Ex Parte Hayes

Patent Trial and Appeal Board

Feb 23, 2016

11651861 (P.T.A.B. Feb. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111651,861 01/10/2007 Stephen Bryce Hayes
26294 7590 02/25/2016
TAROLLI, SUNDHEIM, COVELL & TUMMINO LLP,
1300EASTNINTH STREET, SUITE 1700
CLEVELAND, OH 44114
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
MCl-8483 2222
EXAMINER
LIPITZ, JEFFREY BRIAN
ART UNIT PAPER NUMBER
3769
NOTIFICATION DATE DELIVERY MODE
02/25/2016 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):
rkline@tarolli.com
dkinder@tarolli.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN BRYCE HA YES
Appeal2014-000803
Application 11/651,861
Technology Center 3700
Before LYNNE H. BROWNE, ERIC C. JESCHKE, and
JASON W. MELVIN, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1 and 3-10 under 35 U.S.C. § 103(a) as
unpatentable over Terman (US 5,343,121, iss. Aug. 30, 1994) and Chen (US
2006/0064144 Al, pub. Mar. 23, 2006). 1'2 We have jurisdiction under 35
U.S.C. § 6(b).
1 The Examiner states that "The 112 rejections have been withdrawn."
Ans. 5.
2 Claim 2 is canceled. The Examiner's inclusion of this claim in the
statement of rejection in the Final Action is a typographical error. Final
Act. 5.
Appeal2014-000803
Application 11/651,861
We REVERSE.
CLAIMED SUBJECT MATTER
The claims are directed to phototherapy lights. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A phototherapy light source having two operational modes,
a first dawn simulator mode; and
a second, bright light therapy mode;
the light comprising:
a light source comprising a plurality of light emitting
diodes of different colours, said plurality of light emitting diodes
being arranged to progressively vary an emitted spectrum oflight
from a first spectrum to a second spectrum, and
a controller coupled to the light source; and
wherein, in said first dawn simulator mode said light
source is controlled to provide variable illumination with a
minimum light intensity of less than 1 lux at 50 centimetres, and
in said second mode said light source is controlled to provide
illumination with a light intensity of at least 1000 lux at 50
centimetres,
said first spectrum has dull red light spectrum, and said
second spectrum has a colour of typical daylight sunshine and
has greater overall intensity than the first spectrum, and wherein
said phototherapy light source is arranged to provide in said first
dawn simulator mode an illumination mode in which light from
said light emitting diodes has substantially no light output below
560nm,
the phototherapy light configured to change a colour of
said illumination in said dawn simulator mode such that the said
illumination is redder at a lower illumination level than at a
higher illumination level.
DISCUSSION
The Examiner determines that the combined teachings of Terman and
Chen disclose or suggest all of the limitations of claim 1. In particular, the
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Appeal2014-000803
Application 11/651,861
Examiner finds that "Terman teaches the light source may include red light
within a light bank to be turned on or intensified to mimic naturalistic color
shifts." Final Act. 6 (citing Terman 17: 18-21) (emphasis omitted). Based
on this finding, the Examiner reasons that Terman is capable of operating in
a red mode. See id. The Examiner further finds that "[t]he red mode, by
definition, would include no light below 620 nanometers as the wavelength
range for red is from 620 to 750 nanometers." Id. at 6-7 (emphasis omitted).
Appellant contends that Terman and Chen do not disclose or suggest
"an illumination mode in which light from the light emitting diodes has
substantially no light output below 560nm." Br. 10-11. Responding to this
argument, the Examiner determines that "Applicant has NOT designed a
system that uses red in an unexpected manner to provide a dawn color shift."
Ans. 6-7. The Examiner further determines that "Terman's system clearly
has the capability to provide any color or combination thereof to achieve a
desired spectral effect." Id. at 7.
Although we agree that Terman discloses a system that is capable of
operating in a mode in which light from its lights "has substantially no light
output below 560 nm" (i.e., no blue light), the Examiner fails to explain why
it would be obvious to operate Terman's system in such a mode. Moreover,
Appellants use of red light alone, without any blue wavelengths, during the
first dawn simulator mode does not mimic natural dawn light, which
includes blue light. See e.g. Spec. i-f 7 (describing dawn simulation using a
white light source, which includes blue spectrum light, and a redder light).
Thus, the Examiner's reasons for the proposed modification lack rational
underpinning.
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Appeal2014-000803
Application 11/651,861
For these reasons, we do not sustain the Examiner's decision rejecting
claim 1, and claims 3---6, which depend therefrom. Claim 7 similarly
requires a first spectrum wherein "no light output below 560nm" is emitted.
See Br. 19. Accordingly, we do not sustain the Examiner's decision
rejecting claim 7, and claims 8-10, which depend therefrom.
DECISION
The Examiner's rejection of claims 1 and 3-10 is REVERSED.
REVERSED
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