Ex Parte Arzi et al

Patent Trial and Appeal Board

Nov 30, 2018

13520581 (P.T.A.B. Nov. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/520,581 07/05/2012
67801 7590 12/04/2018
MARTIN D. MOYNIHAN d/b/a PRTSI, INC.
P.O. BOX 16446
ARLINGTON, VA 22215
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
AnatArzi
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.
53914 9058
EXAMINER
LOUIS,LATOYAM
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
12/04/2018 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):
usptomail@ipatent.co.il
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANAT ARZI, LEE SELA, ANTON PLOTKIN,
AHARON WEISSBROD, and NOAM SOBEL
Appeal2018-002859
Application 13/520,581
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
ANNETTE R. REIMERS, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Anat Arzi et al. ("Appellants") 1 seek review under 35 U.S.C. § 134(a)
of the Examiner's decision, as set forth in the Final Office Action dated
December 30, 2016 ("Final Act.") rejecting claims 1-12, 14--27, 29-32, 34,
and 36, which are all the pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 The real party in interest is identified as Y eda Research and Development
Co. Ltd. Appeal Br. 2.
Appeal2018-002859
Application 13/520,581
CLAIMED SUBJECT MATTER
Claims 1, 14, and 25 are independent claims. Claims 1 and 14,
reproduced below, illustrate the claimed subject matter:
1. A method of reducing a probability of snoring, the
method comprising:
providing an odor disperser machine for odor dispersion;
selecting an odor having an effect of increasing
inhalation volume on a patient smelling the odor;
automatically repeatedly dispersing said selected odor by
said odor disperser machine towards said selected patient
during a sleep period;
reducing the probability of snoring of the selected patient
by affecting one or more upcoming breaths of said patient
consecutive to said dispersing to increase inhalation volume by
said repeatedly dispersing odor.
14. A device for reducing a probability of snoring during
sleep, the device comprising:
an odor disperser adapted to disperse an odor;
at least one detector adapted to detect a physiological
characteristic of a user;
a controller configured for reducing the probability of
snoring by the user by instructing the odor dispenser to disperse
an odor responsive to detections by the at least one detector
thereby affecting one or more upcoming breaths of the user
consecutive to said odor dispersion to increase inhalation
volume.
Appeal Br. 40-41 (Claims App.).
2
Appeal2018-002859
Application 13/520,581
REJECTIONS
The Final Office Action includes the following rejections under 35
U.S.C. § I03(a):
I. Claims 1, 2, 5-7, 10-12, 25, 29-32, 34, and 36 are rejected as
unpatentable over Comel (US 2005/0283039 Al, published Dec. 22, 2005),
Kwok (US 2007/0023044 Al, published Feb. 1, 2007), and Umeda (US
2001/0042546 Al, published Nov. 22, 2001).
II. Claim 3 is rejected as unpatentable over Comel, Kwok, Umeda,
and Frank (US 6,467,477 Bl, issued Oct. 22, 2002).
III. Claims 4, 8, 9, 26, and 27 are rejected as unpatentable over
Comel, Kwok, Umeda, and De Lemos (US 2012/0078065 Al, published
Mar. 29, 2012).
IV. Claims 14, 15, 17, 19-21, and 24 are rejected as unpatentable
over Kwok, Comel, and Umeda.
V. Claim 16 is rejected as unpatentable over Kwok, Comel,
Umeda, and Frank.
VI. Claim 18 is rejected as unpatentable over Kwok, Comel,
Umeda, and De Lemos.
VII. Claim 22 is rejected as unpatentable over Kwok, Comel,
Umeda, and Doshi (US 2008/0041373 Al, published Feb. 21, 2008).
VIII. Claim 23 is rejected as unpatentable over Kwok, Comel,
Umeda, and Masuda (US 5,819,347, issued Oct. 13, 1998).
3
Appeal2018-002859
Application 13/520,581
ANALYSIS
Rejection I-Claims 1, 2, 5-7, 10-12, 25, 29-32, 34, and 36
As to claim 1, the Examiner finds, among other things, that Comel
discloses a method of reducing a probability of snoring following odor
dispersion. Final Act. 4 (citing Comel ,r,r 12, 13, 21, 24, 32, 34).
Appellants contend that Comel does not teach or suggest reducing the
probability of snoring by odor dispersion, but rather, teaches reducing the
probability of snoring by manipulating sleep architecture. Appeal Br. 1 O;
see also id. at 13 (citing Comel ,r,r 12, 13, 47). The Examiner responds that
Comel discloses treating respiratory sleep disorders, such as apnea,
hypopnea, and snoring, by using sensory stimulation generators including
odor generators, and discloses that the sleep architecture effect of Comel
includes affecting respiration, which includes apnea, hypopnea, snoring.
Ans. 12 ( citing Comel ,r,r 12, 13, 38).
Appellants have the better position here. Paragraph 12 of Comel
describes "a system and a method for dynamically manipulating the sleep
architecture toward treating sleep disorders, such as apnea, hypopnea, [and]
snoring." Paragraph 13 of Comel discloses
[ s ]aid system and method may alter the state of alertness and
patterns of behavior related to sleep phases and sleep
architecture and to awake phases and levels of activity such as
sleepiness, drowsing [sic.] driving and narcolepsy. The said
sensory stimulation generators may generate and control light,
sound, odor, temperature and mechanical stimulations.
Id. ,r 13 (emphasis added). As for the system, paragraph 38 of Comel states:
The implementation of the system may comprise any
commercially available technologies and components.
However, certain embodiments of the present invention may
require making use of specially designed equipment, in
4
Appeal2018-002859
Application 13/520,581
particular regarding real time control processor and
stimulation generating equipment as in the case of aroma
stimulation, light controlled semi-transparent pillows, facial
expression analyzer may able to determine the subject's sleep
stage and other sleep parameters and events, and so on.
Id. ,r 38 (emphasis added).
These quoted passages in Comel disclose that a system and a method
for dynamically manipulating the sleep architecture can be used to treat
snoring, as one example (see id. ,r 12); that sensory stimulation generators
used in the system may generate odor, as one example (see id. ,r 13); and
that the stimulation generating equipment can provide aroma stimulation
(see id. ,r 3 8). These passages do not, however, specifically disclose or
suggest the use of odor ( or aroma) to treat or affect snoring, more
specifically, to reduce the probability of snoring. In addition, the Examiner
does not provide sufficient technical reasoning to support a finding that
Comel discloses a method of reducing a probability of snoring by dispersing
an odor towards a patient during sleep. Thus, the Examiner's finding is not
supported by a preponderance of the evidence.
The Examiner relies on Kwok for disclosing affecting one or more
upcoming breaths consecutive to odor dispersion, and relies on Umeda for
disclosing an odor that has an effect of increasing inhalation volume of a
patient smelling the odor. See Final Act. 4--5. The Examiner's application
of Kwok and Umeda does not cure the deficiency in Comel, as neither
Kwok nor Umeda is relied on as disclosing that the use of odor would or
might affect snoring, more specifically, reduce the probability of snoring.
Therefore, we do not sustain the rejection of claim 1, or claims 2, 5-7, 10-
12, 31, 32, 34, and 36 depending therefrom, as unpatentable over Comel,
Kwok, and Umeda.
5
Appeal2018-002859
Application 13/520,581
Claim 25 recites "[a] method of controlling a device/or reducing a
probability of snoring by a user during sleep," "determining that reducing
the probability of snoring by affecting respiration is desired," "providing a
device/or odor dispersion," and "selecting a time period of repeated odor
dispersion responsive to the affect of one or more upcoming breaths
consecutive to odor dispersion that would lead to reduction of probability of
snoring required by increasing inhalation volume by the user smelling the
odor." Appeal Br. 42 (Claims App. ( emphasis added)).
The Examiner finds that Comel discloses a method of controlling a
device for reducing a probability of snoring, comprising selecting a time
period of repeated odor dispersion responsive to the affect of one or more
upcoming breaths consecutive to odor dispersion that would lead to
reduction of probability of snoring. Final Act. 6 ( citing Comel ,r,r 12, 13, 21,
24, 32, 37). For reasons similar to those discussed above for claim 1, this
finding is not supported by a preponderance of the evidence. The
Examiner's application of Kwok and Umeda does not cure the deficiency in
Comel. Id. at 6-7. We thus do not sustain the rejection of claim 25, or of
claims 29 and 30 depending therefrom.
Rejection II-Claim 3
The Examiner's use of Frank in rejecting dependent claim 3 fails to
cure the deficiencies in the rejection of parent claim 1. See id. at 8. Hence,
we do not sustain the rejection of claim 3 as unpatentable over Comel,
Kwok, Umeda, and Frank.
6
Appeal2018-002859
Application 13/520,581
Rejection III-Claims 4, 8, 9, 26, and 27
The Examiner's use of De Lemos in rejecting dependent claims 4, 8,
9, 26, and 27 does not cure the deficiencies in the rejection of parent claims
1 and 25. See id. at 8-9. Hence, we do not sustain the rejection of these
dependent claims as unpatentable over Comel, Kwok, Umeda, and De
Lemos.
Rejection IV--Claims 14, 15, 17, 19-21, and 24
The Examiner finds that the combination of Kwok, Comel, and
Umeda discloses all limitations of claim 14. See id. at 9-11. The Examiner
finds that Kwok discloses a device that is capable of reducing the probability
of snoring during sleep, in which the device comprises an odor disperser
(flow generator 10,210) adapted to disperse an odor, and a controller 36
configured for instructing the odor disperser to disperse an odor responsive
to detections by a detector. Id. at 10 (citing Kwok ,r 46); see also Ans. 17-
18 (stating Kwok discloses instructing odor dispersion and, therefore,
snoring is prevented (citing Kwok ,r 50)). The Examiner acknowledges that
Kwok does not disclose that the odor increases inhalation volume of the
patient smelling the odor. Final Act. 10. The Examiner finds that Umeda
discloses that vetiver oil has the effect of increasing a user's inhalation
volume. Id. ( citing Umeda ,r 58). The Examiner concludes that it would
have been obvious to modify Kwok's device to disperse vetiver oil, as taught
by Umeda, to "provide the advantage of enhanced comfort and relaxation for
increased well-being." Id. at 10-11.
Appellants contend Kwok does not teach reducing the probability of
snoring and the Examiner has not shown that Kwok relates to snoring. See
7
Appeal2018-002859
Application 13/520,581
Reply Br. 6; see also Appeal Br. 33. Appellants also argue that the
Examiner's application of Umeda is based on impermissible hindsight
because Appellants' Specification, not Umeda's disclosure, teaches using
vetiver oil to increase inhalation. Appeal Br. 33; see also Reply Br. 7.
Appellants' contentions are persuasive. There is no description in
paragraphs 46 and 50 of Kwok that indicates the device is capable of
reducing the probability of snoring during sleep. As such, the Examiner
does not provide sufficient evidence or technical reasoning to show that
Kwok discloses a device for reducing a probability of snoring during sleep,
in which the device comprises a controller configured for reducing the
probability of snoring. The Examiner's application of Comel and Umeda
does not cure this deficiency in Kwok.
We agree with Appellants that the Examiner's application ofUmeda
is based on impermissible hindsight, as the portion of Umeda cited by the
Examiner discusses nothing about vetiver oil being used to increase
inhalation volume.
Thus, we do not sustain the rejection of claim 14, or claims 15, 17,
19--21, and 24 depending therefrom, as unpatentable over Kwok, Comel,
and U meda.
Rejections V-VIJJ-Claims 16, 18, 22, and 23
The Examiner's use of Frank, De Lemos, Doshi, and Masuda in
rejecting dependent claims 16, 18, 22, and 23, respectively, does not cure the
deficiencies in the rejection of parent claim 14. Hence, we do not sustain the
rejection of claim 16 as unpatentable over Kwok, Comel, Umeda, and
Frank; claim 18 as unpatentable over Kwok, Comel, Umeda, and De Lemos;
8
Appeal2018-002859
Application 13/520,581
claim 22 as unpatentable over Kwok, Comel, Umeda, and Doshi; or claim
23 as unpatentable over Kwok, Comel, Umeda, and Masuda.
DECISION
We reverse the rejections of claims 1-12, 14--27, 29-32, 34, and 36.
REVERSED
9