COLBAUGH, Michael Edward. et al.

Patent Trials and Appeals Board

Jan 17, 2020

14906276 - (D) (P.T.A.B. Jan. 17, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/906,276 01/20/2016 Michael Edward COLBAUGH 2012P01346WOUS 2087
24737 7590 01/17/2020
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
JENNESS, NATHAN JAY
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
01/17/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MICHAEL EDWARD COLBAUGH and
CHRISTOPHER SCOTT LUCCI
____________________

Appeal 2019-0042541
Application 14/906,276
Technology Center 3700
____________________

Before PHILLIP J. KAUFFMAN, TARA L. HUTCHINGS, and
ALYSSA A. FINAMORE, Administrative Patent Judges.

FINAMORE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–7 and 15–22. We have jurisdiction
under 35 U.S.C. § 6(b). We AFFIRM.

1 We reference herein the Specification filed January 20, 2016 (“Spec.”),
Final Office Action mailed August 10, 2018 (“Final Act.”), Appeal Brief
filed January 11, 2019 (“Appeal Br.”), Examiner’s Answer mailed March 7,
2019 (“Ans.”), and Reply Brief filed May 2, 2019 (“Reply Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Koninklijke Philips N.V. Appeal Br. 4.
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SUBJECT MATTER ON APPEAL
The invention “pertains to a system and method for modifying the
circadian rhythm of a subject through light therapy, and in particular, to
using pulses of electromagnetic radiation in a particular wavelength range to
accomplish certain such modifications.” Spec. ¶ 1. Claims 1 and 15 are
independent. Independent claim 1 is illustrative of the subject matter on
appeal, and we reproduce it below, emphasizing the limitation at issue.
1. A system to provide light therapy to a subject, the
system comprising:
a light source configured to emit electromagnetic
radiation, wherein the emitted electromagnetic radiation includes
electromagnetic radiation having a variable intensity;
one or more processors configured to execute computer
program modules, the computer program modules comprising:
a therapy module configured to obtain a light
therapy regimen for the subject, wherein the light therapy
regimen defines stages including a first stage and a second
stage, wherein the first stage is associated with a first
period during one or more days, wherein the second stage
is associated with a second period during the one or more
days that is different from the first period and the first and
second periods are mutually exclusive periods, wherein
the light therapy regimen is configured such that:
during the first stage the subject receives pulsed
electromagnetic radiation including electromagnetic
radiation having a first range of wavelengths, the
electromagnetic radiation during pulses being at a first
intensity, the first range of wavelengths and the first
intensity being selected to stimulate S-cone receptors of
the subject upon impingement upon a closed eyelid of the
subject, wherein the pulsed electromagnetic radiation
received during the first period has a pulse duration of up
to 10 minutes and an inter-pulse duration between 0.1
seconds and 10 minutes, and
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during the second stage the subject receives
electromagnetic radiation, wherein one or more
parameters of the electromagnetic radiation during the
second stage are changed from the pulsed electromagnetic
radiation during the first stage such that light therapy
provided during the first stage is different from light
therapy provided during the second stage; and
a light control module configured to control
emission from the one or more light sources in accordance
with the light therapy regimen.
Appeal Br., Claims App. (emphasis added).

REJECTION
Claims
Rejected 35 U.S.C. § Reference(s)/Basis 
1–7, 15–22 103 Colbaugh,3 Wells4

ANALYSIS
Appellant argues independent claims 1 and 15 together. Appeal
Br. 7–12. Appellant argues the patentability of dependent claims 2–7
and 16–22 solely on the basis of dependency from the independent claims.
Id. at 12. Accordingly, we take independent claim 1 as representative.
37 C.F.R. § 41.37(c)(i)(iv).
The Examiner finds Colbaugh discloses substantially all of the
limitations of independent claim 1. Final Act. 7–10. In particular, the
Examiner relies on the application of light pulses 58 for disclosing the
recited first stage associated with a first period, and the application of
electromagnetic radiation during rest periods 60 for the recited second stage

3 WO 2011/141842 A1, published Nov. 17, 2011.
4 US 2011/0257712 A1, published Oct. 20, 2011.
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associated with a second period. Id. at 8 (citing Colbaugh ¶ 46). Figure 8 of
Colbaugh, reproduced below, shows a light therapy plan with pulses 58 and
rest periods 60.

Figure 8 depicts a light therapy plan showing, as a function of time, the
application of pulses 58 of electromagnetic radiation in a first wavelength
band and the emission electromagnetic radiation in a second wavelength
band during rest periods 60. Colbaugh ¶¶ 16, 46.
The Examiner acknowledges Colbaugh does not disclose “the first
and second periods are mutually exclusive periods.” Final Act. 10. For this
limitation, the Examiner relies on Wells’s teaching of a processor that
determines whether the eyelids of a subject are open or closed and adjusts an
intensity of a therapy based on the output received from the eyelid detector.
Id. The Examiner concludes that it would have been obvious
to configure the system of Colbaugh to include an eyelid detector
for defining additional first and second periods based on whether
the eyelid is open or closed, as taught by Wells, in order to
improve therapy by adjusting the parameters of the radiation for
treatment based on whether the eyelid is open or closed.
Id.
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Appellant argues modifying Colbaugh’s disclosure to have mutually
exclusive first and second periods either would change Colbaugh’s principle
of operation or would render Colbaugh’s light therapy system unsatisfactory
for its intended purpose. Appeal Br. 7. According to Appellant, Colbaugh’s
system is specifically designed so that the application of lower intensity light
pulses during rest periods 60 overlaps with the application of higher
intensity pulses 58, as shown in Figure 8, to reduce the disturbing quality of
the quickly changing pulses 58 and thereby minimize the disturbance to the
sleeper. Id. at 9, 11 (citing Colbaugh ¶ 47, Fig. 8). Appellant further
contends the application of the longer wavelength of electromagnetic
radiation applied during rest periods 60 must be coincident with the
application of the shorter wavelength of pulses 58 to enable the longer
wavelength to reset the sensitivity of the photosensitive retinal ganglion cells
to the shorter wavelength of pulses 58 and thereby provide a number of
advantages. Id. at 9 (citing Colbaugh ¶ 33).
Appellant’s arguments are not persuasive of error because they are
misaligned with the Examiner’s rejection. The Examiner is not proposing to
modify Colbaugh’s disclosure so that the application of pulses 58 and the
application of electromagnetic radiation during rest periods 60 do not
overlap. Ans. 8. Rather, the Examiner proposes to modify Colbaugh so that
the light treatment plan, including pulses 58 and the application of
electromagnetic radiation during rest periods 60, is provided at a higher
intensity when a subject’s eyelids are closed and a lower intensity when the
eyelids are open, as taught by Wells, so that the mutually exclusive first and
second periods are when the subject’s eyelids are shut and open. Id. at 8–9.
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Appellant further argues the Examiner’s rejection relies on a shifting
interpretation of the first and second periods recited in independent claim 1.
Reply Br. 2–4. According to Appellant, “[t]he claims require that the first
and second periods be mutually exclusive of each other, not that the first and
second periods are mutually exclusive of some additional period as allegedly
taught by Wells.” Id. at 3. Appellant also asserts that, for teaching of the
recited first and second periods, the Examiner improperly relies on both
Colbaugh, i.e., pulses 58 and the electromagnetic radiation applied during
rest periods 60, and Wells, i.e., the application of higher intensity light when
eyelids are shut and the application of lower intensity light when eyelids are
open. Id. at 3–4. Per Appellant, the Examiner cannot rely on Wells for
teaching the recited first and second periods because the dependent claims,
namely claims 5–7 and 18–20, recite specific characteristics of the second
stage associated with the second period, which Wells’s higher intensity
pulses do not teach. Id.
Although we agree independent claim 1 requires that the first and
second periods be mutually exclusive to each other, Appellant’s arguments
are not persuasive of error. As set forth above, the Examiner finds that
Colbaugh’s pulses 58 disclose the recited first stage associated with the first
period, and that the electromagnetic radiation applied during rest periods 60
discloses the recited second stage associated with the second period. Final
Act. 8–10. The Examiner proposes to modify Colbaugh so that the light
treatment plan, including pulses 58 and the application of electromagnetic
radiation during rest periods 60, is provided at a lower intensity when a
subject’s eyelids are open and a higher intensity when the eyelids are closed,
as taught by Wells. Id. at 10; Ans. 8–9. Given that the Examiner essentially
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proposes to use Colbaugh’s light treatment plan, which discloses the recited
first and second stages, at different intensities dependent on a subject’s
eyelids being open or shut, i.e., mutually exclusive time periods, Appellant
does not apprise us of error in the Examiner’s determination that the
combined teachings of Colbaugh and Wells would result in mutually
exclusive first and second periods and respective first and second stages
associated therewith, as recited in independent claim 1.
In view of the foregoing, Appellant does not apprise us of error in the
Examiner’s rejection of independent claim 1. We, thus, sustain the rejection
of claims 1–7 and 15–22 under 35 U.S.C. § 103 as unpatentable over
Colbaugh and Wells.

CONCLUSION
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 15–22 103 Colbaugh, Wells 1–7, 15–22
Overall
Outcome
1–7, 15–22

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED