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 .
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: figures do not include the following reference sign “700 and 800” mentioned in the description in at least [0046].
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities:
“…circuit board 202can… in para.[0043] needs to be corrected. A suggested correction is -- circuit board [[202can]] 202 can --.
Appropriate correction is required.
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant's cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Following claims are objected to because of the following informalities:
Claim 4 “wherein the start time and end time least to an exposure time from 30 seconds to 1 hour” needs to be corrected. A suggested correction is – wherein the start time and end time include an exposure time from 30 seconds to 1 hour—or -- wherein the start time and end time [[least]] lead to an exposure time from 30 seconds to 1 hour--.
Claim 6, claim 10 includes acronyms/abbreviations. At least first occurrence of each acronym/abbreviation should be spelled out in full.
Appropriate correction is required.
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.
Claim 2, 9-11, 15-20 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
Claim 9-10 each recite “the third wavelength”. There is insufficient antecedent basis for this limitation in the claims.
Claim 17 recite “the light source device”. There is insufficient antecedent basis for this limitation in the claims.
Claim 2 is rejected under 35 U.S.C. 112(b) for being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention for the following reasons. First, claim 1 recites “photoceutical comprises at least one of a pulsed light signal, a continuous light signal, and a super-pulsed light signal” i.e. a super-pulsed light signal is optional. Claim 2 goes on to require super-pulsed light signal recited in the base claim in an optional manner. However, these limitations render the claims indefinite as the claim 1 never positively recites photoceutical comprises a super-pulsed light signal. Therefore, Claim 2 is rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
Claim 8 recites “the at least two non-coherent light sources provide the pulsed light signal and/or the continuous light signal at a second wavelength and a third wavelength” which renders this claim unclear. More specifically, multiple “and/or” as used here render the scope of this claim unclear.
Claim 15 recites “wherein the light signal and the magnetic signal are delivered as a photoceutical to a spot on skin of a patient over at least a portion a muscle during a detraining period after a physical activity is discontinued from a start time to an end time” which renders this claim unclear. More specifically, it is unclear as to “a start time to an end time” qualifies photoceutical delivery or physical activity discontinuation.
Claim 20 recites “at least two magnets comprise at least eight magnets” which renders this claim indefinite. More specifically, a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 20 recites the broad recitation “at least two magnets”, and the claim also recites “at least eight magnets” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Dependent claims 11, 16-20 when analyzed as a whole are held to be patent ineligible under 35 U.S.C. 112(b) because the additional recited limitations fail to cure the 35 U.S.C. 112(b) issue in their respective base claims. Consequently, dependent claims 11, 16-20 are also rejected under 35 U.S.C. 112(b) based on their direct/indirect dependency on their respective base claims.
Claim Interpretation
Claims terms where relevant are being interpreted in light of definitions enumerated in instant application specification para.[0017-0029].
Please note that USPTO personnel are to give claims their broadest reasonable interpretation in light of the supporting disclosure. In re Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027-28 (Fed. Cir. 1997). Limitations appearing in the specification but not recited in the claim should not be read into the claim. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369, 67 USPQ2d 1947, 1950 (Fed. Cir. 2003) (claims must be interpreted "in view of the specification" without importing limitations from the specification into the claims unnecessarily). In re Prater, 415 F.2d 1393, 1404-05, 162 USPQ 541, 550-551 (CCPA 1969). See also In re Zletz, 893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989) ("During patent examination the pending claims must be interpreted as broadly as their terms reasonably allow.... The reason is simply that during patent prosecution when claims can be amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed.... An essential purpose of patent examination is to fashion claims that are precise, clear, correct, and unambiguous. Only in this way can uncertainties of claim scope be removed, as much as possible, during the administrative process.").
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. US 11,077,314 B1 (U.S. Patent Application No. 17/141363). Although the claims 1-14 at issue are not identical, they are not patentably distinct from each other because the patented claims drawn to species and thus, anticipate the more generic or broader claims now pending (instant Claims 1- 20). That is, the rationale of In re Goodman applies here in that once Applicant has received a patent for a species or a more specific embodiment, Applicant is not entitled to a patent for the generic or broader invention without maintaining common ownership and ensuring that the term of the latter issued patent will expire at the end of the original term of the earlier issued patent.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. US 10,744,337 B2 (U.S. Patent Application No. 16/325825) in view of view of Johnson et al. (Pub. No.: WO 2018191640 A1, hereinafter referred to as "Johnson"). More specifically, claim 1 recites essentially the same method as claim 1 of US 10,744,337 B2 (i.e. not patentably distinct from each other) except for the following feature: method applied during a detraining period after a physical activity is discontinued and to preserve strength of the muscle gained from the physical activity and/or prevent atrophy of the muscle during the detraining period which is taught by reference Johnson in an analogous combinatorial photoceutical magnet therapy field of endeavor (see at least Johnson in at least fig. 1-4, 10-13, [0026-0027], [0032], [0044], [0067]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify claim 1 of US 10,744,337 B2 by extending photobiomodulation therapy to prevent atrophy of the muscle during the detraining period, as also disclosed by Johnson. A person of ordinary skill would have been motivated to do so, with a reasonable expectation of success, for the advantage of extending therapeutics benefits to treat other muscular atrophy/detrained issues such as muscle atrophy (Johnson, [0027], [0041], [0044], [0080]). For similar reasons, examined dependent claims 2-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over the claims 2-13 of US 10,744,337 B2 in view of Johnson as a whole. Claim 15 recites essentially the same method as claim 14 of US 10,744,337 B2 (i.e. not patentably distinct from each other) except for the following feature: photoceutical medical device therapy delivery during a detraining period after a physical activity is discontinued, preserving strength of the muscle gained from the physical activity and/or prevent atrophy of the muscle during the detraining period, and at least two magnets to provide a magnetic signal which is taught by reference Johnson in an analogous combinatorial photoceutical magnet therapy field of endeavor (see at least Johnson in at least fig. 1-4, 10-13, [0026-0027], [0032], [0044], [0067]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify claim 14 of US 10,744,337 B2 by extending photobiomodulation therapy to prevent atrophy of the muscle during the detraining period, as also disclosed by Johnson. A person of ordinary skill would have been motivated to do so, with a reasonable expectation of success, for the advantage of extending therapeutics benefits to treat other muscular atrophy/detrained issues such as muscle atrophy (Johnson, [0027], [0041], [0044], [0080]). Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify number of magnets used in claim 14 of US 10,744,337 B2 such that the number of magnets used is at least two magnets, as made obvious by Johnson as a matter of making separable what is disclosed as integral in prior art (MPEP 2144.04) and/or as a matter of mere duplication of prior art disclosed element (see MPEP 2144.04). A person of ordinary skill would have been motivated to do so, with a reasonable expectation of success, for the advantage of obtaining a substantially functionally equivalent and predictable result of delivering therapeutically effective PBMT to the dystrophic muscle or muscle group (Johnson, [0027], [0044], [0080]). For similar reasons, examined dependent claim 16-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over the claim 15-19 of US 10,744,337 B2 in view of Johnson as a whole.
Claims 15-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. US 11,590,355 B2 (U.S. Patent Application No. 16/993117) in view of Johnson. First here, please note that “at least one permanent magnet” as recited in claim 1 of US 11,590,355 B2 is being broadly yet reasonably interpreted as encompassing “at least two magnets” as recited in examined claim 1 and “at least eight magnets” as recited in examined claim 20. More particularly, claim 15 recites essentially the same device as claim 1 of US 11,590,355 B2 (i.e. not patentably distinct from each other) except for the following feature: photoceutical medical device therapy delivery during a detraining period after a physical activity is discontinued, preserving strength of the muscle gained from the physical activity and/or prevent atrophy of the muscle during the detraining period, and at least two magnets to provide a magnetic signal which is taught by reference Johnson in an analogous combinatorial photoceutical magnet therapy field of endeavor (see at least Johnson in at least fig. 1-4, 10-13, [0026-0027], [0032], [0044], [0067]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify claim 1 of US 11,590,355 B2 by extending photobiomodulation therapy to prevent atrophy of the muscle during the detraining period, as also disclosed by Johnson. A person of ordinary skill would have been motivated to do so, with a reasonable expectation of success, for the advantage of extending therapeutics benefits to treat other muscular atrophy/detrained issues such as muscle atrophy (Johnson, [0027], [0041], [0044], [0080]). For similar reasons, examined dependent claim 16-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over the claim 2-7 of US 11,590,355 B2 in view of Johnson as a whole.
Claims 1-20 under examination are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims of copending Application No. 17/977,413 (reference copending application). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims merely recite the same device or essentially the same device as claimed in the reference copending application in claims 1-20. Furthermore, although the claims being examined are not identical, they are not patentably distinct from each other because claims 1-20 of copending Application No. 17/977,413 are a species of broader claims 1-20 under examination which are a genus and thus, anticipate the more generic or broader claims being examined i.e. claims 1 of copending Application No. 17/977,413 is a species of claim 1 under examination which is a genus and thus, anticipates the more generic or broader claim 1 now under examination, claim 16 of copending Application No. 17/977,413 is a species of claim 15 under examination which is a genus and thus, anticipates the more generic or broader claim 15 now under examination etc. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson.
As per independent Claim 1, Johnson discloses a method (Johnson in at least abstract, fig. 1-4, 10-13, [0002], [0004-0006], [0026-0032], [0037-0038], [0040-0042], [0044-0053], [0055-0056], [0067], [0080] for example discloses relevant subject-matter. More specifically, Johnson in at least fig. 3-4, fig.12, abstract, [0004-0006], [0026-0030], [0040], [0044] for example discloses a PBMT method. See Johnson [0027] “"photobiomodulation therapy (PBMT)" refers to a drug- free, non-invasive treatment procedure, in which a light signal is applied to a certain region of a subject's body to treat a certain medical condition (e.g., pain, injury, disorder, disease, or the like) via a phototherapeutic response”; [0038] “systems and methods that apply PBMT”; [0044] “system 10 can include at least a light source device 11 that delivers the PBMT to the dystrophic muscle or muscle group and a controller 12 to deliver inputs to the light source device 11 related to the delivery of the PBMT via a wired connection and/or a wireless connection”) comprising:
contacting a photoceutical medical device to a spot on skin of a patient over at least a portion a target muscle (Johnson in at least fig. 12, [0005], [0032], [0044], [0067] for example discloses contacting a photoceutical medical device to a spot on skin of a patient over at least a portion a target muscle. See at least [0005] “a method for applying PBMT to a patient diagnosed with FM to treat FM. A light source device can be contacted to a subject’s skin”; [0044] “ light source device 11 that delivers the PBMT to the dystrophic muscle or muscle group”; [00067] “multiple light sources (LLLT and LED) Pain Away/PainCure™ nine-diode cluster device (Multi Radiance Medical®, Solon, OH, USA) was applied to…trapezius, supraspinatus…gluteal”); and
applying a photoceutical through the photoceutical medical device to the muscle from a start time to an end time to deliver therapy (Johnson in at least fig. 1-2, 10-13 [0005], [0032], [0044], [0067] discloses applying a photoceutical through the photoceutical medical device (fig. 1, 10-11, 13) to the muscle from a start time to an end time such as 300 second to deliver therapy. See at least Johnson [0005] “light signal can be applied in at least one of a pulsed operating mode, a continuous operating mode, and a super-pulsed operating mode through the light source device … light signal is applied for a time sufficient to stimulate a phototherapeutic response”; [0044] “system 10 can include at least a light source device 11 that delivers the PBMT to the dystrophic muscle or muscle group and a controller 12 to deliver inputs to the light source device 11 related to the delivery of the PBMT via a wired connection and/or a wireless connection”; [0067] “multiple light sources (LLLT and LED) Pain Away/PainCure™ nine-diode cluster device (Multi Radiance Medical®, Solon, OH, USA) was applied to…trapezius, supraspinatus…gluteal…was irradiated for 300 s”),
wherein the photoceutical comprises at least one of a pulsed light signal, a continuous light signal, and a super-pulsed light signal (Johnson in at least [0005-0006], fig. 2, [0051-0052], [0067], table 1 on pages 19-20 for example discloses the photoceutical comprises at least one of a pulsed light signal, a continuous light signal, and a super-pulsed light signal. See at least Johnson [0005] “A light signal can be applied in at least one of a pulsed operating mode, a continuous operating mode, and a super-pulsed operating mode through the light source device”).
Johnson does not necessarily require method applied during a detraining period after a physical activity is discontinued and to preserve strength of the muscle gained from the physical activity and/or prevent atrophy of the muscle during the detraining period feature in the applied embodiment.
However, Johnson discloses alternate embodiments that disclose photoceutical method comprising contacting a photoceutical medical device to a spot on skin of a patient over at least a portion a muscle during a detraining period after a physical activity is discontinued (Here, the term “detraining” is being interpreted in light of instant application specification as-file para. [0022] as “general periods of inactivity (e.g., a period of lack of activity due to illness, injury… or the like)… For example, an individual who discontinues physical activities due to illness, injury or other factors may lose physical conditioning due to detraining”. Further, Johnson in at least [0067] discloses contacting a photoceutical medical device to a spot on skin of a patient over at least a portion a muscle which in the case of a patient with dystrophic muscle or muscle group as in [0044] would be during a detraining period after a physical activity is discontinued); and
applying a photoceutical through the photoceutical medical device to the muscle from a start time to an end time to preserve strength of the muscle gained from the physical activity and/or prevent atrophy of the muscle during the detraining period (Johnson in at least fig. 1-4, 10-13, [0026-0027], [0032], [0044], [0067] for example discloses applying a photoceutical through the photoceutical medical device (fig. 1-2, 10-13) to the muscle ([0044] “dystrophic muscle or muscle group”) from a start time to an end time such as 300s which in the case of a patient with dystrophic muscle or muscle group as in [0044] would be to prevent atrophy of the muscle during the detraining period).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the photobiomodulation therapy method as taught by Johnson, by extending photobiomodulation therapy to prevent atrophy of the muscle during the detraining period, as also disclosed by Johnson. A person of ordinary skill would have been motivated to do so, with a reasonable expectation of success, for the advantage of extending therapeutics benefits to treat other muscular atrophy/detrained issues such as muscle atrophy (Johnson, [0027], [0041], [0044], [0080]).
As per dependent Claim 2, Johnson as a whole further discloses method wherein the photoceutical comprises a super-pulsed light signal and at least one of a pulsed light signal and a continuous light signal (Johnson, fig. 2, [0005-0006], [0032], [0044], [0067], table 1 on pages 19-20 for example discloses a super-pulsed light signal and at least one of a pulsed light signal and a continuous light signal. See Johnson [0005] “light signal can be applied in at least one of a pulsed operating mode, a continuous operating mode, and a super-pulsed operating mode through the light source device”; [0006] “cluster of light delivery sources can include: a first light source configured to generate a first portion of a light signal with a wavelength from 890-910 nm in a super-pulsed operating mode; a second light source configured to generate a second portion of the light signal with a wavelength from 600-700 nm in a pulsed operating mode or a continuous operating mode; and a third light source configured to generate a third portion of the light signal with a wavelength from 810-880 in the pulsed operating mode or the continuous operating mode”).
As per dependent Claim 3, Johnson as a whole further discloses method wherein the photoceutical further comprises a magnetic field (Johnson [0005] discloses photoceutical further comprises a magnetic field. See at least Johnson [0005] “light source device can be configured to contact …the subject's body and includes a cluster of light delivery sources, a permanent magnet… permanent magnet can provide a constant magnetic field from 5 mT to 1 T.”).
As per dependent Claim 4, Johnson as a whole further discloses method wherein the start time and end time least to an exposure time from 30 seconds to 1 hour (Johnson in at least [0005],[0044], [0067] for example discloses the start time and end time least to an exposure time 300 second which falls within recited range from 30 seconds to 1 hour. See at least Johnson [0005] “light signal is applied for a time sufficient to stimulate a phototherapeutic response”; [0067] “multiple light sources (LLLT and LED) Pain Away/PainCure™ nine-diode cluster device (Multi Radiance Medical®, Solon, OH, USA) was applied to…trapezius, supraspinatus…gluteal…was irradiated for 300 s”).
As per dependent Claim 5, Johnson as a whole further discloses method further comprising: moving the photoceutical medical device to another spot on the skin of the patient over at least another portion of the muscle or at least a portion of another muscle (Johnson in fig. 3, [0032], [0044], [0053-0056], [0067] for example discloses moving the photoceutical medical device to another spot on the skin of the patient over at least another portion of the muscle or at least a portion of another muscle. See at least Johnson [0055-0056] “a light source device (e.g. light source device 11) can be contacted to a subject's skin… light signal is applied for a time sufficient to stimulate a phototherapeutic response”; [0044] “delivers the PBMT to the dystrophic muscle or muscle group”); and
applying the photoceutical through the photoceutical medical device to the other portion of the muscle or the portion of the other muscle from another start time to another end time (Johnson fig. 4, [0032], [0044], [0053], [0057], [0067] for example discloses applying the photoceutical through the photoceutical medical device to the other portion of the muscle or the portion of the other muscle from another start time to another end time. See at least Johnson [0057] “method 30 continues in FIG. 4, which shows a method 40 that occurs after moving the light source device. At step 42, the light source (e.g. light source device 11) can be moved to another area of the subject's skin proximal to another tender area. At step 44, a light signal can be applied to the other tender area. At step 46, a phototherapeutic response can be stimulated in the other tender area.”; [0044] “delivers the PBMT to the dystrophic muscle or muscle group”).
As per dependent Claim 6, Johnson as a whole further discloses method wherein the photoceutical further comprises a static magnetic field from 5mT to 1T (Johnson in [0006] “permanent magnet can provide a constant magnetic field from 5 mT to 1 T.”).
As per dependent Claim 7, Johnson as a whole further discloses method wherein the photoceutical medical device comprises: at least one super pulsed laser to provide the super-pulsed light signal (Johnson in at least table 1 on pages 19-20, [0030], [0042], [0051-0052] for example discloses at least one super pulsed laser to provide the super-pulsed light signal LS1 15. See at least Johnson [0042] “one or more super pulsed lasers”; [0051] “ LSI 15 can be configured to generate a first portion of the light signal with a wavelength from 890-910 nm (infrared); …LSI 15, which is in the middle of each light delivery source cluster 13, can operate in the super- pulsed operating mode”); and at least two non-coherent light sources to provide the pulsed light signal and/or the continuous light signal (Johnson in at least [0005-0006], table 1 on pages 19-20, [0028], [0030], [0042], [0051-0052] for example discloses at least two non-coherent light sources LS2, LS3 to provide the pulsed light signal and/or the continuous light signal. see at least Johnson [0042] “one or more infrared emitting diodes, and one or more light emitting diodes”; [0051] LSI 15 can be configured to generate … LS2 16 can be configured to generate a second portion of the light signal with a wavelength from 600-700 nm (red); and LS3 17 can be configured to generate a third portion of the light signal with a wavelength from 810-880 nm… LS2 16 and LS3 17, which surround LSI, can each operate in the continuous operating mode or the pulsed operating mode” ).
As per dependent Claim 8, Johnson as a whole further discloses method wherein: the at least one super pulsed laser provides the super-pulsed light signal at a first wavelength; the at least two non-coherent light sources provide the pulsed light signal and/or the continuous light signal at a second wavelength and a third wavelength (Johnson in [0005-0006], table 1 on pages 19-20, [0028], [0030], [0051] for example discloses the at least one super pulsed laser provides the super-pulsed light signal at a first wavelength; the at least two non-coherent light sources provide the pulsed light signal and/or the continuous light signal at a second wavelength and a third wavelength. See at least Johnson [0051] “light sources (LSI 15, LS2 16, LS3 17) each generate light waves with wavelengths within a wavelength range of 600-1100 nm (red to infrared)…LSI 15 can be configured to generate a first portion of the light signal with a wavelength from 890-910 nm (infrared); LS2 16 can be configured to generate a second portion of the light signal with a wavelength from 600-700 nm (red); and LS3 17 can be configured to generate a third portion of the light signal with a wavelength from 810-880 nm”).
As per dependent Claim 9, Johnson as a whole further discloses method wherein the photoceutical comprises super-pulsed light of a first wavelength from at least one super-pulsed light source, pulsed and/or continuous light of a second wavelength from at least two non-coherent light sources, and pulsed and/or continuous light of the third wavelength from at least two other non-coherent light sources (Johnson in [0005-0006], table 1 on pages 19-20, [0030], [0042], [0051-0052] for example discloses photoceutical comprises super-pulsed light of a first wavelength from at least one super-pulsed light source, pulsed and/or continuous light of a second wavelength from at least two non-coherent light sources, and pulsed and/or continuous light of the third wavelength from at least two other non-coherent light sources. See at least Johnson [0042] “the light signal can be configured so that individual light waves (from chosen light sources, with a selected wavelength, with a given power, and the like) within the light signal work constructively to create a synergistic effect. The light signal can be delivered by a light source device that includes a combination of one or more super pulsed lasers … one or more infrared emitting diodes, and one or more light emitting diodes”; [0051] LSI 15 can be configured to generate … LS2 16 can be configured to generate a second portion of the light signal with a wavelength from 600-700 nm (red); and LS3 17 can be configured to generate a third portion of the light signal with a wavelength from 810-880 nm… LS2 16 and LS3 17, which surround LSI, can each operate in the continuous operating mode or the pulsed operating mode”).
As per dependent Claim 10, Johnson as a whole further discloses method wherein the first wavelength is between 850 nm and 950 nm, the second wavelength is between 800 nm and 900 nm, and the third wavelength is between 580 nm and 800 nm (Johnson in table 1 on pages 19-20, [0006] for example discloses the first wavelength is between 850 nm and 950 nm, the second wavelength is between 800 nm and 900 nm, and the third wavelength is between 580 nm and 800 nm. See at least [0006] “cluster of light delivery sources can include: a first light source configured to generate a first portion of a light signal with a wavelength from 890-910 nm in a super-pulsed operating mode; a second light source configured to generate a second portion of the light signal with a wavelength from 600-700 nm in a pulsed operating mode or a continuous operating mode; and a third light source configured to generate a third portion of the light signal with a wavelength from 810-880 in the pulsed operating mode or the continuous operating mode”).
As per dependent Claim 11, Johnson as a whole further discloses method wherein the photoceutical medical device comprises: at least four super-pulsed lasers, each configured to provide the super-pulsed light of the first wavelength; at least eight pulsed and/or continuous light sources, each configured to provide the light of the second wavelength; at least eight other pulsed and/or continuous light sources, each configured to provide the light of the third wavelength (Johnson in at least [0030], [0042], [0052] for example discloses at least one super-pulsed lasers, each configured to provide the super-pulsed light of the first wavelength; at least eight pulsed and/or continuous light sources, each configured to provide the light of the second wavelength; at least one other pulsed and/or continuous light sources, each configured to provide the light of the third wavelength which reads on subject-matter as now explicitly, positively and specifically recited as prior art “one or more” would encompass “at least four” and “at least eight” of respective light source types as recited. See at least Johnson [0042] “light signal can be delivered by a light source device that includes a combination of one or more super pulsed lasers (which deliver a desired peak power from an ultrashort pulse with a minimized level of heat accumulated in the patient's tissue), one or more infrared emitting diodes, and one or more light emitting diodes.”; [0052] “Many configurations of each light delivery source cluster 13 are possible. Two examples of possible configurations are set forth, but countless other possibilities exist (including with other light sources), as long as there are one or more LI, one or more L2, one or more L3”); and
at least eight magnetic sources to provide a magnetic signal (Johnson’s disclosure in at least table 1 on pages 19-20, [0006], [0042], [0047], [0080] for example of a magnetic source to provide a magnetic signal makes subject-matter as now explicitly, positively and specifically recited by the Applicants obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to derive as a matter of making separable what is disclosed as integral in prior art (MPEP 2144.04) and/or as a matter of mere duplication of prior art disclosed integral element (see MPEP 2144.04) in order to obtain a substantially functionally equivalent and predictable result of delivering therapeutically effective PBMT to the patient’s targeted body part such as dystrophic muscle or muscle group (Johnson, [0027], [0044], [0080]) . See at least Johnson [0042] “light source device can include a permanent magnet to provide a static (or constant) magnetic field”).
As per dependent Claim 12, Johnson as a whole further discloses method wherein the muscle is any soft tissue within the patient's body that contracts to change a length and/or a shape of the soft tissue (Johnson in at least [0006], [0032], [0044], [0067] for example discloses the muscle is any soft tissue within the patient's body that contracts to change a length and/or a shape of the soft tissue. See at least Johnson [0006] “light source device can be configured to contact a subject's skin proximal to a tender area on the subject's body ”; [0044] “system 10 can include at least a light source device 11 that delivers the PBMT to the dystrophic muscle or muscle group”; [0067] “multiple light sources (LLLT and LED) Pain Away/PainCure™ nine-diode cluster device (Multi Radiance Medical®, Solon, OH, USA) was applied to…trapezius, supraspinatus…gluteal”).
As per dependent Claim 13, Johnson as a whole further discloses method wherein the muscle is skeletal muscle (Johnson in at least [0032], [0044], [0067] for example discloses muscle is skeletal muscle. See at least Johnson [0044] “system 10 can include at least a light source device 11 that delivers the PBMT to the dystrophic muscle or muscle group”; [0067] “multiple light sources (LLLT and LED) Pain Away/PainCure™ nine-diode cluster device (Multi Radiance Medical®, Solon, OH, USA) was applied to…trapezius, supraspinatus…gluteal”).
As per dependent Claim 14, Johnson as a whole further discloses method further comprising: selecting the spot on skin of a patient over at least a portion a muscle (Johnson in fig. 3, [0032], [0044], [0053-0056], [0067] for example discloses selecting the spot on skin of a patient (fig. 3) which could be a muscle as disclosed in [0032], [0044] and [0067]. See at least Johnson [0055-0056] “a light source device (e.g. light source device 11) can be contacted to a subject's skin… light signal is applied for a time sufficient to stimulate a phototherapeutic response”; [0044] “delivers the PBMT to the dystrophic muscle or muscle group”; [0067] “multiple light sources (LLLT and LED) Pain Away/PainCure™ nine-diode cluster device (Multi Radiance Medical®, Solon, OH, USA) was applied to…trapezius, supraspinatus…gluteal…was irradiated for 300 s”); and selecting another spot on the skin of the patient over at least a portion of another muscle or at least another portion of the muscle(Johnson fig. 4, [0032], [0044], [0053], [0057], [0067] for example discloses selecting another spot on the skin of the patient (fig. 4) which could be over at least a portion of another muscle or at least another portion of the muscle as disclosed in [0032], [0044] and [0067]).
As per independent Claim 15, Johnson discloses a photoceutical medical device (Johnson in at least abstract, fig. 1-4, 10-13, [0002], [0004-0006], [0026-0032], [0037-0038], [0040-0042], [0044-0053], [0055-0056], [0067], [0080] for example discloses relevant subject-matter. More specifically, Johnson in at least fig. 1-2, 10-13, abstract, [0004-0006], [0026-0030], [0040], [0044] for example discloses a PBMT medical device. See at least [0027] “"photobiomodulation therapy (PBMT)" refers to a drug- free, non-invasive treatment procedure, in which a light signal is applied to a certain region of a subject's body to treat a certain medical condition (e.g., pain, injury, disorder, disease, or the like) via a phototherapeutic response.”; [0029] “"light source device" refers to a mechanical implement that can deliver a light signal of PMBT to a portion of the subject's body. Examples of the light source device include a probe, a flexible array device, or the like”; [0038] “systems and methods that apply PBMT”; [0044] “system 10 can include at least a light source device 11 that delivers the PBMT to the dystrophic muscle or muscle group and a controller 12 to deliver inputs to the light source device 11 related to the delivery of the PBMT via a wired connection and/or a wireless connection” ) comprising:
a circuit board (Johnson in at least fig. 1, [0045], [0047-0048] for example discloses electronics such as circuit board. See at least Johnson [0045] “light source device 11, including an electronics housing 2001 … electronics housing 2001 can include processing unit 14 and the power source and other electronics required for operation of the light source device 11"; [0047] “probe device 3011 can include …electronics housing 2001 can be housed within the device housing 2002 with at least the light delivery source clusters 13 being included in an area that contacts the skin”; [0048] “light source device 11 can also include a processing unit 14 programmed (e.g., preprogrammed, programmed in response to an input from the controller 12 (which may be in response to an input), or the like) with a time for application of the light signal … sufficient to stimulate the phototherapeutic response … processing unit 14 can also be programmed with the certain wavelength, the certain power, and/or the operating mode”) comprising:
a plurality of light sources to provide a light signal (Johnson in at least fig. 2, [0028-0030], [0067], table 1 on pages 19-20 for example disclose a plurality of light sources to provide a light signal. See at least Johnson [0028] “light signal may include a combination of lights having wavelengths that create a synergistic effect when combined and improve the percentage of available light at greater tissue depths… wavelengths can be within a wavelength range of 600-1100 nm… wavelengths can include at least one wavelength corresponding to the visible range of the electromagnetic spectrum (e.g., red light) and at least one wavelength corresponding to the near-infrared or infrared range of the electromagnetic spectrum.”; [0030] “"light source" refers to a component of a light source device that delivers one or more lights of different wavelengths. For example, the light source can be a low-level laser source (e.g., a laser light emitting diode (LED)) that generates coherent light. The low-level laser source can operate in a super pulsed mode that generates ultrashort pulses with a high peak power and minimal heat. As another example, the light source can be an incoherent light source, such as a traditional LED or light bulb. The incoherent light source can operate in a pulsed mode and/or a continuous mode.”) comprising:
at least one super pulsed laser to provide super-pulsed light of a first wavelength, at least two non-coherent light sources to provide pulsed and/or continuous light of a second wavelength, at least two other non-coherent light sources to provide pulsed and/or continuous light of a third wavelength(Johnson in [0005-0006], table 1 on pages 19-20, [0030], [0042], [0051] for example discloses at least one super pulsed laser to provide super-pulsed light of a first wavelength, at least two non-coherent light sources to provide pulsed and/or continuous light of a second wavelength, at least two other non-coherent light sources to provide pulsed and/or continuous light of a third wavelength. See at least Johnson [0042] “the light signal can be configured so that individual light waves (from chosen light sources, with a selected wavelength, with a given power, and the like) within the light signal work constructively to create a synergistic effect. The light signal can be delivered by a light source device that includes a combination of one or more super pulsed lasers … one or more infrared emitting diodes, and one or more light emitting diodes… light source device can include groups of a super pulsed laser, at least three infrared emitting diodes, and at least three light source devices… light source device can include a permanent magnet to provide a static (or constant) magnetic field.”; [0051] “light sources (LSI 15, LS2 16, LS3 17) each generate light waves with wavelengths within a wavelength range of 600-1100 nm (red to infrared)…LSI 15 can be configured to generate a first portion of the light signal with a wavelength from 890-910 nm (infrared); LS2 16 can be configured to generate a second portion of the light signal with a wavelength from 600-700 nm (red); and LS3 17 can be configured to generate a third portion of the light signal with a wavelength from 810-880 nm”),
wherein the light signal comprises at least one of the super-pulsed light of the first wavelength, the pulsed and/or continuous light of the second wavelength, and the pulsed and/or continuous light of the third wavelength(Johnson in [0005-0006], table 1 on pages 19-20, [0028], [0030], [0051] for example discloses wherein the light signal comprises at least one of the super-pulsed light of the first wavelength, the pulsed and/or continuous light of the second wavelength, and the pulsed and/or continuous light of the third wavelength. See at least Johnson [0028] “light signal may include a combination of lights having wavelengths that create a synergistic effect when combined and improve the percentage of available light at greater tissue depths… wavelengths can be within a wavelength range of 600-1100 nm…wavelengths can include at least one wavelength corresponding to the visible range of the electromagnetic spectrum (e.g., red light) and at least one wavelength corresponding to the near-infrared or infrared range of the electromagnetic spectrum”; [0030] “light source can be a low-level laser source (e.g., a laser light emitting diode (LED)) that generates coherent light. The low-level laser source can operate in a super pulsed mode …light source can be an incoherent light source, such as a traditional LED or light bulb. The incoherent light source can operate in a pulsed mode and/or a continuous mode.”); and
at least one magnet to provide a magnetic signal (Johnson in at least table 1 on pages 19-20, [0006], [0042], [0047] for example discloses magnetic source to provide a magnetic signal),
wherein the light signal and the magnetic signal are delivered as a photoceutical to a spot on skin of a patient over at least a portion a target muscle from a start time to an end time to deliver therapy (Johnson in at least fig. 1-2, 10-13, table 1 on pages 19-20, [0006], [0032], [0042], [0047], [0044], [0067] discloses wherein the light signal and the magnetic signal are delivered as a photoceutical to a spot on skin of a patient over at least a portion a target muscle from a start time to an end time sufficient to deliver phototherapeutic response/therapy. See at least Johnson [0006] “light source device can be configured to contact a subject's skin …on the subject's body and includes a cluster of light delivery sources, a permanent magnet, a processing unit, and a power source… processing unit can be preprogrammed with a time for application of the light signal”; [0042] “the light signal can be configured so that individual light waves (from chosen light sources, with a selected wavelength, with a given power, and the like) within the light signal work constructively to create a synergistic effect. The light signal can be delivered by a light source device that includes a combination of one or more super pulsed lasers … one or more infrared emitting diodes, and one or more light emitting diodes… light source device can include groups of a super pulsed laser, at least three infrared emitting diodes, and at least three light source dev