DETAILED ACTION
This action is pursuant to the claims filed on 08/20/2026. Claims 1, 4-31, and 33-44 are pending. A first action on the merits of claims 1, 4-31, and 33-44 is as follows.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 08/20/2026 has been entered.
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) 1, 4-31, 33-38 and 40-44 is/are rejected under 35 U.S.C. 103 as being unpatentable over Costa (U.S. PGPub No. 2022/0000373).
Regarding claim 1, Costa teaches A method of treating a subject suffering from cancer, the method comprising: exposing the subject to radio frequency radiation, wherein the radio frequency radiation comprises one or more amplitude-modulated output signals ([0014]), wherein the one or more amplitude-modulated output signal(s): have a carrier frequency from about 1KHz to 5000 MHz ([0262] RF carrier signal can be between 1 MHz and 900 MHz); and have amplitude modulation frequencies from about 0.1 Hz to about 150,000 Hz ([0014] modulation frequency between 0.01 Hz and 150 KHz), and wherein the amplitude modulation frequencies are selected to be cancer-specific frequencies ([0271-0273]); wherein the cancer is selected from the group consisting of: breast cancer, neuroendocrine cancer, non-Hodgkin lymphoma, adenocarcinoma of a pancreas, head and neck cancer, gastric cancer, glioblastoma, squamous cell carcinoma of the anal canal, hepatocellular carcinoma, cholangiocarcinoma, mesothelioma, thyroid cancer, prostate cancer, rhabdomyosarcoma, and colorectal cancer ([0133] [0503]); and wherein: (i) when the cancer is hepatocellular carcinoma, the subject is treated with ten or more hepatocellular carcinoma specific amplitude modulation frequencies comprising: Table 12 ([0273] disclosing HCC and being treated “every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz” includes at least ten of the frequencies in table 12 because the table has at least 10 frequency ranges that start with a number divisible by 10 (e.g., 966-966.7 Hz, 996-996.7 Hz, 1785-1785.7 Hz, 1881-1881.7 Hz, 3171-3171.7 Hz, 3762-3762.7 Hz, 5151-5151.7 Hz, 5322-5322.7 Hz, 6330-6330.7 Hz, 7510-7510.7 Hz, etc.)). Examiner notes, the remaining limitations (a) through (h) and (j) through (o) are contingent limitations that are not required to practice the claimed method (MPEP 2111.04 II).
Costa discloses the invention substantially as claimed above except for the exact carrier frequency range and the amplitude modulation frequencies range.
However 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 Costa to use a carrier frequency from about 1 KHz to 5000 MHz and a amplitude modulation frequency from about 0.1 Hz to about 150,000 Hz as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 4, Costa further teaches wherein the carrier frequency is from about 0.1 - 1000 MHz ([0262] RF carrier signal can be between 1 MHz and 900 MHz).
Regarding claim 5, Costa further teaches wherein the amplitude modulation frequency is from 100 Hz to 99,000 Hz ([0273] disclosing HCC and being treated “every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz” includes at least one of the frequencies in table 12). 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 Costa to use a modulation frequency from about 100 Hz to about 99,000 Hz as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 6, Costa further teaches wherein the frequency of each of the one or more modulated output signals is controlled to within an accuracy of 1 part per 10,000 relative to a reference amplitude modulation frequency ([0178] accuracy of at least 1000 parts per million which is within an accuracy of 1 part per 10,000).
Regarding claim 7, Costa further teaches wherein each of the one or more amplitude modulated output signals is maintained at a stability during emission of at least 10-5 ([0205]).
Regarding claim 8, Costa further teaches wherein specific absorption rate (SAR) of the radio frequency radiation absorbed by the patient is from about 1 microWatt per kilogram of tissue to about 50 Watts per kilogram of tissue ([0266]).
Regarding claims 9-10, Costa further teaches wherein the radio frequency radiation is applied to the subject undergoing treatment via an electrically conductive probe (Fig 7 and [0241] electrically conductive probe 13); wherein the electrically conductive probe is configured for contact with a mucosa of the subject or with the skin of the subject ([0241] probe 12 is capable of contacting mucosa or skin).
Regarding claim 11, Costa further teaches wherein the one or more amplitude modulated output signals are generated either sequentially or simultaneously ([0274]).
Regarding claim 12, Costa further teaches wherein the amplitude modulation frequency has been determined or predetermined by a bio-feedback process involving measurements of one or more physiological responses by subjects pre- diagnosed with the cancer type upon exposure of the pre-diagnosed subjects to the amplitude modulation frequency ([0309, 0342, 0511]).
Regarding claim 13, Costa further teaches wherein the low energy high frequency radiation comprises 40 or more modulated output signals ([0274] [0280] comprises 40 or more modulated output signals).
Regarding claim 14, Costa further teaches wherein the cancer is breast cancer ([0133] method is directed to treating breast cancer with RF frequencies) and wherein the subject is treated with 10 or more breast cancer specific amplitude frequencies comprising: ([0271-0274] disclosing at least 10 frequencies overlapping the claimed frequencies, specifically “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” and “that occur every 10 Hz in a range from about 0.01 Hz to about 20 KHz” (e.g., 429, 1728, 2811, 3360, 3663, 3936, 4323, 4329, 4416, 4833 Hz disclosed in Table 1 overlap with “every 3 Hz in a range from about 0.01 Hz to about 20 KHz”).
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is breast cancer.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of breast cancer with the frequency range as disclosed by Costa. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of breast cancer (at least [0133]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating breast cancer with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 15, Costa further teaches wherein the cancer is neuroendocrine cancer ([0503] small cell lung carcinoma is a type of neuroendocrine cancer) and wherein the subject is treated with 10 or more frequencies comprising: ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed (e.g., 843, 1656, 3678, 4368, 4866, 5265, 8008, 8097, 8853, 8877 Hz in the table are all divisible by 3 such that Costa discloses frequencies within 10 of the claimed ranges)).
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is neuroendocrine cancer.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of neuroendocrine cancer with the frequency range as disclosed by Costa to arrive at claim 15. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of neuroendocrine cancer (at least [0503]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating neuroendocrine cancer with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 16, Costa further teaches wherein the cancer is non-Hodgkin lymphoma ([0133] B-cell lymphoma is a non-Hodgkin lymphoma) and wherein the subject is treated with 10 or more frequencies comprising ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed (e.g., 3222 Hz, 3228 Hz, 3618 Hz, 4584 Hz, 5142 Hz, 6441 Hz, 6474 Hz, 6912 Hz, 7551 Hz, 11730 Hz in Table 5 define 10 frequency ranges that are divisible by 3 and thus disclosed by Costa)).
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is non-Hodgkin lymphoma.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of non-Hodgkin lymphoma cancer with the frequency ranges as disclosed by Costa to arrive at claim 16. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of non-Hodgkin lymphoma cancer (at least [0133]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating non-Hodgkin lymphoma cancer with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 17, Costa further teaches wherein the cancer is adenocarcinoma ([0503]) of the pancreas and wherein the subject is treated with 10 or more frequencies comprising ([0271-0274] being treated with at least 10 frequencies overlapping the claimed frequencies, specifically “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” and “that occur every 10 Hz in a range from about 0.01 Hz to about 20 KHz” (e.g., 441, 633, 759, 972, 975, 1251, 1314, 1656, 1671, 1914 in Table 6 define 10 frequency ranges that are divisible by 3 and thus disclosed by Costa)). Costa further teaches pancreatic cancer ([0133]).
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is adenocarcinoma of the pancreas.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of adenocarcinoma of the pancreas with the frequency ranges as disclosed by Costa to arrive at claim 17. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of adenocarcinoma (at least [0503]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating adenocarcinoma of the pancreas with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 18, Costa further teaches wherein the cancer is head and neck cancer ([0133]) and wherein the subject is treated with 10 or more frequencies comprising ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in frequencies 6897, 7080, 9573, 11559, 14052, 17379, and 19269 Hz being used in the claimed table; as well as frequencies 2892 Hz, 5151 Hz, 7275 Hz, 8754 Hz, 9657 Hz, 10440 Hz, 10485 Hz, 10644 Hz, and 10674 Hz each of which is either 0.3 Hz or 1 Hz from falling within a corresponding value on the claimed table) Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate the use of at least 10 head and neck cancer specific frequencies recited in claim 18, 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, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). One would have done so to provide a modulated treatment frequency that effectively targets head and neck cancer as it is known that each type of cancer possesses a specific frequency signature to inhibit cancer cell proliferation ([0268]), such that optimizing the head and neck cancer-specific amplitude modulation frequencies is a result-effective variable.
Regarding claim 19, Costa further teaches wherein the cancer is gastric cancer ([0133]) and wherein the subject is treated with 10 or more frequencies comprising ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed (e.g., 825, 843, 969, 1656, 2436, 2478, 3105, 3522, 3537, 3549 Hz in Table 9 define 10 frequency ranges that are divisible by 3 and thus disclosed by Costa)).
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is gastric cancer
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of gastric cancer with the frequency ranges as disclosed by Costa to arrive at claim 19 Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of gastric cancer (at least [0133]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating gastric cancer with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 20, Costa further teaches wherein the cancer is glioblastoma ([0133]) and wherein the subject is treated with 10 or more frequencies comprising ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed (e.g., 423, 612, 627, 741, 759, 2439, 2697, 3249, 3633, 4410 Hz in Table 10 define 10 frequency ranges that are divisible by 3 and thus disclosed by Costa)).
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is glioblastoma.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of glioblastoma with the frequency ranges as disclosed by Costa to arrive at claim 20. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of glioblastoma (at least [0133]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating glioblastoma with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 21, Costa further teaches wherein the cancer is squamous cell carcinoma ([0503]) of the anal canal ([0133]) and wherein the subject is treated with 10 or more frequencies comprising ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed (e.g., 2442, 3531, 3681, 5034, 5151, 5286, 6879, 6897, 8328, 8949 Hz in Table 11 define 10 frequency ranges that are divisible by 3 and thus disclosed by Costa)). Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have treated squamos cell carcinoma of the anal canal to arrive at the method of claim 21. Doing so would have been obvious to one of ordinary skill in the art as Costa explicitly contemplates treating squamous cell carcinoma ([0503]) and rectal cancer ([0133]) such that treating squamous cell carcinoma of the anal canal would be an obvious matter of utilizing well-known cancer treatment methods to yield the predictable result of treating squamous cell carcinoma in the anal canal.
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is squamous cell carcinoma of the anal canal.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of squamous cell carcinoma of the anal canal with the frequency ranges as disclosed by Costa to arrive at claim 21. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of squamous cell carcinoma of the anal canal (at least [0133] [0503]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating squamous cell carcinoma of the anal canal with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 22, Costa further teaches wherein the cancer is hepatocellular carcinoma ([0224]) and wherein the subject is treated with 10 or more frequencies comprising ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed for HCC).
Regarding claim 23, Costa further teaches wherein the cancer is cholangiocarcinoma ([0503] bile duct carcinoma is cholangiocarcinoma) and wherein the subject is treated with 10 or more frequencies comprising ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed (e.g., 624, 1755, 2094, 2430, 2679, 2835, 2865, 2886, 3009, 3042 Hz in Table 14 define 10 frequency ranges that are divisible by 3 and thus disclosed by Costa)):
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is cholangiocarcinoma.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of cholangiocarcinoma with the frequency ranges as disclosed by Costa to arrive at claim 23. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of cholangiocarcinoma (at least [0133] [0503]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating cholangiocarcinoma with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 24, Costa further teaches wherein the cancer is mesothelioma ([0503]) and wherein the subject is treated with 10 or more frequencies comprising: ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed (e.g., 429, 441, 465, 612, 831, 1191, 2988, 6042, 3240, 3621 Hz in Table 15 define 10 frequency ranges that are divisible by 3 and thus disclosed by Costa))
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is mesothelioma.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of mesothelioma with the frequency ranges as disclosed by Costa to arrive at claim 24. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of mesothelioma (at least [0503]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating mesothelioma with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 25, Costa further teaches wherein the cancer is thyroid cancer ([0554]) and wherein the subject is treated with 10 or more frequencies comprising: ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed (e.g., 834, 1815, 2313, 2328, 2373, 2436, 3030, 3609, 3981, 5259 Hz in Table 17 define 10 frequency ranges that are divisible by 3 and thus disclosed by Costa)).
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is thyroid cancer.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of thyroid cancer with the frequency ranges as disclosed by Costa to arrive at claim 25. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of thyroid cancer (at least [0554]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating thyroid cancer with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 26, Costa further teaches wherein the cancer is prostate cancer ([0133]) and wherein the subject is treated with 10 or more frequencies comprising: ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed claimed (e.g., 408, 561, 717, 810, 1668, 3207, 3627, 3756, 4152, 4476 Hz in Table 19 define 10 frequency ranges that are divisible by 3 and thus disclosed by Costa)).
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is prostate cancer.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of prostate cancer with the frequency ranges as disclosed by Costa to arrive at claim 26. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of prostate cancer (at least [0133]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating prostate cancer with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 27, Costa further teaches wherein the cancer is rhabdomyosarcoma ([0503]) and wherein the subject is treated with 10 or more frequencies comprising: ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed (e.g., 420, 429, 717, 810, 843, 1314, 1467, 1785, 3438, 3618 Hz in Table 21 define 10 frequency ranges that are divisible by 3 and thus disclosed by Costa)).
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is rhabdomyosarcoma.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of rhabdomyosarcoma with the frequency ranges as disclosed by Costa to arrive at claim 27. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of rhabdomyosarcoma cancer (at least [0133]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating rhabdomyosarcoma cancer with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 28, Costa further teaches wherein the cancer is colorectal cancer ([0133]) and wherein the subject is treated with 10 or more frequencies comprising: ([0271-0274] “every 3 Hz in a range from about 0.01 Hz to about 20 KHz” results in a treatment frequency of at least 10 frequencies claimed (e.g., 834, 1989, 2826, 3213, 3915, 4155, 4224, 4323, 4713, 4722 Hz in Table 22 define 10 frequency ranges that are divisible by 3 and thus disclosed by Costa)).).
Costa fails to explicitly teach wherein the cancer treated by the disclosed frequency ranges is colorectal cancer.
However, Costa further teaches that it is known in the art that cancers exposed to tumor-specific modulation frequencies causing said cancer cells to undergo cell death, modify their proliferative capacity, or a combination thereof ([0271-0273] [0342]) and that “application of a … set of frequencies can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient. For example, when treating particular types of cancer … application of … a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz, can be therapeutic in nature as well as provide prognostic and predictive information” ([0273]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Costa to incorporate treatment of colorectal cancer with the frequency ranges as disclosed by Costa to arrive at claim 28. Doing so would have been obvious to one of ordinary skill in the art as Costa discloses treatment of colorectal cancer cancer (at least [0133]) and that application of at least ten of the claimed frequency ranges is beneficial for particular cancer types in that it “provid[es] a prognostic and predictive benefit for a patient as well as providing a treatment to the patient” ([0273]) such that treating colorectal cancer with the frequencies disclosed by Costa would advantageously provide prognostic, predictive and treatment benefits.
Regarding claim 29, Costa teaches An apparatus for treating a subject suffering from cancer, the apparatus comprising: a conductive applicator configured to apply to the subject radio frequency radiation (Fig 7 and [0241] electrically conductive probe 13), wherein the low energy high frequency radiation comprises amplitude- modulated output signals ([0014]); and a frequency synthesizer coupled to the conductive applicator and configured to generate the amplitude-modulated output signals ([0135] Figs 3-7) by generating: a carrier frequency signal having a carrier frequency from about 1KHz to 5000 MHz ([0262] RF carrier signal can be between 1 MHz and 900 MHz); and amplitude modulation frequency signals having amplitude modulation frequencies from about 0.1 Hz to about 150,000 Hz ([0014] modulation frequency between 0.01 Hz and 150 KHz), wherein the amplitude modulation frequencies are selected to be cancer-specific frequencies ([0271-0273]); wherein the frequency synthesizer comprises: a digital carrier frequency synthesizer for generating the carrier frequency digital signal (Fig 3 carrier frequency oscillator 302); a digital modulation frequency synthesizer for generating the amplitude modulation frequency digital signal (digital synthesizer 306, shown in Fig 4 having internal component that synthesizes a digital amplitude modulation frequency before arrive at a DAC); an arithmetic logic unit (ALU) to numerically compute digital amplitude modulated signals from the carrier frequency digital signal and amplitude modulation frequency digital signal in real-time (Figs 3-4 [0160], device computes digital modulated signals from the carrier frequency signal and modulation frequency digital signal to provide each modulated digital signal at 304 with microprocessor 318); and a digital to analog converter (DAC) to convert the digital amplitude modulated signals to the amplitude modulated output signals ([0164]); a controller communicatively coupled to the frequency synthesizer ([0254] Figs 3-7); and memory used by the controller and specifying the frequencies of the cancer-specific amplitude modulation frequencies ([0254] disclosing microprocessor 21 with storage that stores specific modulation waveforms to retrieve selected modulation signal); wherein the amplitude modulation frequency signals specified in the memory to be produced by the frequency synthesizer ([0254]) comprise 10 or more cancer-specific amplitude modulation frequencies selected from Table A: Table A ([0274] [0280] “a modulated signal can be produced at a series of electromagnetic frequencies that occur every 3 Hz in a range from about 0.01 Hz to about 20 KHz” which overlaps with at least 10 frequency ranges of Table A (e.g., 420, 429, 441, 465, 561, 594, 612, 627, 633, 717, 834 Hz all are divisible by 3 and thus disclosed by Costa)).
Costa discloses the invention substantially as claimed above except for the exact carrier frequency range and the amplitude modulation frequencies range.
However 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 Costa to use a carrier frequency from about 1 KHz to 5000 MHz and a amplitude modulation frequency from about 0.1 Hz to about 150,000 Hz as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Costa fails to explicitly teach wherein the carrier frequency synthesizer is digital and gets converted to analog via the DAC as claimed.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the carrier signal synthesizer of Costa to incorporate a digital carrier signal synthesizer to arrive at claim 33. Doing so would be obvious to one of ordinary skill in the art as digital frequency synthesizers are well-known in the art to yield predictable results of generating frequency signals therein for use radio frequency radiation application. Furthermore, it would have been an obvious matter of design choice to one having ordinary skill in the art at before the effective filing date of the claimed invention to provide the carrier frequency synthesizer as digital and process the digital carrier signal with the digital amplitude modulated frequency to output the amplitude modulation frequency signal before entering a DAC, since applicant has not disclosed that this specific configuration solves any stated problem or is for any particular purpose and it appears that the invention would perform equally as well with the configuration of Costa in which an analog carrier frequency signals is used to output the same result of an analog amplitude modulated signals applied to a subject for cancer treatment.
Regarding claim 30, Costa further teaches the cancer is selected from the group consisting of breast cancer, neuroendocrine tumors, non-Hodgkin lymphoma, adenocarcinoma, head and neck cancer, gastric cancer, glioblastoma, squamous cell carcinoma, hepatocellular carcinoma, cholangiocarcinoma, mesothelioma, thyroid cancer, prostate cancer, rhabdomyosarcoma, lung cancer, kidney cancer, ovarian cancer, bladder cancer, leiomyosarcoma, myeloma, lymphoma, leukemia, chronic lymphoid cancer, brain cancer, and colorectal cancer ([0271-0274] disclose breast cancer and HCC).
Regarding claim 31, Costa further teaches wherein the carrier frequency is from about 0.1 - 1000 MHz ([0262] RF carrier signal can be between 1 MHz and 900 MHz).
Regarding claim 33, Costa teaches An apparatus for treating a subject suffering from cancer, the apparatus comprising: a conductive applicator configured to apply to the subject radio frequency radiation (Fig 7 and [0241] electrically conductive probe 13), wherein the radio frequency radiation comprises one or more amplitude- modulated output signals ([0014]); and a frequency synthesizer coupled to the conductive applicator and configured to generate the one or more amplitude-modulated output signals ([0135] Figs 3-7) by generating: a carrier frequency signal having a carrier frequency from about 1KHz to 5000 MHz ([0262] RF carrier signal can be between 1 MHz and 900 MHz); and amplitude modulation frequency signals having amplitude modulation frequencies from about 0.1 Hz to about 150,000 Hz ([0014] modulation frequency between 0.01 Hz and 150 KHz), wherein the amplitude modulation frequencies are selected to be cancer-specific frequencies ([0271-0273]); wherein the frequency synthesizer is a digital frequency synthesizer comprising (Fig 3 carrier frequency oscillator 302): a digital carrier frequency synthesizer configured to output the carrier frequency digital signal (Fig 3 [0158] oscillator 302 outputs carrier frequency signal) and a digital amplitude modulation frequency synthesizer configured to output the one or more amplitude modulation frequency digital signals (digital synthesizer 306, shown in Fig 4 having internal component that synthesizes a digital amplitude modulation frequency before arrive at a DAC); an arithmetic logic unit (ALU) configured to numerically compute one or more digital amplitude modulated signals from the carrier frequency digital signal and the amplitude modulation frequency digital signal in real-time (Figs 3-4 [0160], device computes digital modulated signals from the carrier frequency signal and modulation frequency digital signal to provide each modulated digital signal at 304 with microprocessor 318); and a digital to analog converter (DAC) configured to convert the one or more digital amplitude modulated signals to the one or more amplitude-modulated output signals ([0164]).
Costa discloses the invention substantially as claimed above except for the exact carrier frequency range and the amplitude modulation frequencies range.
However 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 Costa to use a carrier frequency from about 1 KHz to 5000 MHz and a amplitude modulation frequency from about 0.1 Hz to about 150,000 Hz as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Costa fails to explicitly teach wherein the carrier frequency synthesizer is digital and gets converted to analog via the DAC as claimed.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the carrier signal synthesizer of Costa to incorporate a digital carrier signal synthesizer to arrive at claim 33. Doing so would be obvious to one of ordinary skill in the art as digital frequency synthesizers are well-known in the art to yield predictable results of generating frequency signals therein for use radio frequency radiation application. Furthermore, it would have been an obvious matter of design choice to one having ordinary skill in the art at before the effective filing date of the claimed invention to provide the carrier frequency synthesizer as digital and process the digital carrier signal with the digital amplitude modulated frequency to output the amplitude modulation frequency signal before entering a DAC, since applicant has not disclosed that this specific configuration solves any stated problem or is for any particular purpose and it appears that the invention would perform equally as well with the configuration of Costa in which an analog carrier frequency signals is used to output the same result of an analog amplitude modulated signals applied to a subject for cancer treatment.
Regarding claim 34, Costa further teaches the cancer is selected from the group consisting of breast cancer, neuroendocrine tumors, non-Hodgkin lymphoma, adenocarcinoma, head and neck cancer, gastric cancer, glioblastoma, squamous cell carcinoma, hepatocellular carcinoma, cholangiocarcinoma, mesothelioma, thyroid cancer, prostate cancer, rhabdomyosarcoma, lung cancer, kidney cancer, ovarian cancer, bladder cancer, leiomyosarcoma, myeloma, lymphoma, leukemia, chronic lymphoid cancer, brain cancer, and colorectal cancer ([0271-0274] disclose breast cancer and HCC).
Regarding claim 35, Costa further teaches wherein the carrier frequency is from about 0.1 - 1000 MHz ([0262] RF carrier signal can be between 1 MHz and 900 MHz).
Regarding claim 36, Costa further teaches wherein the modulation frequency is from 100 Hz to 99,000 Hz ([0014] [0262] modulation frequency between 0.01 Hz and 150 KHz). 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 Costa to use a modulation frequency from about 100 Hz to about 99,000 Hz as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 37, Costa further teaches wherein the digital frequency synthesizer further comprises a controller configured to control a frequency (Fig 3-4, digital synthesizer controls frequency and is connected to microprocessor interface) and a power associated with the one or more amplitude-modulated output signals (Fig 3 power monitor 314 [0160]).
Regarding claim 38, Costa further teaches a directional coupler for providing, to the controller, power and absorption information relating to each of the one or more amplitude-modulated output signals (Fig 3 directional coupler 312; [0160, 0171] direction coupler works with power monitor to provide info relating to power and absorption of the amplitude modulated signals to the microprocessor).
Regarding claim 40, Costa teaches the use of a direct digital synthesizer (DDS) (DDS 306 [0159]).
Costa fails to explicitly teach wherein the digital carrier frequency synthesizer is a direct digital synthesizer (DDS).
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the carrier signal synthesizer of Costa to incorporate a direct digital synthesizer for the digital carrier frequency synthesizer to arrive at claim 40. Doing so would be obvious to one of ordinary skill in the art as direct digital frequency synthesizers are well-known in the art to yield predictable results of generating frequency signals therein for use in a low energy high frequency radiation application.
Regarding claim 41, Costa further teaches wherein the digital modulation frequency synthesizer is a direct digital synthesizer (DDS) (DDS 306 [0159]).
Regarding claim 42, Costa further teaches wherein the frequency synthesizer is configured to generate the one or more amplitude-modulated output signals, either sequentially or simultaneously ([0274]).
Regarding claim 43, Costa further teaches wherein the conductive applicator is configured for insertion into an oral cavity of the subject undergoing treatment ([0515] [0520] etc.).
Regarding claim 44, Costa further teaches wherein the amplitude modulation frequencies are determined or predetermined by a bio- feedback process involving observations or measurements of physiological reactions by the subject during a time that cellular functions of the subject are excited by exposing the subject to emission of a modulated output signal ([0511]).
Claim(s) 39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Costa (U.S. PGPub No. 2022/0000373) in view of Cerussi (U.S. PGPub No. 2015/0351635).
Regarding claim 39, Costa further teaches wherein the digital frequency synthesizer further comprises a phase-locked loop (PLL) frequency multiplier ([0064] disclosing a phased locked loop system).
Costa fails to explicitly teach wherein the PLL is configured to set a system clock for one or more of the following: the digital carrier frequency synthesizer or the digital modulation frequency synthesizer.
In related prior art, Cerussi teaches a similar system comprising a PLL oscillator for providing a stable and precise frequencies ([0046] [0059]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Costa in view of Cerussi to incorporate the PLL configured to set a system clock for one or more of the following: the digital carrier frequency synthesizer or the digital modulation frequency synthesize to arrive at claim 39. Doing so would advantageously provide for stable and precise frequencies of the carrier or digital modulation frequencies ([0046] [0059]).
Response to Arguments
On page 44 of the remarks the Applicant alleges that the Examiner “does not specifically identify in Costa the ten or more breast cancer specific amplitude modulation frequencies recited in Table 1 [of claim 14] (nor the other cancer-type specific amplitude modulation frequencies of parts (b)-(o) of claim 1, or claims 15-28).” However, the examiner has cited paragraphs [0271-0274] of Costa disclosing delivering “a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz, or in a range from about 0.01 Hz to about 2 KHz” to treat “particular types of cancer”. For clarity, this disclosure of Costa is interpreted that a series of frequencies starting from about 0.01 occurs every 3 Hz such that frequencies 0.01 Hz, 3.01 Hz, 6.01 Hz, 9.01 Hz … and so on increasing by three up to 20,000 Hz is delivered to the subject.
Meanwhile, Table 1 of the claim contains at least 10 frequency ranges that are taught by the above disclosure of Costa. For example, the frequency ranges of Table 1 include 429-429.7 Hz, 1728-1728.7 Hz, 2811-2811.7 Hz, 3360-3360.7 Hz, 3663-3663.7 Hz, 3936-3936.7 Hz, 4323-4323.7 Hz, 4329-4329.7 Hz, 4416-4416.7 Hz, and 4833-4833.7 Hz. All of which contain a number that is divisible by 3 and thus taught by the above disclosure of Costa. As a result, the frequencies disclosed by Costa are necessarily “breast cancer specific amplitude modulation frequencies” as recited by the claim. It is recognized that an inherent feature need not be recognized at the relevant time:
“There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the relevant time, but only that the subject matter is in fact inherent in the prior art reference. Schering Corp. v. Geneva Pharm. Inc., 339 F.3d 1373, 1377, 67 USPQ2d 1664, 1668 (Fed. Cir. 2003).”
As such, applicant’s argument that Costa does not teach the claimed cancer specific frequencies is unpersuasive.
On page 45 of the remarks, the Applicant further states that the disclosure of Costa teaching a series of frequencies of every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz “may start at any undefined frequency, result[ing] in a completely undefined set of frequencies characterized only in having a spacing of 3 Hz ot 10 Hz”. This is unpersuasive, the Examiner is of the position that “a series of electromagnetic frequencies that occur every 3 Hz or 10 Hz in a range from about 0.01 Hz to about 20 KHz” explicitly teaches a starting point of about 0.01 Hz as described above. The disclosure defines the range of delivered frequences “from” about 0.01.
On pages 46-47 the applicant argues against the obvious to try rationale of the prior office action. These arguments have been considered but are moot because the new ground of rejection does not rely on any obvious to try rationale applied in the prior rejection of record.
On page 47 of the remarks the applicant alleges the Examiner fails “to articulate a rationale or motivation to arrive at the particular 10 or more amplitude modulation frequencies of Table 1, nor to use such frequencies in the treatment of breast cancer”. As stated above, the Examiner is of the position that the Costa reference discloses the 10 claimed breast cancer specific frequencies. Those arguments remain unpersuasive.
However, the Examiner recognizes Costa fails to explicitly teach that the frequency range disclosed in para. [0273] is to be used for treatment of breast cancer. However, para. [0273] merely states the frequency range be applied to “particular types of cancer” without limiting or teaching away from the type of cancer. Costa merely provides HCC as an exemplary, but not limiting example of the cancer to be treated while further teaching that the disclosed range of frequencies “can be beneficial in both providing a prognostic and predictive benefit for a patient as well as providing a treatment to the patient”. Furthermore, Costa teaches in para. [0133] the treatment of breast cancer with RF frequencies such that the Examiner is of the position that one of ordinary skill in the art would be motivated to treat a subject with breast cancer with frequencies every 3 Hz from about 0.01 Hz to about 20,000 Hz to advantageously provide a prognostic and predictive benefit for a patient as well as providing a treatment to the patient.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Adam Z Minchella whose telephone number is (571)272-8644. The examiner can normally be reached M-Fri 7-3 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Stoklosa can be reached at (571) 272-1213. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ADAM Z MINCHELLA/Primary Examiner, Art Unit 3794
