DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 10/24/2025 has been entered.
Response to Amendment
Claims 3-4, 11-12, and 19-20 have been canceled. Claims 21-26 have been added. Claims 1-2, 5-10, 13-18, and 21-26 remain pending.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 9, and 17, and dependent claims 2, 5-8, 10, 13-16, 18, and 21-26, are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1, 9, and 17 recite the limitation "the display area" in lines 31, 31, and 33, respectively. There is insufficient antecedent basis for this limitation in the claim. For the purposes of this Office Action, “the display area” will be interpreted as --a display area--.
Claims 1, 9, and 17 recite the limitation "the others" in lines 32, 32, and 34, respectively. There is insufficient antecedent basis for this limitation in the claim and it is unclear to what this limitation is intended to refer. For the purposes of this Office Action, “the others” will be interpreted as referring to other structured visualizations.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-2, 5-10, 13-18, and 21-26 are rejected under 35 U.S.C. 103 as being unpatentable over Korten (US 2014/0060539 A1), hereafter Korten, in view of Sinderby (US 2014/0296728).
Regarding claim 1, Korten discloses an output device for outputting measured values (Fig. 1, display and control unit 18; par. 0018 ln 1-7), which are provided by a ventilator and pertain to a ventilation process of the ventilator connected to a person receiving medical care (par. 0018 ln 1-4), the output device comprising: an output unit (Fig. 1, display 60; par. 0020) configured to receive an output signal (par. 0021 ln 1-9; control signals direct the display 60) and to provide a visual output by means of an output display screen based on the output signal (par. 0021 ln 1-9); and a processing unit (Fig. 1, control unit 62 comprises a processing unit; par. 0021 ln 1-2) configured: to receive a first data set (Fig. 2, step 104 control unit receives signal based on breathing; par. 0023) and a second data set (Fig. 2, step 102 control unit receives signal based on ventilator firing; par. 0022) wherein the first data set indicates personal start times, at which a respective current breath of the person begins (Fig. 3, time patient begins to inhale T1; par. 0024 ln 16-17), and indicates personal end times, at which the respective current breath of the person ends by a starting to exhale (Fig. 3, time patient begins to exhale T1’; par. 0044 ln 27-30) and the second data set indicates device-side start times, at which the ventilator begins with a current inspiratory phase for assisting the respective current breath of the person (Fig. 3, time ventilator is fired T2; par. 0024 ln 14-16), and indicates device-side end times, at which the ventilator ends the current inspiratory phase (Fig. 3, time ventilator is stopped T2’; par. 0044 ln 25-27); to determine a start deviation (par. 0024, inhalation phase angle) and an end deviation (par. 0044 ln 7-30, exhalation phase angle) between the inspiratory phase of the ventilator and the current breath of the person (par. 0024 ln 1-10 and par. 0044 ln 10-14, phase angle is based on relationship between ventilator firing/cessation and patient inhalation/exhalation) based on the corresponding device-side start times and personal start times (par. 0024 ln 10-18, inhalation phase angle is calculated using time ventilator is fired T2 and time patient begins to inhale T1 ) and the corresponding device-side end times and personal end times (par. 0044 ln 14-30, exhalation phase angle is calculated using time ventilator is stopped T2’ and time patient begins to exhale T1’); to provide the output signal (par. 0021 ln 1-9; control signals). Korten also discloses a structured visualization (Fig. 3) in which a respective current breath of a person (Fig. 3, lower line 154) and the ventilator phase (Fig. 3, upper line 152) are displayed chronologically in real time at a constant predefined starting position over time (the lines 154 and 152 can be displayed, par. 0017 ln 14-15; see also Sinderby par. 0097 ln 8-12).
Korten Fig. 3 shows the ventilator phase and patient breath visualizations side-by-side, but does not explicitly disclose outputting the deviation between the ventilator phase and patient breath.
However, Fig. 6 of Korten teaches an output of this deviation between ventilator and patient as a structured visualization for the purpose of allowing a physician to quickly determine dis-synchrony (par. 0018 ln 24-27). The deviation may be graphically depicted depending upon breath age (par. 0037).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the side-by-side visualization of each chronological breath in Korten Fig. 3 with a visualization of the deviations for each chronological breath as taught by Korten for the benefit of quickly determining dis-synchrony on a breath-by-breath basis.
This modified visualization of Korten discloses the start deviations and the end deviations for a predefined plurality of breaths (a predefined plurality of breaths is shown in Fig. 3), a visual display for the respective start deviation and for the respective end deviation of the respective breaths (start and end deviation for each breath is visualized as taught by Fig. 6), and the structured visualization of the start deviation and of the end deviation of a last breath taken at a constant predefined starting position over time within the predefined output structure is outputted (Fig. 3 shows the last breath taken on the left side), and chronologically preceding structured visualizations of the start deviation and of the end deviation are shifted to a next position fixed within the output structure starting from the starting position, when the structured visualization of the start deviation and of the end deviation of a new last breath taken at the starting position is outputted (Fig. 3 shows chronologically preceding breath on the right side); wherein the predefined output structure is formed such that structured visualizations corresponding to chronologically consecutive breaths are arranged in mutually adjacent positions within the display area (Fig. 3 shows chronological breaths in adjacent positions), each structured visualization occupying a defined position relative to the others within the output structure (Fig. 3 shows visualizations of breaths occupying defined positions).
The modified Korten does not disclose wherein the structured visualizations include a graphical region having a common reference line along which the personal start times of the breaths are aligned, the reference line extending across the plurality of structured visualizations to provide a uniform positional basis for displaying breath-related information; and wherein the processing unit is configured to determine a proportional relationship between a time interval defined by the personal start time and the personal end time of each breath and a fixed predefined bar length of the structured visualization.
Sinderby teaches a structured visualization (Fig. 15b) wherein the structured visualizations include a graphical region having a common reference line along which the personal start times of the breaths are aligned (Fig. 15b, breath start time is arranged on the vertical dotted line), the reference line extending across the plurality of structured visualizations to provide a uniform positional basis for displaying breath-related information (Fig. 15b, vertical dotted line marking breath start time extends across structured visualizations); and wherein the processing unit is configured to determine a proportional relationship between a time interval defined by the personal start time and the personal end time of each breath and a fixed predefined bar length of the structured visualization (Fig. 15b, start time and end time of breath is fixed at the two vertical dotted lines in the center).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to further modify the visualization of Korten to include a graphical region having a common reference line along which the personal start times of the breaths are aligned and to determine a proportional relationship between a time interval defined by the personal start time and the personal end time of each breath and a fixed predefined bar length of the structured visualization as taught by Sinderby. This would provide the benefit of clearly displaying different types of asynchrony.
In addition, the details of the visual output are considered to be nonfunctional descriptive material or printed matter and do not alter how the device functions. There is no new relation of printed matter to physical structure as the modified visualization of Korten discloses a chronological visual output of start and end deviations. Therefore, this descriptive material does not carry patentable weight and does not distinguish the claimed invention from the prior art in terms of patentability, see MPEP 2111.05. Also, altering the visual output is an aesthetic design change, requiring only ordinary skill in the art and thus, cannot patentably distinguish the claimed invention from the prior art In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Regarding claim 2, the modified Korten discloses an output device in accordance with claim 1 wherein the next position, which is fixed, is a closest next position within the output structure (Korten Fig. 3 shows chronological breaths adjacently).
Regarding claim 5, Korten discloses an output device in accordance with claim 1 (shown above).
The modified Korten does not disclose wherein the processing unit is further configured to determine a scaling factor, corresponding to the proportional relationship to calculate a breath-dependent scaling of the start deviation and end deviation determined and to output a correspondingly scaled start deviation and end deviation within the structured visualization.
Sinderby teaches determining a scaling factor, corresponding to the proportional relationship to calculate a breath-dependent scaling of the start deviation and end deviation determined and to output a correspondingly scaled start deviation and end deviation within the structured visualization (Fig. 15b, start and end deviations are scaled as a percentage deviation or relative error; par. 0110).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to further modify the visualization of Korten to determine a scaling factor, corresponding to the proportional relationship to calculate a breath-dependent scaling of the start deviation and end deviation determined and to output a correspondingly scaled start deviation and end deviation within the structured visualization as taught by Sinderby. This would provide the benefit of clearly displaying different types of asynchrony.
Regarding claim 6, the modified Korten discloses an output device in accordance with claim 1.
The modified Korten does not disclose wherein the structured visualization further comprises a display of a predefined tolerance range for the respective displayed start deviation and end deviation.
Korten Fig. 6 teaches a display of a predefined tolerance range for a deviation (Fig. 3, threshold lines 310) for the purpose of indicating missed breath triggering (par. 0034).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to further modify the visualization of Korten Fig. 3 with a display of a predefined tolerance range as taught by Korten Fig. 6 for the purpose of indicating missed breath triggering (par. 0034).
Regarding claim 7, the modified Korten discloses an output device in accordance with claim 6 (shown above).
The modified Korten does not disclose wherein the predefined tolerance range is based on person-specific data of the person connected to the ventilator.
Sinderby teaches a tolerance range based on person-specific data of the person connected to the ventilator for the purpose of adjusting the range based on the needs of a patient (par. 0076 ln 13-16).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the tolerance range of Korten to be based on person-specific data as taught by Sinderby for the purpose of adjusting to the needs of a patient.
Regarding claim 8, the modified Korten discloses an output device in accordance with claim 1, wherein the structured visualization further comprises a warning mark, which indicates, by a visual highlighting, that a predefined limit value for the start deviation and/or the end deviation is exceeded (Korten par. 0031 ln 14-19).
Regarding claim 9, Korten discloses a ventilator (Fig. 1, ventilation system 10; par. 0009) comprising an output device for outputting measured values (Fig. 1, display and control unit 18; par. 0018 ln 1-7), which are provided by a ventilator and pertain to a ventilation process of the ventilator connected to a person receiving medical care (par. 0018 ln 1-4), the output device comprising: an output unit (Fig. 1, display 60; par. 0020) configured to receive an output signal (par. 0021 ln 1-9; control signals direct the display 60) and to provide a visual output by means of an output display screen based on the output signal (par. 0021 ln 1-9); and a processing unit (Fig. 1, control unit 62 comprises a processing unit; par. 0021 ln 1-2) configured: to receive a first data set (Fig. 2, step 104 control unit receives signal based on breathing; par. 0023) and a second data set (Fig. 2, step 102 control unit receives signal based on ventilator firing; par. 0022) wherein the first data set indicates personal start times, at which a respective current breath of the person begins (Fig. 3, time patient begins to inhale T1; par. 0024 ln 16-17), and indicates personal end times, at which the respective current breath of the person ends by a starting to exhale (Fig. 3, time patient begins to exhale T1’; par. 0044 ln 27-30) and the second data set indicates device-side start times, at which the ventilator begins with a current inspiratory phase for assisting the respective current breath of the person (Fig. 3, time ventilator is fired T2; par. 0024 ln 14-16), and indicates device-side end times, at which the ventilator ends the current inspiratory phase (Fig. 3, time ventilator is stopped T2’; par. 0044 ln 25-27); to determine a start deviation (par. 0024, inhalation phase angle) and an end deviation (par. 0044 ln 7-30, exhalation phase angle) between the inspiratory phase of the ventilator and the current breath of the person (par. 0024 ln 1-10 and par. 0044 ln 10-14, phase angle is based on relationship between ventilator firing/cessation and patient inhalation/exhalation) based on the corresponding device-side start times and personal start times (par. 0024 ln 10-18, inhalation phase angle is calculated using time ventilator is fired T2 and time patient begins to inhale T1 ) and the corresponding device-side end times and personal end times (par. 0044 ln 14-30, exhalation phase angle is calculated using time ventilator is stopped T2’ and time patient begins to exhale T1’); to provide the output signal (par. 0021 ln 1-9; control signals). Korten also discloses a structured visualization (Fig. 3) in which a respective current breath of a person (Fig. 3, lower line 154) and the ventilator phase (Fig. 3, upper line 152) are displayed chronologically in real time at a constant predefined starting position over time (the lines 154 and 152 can be displayed, par. 0017 ln 14-15; see also Sinderby par. 0097 ln 8-12).
Korten Fig. 3 shows the ventilator phase and patient breath visualizations side-by-side, but does not explicitly disclose outputting the deviation between the ventilator phase and patient breath.
However, Fig. 6 of Korten teaches an output of this deviation between ventilator and patient as a structured visualization for the purpose of allowing a physician to quickly determine dis-synchrony (par. 0018 ln 24-27). The deviation may be graphically depicted depending upon breath age (par. 0037).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the side-by-side visualization of each chronological breath in Korten Fig. 3 with a visualization of the deviation for each chronological breath as taught by Korten for the benefit of quickly determining dis-synchrony on a breath-by-breath basis.
This modified visualization of Korten discloses the start deviations and the end deviations for a predefined plurality of breaths (a predefined plurality of breaths is shown in Fig. 3), a visual display for the respective start deviation and for the respective end deviation of the respective breaths (start and end deviation for each breath is visualized as taught by Fig. 6), and the structured visualization of the start deviation and of the end deviation of a last breath taken at a constant predefined starting position over time within the predefined output structure is outputted (Fig. 3 shows the last breath taken on the left side), and chronologically preceding structured visualizations of the start deviation and of the end deviation are shifted to a next position fixed within the output structure starting from the starting position, when the structured visualization of the start deviation and of the end deviation of a new last breath taken at the starting position is outputted (Fig. 3 shows chronologically preceding breath on the right side); wherein the predefined output structure is formed such that structured visualizations corresponding to chronologically consecutive breaths are arranged in mutually adjacent positions within the display area (Fig. 3 shows chronological breaths in adjacent positions), each structured visualization occupying a defined position relative to the others within the output structure (Fig. 3 shows visualizations of breaths occupying defined positions).
The modified Korten does not disclose wherein the structured visualizations include a graphical region having a common reference line along which the personal start times of the breaths are aligned, the reference line extending across the plurality of structured visualizations to provide a uniform positional basis for displaying breath-related information; and wherein the processing unit is configured to determine a proportional relationship between a time interval defined by the personal start time and the personal end time of each breath and a fixed predefined bar length of the structured visualization.
Sinderby teaches a structured visualization (Fig. 15b) wherein the structured visualizations include a graphical region having a common reference line along which the personal start times of the breaths are aligned (Fig. 15b, breath start time is arranged on the vertical dotted line), the reference line extending across the plurality of structured visualizations to provide a uniform positional basis for displaying breath-related information (Fig. 15b, vertical dotted line marking breath start time extends across structured visualizations); and wherein the processing unit is configured to determine a proportional relationship between a time interval defined by the personal start time and the personal end time of each breath and a fixed predefined bar length of the structured visualization (Fig. 15b, start time and end time of breath is fixed at the two vertical dotted lines in the center).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to further modify the visualization of Korten to include a graphical region having a common reference line along which the personal start times of the breaths are aligned and to determine a proportional relationship between a time interval defined by the personal start time and the personal end time of each breath and a fixed predefined bar length of the structured visualization as taught by Sinderby. This would provide the benefit of clearly displaying different types of asynchrony.
In addition, the details of the visual output are considered to be nonfunctional descriptive material or printed matter and do not alter how the device functions. There is no new relation of printed matter to physical structure as the modified visualization of Korten discloses a chronological visual output of start and end deviations at a predefined starting position. Therefore, this descriptive material does not carry patentable weight and does not distinguish the claimed invention from the prior art in terms of patentability, see MPEP 2111.05. Also, altering the visual output is an aesthetic design change, requiring only ordinary skill in the art and thus, cannot patentably distinguish the claimed invention from the prior art In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Regarding claim 10, the modified Korten discloses a ventilator in accordance with claim 9 wherein the next position, which is fixed, is a closest next position within the output structure (Korten Fig. 3 shows chronological breaths adjacently).
Regarding claim 13, Korten discloses a ventilator in accordance with claim 9 (shown above).
Korten does not disclose wherein the processing unit is further configured to determine a scaling factor, corresponding to the proportional relationship to calculate a breath-dependent scaling of the start deviation and end deviation determined and to output a correspondingly scaled start deviation and end deviation within the structured visualization.
Sinderby teaches determining a scaling factor, corresponding to the proportional relationship to calculate a breath-dependent scaling of the start deviation and end deviation determined and to output a correspondingly scaled start deviation and end deviation within the structured visualization (Fig. 15b, start and end deviations are scaled as a percentage deviation or relative error; par. 0110).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to further modify the visualization of Korten to determine a scaling factor, corresponding to the proportional relationship to calculate a breath-dependent scaling of the start deviation and end deviation determined and to output a correspondingly scaled start deviation and end deviation within the structured visualization as taught by Sinderby. This would provide the benefit of clearly displaying different types of asynchrony.
Regarding claim 14, the modified Korten discloses a ventilator in accordance with claim 9.
The modified Korten does not disclose wherein the structured visualization further comprises a display of a predefined tolerance range for the respective displayed start deviation and end deviation.
Korten Fig. 6 teaches a display of a predefined tolerance range for a deviation (Fig. 3, threshold lines 310) for the purpose of indicating missed breath triggering (par. 0034).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to further modify the visualization of Korten Fig. 3 with a display of a predefined tolerance range as taught by Korten Fig. 6 for the purpose of indicating missed breath triggering (par. 0034).
Regarding claim 15, the modified Korten discloses a ventilator in accordance with claim 14 (shown above).
The modified Korten does not disclose wherein the predefined tolerance range is based on person-specific data of the person connected to the ventilator.
Sinderby teaches a tolerance range based on person-specific data of the person connected to the ventilator for the purpose of adjusting the range based on the needs of a patient (par. 0076 ln 13-16).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the tolerance range of Korten to be based on person-specific data as taught by Sinderby for the purpose of adjusting to the needs of a patient.
Regarding claim 16, the modified Korten discloses a ventilator in accordance with claim 9 (shown above), wherein the structured visualization further comprises a warning mark, which indicates, by a visual highlighting, that a predefined limit value for the start deviation and/or the end deviation is exceeded (Korten par. 0031 ln 14-19).
Regarding claim 17, Korten discloses a process for outputting measured values (par. 0018 ln 1-7) which are provided by a ventilator and pertain to a ventilation process of the ventilator, which is connected to a person receiving medical care (par. 0018), the process comprising the steps of: providing an output device for outputting measured values (Fig. 1, display and control unit 18; par. 0018 ln 1-7), which are provided by the ventilator and pertain to the ventilation process of the ventilator connected to the person receiving medical care (par. 0018 ln 1-4), wherein the output device comprises an output unit (Fig. 1, display 60; par. 0020) configured to receive an output signal (par. 0021 ln 1-9; control signals direct the display 60) and to provide a visual output by means of an output display screen based on the output signal (par. 0021 ln 1-9) and a processing unit (Fig. 1, control unit 62 comprises a processing unit; par. 0021 ln 1-2); receiving a first data set (Fig. 2, step 104 control unit receives signal based on breathing; par. 0023) and a second data set (Fig. 2, step 102 control unit receives signal based on ventilator firing; par. 0022), wherein the first data set indicates personal start times, at which a respective current breath of the person begins (Fig. 3, time patient begins to inhale T1; par. 0024 ln 16-17), and indicates personal end times, at which the respective current breath of the person ends by a starting to exhale (Fig. 3, time patient begins to exhale T1’; par. 0044 ln 27-30) and the second data set indicates device-side start times, at which the ventilator begins with a current inspiratory phase for assisting the respective current breath of the person (Fig. 3, time ventilator is fired T2; par. 0024 ln 14-16), and indicates device-side end times, at which the ventilator ends the current inspiratory phase (Fig. 3, time ventilator is stopped T2’; par. 0044 ln 25-27); with the processing unit, determining a start deviation (par. 0024, inhalation phase angle) and an end deviation (par. 0044 ln 7-30, exhalation phase angle) between the inspiratory phase of the ventilator and the current breath of the person (par. 0024 ln 1-10 and par. 0044 ln 10-14, phase angle is based on relationship between ventilator firing/cessation and patient inhalation/exhalation) based on the corresponding device-side and personal start times (par. 0024 ln 10-18, inhalation phase angle is calculated using time ventilator is fired T2 and time patient begins to inhale T1) and on the corresponding device-side and personal end times (par. 0044 ln 14-30, exhalation phase angle is calculated using time ventilator is stopped T2’ and time patient begins to exhale T1’); with the processing unit, providing an output signal (par. 0021 ln 1-9; control signals). Korten also discloses a structured visualization (Fig. 3) in which a respective current breath of a person (Fig. 3, lower line 154) and the ventilator phase (Fig. 3, upper line 152) are displayed chronologically in real time at a constant predefined starting position over time (the lines 154 and 152 can be displayed, par. 0017 ln 14-15; see also Sinderby par. 0097 ln 8-12).
Korten Fig. 3 shows the ventilator phase and patient breath visualizations side-by-side, but does not explicitly disclose outputting the deviation between the ventilator phase and patient breath.
However, Fig. 6 of Korten teaches an output of this deviation between ventilator and patient as a structured visualization for the purpose of allowing a physician to quickly determine dis-synchrony (par. 0018 ln 24-27). The deviation may be graphically depicted depending upon breath age (par. 0037).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the side-by-side visualization of each chronological breath in Korten Fig. 3 with a visualization of the deviations for each chronological breath as taught by Korten for the benefit of quickly determining dis-synchrony on a breath-by-breath basis.
This modified visualization of Korten discloses the start deviations and the end deviations for a predefined plurality of breaths (a predefined plurality of breaths is shown in Fig. 3), a visual display for the respective start deviation and for the respective end deviation of the respective breaths (start and end deviation for each breath is visualized as taught by Fig. 6), and the structured visualization of the start deviation and of the end deviation of a last breath taken at a constant predefined starting position over time within the predefined output structure is outputted (Fig. 3 shows the last breath taken on the left side), and chronologically preceding structured visualizations of the start deviation and of the end deviation are shifted to a next position fixed within the output structure starting from the starting position, when the structured visualization of the start deviation and of the end deviation of a new last breath taken at the starting position is outputted (Fig. 3 shows chronologically preceding breath on the right side); wherein the predefined output structure is formed such that structured visualizations corresponding to chronologically consecutive breaths are arranged in mutually adjacent positions within the display area (Fig. 3 shows chronological breaths in adjacent positions), each structured visualization occupying a defined position relative to the others within the output structure (Fig. 3 shows visualizations of breaths occupying defined positions).
The modified Korten does not disclose wherein the structured visualizations include a graphical region having a common reference line along which the personal start times of the breaths are aligned, the reference line extending across the plurality of structured visualizations to provide a uniform positional basis for displaying breath-related information; and wherein the processing unit is configured to determine a proportional relationship between a time interval defined by the personal start time and the personal end time of each breath and a fixed predefined bar length of the structured visualization.
Sinderby teaches a structured visualization (Fig. 15b) wherein the structured visualizations include a graphical region having a common reference line along which the personal start times of the breaths are aligned (Fig. 15b, breath start time is arranged on the vertical dotted line), the reference line extending across the plurality of structured visualizations to provide a uniform positional basis for displaying breath-related information (Fig. 15b, vertical dotted line marking breath start time extends across structured visualizations); and wherein the processing unit is configured to determine a proportional relationship between a time interval defined by the personal start time and the personal end time of each breath and a fixed predefined bar length of the structured visualization (Fig. 15b, start time and end time of breath is fixed at the two vertical dotted lines in the center).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to further modify the visualization of Korten to include a graphical region having a common reference line along which the personal start times of the breaths are aligned and to determine a proportional relationship between a time interval defined by the personal start time and the personal end time of each breath and a fixed predefined bar length of the structured visualization as taught by Sinderby. This would provide the benefit of clearly displaying different types of asynchrony.
In addition, the details of the visual output are considered to be nonfunctional descriptive material or printed matter and do not alter how the device functions. There is no new relation of printed matter to physical structure as the modified visualization of Korten discloses a chronological visual output of start and end deviations at a predefined starting position. Therefore, this descriptive material does not carry patentable weight and does not distinguish the claimed invention from the prior art in terms of patentability, see MPEP 2111.05. Also, altering the visual output is an aesthetic design change, requiring only ordinary skill in the art and thus, cannot patentably distinguish the claimed invention from the prior art In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Regarding claim 18, the modified Korten discloses a process in accordance with claim 17 (shown above).
Korten does not disclose further comprising the steps of: with the processing unit, using a scaling factor corresponding to the proportional relationship to calculate a breath-dependent scaling of the determined start deviation and end deviation; with the processing unit, outputting a correspondingly scaled start deviation and end deviation within the structured visualization based on the breath-dependent scaling.
Sinderby teaches using a scaling factor corresponding to the proportional relationship to calculate a breath-dependent scaling of the determined start deviation and end deviation and outputting a correspondingly scaled start deviation and end deviation within the structured visualization based on the breath-dependent scaling (Fig. 15b, start and end deviations are scaled as a percentage deviation or relative error; par. 0110).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to further modify the visualization of Korten to use a scaling factor corresponding to the proportional relationship to calculate a breath-dependent scaling of the determined start deviation and end deviation and output a correspondingly scaled start deviation and end deviation within the structured visualization based on the breath-dependent scaling as taught by Sinderby. This would provide the benefit of clearly displaying different types of asynchrony.
Regarding claim 21, the modified Korten discloses an output device in accordance with claim 5 (shown above), wherein the processing unit is configured to generate the structured visualizations using the scaling factor such that all graphical representations of breaths have equal spatial length between respective start and end positions within the predefined output structure (Sinderby Fig. 15b shows start time and end time of breath is fixed at the two vertical dotted lines in the center).
Regarding claim 22, the modified Korten discloses the output device in accordance with claim 1 (shown above), wherein the predefined output structure and the structured visualization are further configured to visually detect asynchrony by displaying a time curve or time marks for displaying a duration of the respective breath (Korten Fig. 3 has time marks T1 and T1‘ to mark a duration of breath) and a waveform display (Korten Fig. 3 shows a waveform display), a display of an asynchrony feature (Korten Fig. 6 displays asynchrony), and/or a dynamic display identified by motion (asynchrony beyond a threshold can be indicated by flashing; Korten par. 0031 ln 14-19).
Regarding claim 23, the modified Korten discloses the ventilator in accordance with claim 13 (shown above), wherein the processing unit is configured to generate the structured visualizations using the scaling factor such that all graphical representations of breaths have equal spatial length between respective start and end positions within the predefined output structure (Sinderby Fig. 15b shows start time and end time of breath is fixed at the two vertical dotted lines in the center).
Regarding claim 24, the modified Korten discloses the ventilator in accordance with claim 9 (shown above), wherein the predefined output structure and the structured visualization are further configured to visually detect asynchrony by displaying a time curve or time marks for displaying a duration of the respective breath (Korten Fig. 3 has time marks T1 and T1‘ to mark a duration of breath), and a waveform display (Korten Fig. 3 shows a waveform display), a display of an asynchrony feature (Korten Fig. 6 displays asynchrony), and/or a dynamic display identified by motion (asynchrony beyond a threshold can be indicated by flashing; Korten par. 0031 ln 14-19).
Regarding claim 25, the modified Korten discloses the process in accordance with claim 18 (shown above), wherein the processing unit is configured to generate the structured visualizations using the scaling factor such that all graphical representations of breaths have equal spatial length between respective start and end positions within the predefined output structure (Sinderby Fig. 15b shows start time and end time of breath is fixed at the two vertical dotted lines in the center).
Regarding claim 26, the modified Korten discloses the process in accordance with claim 17 (shown above), wherein the predefined output structure and the structured visualization are further configured to visually detect asynchrony by displaying a time curve or time marks for displaying a duration of the respective breath (Korten Fig. 3 has time marks T1 and T1‘ to mark a duration of breath), and a waveform display (Korten Fig. 3 shows a waveform display), a display of an asynchrony feature (Korten Fig. 6 displays asynchrony), and/or a dynamic display identified by motion (asynchrony beyond a threshold can be indicated by flashing; Korten par. 0031 ln 14-19).
Response to Arguments
Applicant's arguments filed 10/24/2025 have been fully considered but they are not persuasive.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, a waveform display such as in Korten Fig. 3 is well known in the art as displaying a shifting real-time visualization of breaths. Korten Fig. 6 teaches the concept of displaying asynchrony for the benefit of a clinician efficiently identifying asynchrony. Sinderby Fig. 15b teaches a visualization of synchrony, dyssynchrony, and asynchrony between onset and end of inspiration and the ventilator cycle (Sinderby par. 0109-0110), wherein the breath length is fixed to a predefined length with a common starting line and the deviations proportionally scaled in percentages. Looking at Sinderby Fig. 15b, one of ordinary skill in the art would recognize that these visualization features give a clear depiction of different types of asynchrony. Given this, it would have been obvious to one of ordinary skill in the art to modify Korten to create a shifting real-time visualization of breaths with a display of asynchrony that is scaled to a predetermined length with a common starting line.
In response to applicant's argument that there is no reasonable expectation of success that the proposed combination would yield the claimed visualization aspects, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Regarding Applicant’s arguments in regards to the specific visualization of these features, Examiner notes that “Patentable novelty cannot be principally predicated on mere printed matter and arrangements thereof, but must reside basically in physical structure.” In re Mongomery, 102 USPQ 248 (CCPA 1954). In addition, Examiner takes the position that altering the visual output is an aesthetic design change, requiring only ordinary skill in the art and thus, cannot patentably distinguish the claimed invention from the prior art In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947). To patentably distinguish from the prior art, the claims must contain limitations regarding display of information that has not previously been displayed in the prior art or pertaining to physical structure outside of the visual display.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Conclusion
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/K.R./Examiner, Art Unit 3785
/BRANDY S LEE/Supervisory Patent Examiner, Art Unit 3785