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 preliminary amendment filed on April 22, 2025. As directed by the amendment: claims 1-5, 7-13, and 16-19 have been amended; claim 6 has been cancelled; and claims 20-26 have been added. Thus, claims 1-5 and 7-26 are presently pending in this application.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites “at least the areas of the retaining lying”, ln 12 should read --at least the areas of the retaining hood lying--.
Appropriate correction is required.
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 § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 16, and claims 17-19 by dependency, are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 16 recites “Use of vapour mixtures comprising at least one cannabinoid in a device according to Claim 1…”, which constitutes a “Use Claim”. The claim is indefinite because it attempts to claim a process without setting forth any steps involved in the process. Instead, it merely recites a use without any active, positive steps delimiting how this use is actually practiced.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 24 is 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, or for failing to include all the limitations of the claim upon which it depends.
Independent claim 13 recites “b. providing a vaporization agent comprising at least one vaporizable herbal medicinal substance comprising at least one cannabinoid”, ln 5-6, thus claim 24, which depends from claim 13, reciting “wherein the at least one vaporizable herbal medicinal substance comprises at least one cannabinoid” ln 1-2 fails to further limit the subject matter of claim 13 upon which it depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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, 11-15, and 24-26 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 Krietzman (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 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.
Krietzman 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 Krietzman for the purpose of ensuring a beneficial cannabinoid dose is provided during a plurality of uses (See Krietzman: ¶ 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 Krietzman: 10, 125; Fig. 4A-4E; ¶ 0058).
Regarding claim 5, the modified device of Daffer discloses the device wherein 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 Krietzman: ¶¶ 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 Krietzman: “containment area”; ¶¶ 0046-0048, 0051, 0071) for a vaporization agent (See Daffer: ¶¶ 0053-0055, 0066, 0076-0078, See Krietzman: “material”; ¶¶ 0046-0048, 0051, 0071) comprising at least one cannabinoid See Krietzman: ¶¶ 0046-0048, 0051, 0071) and a heating element (See Krietzman: 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 Krietzman: ¶¶ 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 Krietzman: 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 Krietzman: 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 Krietzman: “material”; ¶¶ 0046-0048, 0051, 0071) comprising at least one vaporizable herbal medicinal substance (See Daffer: ¶¶ 0053-0055, 0066, 0076-0078, See Krietzman: “material”; ¶¶ 0046-0048, 0051, 0071) comprising at least one cannabinoid (See Krietzman: ¶¶ 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 Krietzman: ¶¶ 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 Krietzman: 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 Krietzman: ¶¶ 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 Krietzman: 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 Krietzman: ¶¶ 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 Krietzman: ¶¶ 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 Krietzman: ¶¶ 0015-0017, 0020-0022, 0045, 0048, 0050, 0056, 0057, 0065, 0068, 0071).
Regarding claim 24, the modified device of Daffer discloses the method wherein the at least one vaporizable herbal medicinal substance comprises at least one cannabinoid. See Krietzman: ¶¶ 0045-0048, 0050, 0055-0058, 0070).
Regarding claim 25, the modified device of Daffer discloses the method wherein the vapour mixture comprises a dose of at least one cannabinoid (See Krietzman: ¶¶ 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 Krietzman: ¶¶ 0053, 0055).
Claims 9 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Daffer in view of Krietzman 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 Krietzman 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 Krietzman as applied to claims 1 and 8, repsectively above, and further in view of Foster (U.S. Pat. No. 3,877,697).
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).
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).
Conclusion
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/ELLIOT S RUDDIE/Primary Patent Examiner, Art Unit 3785