DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Information Disclosure Statement
The Information Disclosure Statement filed 08/28/2023 has been considered by the Examiner.
Response to Arguments
Rejections under 35 USC 112
The amended claims dated 10/22/2025 have overcome the rejections under 35 USC 112 as presented in the Office Action dated 09/15/2025. The rejections under 35 USC 112 have hereby been withdrawn.
Rejections under 35 USC 102
Claims 1, 2, 5, 7, and 19-21 were rejected under 35 USC 102 in the previous Office Action dated 09/15/2025. Claims 1, 2, 5, 7, and 19-21 have been canceled in the Remarks dated 10/22/2025, so the previously presented rejections are moot and therefore withdrawn. The rejection of claims 15 and 18, which originally depended from now-cancelled claim 7, under 35 USC 102 is also considered moot.
Rejections under 35 USC 103
Rejections under 35 USC 103 for cancelled claims 3, 4, 6, and 22-23 are rendered moot and therefore withdrawn.
Applicant's arguments filed 10/22/2025 have been fully considered but they are not persuasive.
Applicant argues that the previously presented prior art of Loupis does not mention any order or series of how the light colors are applied, and that the labeling of light sources as ‘first,’ ‘second,’ or ‘third’ are merely a means of differentiating the light sources from one another.
Examiner acknowledges Applicant’s arguments regarding the labeling of light sources as a means of differentiation. However, Examiner argues that this does not preclude the light sources emitting lights of various wavelengths from also being emitted in an order corresponding to their labels of ‘first,’ ‘second,’ and ‘third’. For example, in paragraph [0004] where the first light is in the violet spectra and the second light is in the blue spectra and paragraph [0005] where the first light is in the blue spectra and the second light is in the violet spectra.
Additionally, in paragraph [0163], Loupis discloses that different light sources having different emission spectra may be illuminated simultaneously or at separate times, where it may be desirable to activate one emission spectra at a time and/or alternate between two or more emission spectra. Loupis states in paragraph [0163] that ‘for example, in weekly treatments for acne, alternating between two wavelength ranges (e.g., 633 nm (red) and 415 nm (violet)) may result in more efficient treatment than using one wavelength range alone.’ This clearly shows that Loupis does teach an order or series of applying light colors. While Loupis may not explicitly teach each claimed order of application of light colors, it can be appreciated that when there are a limited number of light colors, and they may be applied in a sequential/alternating fashion, that there is a finite number of identified, predictable orders of application of light colors with a reasonable expectation of success and that it would be obvious to one of ordinary skill in the art to try each of the finite combinations. See MPEP 2143.
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 9-14 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.
Amended independent claim 8 includes the limitation of applying wavelengths of light in a specified order: violet-blue, green, red. Dependent claims 9-14 include further limitations to the order of light color application that are contradictory to the order claimed in claim 8. Using claim 9 as an example, it is unclear how the device may apply light in an order of violet-blue, green, and red as recited in claim 8 and also in the order of green, violet-blue, and red as recited in claim 9. Claims 9-13 each introduce new orders of applying the wavelengths of light. Claim 14 recites the limitation of applying the violet-blue, green, and red wavelengths simultaneously, which is contradictory to the order of light application claimed in the independent claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 8-18 are rejected under 35 U.S.C. 103 as being unpatentable over Loupis et al (US 20160016001 A1) in view of Rossi et al (US 20200405858 A1).
Regarding claim 8, Loupis teaches a method for increasing activity of one or more complexes in an electron transport chain in a treatment area of a patient (see Loupis [0214]; photomodulation of cellular activity induced by light has been found beneficial in skin therapy or treatment methods), the method comprising applying light energy of one or more of the following wavelengths externally to the treatment area:
a. light energy having a violet-blue wavelength (see Loupis [0008]; a first light having a peak wavelength of about 430 to about 500 nm, which encompasses the violet-blue range of about 380nm-495nm);
b. light energy having a green wavelength (see Loupis [0009]; a second light having a peak wavelength of about 480 to about 620 nm, which encompasses the green range of about 495nm-570nm); and
c. light energy having a red wavelength (see Loupis [0022]; a third light having a peak wavelength of about 630 to about 750 nm, which encompasses the red range of about 620nm-750nm);
wherein the light energy is applied in the following order:
a. light energy having a violet-blue wavelength;
b. light energy having a green wavelength; and
c. light energy having a red wavelength (see Loupis para. [0163] which discloses that the light sources having different emission spectra may be illuminated at separate times, and it may be desirable to activate one emission spectra at a time by applying different emission spectra in a sequential/alternating fashion).
Loupis may not explicitly state the application of light colors in the order of first light (violet-blue), second light (green), and third light (red), however, it can be appreciated that when there are a limited number of light colors, and they may be applied in a sequential/alternating fashion, that there is a finite number of identified, predictable orders of application of light colors with a reasonable expectation of success and that it would be obvious to one of ordinary skill in the art to try each of the finite combinations. See MPEP 2143.
Loupis is silent regarding applying light energy of one or more of the following wavelengths externally to the treatment area:
a. light energy having a violet-blue wavelength;
b. light energy having a green wavelength; and
c. light energy having a red wavelength;
wherein
d. light energy having the violet-blue wavelength increases activity of Complex I or Complex II;
e. light energy having the green wavelength increases activity of Complex III; and
f. light energy having the red wavelength increases activity of Complex IV;
Rossi teaches a method for increasing activity of one or more complexes in the electron transport chain (see [0012]; method for stimulating mitochondrial biogenesis with illumination), in a treatment area of a patient, the method comprising applying light energy having a red wavelength externally to the treatment area (see [0104]; actinic light emitting wavelengths between 200 and 800 nm),
wherein light energy having a red wavelength increases activity of Complex IV (see [0048]; cytochrome c oxidase is the primary photoreceptor for the red-NIR wavelength range, 630-900 nm).
It can be appreciated that claim 8 recites the limitations:
applying light energy of one or more of the following wavelengths externally to the treatment area:
a. light energy having a violet-blue wavelength;
b. light energy having a green wavelength; and
c. light energy having a red wavelength;
wherein
d. light energy having a violet-blue wavelength increases activity of Complex I or Complex II;
e. light energy having a green wavelength increases activity of Complex Ill; and
f. light energy having a red wavelength increases activity of Complex IV
which are claimed in the alternative, therefore the prior art discussed above satisfies the current claim language.
It would have been obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention that applying light energy having a red wavelength as taught by Loupis, would induce the advantageous cellular effects as taught by Rossi. One of ordinary skill in the art would have been motivated to make this modification in order to conduct skin treatment protocols which result in beneficial effects such as decreased inflammation, increased ATP production, etc. (Rossi [0005]).
Regarding claims 9-13, Loupis in view of Rossi teaches the method of claim 8. Loupis is silent regarding wherein the light energy is applied at wavelengths in the following orders:
Green, violet-blue, red (claim 9)
Green, red, violet-blue (claim 10)
Red, violet-blue, green (claim 11)
Violet-blue, red, green (claim 12)
Red, green, violet-blue (claim 13)
However, Loupis does teach changing the order of the applied light energy, for example, in paragraph [0004] where the first light is in the violet spectra and the second light is in the blue spectra and paragraph [0005] where the first light is in the blue spectra and the second light is in the violet spectra.
In paragraph [0163] Loupis discloses that the light sources having different emission spectra may be illuminated at separate times, and it may be desirable to activate one emission spectra at a time by applying different emission spectra in a sequential/alternating fashion.
Loupis may not explicitly state the application of light colors in the claimed orders, however, it can be appreciated that when there are a limited number of light colors, and they may be applied in a sequential/alternating fashion, that there is a finite number of identified, predictable orders of application of light colors with a reasonable expectation of successfully delivering therapeutic treatment tailored to the needs of a patient and that it would be obvious to one of ordinary skill in the art to try each of the finite combinations. Loupis discloses that light delivery parameters, including order of light color application, may be selected based on the specific treatment and/or the presence of desirable or detrimental synergistic effects of multiple spectra, for example alternating between a red and violet wavelength in weekly acne treatments resulting in a more efficient treatment than using one wavelength alone (Loupis [0163]). With this in mind, a person of ordinary skill in the art would have good reason to pursue the known options within their technical grasp, such as changing the order of light color application, and the anticipated success of providing a therapeutic treatment to a patient would have been due to ordinary skill and common sense rather than innovation. See MPEP 2143.
Regarding claim 14, Loupis in view of Rossi teaches the method of claim 8. Loupis further teaches wherein the violet-blue (see Loupis [0008]; a first light having a peak wavelength of about 430 to about 500 nm, which encompasses the violet-blue range of about 380nm-495nm), green (see Loupis [0009]; a second light having a peak wavelength of about 480 to about 620 nm, which encompasses the green range of about 495nm-570nm), and red (see Loupis [0022]; a third light having a peak wavelength of about 630 to about 750 nm, which encompasses the red range of about 620nm-750nm) wavelengths are applied simultaneously (see Loupis [0053]; the first, second, and/or third light sourses may emit light having different/complementary properties simultaneously).
Regarding claim 15, Loupis in view of Rossi teaches the method of claim 8. Loupis is silent regarding wherein the light energy of all wavelengths is low-level laser energy applied to the treatment area in a continuous sweeping motion.
Rossi teaches wherein the light energy of all wavelengths is low-level laser energy applied to the treatment area in a continuous sweeping motion (see [0109]; the source of actinic light is in a continuous motion over the treated area for the appropriate time of exposure).
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 Loupis’ method for applying light energy of different wavelengths to a treatment area by applying the light using a continuous sweeping motion as taught by Rossi. One of ordinary skill in the art would have been motivated to make this modification in order to tailor the light exposure of the target tissue with respect to the surface of the treatment area, the severity of the condition being treated, the power density, wavelength and bandwidth of the light source, etc. in order to achieve the desired therapeutic effect (Rossi [0107]).
Regarding claim 16, Loupis and Rossi teach the method of claim 15. Rossi is silent regarding wherein the application of laser energy causes no detectable temperature rise of the treated location, although Rossi does teach the light energy to be delivered over in a continuous sweeping motion for a preset period of time, which can be appreciated to reduce the likelihood of raising tissue temperatures due to the lack of a stagnant beam of light on a single point (Rossi [0108-0109]).
Loupis further teaches a method of phototherapy via a therapeutic device wherein the application causes no detectable temperature rise of the treated location (see Loupis [0145]; the therapeutic device may have a cooling system including heat sinks, one or more fans, vents, or a shield in order to minimize heating).
Regarding claim 17, Loupis and Rossi teach the method of claim 15. Loupis further teaches wherein the low-level laser energy (see Loupis [0096]; irradiating light may be applied by a laser) applied using a hand-held laser device that emits a line of laser light (see Loupis [0063]; the device may be portable and provided with handles).
Regarding claim 18, Loupis in view of Rossi teaches the method of claim 8. Loupis further teaches wherein a single light-emitting device applies the violet-blue, green, and red wavelengths (see Loupis [0053]; the first, second, and/or third light sources may emit light having different/complementary properties simultaneously, at different times, and/or for different time periods, from a single light source or a plurality of light sources).
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 ALISHA J SIRCAR whose telephone number is (571)272-0450. The examiner can normally be reached Monday - Thursday 9-6:30, Friday 9-5:30 CT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Klein can be reached at 571-270-5213. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.J.S./Examiner, Art Unit 3792
/Benjamin J Klein/Supervisory Patent Examiner, Art Unit 3792
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