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 and Amendment Filed
Applicant’s response and amendment, filed November 24, 2025, has been entered and made of record.
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.
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: control module in claims 1-14.
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 § 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 1-14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In independent claims 1 and 12, “operating channels” is recited when “channels” is previously recited in the claims. As claims 2-11 and 13-14 depend from claims 1 and 12, respectively, they are likewise rejected.
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)(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.
Claim(s) 1-14 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Schwarz et al. (U.S. Patent Application Publication No. 2022/0096142).
In regard to claims 1, 2, 7, Schwarz et al. teach a treatment device comprised of an input interface 103, a control system 104, four treatment clusters A1 107a, A2 107aa, B1 107b B2 107bb and four treatment energy sources A1 108a, A2 108aa, B1 108b and B1 108bb, thus forming four treatment circuits (see Fig. 1e and para. 0157). Each treatment cluster 107 may include one or more electrical elements related to generation of respective treatment energy, such as an RF electrode, and the treatment energy source would thus be a source of RF energy (see para. 0150). Each treatment cluster may further be a monopolar RF electrode that transfers energy between an active electrode and a passive electrode, thus creating a closed energy conduction circuit (see para. 0251). The treatment circuits may be independently controlled or regulated by any part of control system 104, such as the amount of energy density delivered by operation of the RF electrode of one treatment circuit may be set independently from the operation of the RF electrode of another treatment circuit (see para. 0152). Input device 103 may be a touchscreen display and control system 104 may include one or more controlling elements for adjusting or controlling any part of electrical elements of the treatment device (see paras. 0144-0146). The control system 104 may include one or more processors (see para. 0146). Schwarz et al. teach modifying the electrical signal in a controlled manner based upon the requirements of the treatment, the type of patient, the treatment parameters as well as feedback information, such as measured standing wave ratio of RF energy, temperature of tissue, temperature of RF electrode, etc. (see para. 0173). Schwarz et al. also teach providing a temperature sensor 510 to determine the temperature in treatment device 800 (see para. 0228). In regard to claim 3, see para. 0247 of Schwarz et al. In regard to claims 4, 5, 10 and 11, Schwarz et al. teach that one or more of the treatment devices/applicators 14 may be coupled to a patient’s body and/or body area by one or more straps, one or more belts such that the applicators contact the patient’s skin (see paras. 0224-0226). In regard to claim 6, see para. 0216 of Schwarz et al. In regard to claims 8 and 9, see para. 0527 of Schwarz et al. In regard to claims 12-14, see the above rejections for claims 1 and 5 for the structure taught by Schwarz et al. See also para. 0176 of Schwarz et al. disclosing the inclusion of software. In addition, see paras. 0672 et seq. of Schwarz et al. teaching a variety of treatment protocols (methods).
Response to Arguments
Applicant's arguments filed November 24, 2025 have been fully considered but they are not persuasive.
Applicant argues that the claimed invention operates exclusively with radiofrequency energy while Schwarz (of record) mandates the simultaneous use of both magnetic field and radiofrequency energy (see the response filed 11/24/25; page numbers were not provided on the response). Applicant points to paras. 0013 and 0117 of Schwarz to support this argument and states that Schwarz cannot anticipate a device designed to operate solely with RF energy (see the response filed 11/24/25). Applicant further argues that the claimed software simultaneously readjusts power values for each channel based on energy flow values between corresponding active and passive electrodes implementing a specific energy flow ratio-based control algorithm whereas Schwarz, at para. 0173, provides only general feedback concepts regarding standing wave ratios and temperatures without disclosing the specific energy flow ratio-based control mechanism that enables the claimed asynchronous power adjustment functionality (see the response filed 11/24/25). Applicant also argues that the claimed invention targets visceral fat and Schwarz only addresses aesthetic concerns related to subcutaneous fat treatment (see the response filed 11/24/25). Applicant also argues that the claimed invention requires direct contact between electrodes and the patient’s skin and Schwarz explicitly states at para. 0022 that the electrode should not come into contact with a patient’s skin and Schwarz employs vacuum coupling mechanisms, as at para. 0224 (see the response filed 11/24/25).
As to applicant’s argument that Schwarz cannot anticipate a device designed to operate solely with RF energy because Schwarz discloses the simultaneous use of both magnetic field and radiofrequency energy, the claims as written (utilizing the term “comprising”) do not exclude the application of references that teach more than the application of RF energy. MPEP 2111.03 (I) states:
The transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) ("[L]ike the term ‘comprising,’ the terms ‘containing’ and ‘mixture’ are open-ended."). Invitrogen Corp. v. Biocrest Manufacturing, L.P., 327 F.3d 1364, 1368, 66 USPQ2d 1631, 1634 (Fed. Cir. 2003) ("The transition ‘comprising’ in a method claim indicates that the claim is open-ended and allows for additional steps."); Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501, 42 USPQ2d 1608, 1613 (Fed. Cir. 1997) ("Comprising" is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim.); Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 229 USPQ 805 (Fed. Cir. 1986); In re Baxter, 656 F.2d 679, 686, 210 USPQ 795, 803 (CCPA 1981); Ex parte Davis, 80 USPQ 448, 450 (Bd. App. 1948) ("comprising" leaves "the claim open for the inclusion of unspecified ingredients even in major amounts"). In Gillette Co. v. Energizer Holdings Inc., 405 F.3d 1367, 1371-73, 74 USPQ2d 1586, 1589-91 (Fed. Cir. 2005), the court held that a claim to "a safety razor blade unit comprising a guard, a cap, and a group of first, second, and third blades" encompasses razors with more than three blades because the transitional phrase "comprising" in the preamble and the phrase "group of" are presumptively open-ended. "The word ‘comprising’ transitioning from the preamble to the body signals that the entire claim is presumptively open-ended." Id. In contrast, the court noted the phrase "group consisting of" is a closed term, which is often used in claim drafting to signal a "Markush group" that is by its nature closed. Id. The court also emphasized that reference to "first," "second," and "third" blades in the claim was not used to show a serial or numerical limitation but instead was used to distinguish or identify the various members of the group. Id.
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There is also nothing in the claim language that would make the application of Schwarz to the claims impossible or unattainable (e.g., a structural limitation that Schwarz cannot meet because it combines RF and magnetic energy). If applicant intends to exclude the application of references that teach the application of additional energy modalities, the claims should be rewritten in such a fashion. As to applicant’s argument that Schwarz provides only general feedback concepts regarding standing wave ratios and temperatures without disclosing the specific energy flow ratio-based control mechanism that enables the claimed asynchronous power adjustment functionality, the terms “specific energy flow ratio-based control algorithm” nor “asynchronous power adjustment” do not appear in the claims. 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). As to applicant’s argument that Schwarz does not target visceral fat, Schwarz at para. 0121 defines one part of adipose tissue as comprising visceral adipose tissue located in the peritoneal cavity and at para. 0125 discloses application of the treatment device to a patient’s abdomen to provide treatment that may reduce the number and volume of adipose cells and fat removal. As to applicant’s argument that Schwarz explicitly states at para. 0222 that the electrode should not come into contact with a patient’s skin, the examiner disagrees with this statement. Para. 0222 states that the RF electrode “may” not contact the skin of the patient not that it will not or must not contact the skin of the patient. In addition, para. 0226 of Schwarz states that the applicator may be placed in direct contact with the patient’s skin (see also paras. 0238 and 0244).
Conclusion
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 BEVERLY MEINDL FLANAGAN whose telephone number is (571)272-4766. The examiner can normally be reached Mon-Fri 7:30AM to 5:00PM.
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/BEVERLY M FLANAGAN/Primary Examiner, Art Unit 3794