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 Amendment
The amendment filed on 06/26/2026 has been entered. Claims 1, 5, 8, 10, 12, and 13 have been amended. Claims 4, 6, 7, and 14-20 have been cancelled. Claims 21-30 have been newly added. Applicant’s amendments to the claims have overcome the claim objections raised in the non-final rejection mailed on 05/04/2026. Claims 1-3, 5, 8-13, and 21-30 remain pending in the instant application.
Response to Arguments
Applicant's arguments filed 06/26/2026 have been fully considered but they are not persuasive.
Regarding claim 1, Applicant argues that Markwat and Dijkstra references have lightning and vibration elements being treated as alternative treatment options, not components that can be used in a complimentary arrangement to enhance outcomes (Remarks Page 12, 2nd Paragraph). However, it is examiner’s position it would have been obvious to one having ordinary skill in the art to integrate vibration elements into the device of Markwat (Examiner notes Markwat contemplates the addition of an integrated vibration element in another embodiment (Paragraph 0020)). Dijkstra also contemplates using both vibrational and light together (Paragraph 0063 discloses using both lighting and vibration elements). Therefore, it is examiner’s position using the combination of Markwat and Dijkstra is not based upon impermissible hindsight as the advantages of using the combination are already directly contemplated in the prior art (Dijkstra Paragraph 0064). Accordingly, Applicant’s argument is found to be unpersuasive.
Double Patenting
Examiner notes the obviousness provisional double patenting rejections (NDSP) set out in the non-final rejection mailed on 05/04/2026 remain in effect for the amended and new claims presented in this case. Applicant has generally pointed out the double patenting rejections should be reconsidered in light of the substantial amendments to the claim language (Remarks Page 10 under “Double Patenting”). However, it is noted that Applicant’s amended claim language merely refers to positioning of vibrational elements and other limitations which have already been rejected as outlined in the double patenting rejection mailed on 05/04/2026. In the case of a provisional NDSP rejection using multiple references, it is noted that case law has held that a designer skilled in the art is charged with knowledge of the related art; therefore, the combination of old elements, herein, would have been well within the level of ordinary skill. See In re Antle, 444 F.2d 1168,170 USPQ 285 (CCPA 1971) and In re Nalbandian, 661 F.2d 1214, 211 USPQ 782 (CCPA 1981). See MPEP 1504.06(II). The amended and new claims are still rejected with art that was already of record. Thus, it is examiner’s position one of ordinary skill in the art would have arrived at the new limitations.
Claim Objections
Claim 10 is objected to because of the following informalities:
Claim 10 line 19 “IS produced” should be corrected to “[[IS]]is produced” for the sake of proper capitalization.
Appropriate correction is required.
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, and 8-9 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.
Regarding claim 1, Applicant recites “at least one of (1) … and (2)”. The metes and bounds of the claimed limitation are unclear because “at least one of” implies an “and/or” limitation rather than an “and” limitation. If Applicant meant that both conditions are required, then the “and” would be appropriate. For the sake of examination, examiner is interpreting the limitation to be “at least one of (1) … and/or (2).
Claims 2-3, 5, and 8-9 depend from claim 1 and thus inherit the above rejection by virtue of their dependency.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-3, 5, 8, 10-11, 13, and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over US20250041620A1 to Markwat et al. (hereinafter “Markwat”) in view of US20250152968A1 to Dijkstra et al. (hereinafter “Dijkstra”) and US20110092863A1 to Kim et al. (hereinafter “Kim”).
Regarding claim 1, Markwat discloses a lower back wearable radiation emitting device (Figs. 1 and 8 device 100 worn on the user; Paragraph 0054 discloses the light emitting diodes (LEDs) emit electromagnetic radiation when current is applied), comprising:
a device body (Fig. 1A primary sheet 121 and secondary sheet 123 comprise the device body) having a first side (Fig. 1A secondary sheet 123) and an opposing second side (Fig. 1A primary sheet 121), wherein the device body is elongated and adapted to be wrapped around a wearer's torso adjacent to a target area on the wearer's torso (Fig. 8 shows the device 100 is adapted to be positioned against a target area of the user’s body);
a plurality of electrical radiation emitting aspects positioned on the first side and configured to selectively generate radiation when activated (Paragraph 1A LEDs 111; Paragraph 0063 disclose the LEDs emit light when activated; Examiner notes the LEDs are positioned within the device and thus on second side 123 and first side 121), wherein the plurality of radiation emitting aspects are arranged such that when activated with the device body adjacent to the target area, the plurality of radiation emitting aspects direct radiation into the target area (Paragraph 0064 discloses the LEDs are utilized for providing therapy to the user’s body portion in order to provide the user relief from pain).
Markwat does not disclose wherein the plurality of radiation emitting aspects include at least a first region of radiation emitting aspects and a second region of radiation emitting aspects, with the first region of radiation emitting aspects being more densely clustered than the second region of radiation emitting aspects. However, Kim teaches a light treatment device which has a first region of radiation emitting aspects and a second region of radiation emitting aspects, with the first region of radiation emitting aspects being more densely clustered than the second region of radiation emitting aspects (See Kim Annotated Fig. 4 for the designation of the first and second regions of radiation emitting aspects; Examiner notes that the density is the amount of elements per area, thus making the first region have a higher density than the second region).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the distribution of Markwat’s radiation elements to have a first and second region of radiation emitting aspect, with the first region of radiation emitting aspects being more densely clustered than the second region of radiation emitting aspects, as taught by Kim, in order to provide customized light output and light emitting characteristics of the light emitting elements (Paragraph 0077).
Examiner notes Markwat contemplates the addition of an integrated vibration element in another embodiment (Paragraph 0020).
Markwat does not disclose at least one vibrating element adapted to selectively produce vibrational motion and positioned on the device body, wherein the at least one vibrating element is integrated with the device body such that when activated with the device body adjacent to the target area, motion produced by the at least one vibrating element is transferred the wearer's torso. However, Dijkstra teaches a vibratory therapeutic device which has at least one vibrating element adapted to selectively produce vibrational motion, wherein the at least one vibrating element is integrated with the device body such that such that when activated with the device body adjacent to the target area, motion produced by the at least one vibrating element is transferred the wearer’s torso (Figs. 1, 2A, and 2C therapeutic device 100, second substructures 214, stimulation elements 215 & 234; Paragraph 0071 discloses the secondary stimulation elements may be vibration elements in addition to the primary stimulators 215 (LEDs); Fig. 9 shows the device is placed against the user’s body; Paragraphs 0063-0064 disclose a control module for the vibrational units).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Markwat to have secondary vibration elements, as taught by Dijkstra, in order to provide a more concentrated and combinatorial therapeutic effect (Paragraphs 0071 & 0075). Examiner notes that modified Markwat would include the controller logic to control the vibrational elements from Dijkstra. Examiner also notes modified Markwat would control power of the vibrational elements as well as they would be inside of the designated device body.
Markwat as modified by Dijkstra does not explicitly disclose at a location that is at least one of (1) centrally positioned longitudinally on the device body and entirely within the first region of radiation emitting aspects and (2) offset from a longitudinally central position of the device body, directly adjacent to both the first region of radiation emitting aspects and the second region of radiation emitting aspects. However, Dijkstra discloses centrally positioned first region and offset second region vibration elements since all of the substructures 214 may be vibration elements (See Fig. 2A). Therefore, upon incorporating Dijkstra’s vibration elements into the device of Markwat, the vibration elements would be interspersed among the radiation emitting aspects of Markwat. The combined references would also render obvious arranging the position of Dijkstra’s vibrational elements to be offset from a longitudinally central position of the device body, directly adjacent to both the first region of radiation emitting aspects and the second region of radiation emitting aspects.
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Regarding claim 2, Markwat in view of Dijkstra and Kim discloses the lower back wearable radiation emitting device with integrated vibration element of claim 1, and Markwat further discloses wherein the plurality of radiation emitting aspects are defined by a set of LED lights which collectively are configured to selectively generate radiation at a plurality of wavelengths when activated (Paragraph 0063 discloses the LEDs 111 are configured to emit light of different wavelengths).
Regarding claim 3, Markwat in view of Dijkstra and Kim discloses the lower back wearable radiation emitting device with integrated vibration element of claim 1, and Markwat further discloses the first region of radiation emitting aspects and the second region of radiation emitting aspects each include at least one discrete radiation emitting aspect which generates radiation at a first wavelength when activated and at least one discrete radiation emitting aspect which generates radiation at a second wavelength when activated (Paragraph 0063 discloses the some LEDs emit red light and some emit infrared light).
Regarding claim 5, Markwat in view of Dijkstra and Kim discloses the lower back wearable radiation emitting device with integrated vibration element of claim 1, and Markwat as modified by Dijkstra further discloses additionally comprising a control module operative to selectively activate the electrical radiation emitting aspects and the at least one vibrating element (Fig. 1A controller 113; Examiner notes that Markwat as modified by Dijkstra would control both the LEDs and incorporated vibrational elements), wherein the control module is removably attached to the second side (Fig. 1A controller 113 is removable from primary sheet 121) and the control module and device body are configured such that electrical operating power is only supplied to the electrical radiation emitting aspects and the at least one vibrating element when the control module is attached to the second side (Fig. 1A controller 113, primary sheet 121; Paragraph 0075 discloses connecting the controller 113 with pad 101 results in an electrical connection between controller 113 and FPCB 109; Paragraph 0077 discloses the controller may have an on/off button to control power of the device when attached to the device; Examiner notes modified Markwat would control power of the vibrational elements as well as they would be inside of the designated device body).
Regarding claim 8, Markwat in view of Dijkstra and Kim discloses the lower back wearable radiation emitting device with integrated vibration element of claim 1, and Markwat as modified by Kim further discloses wherein the plurality of radiation emitting aspects are arranged such that when activated with the device body adjacent to the target area (Fig. 8 shows the device is placed against a target area of the user’s body; Paragraphs 0063-0064 discloses the LEDs emit light when activated and are utilized for providing therapy to the user’s body portion in order to provide the user relief from pain), the first region of radiation emitting aspects are positioned directly adjacent to the target area and collectively operative to direct radiation into the target area at a first intensity while, the second region of radiation emitting aspects are positioned remote from the target area and collectively operative to direct radiation into at least one secondary area adjacent to the target area at a second intensity that is less than the first intensity (Fig. 1A LEDs 111; Paragraph 0063 discloses the some of the LEDs 111 emit red light (first set) and some of the LEDs emit infrared light (second set); Examiner thus notes that Markwat as modified by Kim is capable of delivering infrared light in the first region of LED lights (more intense) and providing a second lesser intensity of red light in the designated second region).
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Regarding claim 10, Markwat discloses a lower back wearable radiation emitting device (Figs. 1 and 8 device 100 worn on the user; Paragraph 0054 discloses the light emitting diodes (LEDs) emit electromagnetic radiation when current is applied), comprising:
a device body (Fig. 1A primary sheet 121 and secondary sheet 123 comprise the device body) having a first side (Fig. 1A secondary sheet 123) and an opposing second side (Fig. 1A primary sheet 121), wherein the device body is elongated and adapted to be positioned on a wearer's torso adjacent to a target area on the wearer's torso which includes at least a portion of the spine of the wearer (Fig. 8 shows the device 100 is adapted to be positioned against a target area of the user’s body; Examiner notes the device is capable of being placed against a portion of the spine of the wearer);
a plurality of electrical radiation emitting aspects positioned in an emitting section of the first side and configured to selectively generate radiation when activated (Paragraph 1A LEDs 111; Paragraph 0063 disclose the LEDs emit light when activated; Examiner notes the LEDs are positioned within the device and thus on second side 123 and first side 121), wherein the plurality of radiation emitting aspects are arranged such that when activated with the device body adjacent to the target area, the plurality of radiation emitting aspects direct radiation into the target area (Paragraph 0064 discloses the LEDs are utilized for providing therapy to the user’s body portion in order to provide the user relief from pain).
Markwat does not disclose wherein the plurality of radiation emitting aspects include at least a first region of radiation emitting aspects and a second region of radiation emitting aspects, with the first region of radiation emitting aspects being more densely clustered than the second region of radiation emitting aspects. However, Kim teaches a light treatment device which has a first region of radiation emitting aspects and a second region of radiation emitting aspects, with the first region of radiation emitting aspects being more densely clustered than the second region of radiation emitting aspects (See Kim Annotated Fig. 4 for the designation of the first and second regions of radiation emitting aspects; Examiner notes that the density is the amount of elements per area, thus making the first region have a higher density than the second region).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the distribution of Markwat’s radiation elements to have a first and second region of radiation emitting aspect, with the first region of radiation emitting aspects being more densely clustered than the second region of radiation emitting aspects, as taught by Kim, in order to provide customized light output and light emitting characteristics of the light emitting elements (Paragraph 0077).
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Examiner notes Markwat contemplates the addition of an integrated vibration element in another embodiment (Paragraph 0020).
Markwat does not disclose at least one vibrating element adapted to selectively produce vibrational motion, wherein the at least one vibrating element is integrated with the device body such that when activated with the device body adjacent to the target area, motion IS produced by the at least one vibrating element directly adjacent to the portion of the spine of the wearer. However, Dijkstra teaches a vibratory therapeutic device which has at least one vibrating element adapted to selectively produce vibrational motion, wherein the at least one vibrating element is integrated with the device body such that such that when activated with the device body adjacent to the target area, motion produced by the at least one vibrating element is transferred the wearer’s torso (Figs. 1, 2A, and 2C therapeutic device 100, second substructures 214, stimulation elements 215 & 234; Paragraph 0071 discloses the secondary stimulation elements may be vibration elements in addition to the primary stimulators 215 (LEDs); Fig. 9 shows the device is placed against the user’s body; Paragraphs 0063-0064 disclose a control module for the vibrational units).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Markwat to have secondary vibration elements, as taught by Dijkstra, in order to provide a more concentrated and combinatorial therapeutic effect (Paragraphs 0071 & 0075). Examiner notes that modified Markwat would include the controller logic to control the vibrational elements from Dijkstra. Examiner also notes modified Markwat would control power of the vibrational elements as well as they would be inside of the designated device body.
Markwat as modified by Dijkstra does not explicitly disclose wherein the vibrating element is centrally positioned longitudinally on the device body at a location that is entirely within the first region of radiation emitting aspects. However, Dijkstra discloses centrally positioned first region and offset second region vibration elements since all of the substructures 214 may be vibration elements (See Fig. 2A). Therefore, upon incorporating Dijkstra’s vibration elements into the device of Markwat, the vibration elements would be interspersed among the radiation emitting aspects of Markwat. The combined references would also render obvious arranging the position of Dijkstra’s vibrational elements to be offset from a longitudinally central position of the device body, directly adjacent to both the first region of radiation emitting aspects and the second region of radiation emitting aspects.
Regarding claim 11, Markwat in view of Dijkstra and Kim discloses the lower back wearable radiation emitting device with integrated vibration element of claim 10, and Markwat further discloses wherein the plurality of radiation emitting aspects are defined by at least a first discrete set of LED lights and a second discrete set of LED lights, with the first discrete set of LED lights being operative to selectively generate radiation at a first wavelength when activated and the second discrete set of LED lights being operative to selectively generate radiation at least one wavelength that is not the first wavelength when activated (Fig. 1A LEDs 111; Paragraph 0063 discloses the some of the LEDs 111 emit red light (first set) and some of the LEDs emit infrared light (second set)).
Regarding claim 13, Markwat in view of Dijkstra and Kim discloses the lower back wearable radiation emitting device with integrated vibration element of claim 10, and Markwat further discloses additionally comprising a control module operative to selectively activate the electrical radiation emitting aspects and the at least one vibrating element, wherein the control module is removably attached to the second side and the control module and device body are configured such that electrical operating power is only supplied to the electrical radiation emitting aspects and the at least one vibrating element when the control module is attached to the second side (Fig. 1A controller 113, primary sheet 121; Paragraph 0075 discloses connecting the controller 113 with pad 101 results in an electrical connection between controller 113 and FPCB 109; Paragraph 0077 discloses the controller may have an on/off button to control power of the device when attached to the device).
Regarding claim 21, Markwat in view of Dijkstra and Kim discloses the lower back wearable radiation emitting device with integrated vibration element of claim 10, and Markwat further discloses wherein the plurality of radiation emitting aspects are defined by a set of LED lights which collectively are configured to selectively generate radiation at a plurality of wavelengths when activated (Paragraph 0063 discloses the LEDs 111 are configured to emit light of different wavelengths).
Regarding claim 22, Markwat in view of Dijkstra and Kim disclose the lower back wearable radiation emitting device with integrated vibration element of claim 10, and Markwat as modified by Kim further discloses wherein the plurality of radiation emitting aspects are arranged such that when activated with the device body adjacent to the target area, the first region of radiation emitting aspects are positioned directly adjacent to the target area and collectively operative to direct radiation into the target area at a first intensity while, the second region of radiation emitting aspects are positioned remote from the target area and collectively operative to direct radiation into at least one secondary area adjacent to the target area at a second intensity that is less than the first intensity (Fig. 1A LEDs 111; Paragraph 0063 discloses the some of the LEDs 111 emit red light (first set) and some of the LEDs emit infrared light (second set); Examiner thus notes that Markwat as modified by Kim is capable of delivering infrared light in the first region of LED lights (more intense) and providing a second lesser intensity of red light in the designated second region).
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Claims 9 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Markwat in view of Dijkstra and Kim as applied to claims 1 and 10 above, and further in view of WO2006024938A1 to Docherty et al. (hereinafter “Docherty”).
Regarding claim 9, Markwat in view of Dijkstra and Kim discloses the lower back wearable radiation emitting device with integrated vibration element of claim 1, but do not disclose additionally comprising a protective cover sized to be placed on and completely cover the first side and be removably attached to the first side. However, Docherty teaches a radiant therapeutic heating apparatus which has a protective cover to be placed on and completely cover the therapeutic device in a removable manner (Fig. 1 cover 13; Paragraph 00018 discloses cover 13 is formed into an envelope and closed by fastener 16 such as a zipper).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Markwat to further include a protective cover, as taught by Docherty, in order to protect the therapeutic device. Examiner notes the cover would allow for safe transport of the device as it would be protected by the cover.
Regarding claim 23, Markwat in view of Dijkstra and Kim discloses the lower back wearable radiation emitting device with integrated vibration element of claim 10, but does not disclose additionally comprising a protective cover sized to be placed on and completely cover the first side and be removably attached to the first side. However, Docherty teaches a radiant therapeutic heating apparatus which has a protective cover to be placed on and completely cover the therapeutic device in a removable manner (Fig. 1 cover 13; Paragraph 00018 discloses cover 13 is formed into an envelope and closed by fastener 16 such as a zipper).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Markwat to further include a protective cover, as taught by Docherty, in order to protect the therapeutic device. Examiner notes the cover would allow for safe transport of the device as it would be protected by the cover.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Markwat in view of Dijkstra and Kim as applied to claim 11 above, and further in view of US20070139930A1 to Spivak (hereinafter “Spivak”).
Regarding claim 12, Markwat in view of Dijkstra and Kim discloses the lower back wearable radiation emitting device with integrated vibration element of claim 11, and Markwat as modified by Kim further discloses the plurality of radiation emitting aspects include at least a first region of radiation emitting aspects and a second region of radiation emitting aspects, with the first region of radiation emitting aspects being more densely clustered than the second region of radiation emitting aspects (See Kim Annotated Fig. 4 for the designation of the first and second regions of radiation emitting aspects; Examiner notes that the density is the amount of elements per area, thus making the first region have a higher density than the second region).
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Modified Markwat does not disclose wherein the first discrete set of LED lights and the second discrete set of LED lights are positioned in an alternating pattern. However, Spivak teaches a method and system for light therapy which arranges LED sets in an alternating pattern (Fig. 3 first row 204, second row 206, third row 208; Paragraph 0030 discloses alternating rows 204 at 400nm LEDs, second rows 206 410nm LEDs, third row 208 of 415nm LEDs).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the LEDs of Markwat to be arranged in an alternating manner, as taught by Spivak, in order to provide customized light irradiation configurations (Paragraph 0030). Markwat as modified by Spivak further discloses alternating pattern in both the first region of radiation emitting aspects and the second region of radiation emitting aspects (Examiner notes the rows of Markwat as modified by Kim span across the designated first and second regions. Therefore the combination of Markwat and Spivak would have alternating LEDs across the three regions of emitting aspects.).
Claims 24-26 and 28-29 are rejected under 35 U.S.C. 103 as being unpatentable over Markwat in view of Kim and WO2024137844A1 to Wersland et al. (hereinafter “Wersland”).
Regarding claim 24, Markwat discloses a lower back wearable radiation emitting device (Figs. 1 and 8 device 100 worn on the user; Paragraph 0054 discloses the light emitting diodes (LEDs) emit electromagnetic radiation when current is applied), comprising:
a device body (Fig. 1A primary sheet 121 and secondary sheet 123 comprise the device body) having a first side (Fig. 1A secondary sheet 123) and an opposing second side (Fig. 1A primary sheet 121), wherein the device body is elongated and adapted to be positioned on a wearer's torso adjacent to a target area on the wearer's torso which includes at least a portion of the spine of the wearer (Fig. 8 shows the device 100 is adapted to be positioned against a target area of the user’s body; Examiner notes the device is capable of being placed against a portion of the spine of the wearer);
a plurality of electrical radiation emitting aspects positioned in an emitting section of the first side and configured to selectively generate radiation when activated (Paragraph 1A LEDs 111; Paragraph 0063 disclose the LEDs emit light when activated; Examiner notes the LEDs are positioned within the device and thus on second side 123 and first side 121), wherein the plurality of radiation emitting aspects are arranged such that when activated with the device body adjacent to the target area, the plurality of radiation emitting aspects direct radiation into the target area (Paragraph 0064 discloses the LEDs are utilized for providing therapy to the user’s body portion in order to provide the user relief from pain).
Markwat does not disclose wherein the plurality of radiation emitting aspects include at least a first region of radiation emitting aspects and a second region of radiation emitting aspects, with the first region of radiation emitting aspects being more densely clustered than the second region of radiation emitting aspects. However, Kim teaches a light treatment device which has a first region of radiation emitting aspects and a second region of radiation emitting aspects, with the first region of radiation emitting aspects being more densely clustered than the second region of radiation emitting aspects (See Kim Annotated Fig. 4 for the designation of the first and second regions of radiation emitting aspects; Examiner notes that the density is the amount of elements per area, thus making the first region have a higher density than the second region).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the distribution of Markwat’s radiation elements to have a first and second region of radiation emitting aspect, with the first region of radiation emitting aspects being more densely clustered than the second region of radiation emitting aspects, as taught by Kim, in order to provide customized light output and light emitting characteristics of the light emitting elements (Paragraph 0077).
Examiner notes Markwat contemplates the addition of an integrated vibration element in another embodiment (Paragraph 0020).
Markwat does not disclose at least one pair of vibrating elements adapted to selectively produce vibrational motion and positioned at mirror image locations that are each offset from a longitudinally central position on the device body, wherein the at least one pair of vibrating elements are integrated with the device body such that when activated with the device body adjacent to the target area, motion is produced by the at least one vibrating element on either side of the portion of the spine of the wearer. However, Wersland teaches a vibrating therapeutic strap assembly at least one vibrating element adapted to selectively produce vibrational motion, and positioned at mirror image locations that are each offset from a longitudinally central position on the device body and wherein the at least one vibrating element is integrated with the device body such that such that when activated with the device body adjacent to the target area, motion produced by the at least one vibrating element on either side of the portion of the spine of the wearer (Fig. 7 pair of vibration devices 70; Paragraph 0156 discloses the vibration devices are disposed in the wrap portion 12; Paragraphs 0027 & 0158 disclose a main control module 18 selectively controls the vibration device via buttons; Examiner notes that only two of the vibrational devices would be needed as there is only one wrap/strap portion in Markwat; Fig. 7 shows the pair of vibration elements 70 are centrally positioned longitudinally on the device and symmetrically distributed about the central longitudinal axis A2).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date to modify Markwat to include vibrational devices such that when activated with the device body adjacent to the target area, motion produced by the at least one vibrating element is transferred the wearer’s torso, as taught by Wersland, in order to provide integrated vibration therapy to the user (Paragraph 0145).
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Markwat as modified by Kim and Wersland discloses wherein the mirror image vibrational elements are directly adjacent to both the first region of radiation emitting aspects and the second region of radiation emitting aspects (Examiner notes Wersland’s vibrational elements 70 would be adjacent to both designated regions of the Kim’s Annotated Figure above).
Regarding claim 25, Markwat in view of Kim and Wersland discloses the lower back wearable radiation emitting device with integrated vibration element of claim 24, and Markwat further discloses wherein the plurality of radiation emitting aspects are defined by a set of LED lights which collectively are configured to selectively generate radiation at a plurality of wavelengths when activated (Paragraph 0063 discloses the LEDs 111 are configured to emit light of different wavelengths).
Regarding claim 26, Markwat in view of Kim and Wersland discloses the lower back radiation emitting device with integrated vibration element of claim 24, and Markwat further discloses wherein the plurality of radiation emitting aspects are defined by at least a first discrete set of LED lights and a second discrete set of LED lights, with the first discrete set of LED lights being operative to selectively generate radiation at a first wavelength when activated and the second discrete set of LED lights being operative to selectively generate radiation at least one wavelength that is not the first wavelength when activated (Paragraph 0063 discloses the some LEDs emit red light and some emit infrared light; Examiner notes red light wavelength is different from infrared light wavelength).
Regarding claim 28, Markwat in view of Kim and Wersland discloses the lower back wearable radiation emitting device with integrated vibration element of claim 24, and Markwat as modified by Wersland further discloses additionally comprising a control module operative to selectively activate the electrical radiation emitting aspects and the at least one vibrating element, wherein the control module is removably attached to the second side and the control module and device body are configured such that electrical operating power is only supplied to the electrical radiation emitting aspects and the at least one vibrating element when the control module is attached to the second side (Fig. 1A controller 113, primary sheet 121; Paragraph 0075 discloses connecting the controller 113 with pad 101 results in an electrical connection between controller 113 and FPCB 109; Paragraph 0077 discloses the controller may have an on/off button to control power of the device when attached to the device; Examiner notes the control logic to control Wersland’s vibration elements would be incorporated into Markwat).
Regarding claim 29, Markwat in view of Kim and Wersland disclose the lower back wearable radiation emitting device with integrated vibration element of claim 24, and Markwat as modified by Kim further discloses wherein the plurality of radiation emitting aspects are arranged such that when activated with the device body adjacent to the target area, the first region of radiation emitting aspects are positioned directly adjacent to the target area and collectively operative to direct radiation into the target area at a first intensity while, the second region of radiation emitting aspects are positioned remote from the target area and collectively operative to direct radiation into at least one secondary area adjacent to the target area at a second intensity that is less than the first intensity (Fig. 1A LEDs 111; Paragraph 0063 discloses the some of the LEDs 111 emit red light (first set) and some of the LEDs emit infrared light (second set); Examiner thus notes that Markwat is capable of delivering infrared light in the first region of LED lights (more intense) and providing a second lesser intensity of red light in the designated second region).
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Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Markwat in view of Kim and Wersland as applied to claim 26 above, and further in view of Spivak.
Regarding claim 27, Markwat in view of Kim and Wersland disclose the lower back wearable radiation emitting device with integrated vibration element of claim 26, but does not disclose wherein the first discrete set of LED lights and the second discrete set of LED lights are positioned in an alternating pattern. However, Spivak teaches a method and system for light therapy which arranges LED sets in an alternating pattern (Fig. 3 first row 204, second row 206, third row 208; Paragraph 0030 discloses alternating rows 204 at 400nm LEDs, second rows 206 410nm LEDs, third row 208 of 415nm LEDs).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the LEDs of Markwat to be arranged in an alternating manner, as taught by Spivak, in order to provide customized light irradiation configurations (Paragraph 0030). Markwat as modified by Spivak further discloses alternating pattern in both the first region of radiation emitting aspects and the second region of radiation emitting aspects (Examiner notes the rows of Markwat as modified by Kim span across the designated first and second regions. Therefore the combination of Markwat and Spivak would have alternating LEDs across the regions of emitting aspects.).
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Markwat in view of Kim and Wersland as applied to claim 24 above, and further in view of Docherty.
Regarding claim 30, Markwat in view of Kim and Wersland discloses the lower back wearable radiation emitting device with integrated vibration element of claim 24, but does not disclose additionally comprising a protective cover sized to be placed on and completely cover the first side and be removably attached to the first side. However, Docherty teaches a radiant therapeutic heating apparatus which has a protective cover to be placed on and completely cover the therapeutic device in a removable manner (Fig. 1 cover 13; Paragraph 00018 discloses cover 13 is formed into an envelope and closed by fastener 16 such as a zipper).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Markwat to further include a protective cover, as taught by Docherty, in order to protect the therapeutic device. Examiner notes the cover would allow for safe transport of the device as it would be protected by the cover.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: US-20050112021-A1 to Hlavinka; US-20060271131-A1 to Passy; and US-6673096-B2 to Lach.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TYLER RAUBENSTRAW whose telephone number is (571)272-0662. The examiner can normally be reached Monday-Friday 7:30-5:30.
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/TYLER A RAUBENSTRAW/Examiner, Art Unit 3785
/BRADLEY H PHILIPS/Primary Examiner, Art Unit 3799
