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 .
Election/Restrictions
Claims 8-14 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 04/08/2025.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “a controller” in claim 1; “an activity measurement device” in claim 1; “an activity measurement unit” in claim 16; “the control means” in claim 16; and “the first means” in claim 16.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112(b)
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 1-3, 5-7, and 15-18 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.
Claim limitation “controller” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function.
Claim 1 recites “a controller being configured to control the light variation system…” However, the specification, when discussing the “controller,” merely details that the means are configured for activating a light source, with examples of components including “a photodetector” or an “inertial measurement unit.” However, it is unclear how either a “photodetector” or an “inertial measurement unit” on their own could serve the function of “controlling the light variation system,” as such elements merely serve to obtain measurements. As such, it is unclear what structure is provided for the claimed “control means.”
Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claim 1 further recites “a controller being configured to control the light variation system within a period from wake-up to bedtime for the user, so that light with wavelength values comprised in the modulation spectral range enters the eye of the user with higher intensity during a first duration compared to a second duration, first and second durations forming an intraday time-configuration which is to be reproduced each day the ophthalmic set is used, the controller comprising one of a photodetector and an activity measurement device, a wake-up time of the user within the period between the wake-up and the bedtime of the user being identified by one of: (i) a daylight appearance in surroundings of the user, detected by the photodetector, and (ii) a time of first displacement of the ophthalmic set, indicated by the activity measurement device, and the controller being configured to activate light emission by the at least one light source selectively during a light-supplementation period having a duration comprised between 15 minutes and 4 hours from the wake-up of the user.” Similarly, Claims 3, 15-16 and recite “wake-up of the user” and/or “bedtime of said user.”
However, this limitation depends solely on the subjective opinion of the user, as there is no objective standard of what constitutes “wake-up” or “bedtime” for a user. Specifically, it is unclear how “wake-up” or “bedtime” are defined and the “wake-up” or “bedtime” of one user could be different from that of another user or could change over time for a single user. For example, the “wake-up” and “bedtime” of a child could be different from that of an adult. Moreover, it is unclear how such terms should be defined as a user could “wake-up” and then subsequently fall back asleep.
Furthermore, It has been found that when subjective terminology is used in a claim, some objective standard must be provided in order to allow the public to determine the scope of the claim. Furthermore, a claim that requires the exercise of subjective judgement without restriction renders the claim indefinite. Since there is no objective standard for determining “wake-up” or “bedtime,” claims 1, 3-4, 15-16, and 18-20 are indefinite. In re Musgrave, 431 F.2d 882, 893 (CCPA 1970); Datamize, 417 F.3d at 1344-45 (MPEP § 2173.05(b)III).
Additionally, it is unclear what moment should be considered “wake-up” or “bedtime” of a user. Specifically, it is unclear if “wake-up” should be the moment a user is first consciously awake, a moment a user gets out of bed, a moment determined based on a movement amount, a predetermined time of day, etc., and it is unclear if a “bedtime” should be the moment a user specifically falls asleep, the moment a user gets into bed, a set time of day, a time when the ophthalmic set is taken off, etc.
Further, it is unclear how a “wake-up time” can be “within the period between the wake-up and the bedtime of the user.” It is unclear if the “wake-up time” is referring to “the wake-up” or an additional waking up of the user after the “wake-up.” Moreover, it is unclear if additional instances of “the wake-up” in the claims are referring to the “wake-up time” or the “wake-up.”
Furthermore, it is unclear what constitutes “surroundings of the user.” It is unclear if the “surroundings” of the user should be immediate surroundings (i.e. in a bedroom), broader location surroundings (i.e. light levels outside a house), or some other definition.
For the purposes of examination, any ophthalmic set that controls the light variation system within a set period of time during the day will be interpreted as reading on the claimed invention.
Claims 2-3, 5-7, and 15-18 are rejected as being dependent upon claim 1 and failing to cure the deficiencies of the rejected base claim.
Claim 16 recites the limitation "the activity measurement unit”, “the control means”, and “the first means.” There is insufficient antecedent basis for these limitations in the claim. It is unclear if “the activity measurement unit” is intended to refer to the “activity measurement device” of claim 1 or an additional “unit.” It is unclear if “the control means” is intended to be “the controller” or an additional “means.” Additionally, it is unclear if “the first means” is intended to be the “light variation system” or an additional “means.” For the purposes of examination, “the activity measurement unit” will be interpreted as “the activity measurement device,” while “the control means” will be interpreted as “the controller” and “the first means” will be interpreted as “the light variation system.”
In the interest of compact prosecution, Examiner respectfully notes the use of the term “means” and other terms in withdrawn claims that would also lack antecedent basis and raise issues of indefiniteness.
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.
Claim(s) 1-3, 5-7, and 15-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Barrau et al. (U.S. PG-Pub No. 2019/0204624; hereinafter – “Barrau”) in view of Mason (U.S. PG-Pub No. 2021/0001145).
Regarding claim 1, Barrau teaches an ophthalmic set for myopia progression control, comprising:
a light variation system (12, 14) configured to vary an amount of light that has wavelength values comprised in a modulation spectral range, and that enters an eye of a user of the ophthalmic set, the light variation system comprising at least one light source configured to emit light with a wavelength in the modulation spectral range (See e.g. Fig. 4; Paragraphs 0034-0037, 0163-0164, 0167, and 0200-0202); and
a controller (16, 20, 22, 24, 26, 28) being configured to control the light variation system within a period from wake-up to bedtime for the user, so that light with wavelength values comprised in the modulation spectral range enters the eye of the user with higher intensity during a first duration compared to a second duration, first and second durations forming an intraday time-configuration which is to be reproduced each day the ophthalmic set is used (See e.g. Figs. 1-4; Paragraphs 0037-0053, 0125, 0167-0169, 0173-0187, 0190, 0196, 0204-0205, 0209, and 0211-0213), the modulation spectral range being comprised between 360 nm and 520 nm (See e.g. Figs. 1-3; Paragraphs 0024, 0051, 0201, 0204, and 0211), the controller comprising one of a photodetector and an activity measurement device (See e.g. Figs. 1-4; Paragraphs 0039-0042, 0173-0187, 0190, 0204-0205, 0209, and 0211-0213),
a wake-up time of the user within the period between the wake-up and the bedtime of the user being identified by one of: (i) a daylight appearance in surroundings of the user, detected by the photodetector, and (ii) a time of first displacement of the ophthalmic set, indicated by the activity measurement device (See e.g. Figs. 1-4; Paragraphs 0037-0053, 0125, 0167-0169, 0173-0187, 0190, 0196, 0204-0205, 0209, and 0211-0213), and
Barrau further teaches activating the light emission by the at least one light source selectively during a light-supplementation period having a duration between the wake-up of the user and the bedtime of the user (See e.g. Figs. 1-4; Paragraphs 0037-0053, 0125, 0167-0169, 0173-0187, 0190, 0196, 0204-0205, 0209, and 0211-0213, e.g. Paragraph 0196: “Such wearer parameters are related to the age of the wearer and/or the biological clock of the wearer and/or the activity of the wearer (working activity, sport activity, etc. . . . ) and/or ocular disease of the wearer and/or the type of physiological disorder of the wearer”) and modifying the light-supplementation period “for treatment of subjects suffering from chronobiological disorders such as circadian rhythm sleep disorders, sleep disorders, pupil dilation, jet lag, delayed and advanced sleep phase syndromes, mood disorders, seasonal affective disorder such as depression or fatigue, postpartum depression, cancer risks, hormonal disorders, alertness disorders and cognitive performances, appetite and obesity, memory disorders, psychomotor disorders, body temperature deregulation, premenstrual disorders, epilepsy crisis and myopia” (Paragraph 0209) but fails to explicitly disclose that the light-supplementation period has a duration comprised between 15 minutes and 4 hours from the wake-up of the user.
However, Mason teaches a method of controlling myopia in humans comprising a first means (34) and a control means (36) wherein the first means comprise at least one light source effective in the modulation spectral range, and the control means are configured for activating light emission by the first means selectively during a light-supplementation period having a duration comprised between 15 minutes and 4 hours from the wake- up of the user (See e.g. Figs. 1-4; Paragraphs 0008, 0048-0051, and 0055-0056, e.g. Paragraph 0050: “the artificial light source may be configured to provide around 600 lux for around 3 hours of a morning and around 400 lux for around 2.5 hours of an afternoon”).
Mason teaches this duration of light-supplementation period “to trigger a neurological response in the retina of each of the eyes which is effective in contributing to a reduction in the onset or progression of myopia in the individual's eyes” (Paragraph 0008).
Therefore, 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 ophthalmic set of Barrau to have a light-supplementation period with a duration comprised between 15 minutes and 4 hours from the wake-up of the user as in Mason “to trigger a neurological response in the retina of each of the eyes which is effective in contributing to a reduction in the onset or progression of myopia in the individual's eyes,” as taught by Mason (Paragraph 0008), and 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, In re Aller, 105 USPQ 233 (C.C.P.A. 1955), given that Barrau explicitly teaches modifying the light-supplementation period “for treatment of subjects suffering from chronobiological disorders such as circadian rhythm sleep disorders, sleep disorders, pupil dilation, jet lag, delayed and advanced sleep phase syndromes, mood disorders, seasonal affective disorder such as depression or fatigue, postpartum depression, cancer risks, hormonal disorders, alertness disorders and cognitive performances, appetite and obesity, memory disorders, psychomotor disorders, body temperature deregulation, premenstrual disorders, epilepsy crisis and myopia” (Paragraph 0209).
Regarding claim 2, Barrau in view of Mason teaches the ophthalmic set of claim 1, as above.
Barrau further teaches that the modulation spectral range is comprised between 440 nm and 520 nm (See e.g. Figs. 1-3; Paragraphs 0024, 0051, 0201, 0204, and 0211).
Regarding claim 3, Barrau in view of Mason teaches the ophthalmic set of claim 1, as above.
Barrau further teaches the first duration starts from wake-up of the user and the second duration ends with bedtime of said user (See e.g. Figs. 1-4; Paragraphs 0037-0053, 0125, 0167-0169, 0173-0187, 0190, 0204-0205, 0209, and 0211-0213).
Regarding claim 5, Barrau in view of Mason teaches the ophthalmic set of claim 1, as above.
Barrau further teaches a frame to be worn by the user on the face of the user, said frame supporting the at least one light source in a manner such that, when worn by the user, at least part of the light produced by said at least one light source enters the eye of the user (See e.g. Fig. 4; Paragraphs 0067, 0159-0163, 0169, 0174, 0185, and 0194).
Regarding claim 6, Barrau in view of Mason teaches the ophthalmic set of claim 1, as above.
Barrau further teaches spectacles to be worn by the user, with two spectacle lenses accommodated in a spectacle frame, and wherein the spectacles have one of the following arrangements: the at least one light source is accommodated in the spectacle frame adjacent a peripheral edge of each spectacle lens, and each spectacle lens is provided with light deflecting or diffusing elements directing at least part of the light produced by each light source into one of the eyes of the user; the at least one light source is accommodated in the spectacle frame or in temples of said spectacle frame, and is configured so that light produced by said at least one light source reaches the spectacles lenses, and each spectacle lens is provided with a holographic diffusing layer configured to direct at least part of said light into one of eye of the user; the at least one light source is accommodated in the spectacle frame or in temples of said spectacle frame, and is configured so that light produced by said at least one light source reaches the spectacles lenses, and each spectacle lens is provided with an holographic layer that has a microlens pattern and is configured to direct at least part of said light into one of eye of the user; the at least one light source is accommodated in the spectacle frame or in temples of said spectacle frame, and configured so that light produced by said light sources reaches the spectacles lenses, and each spectacle lens is provided with microlenses at a surface of said spectacle lens, or embedded within said spectacle lens or within a film which covers said spectacle lens; and the at least one light source is comprised of at least one optical brightener dye or fluorescent compound distributed in or on the spectacle lenses, and UV sources are accommodated in the spectacle frame or in temples of said spectacle frame and configured so that UV radiation produced by said UV sources reaches the spectacles lenses (See e.g. Fig. 4; Paragraphs 0067, 0159-0166, 0169, 0174, 0185, and 0194).
Regarding claim 7, Barrau in view of Mason teaches the ophthalmic set of claim 6, as above.
Barrau further teaches that the controller is configured to control an emission intensity of the at least one light source (See e.g. Figs. 1-4; Paragraphs 0037-0053, 0125, 0167-0169, 0173-0187, 0190, 0204-0205, 0209, and 0211-0213).
Additionally, Mason further teaches that the controller is configured to control an emission intensity of the at least one light source (See e.g. Figs. 1-4; Paragraphs 0008, 0048-0051, and 0055-0056).
Regarding claim 15, Barrau in view of Mason teaches the ophthalmic set of claim 1, as above.
Barrau further teaches that the light variation system further comprises a spectral filter which has an average transmission value assessed over the modulation spectral range that is equal to or less than 50%, and the controller is further configured to cause the spectral filter to be effective on light that enters the eye of the user selectively during a light-dimming period ending with the bedtime of the user and having a duration comprised between 1 hour and 6 hours (See e.g. Figs. 1-4; Paragraphs 0037-0053, 0125, 0167-0169, 0173-0187, 0190, 0204-0205, 0209, and 0211-0213).
While Barrau teaches a structure reading on the light-supplementation period, in the interest of compact prosecution, Examiner further submits reference Mason.
Mason teaches a method of controlling myopia in humans comprising a first means (34) and a control means (36) wherein the first means comprise at least one light source effective in the modulation spectral range, and the control means are configured for activating light emission by the first means selectively during a light-supplementation period having a duration comprised between 15 minutes and 4 hours, preferably comprised between 30 minutes and 2 hours, from the wake- up of the user (See e.g. Figs. 1-4; Paragraphs 0008, 0048-0051, and 0055-0056).
Mason teaches this duration of light-supplementation period “to trigger a neurological response in the retina of each of the eyes which is effective in contributing to a reduction in the onset or progression of myopia in the individual's eyes” (Paragraph 0008).
Therefore, even if Barrau did not disclose the claimed duration of the light-supplementation period, 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 ophthalmic set of Barrau with the light-supplementation period of Mason “to trigger a neurological response in the retina of each of the eyes which is effective in contributing to a reduction in the onset or progression of myopia in the individual's eyes,” as taught by Mason (Paragraph 0008), and 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, In re Aller, 105 USPQ 233 (C.C.P.A. 1955), given that Barrau explicitly teaches modifying the light-supplementation period “for treatment of subjects suffering from chronobiological disorders such as circadian rhythm sleep disorders, sleep disorders, pupil dilation, jet lag, delayed and advanced sleep phase syndromes, mood disorders, seasonal affective disorder such as depression or fatigue, postpartum depression, cancer risks, hormonal disorders, alertness disorders and cognitive performances, appetite and obesity, memory disorders, psychomotor disorders, body temperature deregulation, premenstrual disorders, epilepsy crisis and myopia” (Paragraph 0209).
Regarding claim 16, Barrau in view of Mason teaches the ophthalmic set of claim 1, as above.
Barrau further teaches that the activity measurement unit that is configured for determining a wake-up time of the user and the bedtime of said user, and the control means are configured for controlling the first means based on said wake-up time as determined by the activity measurement unit, and/or on bedtime as determined from at least one prior use of the ophthalmic set (See e.g. Figs. 1-4; Paragraphs 0039-0042, 0173-0187, 0190, 0204-0205, 0209, and 0211-0213).
Regarding claim 17, Barrau in view of Mason teaches the ophthalmic set of claim 1, as above.
Barrau further teaches a process for maintaining vision comfort to a person, said process comprising providing said person with the ophthalmic set of claim 1 to be worn (See e.g. Figs. 1-4; Paragraphs 0037-0053, 0125, 0167-0169, 0173-0187, 0190, 0204-0205, 0209, and 0211-0213).
Regarding claim 18, Barrau in view of Mason teaches the ophthalmic set of claim 2, as above.
Barrau further teaches that the first duration starts from the wake-up of the user and the second duration ends with the bedtime of said user (See e.g. Figs. 1-4; Paragraphs 0037-0053, 0125, 0167-0169, 0173-0187, 0190, 0204-0205, 0209, and 0211-0213).
Additionally, Mason further teaches that the first duration starts from the wake-up of the user and the second duration ends with the bedtime of said user (See e.g. Figs. 1-4; Paragraphs 0008, 0048-0051, and 0055-0056).
Response to Arguments
Applicant's arguments, see pages 11-12, filed 10/30/2025, regarding the 35 U.S.C. 112(b) rejections have been fully considered but they are not persuasive.
Applicant argues that “Claim 1 is amended in light of the Office’s comments, and accordingly, withdrawal of the §112(b) or §112, 2nd paragraph rejection is respectfully requested.” However, Applicant’s amendments do not address each and every issue of indefiniteness with the claims, as detailed previously and above. Thus, the 35 U.S.C. §112(b) rejections are maintained.
Applicant's arguments, see pages 14-16, filed 10/30/2025, regarding the 35 U.S.C. 103 rejections have been fully considered but they are not persuasive.
Applicant argues that “Barrau does not disclose specifically activating the light emitting source during a particular light-supplementation period of between 15 minutes and 4 hours from the wake-up of the user, a wake-up time of which is identified through detection.” However, Examiner respectfully disagrees.
Specifically, Applicant’s arguments do not address the 35 U.S.C. 103 rejection, made previously and above, over Barrau in view of Mason. 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).
While Barrau may not explicitly teach “a particular light-supplementation period of between 15 minutes and 4 hours from the wake-up of the user,” Barrau does teach activating the light emission by the at least one light source selectively during a light-supplementation period having a duration between the wake-up of the user and the bedtime of the user (See e.g. Figs. 1-4; Paragraphs 0037-0053, 0125, 0167-0169, 0173-0187, 0190, 0196, 0204-0205, 0209, and 0211-0213, e.g. Paragraph 0196: “Such wearer parameters are related to the age of the wearer and/or the biological clock of the wearer and/or the activity of the wearer (working activity, sport activity, etc. . . . ) and/or ocular disease of the wearer and/or the type of physiological disorder of the wearer”) and modifying the light-supplementation period “for treatment of subjects suffering from chronobiological disorders such as circadian rhythm sleep disorders, sleep disorders, pupil dilation, jet lag, delayed and advanced sleep phase syndromes, mood disorders, seasonal affective disorder such as depression or fatigue, postpartum depression, cancer risks, hormonal disorders, alertness disorders and cognitive performances, appetite and obesity, memory disorders, psychomotor disorders, body temperature deregulation, premenstrual disorders, epilepsy crisis and myopia” (Paragraph 0209).
Moreover, Mason explicitly teaches a light-supplementation period that reads on the broadest reasonable interpretation of the claimed light-supplementation period (See e.g. Figs. 1-4; Paragraphs 0008, 0048-0051, and 0055-0056, e.g. Paragraph 0050: “the artificial light source may be configured to provide around 600 lux for around 3 hours of a morning and around 400 lux for around 2.5 hours of an afternoon”) in order “to trigger a neurological response in the retina of each of the eyes which is effective in contributing to a reduction in the onset or progression of myopia in the individual's eyes” (Paragraph 0008).
Thus, Examiner maintains that 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 ophthalmic set of Barrau to have a light-supplementation period with a duration comprised between 15 minutes and 4 hours from the wake-up of the user as in Mason “to trigger a neurological response in the retina of each of the eyes which is effective in contributing to a reduction in the onset or progression of myopia in the individual's eyes,” as taught by Mason (Paragraph 0008), and 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, In re Aller, 105 USPQ 233 (C.C.P.A. 1955), given that Barrau explicitly teaches modifying the light-supplementation period “for treatment of subjects suffering from chronobiological disorders such as circadian rhythm sleep disorders, sleep disorders, pupil dilation, jet lag, delayed and advanced sleep phase syndromes, mood disorders, seasonal affective disorder such as depression or fatigue, postpartum depression, cancer risks, hormonal disorders, alertness disorders and cognitive performances, appetite and obesity, memory disorders, psychomotor disorders, body temperature deregulation, premenstrual disorders, epilepsy crisis and myopia” (Paragraph 0209), as detailed previously and above.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nicholas R Pasko whose telephone number is (571)270-1876. The examiner can normally be reached M-F 8 AM - 5 PM.
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Nicholas R. Pasko
Primary Examiner
Art Unit 2896
/Nicholas R. Pasko/Primary Examiner, Art Unit 2896