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.
Claim 17 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. Claim 16, from which claim 17 depends, requires a wavelength of 525nm. Claim 17 then broadens the range out to 500-55nm which does not necessarily require 525nm. It is unclear if 525nm light is required or if 500 nm light, 510nm light, etc. up to 55nm is required. The scope of the claim is unclear.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 14, 17 and 28 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Alvarez et al. (2018/0264284).
Regarding Claims 14, 27 and 28, Alvarez discloses applying, with an eyewear device, green light doses (Abstract; par. [0086]) in the range of 495nm -510 nm (which lies within/overlaps “approximately” 515nm to 535nm) , see par. [0161, 0168]. Alvarez further discloses the intensity of light or duration is controllable via a microcontroller (par. [0018, 0036]).
Claims 1, 7, 9, 11-15, 27, 28, 33-36 and 38 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Steel (2014/0277292).
Regarding Claims 1, 7, 11, 15, 27, 28, 33-36 and 38, Steel discloses applying, with an eyewear device such as a contact lens, eyeglasses, goggles, etc., (par. [0029, 0088]), green light in the range of 520nm-555nm and/or blue-green light in the range of 480-nm-520nm over multiple days (recurring 24 hour periods over a week), where the first 24 hour period is a first period and the following 24 hour period is the claimed second period (par. [0064]).
With regard to Claim 9, Steel discloses utilizing the treatment to treat neurodegenerative diseases (par. [0090, 0092])
Regarding Claims 12 and 13, Applicant is simply sating a result of the therapy parameters of Claim 11. Applicant has not included any other parameters or considerations for providing this effect. Therefore, the Examiner contends Steel also produces the same result since Steel applies the same parameters as prescribed in Claim 11.
Regarding Claim 14, Steel discloses applying green light in the range of 520nm-555nm and/or blue-green light in the range of 480-nm-520nm (par. [0064]). Steel discloses controlling light doses, such as duration, intensity, etc. using a controller (par. [0018]).
Claims 1, 5, 16-20 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Burstein et al. (2024/0009420). Burtsein discloses treating conditions such as insomnia and anxiety (par. [0002]) by applying green light in a wavelength of 510-550 nm (par. [0012]) on a set schedule over a period of days (such as a week, see par. [0060]). A first time episode being 2 hours before bed on a first day; a second time period being 2 hours before bed on a second days, etc. (par. [0083]) Burstein further discloses the light having an illuminance of less than 70 lux (par. [0035]). Lastly, Burstein discloses the application time can be from 1 minute up to 12 hours, but in the 2 hour before bedtime example would provide a max duration of 2 hours, see par. [0033]).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3 and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Alvarez et al. (2018/0264284).
In regard to Claims 1-3 and 11, Alvarez discloses applying green light doses (Abstract; par. [0086]) in the range of 495nm -510 nm (which lies within/overlaps “approximately” 515nm to 535nm) daily for 15-30 min, see par. [0161, 0168] (each day being a separate time period, wherein the first day is a first time period, the second day a second time period and so on). Alvarez also discloses that the device can be worn for weeks (par. [0181]) and that the device can be calibrated to provide the correct wavelength and Lumosity for a predetermined period of time, such as 4 weeks (par. [0140]). However, Alvarez fails to explicitly disclose applying the therapy at multiple different time periods for more than one week. It would have been obvious to one having ordinary skill in the art at the time the invention was made to apply therapy for multiple days and even consecutive days over at least one week, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Alvarez clearly discloses daily use over a long term and stretching the therapy to daily use/ consecutive daily use over one week would fall well within the guidance of Alvarez which envisions long term wear and use of the device. Discovering the optimal time periods would involve routine experimentation.
Regarding Claims 12 and 13, Applicant is simply sating a result of the therapy parameters of Claim 11. Applicant has not included any other parameters or considerations for providing this effect. Therefore, the Examiner contends Alvarez also produces the same result since Alvarez applies the same parameters as prescribed in Claim 11.
Claims 16, 17 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Steel (2014/0277292).
Regarding Claims 16, 17 and 26, Steel discloses applying green light in the range of 520nm-555nm and/or blue-green light in the range of 480-nm-520nm over multiple days (recurring 24 hour periods over a week), where the first 24 hour period is a first period and the following 24 hour period is the claimed second period (par. [0064]). Steel discloses each treatment period over each cycle can range from 30 seconds to 14 hours or more (par. [0066]). Steel fails to disclose the exact wavelength of 525nm and fail to disclose the exact time range of 15 min daily to 4 hours daily. It would have been obvious to one having ordinary skill in the art at the time the invention was made to limit the green light to 525nm and the duration from 15min to 4 hours daily, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Conclusion
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/ALLEN PORTER/Primary Examiner, Art Unit 3796