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 .
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 (i.e., changing from AIA to pre-AIA ) 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.
Election/Restrictions
Applicant’s election without traverse of Species B, Sub-species A:2 and Sub-species B:ii in the reply filed on 30 June 2025 is acknowledged.
Claim Objections
Claim 8 is objected to because of the following informalities: Claim 8 recites “The method of claim 8” and should recite --The method of claim 1--. 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 2, 14 and 18 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.
The term “significant” in claims 2 and 18 is a relative term which renders the claim indefinite. The term “significant” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The term significant is used in the claim to quantify a perceived temperature increase over a duration of a treatment protocol after an initial warming period. However, it is unclear what would constitute significant and this relative terminology seems to be entirely subjective to a user’s potential heat tolerance. Therefore, no prior art has been applied.
Regarding claim 14, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 3-7, 9-14 and 17 is/are rejected under 35 U.S.C. 102(a)(2) and (a)(1) as being anticipated by US 2016/0082294 A1 to Luttrull et al. (Luttrull).
Regarding claim 1, Luttrull teaches a method of treating a patient via infrared radiant heating ([0046, 0065-0066]), comprising increasing the radiant energy per unit time of radiation applied to the patient’s skin over a duration of a treatment protocol ([0064]).
Regarding claim 3, Luttrull teaches the method of claim 1 as well as wherein the infrared radiation is applied using a source (20) comprising one or more reflectors (38) and each reflector has a beam guard ring (40) to narrow the beam of radiation.
Regarding claim 4, Luttrull teaches the method of claim 3 as well as wherein material for the beam guard ring are transparent (Fig. 4).
Regarding claim 5, Luttrull teaches the method of claim 1 as well as wherein the infrared radiation is changed over the duration of the treatment protocol in at least one of a linearly increasing manner, an incrementally increasing manner or an incrementally increasing matter in which the energy is pulsed ([0031, 0064]).
Regarding claim 6, Luttrull teaches the method of claim 1 as well as further comprising providing at least one speaker (100) to provide audible information to the patient or medical practitioner.
Regarding claim 7, Luttrull teaches the method of claim 1 as well as wherein radiant energy per unit time of infrared radiation applied to the patient’s skin is increased to increasing plateaus during the treatment protocol ([0064] which discusses temperature spikes, i.e. as broadly as claimed plateaus, on the order of several degrees while maintaining the long-term rise temperature to be less).
Regarding claim 9, Luttrull teaches the method of claim 1 as well as wherein the treatment protocol is used to treat a condition other than a skin condition ([0065-0066]).
Regarding claim 10, Luttrull teaches the method of claim 1 as well as wherein the treatment protocol is used to treat a viral infection ([0065]).
Regarding claim 11, Luttrull teaches the method of claim 10 as well as wherein the treatment protocol is used to treat fever, chills, nausea, shortness of breath or coughing ([0065] which discusses treating a wide array of tissue abnormalities, ailments and even infection, such as viruses that cause colds which cause the claimed symptoms. Therefore treating the virus treats the symptoms through prevention of the symptoms.).
Regarding claim 12, Luttrull teaches the method of claim 10 as well as wherein the treatment protocol is used to treat a Coronavirus disease, COVID-19, severe acute respiratory syndrome, common cold ([0065]), an influenza, chickenpox, cold sores, rabies, Ebola, AIDS, or an avian influenza.
Regarding claim 13, Luttrull teaches the method of claim 10 as well as wherein the patient is also treated with at least one therapeutic agent ([0066]).
Regarding claim 14, Luttrull teaches the method of claim 13 as well as wherein the therapeutic agent comprises an antibiotic, an antiviral, a pain killer, an anti-inflammatory or a health supplement ([0066] which discusses an adjuvant dye to be used as a photosensitizer).
Regarding claim 17, Luttrull teaches a system for treatment a patient (20) comprising a source (22) for applying infrared radiation to the patient for infrared radiant heating and a control system (display monitor 28, which may also include the necessary computerized hardware, data input and controls, etc.), the control system being conjured to control the source to increase radiant energy per unit time of infrared radiation applied to the patient over a duration of a treatment protocol ([0064-0065]).
Claim(s) 1, 9, 15 and 16 is/are rejected under 35 U.S.C. 102(a)(2) and (a)(1) as being anticipated by US 2017/0333248 A1 to Nakamatsu (Nakamatsu).
Regarding claim 1, Nakamatsu teaches a method of treating a patient via infrared radiant heating ([0010]), comprising increasing the radiant energy per unit time of infrared radiation applied to the patient’s skin over a duration of a treatment protocol ([0084] which discusses heating the cancer and peripheral blood flow up to a high temperature of 42oC.).
Regarding claim 9, Nakamatsu teaches the method of claim 1 as well as wherein the treatment protocol is used to treat a condition other than a skin condition (title).
Regarding claims 15 and 16, Nakamatsu teaches the method of claim 1 as well as wherein the treatment targets one or more lymph nodes ([0117]) as well as wherein the treatment targets one or more lymph nodes in the neck, under the shoulders or pelvis ([0117]).
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.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Luttrull.
Regarding claim 8, Luttrull teaches the method of claim 1, but not wherein the duration of the treatment protocol is between 20 minutes and 3 hours. It is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Luttrull to have a duration of between 20 minutes and 3 hours, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAITLYN E SMITH whose telephone number is (571)270-5845. The examiner can normally be reached Monday-Friday 9am-5pm.
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/KAITLYN E SMITH/Primary Examiner, Art Unit 3794