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 .
Remarks
This action is in response to the remarks filed 04/09/2026.
Claims 1-20, 22, and 24-28 are pending.
Response to Arguments
No arguments have been provided for the interpretation of the limitation “fastening means” in claims 1, 11, and 18 under 35 U.S.C. 112(f). Therefore, this interpretation is maintained.
Applicant’s arguments, see pages 7-13 of Remarks filed 04/09/2026, with respect to the previous rejections of claims 1-24 under 35 U.S.C. 103 have been fully considered. Independent claims 1 and 11 have been amended to recite “the phototherapy mask comprises a first facial treatment area defining a facial area and a second facial treatment area defining an under-chin area”, the under-chin area is adapted to fold in a second plane relative to the first plane in a folded configuration, and “at least one of the facial area or the under-chin area defines a fastening aperture therethrough and the other one of the facial area or the under-chin area defines an engaging fastener configured to engage the fastening aperture to retain the under-chin area in the folded configuration”. Claims 21 and 23 have been cancelled and new claims 25-28 have been added. Applicant argues that DeBow in view of Bhardwaj does not disclose the claimed limitations. Examiner respectfully disagrees. DeBow discloses facial and under-chin treatment areas with the under-chin area adapted to fold (e.g. Figs. 11A, B, 12: facial mask shown with under chin portion), and a fastening aperture to retain the under-chin area in a folded configuration (e.g. Par. [0078]; Par. [0080]; Fig. 13A, B). Therefore, DeBow is still eligible as prior art. The claims are now rejected as explained in the office action below. New claims 25-28 are addressed in the office action below.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Such claim limitations are: the “fastening means” in claims 1, 11, and 18. For examination purposes, the fastening means will be understood to be any type of fasteners, as explained in par. [0036] of the instant specification.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 26 and 28 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 26 and 28 recite first and second nose flaps configured to “confront a first side of the use's nose and a second nose flap configured to confront a second side of the user's nose” (claim 26) and “each of the first nose flap and the second nose flap are connected to the facial area at a first flap end; and a second flap end of each of the first nose flap and the second nose flap, distal to the first flap end, is a free end.” (claim 28). These limitations are not described in the instant specification. While the instant specification mentions a nose aperture at par. [0033], it does not describe the claimed features of claims 26 and 28.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-20, 22, and 24-28 are rejected under 35 U.S.C. 103 as being unpatentable over DeBow (US Patent Application Publication 2021/0023387 – of record), further in view of Bhardwaj (US Patent Application Publication 2022/0339462 – of record).
Regarding claim 1, DeBow discloses a phototherapy mask for phototherapy treatment of a user (e.g. Abstract), comprising:
a backing layer made of a flexible material (e.g. Par. [0078]: flexible face mask; Par. [0045]: mask made of flexible material such as silicone);
an electronics layer comprising one or more light sources (e.g. Fig. 2: layer 5 with LEDs 4; Pars. [0051]-[0054]: internal circuitry layer 5 can hold the light sources; Par. [0079]: face mask with internal layer that includes the light sources);
a skin-contacting layer comprising one or more transparent regions coinciding with the one or more light sources (e.g. Par. [0048]: the layers 2, 2A that faces the patient is clear to allow the light to pass through; Par. [0079]: face mask contains all of the layer previously described); and
fastening means (e.g. Par. [0057]: belt used to hold the mask against the body; Par. [0080]: describing Figs. 13A, B that depict belts; Figs. 13A, B: belts that can be used); wherein:
the phototherapy mask comprises a first facial treatment area defining a facial area and a second facial treatment area defining an under-chin area (e.g. Figs. 11A, B: portions 142 for folding under the user’s neck and chin; Fig. 12: face mask with area folded under the user’s chin; Pars. [0078] – [0079]: facial treatment mask with neck treatment flaps 142);
the facial area is adapted to fold about a face of the user in a first plane and shaped to releasably fasten about a head of the user using the fastening means (e.g. Fig. 12: face mask bent around face of a user in multiple planes to fit around the face and also the neck and chin; Par. [0079]: “The apparatus is meant to be placed on face 162 and secured into place with hook and loop trough rings (e.g., rings 8) attached or embedded into the mask 140.”; Par. [0078]: slits 148 and 150 provided in the facemask to help fold the mask into place around a face of a user; Par. [0080]: describing Figs. 13A, B that depict belts; Figs. 13A, B: belts that can be used);
the under-chin area is adapted to fold in a second plane relative to the first plane in a folded configuration (e.g. Fig. 12: face mask bent around face of a user in multiple planes to fit around the face and also the neck and chin; Par. [0079]: “The apparatus is meant to be placed on face 162 and secured into place with hook and loop trough rings (e.g., rings 8) attached or embedded into the mask 140.”; Par. [0078]: slits 148 and 150 provided in the facemask to help fold the mask into place around a face of a user); and
the phototherapy mask contains an aperture configured to match the user’s nose and mouth (e.g. Pars. [0078]-[0079]: face mask contains opening 146 for nose and mouth of the user); and
at least one of the facial area or the under-chin area defines a fastening aperture therethrough and the other one of the facial area or the under-chin area defines an engaging fastener configured to engage the fastening aperture to retain the under-chin area in the folded configuration (e.g. Pars. [0078]-[0080]: the face mask includes fastening apertures, “The apparatus is meant to be placed on face 162 and secured into place with hook and loop trough rings (e.g., rings 8) attached or embedded into the mask 140.”; Fig. 13A, B: examples of the fastening aperture).
However, DeBow fails to specifically disclose wherein the phototherapy mask comprises at least three apertures configured to match the user's eyes, nose, and mouth. Bhardwaj, in a similar field of endeavor, is directed towards a phototherapy face mask. Bhardwaj discloses wherein the phototherapy face mask comprises at least three apertures configured to match the user's eyes, nose, and mouth (e.g. Fig. 1: openings 104 for the eyes, nose, and mouth; Figs. 2, 3, 5, 6: openings 104 are not labeled but can be seen; Par. [0054]: face mask has openings for the eyes, nose, and mouth to allow the user to see and breathe during the light therapy).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of DeBow to include the apertures as taught by Bhardwaj to allow the user to see and breathe during the therapy (e.g. Bhardwaj, par. [0054]).
Regarding claim 11, DeBow discloses a phototherapy mask for phototherapy treatment of a user (e.g. Abstract), comprising:
a backing layer made of a flexible material (e.g. Par. [0078]: flexible face mask; Par. [0045]: mask made of flexible material such as silicone);
an electronics layer comprising one or more light sources (e.g. Fig. 2: layer 5 with LEDs 4; Pars. [0051]-[0054]: internal circuitry layer 5 can hold the light sources; Par. [0079]: face mask with internal layer that includes the light sources);
a skin-contacting layer comprising one or more transparent regions coinciding with the one or more light sources (e.g. Par. [0048]: the layers 2, 2A that faces the patient is clear to allow the light to pass through; Par. [0079]: face mask contains all of the layer previously described); and
fastening means configured to releasably fasten the phototherapy mask about a head of the user (e.g. Par. [0057]: belt used to hold the mask against the body; Par. [0080]: describing Figs. 13A, B that depict belts; Figs. 13A, B: belts that can be used); wherein:
the phototherapy mask contains an aperture configured to match the user’s nose and mouth (e.g. Pars. [0078]-[0079]: face mask contains opening 146 for nose and mouth of the user);
the phototherapy mask comprises a first facial treatment region defining a facial area configured to confront the user's face (e.g. Fig. 12: face mask bent around face of a user in multiple planes to fit around the face and also the neck and chin; Par. [0079]: “The apparatus is meant to be placed on face 162 and secured into place with hook and loop trough rings (e.g., rings 8) attached or embedded into the mask 140.”; Par. [0078]: slits 148 and 150 provided in the facemask to help fold the mask into place around a face of a user; Par. [0080]: describing Figs. 13A, B that depict belts; Figs. 13A, B: belts that can be used);
the phototherapy mask further comprises a second facial treatment area defining an under-chin area configured to confront under the user's chin (e.g. Figs. 11A, B: portions 142 for folding under the user’s neck and chin; Fig. 12: face mask with area folded under the user’s chin; Pars. [0078] – [0079]: facial treatment mask with neck treatment flaps 142); and
at least one of the facial area or the under-chin area defines a fastening aperture therethrough and the other one of the facial area or the under-chin area defines an engaging fastener configured to engage the fastening aperture to retain the under-chin area in the folded configuration (e.g. Pars. [0078]-[0080]: the face mask includes fastening apertures, “The apparatus is meant to be placed on face 162 and secured into place with hook and loop trough rings (e.g., rings 8) attached or embedded into the mask 140.”; Fig. 13A, B: examples of the fastening aperture).
However, DeBow fails to specifically disclose wherein the phototherapy mask comprises at least three apertures configured to match the user's eyes, nose, and mouth. Bhardwaj, in a similar field of endeavor, is directed towards a phototherapy face mask. Bhardwaj discloses wherein the phototherapy face mask comprises at least three apertures configured to match the user's eyes, nose, and mouth (e.g. Fig. 1: openings 104 for the eyes, nose, and mouth; Figs. 2, 3, 5, 6: openings 104 are not labeled but can be seen; Par. [0054]: face mask has openings for the eyes, nose, and mouth to allow the user to see and breathe during the light therapy).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of DeBow to include the apertures as taught by Bhardwaj to allow the user to see and breathe during the therapy (e.g. Bhardwaj, par. [0054]).
Regarding claims 2 and 13, DeBow further discloses wherein the flexible material comprises silicone (e.g. Par. [0045]).
Regarding claims 3 and 14, DeBow further discloses wherein the electronics layer includes a flexible printed circuit board connected to the one or more light sources (e.g. Par. [0039]).
Regarding claims 4 and 15, DeBow further discloses wherein the one or more light sources are light-emitting diodes capable of emitting light with at least one wavelength between 300nm and 1200nm (e.g. Par. [0029]: wavelength of 300nm to 1100nm).
Regarding claims 5 and 16, DeBow further discloses wherein the at least one wavelength is between 420nm and 1080nm (e.g. Par. [0029]: wavelength of 300nm to 1100nm).
Regarding claims 6 and 17, DeBow further discloses wherein the electronics layer further includes an electrical connector configured to electrically connect to a power controller unit that is adapted to provide power to the electronic layer and to control the one or more light sources therein (e.g. Par. [0029]).
Regarding claim 7, DeBow further discloses wherein the power controller unit is remote from the phototherapy mask (e.g. Par. [0061]; Fig. 3 showing different power sources).
Regarding claim 8, DeBow further discloses wherein the power controller unit is integral to the electronics layer (e.g. Par. [0040]).
Regarding claims 9 and 19, DeBow further discloses wherein the under-chin area is configured to flexibly fold under a user's chin, and wherein a proximal end of the under-chin area is connected to the facial area by a narrowed neck region between the facial area and the under-chin area (e.g. Figs. 11A, B: portions 142 for folding under the user’s neck and chin connected to the facial area through the narrow portion 144; Fig. 12: face mask with area folded under the user’s chin).
Regarding claims 10 and 20, DeBow further discloses wherein the fastening means includes one or more fixing straps and cooperating retainer loops (e.g. Fig. 11B: loops 8 for holding a strap; Par. [0079]).
Regarding claim 12, DeBow further discloses wherein the backing layer comprises a flexible material (e.g. Par. [0078]: flexible face mask; Par. [0045]: mask made of flexible material such as silicone).
Regarding claim 18, DeBow further discloses the facial area of the phototherapy mask is adapted to fold about a face of the user in a first plane and shaped to releasably fasten about a head of the user using the fastening means (e.g. Fig. 12: face mask bent around face of a user in multiple planes to fit around the face and also the neck and chin; Par. [0079]: “The apparatus is meant to be placed on face 162 and secured into place with hook and loop trough rings (e.g., rings 8) attached or embedded into the mask 140.”; Par. [0078]: slits 148 and 150 provided in the facemask to help fold the mask into place around a face of a user; Par. [0080]: describing Figs. 13A, B that depict belts; Figs. 13A, B: belts that can be used); and the under-chin area is adapted to fold in a second plane relative to the first plane (e.g. Fig. 12: face mask bent around face of a user in multiple planes to fit around the face and also the neck and chin; Par. [0079]: “The apparatus is meant to be placed on face 162 and secured into place with hook and loop trough rings (e.g., rings 8) attached or embedded into the mask 140.”; Par. [0078]: slits 148 and 150 provided in the facemask to help fold the mask into place around a face of a user).
Regarding claims 22 and 24, DeBow further discloses wherein opposing distal side ends of the neck area, distal to the proximal end of the neck area, are configured to couple to opposing sided of the facial area to retain the neck area in the folded configuration under the user's chin (e.g. Figs. 11A, B: portions 142 for folding under the user’s neck and chin; Fig. 12: face mask with area folded under the user’s chin).
Regarding claims 25 and 27, DeBow further discloses wherein the engaging fastener extends from the backing layer (e.g. Par. [0079]; Fig. 11A, B: fasteners 8 extending from the mask).
Regarding claim 26, DeBow further discloses wherein the aperture configured to match the user's nose defines a first nose flap configured to confront a first side of the use's nose and a second nose flap configured to confront a second side of the user's nose (e.g. Par. [0079]: the nose opening has two flaps resting on each side of the nose).
Regarding claim 28, DeBow further discloses the aperture configured to match the user's nose defines a first nose flap configured to confront a first side of the use's nose and a second nose flap configured to confront a second side of the user's, each of the first nose flap and the second nose flap are connected to the facial area at a first flap end, and a second flap end of each of the first nose flap and the second nose flap, distal to the first flap end, is a free end (e.g. Par. [0079]: the nose opening has two flaps resting on each side of the nose).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Kang et al. (US 2023/0000683 – of record) is directed towards a skin care apparatus.
Park (US 2022/0369793 – of record) is directed towards a light emitting mask.
Jin et al. (US 2022/0314022 – of record) is directed towards a light emitting skin care device.
Lay et al. (US 2021/0370090 – of record) is directed towards a phototherapeutic device.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHREYA P ANJARIA whose telephone number is (571)272-9083. The examiner can normally be reached M-F: 8:00-5:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer McDonald can be reached at 571-270-3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHREYA ANJARIA/Examiner, Art Unit 3796
/ALLEN PORTER/Primary Examiner, Art Unit 3796
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