ResMed Pty Ltd

Patent Trials and Appeals Board

Jan 20, 2022

2021002452 (P.T.A.B. Jan. 20, 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. 15/665,747 08/01/2017 Dimitri Marco MAURER PTB-4398-1791 2328 23117 7590 01/20/2022 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER VO, TU A ART UNIT PAPER NUMBER 3785 NOTIFICATION DATE DELIVERY MODE 01/20/2022 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): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DIMITRI MARCO MAURER, IAN MALCOLM SMITH, RICHARD LLEWELYN JONES, and HARGOPAL VERMA Appeal 2021-002452 Application 15/665,747 Technology Center 3700 Before DANIEL S. SONG, STEFAN STAICOVICI, and LISA M. GUIJT, Administrative Patent Judges. SONG, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision to reject claims 21-68. 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). The Appellant identifies ResMed Pty Ltd. as the real party in interest. Appeal Br. 3. Appeal 2021-002452 Application 15/665,747 2 CLAIMED SUBJECT MATTER The claims are directed to a tub for humidification of respiratory gases. Claim 21, reproduced below, is illustrative of the claimed subject matter: 1. A tub configured to contain a supply of water and to be coupled to a humidifier for a respiratory apparatus, the tub comprising: a tub base configured to contain the supply of water; a tub lid connected to the tub base, the tub lid including a filling inlet configured to receive the supply of water to humidify a flow of breathable gas passing through the tub; an outlet for the flow of breathable gas after humidification; and a non-removable water level indicator configured to indicate a level of the supply of water in the tub base, wherein the non-removable water level indicator is visible through the filling inlet. Appeal Br. 17 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Martin US 2010/0132708 A1 June 3, 2010 Pieri US 2010/0170510 A1 July 8, 2010 Kenyon US 2011/0017212 A1 Jan. 27, 2011 Gordon US 8,820,322 B1 Sept. 2, 2014 Maurer US 9,737,682 B2 Aug. 22, 2017 Chen WO 2010/031126 A1 Mar. 25, 2010 REJECTIONS The Examiner rejects various claims under pre-AIA 35 U.S.C. § 103(a) as follows: Appeal 2021-002452 Application 15/665,747 3 1. Claims 21-37, 40, and 41 as being unpatentable over Chen in view of Pieri. Final Act. 3-12. 2. Claim 38 as being unpatentable over Chen in view of Pieri and Kenyon. Final Act. 12. 3. Claim 39 as being unpatentable over Chen in view of Pieri and Martin. Final Act. 12-13. 4. Claims 42 and 43 as being unpatentable over Chen in view of Pieri and Martin. Final Act. 13-17. 5. Claims 44 and 45 as being unpatentable over Chen in view of Pieri and Gordon. Final Act. 17-19. 6. Claims 46-62, 65, and 66 as being unpatentable over Chen in view of Pieri and Gordon. Final Act. 19-27. 7. Claim 63 as being unpatentable over Chen in view of Pieri and Kenyon. Final Act. 26-27. 8. Claim 64 as being unpatentable over Chen in view of Pieri and Martin. Final Act. 27-28. 9. Claims 67 and 68 as being unpatentable over Chen in view of Pieri and Martin. Final Act. 28-32. In addition, the Examiner further rejects: 10. Claims 21-23 and 27-41 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-10, 20, 28-34, 37, 44, and 65-67 of Maurer. Final Act. 33-34. Appeal 2021-002452 Application 15/665,747 4 OPINION Rejections 1-5: Claims 21-45 Regarding independent claim 21, the Examiner finds that Chen discloses a tub substantially as claimed, including a water level indicator, but finds that Chen “fails to disclose that the water level is [a] non-removable water level indicator, and the non-removable water level indicator is visible through the filling inlet.” Final Act. 4 (citing Chen ¶¶ 100, 106, 136, 138, 140, Figs. 1, 19, 20, 31, 55a, 68, and 71). The Examiner finds that “Pieri teaches a tub . . . having an inlet[], a non-removable water level indicator . . . configured to indicate a level of the supply of water in the tub base, wherein the non-removable water level indicator is visible through a filling inlet.” Final Act. 4 (citing Pieri ¶¶ 16-17, and Figs. 1-5). The Examiner concludes that it would have been obvious to one of the ordinary skill in the art to modify the tub of Chen to have the non-removable water level indicator configured to indicate a level of the supply of water in the tub base, wherein the non-removable water level indicator is visible through the filling inlet as taught by Pieri for the purpose of providing a water level indicator that can be utilized to quickly indicate the water level and for the purpose of preventing spilling of the water. Final Act. 4 (citing Pieri ¶¶16, 17, 20). The Appellant disagrees and argues that neither Chen nor Pieri, or their combination, discloses a non-removable water level indicator that is visible through the filling inlet. Appeal Br. 6. We agree with the Examiner’s findings and conclusion, and address the Appellant’s arguments below. The Appellant argues that Pieri’s baffle 1 does not indicate water level, and instead, prevents the spillage of water through the aperture 4 such Appeal 2021-002452 Application 15/665,747 5 that “the only time that water could actually be seen in contact with the baffle 1 is when water is spilling out of the water reservoir 2, e.g., due to overfilling.” Appeal Br. 7; see also Reply Br. 5. According to the Appellant, such water “is not actually within the water reservoir 2 such that the level of water in the water reservoir 2 is not indicated by the baffle 1.” Appeal Br. 7-8. These arguments are unpersuasive. The Examiner is correct that Pieri discloses a baffle having a physical structure, and a reservoir having a filling inlet 4 that is large enough such that if water were to be filled passed the baffle, the user would be able to see that the water surpass the baffle, and visually confirm that the water exceed the maximum fill level . . . . the overfill on the baffle 1 means that the baffle is being used as a water level indicator. Ans. 37. Moreover, we agree with the Examiner that “it is unclear as to how the water being contained by the tub walls would not be within the tub.” Ans. 43. In that regard, Figures 4 and 5 of Pieri clearly show that the baffle itself is positioned within the water reservoir 2. Pieri Figs. 4, 5. In addition as the Examiner further explains, “if water sits at the same level as the left most edge of the baffle, one would be able to gauge that the water is at the same level as the baffle’s tip, and the water would still be within the reservoir/tub.” Ans. 48. In such a scenario, the edge of the baffle would clearly “indicate a level of the supply of water in the tub base” as recited in claim 21. Pieri Fig. 5. The Appellant argues that “[w]hile water spilling out over the baffle 1 might reasonably indicate to the user that the water reservoir 2 of Pieri has been overfilled, the baffle 1 still does not provide any indication to the user of the water level height within the water reservoir 2 itself.” Appeal Br. 13. Appeal 2021-002452 Application 15/665,747 6 In that regard, the Appellant also argues that “to ‘visually confirm that the water exceed the maximum fill level’ [as asserted by the Examiner] one must know where the maximum fill level is, but Pieri does not provide the teaching the Examiner attributes to it.” Reply Br. 2. However, the Examiner is correct that “any structure having an edge or surface can be used as a reference point to indicate a water level relative to that reference point.” Ans. 36. At minimum, the baffle would give a clear indication when the level of the supply of water in the water reservoir is at a maximum. Specifically, the Examiner is correct that Pieri discloses in paragraph 0016 that “the maximum level of water allowable in the water reservoir will be determined by the height of the edge of the highest baffle”, this is evidence that if one having ordinary skill in the art were to fill the reservoir 2, they would know that when the water reach the baffle, that is the maximum water is allowed to be filled to. Ans. 36-37. In that regard, a person of ordinary skill in the art is presumed to know something about the art apart from what the references expressly disclose. See In re Jacoby, 309 F.2d 513, 516 (CCPA 1962); see also In re Sovish, 769 F. 2d 738, 743 (Fed. Cir. 1985) (“This argument presumes stupidity rather than skill.”). In view of the teaching in Pieri that the height of the baffle determines the maximum level of water allowable in the water reservoir, it would be evident to one of ordinary skill that one can look into the opening to see if the water has reached the baffle, i.e., the maximum level of water in the water reservoir. Claim 21 merely requires a “water level indicator,” i.e., a structure, to “indicate a level of the supply of water in the tub base,” which when the baffle of Pieri is implemented on the device of Chen, would indicate. Appeal Br. 16 (Claims App.). Appeal 2021-002452 Application 15/665,747 7 The Appellant argues that “baffle 1 actually precludes indication of the water level up until the point where the water level is so high that the baffle 1 does not function for its intended purpose by no longer preventing spillage.” Appeal Br. 9. According to the Appellant argues that “if the water level is high enough to be on the outer side of the baffle 1, and therefore becoming visible through the aperture 4, the baffle 1 would no longer be able to prevent spillage when the water reservoir 2 is inserted into the delivery device 10, as shown in Fig. la.” Appeal Br. 9. This argument is unpersuasive, and we agree with the Examiner that “it is unclear as to how overfilling the reservoir would make it so that the baffle 1 would be prevented from preventing spillage, the water that is inside the water reservoir is still being prevented from spilling.” Ans. 41. Moreover, the Appellant’s argument does not address the scenarios in which the water level in the water reservoir is at, or below, the left most edge of the baffle. The Appellant also argues that “the baffle 1 is shown in a position in which one’s view of the water level inside of the water reservoir 2 through the aperture 4 would be blocked by the baffle 1.” Appeal Br. 8 (citing Pieri Figs. 5-7). According to the Appellant, while the water could be contacting the side of the baffle facing the interior of the water reservoir, such water cannot be seen because “the baffle 1 appears to prevent one from seeing, i.e., being indicated of, the water level 12 in the water reservoir 2.” Appeal Br. 8. We are not persuaded by the Appellant’s argument and agree with the Examiner that “even if water level is below the baffle or at the baffle, one can shift their view slightly to see the water level relative to the baffle and bottom edge of the baffle.” Ans. 38; see also Pieri Fig. 5. Appeal 2021-002452 Application 15/665,747 8 Referring to an annotated Figure 5 of Pieri, the Appellant asserts that “it would not be possible to determine how close the water level actually would be to the baffle 1 in either of these extreme positions [“1” and “2”], nor would it be possible to make such a determination from any position between them.” Reply Br. 4 (see annotated Pieri Fig. 5). However, the Appellant’s annotated Figure 5 actually supports the position that the water level can be seen relative to the baffle when the user looks inside the water reservoir at an angle between the annotated lines “1” and “2,” i.e., by shifting their view slightly as found by the Examiner. Ans. 38; Reply Br. 4. Therefore, we agree with the Examiner’s finding that “when the water reservoir is removed and is being filled in the upright position as shown in [F]ig. 5 of Pieri, the user can see the water level relative to the baffle, while the water is still being inside of the reservoir.” Ans. 37. The Appellant further argues that the reasoning provided for modifying Chen in view of Pieri is flawed because “there appears to be nothing in Pieri that teaches how the water level can be quickly indicated, particularly any more so than Chen already allows,” and “this motivation appears to be redundant.” Appeal Br. 8; see also Reply Br. 5. The Appellant again argues that the baffle would block the view of the water level, and further argues that “Chen teaches a water level indicator, but the Examiner fails to explain why Pieri’s baffle 1 teaches any benefit that would motivate its inclusion in Chen’s device.” Appeal Br. 9, 12 (“[T]he Examiner does not explain how that feature would provide a benefit to Chen’s device.”). Again, the Appellant’s arguments are unpersuasive. The assertion that the baffle would block the view of the water level is unpersuasive for the reasons already discussed. As to the assertion of lack Appeal 2021-002452 Application 15/665,747 9 of motivation to provide the baffle of Pieri in the device of Chen, the Appellant overlooks the Examiner’s reasoning that it would have been obvious to provide such a baffle “for the purpose of preventing spilling of the water,” as well as for “quickly indicat[ing] the water level.” Final Act. 4. As the Examiner explains, “adding the baffle to the reservoir of Chen would provide the benefit of preventing the spillage, which is stated in paragraphs 0016-0017 and 0020 of Pieri.” Ans. 40. Moreover, as the Examiner further explains, “the baffle 1 would provide the added benefit of allowing the user to quickly see if water has exceeded the baffle and to prevent spilling of water.” Ans. 39. The Appellant argues that “it is unclear how preventing water spillage relates to indication of the water level through the filling inlet and why it would motivate one of ordinary skill in the art to modify Chen with Pieri.” Appeal Br. 12. According to the Appellant, “the baffle’s 1 only purpose appears to be preventing water from spilling or leaking out of the water reservoir 2,” and the Examiner misrepresents Pieri’s teaching by attributing some water level indicating function to the baffle.” Appeal Br. 10. However, the Appellant’s argument does not address or diminish the Examiner’s reasoning for providing the baffle to prevent spilling of water. The reason or motivation provided in the prior art to combine the references does not have to be the same as that of the inventors to establish obviousness. In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996). As the Examiner explains, “Chen discloses a relatively large inlet, adding the baffle would prevent spilling of water when the tub is tilted.” Ans. 47; see also Chen Figs. 19, 54, 55a. Appeal 2021-002452 Application 15/665,747 10 Moreover, as the Examiner further explains, “if the water level goes over the baffle, one would know that the water exceed the maximum amount allowed therefore, the baffle would allow for quick indication of the water level,” in view of the disclosure in Pieri. Ans. 40. As already noted, Pieri specifically teaches that the height of the edge of the baffle determines the maximum level of water allowable in the water reservoir. Pieri ¶ 16. Thus, we are not persuaded of error in the Examiner’s reasoning that “the baffle 1 would provide the added benefit of allowing the user to quickly see if water has exceeded the baffle and to prevent spilling of water.” Ans. 39. The Appellant argues that “filling the water to a higher level than shown relies on an analysis of the proportions of the water reservoir 2 shown in Fig. 5,” which is impermissible because drawings are not disclosed as being to scale. Appeal Br. 9-11. However, we agree with the Examiner that “[e]ven though Pieri did not state that the drawing is up to scale, one can reasonably conclude that the baffle can be seen through the opening of Pieri,” and that “one can view through the opening to see the water level as shown in the annotated-Pieri [F]ig. 5.” Ans. 38 (annotated Fig. 5 of Pieri), and 43; see also Pieri Fig. 5. Indeed, it is well established that drawings can be relied upon for what they reasonably disclose and suggest to one of ordinary skill in the art. See In re Aslanian, 590 F.2d 911, 914 (CCPA 1979); see also In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972). Figure 5 of Pieri reasonably discloses that the opening allows for viewing of the water reservoir on and/or below the baffle. Pieri Fig. 5. The Appellant also argues that In Chen, the problem of overfilling is dealt with by a drain hole 104 that allows excess water to spill out in instances of overfilling, which renders the water level indicator 102 similar Appeal 2021-002452 Application 15/665,747 11 to the baffle 1 of Pieri. Thus, this argument from the Examiner fails because it does not explain how one of ordinary skill in the art would have found Pieri’s baffle 1 to be a worthy modification. Appeal Br. 12. However, “the argument is not persuasive because [the] embodiment having water level indicator 320 does not have a drain hole.” Ans. 47; see also Chen Fig. 55a, 54. Furthermore, we agree with the Examiner that “[e]ven if a drain hole exist[s] in the tub having water level indicator 320, it is unclear as to how the drain hole would not make it obvious to add the baffle 1 of Pieri to prevent spillage, since Chen discloses a relatively large inlet, [and] adding the baffle would prevent spilling of water when the tub is tilted.” Ans. 47. Moreover, the Appellant’s characterization of Chen is not entirely correct. Chen specifically discloses that “[a] small drain hole 104 is located in the bottom of the water level indicator 102 to allow the water to fill up the water level indicator 102 and then drain out of the bottom of the water level indicator 102 to the tub base 82 as the water level decreases in the tub base 82.” Chen ¶ 124. Thus, Chen teaches that the drain hole 104 allows filling of its water level indicator 102, and drains out the water in the indicator back into the water reservoir. While overfilled water may spill out of the water level indicator 102 through the drain hole 104, as well as the inlet 98, that is not the disclosed function of the drain hole so as to undermine the reason for providing a baffle to the device of Chen. Therefore, in view of the above considerations, we agree with the Examiner that “if a user were filling the tub through the inlet, an overfill of water over the baffle would quickly indicate to the user that the water has Appeal 2021-002452 Application 15/665,747 12 exceeded a maximum level. By having the baffle, this would provide an additional point that would alarm or provide feedback to the user that too much water has been added to the tub, in addition to preventing the spilling of water.” Ans. 46-47. Accordingly, we affirm the Examiner’s rejection of independent claim 21. With the exception of dependent claims 22 and 41, which are separately argued, the Appellant relies on dependency on claim 21 for patentability of remaining dependent claims. Thus, dependent claims 23-40 and 42-45 fall with independent claim 21. Claim 22 Claim 22 depends from independent claim 21 and recites that “the non-removable water level indicator has a maximum fill indicator that is visible via the filling inlet when seen from top view.” Appeal Br. 17 (Claims App.). The Appellant argues that there appears to be nothing on the baffle 1 that indicates that the current fill level is at a maximum. The only way to determine that a maximum fill level has been reached using the baffle 1 of Pieri would be from a subjective and arbitrary by determination by the user. In other words, nothing in Pieri expressly discloses how the baffle 1 would indicate a maximum fill level. Appeal Br. 14. However, this argument is unpersuasive for reasons already addressed above relative to claim 21. Specifically, we again agree with the Examiner that the argument is not persuasive because Pieri discloses in paragraph 0016 that “the maximum level of water allowable in the water reservoir will be determined by the height of the edge Appeal 2021-002452 Application 15/665,747 13 of the highest baffle in each orientation[,]” therefore, the edge of the baffle can be considered as a maximum fill indicator. Ans. 49. Therefore, we affirm the rejection of claim 22. Claim 41 Claim 41 depends from independent claim 21 and recites that “the non-removable water level indicator is configured to contact the supply of water so that the supply of water contacting the non-removable water level indicator is visible through the filling inlet to indicate the level of the supply of water in the tub base.” Appeal Br. 19 (Claims App.). The Appellant argues that “Chen and Pieri do not teach this feature” because “Pieri’s baffle 1 actually would appear to prevent seeing any contact with between the baffle 1 and the water level 12.” Appeal Br. 15. However, this argument is again unpersuasive for reasons already addressed above relative to claim 21 in that “if water were to contact the leftmost edge/tip of the baffle 1, a user would be able to see it through the inlet 4, or if water were to fill over the baffle 1 (see the annotated-Pieri [F]ig. 5 above), the water can be seen through the inlet 4.” Ans. 50. Therefore, we affirm this rejection as to claim 41 as well. Rejection 6: Claims 46-62, 65, and 66 The Appellant refers to the same arguments submitted relative to independent claim 21 for the patentability of independent claim 46. Appeal Br. 15. The Appellant also relies on arguments submitted relative to claim 22 for the patentability of claim 47, and on arguments submitted relative to claim 41 for the patentability of claim 66. Appeal Br. 15. Having found the Appellant’s arguments directed to claims 21, 22, and 41 unpersuasive for Appeal 2021-002452 Application 15/665,747 14 reasons discussed above, we affirm the rejections of claims 46, 47, and 66. The Appellant does not submit any arguments specifically directed to the remaining dependent claims 48-62 and 65. Thus, we affirm the rejection of these claims as well. Rejections 7-9: Claims 63, 64, 67, and 68 The Appellant does not specifically address Rejections 7-9 that reject claims 63, 64, 67, and 68. These claims each depend from claim 46. Appeal Br. 23-24 (Claims App.). To any extent the Appellant is simply relying on their dependency on claim 46 for patentability of claims 63, 64, 67, and 68, these claims fall with claim 46. Rejection 10: Claims 21-23 and 27-41 The Examiner rejects claims 21-23 and 27-41 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-10, 20, 28-34, 37, 44, and 65-67 of Maurer. Final Act. 33. The Appellant does not submit any arguments with respect to this rejection. Accordingly, we summarily affirm this rejection. CONCLUSION The Examiner’s rejections are affirmed. Appeal 2021-002452 Application 15/665,747 15 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 21-37, 40, 41 103(a) Chen, Pieri 21-37, 40, 41 38 103(a) Chen, Pieri, Kenyon 38 39 103(a) Chen, Pieri, Martin 39 42, 43 103(a) Chen, Pieri, Martin 42, 43 44, 45 103(a) Chen, Pieri, Gordon 44, 45 46-62, 65- 66 103(a) Chen, Pieri, Gordon 46-62, 65-66 63 103(a) Chen, Pieri, Kenyon 63 64 103(a) Chen, Pieri, Martin 64 67, 68 103(a) Chen, Pieri, Martin 67, 68 21-23, 27- 41 Nonstatutory Obviouness-type Double Patenting 21-23, 27-41 Overall Outcome 21-68 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