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 .
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 1-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of copending Application No. 19/,424,348 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because they are almost identical. Please see rejections of claims below.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
In reference to claim 1, copending app ‘348 discloses an electro-optical device capable for providing a photobiomodulation effect in a user of the device, comprising: at least one electro-optical element (EL1) arranged to emit electromagnetic radiation having a peak emission wavelength between 700-1400 nm; a control circuit configured to adjust emission characteristics of the electro-optical element; and a driver circuit configured to receive an input from the control circuit and drive the electro-optical element based on the input received from the control circuit, using a driving current that is pulsed, wherein the control circuit comprises a timer configured to determine an on-period for the electromagnetic radiation emitted by the electro-optical element (EL1), and/or comprises a dose calculation unit configured to determine an accumulated dose of the electromagnetic radiation at the user; wherein the control circuit is configured to instruct the driver circuit to shut off the electro-optical element (ELI), if a predetermined maximum on- period is exceeded, and/or if the accumulated dose determined by the dose calculation unit indicates that a predetermined dose of the electromagnetic radiation at the user is exceeded [claim 1].
In reference to claim 2, copending app ‘348 discloses wherein the control circuit includes a proximity detection unit configured to determine a distance between the user and the device, wherein the control circuit is configured to control the timer and/or the dose calculation unit in dependence on the determined distance [claim 2].
In reference to claim 3, copending app ‘348 discloses wherein the electro-optical device is a handheld device, wherein the driver circuit is configured to drive the electro-optical element with a pulse-width, frequency and radiation level, such that the electro-optical element achieves a peak irradiation intensity above 0.1 mW/cm2 on the user, wherein the first electro-optical element is be directed so that the radiation is emitted from the device having a radiation pattern with a full-width- at-half-power angle of less than 2x60 degrees [claim 3].
In reference to claim 4, copending app ‘348 discloses wherein the electro-optical device is a computer, wherein the driver circuit is configured to drive the electro-optical element with a pulse-width, frequency and radiation level, such that the electro-optical element achieves a peak irradiation intensity above 0.1 mW/cm2 on the user, wherein the radiation emitted by the first electro-optical element is directed so that the radiation is emitted from the device having a radiation pattern with a full-width-at-half-power angle of less than 2x25 degrees [claim 4].
In reference to claim 5, copending app ‘348 discloses further comprising a second electro-optical element being an illumination device, wherein the driver circuit is configured to drive the electro-optical element with a pulse- width, frequency and radiation level, such that the electro-optical element achieves a peak irradiation intensity above 0.1 mW/cm2 on the user, wherein the radiation emitted by the first electro-optical element is directed so that the radiation is emitted from the device having a radiation pattern with a full-width-at-half-power angle of less than 2x25 degrees [claim 5].
In reference to claim 6, copending app ‘348 discloses further comprising a second electro-optical element, wherein the first electro-optical element is arranged to emit only when the second electro- optical element is emitting with a luminance above 10 cd/m2 [claim 6].
In reference to claim 7, copending app ‘348 discloses wherein adjusting of the emission characteristics of the first electro- optical element by the control circuit involves shutting the first electro- optical element off for a predetermined off-period [claim 7].
In reference to claim 8, copending app ‘348 discloses wherein the predetermined cumulative off-period is longer than 8 hours [claim 8].
In reference to claim 9, copending app ‘348 discloses wherein the peak irradiation intensity at an average distance of between 0.1 and 5m from the first electro-optical element is 0.1 mW/cm2 or more [claim 9].
In reference to claim 10, copending app ‘348 discloses wherein a delivered dose over 1 hour or longer at an average distance of between 0.2 and 5m from the first light source is between 0.01 and 50 J/cm2 [claim 10].
In reference to claim 11, copending app ‘348 discloses wherein the radiation emitted by the first electro-optical element is directed by optics so that the radiation is emitted from the device having a radiation pattern with a full-width-at-half-power angle of less than 2x60 degrees [claim 11].
In reference to claim 12, copending app ‘348 discloses wherein the radiation emitted by the first electro-optical element has a radiation pattern with a full-width-at-half-power angle of 2x10 degrees or less [claim 12].
In reference to claim 13, copending app ‘348 discloses wherein the electro-optical device is a display screen, comprising a first set of micro-LEDs or VCSELs arranged to emit electromagnetic radiation having a peak emission wavelength between 700-1400 nm to function as the electro-element, and a second set of micro-LEDs to function as display pixels [claim 13].
In reference to claim 14, copending app ‘348 discloses wherein the pulse frequency is 100 Hz or higher [claim 14].
In reference to claim 15, copending app ‘348 dislcoses wherein the pulse frequency is 30 Hz or a multiple of 30 Hz [claim 15].
Conclusion
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/NADIA A MAHMOOD/Primary Examiner, Art Unit 3796