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
In response to applicant's arguments against the references individually, 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). Applicant argues that Planard-Luong only addresses the local, real-time use of distance measurement for power adjustment and does not provide for the additional requirement to transmit the measured distance to a server for determining the actual dosing. However, Planard-Luong was not relied upon for teaching the tramsisison of diagnostic and usage information to a server. Instead, Ziarno was relied upon for disclosing a control system associated with the communication interface, the control system configured to a collect diagnostic information, implement a treatment protocol (e.g., paragraphs [0066], [0140], [0207], [0268], [0292], [0294]; Fig. 41, control circuitry 4107) and send the diagnostic information and administered light treatment information associated with implementing the treatment protocol to a server via the communication interface (e.g., [0096], [0177], [0214], [0262], [0294], [0305], [0316]-[0318], [0334]).
Hamid was additionally relied on for the teaching that it is known to log and report the actual doses of light therapy delivered and to wirelessly communicate that information to a user's mobile device and/or a server in order to chart personal progress and allow a user or physician to discern and detect long-term effectiveness of the delivered therapy (e.g., paragraph [0161])
Planard-Luong was relied upon to disclose the real-time tracking of distance to accurately account for proper doing. This information, when viewed within the combination of Ziarno and Hamid would be included in the diagnostic and usage information transmittable to a remote device for review. The step of calculating the actual dosage at the remote device is not currently claimed but such a calculation is possible with the information provided by the combination as clearly set forth by Fraval (2006/0106435) which discloses light dosing is dependent on light intensity and distance from a target (par. [0025, 0047, 0115]). One of ordinary skill in the art before the effective filing date of the claimed invention would have understood that the distance measures can be used to verify/determine the actual dosing of light delivered by a phototherapy device, as evinced by Fraval.
The rejection has been updated to address the newly amended claim language.
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 1-28 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.
Claims 1, 7, 17 and 24 claim “…send the diagnostic information and administered light treatment information associated with implementing the treatment protocol to a server via the communication interface, the administered light treatment information comprising confirmation of actual dosing information received by a user…”. In other words, the claim states the control system sends the actual dosing information to the serve. The claim has been amended to also recite “…the actual distance being measured during implementation of the treatment protocol and transmitted to the server for determining the actual dosing information received by the user.” This contradicts the first limitation in that now the claim adds that the actual doing information to be determined after it is sent to the server. It is unclear if the actual dosing information is transmitted to the server or if the server obtains the distance measure so that the actual dosing information can be determined. Both interpretations cannot be true at the same time. The metes and bounds are unclear. For the purposes of examination, the claim will be interpreted as transmitting the distance to the server. The determination of actual dosing information is not required in that the claim passively claims the intent of “for determining the actual dosing” rather than actively claiming a determination step (e.g. “determining the actual dosing”).
Claims 2-6, 8-16, 18-23 and 25-28 are rejected due to their dependence on indefinite claims 1, 7, 17 and 24.
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 (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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-21 and 23-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ziarno et al. (2013/0053657) in view of Hmaid (2018/0015300) and further in view of Planard-Luong et al. (2015/0297912) and Fraval (2006/0106435).
Regarding claims 1, 7, 9, 17, and 24, Ziarno discloses an illumination device (e.g., abstract; Figs. 1, 36-42) for phototherapeutic delivery of light (e.g., paragraphs [0066]-[0072], [0177], [0272], [0277], [0287]), the illumination device comprising: a light source (ibid. - "light source emitters," "light source assembly," "therapeutic light sources"); a communication interface (e.g., Fig. 41, wired communication interface 4119 and wireless communication interface 4121; paragraphs [0270], [0293], [0299]); and a control system associated with the communication interface, the control system configured to a collect diagnostic information, implement a treatment protocol (e.g., paragraphs [0066], [0140], [0207], [0268], [0292], [0294]; Fig. 41, control circuitry 4107) and send the diagnostic information and administered light treatment information associated with implementing the treatment protocol to a server via the communication interface (e.g., [0096], [0177], [0214], [0262], [0294], [0305], [0316]-[0318], [0334]).
Further regarding claims 1, 7, 17, and 24, Ziarno does not expressly disclose wherein the administered light treatment information comprises confirmation of actual dosing information received by a user. In the same field of endeavor, Hamid teaches that it is known to log and report the actual doses of light therapy delivered and to wirelessly communicate that information to a user's mobile device and/or a server in order to chart personal progress and allow a user or physician to discern and detect long-term effectiveness of the delivered therapy (e.g., paragraph [0161]). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the system as taught by Ziarno, with logging and reporting the actual doses of light therapy delivered as taught by Hamid, since such a modification would provide the predictable results of charting personal progress and allowing a user or physician to discern and detect long-term effectiveness of the delivered therapy.
Further regarding claims 1, 7, 17, and 24, Ziarno discloses the invention substantially as claimed, but does not expressly disclose wherein the control system sends administered light treatment information which also comprises an actual distance from the light source to the treatment area of the user. In the same field of endeavor, Planard-Luong teaches that it is known to use distance sensors that measure a distance between a reference surface (shown in, e.g., Fig. 5 as a surface 5 at the same distance from the target as light source 10) and a cosmetic treatment area of the skin (i.e., a treatment area as claimed) such that a control system can be used to adjust the emission power of each light source based on that actually measured distance from light source to target in order to ensure optimal intensity, cause the desired effects, and avoid damage (e.g., abstract; paragraphs [0005], [0013], [0014], [0020]). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the system as taught by Ziarno, with measurement of the actual distance from light source to tissue target as taught by Planard-Luong , since such a modification would provide the predictable results of ensuring optimal intensity, causing the desired therapeutic effects, and avoiding tissue damage.
Regarding the language “for determining the actual dosing information received by the user”, the Examiner notes this is not an active step of determining and is instead just a statement that the distance measurement can be used for determining an actual dosing. This concept is well-known and well-established in the art, as evidenced by Fraval (2006/0106435) which discloses light dosing is dependent on light intensity and distance from a target (par. [0025, 0047, 0115]). One of ordinary skill in the art before the effective filing date of the claimed invention would have understood that the distance measures can be used to verify/determine the actual dosing of light delivered by a phototherapy device, as evinced by Fraval.
Regarding claim 6, and further regarding claim 7, Ziarno discloses where the control system is configured to determine location information associated with the treatment protocol, and send the location information to a server via the communication interface (e.g., paragraphs [0089], [0178], [0217], [0328], [0329]).
Further regarding claims 17 and 24, Ziarno discloses, mutatis mutandis, the system comprising the server and a server-side application associated with the server, the server-side application configured to do perform as indicated above.
Regarding claim 2, Ziarno discloses the illumination device further comprising one or more of a sensor and a camera associated with the control system, the one or more of the sensor and the camera being configured to collect at least a portion of the diagnostic information (e.g., Fig. 41, imager devices 4103 and supplemental sensors 4113; paragraphs [0128], [0293], [0295], [0297]).
Regarding claims 3 and 14, Ziarno discloses wherein the control system is configured with a pre-configured treatment protocol, and the treatment protocol is modified from the pre-configured treatment protocol based on the diagnostic information (e.g., paragraphs [0277] "the light therapy signaling can be automatically produced according to preprogrammed settings"; [0278]).
Regarding claim 4, Ziarno discloses wherein the control system is configured to determine the treatment protocol based on the diagnostic information (e.g., paragraphs [0137], [0161], [0207], [0278]).
Regarding claim 5, Ziarno discloses wherein the control system is further configured to receive the treatment protocol from the server based on the diagnostic information (e.g., paragraph [0101], [0116], [0176], [0277] read in light of [0274]).
Regarding claim 8, Ziarno discloses wherein the location information comprises a global positioning system (GPS) location (e.g., paragraphs [0089], [0217], [0328], [0329]).
Regarding claims 10, 15, and 27, Ziarno discloses wherein the control system is further configured to send the diagnostic information to a local device before sending the diagnostic information to the server (e.g., paragraphs [0101] and [0119] - "local external devices"; [0108] - "local personal computing devices"; [0247], [0262]).
Regarding claims 11 and 12, Ziarno discloses wherein the control system is further configured to determine the location information after receiving the treatment protocol from the server and to determine the location information before sending the diagnostic information to the server (e.g., paragraphs [0089], [0178], [0217], [0328], [0329]).
Regarding claims 13, 21, and 28, Ziarno discloses wherein at least one of the location information, the diagnostic information, and the treatment protocol comprises encrypted data (e.g., paragraphs [0101], [0144], [0179] - "communicatively links (with appropriate access authorization and security functionality)"; [0321] - "secure communication link").
Regarding claims 16, 23, and 25, Ziarno discloses wherein the control system is further configured to send administered light treatment information to the server, the administered light treatment information comprising one or more of a wavelength of light and a dose of light associated with administered light treatment (e.g., paragraphs [0177], [0278], [0289], [0290], [0302], [0303]).
Regarding claim 18, and further regarding claim 24, Ziarno discloses wherein the server-side application is configured to compile geospatial information based on: a plurality of treatment protocols generated for a plurality of illumination devices; and location information associated with administered light treatment information received from the plurality of illumination devices (e.g., paragraphs [0089], [0178], [0217], [0328], [0329]).
Regarding claims 19, 20, and 26, Ziarno discloses wherein the server-side application is further configured to receive, and associate with the diagnostic information, additional user information together with the diagnostic information, the additional user information comprising one or more of a medical history and demographics of a user (e.g., paragraphs [0075], [0101], [0157], [0172], [0188]).
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Ziarno in view of Hamid and further in view of Planard-Luong and Fraval as applied to claim 17 above, and further in view of Amir et al. (US 2018/0014777).
Regarding claim 22, Ziarno as modified by Hamid discloses the invention substantially as claimed, but does not expressly disclose an artificial intelligence library that is used to generate the treatment protocol based on the diagnostic information. In the same field of endeavor, Amir teaches that it is known to use trained machine learning algorithms to calculate treatment plans based on historical records, scheduling records, input parameters, current sensed conditions, etc., in order to determine a customized treatment plan, including light therapy, most likely to succeed for the current patient (e.g., paragraphs [0031], [0032], [0043]-[0045]). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the system as taught by Ziarno, with use of machine learning to determine treatment parameters as taught by Amir, since such a modification would provide the predictable results of optimizing treatment to lead to a most successful outcome for the patient.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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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/ALLEN PORTER/Primary Examiner, Art Unit 3796
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