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
Applicant should note that the large number of references in the attached IDS from 1/12/2024, 10/21/2024, and 1/16/2025 have been considered by the examiner in the same manner as other documents in Office search files are considered by the examiner while conducting a search of the prior art in a proper field of search. See MPEP 609.05(b). Applicant is requested to point out any particular reference in the IDS which they believe may be of particular relevance to the instant claimed invention in response to this office action.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claims 11 and 12 is/are objected to because of the following informalities:
In claim 11, line 1, “displaya” should be –display a--.
In claim 12, line 2, “theapplicator” should be –the applicator--.
Appropriate correction is required.
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 1-12 is 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 1 recites the limitation "the time-varying magnetic field" in line 10. There is insufficient antecedent basis for this limitation in the claim.
Claims 2-12 inherit the deficiencies of claim 1 and are likewise rejected.
Claim 3 recites the limitation “two intensity bars configured to indicate intensity of the magnetic treatment” in lines 1-2. It is not clear if this includes the intensity bar mentioned in line 8 of claim 1 or if the these are new intensity bars.
Claim 6 recites the limitation "the treatment" in line 2. It is not clear which treatment is being referred to.
Claim 7 recites the limitation “wherein the main unit, and” in line 4. It appears that text is missing which makes the claim unclear.
Claim 7 recites the limitation “a connection of plurality of the applicators” in lines 5-6. It is not clear if this refers to “a plurality of applicators” mentioned in line 3 of the claim or a new instance.
Claim 10 recites the limitation "the duration" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites the limitation "the duration" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 12 recites the limitation "the main unit" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 25 of U.S. Patent No. 11,484,725. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 25 of US 11,484,725 discloses a species that anticipates the current genus claims. The claims are mapped as follows:
Claim 1 recites components present in claim 25. The key difference between the two is are the additional limitations present in the component of claim 25 of the patent, which makes the present claim a genus claim anticipated by patent’s species claim.
Claim 2 states that the first applicator comprises the magnetic field generating device and the radio frequency electrode, which is already disclosed by claim 25 of US 11,484,725.
Claim 3 states that the human machine interface comprises two intensity bars configured to indicate intensity of the magnetic treatment, which is already disclosed by claim 25 of US 11,484,725.
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) 1-3, 5-16, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2011/0130618 (Ron Edoute et al., hereinafter Edoute) in view of US 2016/0129273 (Park) in view of US 2015/0360045 (Fischell et al., hereinafter Fischell).
In regards to claims 1, 2, and 6 Edoute discloses a device and method for skin rejuvenation (figures 7-12; paragraphs 15-384). Edoute discloses a device with the following components:
an applicator (see figure 1A-D and 5; elements 10 and 20; applicator (10 or 20) contains elements shown in figure 5) comprising
a magnetic field generating device configured to provide the magnetic treatment (42 coil; paragraphs 98, 122, 274-292);
a radiofrequency electrode configured to provide the radiofrequency treatment (41 – electrode; paragraphs 74, 98, 122, 260, 274-292); and
wherein the time-varying magnetic field has a magnetic flux density in a range of 0.1 Tesla to 7 Tesla (paragraph 287) and a repetition rate in a range of 0.1 Hz to 700 Hz (paragraph 289),
Edoute further describes the presence of a control system (an interface) to control the application of heat and magnetic pulses in paragraphs 39, 40, 64, 104, 112-117, 127, 153, and 302-306 and that the electromagnetic pulses and RF heating can be applied simultaneously, sequentially, or separately, which suggests independent control of the radiofrequency treatment and magnetic treatment. However, Edoute does not show a machine interface that has a display interface with a plurality of scrollers or buttons and intensity bars that indicates an intensity of the magnetic treatment and an intensity of the radiofrequency treatment.
In a related area, Park discloses a device that combines magnetic therapy with another type of energy (heat energy, electrical energy, vibration, etc.). Paragraphs 23-31 describe the combination of different treatment modalities. Paragraphs 25, 38-39, and 74 describe the use of a display interface with knobs, buttons, and/or levers to control the device and the intensity of the energy or energies and that the energy delivery can be done alone or in combination with other energy types, which suggests independent control of the magnetic field generation and heat generation. Paragraphs 27-31 describe how the different energy combinations can be used together to obtain different therapeutic outcomes for a user (which includes magnetic field and RF energies). Thus, it would be obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the device of Edoute to include a human machine interface comprising a display interface with a plurality of intensity scrollers, buttons, or sliders to independently control the intensity of radiofrequency and magnetic treatments as as taught by Park in order to customize therapy for a user to provide optimal relief.
However, Edoute and Park do not disclose the presence of an intensity bar that indicates intensity of the magnetic treatment. In a related area, Fischell discloses a device that uses magnetic pulses for a treatment. Of note is figure 10, which shows intensities of magnetic pulses in a number form (paragraphs 56-62) on an interface panel to allow an operator to see values of parameters being adjusted as well control knobs and buttons that control various parameters including intensity and starting and stopping treatment. Applicant has not stated how an intensity bar to indicate intensity provides an advantage, is used for a particular purpose, or solves a stated problem. Thus, it would have been obvious to one of ordinary skill in the art, before the filing date of the claimed invention to modify the device of Edoute and Park to indicate the intensity of the magnetic treatment with a number as taught by Fischell or with the claimed intensity as both serve the same purpose and produce the same result of indicating intensity of magnetic treatment to the operator.
In regards to claim 3, Edoute, Park, and Fischell disclose the limitations of claim 1. While Edoute, Park, and Fischell do not disclose two intensity bars to indicate the intensity of the magnetic treatment, the additional intensity bars can be considered as mere duplication of parts and is not considered to have patentable significance unless a new or unexpected result is produced (MPEP 2144.04 (VI)(B) Duplication of parts).
In regards to claim 5, Edoute, Park, and Fischell disclose the limitations of claim 1. Park further states that the interface can be a smartphone, computer, or tablet which would contain a microprocessor.
In regards to claim 7, Edoute, Park, and Fischell disclose the limitations of claim 1. In addition, Edoute states in paragraph 267 that there can be more than one applicator to treat more than one body part simultaneously. Edoute further shows in figure 1C the presence of a connecting tube that connects the applicator (10) to a main unit (not shown by Edoute but is considered to be the power and control system) and Fischell in figure 1 shows the applicator (10) being connected to a main unit (20; the power supply and control system in this case). Note that without further specifics about what “information about a connection of the plurality of applicators” encompasses, the information about the treatment provided by Fischell in claim 1 can meet the limitations of the present claim. Furthermore, the additional information for each applicator can be considered as mere duplication of parts and is not considered to have patentable significance unless a new or unexpected result is produced (MPEP 2144.04 (VI)(B) Duplication of parts).
In regards to claims 8-9, Edoute, Park, and Fischell disclose the limitations of claim 1. It can be further seen in figure 10 of Fischell that the interface displays the parameters of a chosen treatment protocol (without further specifics about the predetermined treatment protocol, this could be considered as displaying a selection of a predetermined protocol). The control knobs would provide the modification of the predetermined treatment protocol.
In regards to claims 10-11, Edoute, Park, and Fischell disclose the limitations of claim 1. It can be further seen in figure 10 of Fischell that the interface displays the parameters of a chosen treatment protocol (without further specifics about the predetermined treatment protocol, this could be considered as displaying a selection of a predetermined protocol). In addition, as noted in claim 1, Park and Edoute describe independent control of the magnetic treatment and the radiofrequency treatment using buttons.
In regards to claim 12, Edoute, Park, and Fischell disclose the limitations of claim 1. AS noted in the rejection of claim 1, Edoute shows that the applicator comprises the radiofrequency electrode and the magnetic field generating device. Edoute further shows in figure 1C the presence of a connecting tube that connects the applicator (10) to a main unit (not positively claimed and Applicant gives no specifics about the main unit) and Fischell in figure 1 shows the applicator (10) being connected to a main unit (20; the power supply in this case).
In regards to claim 13, Edoute discloses a device and method for skin rejuvenation (figures 7-12; paragraphs 15-384) where the method includes the following steps:
providing a magnetic treatment by a magnetic field generating device (see 401, 411, 403, and 412; paragraphs 86, 98, 122, 198-200, 214-216, 274-292 shows the application of magnetic fields in pulsed electromagnetic field therapy where magnetic field generating device is a coil);
providing a radiofrequency treatment by a radiofrequency electrode (heating via RF electrodes; see 401, 411, 402 and 412; RF electrodes (41) administer RF treatment to the patient (paragraphs 21-24, 74, 98-99, 122, 196, 260, 275-292));
applying the magnetic treatment to a body of a patient (see 401, 411, 403, and 412; paragraphs 86, 98, 122, 198-200, 214-216, 274-292 shows the application of magnetic fields in pulsed electromagnetic field therapy where magnetic field generating device is a coil); and
applying the radiofrequency treatment to the body of the patient (heating via RF electrodes; see 401, 411, 402 and 412; RF electrodes administer RF treatment to the patient (paragraphs 21-24, 99, 196, 275-278)).
Edoute further describes the presence of a control system to control the application of heat and magnetic pulses in paragraphs 39, 40, 64, 104, 112-117, 127, 153, and 302-306 and that the electromagnetic pulses and RF heating can be applied simultaneously, sequentially, or separately, which suggests independent control of the radiofrequency treatment and magnetic treatment. However, Edoute does not show a machine interface that has a plurality of scrollers or buttons and an intensity bar that indicates the intensity of the magnetic treatment.
In a related area, Park discloses a device that combines magnetic therapy with another type of energy (heat energy, electrical energy, vibration, etc.). Paragraphs 23-31 describe the combination of different treatment modalities. Paragraphs 25, 38-39, and 74 describe the use of a display interface with knobs, buttons, and/or levers to control the device and the intensity of the energy or energies and that the energy delivery can be done alone or in combination with other energy types, which suggests independent control of the magnetic field generation and heat generation. Paragraphs 27-31 describe how the different energy combinations can be used together to obtain different therapeutic outcomes for a user (which includes magnetic field and RF energies). Thus, it would be obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the device in the method of Edoute to include a human machine interface comprising a display interface with a plurality of intensity scrollers, buttons, or sliders to independently control the intensity of radiofrequency and magnetic treatments as taught by Park in order to customize therapy for a user to provide optimal relief.
However, Edoute and Park do not disclose the presence of an intensity bar that indicates intensity of the magnetic treatment. In a related area, Fischell discloses a device that uses magnetic pulses for a treatment. Of note is figure 10, which shows intensities of magnetic pulses in a number form (paragraphs 56-62) on an interface panel to allow an operator to see values of parameters being adjusted. Applicant has not stated how an intensity bar to indicate intensity provides an advantage, is used for a particular purpose, or solves a stated problem. Thus, it would have been obvious to one of ordinary skill in the art, before the filing date of the claimed invention to modify the device in the method of Edoute and Park to indicate the intensity of the magnetic treatment with a number, as shown by Fischell, or with the claimed intensity as both serve the same purpose and produce the same result of indicating intensity of magnetic treatment to the operator.
In regards to claim 14, Edoute, Park, and Fischell disclose the limitations of claim 13 but do not explicitly state the presence of an intensity bar to indicate intensity of the radiofrequency treatment. As noted by Fischell, showing intensities of treatment in number form on an interface panel allows an operator to see values being adjusted. Applicant has not stated how an intensity bar to indicate intensity provides an advantage, is used for a particular purpose, or solves a stated problem. Thus, it would have been obvious to one of ordinary skill in the art, before the filing date of the claimed invention to indicate the intensity of the radiofrequency treatment with a number or with the claimed intensity as both serve the same purpose of indicating intensity of magnetic treatment to the operator.
In regards to claims 15 and 16, Edoute, Park, and Fischell disclose the limitations of claim 13. In addition, as shown by Fischell in figures 1-7, the device is applied for treatment on various parts of the body, which would make the magnetic treatment applied on bones and joints as the body sections contain bones and joints (paragraphs 35-48).
In regards to claim 20, Edoute, Park, and Fischell disclose the limitations of claim 13. Park further states that the interface can be a smartphone, computer, or tablet which would contain a microprocessor.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2011/0130618 (Ron Edoute et al., hereinafter Edoute) in view of US 2016/0129273 (Park) in view of US 2015/0360045 (Fischell et al., hereinafter Fischell) as applied to claim 1 above, and further in view of US 9,186,501 (Rawat et al., hereinafter Rawat).
In regards to claim 4, Edoute, Park, and Fischell disclose the limitations of claim 1. However, they do not state that the interface comprises a touchpad. In a related area Rawat discloses a stimulator device. Of note is column 22, line 65-column 23, line 3 which notes that one of ordinary skill in the art would use suitable mechanism to input data which includes touchscreens, touchpads, mouse, voice commands, etc. Thus, it would have been obvious to one of ordinary skill in the art, before the filing date of the claimed invention to modify the interface of the device of Edoute, Park, and Fischell to use a touchpad as taught by Rawat because it is one of several known ways to enter data into a system.
Claim(s) 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2011/0130618 (Ron Edoute et al., hereinafter Edoute) in view of US 2016/0129273 (Park) in view of US 2015/0360045 (Fischell et al., hereinafter Fischell) as applied to claim 13 above, and further in view of US 20107/0348049 (Vrba et al., hereinafter Vrba)
In regards to claims 17-19, Edoute, Park, and Fischell disclose the limitations of claim 13 but do note state using magnetic and radiofrequency treatment for symptom suppression of diabetes. In a related area, Vrba discloses therapeutic tissue modulation (title and abstract). Vrba specifically states the use of magnetic fields and RF energy to modulate blood vessels within the pancreas (an endocrine gland) and other organs to suppress symptoms of diabetes and lower triglycerides, cholesterol, and/or glucose levels (paragraphs 9, 17, 19-21, 90, 156, 161, 163, 167, 179, and 458). Thus, it would have been obvious to one of ordinary skill in the art, before the filing date of the claimed invention to modify the method of Edoute, Park, and Fischell to apply magnetic and radiofrequency treatment to an endocrine gland and other visceral organs in a patient as taught by Vrba in order to lower symptoms of diabetes.
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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