MICHAEL L. WOODS and
ARTHUR M. PESLAK, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1, 3–6, 8–11, and 13–24.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 The term “Appellant” is used herein to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Koninklijke Philips N.V. as the real
party in interest. Appeal Br. 2.
Appeal 2019-000264
Application 14/422,012

2
THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to a ventilator, and associated method
and system. Claim 1 is illustrative, and is reproduced below:
1. A ventilator comprising:

a pressure generator configured to generate a flow of breathable
gas for delivery to an airway of a subject;

a patient interface assembly configured to convey the flow of
breathable gas from the pressure generator to the airway of the
subject;

a sensor configured to generate output signals conveying
information related to a first dynamic property of the flow of
breathable gas;

a processor configured to execute computer program modules,
the computer program modules comprising:

a control module configured to control the pressure
generator to adjust a second dynamic property of the flow
of breathable gas over time in accordance with a therapy
regime;

a property determination module configured to determine
measured values of the first dynamic property of the flow
of breathable gas during respiration of the subject such that
measured values of the first dynamic property are
determined for individual points of time in an ongoing
manner;

a model parameter module configured to determine, for
individual periods of time, parameter values for a model
parameter of a model that provides a predicted value of the
first dynamic property at a point in time as a function of
the second dynamic property at the same point in time,
wherein the model parameter module is configured to
determine a parameter value for the model parameter
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Application 14/422,012

3
during a given period of time by fitting predicted values of
the first dynamic property to measured values of the first
dynamic property for points of time that occurred in the
given period of time; and

a disconnect detection module configured to determine
whether the airway of the subject is engaged with the
patient interface assembly to receive the flow of
breathable gas based on the fitting of the predicted values
of the first dynamic property to the measured values of the
first dynamic property.

THE REJECTIONS
The Examiner rejects:
(i) claims 1, 3–6, 8–11, and 13–15 under 35 U.S.C. § 102(b) as being
anticipated by Jafari (US 2010/0147303 A1, published June 17, 2010); and
(ii) claims 16–24 under 35 U.S.C. § 103 as being unpatentable over
Jafari in view of Mathews (US 2006/0000475 A1, published Jan. 5, 2006).

ANALYSIS
Claims 1, 3–6, 8–11, and 13–15--Anticipation by Jafari
The issue joined in the appeal of this anticipation rejection is whether
or not Jafari discloses a “fitting of the predicted values of the first dynamic
property to the measured values of the first dynamic property,” which
pertains to the following claim limitations found in claim 1:
. . . wherein the model parameter module is configured to
determine a parameter value for the model parameter during a
given period of time by fitting predicted values of the first
dynamic property to measured values of the first dynamic
property for points of time that occurred in the given period of
time; and
a disconnect detection module configured to determine whether
the airway of the subject is engaged with the patient interface
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assembly to receive the flow of breathable gas based on the
fitting of the predicted values of the first dynamic property to the
measured values of the first dynamic property.

Appeal Br. 19 (Claims Appendix). Independent claims 6 and 11
include similarly-worded limitations.
The Examiner finds that the “fitting” operation is disclosed in
paragraphs 59 and 61 of Jafari, and that the determination of airway
engagement based on that “fitting” is disclosed in one or more of
paragraphs 51, 52, 53, 57, 59, and 69. Final Act. 6. As to the latter, the
Examiner explains that the disclosed operation of determining if an
actual leak exceeds a calculated maximum leak is seen as meeting the
determination step. Id.
Appellant’s position is that Jafari determines a disengaged
condition by merely comparing a calculated individual actual leak
value to a calculated individual maximum leak value, which, according
to Appellant, does not involve a fitting of measured values of a
parameter to predicted values of that parameter at plural points over a
given period of time but rather involves “[i]ntegrating an equation over
a breath (e.g., a given period of time) convert[ing] a set of values into a
single value” and “two single values . . . are compared to determine the
disconnect condition.” Appeal Br. 9, 11–12.
In response, the Examiner takes the position that, based on the
fact that no special definition or limiting language appears in the
Specification for the term “fitting,” a broadest reasonable interpretation
of the term encompasses a comparison of two values. Ans. 2. The
Examiner repeats the position that Jafari compares an actual leak value
to a calculated maximum leak value to determine if the former exceeds
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Application 14/422,012

5
the latter, and that “[t]his comparison of [two] values over time reads
on the limitation of fitting.” Id. at 3.
Appellant replies that the term “fitting,” or variants such as “fit,” are
consistently used in the context of “determining a mathematical function that
describes or is fitted to data points over a given time period.” Reply Br. 3.
Appellant also directs our attention to the Specification as contrasting the
claimed “fitting” to a simple comparison of two values to one another. Id. at
3–4. Most telling is a quote from paragraph 37 of the Specification
(identified in the Reply Brief as paragraph 39), which reads, “[i]n some
implementations, rather than looking directly at the fit between the measured
and predicted values, disconnect detection module 38 may look at the
parameter values determined during the periods of time.” Id. at 4 (emphasis
omitted). The Specification provides, as an example of looking at the
parameter values instead of to the outcome of the fitting operation, that the
disengagement determination “may be made by comparing [a particular]
parameter to a threshold.” Spec. ¶ 38.
Appellant has the better position. A “fitting,” in accordance with
Appellant’s disclosure, is different from a simple point-by-point comparison.
Although we appreciate that the Examiner, as noted above, takes into
account a comparing of two values “over time,” in reference to Jafari, that
goes no further than a showing that the same type of one-to-one comparison
of values is repeated over the course of the ventilation therapy regime.
There is no indication that a plurality of predicted and measured values of a
property occurring in a given period of time are fitted or characterized by a
particular mathematical function.
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Application 14/422,012

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The rejection of claims 1, 3–6, 8–11, and 13–15 as being anticipated
by Jafari is not sustained.
Claims 16–24--Unpatentability over Jafari and Mathews
The Examiner does not rely on Mathews in any manner that
overcomes the basic deficiency in the disclosure of Jafari, discussed above.
In that each of claims 16–24 depends directly or indirectly from an
independent claim rejected as anticipated by Jafari, the obviousness rejection
over Jafari in view of Mathews is not sustained.2

CONCLUSION
The rejection of claims 1, 3–6, 8–11, and 13–15 under 35 U.S.C.
§ 102(b) is reversed.
The rejection of claims 16–24 under 35 U.S.C. § 103(a) is reversed.

DECISION SUMMARY

In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–6, 8–11,
13–15
§ 102(b) Jafari 1, 3–6, 8–11,
13–15
16–24 § 103(a) Jafari, Mathews 16–24

2 Claims 22–24, according to their presentation in the Claims Appendix,
depend from claim 12, which is indicated in the Claims Appendix as
cancelled. Accordingly, claims 22–24 appear to be of improper form, and
corrective action is recommended subsequent to this Appeal.
Appeal 2019-000264
Application 14/422,012

7
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
Overall
Outcome

1, 3–6, 8–11,
13–24

REVERSED