Appeal 2007-1820
Application 10/659,408
measurements of the concentration of carbon dioxide from the patient with
the characteristic curves. When the correlation exceeds a preselected
threshold value, processor 82 may determine that the data support a
diagnosis of obstructive lung disease or restrictive lung disease” (Hampton,
at [0046]).
Analysis
The Examiner states that Hampton teaches using exhaled carbon
dioxide to monitor the effectiveness and guide treatment of respiratory
disorders (Hampton, at Abstract and [0015]) (Answer 8-9). The Examiner
contends that “[i]t would have been apparent to a skilled artisan that
Hampton’s teachings of comparing the concentration of carbon dioxide in
breath to a characteristic curve could be modified to compare a patient’s
exhale nitric oxide measurements to characteristic curves (i.e. baselines) to
evaluate treatment efficacy” (Answer 10).
The Examiner has the burden of establishing a reason to have
modified the prior art to arrived at the claimed invention. In our opinion, the
Examiner has not set forth sufficient evidence to establish prima facie
obviousness of the claimed subject matter. In particular, the Examiner has
not provided an adequate reason that would have prompted one skilled in the
art to have modified Hampton in view of Moilanen to achieve the claimed
invention.
The baseline described by Hampton is not “representing said
[respiratory] condition being under control in said subject” as recited in
claim 18. Instead, Hampton’s “baseline” – if it could be even called that – is
a standard curve of a single breath whose shape is diagnostic of either
obstructive lung disease or restrictive lung disease (FF 14, 16). A patient
12
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: September 9, 2013