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 .
Response to Arguments
1. Applicant's arguments filed 06/29/2026 have been fully considered but they are not persuasive.
The Applicant argues that the art of Holley would not be analogous or obvious since it teaches a sold chamber that is not capable of being broken down/reassembled. The Examiner respectfully disagrees. The primary reference, Jensen is used to teach a general infrared sauna system with walls and a control panel, wherein the sauna/chamber can emit FIR, MIR, and NIR. Jensen does not teach wherein the system can have a compressed oxygen source or wherein the system can be packed and assembled by a user. The Examiner pulls the art of Holley in to teach that it is known that infrared sauna/infrared rooms in general can have a compressed oxygen source that can be adjusted and emitted into the room, in order to allow for enhanced oxygenation of tissues and detoxification of tissues. This is all that Holley is relied upon to teach. The actual construction of Holley is not relied upon for this rejection, only that it is known in saunas to have oxygen sources.
This combination still fails to teach wherein the sauna/chamber is configured to be shipped in a flat configuration and is configured to be assembled within a selected location. However, FarlnfraredSauna, is relied upon to teach this. Their video shows a portable/packed sauna being assembled by attaching side walls, front wall, back wall, and ceiling to one another (See video) in order to allow for easy breakdown and set up of a chamber.
This combination of all the teachings is what is used to reject the claim. Further, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. The rejection still stands.
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.
2. Claims 15 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jensen (US 20200398078 A1) in view of Vladimirovich (WO 2016053139 A1) and in further view of Holley (US 20090217930 A1) and in further view of FarInfraredSauna (NPL; Big Bear Infrared Sauna Assembly Video)
In regards to claim 15, Jensen discloses a dry chamber for providing controlled durations of infrared radiation within an internal space sized to accept at least one human being (Abstract discloses a room that emits infrared radiation for people), the chamber comprising:
at least one heater configured to emit far infrared (FIR) energy within the internal space (Fig 1 shows elements 110-119 which are heating panels, i.e. heaters. Par. 0027 and 0048 discloses the panels can be adapted for FIR);
at least one heater configured to emit near infrared (NIR) energy within the internal space (Par. 0077 discloses the room can be adapted to emit NIR);
at least one heater configured to emit at least min infrared (MIR) energy within the internal space (Par. 0046 discloses the panels can be used to emit MIR);
at least one light emitting source configured to emit a selected wavelength of visible light within the internal space (Par. 0068 discloses the room can comprise a light emitting source and then discloses several wavelengths);
a seat within an interior of the chamber and extending between two side walls of the chamber (Fig 1 shows the seat, element 2); and
a control panel configured to control a duration of FIR, MIR, and NIR (Fig 1 shows a control box, i.e. panel [6];).
Jensen discloses the chamber of claim 1 except for the chamber further comprising at least one salt block and a source of oxygen. However, in the same field of endeavor, Vladimirovich discloses an infrared sauna wherein a salt plate is placed inside of the sauna (Fig 1 and 2 show the sauna room having both infrared light emitters [8/9] and salt panels [5] positioned within the chamber) in order to allow the air in the environment to be saturated with negative ions, thus strengthening your immune system (Page 7).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Jensen by having the chamber comprise a salt block, as taught and suggested by Vladimirovich, in order to allow the air in the environment to be saturated with negative ions, thus strengthening your immune system (Page 7).
The combined teachings do not disclose wherein the chamber includes an oxygen source. However, in the same field of endeavor, Holley discloses an infrared sauna/infrared room (Par. 0035) that has a compressed oxygen source that can be adjusted and emitting into the room (Par. 0047) in order to allow for enhanced oxygenation of tissues and detoxification of tissues (Par. 0105).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Jensen and Vladimirovich by having the chamber comprise an oxygen source, as taught and suggested by Holley, in order to allow for enhanced oxygenation of tissues and detoxification of tissues (Par. 0105).
Jensen, Vladimirovich, and Holley do not explicitly disclose wherein the chamber is configured to be shopped in a flat configuration and is configured to be assembled within a selected location. However, in the same field of endeavor, FarlnfraredSauna, shows a portable/packed sauna being assembled by attaching side walls, front wall, back wall, and ceiling to one another (See video) in order to allow for easy breakdown and set up of a chamber.
Therefore, it would have been obvious to on having ordinary skill in the art before the effective filing of the claimed invention to have taken the teachings of Jensen and modified them by having the chamber be assembled in such manner, as taught and suggested by FarInfraredSauna, in order to allow for easy breakdown and set up of a chamber.
In regards to claim 17, the combined teachings of Jensen, Vladimirovich, Holley, and FarInfraredSauna as applied to claim 15 disclose the chamber of claim 15 wherein the FIR, MIR, and NIR emitters are activated to provide near, mid-rage, and far infrared energy concurrently (Par. 0068 of Jensen discloses applying one or more visible colors)
3. Claim 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jensen, Vladimirovich, Holley, FarInfraredSauna, and further in view of Besner (US 20140209594 A1).
In regards to claim 16, the combined teachings of Jensen, Vladimirovich, Holley, and FarInfraredSauna disclose the chamber of claim 15 except for further comprising natural stones positioned to absorb FIR energy to heat the stones
However, in the same field of endeavor Besner discloses a FIR therapy device comprising a grid positioned over at least one of the FIR heaters, wherein the grid contains natural stones that emit IR energy when heated (Fig 1 shows a grid like FIR heating element with stone heaters [14] and Par. 0067 discloses using natural stones) for the purpose of using stones in a therapy device may create an aura of negative ions when charged with infrared heat, these negative ions being important for aiding in biochemical reactions that increase levels of chemicals, such as serotonin, to help reduce the effects of depression, stress, and lethargy.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have taken the teachings of Jensen, Vladimirovich, Holley, and FarInfraredSauna and modified them by comprising a grid positioned over at least one of the FIR heaters, wherein the grid contains natural stones that emit IR energy when heated, as taught and suggested by Besner, for the purpose of using stones in a therapy device may create an aura of negative ions when charged with infrared heat, these negative ions being important for aiding in biochemical reactions that increase levels of chemicals, such as serotonin, to help reduce the effects of depression, stress, and lethargy (Par. 0006 of Besner).
Double Patenting
4. 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 1-5, 7-8, and 10-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 11364391 B2 and claims 1-16 of U.S. Patent No. 11944843 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of US 11364391 B2 and U.S. 11944843 B2 contain all of the subject matter of the claims in the present application.
Prior Art Rejections
5. Claims 1-5 7-8, and 10-14 do not have art rejections applied. They contain subject matter that is not found within the art. Such subject matter includes “a grid positioned over the at least one of the emitters configured to emit FIR wherein the grid contains natural stones, wherein when the at least one of the emitters configured to emit FIR is energized a first portion of the emitted FIR energy passes through the grid and a second portion of the emitted FIR energy is absorbed by the natural stones and results in the natural stones emitting IR energy”. However, the Double Patenting Rejection still needs to be addressed.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SKYLAR LINDSEY CHRISTIANSON whose telephone number is (571)272-0533. The examiner can normally be reached on Monday-Friday, 7:30-5:30 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Niketa Patel can be reached on (571) 272-4156. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/S.L.C./Examiner, Art Unit 3792
/LYNSEY C Eiseman/Primary Examiner, Art Unit 3796
Prosecution Insights