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 .
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 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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kirson et al US 2018/0001078 in view of Palti US 7089054. Kirson teaches a tumor treating device having electrodes that apply an alternating current within a frequency range that overlaps that used by Applicant. He does not mention the treatment of intestines, but Palti teaches a similar device for treating gastro-intestinal tumors, a likely candidate for electrodes that are positioned on the lower abdomen as are Kirson. It would have been obvious at the time of Applicant invention to apply tumor treating fields to intestines of a patient using the Kirson device positioned above the lower abdomen of a patient. A mal absorption condition appears to one of relativity, things can always be better absorbed by a patient, but even if it is a specific condition to a patient, the treatment of tumors in a patient with another comorbidity such as malabsorption, which condition may be due to the tumors themselves, would be obvious. It is noted that Applicant’s application appears to be the result of an unpublished experiment, which conclude that because of treatments with tumor treating electric fields on mice, the morphology changes in the intestine epithelia that resulted is due to claudin-2 disruption and therefor would affect intestinal absorption of nutrients based on the findings of other publications. The parameters used for treating mice, of which little are disclosed, appear to be much narrower than that which the claims cover. One can only conclude that whatever parameters are in the claims can be assumed to generate the morphology changes that Applicant observed in mice. With Kirson and Palti treating the same tissues (intestine), with electrodes on the abdomen (same placement) and same frequencies would inherently result in the same morphology changes and thus the same intestinal absorption changes, because if the same conditions are used the same result would be inherent. Therefore, claim 10 is the inherent result of the modification of Kirson in view of Palti. The remaining claims 1-9 and 11-20 are merely daily functions which everyone performs every day, or what one would encounter when being treated in a treatment facility. For claim 11-12, these merely happened to be comorbidities of the tumor procedure of Kirson and Palti. For claim 13, the patient may be in remission and the tumor treatment field are preventative. Claim 14 is an inherent result. For claim 15, Palti and Kirson used frequencies up to 500 kHz. For claim 16, tumor treatments would t TT fields typically last about 24 hours. Claims 17-20 are merely providing food, medications and vitamins to the patient as is common in a treatment facility as would the scope of claims 1-5 and 9. Claim 2 follows along the same lines of the rejection of claim 13, claim 3 follows claim 14, claim 6 follows the rejection of claim 15. Claims 7-8 merely recite that the treatments are intermittent giving tissues an opportunity to recover as is conventional. The examiner takes official notice
In conclusion, Applicant has merely discovered a latent property of a conventional treatment and recovery regimen involving a TT field procedure performed on a patient’s intestines. Typically, the discovery of a latent property of a known procedure is not regarded as a patentable distinction. Moreover, the breadth of the claims is not commensurate in scope with the conditions of the experiment that led to the latent property discovery which leads the examiner to conclude that the claims as present are not drafted to a patentable invention.
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/MARK W. BOCKELMAN/ Primary Examiner, Art Unit 3792