Ex Parte Cassone

Board of Patent Appeals and Interferences

Feb 27, 2008

10166749 (B.P.A.I. Feb. 27, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ALPHONSE CASSONE
____________

Appeal 2007-2265
Application 10/166,749
Technology Center 3700
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Decided: February 27, 2008
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Before MURRIEL E. CRAWFORD, JENNIFER D. BAHR, and
DAVID B. WALKER, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 (2002) from a final rejection
of claims 1 to 12 and 15. Claims 13 and 14 have been cancelled. We have
jurisdiction under 35 U.S.C. § 6(b) (2002). Appellant presented oral
arguments on January 24, 2008.
Appeal 2007-2265
Application 10/166,749

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Appellant invented a method of treating certain blood-manifested
medical disorders which includes the steps of immersing a low frequency
sonic transducer in a liquid containing container and positioning a person to
be treated a therapeutically beneficial distance from the container
(Specification 4 to 5).
Claim 1 under appeal reads as follows:
1. A method for treating medical disorders manifesting
themselves in the blood comprising the steps of:

providing a low frequency sonic transducer;

immersing said low frequency sonic transducer in a
liquid-containing container;

positioning a person having a medical disorder
manifesting itself in the blood a therapeutically beneficial
distance from said container;

wherein said therapeutically beneficial distance is
between approximately one foot and approximately twenty feet
from said container;

exposing said person for a therapeutically beneficial
period of time to audible acoustic waves from said low
frequency sonic transducer at a therapeutically beneficial
frequency;

wherein said therapeutically beneficial frequency is
between approximately sixteen and one thousand Hertz.

The Examiner rejected claims 1 to 12 and 15 under 35 U.S.C.
§ 103(a) as being unpatentable over Balamuth in view of Eakin.

Appeal 2007-2265
Application 10/166,749

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The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Balamuth US 3,585,991 Jun. 22, 1971
Eakin US 5,097,821 Mar. 24, 1992

OPINION
We have carefully reviewed the rejection on appeal in light of the
arguments of the Appellant and the Examiner. As a result of this review, we
have reached the conclusion that the applied prior art does not establish the
prima facie obviousness of the claimed subject matter. Therefore, the
rejection on appeal is not sustained. Our reasons follow.
The following comprise our findings of facts with respect to the scope
and content of the prior art and the differences between the prior art and the
claimed subject matter.
Balamuth discloses a method of treating complex illnesses and
maladjustments (col. 1, ll. 20 to 24). The method includes the step of
submerging a patient to be treated in a bathtub-like container filled with
fluid and placing a transducer 45 in the housing of the bathtub-like container
(Figures 1 and 2; col. 5, ll. 14 to 19). The transducer 45 produces ultrasonic
elastic waves of a low level of intensity (col. 2, ll. 56 to 57; col. 5, ll. 19 to
20). The patient within the bathtub-like container is exposed to ultrasonic
elastic waves produced by the transducer which travel from the transducer
45 through the fluid in the tub to the patient.
Eakin discloses a method of exposing a recumbent listener to music
not only by audible sensations but also by tactile sensations (col. 1, ll. 10 to
13). In the Eakin method, a person is positioned on a mat 11 which is over a
Appeal 2007-2265
Application 10/166,749

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bathtub like container 10 (Figure 4). Transducers 38a, 38b, 38c, and 38d
are disposed within the bathtub like container and transmit sound vibration
through the air in the container to the patient on the mat 11 ( col. 3, ll. 19 to
56; Figure 4).
Appellant and the Examiner disagree on whether Balamuth or the
combination of Balamuth and Eakin teach positioning a person to be treated
a therapeutically beneficial distance from a fluid filled container in which a
transducer is immersed. Firstly, the transducer in Balamuth is not immersed
in the liquid filled container as required by independent claims 1 and 12 but
rather is disposed in the walls of container itself. Secondly, in Balamuth, the
patient is not positioned a therapeutically beneficial distance from the
container but is immersed within the container itself. We do not agree with
the Examiner that the part of the patient that is above the fluid in the
container in Balamuth is a therapeutically beneficial distance from the
container because claim recites “positioning a person…a therapeutically
beneficial distance from said container” and thereby requires that the whole
of the person is positioned away from the container. We also see no merit in
the Examiner’s argument that other people in the room, not in the container,
are positioned a therapeutically beneficial distance from the container and
that this is shown in the Eakin reference. We agree with the reasoning of the
previous panel of the board which issued a decision on March 24, 2006 that
there is no basis in Balamuth to support such a conclusion, especially since
the Balamuth waves are at a low level of intensity for safety purposes.
Further, Eakin discloses that sound waves are passed through air in the
container and that such sound waves reach the user, but Eakin does not
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Application 10/166,749

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disclose that the sound waves have any therapeutic effect. In addition, Eakin,
like Balamuth, does not disclose immersing a transducer in a liquid filled
container. Therefore, Eakin, like Balamuth, does not disclose positioning a
person to be treated a therapeutically beneficial distance from the liquid
filled container in which a transducer is immersed. Of note is that neither
Balamuth nor Eakin disclose the use of sonic waves which travel first
through a liquid and then through the air before reaching the person to be
treated as required by the method of the invention. Therefore we are
constrained to reverse the decision of the Examiner.

REVERSED

vsh

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