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 Rejections - 35 USC § 101
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). Claim 1 recites “accommodation cavity accommodation cavity accommodates the head of a user and forms a spaced cavity with scalp of the user”. As written, the head of the user is being positively recited. Suggested language would be using “configured to” or “designed to”.
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 11 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.
The term “diffuses gently” in claim 11 is a relative term which renders the claim indefinite. The term “gently” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 19 recites the limitation "the wind velocity”. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "the range”. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "the wind velocity”. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "the range”. There is insufficient antecedent basis for this limitation in the claim.
Claim 22 recites the limitation "the range”. There is insufficient antecedent basis for this limitation in the claim.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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, 3-7, 9-11, 13, 15, 17, 21-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over KR20170125499A to Chen in view of US 20100010594 A1 to Taboada et al. (hereinafter “Taboada”).
Regarding claim 1. (Currently amended) Chen discloses a phototherapy device (Description, machine translated, “scalp care member 100”), comprising: a headgear, including a housing assembly (“scalp care member 100”), inner side of which forms an accommodation cavity (“inner cover 130”) and is provided with a first gas inlet (“the cool air generated from the cold supply member 140 can be immediately discharged through the air flow hole 134 [] and provided to the scalp, so that not only the scalp can cool, but also the heat generated from the LED can be cooled”), the accommodation cavity accommodates the head of a user during phototherapy and forms a spaced cavity with scalp of the user (“a plurality of spacing protrusions 132 are formed so as to protrude so as to maintain a predetermined distance from the inner surface of the scalp”), the spaced cavity is constructed to form gas pathway between the first gas inlet and the scalp of the user during phototherapy (fig. 7 and “the cool air generated from the cold supply member 140 can be immediately discharged through the air flow hole 134 [] and provided to the scalp,”); irradiation assembly, which is mounted to the housing assembly and transmits light to the inner side of the housing assembly (“the LED module 120 includes a plurality of RGB LEDs 121 that generate RGB colors, respectively, and a plurality of IR LEDs 122 that generate infrared rays, and the inner cover 130 includes RGB LEDs 121, And an LED through hole 131 is formed in a portion corresponding to the LED so that the light generated from the IR LED 122 is directed to the head.”); and a cooled gas supply mechanism, which introduces cooled gas from outside of the housing assembly and is fluid-interconnected to the first gas inlet (“a cool air supply member 140”), so as to blow
Chen discloses the phototherapy device above. The limitation “for cerebral functional related diseases” is only recited in the preamble. The claim does not provide any details of the actual treatment nor does it positively recite using the device to treat/enhance cerebral functional related diseases. As recited, Chen discloses the device above. It is further noted that Chen is configured to apply light to the scalp of the user, as claimed in this application, and therefore, a similar result would be achievable.
However, Chen fails to explicitly disclose providing transcranial light. Taboada, from a similar field of endeavor teaches providing transcranial therapy to the user (para 0141). It would have been obvious before the effective filing date of the claimed invention to modify the disclosure of Chen with the teachings of Taboada, because doing so would provide the predictable result of providing additional treatment of behavioral deficits.
Regarding claim 3. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 1, wherein, the headgear further comprises a support assembly provided to the inner side of the housing assembly, wherein the support assembly is constructed to maintain the spaced cavity between the housing assembly and the scalp of the user during phototherapy (Chen, “a plurality of spacing protrusions 132”).
Regarding claim 4. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 1, wherein, the housing assembly comprises an outer housing (“outer cover 110”), euphotic inner housing (“inner cover 130”), and a spacer (the claim does not provide any details regarding the chambers and the spacers, as recited, and under its broadest reasonable interpretation, any component that, divides the area into two could read over the claimed limitation. Here, Chen’s circuit board 124, or Taboada, fig. 9A), a chamber is formed between the outer housing and the inner housing (“the inner portion is spaced apart from the outer cover 110”), the spacer divides the chamber to form a first chamber and a second chamber (the claim does not provide any details regarding the chambers and the spacers, as recited, and under its broadest reasonable interpretation, any component that, divides the area into two could read over the claimed limitation. Here, Chen’s circuit board 124, or Taboada, fig. 9A) the irradiation assembly is provided within the first chamber (“The LED module 120 is disposed on the inner surface of the outer cover 110”), the first gas inlet is opened on the inner housing (“air flow hole 134, fig. 2), the cooled gas supply mechanism is interconnected to the first gas inlet through the second chamber (“air flow hole 134”, fig. 2, 5-7), for the cooled gas to be blown toward the scalp of the user by passing through the second chamber and the first gas inlet sequentially (“An air flow hole 134 for discharging air to the scalp is formed.”).
Regarding claim 5. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 4, wherein, it further comprising a hot gas pumping and discharging mechanism (“a blowing fan 190”), which is interconnected to the first chamber and constructed to extract the hot gas heated by the heat generated by the irradiation assembly out and discharge it to the outside of the housing assembly (fig. 6, “dissipate heat”).
Regarding claim 6. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 1, wherein, the headgear further comprises a branch pathway mechanism, which is provided to the inner side of the housing assembly and is fluid-interconnected to the first gas inlet, a first vent is opened onto the branch pathway mechanism, and the branch pathway mechanism includes a plurality of branch pathways in the spaced cavity (Chen, figs 5-6, the airflow holes 134 could be considered as “pathway” as claimed, and the inlet being the first vent; Taboada, fig. 5A).
Regarding claim 7. (Currently amended) The phototherapy device of claim 6, wherein, the headgear further comprises a support assembly provided to the inside of the housing assembly, the support assembly comprises one or more support bodies, each support body is opened with a second vent to be fluid-interconnected to the corresponding branch pathway,
Regarding claim 9. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 4, wherein, the first chamber and the second chamber are both independent from each other (see rejection of claim 4; any arbitrary chambers is considered to be independent and separate from one another).
Regarding claim 10. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 4, wherein, the top portion of the spacer is opened with a second gas inlet, which is constructed to introduce the cooled gas (fig 2), the inner housing has an outer top surface, which forms a wind guide surface provided corresponding to the second gas inlet, so as to guide the cooled gas introduced via the second gas inlet to the periphery (fig. 2).
Regarding claim 11. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 10, wherein, the top portion of the inner housing is arch-shaped with a curvature less than a preset curvature (fig. 2, any curvature could be said to be the preset curvature), so that the introduced cooled gas diffuses gently to the periphery under the function of the arch-shaped top portion of the inner housing (fig. 2).
Regarding claim 13. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 5, wherein, a gas extraction port is opened in the outer housing, which is interconnected to the hot gas pumping and discharging mechanism and is provided with a retaining structure, wherein the retaining structure comprises a stop plate and a plurality of gas extraction holes interconnected to the first chamber, and the stop plate is provided corresponding to the gas extraction port in the up-down direction (fig. 2, “cover 160 detachably fixed to the flow hole 113 of the outer cover 110 so as to cover the heat dissipation unit 150 while allowing the heat of the heat dissipation unit 150 to be discharged”).
Regarding claim 15. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 1, wherein, it comprises a plurality of the irradiation assemblies, which are provided in array (fig. 3, “The RGB LED 121 and the IR LED 122 are arranged electrically connected to the circuit board 124”), and a plurality of the first gas inlets provided in groups, with each group of the first gas inlets corresponding to each individual irradiation assembly respectively (the claim does not provide any details, under its broadest reasonable interpretation, any arbitrary grouping could be considered to be corresponding to a different irradiation; figs 2-3, 5-6); it is also noted that changing the shape/design or rearrangement of parts is obvious variation. See In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) and In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950).
Regarding claim 17. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 15, wherein, the area of inner housing for opening the each group of the first gas inlets
Regarding claim 21. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 1, wherein, when the phototherapy device is used for treating Alzheimer's disease (Taboada, para 0114, could be used to treat Alzheimer), the housing assembly accommodates loosely the user's head, allowing the head to rotate within a predetermined angle range and move in the up-down direction within a predetermined distance range during the treatment (Chen, fig. 2; it is understood that the device is not secured to the head preventing movement, therefore, the user’s head could rotate/move at least slightly relative to the device).
Regarding claim 22. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy 2 towards the patient's head, and the temperature near the patient's scalp is within Celsius during the phototherapy (Taboada, para 0082, “near-infrared wavelengths”, para 0087 “40, 50, 60, 70, 80, or 90 mW/cm2”, etc. temperature discussion at para 0143);
Regarding “within the range from 23 degrees Celsius to 40 degrees Celsius”, it is understood that Taboada monitors the temperature at para 0143. The claim as recited, and the specification, do not provide any evidence of criticality. Therefore, it is understood that the desired range and treatment could be selectively elected by the user. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding claim 23. (New) Chen as modified by Taboada renders obvious the phototherapy device of claim 1, wherein, the housing assembly forms a cooled gas transmission inner cavity, which is fluid-interconnected to the first air inlet (Chen, “cool air supply member coupling portion 133’).
Regarding claim 24. (New) Chen as modified by Taboada renders obvious the phototherapy device of claim 4, wherein, the first chamber is located outer than the second chamber (fig. 2, see rejection of claim 4).
Regarding claim 25. (New) Chen as modified by Taboada renders obvious the phototherapy device of claim 3, wherein, the cooled gas supply mechanism introduces the cooled gas from an upperside of the housing assembly to the cooled gas transmission inner cavity, which forms a wind guide surface to guide the cooled gas to the periphery and then downwards (fig. 5-6, the structure of “cool air supply member coupling portion 133”).
Regarding claim 26. (New) Chen as modified by Taboada renders obvious the phototherapy device of claim 1, wherein, the phototherapy device is used for treating at least one of Alzheimer's disease, depression, autism, and bipolar disorder (para 0114, 0116).
Claim(s)19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chen as modified by Taboada as applied to claims 1, 3-7, 9-11, 13, 15, 17, 21-26 above, and further in view of WO2004045322 to Kim.
Regarding claim 19. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 1, wherein, during phototherapy the gas pathway formed by the spaced cavity enables the wind velocity adjacent to the scalp of the user to be maintained but fails to disclose the wind velocity to be within the range from 0.5 m/s to 3.5 m/s.
Kim, from a similar field of endeavor teaches the wind velocity of the blowing air to be of about 2m/s (description). It would have been obvious before the effective filing date of the claimed invention to modify the disclosure of Chen as modified by Taboada with the known teachings of Chen, because doing so would allow for the predictable result of using the known wind speeds.
Regarding claim 20. (Currently amended) Chen as modified by Taboada renders obvious the phototherapy device of claim 1, wherein, the temperature of the cooled gas is tuned, so that during phototherapy the temperature adjacent to the scalp of the user maintains in case that the wind velocity adjacent to the scalp of the user is maintained within the range but fails to disclose the wind velocity to be within the range from 0.5 m/s to 3.5 m/s.
Regarding “within the range from 23 degrees Celsius to 40 degrees Celsius”, it is understood that Taboada monitors the temperature at para 0143. The claim as recited, and the specification, do not provide any evidence of criticality for the temperature and the wind velocity. Therefore, it is understood that the desired range and treatment could be selectively elected by the user. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Kim, from a similar field of endeavor teaches the wind velocity of the blowing air to be of about 2m/s (description). It would have been obvious before the effective filing date of the claimed invention to modify the disclosure of Chen as modified by Taboada with the known teachings of Chen, because doing so would allow for the predictable result of using the known wind speeds.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 20050197681 to Barolet et al.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANA SAHAND whose telephone number is (571)272-6842. The examiner can normally be reached M-Th 8:30 am -5:30 pm; F 9 am-3 pm.
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, Jennifer S McDonald can be reached at (571) 270- 3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SANA SAHAND/Examiner, Art Unit 3796