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 .
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the Method Steps must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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.
Figure 1 should be designated by a legend such as --Prior Art-- because only that which is old is illustrated. See MPEP § 608.02(g). Corrected drawings in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. The replacement sheet(s) should be labeled “Replacement Sheet” in the page header (as per 37 CFR 1.84(c)) so as not to obstruct any portion of the drawing figures. 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.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “1” has been used to designate both the four electron transfer OOR and the area of the pterions. 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.
Claim Objections
Claim 1 objected to because of the following informalities: A double space between "Square Wave" and "Magnetic Fields". Appropriate correction is required.
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 1 & 2 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
The Breadth of the Claims: Due to the lack of a clear transitional phrase between the preamble and the body of the claims and the use of the such that limitation, examiner does not know how to interpret the claims.
Amount of Direction Provided by the Inventor: The specification does not provide the amount of instruction needed to support the synchrony in a human brain with magnetic fields.
Existence of Working Examples: The specification does not provide working examples regarding “an extremely low frequency, low intensity, square wave magnetic field that modulates an oxygen reduction reaction in human brain mitochondrion.
The Quantity of experimentation needed to make or use the invention based on content of the disclosure: The specification does not disclose trials or experimentation to show the use of the invention “enhanced synchrony in the brain of a human utilizing magnetic fields.
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.
Claims 1 & 2 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.
Regarding claims 1 & 2, these claims do not have a clear transitional phrase (e.g. comprising, consisting of, etc.). The Examiner may interpret "utilizing" or "such that" as potential places to input a transitional phrase. Further, the "such that" is unclear as the office is unsure if the subsequent limitation should be positively recited as a method step or taken as an intended result. Clarification is requested.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1 & 2 rejected under 35 U.S.C. 101 because the claimed invention is not supported by either a credible asserted utility or a well-established utility.
The stated invention lacks a credible asserted utility, because there is no credible evidence that effecting the oxygen reaction of neural mitochondria increases a human’s susceptibility to synchrony.
Claims 1 & 2 also rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph. Specifically, because the claimed invention is not supported by either a credible asserted utility or a well-established utility for the reasons set forth above, one skilled in the art clearly would not know how to use the claimed invention.
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 & 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over DE 4122380 hereinafter Kraus in view of US 2004/0077921 hereinafter Becker in further view of “Rotating Magnetic Fields Inhibit Mitochondrial Respiration, Promote Oxidative Stress and Produce Loss of Mitochondrial Integrity in Cancer Cells” (NPL) hereinafter Sharpe.
In regards to Claim 1: Kraus teaches a method utilizing an extremely low frequency, low intensity, magnetic field. (Kraus, Page 1 Paragraph 4). Kraus does not teach a method to enhance synchrony in a brain of a human utilizing a square wave magnetic field such that the field modulates an oxygen reduction reaction in a human brain mitochondrion.
Becker teaches a method utilizing a low frequency square wave magnetic field (Becker, Paragraph 0011).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the low frequency square wave magnetic field taught by Becker to the low frequency low intensity magnetic field taught in Kraus, the motivation being to provide a more stable and predictable oscillation to achieve a consistent result.
Sharpe teaches a method utilizing a magnetic field such that the field modulates an oxygen reduction reaction in a human brain mitochondrion (Sharpe, Page 12 Paragraph 2 & 3).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the magnetic field that effects the oxygen reaction taught in Sharpe to the system taught by a modified Kraus, the motivation being to provide a method to affect a human on a cellular level using a magnetic field.
In Regards to Claim 2: Kraus teaches a method utilizing a 1-300 hertz and 1-100 milli Tesla magnetic field (Kraus, Page 1 Paragraph 4). Kraus does not teach a method to enhance synchrony in a brain of a human utilizing a square wave magnetic field such that the field modulates an oxygen reduction reaction in a human brain mitochondrion.
Becker teaches a method utilizing a 1-300 hertz square wave magnetic field (Becker, Paragraph 0011).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the low frequency square wave magnetic field taught by Becker to the low frequency low intensity magnetic field taught in Kraus, the motivation being to provide a more stable and predictable oscillation to achieve a consistent result.
Sharpe teaches A method utilizing a magnetic field such that the field modulates an oxygen reduction reaction in a human brain mitochondrion (Sharpe, Page 12 Paragraph 2 & 3).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the magnetic field that effects the oxygen reaction taught in Sharpe to the system taught by a modified Kraus, the motivation being to provide a method to affect a human on a cellular level using a magnetic field.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NOE R DIETZ whose telephone number is (571)272-1135. The examiner can normally be reached Mon-Fri 8am - 5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander Valvis can be reached at (571)-272-4233. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.R.D./Patent Examiner, Art Unit 3791 /ALEX M VALVIS/Supervisory Patent Examiner, Art Unit 3791