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 .
Priority
Acknowledgement is made to Applicant’s claim to priority to National Stage App. PCT/IB2021/051983 filed March 10, 2021; and to Foreign App. No. CH00276/20 filed March 11, 2020.
Status of Claims
This Office Action is responsive to the amendment filed on November 14, 2025. As directed by the amendment: claim 1 has been amended; and claims 16-19 and 24 have been cancelled. Thus, claims 1-5, 7-15, 20-23, and 25-26 are presently pending in this application.
Applicant’s amendments to claim 1 obviates the previous objection made thereto. Claim 16, and claims 17-19 by dependency, were previously rejected under 35 U.S.C. 112(b) as being indefinite. Applicant’s cancelling of claims 16-19 obviates the previous rejection under 35 U.S.C. 112(b). Claim 24 was previously rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends. Applicant’s cancelling of claim 24 obviates the previous rejection under 35 U.S.C. 112(d).
Claim(s) 1-5, 7-8, 11-15, and 24-26 were previously rejected under 35 U.S.C. 103 as being unpatentable over Daffer et al. (U.S. Pub. No. 2004/0260364) in view of Krietzmann (U.S. Pub. No. 2018/0168237). Claims 9 and 21 were previously rejected under 35 U.S.C. 103 as being unpatentable further in view of Belson et al. (U.S. Pub. No. 2012/0167878). Claim(s) 10 and 22 were previously rejected under 35 U.S.C. 103 as being unpatentable further in view of Yeo et al. (U.S. Pub. No. 2005/0171451).
Applicant's amendments necessitated the application of new grounds of rejection in light of prior art, shown below.
Claim Interpretation
The term “essentially” in the limitation “the energy essentially directed at the exposure area” in claims 1, 2, and 14 are interpreted to not meaningfully alter the plain meaning of the “the energy directed at the exposure area” and allows for minor variance in manufacturing and minimal variations under conditions of use. See MPEP 2173.05
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.
See Claim 1 “at least one means for emitting the energy”, ln 5; and “at least one means of generating a vapour mixture”, ln 6.
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.
Claim(s) 1-5, 7-8, 11, 13-15, and 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Daffer et al. (U.S. Pub. No. 2004/0260364; hereinafter: “Daffer”) in view of Krietzmann (U.S. Pub. No. 2018/0168237).
Regarding Claim 1, Daffer discloses a device configured to expose a human body to energy (Abstract), wherein the energy comprises electromagnetic and/or kinetic energy (Abstract), comprising:
a. a contact surface (surface denoted by: 14, 60, 61, 62, 90, 92, 94; Fig. 1, 2) that defines an exposure area (area under: 14, 60, 61, 62, 90, 92, 94; Fig. 1, 2) in which a human body can be positioned within a coverage area of the energy (area inside 14, 60, 61, 62, 90, 92, 94; Fig. 1, 2);
b. at least one means for emitting the energy (88A-88F or 86; Fig. 1, 2, 5, 8, 11) essentially directed at the exposure area (¶¶ 0008, 0040-0042, 0049, 0055, 0060, 0076-0078),
at least one means of generating a vapour mixture (130; Fig. 1, 2, 11) comprising the vapour mixture (¶¶ 0053-0055, 0066, 0076-0078), and
at least one means of conveying the vapour mixture (14, 60, 61, 62, 90, 92, 94; Fig. 1, 2) to an area surrounding the openings to a respiratory system of the human body (¶¶ 0053-0055, 0066, 0076-0078; Examiner notes: Daffer discloses the vapour mixture being delivered to the mouth and/nose of the human body), wherein the means of conveying a vapour mixture includes a retaining hood (14, 60, 61, 62, 90, 92, 94; Fig. 1, 2), wherein the retaining hood extends in the exposure area and at least the areas of the retaining hood lying within the exposure area between the human body and the means of emitting the energy essentially directed at the exposure area are transparent to electromagnetic waves (14, 60, 61, 62, 90, 92, 94, 86; Fig. 1, 2; ¶¶ 0005, 0008, 0013, 0037, 0039-0041, 0045-0046, 0053-0055, 0060, 0066, 0076-0078), and wherein the retaining hood essentially prevent escape of the vapour mixture from the area surrounding the openings to the respiratory system of the human body (Fig. 1; ¶ 0040, Claim 1, 2, 17, 24).
Daffer does not specifically disclose the device wherein the at least one means of generating the vapour mixture comprises at least one cannabinoid, and the at least one means of conveying the vapour mixture comprising a dose of the at least one cannabinoid to the area surrounding the openings to a respiratory system of the human body.
Krietzmann teaches a device at least one means of generating the vapour mixture (102, 112, 125; Fig. 2-4E) comprises at least one cannabinoid (¶¶ 0056-0058), and at least one means of conveying the vapour mixture (70, 80, 90; Fig. 2, 3, 10A, 10D, 10E, 11A-11C) comprising a dose of the at least one cannabinoid to an area surrounding the openings to a respiratory system of the human body (¶¶ 0054, 0055, 0070) for the purpose of ensuring a beneficial cannabinoid dose is provided during a plurality of uses (¶ 0058).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the device of Daffer to include the at least one means of generating the vapour mixture comprises at least one cannabinoid, and the at least one means of conveying the vapour mixture comprising the dose of the at least one cannabinoid to the area surrounding the openings to a respiratory system of the human body as taught by Krietzmann for the purpose of ensuring a beneficial cannabinoid dose is provided during a plurality of uses (See Krietzmann: ¶ 0058).
Regarding claim 2, the modified device of Daffer discloses the device wherein the means of emitting the energy essentially directed at the exposure area is designed to emit electromagnetic energy (See Daffer: 86; Fig. 1, 2, 5, 8, 11; ¶¶ 0008, 0040, 0041, 0060, 0076-0078; “inferred”).
Regarding claim 3, the modified device of Daffer discloses the device wherein the means of emitting the energy essentially directed at the exposure area is designed to emit a directed jet of fluid (See Daffer: 88A-88F; Fig. 1, 2, 5, 8, 11; ¶¶ 0008, 0040-0042, 0049, 0055, 0060, 0076-0078; jet of fluid from a “shower head”).
Regarding claim 4, the modified device of Daffer discloses the device wherein the means of generating the vapour mixture is a vaporizer (See Daffer: ¶ 0053, See Krietzmann: 10, 125; Fig. 4A-4E; ¶ 0058).
Regarding claim 5, the modified device of Daffer discloses the device wherein the retaining hood is suitable for the generation in the vapour mixture of the dose of the at least one cannabinoid in the area surrounding the openings to the respiratory system of the human body and the maintenance thereof (See Daffer: ¶¶ 0053-0055, 0066, 0076-0078, See Krietzmann: ¶¶ 0054-0058, 0070).
Regarding claim 7, the modified device of Daffer discloses the device including a storage tank (See Daffer: 46; Fig. 11; ¶¶ 0053, 0063, See Krietzmann: “containment area”; ¶¶ 0046-0048, 0051, 0071) for a vaporization agent (See Daffer: ¶¶ 0053-0055, 0066, 0076-0078, See Krietzmann: “material”; ¶¶ 0046-0048, 0051, 0071) comprising at least one cannabinoid See Krietzmann: ¶¶ 0046-0048, 0051, 0071) and a heating element (See Krietzmann: 40, 40A, 40B, 40C; ¶¶ 0048, 0050, 0055-0058) for heating a defined amount of she vaporization agent such that vapour mixture comprising a defined amount of the at least one cannabinoid forms (See Krietzmann: ¶¶ 0045-0048, 0050, 0055-0058).
Regarding claim 8, the modified device of Daffer discloses the device including at least one fan (112; Fig. 2) for generating an air flow in the area surrounding the openings to the respiratory system of the human body (See Daffer: ¶¶ 0048, 0062, 0073).
Regarding claim 11, the modified device of Daffer discloses the device wherein the means of conveying the vapour mixture comprising the dose of the at least one cannabinoid to the area surrounding the openings to the respiratory system of the human body includes an inlet opening (See Daffer: ¶¶ 0065, 0066; Fig. 11, See Krietzmann: 77, 87; Fig. 2, 3; ¶¶ 0053, 0055) that feeds vapour mixture generated outside the retaining hood into said hood.
Regarding claim 12, the modified device of Daffer discloses the device wherein the means of conveying the vapour mixture comprising the dose of the at least one cannabinoid to the area surrounding the openings to the respiratory system of the human body includes an outlet opening (See Daffer: at 130; Fig. 1, 2, 11; ¶¶ 0053-0055, 0066, 0076-0078, See Krietzmann: at 92; Fig. 1, 2; ¶ 0055).
Regarding claim 13, the modified device of Daffer discloses a method for the operation of a device according to Claim 1, comprising the steps of:
a. providing a device for exposing a human body sf the person to energy according to Claim 1, see above;
b. providing a vaporization agent (See Daffer: ¶¶ 0053-0055, 0066, 0076-0078, See Krietzmann: “material”; ¶¶ 0046-0048, 0051, 0071) comprising at least one vaporizable herbal medicinal substance (See Daffer: ¶¶ 0053-0055, 0066, 0076-0078, See Krietzmann: “material”; ¶¶ 0046-0048, 0051, 0071) comprising at least one cannabinoid (See Krietzmann: ¶¶ 0045-0048, 0050, 0055-0058);
c. vaporizing the vaporization agent using the means of generating a vapour mixture such that this results in the formation of a vapour mixture comprising a dose of the at least one herbal medicinal substance (See Daffer: ¶¶ 0053-0055, 0066, 0076-0078, See Krietzmann: ¶¶ 0045-0048, 0050, 0051, 0055-0058);
d. conveying the vapour mixture using the means of conveying the vapour mixture to the area surrounding the openings to the respiratory system of the human body (See Daffer: ¶¶ 0040, 0053-0055, 0066, 0076-0078; Claim 1, 2, 17, 24; Examiner notes: Daffer discloses the vapour mixture being delivered to the mouth and/nose of the human body.).
Regarding claim 14, the modified device of Daffer discloses the method wherein the device includes a control (See Daffer: 108, 149I; Fig. 1, 4, 10A-10D, See Krietzmann: 22, 300; Fig. 2, 4A, 8, 9), and wherein operating parameters of the means of generating the vapour mixture and of the means of emitting the energy essentially directed at the exposure area are regulated and/or controlled (See Daffer: ¶¶ 0046, 0047, 0055, 0058-0060, 0063, 0070, 0077, 0078, See Krietzmann: ¶¶ 0048, 0049, 0056-0058, 0065).
Regarding claim 15, the modified device of Daffer discloses the method wherein the device includes at least one sensor (See Krietzmann: 57, 420; Fig. 4A, 8, 9) and the method further comprises the steps of:
a. the control receiving measured data determined by the sensor (See Krietzmann: ¶¶ 0015-0017, 0020-0022, 0045, 0048, 0050, 0056, 0057, 0065, 0068, 0071); b. evaluating the measured data in respect of one or more operating parameters (See Krietzmann: ¶¶ 0015-0017, 0020-0022, 0045, 0048, 0050, 0056, 0057, 0065, 0068, 0071); and c. converting the evaluation into one or more control signals for regulating the one or more operating parameters (See Krietzmann: ¶¶ 0015-0017, 0020-0022, 0045, 0048, 0050, 0056, 0057, 0065, 0068, 0071).
Regarding claim 25, the modified device of Daffer discloses the method wherein the vapour mixture comprises a dose of at least one cannabinoid (See Krietzmann: ¶¶ 0045-0048, 0050, 0051, 0055-0058, 0070).
Regarding claim 26, the modified device of Daffer discloses the method wherein the conveying is performed such that the dose of at least one cannabinoid is formed inside the retaining hood (See Daffer: ¶¶ 0065, 0066; Fig. 11, See Krietzmann: ¶¶ 0053, 0055).
Claims 9 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Daffer in view of Krietzmann as applied to claims 1 above, and further in view of Belson et al. (U.S. Pub. No. 2012/0167878; hereinafter: “Belson”).
Regarding Claims 9 and 21, the modified device of Daffer discloses the device of claim 1, shown above.
The modified device of Daffer does not specifically disclose the device including at least one optoelectronic sensors, wherein the optoelectronic sensor is configured for the determination of at least one photoelectrically measurable physiological parameter of the human body in the coverage area of the energy.
Belson teaches an optoelectronic sensor (112; Fig. 1a, 1c; ¶¶ 0009, 0045), wherein the optoelectronic sensor is configured for the determination of at least one photoelectrically measurable physiological parameter of the human body in the coverage area of the energy (¶¶ 0009, 0045; Examiner notes: Belson discloses the optoelectronic sensor as an IR sensor used to determine and monitor the user’s temperature) for the purpose of ensuring the user’s temperature does not exceed safe limits and making adjustments based on the user’s temperature (¶ 0009, 0045).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the modified device of Daffer to include the optoelectronic sensor being configured for the determination of at least one photoelectrically measurable physiological parameter of the human body in the coverage area of the energy as taught by Belson for the purpose of ensuring the user’s temperature does not exceed safe limits and making adjustments based on the user’s temperature (See Belson: ¶ 0009, 0045).
Claim(s) 10 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Daffer in view of Krietzmann as applied to claim 1, above, and further in view of Yeo et al. (U.S. Pub. No. 2005/0171451; hereinafter: “Yeo”).
Regarding Claims 10 and 22, the modified device of Daffer discloses the device of claim 1, shown above.
The modified device of Daffer does not specifically disclose the device including at least one bioelectric sensor is configured for the measurement of resistance.
Yeo teaches a bioelectric sensor (345; Fig. 5) is configured for the measurement of resistance (¶¶ 0063, 0069) for the purpose of determining a body fat measurement (¶ 0069).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the modified device of Daffer to include the bioelectric sensor configured for the measurement of resistance as taught by Yeo for the purpose of determining a body fat measurement (See Yeo: ¶ 0069).
Claim(s) 12, 20, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Daffer in view of Krietzmann as applied to claims 1 and 8, respectively above, and further in view of Foster (U.S. Pat. No. 3,877,697).
Regarding Claims 12 and 23, the modified device of Daffer discloses the device, of claim 1, shown above.
The modified device of Daffer does not specifically disclose the device wherein the means of conveying the vapour mixture comprising the dose of the at least one cannabinoid to the area surrounding the openings to the respiratory system of the human body includes an outlet opening; wherein the outlet opening is connected to a suction device.
Foster teaches a device comprising a means of conveying the vapour mixture (col 2, ln 56-65) to an area surrounding openings to the respiratory system of the human body (area under 22; Fig. 1-3) includes an outlet opening (44; Fig. 1, 2); wherein the outlet opening is connected to a suction device (Abstract; col 2, ln 33-43; col 2, ln 55 to col 3, ln 42) for the purpose of preventing the vapour mixture from affecting others not under the retaining hood (col 1, ln 32-48; col 2, ln 56-65; col 3, ln 1-42)
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the modified device of Daffer to include the wherein the means of conveying the vapour mixture comprising the dose of the at least one cannabinoid to the area surrounding the openings to the respiratory system of the human body includes the outlet opening; wherein the outlet opening is connected to the suction device as taught by Foster for the purpose of preventing the vapour mixture from affecting others not under the retaining hood (See Foster: col 1, ln 32-48; col 2, ln 56-65; col 3, ln 1-42).
Regarding Claim 20, the modified device of Daffer discloses the device of claim 8, shown above.
The modified device of Daffer does not specifically disclose the device wherein the air flow is configured for extraction of the vapour mixture comprising a dose of at least one cannabinoid from the retaining hood.
Foster teaches a device comprising an air flow being configured for extraction of a vapour mixture from a retaining hood (22; Fig. 1-3; col 1, ln 32-48; col 2, ln 56-65; col 3, ln 1-42) for the purpose of preventing the vapour mixture from affecting others not under the retaining hood (col 1, ln 32-48; col 2, ln 56-65; col 3, ln 1-42).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the modified device of Daffer to include the air flow is configured for extraction of the vapour mixture comprising a dose of at least one cannabinoid from the retaining hood as taught by Foster for the purpose of preventing the vapour mixture from affecting others not under the retaining hood (See Foster: col 1, ln 32-48; col 2, ln 56-65; col 3, ln 1-42).
Response to Arguments
Applicant's arguments filed November 14, 2025 have been fully considered but they are not persuasive. Applicant asserts prior art of record Daffer fails to disclose any feature that generates or delivers a vapor mixture comprising a cannabinoid. The described steam and mist systems are limited to water, aromatic oils, vitamins, or hormones for absorption through the skin, not for inhalation or respiratory delivery (See Dapper: ¶ 0053), Pg. 8.
Examiner respectfully disagrees. Firstly, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Specifically, Daffer is not relied upon to disclose the delivery of a vapor mixture comprising a cannabinoid. Prior art of Krietzmann discloses the vapor mixture comprising a cannabinoid that is delivered for inhalation. Secondly, the Dapper fails to explicitly state that the water, aromatic oils, vitamins, or hormones are not for inhalation or respiratory. Instead recites the at least one means of generating a vapour mixture (See Daffer: 130; Fig. 1, 2, 11) is above the chest area of the person (See Daffer: ¶ 0053) and, as stated by Applicant, the steam and mist systems deliver aromatic oils, which must be delivered to the respiratory system of the user to be aromatic.
Applicant asserts prior art of record Daffer fails to disclose any retaining hood located within the exposure area that surrounds the mouth or nose because the user’s head is positioned outside of the cover, and no structure is provided for conveying vapor to the respiratory openings of the users, Pg. 8-9.
Examiner respectfully disagrees. Applicant identifies a “cover” that extends up to the shoulder area of the user (See Daffer: ¶ 0009). However, in Non-Final filed June 16, 2025 the retaining hood is said to be disclosed by Daffer by the structure of elements 14, 60, 61, 62, 90, 92, and 94 (Fig. 1, 2). The structure of elements 14, 60, 61, 62, 90, 92, and 94 (Fig. 1, 2) covers the head of the user and surround the mouth or nose (¶¶ 0045, 0046), similar to Applicant’s Fig. 2 where the retaining hood 1 comprises opening 1.2. Furthermore, claim 1 recites “at least one means of conveying the vapour mixture to an area surrounding the openings to a respiratory system of the human body, wherein the means of conveying a vapour mixture includes a retaining hood” ln 8- 10, thus the only recited structure of the at least one means of conveying the vapour mixture is the retaining hood. Therefore, at least the retaining hood should be sufficient to accomplish the function of conveying the vapour mixture to an area surrounding the openings to a respiratory system of the human body. Daffer discloses the retaining hood (14, 60, 61, 62, 90, 92, 94; Fig. 1, 2) such that liquid vitamins or hormones and other therapeutic materials can be delivered to the user by the at least one means of generating a vapour mixture (130; Fig. 1, 2, 11). Examiner suggests including further structure to further define the at least one means of conveying the vapour mixture.
Applicant asserts Daffer does not disclose any retaining hood located within the exposure area that surrounds the mouth or nose. The translucent cover panels are intended to enclose the body for light diffusion, not to form a sealed hood, and there is even a face-air outlet to ventilate the head region, Pg. 9
Examiner respectfully disagrees. Applicant identifies a “cover” that extends up to the shoulder area of the user (See Daffer: ¶ 0009). However, in Non-Final filed June 16, 2025 the retaining hood is said to be disclosed by Daffer by the structure of elements 14, 60, 61, 62, 90, 92, and 94 (Fig. 1, 2). The structure of elements 14, 60, 61, 62, 90, 92, and 94 (Fig. 1, 2) covers the head of the user and surround the mouth or nose (¶¶ 0045, 0046), similar to Applicant’s Fig. 2 where the retaining hood 1 comprises opening 1.2 that is a face-air outlet to ventilate the head region.
Applicant asserts a skilled person in the spa/sauna field would have no incentive to consult the handheld vaporizer art of Krietzmann when improving Daffer's capsule, since Daffer already includes steam, aroma, and mist systems but directed to cutaneous rather than Pg. 10
Examiner respectfully disagrees. In response to applicant's argument that Krietzmann is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Applicant’s invention is in the field of endeavor of the delivery of cannabinoids in therapy and well-being apparatus (e.g. a spa/sauna). Krietzmann is directed to the delivery of cannabinoids and thus is in Applicant’s field of endeavor. Further, Daffer is directed to a therapy and well-being apparatus that delivers steam, aroma, and mist to the user and thus is in Applicant’s field of endeavor. Finally, as Applicant asserts, Daffer comprises an aroma system and thus is directed to pulmonary delivery. This is because for something to be an aroma system it would have to deliver at least to the nose of the user.
Therefore, Applicant's arguments have been fully considered but they are not persuasive.
Conclusion
THIS ACTION IS MADE FINAL. 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 ELLIOT S RUDDIE whose telephone number is (571)272-7634. The examiner can normally be reached M-F usually 9-7 EST.
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/ELLIOT S RUDDIE/Primary Patent Examiner, Art Unit 3785
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