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 .
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 33-34, 36-39 and 44-45 are rejected under 35 U.S.C. 103 as being unpatentable over Soukos (US 2017/0326383) in view of Ball (US 2018/0093107).
Regarding claim 33, Soukos (US 2017/0326383) discloses –
A method for inhibiting growth and reducing number of contaminating and/or pathogenic agent (abstract discloses antibacterial action on mouth tissue), the method comprising the step of:
exposing the at least one contaminating and/or pathogenic agent with a light source device comprising a light emitting element consisting of emitting a blue light having a wavelength ranging from 425 nm to 500 nm (Figs. 1-2 blue light sources 12; Paragraphs [0085], [0088] disclose a structure for emitting only blue light at 455 nm, anticipating the claimed range),
the light source device being configured to provide an effective fluence to said contaminating and/or pathogenic agent greater than 11 J/cm2 (Paragraph [0093] discloses 0.1-1000 J/cm2, overlapping with the claimed range of greater than 11),
and a power density greater than 20mW/cm2 (Paragraph [0093] discloses 25 mW/cm2 anticipating the range of greater than 20).
Soukous discloses an effective fluence between 0.1-1000 J/cm2, overlapping with the claimed range of “greater than 11 J/cm2”. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the method disclosed by Soukos such that the device emits in the range of 0.1-100 J/cm2, for example about 40 J/cm2, to arrive at the claimed invention. One would have been motivated to do so as the claimed range overlaps with the numerical range disclosed in the art, and in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Soukos appears to be silent with regards to the limitation that the method is applied to specifically a human wound, skin, or mucosa at the claimed frequency.
Ball (US 2018/0093107) discloses a method for disinfecting living tissue (title, abstract) including the application of pulsed and therefore sequentially emitted light within a similar range disclosed by Soukos, the range being between 405-470 nm (pars. 10 and 36), the frequency of pulsation being between 0.0001 and 100 Hz (par. 36 discloses .05-1000 Hz, overlapping with the claimed range) and the ratio between emission and disruption being between 45 and 80 (par. 36 discloses a duty cycle which is a ratio between a pulse width and a period, as being 25, 50, or 75% - which according to lines 8-16 on page 20 of the specification as filed corresponds to a ratio as claimed). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the method disclosed by Soukos such that the light is emitted sequentially with the claimed frequency and duty cycle of 0.0001 to 100 Hz and 45 – 80 respectively as taught by Ball to arrive at the claimed invention. One would have been motivated to do so to facilitate short-term exposures of blue light to achieve a desired dosage for treatment while limiting a total exposure as desired by Soukos (pars. 87, 95), and to successfully apply therapeutic and disinfecting visible light according to known-effective parameters to arrive at an improved light-treatment device. The combination of familiar prior art elements, including pulsed light emission techniques for pathogen inactivation and existing pathogen inactivation techniques with similar light characteristics, according to known means to arrive at results that are nothing more than predictable is prima facie obvious. MPEP 2143(I)(A).
Furthermore, regarding the frequency and ratio limitations directed towards numerical ranges: The claimed ranges overlap with the numerical range disclosed in the art, and in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 34, modified Soukos further teaches the emission wavelength of the light emitting element ranges from 440 to 490 nm (Paragraph [0088] discloses 455 nm emission).
Regarding claim 36, modified Soukos further discloses the light emitting element is configured to provide a power density ranging from 23 to 400 mW/cm2 (Paragraph [0093] discloses 25 mW/cm2 anticipating the range of 23-400).
Regarding claim 37, modified Soukos further teaches he ratio between the effective fluence and the power density is greater than 1.7 (Paragraph [0093] discloses 1000 J/cm2 and 25 mW/cm2, where 1000/25 is at least 1.7).
Regarding claims 38, 39, and 44 modified Soukos further teaches the contaminating and/or pathogenic agent is a microorganism that is bacteria (Paragraph [0091]).
Regarding claim 45, modified Soukous further teaches an effective fluence to said contaminating and/or pathogenic agent greater than 83 J/cm2 (Paragraph [0093] discloses 0.1-1000 J/cm2, overlapping with the claimed range of greater than 83).
Response to Arguments
Applicant's arguments filed 11/12/25 have been fully considered but they are not persuasive.
Applicant argues that Soukos and Ball fail to teach the limitation a lighting element consisting of emitting a blue light consisting of a wavelength from 425-500 nm. This argument is not commensurate with the scope of the claim and is not persuasive. The claim requires a “light source device comprising a light emitting element” (emphasis added), and therefore the claim allows for other features, for example other light source devices that emit at other ranges that are outside the claimed range encompassed by the transitional phrase “consisting of”. Ball does teach a light source device comprising a light emitting element (figs. 1-2 show one or more blue light sources 12) consisting of a emitting a blue light consisting of a wavelength ranging from 425 nm to 500 nm, because the blue light sources 12 do not emit the UVA light as argued by Applicant on page 8. The blue light sources only emit the light that consists of the claimed range. Therefore, Applicant’s arguments related to the combination being essential and Ball not being applicable to the claimed invention are not persuasive because Applicant is arguing limitations that are not required by the claim.
Applicant’s arguments directed towards Ball failing to teach the energy level of the blue light are not persuasive because the reference is not relied upon for teaching that limitation, Soukos is. 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).
The dependent claims remain rejected as Applicant does not present any arguments with respect to the remaining claims.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/BRENDAN A HENSEL/Examiner, Art Unit 1758
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