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 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 1-47 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 limitation "into the patient's soft tissue" in line 2. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "into a patient's soft tissue" and suggests amending.
Claim 1 recites the limitation "a wavelength in the range of from 625 to 740 nm and a power in the range" in line 4. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "a wavelength in a range of from 625 to 740 nm and a power in a range" and suggests amending.
Claims 2-3 are rejected based on their dependency on claim 1.
Claim 4 recites the limitation "the time of subjecting" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "a time of subjecting" and suggests amending.
Claim 5 recites the limitation "the light guide is introduced into the soft tissue in the plane of the intervertebral disc being treated ± 0.5 cm, in the anterior direction at a distance from 0.5 to 1.5 cm away from the intervertebral joints" in lines 1-3. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "the light guide is introduced into the soft tissue in a plane of the intervertebral disc being treated ± 0.5 cm, in an anterior direction at a distance from 0.5 to 1.5 cm away from intervertebral joints" and suggests amending.
Claim 6 recites the limitation "from the midsagittal plane passing through the spinous processes" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "from a midsagittal plane passing through a spinous processes" and suggests amending.
Claim 7 recites the limitation "the muscle tissue" in line 2. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "a muscle tissue" and suggests amending.
Claim 8 recites the limitation "tissue of the dorsal paravertebral muscles" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "tissue of a dorsal paravertebral muscles" and suggests amending.
Claim 9 recites the limitation "from the border of the dorsal paravertebral muscles with the thoracolumbar fascia" in line 3. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "from a border of the dorsal paravertebral muscles with thoracolumbar fascia" and suggests amending.
Claim 10 is rejected based on its dependency on claim 1.
Claim 11 recites the limitation "sides of the midsagittal plane" in line 2. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "sides of a midsagittal plane" and suggests amending.
Claim 12 is rejected based on its dependency on claim 1.
Claim 13 recites the limitation "the steps of which are repeated several times" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim and its unclear. Examiner will interpret as "steps of the method which are repeated several times" and suggests amending.
Claims 14-15 are rejected based on their dependency on claim 1.
Claim 16 recites the limitation "a wavelength in the range of from 625 to 740 nm and a power in the range" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "a wavelength in a range of from 625 to 740 nm and a power in a range" and suggests amending.
Claims 17-19 are rejected based on their dependency on claim 1.
Claim 20 recites the limitation "the step of indirect intravascular laser blood irradiation" in line 1. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "the step of direct intravascular laser blood irradiation" since this is dependent on claim 19 and suggests amending.
Claims 21-22 are rejected based on their dependency on claim 19.
Claim 23 recites the limitation "in the range of" in line 2. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "in a range of" and suggests amending.
Claims 24-25 are rejected based on their dependency on claim 1.
Claim 26 recites the limitation "a wavelength in the range" in line 3. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "a wavelength in a range" and suggests amending.
Claim 26 recites the limitation “into the patient's soft tissue, surrounding the hernia, with a power in the range of from 1 and 100 mW" in lines 6-7. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as “into a patient's soft tissue, surrounding the hernia, with a power in a range of from 1 and 100 mW" and suggests amending.
Claim 27 is rejected based on its dependency on claim 26.
Claim 28 recites the limitation "a wavelength in the range of from 625 to 740 nm and a power in the range" in line 3-4. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as “a wavelength in the range of from 625 to 740 nm and a power in the range" and suggests amending.
Claim 28 recites the limitation “into the patient's soft tissue " in line 6. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as “into a patient's soft tissue" and suggests amending.
Claim 29 recites the limitation “1.1 to 75 mW" in line 2. This is unclear and indefinite. Claim 28 recites the range 1.5-150 mW, therefore the range 1.1-1.4 mW doesn’t fall within the broad range of claim 28. Examiner will interpret as “1.5-75 mW" and suggests amending.
Claims 30-31 are rejected based on their dependency on claim 28.
Claim 32 recites the limitation “the light guide is for delivering the laser radiation into the soft tissue in the plane of the intervertebral disc being treated ± 0.5 cm, in the anterior direction at a distance from 0.5 to 1.5 cm away from the intervertebral joints." in lines 2-4. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as “the light guide is for delivering the laser radiation into the soft tissue in a plane of the intervertebral disc being treated ± 0.5 cm, in an anterior direction at a distance from 0.5 to 1.5 cm away from intervertebral joints" and suggests amending.
Claim 33 recites the limitation "from the midsagittal plane passing through the spinous processes" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "from a midsagittal plane passing through a spinous processes" and suggests amending.
Claim 34 recites the limitation "the muscle tissue" in line 2. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "a muscle tissue" and suggests amending.
Claim 35 recites the limitation "tissue of the dorsal paravertebral muscles" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "tissue of a dorsal paravertebral muscles" and suggests amending.
Claim 36 recites the limitation "from the border of the dorsal paravertebral muscles with the thoracolumbar fascia" in line 3. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "from a border of the dorsal paravertebral muscles with thoracolumbar fascia" and suggests amending.
Claims 37-39 are rejected based on their dependency on claim 28.
Claim 40 recites the limitation "a wavelength in the range of from 625 to 740 nm and a power in the range" in line 3. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "a wavelength in a range of from 625 to 740 nm and a power in a range" and suggests amending.
Claims 41-42 are rejected based on their dependency on claim 28.
Claim 43 recites the limitation "a wavelength in the range of from 625 to 740 nm and a power in the range of from 1 to 15 mW, more preferably in the range of from 1 to 7 mW, even more preferably in the range of" in lines 3-4. There is insufficient antecedent basis for this limitation in the claim. Examiner will interpret as "a wavelength in a range of from 625 to 740 nm and a power in a range of from 1 to 15 mW, more preferably in a range of from 1 to 7 mW, even more preferably in a range of" and suggests amending.
Claims 44-46 are rejected based on their dependency on claim 28.
Regarding claim 47, the word "Use" renders the claim indefinite because it attempts to claim a process without setting forth any steps involved in the process. It is improper to read limitations contained in the specification into the claims. See MPEP § 2173.05(q). Examiner suggests reciting steps to the treatment of hernia of an intervertebral disc in a patient.
Claim Rejections - 35 USC § 102
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.
Claim 1-3, 7-12, 14, 24-30, 34-38, and 45-47 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by US 2012/0158099 Lee, hereinafter “Lee”.
Regarding claim 1, Lee discloses a method of treating a hernia of an intervertebral disc in a patient (Para 7-8 and 46; “treatment of a herniated disc”), the method comprising introducing at least one light guide into a patient's soft tissue (Para 49-50, 59, and Figure 2B; treatment energy, i.e. light, is introduced through catheter 20), surrounding the hernia (Para 49 and 46; into the intervertebral disc; to treat a herniated disc), and subjecting the soft tissue (Para 50 “transmit the red light into the surrounding tissue”) to a laser radiation using said light guide (Para 49-50, 59, and Figure 2B, element 20), the laser radiation having a wavelength in a range of from 625 to 740 nm (Para 50 and 76 disclose a wavelength range between 600-1000 nm, 625-740 nm is within that range) and a power in a range of from 1 and 100 mW (Para 76; average power between about 1 mW to about 500 mW, 1-100 mW is within this range).
Regarding claim 2, Lee discloses the wavelength of the laser radiation is from 630 to 700 nm, preferably from 630 to 680 nm, more preferably from 630 to 650 nm (Para 50 and 76 disclose a wavelength range between 600-1000 nm; all the claimed ranges are within that range; also the term “preferably” makes this limitation optional).
Regarding claim 3, Lee discloses the power of the laser radiation is from 1 to 50 mW, preferably from 3 to 20 mW, more preferably from 6 to 15 mW (Para 76; average power between about 1 mW to about 500 mW, all the claimed ranges are within that range; also the term “preferably” makes this limitation optional).
Regarding claim 7, Lee discloses the soft tissue is a muscle tissue (See Figure 1C, the light guide is going through the skin to the spine, there is obviously muscle tissue between those two layers).
Regarding claim 8, Lee discloses the muscle tissue is the tissue of dorsal paravertebral muscles (See Figure 1C, the light guide is going through the skin to the spine, there is obviously muscle tissue between those two layers, one of ordinary skill in the art knows that the muscle surrounding the vertebrae is dorsal paravertebral muscles).
Regarding claim 9, Lee discloses the light guide is introduced into the tissue of the dorsal paravertebral muscles at a distance at least 1.0-1.5 cm away from a border of the dorsal paravertebral muscles with thoracolumbar fascia (See Figure 1C, the light guide is going through the skin to the spine, there is obviously muscle tissue between those two layers, one of ordinary skill in the art knows that the muscle surrounding the vertebrae is dorsal paravertebral muscles, with thoracolumbar fascia; it is clear from that image that it is at least 1-1.5 cm away from that border).
Regarding claim 10, Lee discloses more than one hernias are treated simultaneously, in particular from 2 to 4 hernias are treated simultaneously (Para 11).
Regarding claim 11, Lee discloses the at least one light guide is introduced at both sides of a midsagittal plane (Figure 1A, at least one light guide is introduced to one side of the midsagittal plane).
Regarding claim 12, Lee discloses a single hernia is subjected to the laser radiation using more than one light guide, in particular, from 2 to 8 light guides (Para 28).
Regarding claim 14, Lee discloses a step of indirect intravascular laser blood irradiation (Figure 1A and element 6; by irradiating any tissue in the body, specifically the spine, the blood vessels surrounding that area are indirectly irradiated as well).
Regarding claim 24, Lee discloses the hernia of intervertebral disc is a sequestered hernia of the intervertebral disc (Para 46).
Regarding claim 25, Lee discloses the light guide is introduced inside a needle (Para 56-57).
Regarding claim 26, Lee discloses a radiating system for treating a hernia of an intervertebral disc in a patient (Para 7-8 and 46; “treatment of a herniated disc”), the system comprising: a radiating source operable to generate a laser radiation (Para 49-50, 59, and Figure 2B; treatment energy, i.e. light, is introduced through catheter 20) having a wavelength in a range of from 625 to 740 nm (Para 50 and 76 disclose a wavelength range between 600-1000 nm, 625-740 nm is within that range); wherein the radiating source is configured to be connected with at least one light guide (Para 49-50, 59, and Figure 2B, element 20) for delivering the laser radiation into a patient's soft tissue, surrounding the hernia (Para 50 “transmit the red light into the surrounding tissue”; Para 49 and 46; into the intervertebral disc; to treat a herniated disc), with a power in a range of from 1 and 100 mW (Para 76; average power between about 1 mW to about 500 mW, 1-100 mW is within this range).
Regarding claim 27, Lee discloses the power of the laser radiation delivered into the patient's soft tissue is from 1 to 50 mW, preferably from 3 to 20 mW, more preferably from 6 to 15 mW (Para 76; average power between about 1 mW to about 500 mW, all the claimed ranges are within that range; also the term “preferably” makes this limitation optional).
Regarding claim 28, Lee discloses a radiating system for treating a hernia of an intervertebral disc in a patient (Para 7-8 and 46; “treatment of a herniated disc”), the system comprising: a radiating source operable to generate a laser radiation (Para 49-50, 59, and Figure 2B; treatment energy, i.e. light, is introduced through catheter 20) having a wavelength in a range of from 625 to 740 nm (Para 50 and 76 disclose a wavelength range between 600-1000 nm, 625-740 nm is within that range) and a power in the range of from 1,5 and 150 mW (Para 76; average power between about 1 mW to about 500 mW, 1-100 mW is within this range); wherein the radiating source is configured to be connected with at least one light guide (Para 49-50, 59, and Figure 2B, element 20) for delivering the laser radiation into a patient's soft tissue, surrounding the hernia (Para 50 “transmit the red light into the surrounding tissue”; Para 49 and 46; into the intervertebral disc; to treat a herniated disc).
Regarding claim 29, Lee discloses the power of the laser radiation generated by the radiation source is from 1.1 to 75 mW, preferably from 4 to 30 mW, more preferably from 7 to 25 mW (Para 76; average power between about 1 mW to about 500 mW, all the claimed ranges are within that range; also the term “preferably” makes this limitation optional).
Regarding claim 30, Lee discloses the wavelength of the laser radiation is from 630 to 700 nm, preferably from 630 to 680 nm, more preferably from 630 to 650 nm (Para 50 and 76 disclose a wavelength range between 600-1000 nm; all the claimed ranges are within that range; also the term “preferably” makes this limitation optional).
Regarding claim 34, Lee discloses the soft tissue is a muscle tissue (See Figure 1C, the light guide is going through the skin to the spine, there is obviously muscle tissue between those two layers).
Regarding claim 35, Lee discloses the muscle tissue is the tissue of dorsal paravertebral muscles (See Figure 1C, the light guide is going through the skin to the spine, there is obviously muscle tissue between those two layers, one of ordinary skill in the art knows that the muscle surrounding the vertebrae is dorsal paravertebral muscles).
Regarding claim 36, Lee discloses the light guide is for delivering the laser radiation into the tissue of the dorsal paravertebral muscles at a distance at least 1.0-1.5 cm away from a border of the dorsal paravertebral muscles with thoracolumbar fascia (See Figure 1C, the light guide is going through the skin to the spine, there is obviously muscle tissue between those two layers, one of ordinary skill in the art knows that the muscle surrounding the vertebrae is dorsal paravertebral muscles, with thoracolumbar fascia; it is clear from that image that it is at least 1-1.5 cm away from that border).
Regarding claim 37, Lee discloses the radiation source is configured to be connected with more than one light guide, in particular, with from 2 to 8 light guides (Para 28).
Regarding claim 38, Lee discloses configured for use for indirect intravascular laser blood irradiation (Figure 1A and element 6; by irradiating any tissue in the body, specifically the spine, the blood vessels surrounding that area are indirectly irradiated as well).
Regarding claim 45, Lee discloses the hernia of intervertebral disc is a sequestered hernia of the intervertebral disc (Para 46).
Regarding claim 46, Lee discloses the light guide is disposed inside a needle (Para 56-57).
Regarding claim 47, Lee discloses use of the radiating system according to claim 28 for treating a hernia of an intervertebral disc in a patient (Para 7-8 and 46; “treatment of a herniated disc”).
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.
Claim(s) 4, 16, and 31 are rejected under 35 U.S.C. 103 as being unpatentable over US 2012/0158099 Lee, hereinafter “Lee”, in view of RU 2277393 MAGOMAEV, hereinafter “Magomaev”.
Regarding claim 4, Lee discloses all the limitations of claim 1.
Lee does not disclose a time of subjecting the soft tissue to the laser radiation is from 1 to 500 min, preferably from 30 to 100 min, more preferably from 60 to 100 min.
However, Magomaev discloses a method for treating a herniated lumbar spine disc (Para 6) and teaches a time of subjecting the soft tissue to the laser radiation is from 1 to 500 min, preferably from 30 to 100 min, more preferably from 60 to 100 min (Para 8 discloses 30 minutes which falls within the claimed 1-500 min; also the term “preferably” makes this limitation optional).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have disclosed a time range as taught by Magomaev, in the invention of Lee, in order to determine the therapeutic exposure time that causes improvement to the spinal condition (Magomaev; Para 10).
Regarding claim 16, Lee discloses the laser radiation at the step of indirect intravascular laser blood irradiation has a wavelength in a range of from 625 to 740 nm (Para 50 and 76 disclose a wavelength range between 600-1000 nm, 625-740 nm is within that range) and a power in a range of from 1 to 15 mW (Para 76; average power between about 1 mW to about 500 mW, 1-15mW is within this range).
Lee does not disclose a time period of from 5 to 120 min.
However, Magomaev discloses teaches a time period of from 5 to 120 min (Para 8 discloses 30 minutes which falls within the claimed 5-120 min).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have disclosed a time range as taught by Magomaev, in the invention of Lee, in order to determine the therapeutic exposure time that causes improvement to the spinal condition (Magomaev; Para 10).
Regarding claim 31, Lee discloses all the limitations of claim 28.
Lee does not disclose capable of generating a laser radiation for a time from 1 to 500 min, preferably from 45 to 100 min, more preferably from 60 to 100 min.
However, Magomaev discloses a method for treating a herniated lumbar spine disc (Para 6) and teaches capable of generating a laser radiation for a time from 1 to 500 min, preferably from 45 to 100 min, more preferably from 60 to 100 min (Para 8 discloses 30 minutes which falls within the claimed 1-500 min; also the term “preferably” makes this limitation optional).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have disclosed a time range as taught by Magomaev, in the invention of Lee, in order to determine the therapeutic exposure time that causes improvement to the spinal condition (Magomaev; Para 10).
Claim(s) 5-6, 13, 18, 23, 32-33, and 44 are rejected under 35 U.S.C. 103 as being unpatentable over US 2012/0158099 Lee, hereinafter “Lee”, in view of RU 2368401 OLEJNIKOV, hereinafter “Olejnikov”.
Regarding claim 5, Lee discloses the light guide (Figure 2B, element 20).
Lee does not disclose the energy guide is introduced into the soft tissue in a plane of the intervertebral disc being treated ± 0.5 cm, in an anterior direction at a distance from 0.5 to 1.5 cm away from intervertebral joints.
However, Olejnikov discloses a method of treating a herniated intervertebral disc (Para 1) and teaches the energy guide is introduced into the soft tissue in a plane of the intervertebral disc being treated ± 0.5 cm, in an anterior direction at a distance from 0.5 to 1.5 cm away from intervertebral joints (Para 8; it is inserted 2 cm away from the spinous process that is 1.5+0.5 cm).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have disclosed a distance as taught by Olejnikov, in the invention of Lee, in order to introduce the therapy to a specific area (Olejnikov; Para 8).
Regarding claim 6, Lee discloses the light guide is introduced into the soft tissue at a distance from 1.5 to 2.5 cm away from a midsagittal plane passing through a spinous processes (Examiner would argue that Figure 1C shows this exact claim; the light guide is passing through the tissue in a midsagittal plane at a distance that seems to be 1.5-2.5 cm away from the spinous processes V, however, see 103 below).
Even if Lee does not disclose a distance from 1.5 to 2.5 cm away from a midsagittal plane passing through a spinous processes.
However, Olejnikov teaches a distance from 1.5 to 2.5 cm away from a midsagittal plane passing through a spinous processes (Para 8; it is inserted 2 cm away from the spinous process).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have disclosed a distance as taught by Olejnikov, in the invention of Lee, in order to introduce the therapy to a specific area (Olejnikov; Para 8).
Regarding claim 13, Lee discloses all the limitations of claim 1.
Lee does not disclose the steps of the method are repeated several times, in particular, from 10 to 40 times, 3-7 times a week.
However, Olejnikov teaches the steps of the method are repeated several times, in particular, from 10 to 40 times, 3-7 times a week (Para 9).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have disclosed a treatment duration as taught by Olejnikov, in the invention of Lee, in order to provide effective therapy (Olejnikov; Para 9).
Regarding claim 18, Lee discloses the step of indirect intravascular laser blood irradiation (Figure 1A and element 6; by irradiating any tissue in the body, specifically the spine, the blood vessels surrounding that area are indirectly irradiated as well).
Lee does not disclose repeated several times, in particular, from 2 to 7 times, once in 5-10 days.
However, Olejnikov teaches repeated several times, in particular, from 2 to 7 times, once in 5-10 days (Para 9).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have disclosed a treatment duration as taught by Olejnikov, in the invention of Lee, in order to provide effective therapy (Olejnikov; Para 9).
Regarding claim 23, Lee discloses all the limitations of claim 1.
Lee does not disclose the hernia has a size in a range of from 1 to 40 mm.
However, Olejnikov teaches the hernia has a size in a range of from 1 to 40 mm (Para 22).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have disclosed the size of the hernia as taught by Olejnikov, in the invention of Lee, in order to provide a visual on the degree of improvement of treatment (Olejnikov; Para 22).
Regarding claim 32, Lee discloses the light guide (Figure 2B, element 20).
Lee does not disclose the energy guide is for delivering the energy into the soft tissue in a plane of the intervertebral disc being treated ± 0.5 cm, in an anterior direction at a distance from 0.5 to 1.5 cm away from intervertebral joints
However, Olejnikov discloses a system of treating a herniated intervertebral disc (Para 1) and teaches the energy guide is for delivering energy in a plane of the intervertebral disc being treated ± 0.5 cm, in an anterior direction at a distance from 0.5 to 1.5 cm away from intervertebral joints (Para 8; it is inserted 2 cm away from the spinous process that is 1.5+0.5 cm).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have disclosed a distance as taught by Olejnikov, in the invention of Lee, in order to introduce the therapy to a specific area (Olejnikov; Para 8).
Regarding claim 33, Lee discloses the light guide is for delivering the laser radiation into the soft tissue at a distance from 1.5 to 2.5 cm away from a midsagittal plane passing through a spinous processes (Examiner would argue that Figure 1C shows this exact claim; the light guide is passing through the tissue in a midsagittal plane at a distance that seems to be 1.5-2.5 cm away from the spinous processes V, however, see 103 below).
Even if Lee does not disclose a distance from 1.5 to 2.5 cm away from a midsagittal plane passing through a spinous processes.
However, Olejnikov teaches a distance from 1.5 to 2.5 cm away from a midsagittal plane passing through a spinous processes (Para 8; it is inserted 2 cm away from the spinous process).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have disclosed a distance as taught by Olejnikov, in the invention of Lee, in order to introduce the therapy to a specific area (Olejnikov; Para 8).
Regarding claim 44, Lee discloses all the limitations of claim 28.
Lee does not disclose the hernia has a size in a range of from 1 to 40 mm.
However, Olejnikov teaches the hernia has a size in a range of from 1 to 40 mm (Para 22).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have disclosed the size of the hernia as taught by Olejnikov, in the invention of Lee, in order to provide a visual on the degree of improvement of treatment (Olejnikov; Para 22).
Allowable Subject Matter
Claims 15, 17, 19-22, and 39-43 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.
Claims 15, 17, 19-22, and 39-43 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Reason for Indicating Allowable Subject Matter
The following is an examiner’s statement of reasons for allowance:
Examiner has found reference US 2012/0158099 Lee to disclose a method and apparatus of treating a hernia of an intervertebral disc in a patient (Para 7-8 and 46); this included a light guide inserted into the patient (Para 49-50, 59, and Figure 2B; treatment energy, i.e. light, is introduced through catheter 20), surrounding the hernia (Para 49 and 46; into the intervertebral disc; to treat a herniated disc), and laser radiation (Para 49-50, 59, and Figure 2B, element 20), the laser radiation having a specific wavelength and power. Examiner has also found supporting references RU 2277393 MAGOMAEV and RU 2368401 OLEJNIKOV to disclose some dependent claims that recited irradiation time and location. However, examiner did not find any references that disclosed directly irradiating blood through a carrier solution made of NaCl, nicotinate, vitamin C, and water. For this reason, claims 15, 17, 19-22, and 39-43 are objected to as allowable.
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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2015/0005680 Lipani discloses a method of using light to treat a herniated disc.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AYA ZIAD BAKKAR whose telephone number is (313)446-6659. The examiner can normally be reached on 7:30 am - 5:00 pm M-Th.
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/AYA ZIAD BAKKAR/
Examiner, Art Unit 3796
/CARL H LAYNO/Supervisory Patent Examiner, Art Unit 3796
Prosecution Insights