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 .
Claim Status: Claims 1-20 are pending.
Information Disclosure Statement
The information disclosure statement filed on October 27, 2023 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered.
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.
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Claims 1, 2, and 14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 14, 15, 19, and 20 of copending Application No. 18496374 in view of Breden et al. (US 2007/0167999).
Claims 1, 3, 15, and 20 from copending application ‘374 recite most of the claim limitations regarding a first set and a second set of light sources configured to emit at a first frequency and a second frequency, respectively, in claims 1 and 14.
Claims 1, 3, 15, and 20 from copending application ‘374 are silent regarding a base.
However, Breden discloses a light emitting apparatus comprising:
a base (fig. 3 – fig. 11B show examples of base); and
a plurality of light sources disposed on the base (fig. 3 – fig. 11B show examples of base), wherein:
each light source is configured to emit light (para. [0021], [0022], [0027], [0028], and page 7, Table of LEDs and Frequencies disclose light sources with light pulses),
the plurality of light sources comprises a first set of light sources and a second set of light sources,
the first set of light sources is configured to emit pulses of light modulated at a first frequency from a plurality of frequencies, based on command signals obtained from a frequency generator (fig. 1, para. [0024], frequency generator 120)
the second set of light sources is configured to emit pulses of light modulated at a second frequency, from the plurality of frequencies, based on the command signals obtained from the frequency generator, and the first frequency is different from the second frequency (para. [0021], [0022], [0027], [0028], and page 7, Table of LEDs and Frequencies disclose light sources with light pulses; para. [0029] discloses that LEDs may be cycled through multiple frequencies with example frequencies in para. [0030] and fig. 2, Protocol Table; para. [0058] and page 7, Table of LEDs and Frequencies disclose that different sets of LEDs are each configured to emit light pulses at multiple frequencies – Examiner notes that disclosed light sources are configured to emit more than two frequencies; therefore, “a first set of light sources” and “a second set of light sources” can be arbitrarily designated. Additionally, the claim doesn’t recite that the first set of light sources are different from the second set of light sources.).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to modify copending claims, by adding a base, as taught by Breden, for the purpose of providing a physical support base for the light sources.
Claims 14 and 19 of copending application ‘374 reads on instant claim 2.
This is a provisional nonstatutory double patenting rejection.
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.
Claim 5 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.
Re Claim 5, the limitation “a wavelength of 390 to 1600 nm” is indefinite, because it is unclear whether it is claiming a wavelength in a range of 390 to 1600 nm or a wavelength band of 390 to 1600 nm.
Para. [0036] of instant specification discloses that each light source may be configured to emit coherent light having a wavelength in a range of 390 to 1600 nm.
For the purpose of examination, the limitation has been interpreted as “a wavelength in a range of 390 to 1600 nm”.
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.
Claims 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Breden et al. (US 2007/0167999) in view Irge (US 2011/0071602).
Re Claims 1 and 2, Breden discloses a light emitting apparatus comprising:
a base (fig. 3 – fig. 11B show examples of base); and
a plurality of light sources disposed on the base (fig. 3 – fig. 11B show examples of base), wherein:
each light source is configured to emit light (para. [0021], [0022], [0027], [0028], and page 7, Table of LEDs and Frequencies disclose light sources with light pulses),
the plurality of light sources comprises a first set of light sources and a second set of light sources,
the first set of light sources is configured to emit pulses of light modulated at a first frequency from a plurality of frequencies, based on command signals obtained from a frequency generator (fig. 1, para. [0024], frequency generator 120)
the second set of light sources is configured to emit pulses of light modulated at a second frequency, from the plurality of frequencies, based on the command signals obtained from the frequency generator, and the first frequency is different from the second frequency (para. [0021], [0022], [0027], [0028], and page 7, Table of LEDs and Frequencies disclose light sources with light pulses; para. [0029] discloses that LEDs may be cycled through multiple frequencies with example frequencies in para. [0030] and fig. 2, Protocol Table; para. [0058] and page 7, Table of LEDs and Frequencies disclose that different sets of LEDs are each configured to emit light pulses at multiple frequencies – Examiner notes that disclosed light sources are configured to emit more than two frequencies; therefore, “a first set of light sources” and “a second set of light sources” can be arbitrarily designated. Additionally, the claim doesn’t recite that the first set of light sources are different from the second set of light sources.).
Breden is silent regarding each light source from the plurality of light sources is a laser light source and is configured to emit coherent light.
Irge discloses light therapy device (abstract) configured to accelerate wound healing, promote skeletal muscle regeneration, and decrease inflammatory response (para. [0050], [0019]) and each light source from the plurality of light sources is a laser light source (para. [0010], one or more laser diodes) and is configured to emit pulses of coherent light at different frequencies (para. [0034], [0035]).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to modify Breden, by configuring each light source from the plurality of light sources to be a laser light source and configuring the first set of light source and the second set of light source to emit pulses of coherent light at first and second frequencies, respectively, as taught by Irge, for the purpose of producing a focused and coherent beam and by changing the laser diodes output from continuous wave to pulse wave and adjusting its frequency, providing enhanced pain relief without any relation or dependence on the wavelength of the radiation output (para. [0035]).
Re Claim 3, Breden discloses that the light emitting apparatus is configured to be attached to an animal body or a human body for bio-stimulating phototherapy (fig. 4-fig. 13B show wearable pad devices), and wherein the coherent light emitted by each light source is configured to penetrate animal skin or human skin (para. [0023] discloses the disclosed wavelengths penetrate the skin).
Re Claim 4, Breden discloses that the plurality of frequencies is in a range of 0.1 Hz to 5,000 Hz (para. [0004], frequencies between about 0.5 Hz and 10000 Hz; para. [0030] and [0031] disclose example frequencies).
Re Claim 5, Breden as modified by Irge discloses each light source configured to emit coherent light as set forth in claim 1. Breden further discloses that each light source is configured to emit the light with a wavelength of 390 to 1,600 nm (para. [0027], [0028], the LEDs may range from about 100 nm to about 1500 nm, from about 100 nm to about 1200 nm, or from about 400 nm to about 880 nm. The paragraphs also disclose other specific wavelengths within the claimed range). It would have been obvious to one of ordinary skill in the art, at the time of filing, to configure light source claimed in 5 to be coherent light with the same rationale and motivation as set forth in claim 1.
For the purpose of examination, the limitation, “a wavelength of 390 to 1,600 nm”, has been interpreted as “a wavelength in a range of 390 to 1600 nm”.
Re Claim 6, Breden as modified by Irge discloses each light source configured to emit coherent light as set forth in claim 1.
Breden discloses that the plurality of light sources further comprises:
a third set of light sources configured to emit pulses of light modulated at a third frequency from the plurality of frequencies, based on the command signals obtained from the frequency generator;
a fourth set of light sources configured to emit pulses of light modulated at a fourth frequency from the plurality of frequencies, based on the command signals obtained from the frequency generator;
a fifth set of light sources configured to emit pulses of light modulated at a fifth frequency from the plurality of frequencies, based on the command signals obtained from the frequency generator;
a sixth set of light sources configured to emit pulses of light modulated at a sixth frequency from the plurality of frequencies, based on the command signals obtained from the frequency generator; and
a seventh set of light sources configured to emit pulses of light modulated at a seventh frequency from the plurality of frequencies, based on the command signals obtained from the frequency generator, wherein the first frequency, the second frequency, the third frequency, the fourth frequency, the fifth frequency, the sixth frequency and the seventh frequency are different from each other (para. [0021], [0022], [0027], [0028], and page 7, Table of LEDs and Frequencies disclose light sources with light pulses; para. [0029] discloses that LEDs may be cycled through multiple frequencies with example frequencies in para. [0030] and fig. 2, Protocol Table; para. [0058] and page 7, Table of LEDs and Frequencies disclose that different sets of LEDs are each configured to emit light pulses at multiple frequencies – Examiner notes that disclosed light sources are configured to emit seven different frequencies; therefore, “a third set”, “a fourth set”, “a fifth set”, “a sixth set”, and “a seventh set” can be arbitrarily designated. Additionally, the claim doesn’t recite that the seven sets of light sources are different from one another.).
It would have been obvious to one of ordinary skill in the art, at the time of filing, to configure light source claimed in 6 to be coherent light with the same rationale and motivation as set forth in claim 1.
Re Claim 7, Breden discloses that each of the first set of light sources, the second set of light sources, the third set of light sources, the fourth set of light sources, the fifth set of light sources, the sixth set of light sources and the seventh set of light sources comprises six light sources (para. [0029] discloses that LEDs may be cycled through multiple frequencies with example frequencies in para. [0030] and fig. 2, Protocol Table; para. [0058] and page 7, Table of LEDs and Frequencies disclose that different sets of LEDs are each configured to emit light pulses at multiple frequencies – Examiner notes that disclosed light sources are configured to emit seven different frequencies, and the claim doesn’t recite that the seven sets of light sources are different from one another.; fig. 3 – fig. 11B show that sets of LEDs with same wavelength emission have at least six light sources; therefore, each set of LEDs that emits seven different frequencies has at least six light sources.)
Re Claim 8, Breden discloses that each of the first set of light sources, the second set of light sources, the third set of light sources, the fourth set of light sources, the fifth set of light sources, the sixth set of light sources and the seventh set of light sources is disposed in a hexagonal pattern on the base (fig. 3 shows LEDs disposed in a hexagonal pattern on the base; para. [0029] discloses that LEDs may be cycled through multiple frequencies with example frequencies in para. [0030] and fig. 2, Protocol Table; para. [0058] and page 7, Table of LEDs and Frequencies disclose that different sets of LEDs are each configured to emit light pulses at multiple frequencies – Examiner notes that disclosed light sources are configured to emit seven different frequencies; therefore, “a first set”, “a second set”, “a third set”, “a fourth set”, “a fifth set”, “a sixth set”, and “a seventh set” can be arbitrarily designated. Additionally, the claim doesn’t recite that the seven sets of light sources are different from one another.).
Re Claim 9, Breden discloses that each of the first frequency, the second frequency, the third frequency, the fourth frequency, the fifth frequency, the sixth frequency and the seventh frequency is further modulated at an eighth frequency (para. [0029], [0030], the frequency may be changed according to an ordered sequence, or may be changed at random for frequencies in the frequency range from about 0.5 Hz to about 10000 Hz. Fig. 2, Protocol Table, and para. [0030] disclose more than eight different frequencies.).
Re Claim 10, Breden discloses that the eighth frequency is less than 16 Hz (para. [0030] discloses frequencies less than 16 Hz).
Re Claim 11, Breden discloses that the eighth frequency is less than lowest of the first frequency, the second frequency, the third frequency, the fourth frequency, the fifth frequency, the sixth frequency and the seventh frequency (para. [0030] discloses more than eight different frequencies).
Re Claim 12, Breden discloses that the base is shaped as a circular disc (fig. 3, para. [0034], a cluster head 301 is shaped as a circular disc).
Re Claim 13, Breden discloses that each light source has an associated power rating of less than 5 milliwatt (mW) (para. [0033], the treatment protocols may preferably deliver between about 1 to about 1,000 joules, from about 1 to about 100 joules, from about 4 to about 20 joules, or from about 4 and about 12 joules of energy to the treatment area during the treatment time; para. [0031] discloses treatment time; para. [0035], The treatment sessions can be for a predetermined period of time, for example, from about 1 minute to about 45 minutes using a timer; para. [0059], Preferred treatment times may vary from about 7 minutes to about 10 minutes, e.g., about 7 minutes, about 8 minutes, about 9 minutes, or about 10 minutes. The treatment time may be adjusted up to 10 minutes by adjusting the individual frequency times by up to 1 minute. – Examiner notes that the combination of disclosed energy (joules) and treatment duration (seconds) discloses power rating of less than 5 mW (watts x seconds = joules))
Re Claim 14, Breden discloses a system comprising:
a frequency generator (fig. 1, para. [0024], frequency generator 120); and
a light emitting apparatus comprising:
a base (fig. 3 – fig. 11B show examples of base); and
a plurality of light sources disposed on the base (fig. 1, para. [0024], LED array 140), wherein:
each light source is configured to emit light (para. [0021], [0022], [0027], [0028], and page 7, Table of LEDs and Frequencies disclose light sources with light pulses),
the plurality of light sources comprises a first set of light sources and a second set of light sources,
the first set of light sources is configured to emit pulses of light modulated at a first frequency from a plurality of frequencies, based on command signals obtained from the frequency generator, and
the second set of light sources is configured to emit pulses of light modulated at a second frequency, from the plurality of frequencies, based on the command signals obtained from the frequency generator, wherein the first frequency is different from the second frequency (para. [0021], [0022], [0027], [0028], and page 7, Table of LEDs and Frequencies disclose light sources with light pulses; para. [0029] discloses that LEDs may be cycled through multiple frequencies with example frequencies in para. [0030] and fig. 2, Protocol Table; para. [0058] and page 7, Table of LEDs and Frequencies disclose that different sets of LEDs are each configured to emit light pulses at multiple frequencies – Examiner notes that disclosed light sources are configured to emit more than two frequencies; therefore, “a first set of light sources” and “a second set of light sources” can be arbitrarily designated. Additionally, the claim doesn’t recite that the first set of light sources are different from the second set of light sources.).
Breden is silent regarding each light source is configured to emit coherent light, wherein the first set of light sources is configured to emit pulses of coherent light and the second set of light sources is configured to emit pulses of coherent light.
Irge discloses light therapy device (abstract) configured to accelerate wound healing, promote skeletal muscle regeneration, and decrease inflammatory response (para. [0050], [0019]) and each light source from the plurality of light sources is a laser light source (para. [0010], one or more laser diodes) and is configured to emit pulses of coherent light at different frequencies (para. [0034], [0035]).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to modify Breden, by configuring each light source to emit coherent light, wherein the first set of light sources is configured to emit pulses of coherent light and the second set of light sources is configured to emit pulses of coherent light, as taught by Irge, for the purpose of producing a focused and coherent beam and by changing the laser diodes output from continuous wave to pulse wave and adjusting its frequency, providing enhanced pain relief without any relation or dependence on the wavelength of the radiation output (para. [0035]).
Re Claim 15, Breden discloses that the light emitting apparatus is configured to be attached to an animal body or a human body for bio-stimulating phototherapy (fig. 4-fig. 13B show wearable pad devices), and wherein the coherent light emitted by each light source is configured to penetrate animal skin or human skin (para. [0023] discloses the disclosed wavelengths penetrate the skin).
Allowable Subject Matter
Claims 17-20 are allowed.
Claim 16 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Reasons for Allowance
The following is an examiner’s statement of reasons for allowance:
Claim 17 and claims dependent thereon in the instant application have not been rejected using prior art because no references, or reasonable combination thereof, could be found which disclose, or suggest, in combination with other limitations of the claim, a system comprising: a magnetic field generating apparatus comprising: a first magnetic coil configured to generate pulses of magnetic field at the first frequency based on the command signals obtained from the frequency generator, wherein the pulses of magnetic field generated by the first magnetic coil are synchronized with the pulses of coherent light emitted by the first set of light sources; and a second magnetic coil configured to generate pulses of magnetic field at the second frequency based on the command signals obtained from the frequency generator, wherein the pulses of magnetic field generated by the second magnetic coil are synchronized with the pulses of coherent light emitted by the second set of light sources.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VYNN V HUH whose telephone number is (571)272-4684. The examiner can normally be reached Monday to Friday from 9 am to 5 pm.
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/Benjamin J Klein/Supervisory Patent Examiner, Art Unit 3792
/V.V.H./
Vynn Huh, January 7, 2026Examiner, Art Unit 3792