Appeal 2007-1820
Application 10/659,408
having breathing difficulty is instructed to breath into a capnograph which
generates a curve plotting the concentration of carbon dioxide over the
course of the breath (FF 12, 14, and 15). The curve is called a capnogram
(FF 13). The patient’s capnogram is compared to the standard curve, which
may be stored in the memory of the device, to determine whether the patient
is suffering from obstructive or restrictive lung disease (FF 15, 16). The
Examiner does not explain why it would be apparent from Hampton’s
teaching of comparing a one-time breath to a standard curve, to use a
baseline from the same patient in which the condition is “under control” as
required by claim 18. Because Hampton’s device is for diagnosis, including
during medical emergencies, we see no reason, or even opportunity, to use
the patient’s baseline normal (“under control”) for the comparison.
Hampton explains that “[e]very day, patients with difficulty breathing seek
medical help. In such cases, the patients may complain of shortness of
breath, but may have no idea as to the cause of the condition” (Hampton, at
[0002]). Thus, because the patient’s need for the device arises during an
unexpected medical emergency (FF 15), there would have been no reason to
have obtained the patient’s normal capnograph baseline in advance.
In addition to this, Hampton, unlike Kharitonov as discussed above,
does not describe repeated measurements of carbon dioxide over time and
thus does not suggest “measurement frequency of at last three times per
week over a period of seven days” as recited in claim 18. The Examiner
does not explain how the claimed frequency measurement is suggested by
the combination of Hampton in view of Moilanen, and thus has not met the
burden of establishing the obviousness of this claim limitation.
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