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
Applicant’s amendment filed 6/4/2026, with respect to the rejections set forth in the Non-Final rejection dated 2/25/2026 has overcome the previously applied 35 USC 102 rejections. Therefore, the rejections have been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Steel (2014/0277292).
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, 3, 5, 7, 9, 15, 26, 27 and 33-41 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 "the pre-determined schedule" in line 17 of the claim. There is insufficient antecedent basis for this limitation in the claim. The Examiner suggests amending the claim to recite “the pre-arranged schedule” to maintain consistent language in the claims.
Additionally, Claim 1 recites “the pre-determined schedule….includes a retrievable listing of dates, start times, and intensity and power levels for administering the light…”. However, Applicant never claims actually delivering light according to the list of dates, start times and intensity and power levels from the claimed listing. It is therefore unclear if Applicant is claiming the delivery of light according to this listing of parameters (start dates, times, power and intensity levels) or if the claim just requires delivery of light over time periods of different days that span at least 8 hours as currently positively recited. The meets and bounds of the claim are unclear.
Claims 3, 5, 7, 9, 15, 26, 27 and 33-41 are rejected due to their dependance on indefinite Claim 1.
Claim Interpretation
In light of the current claim construction of Claim 1 and in light o the 35 USC 112b rejection of claim 1, the Examiner notes that the limitation “the pre-determined schedule….includes a retrievable listing of dates, start times, and intensity and power levels for administering the light…” amounts to non-functional descriptive material and thus holds no patentable weight (see MPEP 2111.05). Namely, the claimed “retrievable listing” only contains “content of information” and thus qualifies as “printed matter” (again see MPEP 2111.05). The information in this list, as currently claimed, does not have a functional relationship with the applied therapy and device for applying said therapy. The therapy is not controlled according to the list and the list simply is information that is not currently claimed a being used to provide the claimed therapy. It reads more like written instructions or intended instructions that are not actually implemented by the current method. To give the retrievable list patentable weight, the claims would need to positively recite delivering therapy using the dates, start times, intensity and power levels within the list.
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, 7, 9, 15, 26, 27, 33-36 and 38-40 are rejected under 35 U.S.C. 103 as being unpatentable over Steel (2014/0277292).
Regarding Claims 1, 7, 15, 26, 27, 33-36 and 38, the Examiner notes the claims require administering 520-535 nm light to a retina for a first time and administering 520-535 nm light to the retina for a second time, wherein the first and second time occurs on different days. The wavelength ranges claimed corresponds to green light thus resulting in a claim that delivers green light on one day and green light on the next day; the first day being the first period and the second day being the second period. Applicant further states that the pre-arranged schedule requires administering light for the first and second time periods spanning 8 hours. This defines a minimum amount of time to apply the light. If it is applied for 9 hours up to 24 hours, it is understood to span 8 hours as required by the claim. Steel discloses these features. Namely 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 (for 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 and the days after that are the “subsequent periods” claimed (par. [0064]). Steel further discloses the controller can keep track of history of light exposure(HLE), par[0058]; Spectrum of light delivered (SLD), par. [0064]; Intensity of light delivered (ILD), par. [0065]; duration of light exposure (DLD), Par. [0066]; timing of light exposure (TLE), par. [0067]; and length of light treatment regimen (LLR), par. [0068]. In summary, Steel discloses applying green light for up to 24 hours a day on multiple successive days over the period of at least week week up to months or years (par. [0068]) and also discloses storing a list of delivered light parameters such as dates, times, intensities, power levels etc. (par. [0058-0068]). Steel differs from the claimed invention in that Steel disclose a broader range of green light from 520-550nm and not the narrower claimed range of 520-535nm light. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use green light in the range of 520-535nm, since it has been held that where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 191 USPQ 90.
In regard to Claims 3 and 39, Steel discloses the treatment can span more than 1 week such as 2 weeks or more (par. [0068]).
With regard to Claim 9, Steel discloses utilizing the treatment to treat neurodegenerative diseases (par. [0090, 0092])
In regard to Claim 40, the Examiner notes Applicant is claiming the intended use of the claimed invention and is not further limiting the structure of the claimed system. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. The invention of Steele is capable of the claimed function since it produces the same parameters used to treat the intended disease.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Steel (2014/0277292) in view of Burstein et al. (2024/0009420). Steel discloses applying green light to a user at a controlled lux level but fails to discloses the actual range of lux values that can be used (par. [0015]). However, in the same field of endeavor of green light therapy, Bournstein discloses utilizing lux values ranging from 0.5 lux to 70 lux for the purpose of effectively treating conditions such as insomnia, anxiety, sleep disorders, etc. (par. [0021]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device in the Steel reference to include lux values of 0.5-70 lux, as taught and suggested by Burstein, for the purpose of effectively treating conditions such as insomnia, anxiety, sleep disorders, etc.
Claim 41 is rejected under 35 U.S.C. 103 as being unpatentable over Steel (2014/0277292) in view of Rose (2005/0237479). Steel discloses using green light to treat depression but does not specifically mention postpartum depression as being a type of depression that is targeted. However, in the same field of endeavor of green light therapy, Rose discloses applying green light to the eye of a subject to treat postpartum depression since the application of green light to the eyes “will temporarily suppress brain melatonin levels and enhance brain serotonin--resulting in mood elevation for some and wakefulness” (par. [0003]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device in the Steele reference to include targeting postpartum depression with green light therapy to the eyes, as taught and suggested by Rose, for the purpose of temporarily suppressing brain melatonin levels and enhancing brain serotonin in order to result in mood elevation.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/ALLEN PORTER/Primary Examiner, Art Unit 3796
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