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 .
Election/Restrictions
Applicant’s election of A4 and B2 in the reply filed on 03/04/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
The examiner will examine and search Species A4 and B2 and claims 11-24.
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.
Claims 11-12, and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rizoiu et al. (U.S. Patent Application Publication 2011/0082526).
Regarding claim 11, Rizoia et al. disclose a device comprising:
a housing (“a housing,” see elements 67 or 173 in [0049], [0093] and figures 3, 16-17, and 20A-20B, and alternate/equivalent counterparts in other embodiments);
a laser unit (“laser module 69,” see [0016], [0049] and figure 3 or “electromagnetic energy source (e.g., laser),” see [0094] and figures 16-17, and alternate/equivalent counterparts in other embodiments) mounted in the housing, said laser unit being configured to produce light having a center wavelength in a wavelength range of 750 nm to 1400 nm (see [0077]);
a control unit (comprising A) “actuator control 152,” see [0134] and figure 15, or B) “a display, such as a touchscreen 156, inputs or controls 159,” see [0096] and figures 16-17, and alternate/equivalent counterparts in other embodiments) operatively connected to the laser unit capable of controlling the laser unit to emit light having an average optical output power in a power range of 1.0 W to 2.5 W (“A typical power output may comprise, for example, 0.5 W to about 2.0 W,” see [0119]) in a continuous wave mode (“continuous,” see [0086] and/or [0098]);
a handpiece (“handpiece 78,” see [0050] and figure 3, or “handpiece 151,” see [0094] and figures 16-17, and alternate/equivalent counterparts in other embodiments) operatively connected to the laser unit for administering a low level laser therapy dose having said energy fluence, the handpiece including an operational end through which light produced by the laser unit is emitted when administering the low level laser therapy dose to the tissue (located at the distal ends of the aforementioned handpieces, see the relevant figures), said handpiece being adaptable to maintain a target distance between the operational end and the tissue selected to ensure light emitted through the operational end is projected onto an area on the animal of one square centimeter (the handpiece disclosed by is capable of being positioned as claimed).
Regarding claim 12, Rizoia et al. disclose said laser unit comprises a diode laser (see abstract, [0010], and [0049] for example) constructed to produce light having a center wavelength selected at 940 nm (see [0058]).
Regarding claim 14, Rizoia et al. disclose the control unit is capable of controlling the laser unit to emit light having a free running pulse (interpreted as operating in pulsed mode, see [0059]-[0060] and figure 4A-5) frequency in a frequency range of 30 Hz to 50 Hz (see [0087]).
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.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Rizoiu et al. (U.S. Patent Application Publication 2011/0082526) as applied to claim 11 above, and further in view of case law.
Regarding claim 13, Rizoia et al. disclose the claimed invention including the control unit is capable of controlling the laser unit to emit light having a free running pulse (interpreted as operating in pulsed mode, see [0059]-[0060] and figure 4A-5) frequency in a frequency range of 1 Hz to 100 Hz.
However, Rizoia et al. (both of them) fail to explicitly recite a frequency range of 10 Hz to 15 Hz.
Yet the prior art overlaps 100% of the recited range and the recited range is 5% of the disclosed range and 5% is considered a significant and non de minimis amount of overlap.
Additionally, it would have been obvious to one having ordinary skill in the art at the time the invention was made to narrow the frequency range from A) 1-100 Hz to 2) 10-15 Hz, 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.
Therefore, at the time of the of invention it would have been obvious to one of ordinary skill in the art to modify the invention of Rizoia et al., as taught by In re Aller, to use the frequency range of 10 Hz to 15 Hz since discovering the optimum or workable ranges involves only routine skill in the art.
Claims 20 is rejected under 35 U.S.C. 103 as being unpatentable over Rizoiu et al. (U.S. Patent Application Publication 2011/0082526) in view of Ertl et al. (U.S. Patent Application Publication 2019/0090998).
Regarding claim 20, Rizoia et al. disclose a device comprising:
a laser unit comprising at least one laser in the form of an Er,Cr:YSGG solid-state laser (see the incorporation by reference of Rizoiu (U.S. Patent Application Publication 2006/0240381) [0060]);
a handpiece operatively connected to the laser unit including a fiber tip having a diameter in of 400 μm (see [0090], and [0092]) from which light produced by the laser unit is emitted and a nozzle (“fluid output,” see [0134] and claim 15, or via the incorporation by reference of Rizoiu et al. (U.S. Patent Application Publication 2006/0240381) “nozzle 71,” see [0060], [0066], [0075] for example) from which a spray comprising water and air (see [0121]) is dispensed for cooling the target tissue in the client's mouth while light emitted by the fiber tip of the handpiece is directed toward the target tissue in the client's mouth (see “cool” (and its cognates) [0009]-[0014], [0016], [0064]-[0065] for example of the incorporation by reference of Rizoiu et al. (U.S. Patent Application Publication 2006/0240381)); and
a flow control (comprising “controller 125” and/or “fluid conditioning unit 121,” see [0051]-[0052] and figure 3) for varying a rate at which water is dispensed from the nozzle and a rate at which air is dispensed from the nozzle.
Yet Rizoia et al. fail to explicitly recite a fiber tip having a diameter in a range of 500 μm to 800 μm.
Like Rizoia et al., Ertl et al. disclose a laser device for use in treating the patient’s mouth/teeth and teach using a fiber optic with a distal end having a diameter of 700 μm (see [0131]) in order provide a known and workable embodiment for treating the patient’s mouth/teeth with the laser device.
Therefore, at the time of the of invention it would have been obvious to one of ordinary skill in the art to modify the invention of Rizoia et al., as taught by Ertl et al., to use fiber optic with a distal end having a diameter of 700 μm in order provide a known and workable embodiment for treating the patient’s mouth/teeth with the laser device.
Allowable Subject Matter
Claim 24 is allowed.
Claims 15-19, and 21-23 are 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AARON F ROANE whose telephone number is (571)272-4771. The examiner can normally be reached generally Mon-Fri 8am-9pm.
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, Niketa Patel can be reached at (571) 272-4156. 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.
/AARON F ROANE/Primary Examiner, Art Unit 3792