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
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claims 3-6 are objected to because of the following informalities: “Ti” is referenced in the list of variables for claim 3, but does not appear in the mathematical expression for x. It appears “Ti” should be amended to --ti--. The same issue appears in claims 4-6. Appropriate correction is required.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
field generating device first appearing in claim 1 (corresponding structure disclosed in original specification as coil 2)
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 § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, and 7-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by EP 2050481 (Kafka, see attached machine translation).
Regarding claim 1, Kafka teaches a device for influencing biological processes in a living tissue for applying a pulsating magnetic field to at least a part of the tissue (translation: pg. 4, paragraph 6 – pg. 5, paragraph 1), with a field generating device (2) configured to generate the pulsating magnetic field and a pulse generator (1) configured to drive the field generating device with a signal sequence (translation: pg. 4, paragraph 6-pg. 5, paragraph 1; pg. 8, paragraph 5; Figure 1), the pulse generator configured to output the signal sequence, which is formed from a superposition of a first sequence of main pulses and at least one second sequence of main pulses (translation: main pulses and sub-pulses, pg. 4, paragraph 6-pg. 5, paragraph 1; pg. 9, paragraph 3; Figures 2-4), the pules repetition rate of which is between 0.1 and 1000 Hz (pg. 9, paragraph 2), wherein
each main pulse comprises a pulse length;
the pulse length and the pulse repetition rate of the main pulses of the second sequence of main pulses are different from the pulse length and the pulse repetition rate of the main pulses of the first sequence of main pulses (Figures 2-4);
the pulse repetition rate of the main pulses of the second sequence of main pulses changes monotonically in the time-dependent course opposite to the change in the pulse length (translation: pg. 9, paragraph 5; Figures 2-4);
an amplitude waveform of a main pulse comprises the following function y(x):
y
x
=
k
1
+
k
2
∙
e
sin
(
x
k
3
)
+
sin
(
x
∙
k
4
k
5
)
+
x
∙
k
6
;
wherein:
x = computational substitute for time t during a main pulse;
k1 = offset value;
k2 = amplitude factor, k2≠0;
k3 = exponent of x, k3≠0;
k4 = multiplication factor of x, k4≠0;
k5 = exponent of (x*k4), k5≠0;
k6 = multiplication factor of x;
wherein k1 – k6 are parameters which are freely selectable to give different shapes to the amplitude waveform, each main pulse being modulated with sub-pulses by respective selection of the parameters ([0017]; translation: pg. 5, paragraph 3; pg. 5, paragraph 5-pg. 6, paragraph 1).
Regarding claim 2, Kafka teaches the computational substitute x depends linearly on time t ([0017]; translation: pg. 5, paragraph 3).
Regarding claim 7, Kafka teaches the main pulses of the first sequence of main pulses follow one another directly in the time-dependent course without a pause; and the main pulses of the second sequence of main pulses follow one another directly in a time-dependent course without a pause (Figures 2-4).
Regarding claim 8, Kafka teaches the pulse length of the main pulses of the first sequence of main pulses decreases monotonically or increases monotonically; and the pulse repetition rate of the main pulses of the first sequence of main pulses changes monotonically in the time-dependent course opposite to the change in the pulse length of these main pulses increases monotonically or decreases monotonically (Figures 2-4).
Regarding claim 9, Kafka teaches the pulse generator is configured to output the signal sequence and at least one further signal sequence in temporal succession, the at least one further signal sequence differing from the first signal sequence in at least one of the following: the pulse length of the main pulses of the first sequence of main pulses; the pulse length of the main pulses of the second sequence of main pulses; one or more parameters k1-k6 (Figure 2: main pulse length changes with subsequent main pulses).
Regarding claim 10, Kafka teaches the pulse generator (1) is configured to output the at least one further signal sequence after a defined pause time after the output of the first signal sequence (translation: pause, pg. 5, paragraph 3; pause, pg. 8, paragraph 4).
Regarding claim 11, Kafka teaches the parameters k3 to k5 of the function y(x) are integers and k1, k2, and k6 are selected in decimal increments from the following value ranges:
-6 < k1, k2, k6 < 6;
-6 < k3, k5 <6 (integer);
-10 < k4 < 10 ([0035]; translation: pg. 8, paragraph 1).
Allowable Subject Matter
Claims 3-6 would be allowable if rewritten to overcome the informality objections set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: No prior art of record teach and/or fairly suggest the device for influencing biological processes in a living tissue of claim 3, wherein the computation substitute x for the time t is defined as claimed, within the context of all the limitations of parent claim 1.
The closest prior art of record, EP 2050481 as cited above, teaches the device as in claim 1 with a computational substitute x for the time t, but discloses a different expression of x for the time t (see Kafka claim 1).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Carrie R Dorna whose telephone number is (571)270-7483. The examiner can normally be reached 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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/CARRIE R DORNA/Primary Examiner, Art Unit 3791
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