Appeal No. 2005-2101 5
Application No. 09/922,504
By contrast, the expiratory valve (14) of appellant’s invention operates under control of
a control unit (16) to regulate the outflow of breathing gas from the respirator (2) and along
with control of the inspiratory unit (8) to generate the pressure and flows to which the
patient is to be subjected, particularly the specific form of “recruitment phase” set forth in
claim 1 on appeal. As appellant has noted in the brief, the corresponding expiratory valve
of Bird (Fig. 1) would appear to be the exhalation valve assembly (228) shown as part of
the breathing circuit (16) and which is likewise not under control of a “control unit” like that
set forth in the claims on appeal.
As appellant has argued in the brief and reply brief, there is no showing in Figure 1 of
Bird, or otherwise discussed in that patent, of a “control unit” associated with the expiratory
metering valve (143) to permit active control of the metering valve and of the inspiratory
unit of the respirator therein so as to regulate a flow of breathing gas by generating a
“recruitment phase,” as set forth in claim 1 on appeal. Although the metering valve (143) is
described at column 15, line 49, as being adjustable, there is no disclosure in Bird of
exactly when or how the valve is adjusted, and clearly no disclosure of a “control unit” that
controls the valve (143) in a manner necessary to achieve the result defined in the claims
on appeal. The examiner’s attempt in the answer (page 3) to point to the broad disclosure
of Bird at column 2, lines 45-48; column 3, lines 1-4; and column 4, lines 8-10 as support
for such a “control unit” is not well founded, since those portions of the patent specification
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