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 Objections
Claims 1-10 are objected to because of the following informalities:
i. Regarding Claims 1-10, the claims are missing “A” or “The” at the start of the claim, i.e. “A photobiomodulation device…” and “The device…”
ii. Regarding Claim 2, “wherein said acquisition means acquire said distance in time during at least said emission time…” is grammatically incorrect, and should read “wherein said acquisition means acquires said distance in a time during at least said emission time…”
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Regarding Claims 1 and 2, the limitation “acquisition means… configured to” is interpreted under U.S.C. 112(f) as there is not sufficient structure provided to determine what performs the claimed function, as the only structure provided is that the acquisition means is operatively connected to the control unit. Applicant lists on Pg. 12, Lines 2-3 “acquisition means 5 may thus be simple proximity sensors or other sensors capable of determining the distance of the subject with respect to the emitter 3” and Line 5 “the acquisition means 5 may comprises a time-to-flight type sensor” as descriptions of potential acquisition means. For the purposes of examination, the Examiner will be interpreting and applying art to meet either of these two definitions.
Regarding Claims 1, 2, and 4, the limitation “control means… configured to” is interpreted under U.S.C. 112(f) as there is not sufficient structure provided to determine what performs the claimed function, as the limitation is only defined in functional language. Pg. 11, Lines 4-10 state the control means is electric board with or without an interface, so for the purposes of examination, the Examiner will be interpreting and applying art to meet this definition.
Regarding Claim 9, the limitation “movement means” is interpreted under U.S.C. 112(f) as there is not sufficient structure provided to determine what performs the claimed function, as the limitation is only defined in functional language. Pg. 9, Line 23-Pg. 10, Line 2 indicates that the movement is provided by wheels, so for the purposes of examination, the Examiner will be interpreting and applying art to meet this definition.
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 1-10 are 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 limitations "the product” in Line 4, “the luminous intensity” in Line 5, and “the emission time” in Line 4. There is insufficient antecedent basis for these limitations in the claim. For the purpose of examination, these limitations will be interpreted as “a product”, “a luminous intensity”, and “an emission time”.
Claim 6 is rendered indefinite as the limitation “one emission wall including one or more of said emitters and configured to appear on said subject” would not be readily understood by one of ordinary skill in the art. It is unclear how a physical, tangible object can “appear” on a subject. Pgs. 8 and 10 of Applicant’s Specification state that the emission wall is configured to “face” the subject so emissions from the wall strike the individual, so the Examiner will be interpreting the claim in this way for the purposes of applying prior art.
Claim 7 recites the limitation “said emission wall” in in Line 5 of the claim. There is insufficient antecedent basis for this limitation in the claim. For the purpose of examination, these limitations will be interpreted as “an emission wall”.
Claim 8 recites the limitation "the support ends" in Line 2 of the claim. There is insufficient antecedent basis for this limitation in the claim. For the purpose of examination, these limitations will be interpreted as “a support ends”.
Claim 9 recites the limitation "the support ends” in Line 2 of the claim. There is insufficient antecedent basis for this limitation in the claim. For the purpose of examination, these limitations will be interpreted as “a support ends”.
Further regarding Claims 7-9, the claims are indefinite as well as antecedent for the limitation “said support end”, as it is unclear the limitations that follow only apply to one of the two listed ends, or if they should apply to both and it is a typographical error. Even if it is not a typographical error, and only one end is intended to be referenced, the limitations have insufficient antecedent basis as “a support end” is never defined, only “two support ends”. For the purpose of examination, in light of Fig. 2, these limitations will be interpreted as the two support ends, as “the two support ends”.
Claim 10 recites the limitation "the luminous intensity" in Line 4 of the claim, “the emission time” in Line 5 of the claim, and “said acquired distance” in Line 10 of the claim. There is insufficient antecedent basis for these limitations in the claim. For the purpose of examination, these limitations will be interpreted as “a luminous intensity”, “an emission time”, and “an acquired distance”.
Claims 2-5 are rejected based on their dependency to the rejected claims above.
Claim Rejections - 35 USC § 102
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 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.
Claims 1-4, 6-8, and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent Publication 20140316492 awarded to Min et al, hereinafter Min.
Regarding Claim 1, Min teaches a photobiomodulation device for cell regeneration (Para. 0062) in a subject comprising: a support (Fig. 1, support part 1), including at least one emitter configured to emit a light beam (Fig. 3, LED 324) having a wavelength between 630 nm and 850 nm (Para. 0065, “660 nm”) and defining an emission dose given by the product between the luminous intensity of said light beam and the emission time of said light beam (the Examiner notes any light dose will have these parameters, as the definition of an emission dose is emission dose=intensity x time), a control unit operatively connected to said emitter, configured to allow a user at least to set said emission time and a predetermined dose (Para. 0012, the control device controlling the intensity and time determines the dose applied) and configured to modulate said luminous intensity of said light beam in relation to said emission time set in such a way that said emission dose corresponds to said predetermined dose (Para. 0012, “and a control circuit part adapted for supplying electric power to the light emitting member and controlling light intensity and irradiation time”), and further comprising acquisition means operatively connected to said control unit and configured to determine a distance between said emitter and said subject hit by said light beam, said control unit being further configured to modulate said light intensity of said light beam in relation to said acquired distance so that said emission dose corresponds to said predetermined dose (Para. 0024, “The control circuit part includes a proximity sensor formed on the inner face of the rotation part, the proximity sensor sensing a distance from the user's target skin which is put on the base member and enabling the user to control light intensity and light emitting time of the LED according to the sensed distance”).
Regarding Claim 2, Min teaches the device according to claim 1, wherein said acquisition means acquire said distance in time during at least said emission time and said control unit is configured to modulate said light intensity in a variable manner in time in relation to variations of said distance acquired over time in such a way that said emission dose corresponds to said predetermined dose (Para. 0024, “The control circuit part includes a proximity sensor formed on the inner face of the rotation part, the proximity sensor sensing a distance from the user's target skin which is put on the base member and enabling the user to control light intensity and light emitting time of the LED according to the sensed distance”).
Regarding Claim 3, Min teaches the device according to Claim 1, wherein said emitter is of type choice between LED (LED 324).
Regarding Claim 4, Min teaches the device according to Claim 1, wherein the control unit is configured to allow a user to select said wavelength between intervals respectively between 630-660 nm (Para. 0065, “660 nm”).
Regarding Claim 6, Min teaches the device according to Claim 1, wherein said support comprises at least one emission wall (light emitting member 3, Fig. 2, Para. 0014 “The rotation part is formed by combination of an inner cover and an outer cover which are formed in an arc shape, the outer cover has hinge portions which are respectively formed at both end portions of the outer cover and are joined with the side plate portions of the support part, and the light emitting member is joined between the inner cover and the outer cover of the rotation part”) including one or more of said emitters and configured to appear on said subject (Para. 0039).
Regarding Claim 7, Min teaches the device according to Claim 1, wherein said support comprises at least two support ends and a frame to arch connecting said support end defining a housing adapted to house said subject and partly delimited by said frame and part of said support ends and comprising said emission wall facing towards said housing (Para. 0014, “The rotation part is formed by combination of an inner cover and an outer cover which are formed in an arc shape, the outer cover has hinge portions which are respectively formed at both end portions of the outer cover and are joined with the side plate portions of the support part, and the light emitting member is joined between the inner cover and the outer cover of the rotation part”).
Regarding Claim 8, Min teaches the device according to Claim 1, wherein said support end comprises a foot (hinge portions) configured for resting said support stably on a support surface for said subject (Para. 0014, “The rotation part is formed by combination of an inner cover and an outer cover which are formed in an arc shape, the outer cover has hinge portions which are respectively formed at both end portions of the outer cover and are joined with the side plate portions of the support part, and the light emitting member is joined between the inner cover and the outer cover of the rotation part”).
Regarding Claim 10, Min teaches a procedure for setting a photobiomodulation for cell regeneration of a subject (Para. 0062) comprising: setting an emission time of a light beam (Para. 0012, “and a control circuit part adapted for supplying electric power to the light emitting member and controlling light intensity and irradiation time”) having a wavelength between 630 nm and 850 nm (Para. 0065, “660 nm”) and defining an emission dose given by the product between the luminous intensity of said light beam and the emission time of said light beam (the Examiner notes any light dose will have these parameters, as the definition of an emission dose is emission dose=intensity x time), and a predetermined dose (Para. 0012, “and a control circuit part adapted for supplying electric power to the light emitting member and controlling light intensity and irradiation time”), determining a distance between said emitter and said subject hit by said light beam, and modulating said light intensity of said light beam in relation to said acquired distance such that said emission dose corresponds to said predetermined dose (Para. 0024, “The control circuit part includes a proximity sensor formed on the inner face of the rotation part, the proximity sensor sensing a distance from the user's target skin which is put on the base member and enabling the user to control light intensity and light emitting time of the LED according to the sensed distance”).
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.
Claims 5 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Publication 20140316492 awarded to Min et al, hereinafter Min, in view of U.S. Patent Publication 20200306555 awarded to Ebbesson, hereinafter Ebbesson.
Regarding Claim 5, Min teaches the device according to Claim 1. Min does not explicitly teach using a plurality of light emitters, but does teach the need for even radiation of a subject (Para. 0070).
However, in the art of light therapy (Para. 0011), Ebbesson teaches the usage of multiple LED bulbs (Para. 0021) for the purposes of even application (Para. 0005).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Min by Ebbesson, i.e. by using multiple bulbs in the system of Min as in Ebbesson, for the predictable purpose of providing an even treatment as in Ebbesson above.
Regarding Claim 9, Min teaches the device according to Claim 1. Min does not teach wherein said support end comprises movement means configured to allow the movement of said support with respect to a sliding plane along at least one predetermined direction. Min does teach motivation to selectively treat a part of a person’s body (Para. 0070).
Further, Ebbesson teaches the usage of wheels on the ends of an arched light therapy device (wheels 13, Fig. 1) to achieve treatment at different portions of a person’s body (Para. 0022).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Min by Ebbesson, i.e. by using wheels on the ends of Min’s arched treatment device as in Ebbesson, for the predictable purpose of increasing the available treatment sites of the apparatus.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jess Mullins whose telephone number is (571)-272-8977. The examiner can normally be reached between the hours of 9:00 a.m. to 5:00 p.m. PST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Unsu Jung, can be reached at (571)-272-8506. The fax number for the organization where this application or proceeding is assigned is (571)-273-8300.
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/JLM/
Examiner, Art Unit 3792
/AMANDA L STEINBERG/Examiner, Art Unit 3792