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 (IDS) submitted on 4/13/2023 is being 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 8-14 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.
Claim 8 recites the limitation “the metallic nanoparticle” in lines 7, 10, and 11. It is not clear which nanoparticle is being referred to as there can be more than one.
Claim 8 recites the limitation “the cell membrane” in line 11. It is not clear which cell membrane is being referred to as there can be more than one.
Claim 8 recites the limitation “the cell structure” in lines 11 and 12. It is not clear which cell structure is being referred to as there is more than one.
Claims 9-14 inherit the deficiencies of claim 8 and are likewise rejected.
Claim 12 is unclear because it cannot be determined if the mentioned handheld device is being claimed as part of the claimed apparatus.
Claim 13 inherit the deficiencies of claim 12 and is likewise rejected.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 8-10 and 12-14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by AT508394 B1 (Mayer).
In regards to claim 8, Mayer discloses an apparatus for the specific destruction of health-relevant and cosmetically/aesthetically/relevant cell structures without damaging their surroundings, which cell structures have at least one metal nanoparticle on their cell membrane (see abstract), the apparatus (figures 5-8; paragraphs [0026] and [0048]-[0050]) comprising the following features:
a primary coil for generating an inhomogeneous primary magnetic field ("two coils"; see paragraph [0026] and [0048]-[0050]),
a secondary coil for generating an inhomogeneous secondary magnetic field ("two coils", see paragraph [0026] and [0048]- [0050]), and
a control device which is designed to control the primary coil in such a way that the nanoparticle is deflected by the primary magnetic field (HP), and to control the secondary coil in such a way that the secondary magnetic field (HS) oscillates relative to the primary magnetic field (HP) and periodically deforms the latter in order to generate Alfven waves which deflect the nanoparticle, as a result of which the cell membrane of the cell structure is torn open by the nanoparticle and the cell structure is consequently destroyed (paragraphs [0026] and [0048]-[0050] describe the control of the magnetic field, which requires the presence of a control device that controls the magnetic field oscillation of the coils and that the interaction between the coils would deform the primary magnetic field).
Note that the limitation “in order to generate Alfven waves, …is consequently destroyed” appears to be a recitation of an intended use. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In regards to claim 9, Mayer discloses the limitations of claim 1. In addition, the "opposite control" according to paragraphs [0026] and [0050] of Meyer corresponds to the control of both coils with a temporal change according to the present claim 2.
In regards to claim 10, Mayer discloses the limitations of claim 1. In addition, Mayer shows in figures 7 and 8 that the primary and secondary coils, are toroidal coils arranged concentrically.
In regards to claims 12 and 13, Mayer discloses the limitations of claim 8. Due to 112 issues in the claim, the limitations as currently written appear to be intended use of the device components to components not being explicitly claimed. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In regards to claim 14, Mayer discloses the limitations of claim. In addition, Mayer states in paragraphs [0026] and [0050]-[0051] and shows in figures 10-11 waveforms of the coil control signal which would require selection of the duration of actuation and the strength of the magnetic fields, thus making the control unit meet the limitations specified in the claim.
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.
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over AT508394 B1 (Mayer) as applied to claim 8 above, and further in view of US 2013/0172728 (Gaitas).
In regards to claim 11, Mayer discloses the limitations of claim 8. Paragraphs [0059]-[0060] discloses the idea of continuous operation with breaks of time between applications to allow the organism to break down dead cells so that poisoning does not occur. However, Mayer gives no specifics about times of operation. In a related area, Gaitas discloses a therapy that uses localized heating using particles via magnetic induction. Of note are paragraphs 47-51 which discloses various time durations for heating with heating periods of about that last for seconds to a few minute that are repeated every 30 seconds. One example uses 10 second durations of actuation, which meets the limitations of the claim. The intermittent heating avoids damage to healthy cells. Thus, it would have been obvious to one of ordinary skill, before the filing date of the claimed invention, to modify the device of Mayer to actuate the coils for 10 second increments as taught by Gaitas in order to avoid damage to nearby healthy cells.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA DARYL DEANON LANNU whose telephone number is (571)270-1986. The examiner can normally be reached Monday-Thursday 8 AM - 5 PM, Friday 8 AM -12 PM.
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/JOSHUA DARYL D LANNU/Examiner, Art Unit 3791
/CARRIE R DORNA/Primary Examiner, Art Unit 3791
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