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 .
Response to Arguments
Applicant’s arguments, see “Applicant Arguments/Remarks”, filed 05/01/2024, with respect to the objections to the drawings have been fully considered and are persuasive. The objections to the drawings have been withdrawn. Based on the errors in the previous action, i.e. the action referring to the wrong “Applicant Argument/Remarks” document, this action is made Non-Final.
Applicant’s arguments with respect to the prior art have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Further consideration has required a new objection to the claims and a rejection under U.S.C. 112(b).
Claim Objections
Claims 16 and 18 are objected to because of the following informalities:
i. Regarding Claim 16, the first usage of “LED” should have the abbreviation spelled out/identified, i.e. “light emitting diode (LED)”.
ii. Regarding Claim 18, “and of a at least one” should read “and of an at least one”.
Appropriate correction is required.
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 20 and 21 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.
Regarding Claim 20, “the head-side” lack antecedent basis. There is insufficient antecedent basis for this limitation in the claim. Dependent claim 21 is indefinite for the same reasons set forth for claim 20.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Regarding the phrase “means for fixedly holding”, the phrase meets all three prongs of the aforementioned three prong test. The Examiner will be moving forward with examination interpreting that these means are backing plates or other fixtures to hold LED arrays (see the first paragraph of page 33 of the Applicant’s Specification).
Regarding the phrase “means capable of ventilating, heating and/or cooling device”, the phrase meets all three prongs of the aforementioned three prong test. The Examiner will be moving forward with examination interpreting that “means for ventilating” is taken at its BRI, as there are no other examples given in the Specification. For “means for heating/cooling”, the Examiner is interpreting those means as the examples shown in the first paragraph of page 30.
Regarding the phrase “means providing said at least first and second parts with electrical power”, the phrase meets all three prongs of the aforementioned three prong test. The Examiner will be moving forward with examination interpreting that “means providing said at least first and second parts with electrical power” is taken at its BRI, as there are no other examples given in the Specification
Regarding the phrase “means for the operation of the device, including a processing unit”, the phrase meets the first two prongs of the aforementioned three prong test, however the addition of the structure of the processing unit causes the phrase to fail the third prong. Therefore, the phrase does not require interpretation under 112(f).
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 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 16-18, 20-22, and 26-27 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application 20040088028 awarded to Cameron et al, hereinafter Cameron, in view of EP2853291 awarded to Gerstenmeier, hereinafter Gerstenmeier, further in view of EP3202361 awarded to Beerwerth et al, hereinafter Beerwerth.
Regarding Claims 16 and 22, Cameron teaches a device for an application of directed actinic radiation to a subject (Para. 0001, “This invention relates to ultraviolet tanning. Examples of such devices include a tanning lamp, a tanning bed, tanning canopy, tanning booth, or face tanner. In particular, the invention relates to an improved lamp for tanning systems and an arrangement of lamps that is suitable for illuminating a person's shoulders”), said device comprising: an exposition tunnel being capable of surrounding said subject to be exposed to said actinic radiation (Fig. 3, interior of tanning bed 10), said exposition tunnel being formed of one semi-cylinder barrel-shape first surface (Fig. 3, canopy 14) made of a material substantially permeable to said actinic radiation to be applied to the subject (Para. 0026, “Within each of the base unit 12 and canopy 14 are typically a plurality of parallel, elongate, tubular bulbs or lamps 20. Bulbs 20 are typically fluorescent ultraviolet producing bulbs”), and of at least one second surface (support surface 18) made of said material substantially permeable to said actinic radiation to be applied to the subject (acrylic shield 19, Para. 0026, “Within each of the base unit 12 and canopy 14 are typically a plurality of parallel, elongate, tubular bulbs or lamps 20. Bulbs 20 are typically fluorescent ultraviolet producing bulbs. Base unit 12 defines a support or bed surface 18 for a person to lie during the application process. The person to be tanned typically lies with the person's back to the support surface and facing the canopy. In many instances, support surface 18 includes an acrylic shield 19 which is transparent to UV radiation, and which separates the user from bulbs 20”), said at least one second surface (lamps 30, Para. 0030, “In this embodiment, ultraviolet lamps 30 are arranged along the upper edge 24 of base unit 12 such that the sides of the lamps 30 face the tops of the two shoulders of the person to be tanned. Preferably, lamps 30 include a first series 32 and a second series 34 mounted in shoulder areas oriented to be over the shoulders of the person to be tanned”) being capable of complementing the first surface in forming said exposition tunnel (should zones, Para. 0029, “Shoulder zones are preferably defined within the gap between base unit 12 and canopy 14. The illumination from the shoulder zones with a person is illustrated in a preferred arrangement shown FIG. 3”), the tunnel defining an exposition tunnel main axis, which extends along the length of the exposition tunnel (Fig. 3, axis along which the body lays); the surfaces of said exposition tunnel separating an inner space where said subject is exposed to said actinic radiation (Fig. 3, Para. 0001) from outer spaces where a plurality of radiation sources capable of emitting actinic radiation through said surfaces are mounted, said outer spaces being housed in at least first and second parts of a chassis of the device and comprising means for fixedly holding, and electrically and electronically operating, said plurality of radiation sources (chassis spaces containing bulbs 20, Para. 0026, “Para. 0026, “Within each of the base unit 12 and canopy 14 are typically a plurality of parallel, elongate, tubular bulbs or lamps 20. Bulbs 20 are typically fluorescent ultraviolet producing bulbs. Base unit 12 defines a support or bed surface 18 for a person to lie during the application process. The person to be tanned typically lies with the person's back to the support surface and facing the canopy”); means providing said at least first and second parts of the chassis with electric power (Para. 0034, “The quad lamp in FIG. 6 includes a base 35 attachable to an electric socket”); said first and second parts of the chassis of the device being configured to complement each other in forming the outer shape of the device by being configured to hingedly move away from, and towards, each other (Para. 0027, “Often the upper unit or canopy 14 is pivotally mounted to base unit 12 to allow the user ease of access to enter and lie upon support surface 18. To place the system in an operating position, the canopy is closed to a selected distance defining a gap or volume between the base unit 12 and canopy 14”); said device further comprising at least one further outer space separated from said inner space (space containing head lamps 25) and located at least one longitudinal end of the exposition tunnel transverse to the exposition tunnel main axis and transverse to the outer spaces (Fig. 3), said at least one further outer space housing a plurality of additional radiation sources configured to emit actinic radiation towards the subject in a direction forming an acute angle with the exposition tunnel main axis (Fig. 3, Para. 0027, “As an optional feature, specialized facial tanning units 25 are placed in the canopy 14 in an area adjacent the person's face”), wherein the at least one further outer space is arranged perpendicular to the exposition tunnel main axis (when the bed is closed, the straight ends of curved panel 25 will be perpendicular to the axis). Cameron does not teach wherein the device is controlled by a processing unit, wherein the light sources are LEDs/LED arrays, or the at least one LED array is arranged on a thermal interface plate, wherein the thermal interface plate is connected to a first heat pipe and a second heat pipe, wherein the first the first heat pipe and a second heat pipe are connected to heat dissipation unit distant from the LED array, said device further comprising at least one narrow space light appliance cooling system for said at least one of the radiation sources and the additional radiation sources..
However, in the art of tanning beds (abstract, Para. 0012), Gerstenmeier teaches the usage of LEDs in a tanning bed system (Para. 0027) with a cooling system (Para. 0012) operated by a processing unit (Para. 0012, “and means for the operation of the device, including a processing unit”). Gerstenmeier further teaches that by controlling radiant flux of actinic radiation-emitting light source by changing the light source’s electronic parameters in accordance with the geometric position of actinic radiation light source, relative to its distance from the inner space, thereby achieving an even radiance at the subject (Para. 0012).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Cameron by Gerstenmeier, i.e. by using LEDs and associated control system in Gerstenmeier instead of the Cameron’s lamps, for the predictable purpose of simply substituting one known actinic radiation source for another and achieving an even radiance at the subject.
Further, in the art of LED light cooling, Beerwerth teaches “Excess heat generated by the LED dies while emitting light pulses can be dissipated away from the substrate by a passive or active cooling arrangement, e.g. heat pipe” (Para. 0031) for the purposes of decreasing excess heat so that LEDs can be operated at their best efficiency (Para. 0031).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Cameron modified by Gerstenmeier further by Beerwerth, i.e. by specifying that the cooling means of Gerstenmeier were a heat pipe cooling system as seen in Beerwerth, for decreasing excess heat so that LEDs can be operated at their best efficiency .
Regarding Claim 17, Cameron modified by Gerstenmeier and Beerwerth makes obvious the device of Claim 16. Cameron further teaches the device being configured to irradiate a human being to be exposed to said actinic radiation (Para. 0001).
Regarding Claim 18, Cameron modified by Gerstenmeier and Beerwerth makes obvious the device of Claim 16. Cameron further teaches wherein said exposition tunnel has a longitudinal axis arranged horizontally (Fig. 3, axis defined by the horizontal body), and wherein said exposition tunnel is formed of said one semi-cylinder barrel-shape surface (canopy 14) and of a at least one substantially flat surface (bed 12).
Regarding Claim 20, Cameron modified by Gerstenmeier and Beerwerth makes obvious the device of Claim 16. Cameron further teaches wherein said at least one further outer space is one further outer space disposed at the head-side longitudinal end of the exposition tunnel (Cameron’s units 25, Fig. 3, Para. 0027, “As an optional feature, specialized facial tanning units 25 are placed in the canopy 14 in an area adjacent the person's face”).
Regarding Claim 21, Cameron modified by Gerstenmeier and Beerwerth makes obvious the device of Claim 20, wherein said at least one further outer space houses a plurality of LEDs capable of emitting radiation towards the subject’s scalp and shoulders (Gerstenmeier’s Fig. 3, Para. 0027, as modified the light provided by units 25 are LEDs).
Regarding Claim 26, Cameron modified by Gerstenmeier and Beerwerth makes obvious the device of Claim 16. Cameron further teaches wherein the lamps emit at UV wavelengths (Para. 0026), but does not specify whether the range is UV-A, UV-B, or IR.
However, Gerstenmeier teaches a wavelength range selected from a UV-B wavelength range from 280-315 nm (Para. 0025, “actinic radiation having a wavelength λ in the range of from 280 to 315 nm (UV-B radiation)”), an UV-A wavelength from 315 to 400 nm (Para. 0025, “actinic radiation having a wavelength λ in the range of from 315 to 400 nm”), and an IR wavelength range from 400-850 nm (Para. 0025, “or actinic radiation having wavelengths λ in the visible and near IR (infrared) range (400 or, even better > 550 nm, to 850 nm”). Gerstenmeier further teaches that UV-B and/or UV-A can be used for tanning for the purpose of cosmetic and/or medical fields. IR is capable of activating the biosynthesis of beneficial compounds for the skin nourishing rejuvenation, as for example, elastin, keratin, and hyaluronic acid.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Cameron, i.e. by operating at UV-A, UV-B, or IR ranges in order to provide appropriate actinic radiation for the purpose of cosmetic and/or medical fields.
Regarding Claim 27, Cameron teaches the device of Claim 16. Cameron does not teach wherein the acute angle of the directed radiation with the device’s longitudinal axis is within a range of from 8-50 degrees.
The specification discloses the appropriate ranges that apply to the claimed invention on page(s) 45 as 15-40 degrees. However, the specification does not disclose that the specifically claimed range(s) of 15-40 degrees is for any particular purpose or to solve any stated problem that distinguishes it from the other ranges disclosed. The specification therefore lacks disclosure of the criticality required by the Courts in providing patentability to the claimed range(s).
In addition to a lack of disclosed criticality in the specification, an obviousness rejection based upon optimization must rely on prior art that discloses the optimized parameter is a result-effective variable. See MPEP 2144.05.
Since Cameron teaches the usage of curved array 25 (Fig. 3), the prior art therefore provides teaching that using a curved light array is a variable that achieves a recognized result, and satisfies the above requirement of a result-effective variable in order to set forth an obviousness rejection based on optimization.
Because Applicants fail to disclose that the claimed range(s) of 15-45 degrees provides a criticality to the invention that separates it from the other ranges in the specification, and the prior art discloses the exact wavelength range and treatment aspects, absent unexpected results, it would therefore have been obvious for one of ordinary skill to discover the optimum workable range(s) of the angle of degree of incidence of the radiation sources by normal optimization procedures known in the arts.
Claims 24-25 and 36-37 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application 20040088028 awarded to Cameron et al, hereinafter Cameron, in view of EP2853291 awarded to Gerstenmeier, hereinafter Gerstenmeier, further in view of EP3202361 awarded to Beerwerth et al, hereinafter Beerwerth, further in view of U.S. Patent Publication 20120238939 awarded to Gerstenmeier, hereinafter Gerstenmeier ‘939.
Regarding Claims 24-25 and 36, Cameron modified by Gerstenmeier and Beerwerth makes obvious the device of Claim 16, using reflectors on the light sources (Cameron Para. 0033). Cameron does not teach wherein the radiation sources comprise at least one LED and at least one of a reflector and a plurality of reflectors downstream the at least one LED, and wherein each reflector collimates the actinic radiation emitted by the at least one LED, further comprising a fluorescent covering comprising at least one fluorescent area covering a front edge of at least one reflector wherein the fluorescent covering is provided with, mixed with, alloyed with or coated with a dye, and the dye being excitable by the light emitted by the at least one LED to emit fluorescent light of the visible wavelength range.
However, in the art of actinic radiation devices, Gerstenmeier ‘939 teaches the usage of reflectors on light sources used for actinic radiation (Para. 0065-0066) and the usage of fluorescent phosphors applied as layers to control the output radiation (Para. 0064), the usage of which Gerstenmeier ‘939 describes as “per se well known to a skilled person and may be selected in accordance with the requirements, e. g. the wavelength or wavelength range desired to be emitted by the respective source” (Para. 0064).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Cameron by Gerstenmeier ‘939, i.e. by using reflectors with fluorescent phosphor to direct light, as Gerstenmeier ‘939 admits these are well known to a skilled person and that it is up to the particular skilled person to determine the usage depending on wavelength desired.
Regarding Claim 37, Cameron teaches the device of Claim 16. Cameron does not teach wherein the LEDs are arranged on a thermal interface and wherein the thermal interface comprises two heat pipes connecting the thermal interface with a heat exchanger, wherein at least one of the radiation sources and the additional radiation sources comprise a plurality of LEDs arranged in a LED array and a plurality of reflectors arranged in a reflector array, wherein each reflector of the plurality of reflectors is assigned to one LED of the plurality of LEDs ,wherein the plurality of LEDs is configured to emit said actinic radiation, and wherein the reflector collimates the actinic radiation emitted by the LED toward said subject.
However, in the art of LED light cooling, Beerwerth teaches “Excess heat generated by the LED dies while emitting light pulses can be dissipated away from the substrate by a passive or active cooling arrangement, e.g. heat pipe” (Para. 0031) for the purposes of decreasing excess heat so that LEDs can be operated at their best efficiency (Para. 0031).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gerstenmeier by Beerwerth, i.e. by specifying that the cooling means of Gerstenmeier were a heat pipe cooling system as seen in Beerwerth, for the motivations mentioned above from Para. 0031 of Beerwerth, and further that it is well within the skill of an artisan to pick a particular known cooling method for a given device, especially when no criticality to the choice is listed in the Applicant’s Specification.
Further, in the art of actinic radiation devices, Gerstenmeier ‘939 teaches the usage of reflectors on light sources used for actinic radiation (Para. 0065-0066) and the usage of fluorescent phosphors applied as layers to control the output radiation (Para. 0064), the usage of which Gerstenmeier ‘939 describes as “per se well known to a skilled person and may be selected in accordance with the requirements, e. g. the wavelength or wavelength range desired to be emitted by the respective source” (Para. 0064).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Cameron by Gerstenmeier ‘939, i.e. by using reflectors with fluorescent phosphor to direct light, as Gerstenmeier ‘939 admits these are well known to a skilled person and that it is up to the particular skilled person to determine the usage depending on wavelength desired.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jess Mullins whose telephone number is (571)-272-8977. The examiner can normally be reached between the hours of 9:00 a.m. to 5:00 p.m. PST M-F.
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/JLM/
Examiner, Art Unit 3792
/UNSU JUNG/Supervisory Patent Examiner, Art Unit 3792