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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/12/2025 has been entered.
Response to Arguments
Applicant’s arguments, see Remarks filed 12/12/2025, with respect to the rejection(s) of claim(s) 1-20 under 35 USC 102/35 USC 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of, Nagaoka (JP 2021194356 A) and/or Kim (US 20230270368 A1) and Zao (US 20140058483 A1) and/or Kim (US 20230270368 A1) and Broeng et al (US 20200269065 A1). Specifically, Kim does not disclose the amended features of a first set of one or more light sources being separate and differently controllable from a second set of one or more light sources. Nagaoka, Zao and/or Beong disclose these features, see 35 USC 102 and 35 USC 103 rejection(s) detailed below.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 17/507,725, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application.
The prior-filed application, Application No. 17/507,725 does not provide adequate support or enablement for claims 1-20 of the present application because the prior-filed application fails to disclose at least “the first set of the one or more light sources being different from the second set of the one or more light sources and being separately controllable” as limited by the independent claim.
Information Disclosure Statement
The Information Disclosure Statements (IDS) filed on 08/09/2023, 09/05/2023, 11/12/2024, 08/29/2025, and 03/01/2026 have been considered by the Examiner.
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.
Claims 10, 11, and 19 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 10, 11, and 19, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. The indefinite limitations in each claim are as follows:
“a first fused color such as white” in claim 10;
“a second fused color such as white” in claim 11; and
“such as to increase theta-gamma wave coupling” in claim 19.
See MPEP § 2173.05(d).
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-9, 12, and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nagaoka (JP 2021194356 A), with reference to machine translation for citation purposes.
Regarding claim 1, Nagaoka teaches a phototherapeutic apparatus (see Fig. 1; electroencephalogram control system) for emitting therapeutic light, the apparatus comprising:
a first set of one or more light sources (first light source 1) and a second set of one or more light sources (second light source 2);
the first set of the one or more light sources being different from the second set of the one or more light sources (see [page 2 of machine translation]; light source 1 is configured to irradiate the visual system of one of the user’s eyes with the first optical signal P1, light source 2 is configured to irradiate the visual system of the user’s other eye with a second optical signal P2) and being separately controllable (see [page 2 of machine translation]; signal generation circuit 11 generates an optical signal P1 using the light source 1 under the control of the control circuit 15, signal generation circuit 12 generates an optical signal P2 using the light source 2 under the control of the control circuit 15);
a control module (10) configured to control the first and second set of light sources,
wherein the control circuit (15) is configured to:
control the first set of light sources to generate first light, the first light varying periodically at a first brain stimulation rate (see [page 2 of machine translation]; control circuit 15 alternates at a first switching frequency that is equal to or higher than the critical fusion frequency and the signal generation circuit 11 generates an optical signal P1 by intermittently lighting the light source 1);
control the second set of light sources, differently from the control of the first set of light sources, to generate second light concurrently with the first set of light sources generating the first light (see [page 2 of machine translation]; signal generation circuit 12 generates an optical signal P2 using the light source 2 under the control of the control circuit 15; see Fig. 1 where the first and second signal generation circuits are separate and separately controllable),
the second light varying periodically at a second brain stimulation rate equal to the first brain stimulation rate plus a third brain stimulation rate, wherein the third brain stimulation rate is selected for stimulating neural oscillations at a beat frequency corresponding to said third brain stimulation rate (see [page 2 of machine translation]; the difference between the switching frequencies of the optical signals P1 and P2 is equal to the target frequency for which the frequency of the brain wave is to be induced).
Regarding claim 2, Nagaoka teaches the phototherapeutic apparatus according to claim 1, wherein the first brain stimulation rate is between 20 Hz and 140 Hz (see [page 5 of machine translation]; the lower limit of the switching frequencies f1 and f2 is set to the critical fusion frequency, [page 2 of machine translation]; the critical fusion frequency, CFF, is usually around 36-38 Hz).
Regarding claim 3, Nagaoka teaches the phototherapeutic apparatus according to claim 2, wherein the first brain stimulation rate is between 20 Hz and 50 Hz (see [page 5 of machine translation]; the lower limit of the switching frequencies f1 and f2 is set to the critical fusion frequency, [page 2 of machine translation]; the critical fusion frequency, CFF, is usually around 36-38 Hz).
Regarding claim 4, Nagaoka teaches the phototherapeutic apparatus according to claim 2, wherein the first brain stimulation rate is between 50 Hz and 140 Hz (see [page 5 of machine translation]; the upper limit of the switching frequencies is set to preferably 10 times of less the target frequency, where the target frequency is the difference between the first and second switching frequencies; it can be appreciated that if the target frequency were 40, the upper limit may be a switching frequency of 400 and the lower limit may be a switching frequency of 38 Hz in accordance with the CFF, which encompasses a first brain stimulation rate in the range of 50 Hz to 140 Hz).
Regarding claim 5, Nagaoka teaches the phototherapeutic apparatus according to claim 4, wherein the first brain stimulation rate is higher than a critical flicker frequency (CFF) threshold (see [page 5 of machine translation]; the lower limit of the switching frequencies f1 and f2 is set to the critical fusion frequency), and
wherein the control module is configured to control the first set of one or more light sources to emit light at a varying intensity (see [page 4 of machine translation]; control circuit 15 may control the signal generation circuit so that the optical signals P1 and P2 have variable signal intensities, for example, amplitudes a1 and a2, respectively), varying at the first brain stimulation brain rate (see [page 2 of machine translation]; signal generation circuit 11 generates an optical signal P1 using the light source 1 under the control of the control circuit 15).
Regarding claim 6, Nagaoka teaches the phototherapeutic apparatus according to claim 1, wherein a difference between the second brain stimulation rate and the first brain stimulation rate is between 1 Hz and 140 Hz (see [page 2 of machine translation]; the difference between the switching frequencies of the optical signals P1 and P2 is equal to the target frequency for which the frequency of the brain wave is to be induced, [page 5 of machine translation]; for example, when the target frequency is set to 40 Hz).
Regarding claim 7, Nagaoka teaches the phototherapeutic apparatus according to claim 6, wherein the difference between the second brain stimulation rate and the first brain stimulation rate is between 1 Hz and 10 Hz (see [page 2 of machine translation]; the difference between the switching frequencies of the optical signals P1 and P2 is equal to the target frequency for which the frequency of the brain wave is to be induced, [page 5 of machine translation]; brain wave frequencies include slow alpha waves at 8-9 Hz, theta waves at 4-8 Hz, and delta waves at 0.4-4 Hz).
Regarding claim 8, Nagaoka teaches the phototherapeutic apparatus according to claim 6, wherein the difference between the second brain stimulation rate and the first brain stimulation rate is between 20 Hz and 140 Hz (see [page 2 of machine translation]; the difference between the switching frequencies of the optical signals P1 and P2 is equal to the target frequency for which the frequency of the brain wave is to be induced, [page 5 of machine translation]; for example, when the target frequency is set to 40 Hz).
Regarding claim 9, Nagaoka teaches the phototherapeutic apparatus according to claim 8, wherein the difference between the second brain stimulation rate and the first brain stimulation rate is substantially equal to the first brain stimulation rate (see [page 5 of machine translation]; the lower limit of the switching frequencies f1 and f2 is set to the critical fusion frequency; the target frequency may be set to 40 Hz, [page 2 of machine translation]; the critical fusion frequency, CFF, is usually around 36-38 Hz). It can be appreciated that therefore Nagaoka anticipates a scenario where the first switching frequency f1 may be 40 Hz, which is above the critical flicker frequency, and the target frequency may be 40 Hz, which would result in a second switching frequency f2 of 80 Hz).
Regarding claim 12, Nagaoka teaches the phototherapeutic apparatus according to claim 1, wherein one or both of the first and second generated light is white light (see [page 3 of machine translation]; the light sources 1 and 2 generate, for example, white light or substantially white light).
Regarding claim 14, Nagaoka teaches the phototherapeutic apparatus according to claim 1, wherein the first and second light have the same perceivable color and/or the same perceived brightness (see [page 3 of machine translation]; the light sources 1 and 2 generate, for example, white light or substantially white light).
Claim Rejections - 35 USC § 103
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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 1-9, 14, 18, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Kim (US 20230270368 A1) in view of Zao (US 20140058483 A1).
Regarding claim 1, Kim teaches a phototherapeutic apparatus for emitting therapeutic light (100), the apparatus comprising:
one or more light sources (102);
a control module configured to control the light sources (see [0048]; rhythmic visual stimulation is output to the user via a Brain Rhythm Stimulator, BRS, which may be operatively connected to the Oscillation Selection Module, OSM)
wherein the control module is configured to:
control the light sources to generate first light (see [0048]; rhythmic visual stimulation is output to the user via a BRS, which may be operatively connected to an output device comprising a means of displaying rhythmic light stimulation), the first light varying periodically at a first brain stimulation rate (see [0043]; visual stimulation frequencies produced in the gamma, theta, and delta frequency bands)
control the light sources to generate second light concurrently with the first set of light sources generating the first light (see Fig. 1, Panel D),
the second light varying periodically at a second brain stimulation rate equal to the first brain stimulation rate plus a third brain stimulation rate (see Fig. 1, [0044]; gamma oscillations are effectively stimulated in a range of frequencies or side-bands around the main frequency caused by the amplitude modulation from the theta and delta frequencies, where the side bands are considered to be the second brain stimulation rate, and the third brain stimulation rate are the amplitude modulating theta and delta frequencies);
wherein the third brain stimulation rate is selected for stimulating neural oscillations at a beat frequency corresponding to said third brain stimulation rate (see [0043-0044]; the second brain stimulation rate, which appears as the side bands surrounding the first stimulation band, are caused by the amplitude modulation from theta and delta frequencies, where the theta and delta frequencies are considered to be the third brain stimulation rate).
Kim is silent regarding the first set of the one or more light sources being different from the second set of the one or more light sources and being separately controllable;
the control module comprising a control circuit; and
controlling a first and second set of light sources, where the second set of light sources are controlled differently from the control of the first set of light sources.
Zao teaches a phototherapeutic apparatus (110) for emitting therapeutic light, comprising:
a first set of one or more light sources (112) and a second set of one or more light sources (114);
the first set of the one or more light sources being different from the second set of the one or more light sources and being separately controllable (see Zao [0043]; light stimuli encoder 116 is coupled to first light source 112 and second light source 114 and configured to respectively modulate frequencies and amplitudes of the first light L1 and second light L2);
the control module comprising a control circuit (see Zao [0023]; the stimuli-generating methods, devices, and control systems may be implemented by a general purpose microprocessor, digital signal processor, application specific integrated circuit, etc.); and
controlling a first and second set of light sources, where the second set of light sources are controlled differently from the control of the first set of light sources (see Zao [0043]; light stimuli encoder 116 is coupled to first light source 112 and second light source 114 and configured to respectively modulate frequencies and amplitudes of the first light L1 and second light L2, Figs. 3A-C where lights L1 and L2 are controlled differently).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic apparatus with a first and second light sources that may be different and separately controllable as taught by Zao. One of ordinary skill in the art would have been motivated to make this modification in order to respectively control the pulses of therapeutic light such that the combination of the one or more light sources results in a stimulus that is above the critical fusion frequency threshold to reduce the risk of any discomfort or side effects of the therapy while providing the desired treatment from the phototherapy (Zao [0008]).
Regarding claims 2 and 3, Kim and Zao teach the phototherapeutic apparatus according to claim 1. Kim further teaches wherein the first brain stimulation rate is between 20 Hz and 50 Hz (see Kim Fig. 5 where the first brain stimulation rate is Gamma frequency 38.4).
Regarding claim 4, Kim and Zao teach the phototherapeutic apparatus of claim 2. Kim further teaches wherein the first brain stimulation rate is between 50 Hz and 140 Hz (see Kim [0042]; OSM may select harmonically related frequencies in the lower gamma (30-50 Hz) frequency range).
It can be appreciated that in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
Regarding claim 5, Kim and Zao teach the phototherapeutic apparatus according to claim 4. Kim is silent regarding wherein the first brain stimulation rate is higher than a critical flicker frequency (CFF) threshold, and
wherein the control module is configured to control the first set of one or more light sources to emit light at a varying intensity, varying at the first brain stimulation brain rate.
Zao teaches wherein the first brain stimulation rate is higher than a critical flicker frequency (CFF) threshold (see Zao Fig. 2, [0049]; the frequency of each of the lights L1-L3 is 60 Hz), and
wherein the control module is configured to control the first set of one or more light sources to emit light at a varying intensity, varying at the first brain stimulation brain rate (see Figs. 2, 3A-C; where the controller must necessarily control the light sources to emit at varying intensities in order to emit the pulsed light at a frequency corresponding to the first brains stimulation rate).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic apparatus with a first brain stimulation rate higher than the critical flicker frequency threshold and emitting the light sources at a corresponding varying intensity. One of ordinary skill in the art would have been motivated to make this modification in order to mitigate visual flickers to the user (Zao [0048]).
Regarding claims 6 and 7, Kim and Zao teach the phototherapeutic apparatus according to claim 1. Kim further teaches wherein a difference between the second brain stimulation rate and the first brain stimulation rate is between 1 Hz and 10 Hz (see annotated Kim Fig. 5 below where the difference between the first and second brain stimulation rates is between 1 Hz and 10 Hz).
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Regarding claims 8 and 9, Kim and Zao teach the phototherapeutic apparatus according to claim 6. Kim is silent regarding wherein the difference between the second brain stimulation rate and the first brain stimulation rate is between 20 Hz and 140 Hz; and/or
wherein the difference between the second brain stimulation rate and the first brain stimulation rate is substantially equal to the first brain stimulation rate.
Zao teaches wherein the difference between the second brain stimulation rate and the first brain stimulation rate is between 20 Hz and 140 Hz; and/or wherein the difference between the second brain stimulation rate and the first brain stimulation rate is substantially equal to the first brain stimulation rate (see Zao Fig. 3B, [0051]; L2 is considered to be modulated at the first brain stimulation rate of 30 Hz and L1 is considered to be modulated at the second brain stimulation rate of 60 Hz where the difference between the first and second brain stimulation rate is between 20 Hz and 140 Hz and substantially equal to the first brain stimulation rate).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s first and second brain stimulation rates where the difference between first brain stimulation rate and the second brain stimulation rate is between 20 Hz and 140 Hz and may be substantially equal to the first brain stimulation rate. One of ordinary skill in the art would have been motivated to make this modification in order to emit a pulsing light at a desired first brain stimulation rate which may be under a critical flicker frequency while using a second light at a second brain stimulation rate to compensate for the first light to create a visual stimuli with an imperceptible flicker (Zao [0051]).
Regarding claim 14, Kim and Zao teach the phototherapeutic apparatus according to claim 1. Kim is silent regarding wherein the first and second light have the same perceivable color and/or the same perceived brightness.
Zao teaches wherein the first and second light have the same perceivable color and/or the same perceived brightness (see Zao [0049-0051]; the brightness of the lights averagely distributed at each cycle time; pulse width modulation signals for brightness control).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic apparatus with a first and second light having the same perceivable color and/or brightness. One of ordinary skill in the art would have been motivated to make this modification in order to generate light signals which do not flicker and cause discomfort to the user (Zao [0050]).
Regarding claim 18, Kim and Zao teach the phototherapeutic apparatus according to claim 1, wherein the first set of light sources comprises a first set of light emitting diodes (LEDs), and wherein the second set of light sources comprises a second set of light emitting diodes (LEDs).
Kim is silent regarding the first and second set of light sources comprising a first and second set of light emitting diodes (LEDs).
Zao teaches wherein the first set of light sources comprises a first set of light emitting diodes (LEDs), and wherein the second set of light sources comprises a second set of light emitting diodes (LEDs) (see Zao [0040]; light emitting diodes, LEDs, may adaptively serve as the light sources 112 and 114).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic apparatus with Zao’s first and second set of light sources comprising a first and second set of LEDs. One of ordinary skill in the art would have been motivated to make this modification because LEDs are commonly used as light sources, easy to obtain, and safe to use.
Regarding claim 19, Kim and Zao teach the phototherapeutic apparatus according to claim 1. Kim teaches the apparatus further comprising:
one or more EEG sensors for detecting brain waves (see Kim [0052]; feedback is provided in the form of EEG signals); and
a processing system coupled to detect first signals corresponding to the brain waves and coupled to control one or more attributes of the generated light from the light source to increase one or more predetermined neural oscillation, such as to increase theta-gamma wave coupling in a person’s brain (see Kim [0052]; neural feedback that can be used to optimize the frequency, amplitude, and phase of the visually presented oscillations so as to optimize the frequency, phase, and amplitude of the oscillations in the brain).
Claims 1-5, 12, 13, and 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al (US 20230270368 A1) in view of Broeng et al (US 20200269065 A1).
Regarding claim 1, Kim teaches a phototherapeutic apparatus for emitting therapeutic light (100), the apparatus comprising:
one or more light sources (102);
a control module configured to control the light sources (see [0048]; rhythmic visual stimulation is output to the user via a Brain Rhythm Stimulator, BRS, which may be operatively connected to the Oscillation Selection Module, OSM)
wherein the control module is configured to:
control the light sources to generate first light (see [0048]; rhythmic visual stimulation is output to the user via a BRS, which may be operatively connected to an output device comprising a means of displaying rhythmic light stimulation), the first light varying periodically at a first brain stimulation rate (see [0043]; visual stimulation frequencies produced in the gamma, theta, and delta frequency bands)
control the light sources to generate second light concurrently with the first set of light sources generating the first light (see Fig. 1, Panel D),
the second light varying periodically at a second brain stimulation rate equal to the first brain stimulation rate plus a third brain stimulation rate (see Fig. 1, [0044]; gamma oscillations are effectively stimulated in a range of frequencies or side-bands around the main frequency caused by the amplitude modulation from the theta and delta frequencies, where the side bands are considered to be the second brain stimulation rate, and the third brain stimulation rate are the amplitude modulating theta and delta frequencies);
wherein the third brain stimulation rate is selected for stimulating neural oscillations at a beat frequency corresponding to said third brain stimulation rate (see [0043-0044]; the second brain stimulation rate, which appears as the side bands surrounding the first stimulation band, are caused by the amplitude modulation from theta and delta frequencies, where the theta and delta frequencies are considered to be the third brain stimulation rate).
Kim is silent regarding the first set of the one or more light sources being different from the second set of the one or more light sources and being separately controllable;
the control module comprising a control circuit; and
controlling a first and second set of light sources, where the second set of light sources are controlled differently from the control of the first set of light sources.
Broeng teaches a system and device for light therapy (100) comprising a first set of one or more light sources (101) and a second set of one or more light sources (102); the first set of the one or more light sources being different from the second set of the one or more light sources and being separately controllable (see Broeng [0184]; a controller 110 comprising controls for one or more of on/off and or brightness, blink frequency, phase and/or duty cycle, color temperature and/or hue of the light sources);
the control module comprising a control circuit (see Broeng Fig. 8, [0266]; control circuitry); and
controlling a first and second set of light sources, where the second set of light sources are controlled differently from the control of the first set of light sources (see Broeng Figs. 4A-B; where the first and second light sources are controlled differently, and in tandem with one another).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic apparatus with the different and separately controllable light sources as taught by Broeng. One of ordinary skill in the art would have been motivated to make this modification in order to control the delivery of light therapy such that the two light sources supplement each other so that a user exposed to the resulting combined light does not experience visual disadvantages by the stroboscopic effect (Broeng [0216]).
Regarding claims 2-4, Kim and Broeng teach the phototherapeutic apparatus of claim 1. Kim further teaches wherein the first brain stimulation rate is between 20 Hz and 50 Hz (see Kim Fig. 5 where the first brain stimulation rate is Gamma frequency 38.4).
Kim is silent regarding wherein the first brain stimulation rate is greater than 50.
Regarding claim 4, Broeng teaches wherein the first brain stimulation rate is between 50 Hz and 140 Hz (see Broeng [0240]; the frequency of the blinking of the first light source may range from about 20 Hz to about 100 Hz).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s first brain stimulation rate with Broeng’s first stimulation rate between 50 Hz and 140 Hz. One of ordinary skill in the art would have been motivated to make this modification in order to flicker at a first brain stimulation rate which incorporates a frequency in the gamma oscillation range between 25 to about 100 Hz (Broeng [0214]).
Regarding claim 5, Kim and Broeng teach the phototherapeutic apparatus according to claim 4. Kim is silent regarding wherein the first brain stimulation rate is higher than a critical flicker frequency (CFF) threshold, and
wherein the control module is configured to control the first set of one or more light sources to emit light at a varying intensity, varying at the first brain stimulation brain rate.
Broeng teaches wherein the first brain stimulation rate is higher than a critical flicker frequency (CFF) threshold (see Broeng [0240]; the frequency of the blinking of the first light source may range from about 20 Hz to about 100 Hz, where it can be appreciated that the CFF is about 60 Hz), and
wherein the control module is configured to control the first set of one or more light sources to emit light at a varying intensity (see Broeng [0184]; controller 110 comprising controls for one or more of on/off and/or brightness, blink frequency of the one or more light sources), varying at the first brain stimulation brain rate (see Broeng [0240]; blinking frequency may be between about 20 Hz and about 100 Hz).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic device with a first brain stimulation rate higher than the critical flicker frequency threshold and emitting the light sources at a corresponding varying intensity. One of ordinary skill in the art would have been motivated to make this modification in order to provide an experience where a human’s brain activity is modulated but the subject does not experience a blinking/stroboscopic effect of the light (Broeng [0209]).
Regarding claim 12, Kim and Broeng teach the phototherapeutic apparatus according to claim 1. Kim is silent regarding wherein one or both of the first and second generated light is white light.
Broeng teaches wherein one or both of the first and second generated light is white light (see Broeng [0210]; both the first and second light source will appear “white”).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic apparatus with Broeng’s first and/or second light sources generating white light. One of ordinary skill in the art would have been motivated to make this modification in order to provide a stimulus light which may comprise various wavelengths of light but appears to have a constant color for the user to decrease discomfort (Broeng [0013-0014]).
Regarding claim 13, Kim and Broeng teach the phototherapeutic apparatus according to claim 1. Kim is silent regarding wherein the color and/or brightness of the first and/or second light is user-adjustable.
Broeng teaches a phototherapy device wherein the color and/or brightness of the first and/or second light is user-adjustable (see Broeng [0275]; an app allowing the user to control the phototherapy device for adjustment of one or more parameters).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic device with the user-adjustable controls as taught by Broeng. One of ordinary skill in the art would have been motivated to make this modification in order to reduce any discomfort from the user based on the color and/or brightness of the therapeutic light (Broeng [0266] and [0276]).
Regarding claim 15, Kim and Broeng teach the phototherapeutic apparatus according to claim 1. Kim is silent regarding a housing configured to accommodate the first and second sets of light sources;
the housing defining a light-output panel, in particular a diffuser panel, for outputting the first and second light towards a user;
wherein the light-output panel defines a first panel portion and a second panel portion, different from the first panel portion;
wherein the apparatus is configured to output the first light at least predominantly through the first panel portion and to output the second light at least predominantly through the second panel portion.
Broeng teaches a phototherapy device (100) comprising a housing configured to accommodate the first (101) and second (102) sets of light sources;
the housing defining a light-output panel, in particular a diffuser panel (108), for outputting the first and second light towards a user (see Broeng [0249]; the first and second light sources emit in substantially the same direction);
wherein the light-output panel defines a first panel portion (101) and a second panel portion (102), different from the first panel portion;
wherein the apparatus is configured to output the first light at least predominantly through the first panel portion and to output the second light at least predominantly through the second panel portion (see Broeng Fig. 1).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic apparatus with the diffusing light-output panel having a first and second portion as described by Broeng. One of ordinary skill in the art would have been motivated to make this modification in order to utilize multiple light sources in co-alignment with one another via the diffuser (Broeng [0249]).
Regarding claim 16, Kim and Broeng teach the phototherapeutic apparatus according to claim 15. Broeng further teaches wherein the light-output panel defines a light-output surface area (see annotated Fig. 1 below), wherein each of the first (101) and second (102) panel portions have between 30 % and 70% of the light-output surface area, such that the first and second panel portions together have between 80 % and 100 % of the light-output surface area (see annotated Fig. 1. Below).
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It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic apparatus with the light-output panel as defined by Broeng. One of ordinary skill in the art would have been motivated to make this modification in order to deliver phototherapy using two sources of light to a user (Broeng [0184]), the wavelengths of the light selected to induce or entrain brain oscillations to improve cognition and/or prevent or mitigate a neurodegenerative disorder (Broeng [0208]).
Broeng does not explicitly teach the proportions of the light-output surface area defined by the first and second panel portions. However, in this instance, a device having the claimed relative dimensions would not perform differently than the prior art device disclosed by Broeng at least because both devices define a light output surface having output panels for at least a first and second light source. Therefore the claimed invention is obvious over and not patentably distinct from the prior art device.
See MPEP 2144.04(IV)(A) which states: In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding claim 17, Kim and Broeng teach the phototherapeutic apparatus according to claim 15. Broeng further teaches wherein the first and second panel portions are arranged next to each other in a side-by-side configuration. See annotated Fig. 1 below.
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It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to arrange the panel portions of the phototherapeutic device in a side-by-side configuration. One of ordinary skill in the art would have been motivated to make this modification in order to project light from both panels in the same direction to deliver the therapy to a user.
Claims 10, 11, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al (US 20230270368 A1) in view of Broeng et al (US 20200269065 A1) and Chen et al (US 20220406271 A1).
Regarding claim 10, Kim and Broeng teach the phototherapeutic apparatus according to claim 1. Kim further teaches wherein the first brain stimulation rate is smaller than a critical flicker frequency threshold (see Kim Fig. 5 where the first brain stimulation is considered to be a Gamma wave at 38.4 Hz).
Kim is silent regarding wherein the control module is configured to control the first set of light sources to alternatingly generate first and second colored light, alternatingly at said first brain stimulation rate, the first colored light having a first set of color components and the second colored light having a second set of color components different from the first set of color components;
wherein the first and second color components are selected such that the alternatingly generated first and second colored light is perceivable by a human observer as light having a user-perceptible first fused color such as white.
Chen teaches a phototherapeutic apparatus wherein the control module is configured to control the first set of light sources to alternatingly generate first and second colored light (see Chen Fig. 9; first light L1 and second light L2), alternatingly at said first brain stimulation rate, the first colored light having a first set of color components (901A and 901B) and the second colored light having a second set of color components (902A and 902B) different from the first set of color components;
wherein the first and second color components are selected such that the alternatingly generated first and second colored light is perceivable by a human observer as light having a user-perceptible first fused color such as white (see Chen [0041]; the white light 901A of the first beam 901 and the white light 902A of the second beam 902 may have the same color temperature and the same spectra, the blue light 901B of the first beam 901 and the blue light 902B of the second beam 902 may have the same color temperature and the same spectra).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic apparatus by alternatingly generating a first and second colored light as taught by Chen. One of ordinary skill in the art would have been motivated to make this modification in order to garner the benefits of the two beams being emitted in the same therapeutic session. This modification would have been obvious to try as it amounts to the use of a known technique, light therapy which may be conducted using various light spectra, to improve a similar device, that being a phototherapy device, to obtain predictable results.
Regarding claim 11 Kim and Broeng teach the phototherapeutic apparatus according to claim 1. Kim further teaches wherein the first brain stimulation rate is smaller than a critical flicker frequency threshold (see Kim Fig. 5 where the first brain stimulation is considered to be a Gamma wave at 38.4 Hz).
Kim is silent regarding wherein the control module is configured to control the second set of light sources to alternatingly generated third and fourth colored light, alternatingly at said second brain stimulation rate, the third colored light having a third set of color components and the fourth colored light having a fourth set of color components different from the third set of color components;
wherein the third and fourth color components are selected such that the alternatingly generated third and fourth colored light is perceivable by a human observer as light having a user-perceptible second fused color such as white.
Chen teaches a phototherapeutic apparatus wherein the control module is configured to control the second set of light sources to alternatingly generated third and fourth colored light (see Chen Fig. 8B; third colored light L3 and fourth colored light L4), alternatingly at said second brain stimulation rate, the third colored light having a third set of color components (803, L3) and the fourth colored light having a fourth set of color components (804, L4) different from the third set of color components (see Chen [0039]; the spectra of the first, second, third, and fourth beans 801-804 are all different);
wherein the third and fourth color components are selected such that the alternatingly generated third and fourth colored light is perceivable by a human observer as light having a user-perceptible second fused color such as white (see Chen [0039]; the third light 803 and the fourth light 804 have the same color temperature).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic apparatus by alternatingly generating a third and fourth colored light as taught by Chen. One of ordinary skill in the art would have been motivated to make this modification in order to garner the benefits of the two beams being emitted in the same therapeutic session where the temperature or the colored beams may be the same but the spectra of each beam may be different (Chen [0039]).
Regarding claim 20, Kim teaches the phototherapeutic apparatus of claim 1, further comprising a processing system (see Kim [0038]; Oscillation Selection Module “OSM”);
wherein the processing system is configured to use a first data to adjust aspects of a brain stimulation session (see Kim [0038]; Oscillation Selection Module receives input from the Entrainment Simulator and outputs one or more selected oscillation states as frequencies, amplitude, and phases for visual stimulation).
Kim is silent regarding wherein the first data is from an eye-tracking device that detects said person’s eye.
Chen teaches an eye-tracking device that detects said person’s eye (see Chen [0055]; an eye movement sensor).
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify Kim’s phototherapeutic apparatus with Chen’s eye-tracking device. One of ordinary skill in the art would have been motivated to make this modification in order to track the movement of an eye during a phototherapeutic session (Chen [0055]).
Conclusion
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/A.J.S./Examiner, Art Unit 3792
/MICHAEL W KAHELIN/Primary Examiner, Art Unit 3792