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 filed 12/08/2025 have been fully considered but they are not persuasive.
The applicant has argued on Pages 1-4, that the claimed feature “wherein a -geometric area of said central electrode is identical to a total geometric area of said side electrodes” is a structure that is clearly not found in the prior art and that a “mere change in the size of a component” would not allow the skilled artisan to arrive at this claimed feature from any of the cited art. Further the applicant argues that Palero teaches away from the claimed invention. The examiner respectfully disagrees.
While the applicant is claiming a geometric area of the central electrode being identical to the geometric area of said side electrodes is not a mere changes in size, the examiner disagrees as changing the size of the electrodes directly results in a change in the geometric area of the electrodes. Further the examiner provided evidence that changing the size of the electrodes which directly changes the geometric area of the electrodes would be obvious as described by Palero which describes changing the size of the electrodes concentrates the thermal lesion at the skin regions immediately below the active electrodes while no or no significant thermal lesion formation of skin regions below the return electrode is caused and as modifying the size of the electrode results in a thermal lesion below the inner electrode that is sufficiently deep for effective skin rejuvenation and sufficiently narrow to enable fast recovery of the skin (Palero, Paragraphs [0018] and [0048]). The examiner was not relying upon the teachings of Palero to teach the changes in size, but rather that it would be obvious to one having ordinary skill in the art to change the geometric area or size of the electrodes to effect the depth and size of thermal lesion below the skin. The word “size” encompasses a broad range of dimensions including area and therefore the examiner does not find the applicant’s arguments about the use of the term “geometric area” to be persuasive.
Further the applicant argues on Page 4 that changing the location of electrodes of the device would modify the operation of the device, however the examiner respectfully disagrees. The specification does not mention wherein the position of the central electrode of an RF element in in the upper row of the device over the gap between adjacent RF elements in the lower row of the device has a critical purpose and therefore a mere rearrangement of parts would be appropriate, as the repositioning of the top row of RF elements over the gap between RF elements in the bottom row of RF elements would not affect their operation.
Therefore applicant’s arguments are found to not be persuasive as a change in size of the electrodes directly relates to a change in the geometric area of the electrodes and a rearrangement of parts involves only routine skill in the art. Therefore, claims 1-2 and 5-8 remain rejected under 35 U.S.C. 103 as being unpatentable over Simons in view of Levi as evidenced by Palero.
Claim Rejections - 35 USC § 103
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 1-2 and 5-8 are rejected under 35 U.S.C. 103 as being unpatentable over Simons et al. (US 20200397611) herein referred to as Simons in view of Levi et al. (US 20130331913) herein referred to as Levi as evidenced by Palero et al. (US 20180110977) herein referred to as Palero.
Regarding claim 1, Simons discloses a device (skin treatment device and system, Abstract) comprising:
a face applicator comprising a face securing member configured to secure said face applicator to at least one cheek of a subject (mask-shaped skin treatment device 1 that covers both cheeks, Figure 5B, Paragraph [0064], mask-shaped skin treatment device may comprise one or more fixation elements configured to fix the device on the skin of the user, fixation elements 6 may be any one of straps, elastic bands, temples, adhesive and other appropriate means, Figure 3, Paragraph [0041]);
and radio-frequency (RF) elements coupled to said face applicator and coupled to an RF generator (the one or more heating elements 2 are any one of contact heating elements, absorption-based heating elements and electrically-based heating elements, wherein the electrically-based heating elements may be radio frequency elements, Figure 3, Paragraph [0031], heating elements 2, coupling agent detectors 3, and temperature sensors 9 are connected via a cable 11 to a base station (RF generator) comprising a control unit 4 that is configured to control the heating elements 22 and 23 in accordance, Figures 1 and 2, Paragraph [0057] and [0061]);
and impedance and temperature measurement sensors coupled to said RF generator (mask-shaped skin treatment system comprises temperature sensors 9 and coupling agent detectors 3 (impedance sensors, Claim 1) connected to a base station (RF generator) 10 via a cable 11, Figure 4, Paragraph [0061] and claim 1).
However Simons does not explicitly disclose wherein said RF elements comprise a central electrode which has a polarity and side electrodes which have a polarity opposite of said central electrode, and wherein a geometric area of said central electrode is identical to a total geometric area of said side electrodes, wherein said side electrodes are separate from each other and located on left and right side of said central electrode.
Levi discloses a device including a combined energy applicator including RF electrodes spaced apart that are in a bipolar mode for application of RF energy for treatment of skin or sub-dermal treatment of body fat, cellulite, skin tightening etc. (Abstract and Paragraph [0001]).
Levi further discloses wherein said RF elements comprise a central electrode which has a polarity and side electrodes which have a polarity opposite to said polarity of said central electrode (combined energy applicator 12 includes RF electrodes 16, such as but not limited to three electrodes spaced apart that operate in a bipolar mode, for example the two outer electrodes may be negative and the central electrode positive, Figure 1, Paragraph [0016]), and wherein said side electrodes are separate from each other and located on left and right side of said central electrode (side electrodes are spaced apart from each other and located on left and right side of said central electrode 16, Figure 1).
It would have been prima facie obvious to one of ordinary skill in the art before
the effective filing date of the claimed invention to have modified Simons to incorporate the teachings of Levi by including a central electrode which has a polarity and side electrodes which have a polarity opposite to said polarity of said central electrode wherein the central electrode treatment area is identical to the total treatment area of said side electrodes for interacting with the tissue. The motivation to do so being to use bipolar RF energy to effectively conduct deep sub-dermal heating and collagen tightening (Levi, Paragraph [0016]).
Simons in view of Levi discloses the claimed invention except for wherein a geometric area of said central electrode is identical to a total geometric area of said side electrodes. It would have been an obvious matter of design choice to modify the geometric areas of the central electrode and the side electrodes, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). The motivation to modify the size of the electrodes being to concentrate the thermal lesion at the skin regions immediately below the active electrodes while no or no significant thermal lesion formation of skin regions below the return electrode is caused and as modifying the size of the electrode results in a thermal lesion below the inner electrode that is sufficiently deep for effective skin rejuvenation and sufficiently narrow to enable fast recovery of the skin as evidenced by Palero (Palero, Paragraphs [0018] and [0048]).
Regarding claim 2, Simons in view of Levi as evidenced by Palero discloses the device according to claim 1.
Simons further discloses wherein said face securing member comprises symmetrical portions for securing said face applicator to both cheeks of the subject (embodiment comprises symmetrical portions which covers both cheeks, Figure 5B, Paragraph [0064], mask-shaped skin treatment device may comprise one or more fixation elements configured to fix the device on the skin of the user, fixation elements 6 may be any one of straps, elastic bands, temples, adhesive and other appropriate means, Figure 3, Paragraph [0041]).
Regarding claim 5, Simons in view of Levi as evidenced by Palero discloses the device according to claim 1.
However Simons does not explicitly disclose wherein said central electrode and said side electrodes are shaped as four-sided polygons.
Levi discloses wherein the central electrode and side electrodes are shaped as four-sided polygons (electrodes 16, Figure 1).
It would have been an obvious matter of design choice to make the different portions of the electrodes whatever form or shape was desired or expedient such as four-sided polygons. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47.
Regarding claim 6, Simons in view of Levi as evidenced by Palero discloses the device according to claim 5.
However Simons does not explicitly disclose wherein said four-sided polygons have rounded corners.
Levi discloses wherein said four-sided polygons have rounded corners (electrodes 16, Figure 1).
It would have been an obvious matter of design choice to make the different portions of the electrodes whatever form or shape was desired or expedient such as four-sided polygons with rounded corners. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47.
Regarding claim 7, Simons in view of Levi as evidenced by Palero discloses the device according to claim 1.
Simons further discloses wherein said RF elements comprise two rows of said RF elements, arranged as an upper row above a lower row (Figure 3 and modified Figure 4 below).
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However Simons does not explicitly disclose wherein the central electrode of an RF element in said upper row is located above a gap between adjacent RF elements in said lower row. Simons in view of Levi discloses the central electrode which has a polarity and side electrodes which have a polarity opposite to said polarity of the central electrode (see rejection of claim 1).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include wherein the central electrode of an RF element in said upper row is located above a gap between adjacent RF elements in said lower row, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Regarding claim 8, Simons discloses a device (skin treatment device and system, Abstract) comprising:
a face applicator comprising a face securing member configured to secure said face applicator to at least one cheek of a subject (mask-shaped skin treatment device 1 that covers both cheeks, Figure 5B, Paragraph [0064], mask-shaped skin treatment device may comprise one or more fixation elements configured to fix the device on the skin of the user, fixation elements 6 may be any one of straps, elastic bands, temples, adhesive and other appropriate means, Figure 3, Paragraph [0041]);
and radio-frequency (RF) elements coupled to said face applicator and coupled to an RF generator (the one or more heating elements 2 are any one of contact heating elements, absorption-based heating elements and electrically-based heating elements, wherein the electrically-based heating elements may be radio frequency elements, Figure 3, Paragraph [0031], heating elements 2, coupling agent detectors 3, and temperature sensors 9 are connected via a cable 11 to a base station (RF generator) comprising a control unit 4 that is configured to control the heating elements 22 and 23 in accordance, Figures 1 and 2, Paragraph [0057] and [0061]);
and impedance and temperature measurement sensors coupled to said RF generator (mask-shaped skin treatment system comprises temperature sensors 9 and coupling agent detectors 3 (impedance sensors, Claim 1) connected to a base station (RF generator) 10 via a cable 11, Figure 4, Paragraph [0061] and claim 1),
and wherein said RF elements comprise two rows of said RF elements, arranged as an upper row above a lower row (heating elements 2 in an upper row and a lower row, Figure 3 and modified Figure 4 below).
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However Simons does not explicitly disclose wherein said RF elements comprise a central electrode which has a polarity and side electrodes which have a polarity opposite to said polarity of said central electrode, and wherein said side electrodes are separate from each other and located on left and right sides of said central electrode; and wherein the central electrode of an RF element in said upper row is located above a gap between adjacent RF elements in said lower row.
Levi discloses a device including a combined energy applicator including RF electrodes spaced apart that are in a bipolar mode for application of RF energy for treatment of skin or sub-dermal treatment of body fat, cellulite, skin tightening etc. (Abstract and Paragraph [0001]). Levi further discloses wherein said RF elements comprise a central electrode which has a polarity and side electrodes which have a polarity opposite to said polarity of said central electrode (combined energy applicator 12 includes RF electrodes 16, such as but not limited to three electrodes spaced apart that operate in a bipolar mode, for example the two outer electrodes may be negative and the central electrode positive, Figure 1, Paragraph [0016]), and wherein said side electrodes are separate from each other and located on left and right side of said central electrode (side electrodes are spaced apart from each other and located on left and right side of said central electrode 16, Figure 1).
It would have been prima facie obvious to one of ordinary skill in the art before
the effective filing date of the claimed invention to have modified Simons to incorporate the teachings of Levi by including a central electrode which has a polarity and side electrodes which have a polarity opposite to said polarity of said central electrode wherein the central electrode treatment area is identical to the total treatment area of said side electrodes for interacting with the tissue. The motivation to do so being to use bipolar RF energy to effectively conduct deep sub-dermal heating and collagen tightening (Levi, Paragraph [0016]).
Simons in view of Levi discloses the claimed invention except for wherein a geometric area of said central electrode is identical to a total geometric area of said side electrodes. It would have been an obvious matter of design choice to modify the geometric areas of the central electrode and the side electrodes, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). The motivation to modify the size of the electrodes being to concentrate the thermal lesion at the skin regions immediately below the active electrodes while no or no significant thermal lesion formation of skin regions below the return electrode is caused and as modifying the size of the electrode results in a thermal lesion below the inner electrode that is sufficiently deep for effective skin rejuvenation and sufficiently narrow to enable fast recovery of the skin as evidenced by Palero (Palero, Paragraphs [0018] and [0048]).
Further, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include wherein the central electrode of an RF element in said upper row is located above a gap between adjacent RF elements in said lower row, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Dana Stumpfoll whose telephone number is (703)756-4669. The examiner can normally be reached 9-5 pm (CT), M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joanne Rodden can be reached on (303) 297-4276. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.S./Examiner, Art Unit 3794
/JOANNE M RODDEN/Supervisory Patent Examiner, Art Unit 3794