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 .
Response to Arguments
Applicant's arguments filed 7/8/2026 have been fully considered but they are not persuasive, as described in detail below.
First, Applicant argues that “Artisuka does not teach or suggest "a mesh with a specific, fixed resonance frequency of 108.0 ± 6.0 kHz" and in fact teach away from using a specific, fixed resonance frequency” (Remarks, Page 5, last paragraph).
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., a specific, fixed resonance frequency) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Moreover, Examiner notes that Aritsuka describes multiple meshes, but that each has a single resonant frequency (see Paragraph 0064, describing the device being driven at a constant first frequency in the range of 50 kHz-140kHz that “matches the resonant frequency of a predetermined mesh member 120 corresponding to the high-viscosity liquid”, and a second frequency in the range of 110 kHz-200kHz that “matches the resonance frequency of a predetermined mesh member 120 corresponding to the low viscosity liquid”; i.e., although a specific resonance frequency is not suggested, each mesh is described as having a single resonance frequency that falls within a range, in the same manner as the instant claims, according to Examiner’s best understanding).
Applicant cites passages from Aritsuka describing a “dual frequency system” (see Remarks, Page 5, last paragraph - Page 6, first paragraph) and concludes that “Aritsuka argues that as single fixed resonance frequency would not work” (Remarks, Page 6, first full paragraph). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In this case, the relevant teaching of Aritsuka is that a mesh having a frequency in the claimed range could be appropriate for use with high or low viscosity liquids, as described in the rejection of claim 1 below under 35 U.S.C. 103. Although Aritsuka discloses a device that is capable of using multiple interchangeable meshes in order to use multiple liquids (see Paragraphs 0005-0008), one having ordinary skill in the art would not understand this to mean that a mesh of the disclosed resonant frequency would not work in a different device intended for use with only one type of liquid, and would further be capable of applying the relevant teaching to the device of Kong-Tiba.
Applicant further argues that the claimed “specific frequency range represents a non-obvious design parameter that addresses the particular technical challenge of maintaining consistent nebulization of saline solutions, and the prior art provides no motivation to select this precise frequency range” (Remarks, Page 7, first paragraph).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Aritsuka teaches a broad range of frequencies divided into high and low viscosity ranges, more specifically with a range for low viscosity liquids that encompasses most of the claimed range (i.e., 110-114 kHz). Aritsuka notes that such devices are used “in a variety of applications, including beauty and medical treatments” (Paragraph 0002). One having ordinary skill in the art would recognize the saline solution used in Kong-Tiba to be a relatively low viscosity liquid, but not at the extreme low viscosity end of the range for beauty and medical treatment liquids. Thus, one having ordinary skill in the art would expect a mesh having the claimed resonance frequency to be appropriate for a saline solution based on the teachings of Aritsuka. Additionally, Applicant appears to have placed no criticality on the claimed range (merely mentioning it among several “features tuned for effective nebulizing of saline solution” in Paragraph 0021) and since it has been held that “[i]n the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976) ; In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP §2144.05(I).
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.
Claims 1, 8, and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Kong et al. (EP 3401005) in view of Tiba et al. (US 2012/0018526) and Aritsuka et al. (JP 2014018765). All references to the written description of Aritsuka et al. contained herein are made to the attached machine translation into English: JP2014018765-MT.
Regarding claim 1, Kong et al. discloses a system for generating dry salt particles from a saline solution (Paragraphs 0011-0013, Fig. 1), including: a sensor (Paragraph 0030) configured to generate one or more measurements based on ambient conditions (sensor generates environmental data, Paragraphs 0030-0031, 0046) of a sauna (see note below regarding this limitation); an aerosolizer (20 of device 10, Fig. 1) configured to aerosolize the saline solution in response to receiving a signal (Paragraph 0035), wherein an aerosol associated with the saline solution results in a dry salt particle diameter between .5µm and 3µm (e.g., less than 2µm, Paragraph 0021); and a controller (control unit, Paragraph 0030) comprising one or more processors configured to generate the signal provided to the aerosolizer, and further configured to control operation of the aerosolizer via the signal (control unit processes data from sensor to control the device, Paragraph 0031).
Kong et al. notes that the device may include a storage unit for storing the solution (Paragraph 0035) and that solution concentrations may be selected based on the desired dry particle size (Paragraph 0040), but does not explicitly disclose a receiving port configured to receive a saline solution cartridge configured to store a 3% to 4% saline solution, or that the aerosol is associated with a saline solution particle having diameter between 2µm and 12µm.
However, Tiba et al. teaches a similar device for aerosolizing a saline solution that includes a receiving port (upper part of housing 20; Fig. 1, Paragraphs 0025 and 0045) configured to receive a saline solution cartridge (removable tank 8, Paragraph 0026) configured to store a 3% to 4% saline solution (Paragraph 0048; concentration ranging from 0.5 mg/mL - 359 mg/mL, equivalent to 0.05% - 36%). Tiba et al. teach that the port is part of a housing that contains other device components (Fig. 1), and that this configuration allows the device to be small and portable (Paragraph 0013).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to provide the system of Kong et al. with a receiving port as part of a housing that contains other system components, configured to receive a saline solution cartridge storing a 3% to 4% saline solution, as taught by Tiba et al., as a means of storing and supplying an appropriate saline solution to the aerosolizer that enables portability and convenient refilling.
Considering the size of the dry salt particles produced by the device of Kong et al., in addition to the saline solution concentration taught by Tiba et al., the invention of Kong et al., as modified by Tiba et al., must comprise saline solution particles having diameters between 2µm and 12µm, according to the equations laid out in Paragraph 0028 of the specification of the instant application (Examiner notes that the equations appear to only present three variables and thus, given two variable values, the equations may be solved for the third; e.g., a dry salt particle of diameter 1 µm, as per Kong et al., generated from a 3.342% saline solution, as per Tiba et al., equates with a saline solution particle diameter of 3.98 µm).
Both Kong et al. (Paragraph 0035) and Tiba et al. (Paragraph 0025) teach aerosolizers using ultrasonic vibrations, but neither Kong et al. nor Tiba et al. explicitly disclose a nebulizing mesh having a resonance frequency of 108.0 ± 6.0kHz.
Aritsuka et al. teach an ultrasonic aerosolizer including a nebulizing mesh (120) having a resonance frequency of 108.0 ± 6.0kHz (two meshes are disclosed, with one having a resonance frequency in the range of 50-140 kHz, and the other 110-200 kHz; Paragraph 0064). Aritsuka et al. teach that a nebulizing mesh having a resonance frequency in the claimed range (in particular, 110-114 kHz) would be suitable for atomizing either a high-viscosity or a low-viscosity liquid for various applications, including medical treatments (Paragraph 002, 0064).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to provide the aerosolizer of Kong et al., modified in view of Tiba et al. as described above, with a nebulizing mesh having a resonance frequency in the claimed range, since Aritsuka et al. teach that this would be an appropriate means for aerosolizing a low-viscosity liquid, which is the stated purpose of both Kong et al. and Tiba et al. (specifically, a saline solution). Since both Kong et al. and Tiba et al. are silent as to the specific type of aerosolizer, one having ordinary skill in the art would look to the prior art for solutions, of which Aritsuka et al. provides a suitable example.
Regarding the limitation reciting “ambient conditions of a sauna,” the instant claim is drawn to an apparatus along with method steps or a product being manipulated by the apparatus. As a result, these limitations have acquired a different statutory basis for patentability. While there is nothing inherently improper in including such limitations, they cannot serve as the basis for patentability of the apparatus claim itself. However, the primary reference or combination of references does require that the claimed apparatus be capable of performing the function recited or product manipulated.
In this instance, the sensor of Kong et al., alone or in combination with Tiba et al. and Aritsuka et al., can perform measurements of ambient conditions in any environment, including a sauna. Kong et al. provides an example of the sensor detecting a user coughing within the same room as the device (Paragraph 0031), which it would be capable of doing within the enclosed or semi-enclosed space of a sauna. Furthermore, it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987). See MPEP § 2114(II).
Therefore, although these limitations have been considered, they are afforded no patentable weight in the apparatus claims of the instant application.
Regarding claim 8, Kong et al. disclose a device (10, Fig. 1) having an aerosolizer (20) configured to aerosolize a material in response to receiving a signal (Paragraph 0035), wherein the material is a saline solution (Paragraph 0013); and a controller (control unit, Paragraph 0030) comprising one or more processors configured to generate the signal provided to the aerosolizer, and further configured to control operation of the aerosolizer via the signal (control unit processes data from sensor to control the device, Paragraph 0031), wherein an aerosol associated with the saline solution results in a dry salt particle diameter between .5µm and 3µm (e.g., less than 2µm, Paragraph 0021).
Kong et al. describe a device with interconnected components (Fig. 1), and that solution concentrations may be selected based on the desired dry particle size (Paragraph 0040), but do not explicitly disclose a housing, or a concentration or particle diameter of the saline solution. However, Tiba et al. teach a device having a housing (20, Fig. 1, Paragraph 0045) containing an aerosolizer that aerosolizes a saline solution having a salt concentration of approximately 3% (Paragraph 0048; concentration ranging from 0.5 mg/mL - 359 mg/mL, equivalent to 0.05% - 36%). Tiba et al. note that the configuration of the device makes it small and travel friendly (Paragraph 0013).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to provide the system of Kong et al. with a housing to contain the components, as taught by Tiba et al., in order to minimize size and enable portability. Further, it would have been obvious to one having ordinary skill in the art before the effective filing date of the application to select a saline solution with a concentration of approximately 3%, as taught by Tiba et al., in order to achieve the dry particle sizes disclosed by Kong et al. (thus equating to a saline solution particle diameter between 2µm and 12µm, as described above regarding claim 1).
As described above regarding claim 1, neither Kong et al. nor Tiba et al. explicitly disclose a nebulizing mesh having a resonance frequency of 108.0 ± 6.0kHz. However, Aritsuka et al. teach an ultrasonic aerosolizer including a nebulizing mesh (120) having a resonance frequency of 108.0 ± 6.0kHz (two meshes are disclosed, with one having a resonance frequency in the range of 50-140 kHz, and the other 110-200 kHz; Paragraph 0064). Aritsuka et al. teach that a nebulizing mesh having a resonance frequency in the claimed range (in particular, 110-114 kHz) would be suitable for atomizing either a high-viscosity or a low-viscosity liquid for various applications, including medical treatments (Paragraph 002, 0064).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to provide the aerosolizer of Kong et al., modified in view of Tiba et al. as described above, with a nebulizing mesh having a resonance frequency in the claimed range, since Aritsuka et al. teach that this would be an appropriate means for aerosolizing a low-viscosity liquid, which is the stated purpose of both Kong et al. and Tiba et al. (specifically, a saline solution). Since both Kong et al. and Tiba et al. are silent as to the specific type of aerosolizer, one having ordinary skill in the art would look to the prior art for solutions, of which Aritsuka et al. provides a suitable example.
Regarding claim 14, the invention of Kong et al., modified as described above, renders the device of claim 8 obvious. As described above regarding claim 8, the device of Kong et al. would be made portable by incorporating the housing taught by Tiba et al., thus the housing of the modified invention would be capable of being removably coupled to an interior of a sauna.
Regarding claim 15, Kong et al. substantially disclose the claimed method, including: generating, using a sensor, one or more measurements based on ambient conditions of a device (sensor monitors local environment to generate data, Paragraph 0046); generating, using a controller, a signal based on a plurality of operational parameters, wherein the signal is a control signal for an aerosolizer (controller sets desired working parameters, Paragraph 0046); and aerosolizing a saline solution in response to receiving a signal (controller causes device to generate dry salt particles, Paragraph 0046), wherein the aerosol associated with the saline solution results in a dry salt particle diameter between .5µm and 3µm (e.g., less than 2µm, Paragraph 0021).
Kong et al. do not disclose the step of receiving, at a port, a cartridge configured to store a material capable of being aerosolized, wherein the material is a saline solution having a 2% - 5% saline solution concentration, and do not explicitly disclose that the aerosol is associated with a saline solution particle having diameter between 2µm and 12µm or that a device housing is related to the measurements or the aerosolizer.
However, Tiba et al. teach a method including receiving, at a port, a cartridge configured to store a material capable of being aerosolized (placing tank containing saline solution on device, Paragraph 0026), wherein the material is a saline solution having a 2% - 5% saline solution concentration (Paragraph 0048; concentration ranging from 0.5 mg/mL - 359 mg/mL, equivalent to 0.05% - 36%), and that a housing coupled to the port contains an aerosolizer (housing that receives tank contains nebulizing chamber and ultrasonic cell, Paragraph 0045). Tiba et al. note that the cartridge is removable from the port to prepare the saline solution to be aerosolized (Paragraph 0026).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to supplement the method of Kong et al. with the step of receiving, at a port, a cartridge containing a 2% - 5% saline solution concentration, as taught by Tiba et al., in order to provide a refillable supply of saline solution to the aerosolizer, as well as to achieve the dry particle sizes disclosed by Kong et al. (thus equating to a saline solution particle diameter between 2µm and 12µm, as described above regarding claim 1). Doing so would also associate a housing coupled to the port with both the sensor measurements and the aerosolizer receiving the signal.
As described above regarding claim 1, neither Kong et al. nor Tiba et al. explicitly disclose a nebulizing mesh having a resonance frequency of 108.0 ± 6.0kHz. However, Aritsuka et al. teach the use of an ultrasonic aerosolizer including a nebulizing mesh (120) having a resonance frequency of 108.0 ± 6.0kHz (two meshes are disclosed, with one having a resonance frequency in the range of 50-140 kHz, and the other 110-200 kHz; Paragraph 0064). Aritsuka et al. teach that a nebulizing mesh having a resonance frequency in the claimed range (in particular, 110-114 kHz) would be suitable for atomizing either a high-viscosity or a low-viscosity liquid for various applications, including medical treatments (Paragraph 002, 0064).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to practice the method of Kong et al., modified in view of Tiba et al. as described above, using a nebulizing mesh having a resonance frequency in the claimed range, since Aritsuka et al. teach that this would be an appropriate means for aerosolizing a low-viscosity liquid, which is the stated purpose of both Kong et al. and Tiba et al. (specifically, a saline solution). Since both Kong et al. and Tiba et al. are silent as to the specific type of aerosolizer, one having ordinary skill in the art would look to the prior art for solutions, of which Aritsuka et al. provides a suitable example.
Claims 2-5, 9-12, and 16-19 are rejected under 35 U.S.C. 103 as being unpatentable over Kong et al. in view of Tiba et al. and Aritsuka et al., as applied to claims 1, 8, and 15 above, and further in view of Scheck et al.
Regarding claim 2, the invention of Kong et al., modified as described above, renders the system of claim 1 obvious. Kong et al. note that the aerosolizer may include a driver (ultrasonic transducer, Paragraph 0014), but neither Kong et al, nor Tiba et al., disclose an aerosolizer having a driver and a plurality of meshes.
Scheck et al. teaches an aerosolizer (230, Fig. 2) having a driver (oscillation means 245) and a plurality of meshes (240 and 250). Scheck et al. teach that each mesh has a different porosity, and that this configuration allows characteristics of the aerosol to be controlled (Paragraph 0121).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to provide the aerosolizer in the modified invention with a driver and plurality of meshes, as taught by Scheck et al., as the means of aerosolizing, in order to enable greater control over the qualities of the aerosolized saline solution particles.
Regarding claims 3-4, the invention of Kong et al., modified as described above regarding claim 2, renders the system of claim 2 obvious. Scheck et al. further teach that the driver is a mechanical driver configured to vibrate at least one of the plurality of meshes (Paragraph 0122), and that the vibration of at least one of the plurality of meshes is implemented based on a signal (command via regulator 225, Paragraph 0122). Scheck et al. teach that this enables regulation of the quantity of the liquid to be aerosolized (Paragraph 0114) based on varying the vibration frequency (Paragraph 0109).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to utilize the signal from the controller disclosed by Kong et al. to implement the vibration of at least one of the plurality of meshes via a mechanical driver, as taught by Scheck et al., in order to have precise control over the quantity of the solution that is aerosolized.
Regarding claim 5, the invention of Kong et al., modified as described above regarding claim 2, renders the system of claim 2 obvious. Scheck et al. further teach that the plurality of meshes comprises a plurality of layers (Fig. 2) each having a different dimension and geometry (each mesh has a different porosity, with openings that differ in length, height and/or width; Paragraph 0121), and that these differences enable variation in the flowrate and/or characteristics of the aerosol (Paragraph 0121).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to provide the plurality of meshes of the modified invention as described above regarding claim 2, with a plurality of layers each having a different dimension and geometry, as taught by Scheck et al., in order to enable control over the flowrate and/or characteristics of the aerosolized salt particles.
Regarding claims 9-12, the invention of Kong et al., modified as described above regarding claim 8, renders the device of claim 8 obvious. The limitations of claims 9-12 are identical to the limitations of claims 2-5, and the differences between the system of claim 1 and the device of claim 8 have no effect on the application of the teachings of Scheck et al. Thus, the aerosolizer of claims 9-12 could be modified in the same way and using the same reasoning as described above for claims 2-5, respectively.
Regarding claim 16, the method of Kong et al., modified as described above regarding claim 15, renders the method of claim 15 obvious. The modified method does not disclose vibrating a plurality of meshes.
Scheck et al. teaches the use of an aerosolizer (230, Fig. 2) including vibrating a plurality of meshes (Paragraph 0025). Scheck et al. teach that each mesh has a different porosity, and that this step allows characteristics of the aerosol to be controlled (Paragraph 0121).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to practice the aerosolizing step of the combined method by vibrating a plurality of meshes, as taught by Scheck et al., in order to enable greater control over the qualities of the aerosolized saline solution particles.
Regarding claims 17-18, the method of Kong et al., modified as described above regarding claim 16, renders the method of claim 16 obvious. Scheck et al. further teach the use of a mechanical driver to vibrate at least one of the plurality of meshes (Paragraph 0122), and that the vibration of the at least one of the plurality of meshes is implemented based on a signal (command via regulator 225, Paragraph 0122). Scheck et al. teach that this enables regulation of the quantity of the liquid to be aerosolized (Paragraph 0114) based on varying the vibration frequency (Paragraph 0109).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to practice the method of claim 16 using a mechanical driver to vibrate at least one of the plurality of meshes, as taught by Scheck et al., based on the signal, in order to have precise control over the quantity of the solution that is aerosolized.
Regarding claim 19, the method of Kong et al., modified as described above regarding claim 16, renders the method of claim 16 obvious. Scheck et al. further teach the use of a plurality of meshes with a plurality of layers (Fig. 2) each having a different dimension and geometry (each mesh has a different porosity, with openings that differ in length, height and/or width; Paragraph 0121), and that these differences enable variation in the flowrate and/or characteristics of the aerosol (Paragraph 0121).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to practice the method of claim 16 using the plurality of meshes with a plurality of layers each having a different dimension and geometry, as taught by Scheck et al., in order to enable control over the flowrate and/or characteristics of the aerosolized material.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Kong et al. in view of Tiba et al. and Aritsuka et al., as applied to claim 15 above, and further in view of Kaps et al. (US 2019/0167519).
The method of Kong et al., modified as described above regarding claim 15, renders the method of claim 15 obvious. The modified method does not disclose the additional step of activating a plurality of heaters included in a sauna.
Kaps et al. disclose a method (700, Fig. 7) that includes activating a plurality of heaters included in a sauna based on input from a sensor measuring ambient conditions of the sauna (Paragraph 0047). Kaps et al. teaches that this method is implemented by a controller (Paragraph 0039).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to supplement the combined method with the additional step of activating a plurality of heaters included in a sauna, as taught by Kaps et al., in order to enhance the treatments available to the users of the sauna. One having ordinary skill in the art would have recognized that this would yield predictable results, especially considering that a sensor and controller are already being utilized in a similar way when practicing the combined method.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892 form.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL C PATTERSON whose telephone number is (571)270-5558. The examiner can normally be reached M-F 7:30-4:00 CST.
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/MICHAEL C PATTERSON/Examiner, Art Unit 3754
/PAUL R DURAND/Supervisory Patent Examiner, Art Unit 3754 September 18, 2026
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