Ex Parte Martin et al

Board of Patent Appeals and Interferences

Nov 3, 2011

10653403 (B.P.A.I. Nov. 3, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte TODD MARTIN, MARK STRAUBHAAR and
RONALD W. IGNATIUS
________________

Appeal 2009-011795
Application 10/653,403
Technology Center 3700
________________

Before STEVEN D.A. McCARTHY, KEN B. BARRETT and
EDWARD A. BROWN, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE 1
The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s 2
final decision rejecting claims 1-23, 25, 27-31, 34, 37, 38, 79, 80, 82, 84 and 3
85. The Examiner rejects under 35 U.S.C. § 103(a): claims 1-9, 14, 16, 17, 4

1 The Appellants identify the real party in interest as Quantum Devices,
Inc. of Barneveld, Wisconsin.
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34, 37, 38, 79, 80 and 82 as being unpatentable over Salansky (US 1
6,063,108, issued May 16, 2000), Doiron (US 5,698,866, issued Dec. 16, 2
1997), Nodine (US 5,379,145, issued Jan. 3, 1995) and Kennedy (US 3
6,683,421 B1, issued Jan. 27, 2004); claims 84 and 85 as being unpatentable 4
over Salansky, Doiron, Nodine, Kennedy and Tankovich (US 6,162,211, 5
issued Dec. 19, 2000); and claims 9-13, 15, 18-23, 25, 27-31, 79, 80 and 82 6
as being unpatentable over Doiron, Bruning (US 6,888,529 B2, issued May 7
3, 2005), Nodine and the Examiner’s finding that the Appellants admit it 8
was known to “fabricat[e] heat sinks out of an aluminum alloy” (Ans. 5). 9
Claims 24, 26, 32, 33, 35, 36, 39-78, 81 and 83 are cancelled. We have 10
jurisdiction under 35 U.S.C. § 6(b). 11
We sustain the rejection of claims 84 and 85. We do not sustain the 12
rejection of claims 1-23, 25, 27-31, 34, 37, 38, 79, 80 and 82. 13
Claims 1 and 9 are independent. Claim 1 recites: 14
1. A method of treating at least one of 15
muscle and joint pain, the method comprising: 16
positioning a housing adjacent to at least one 17
of a muscle and a joint of the patient, the housing 18
including a plurality of optoelectronic devices, a 19
temperature sensor, a power source, and a cooling 20
system; 21
sensing a temperature of the plurality of 22
optoelectronic devices; 23
applying a first treatment to the at least one 24
of the muscle and the joint by applying therapeutic 25
radiation emitted by the plurality of optoelectronic 26
devices for predetermined time period at a preset 27
constant energy output, the emitted radiation 28
having a wavelength suitable for the treatment of 29
at least one of muscle and joint pain; 30
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interrupting the therapeutic radiation for a 1
cooling-down period after the predetermined time 2
period has expired; 3
automatically extending the cooling-down 4
period if the sensed temperature exceeds a low set 5
point temperature but is below a high set point 6
temperature, the cooling-down period is extended 7
until the sensed temperature falls below the low set 8
point temperature; 9
applying a second treatment to the at least 10
one of the muscle and the joint after the cooling-11
down period for the predetermined time period and 12
at the preset constant energy output; and 13
dissipating heat produced by the plurality of 14
optoelectronic devices by a cooling system. 15
16
ISSUES 17
Although the Appellants seek to group claim 84 with claim 1 (see 18
App. Br. 15), the rejection of claim 84 is over prior art different from that 19
cited against claim 1. Therefore, we address the patentability of claim 84 20
separately from the patentability of claim 1. Only issues and findings of fact 21
contested by the Appellants have been considered. See Ex Parte Frye, 94 22
USPQ2d 1072, 1075-76 (BPAI 2010). 23
This appeal turns on three issues: 24
First, do the evidence and technical reasoning underlying 25
the rejection of independent claims 1 and 9 adequately support 26
the conclusion that a method including the step of “interrupting 27
the therapeutic radiation for a cooling-down period after the 28
predetermined time period has expired,” as recited in claim 1, 29
or a device including a control circuit configured to “interrupt 30
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the therapeutic radiation for a cooling-down period after the 1
first treatment session,” as recited in claim 9, would have been 2
obvious from the combined teachings of Salansky, Doiron, 3
Nodine and Kennedy? (See App. Br. 10; see also id. 15). 4
Second, do the evidence and technical reasoning 5
underlying the rejection of claims 9, 79 and 80 adequately 6
support the conclusion that a method including the step of 7
“interrupting the therapeutic radiation for a cooling-down 8
period after the predetermined time period has expired,” as 9
recited in claim 1, or a device including a control circuit 10
configured to “interrupt the therapeutic radiation for a cooling-11
down period after the first treatment session,” as recited in 12
claim 9, would have been obvious from the combined teachings 13
of Doiron, Bruning, Nodine and the Examiner’s finding that the 14
Appellants admit it was known to “fabricat[e] heat sinks out of 15
an aluminum alloy?” (See App. Br. 18-19). 16
Third, do the evidence and technical reasoning 17
underlying the rejection of claims 84 and 85 adequately support 18
the conclusion that the subject matter of those claims would 19
have been obvious? (See App. Br. 15-16; Reply Br. 7). 20
21
FINDINGS OF FACT 22
The record supports the following findings of fact (“FF”) by a 23
preponderance of the evidence. 24
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Salansky 1
1. Salansky describes an apparatus for treating a disorder such as 2
muscle or joint pain by stimulating the biological tissue with light having 3
selected optical parameters. (Salansky, col. 5, ll. 20-23 and 38-53). 4
2. Salansky also teaches applying radiation having a wavelength 5
suitable for inducing a particular biological response desirable for treating 6
the disorder. (See, e.g., Salansky, col. 15, ll. 56-65; see also Ans. 7, l. 17 – 7
8, l. 8). 8
3. Salansky’s apparatus includes a wireless probe unit 40 9
containing an optical source for generating and directing a beam of light 10
onto the biological tissue. (Salansky, col. 5, ll. 23-37; see also App. Br. 12). 11
More specifically, the wireless probe unit 40, 70 appears to have a housing. 12
(See Salansky, figs. 9 and 10). The housing includes a plurality of 13
optoelectronic devices, namely, an array 90 of multiple optical diodes 68 14
(Salansky, col. 25, ll. 62-65; see also Ans. 8); a power source, namely, a 15
rechargeable battery B1 (Salansky, fig. 7-1); and a microcontroller and 16
timing circuit 42 (Salansky, col. 23, ll. 5-9). Salansky’s wireless probe 17
appears to be a self-contained, self-powered, hand-held device. (See Ans. 9, 18
ll. 18-22). 19
4. Salansky’s wireless probe 40, 70 activates the optical diodes 68 20
in response to selected protocols stored in a memory of the microcontroller 21
and timing circuit 42. (Salansky, col. 23, ll. 61-65; see also id., col. 21, ll. 22
42-44). Among the parameters predetermined or preset in a protocol are 23
power level and pulse frequency. Selection of a zero pulse frequency places 24
the wireless probe 40, 70 in the continuous wave mode (Salansky, col. 24, ll. 25
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58-62) in which the therapeutic radiation is applied at the preset constant 1
power output (see Salansky, col. 6, ll. 11-22). 2
5. Salansky teaches programming a selected period of operation 3
time into the wireless probe 40, 70. (Salansky, col. 24, ll. 14-17; see also 4
Ans. 10, ll. 18-20). This teaching implies that the wireless probe 40, 70 5
interrupts the therapeutic radiation after a predetermined time period has 6
expired. (See Ans. 10, ll. 18-20). 7
8
Doiron 9
6. Doiron describes a light emitting diode (“LED”) based light 10
delivery system 10 including an LED array driver 11 and a hand piece 12. 11
The hand piece 12 includes a planar LED array light source 13. (Doiron, 12
col. 6, ll. 13-18). Figure 1 of Doiron indicates that the hand piece 13 is 13
portable or movable relative to the LED array driver 11. 14
7. Doiron’s system 10 includes a microprocessor programmed to 15
control exposure time and light dosage. (Doiron, col. 10, ll. 31-35). 16
8. Doiron teaches use of the light delivery system for 17
photodynamic therapy. Photodynamic therapy includes delivery of light to a 18
target tissue. (Doiron, col. 1, ll. 28-35). 19
9. Doiron teaches that the planar LED array light source 13 must 20
be over-driven to produce useful therapeutic power outputs in practical 21
treatment times. The heat generated by over-driving the planar LED array 22
light source 13 must be removed to control the wavelength of the output 23
light and increase the lifetime of the LEDs. This heat may affect the 24
wavelength emitted by the LED array light source 13. (Doiron, col. 16, ll. 25
18-34; see also Ans. 8, ll. 3-7). 26
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10. Consequently, Doiron describes dissipating the heat generated 1
by the LED array light source 13 by means of a heat transfer device such as 2
a finned heat sink 173 mounted in the hand piece 12. (Doiron, col. 14, ll. 3
24-29 and 45-50). 4
5
Nodine 6
11. Nodine describes an optical transmitter including a laser diode 7
30. Nodine states that the device is protected against failure due to operating 8
conditions such as an over-temperature condition capable of precipitating a 9
failure of the laser. (Nodine, col. 1, ll. 59-63). 10
12. More specifically, Nodine’s system includes a thermistor 36 in 11
a thermally coupled relationship with a laser diode 30. (Nodine, col. 3, ll. 12
36-38). 13
13. If the thermistor 36 detects an over-temperature condition at a 14
high set point temperature (60°C in the example), an AND gate 84 cuts off 15
power to the diode 30. (Nodine, col. 5, l. 58 – col. 6, l. 5). If the thermistor 16
36 then detects a temperature drop from the over-temperature condition to at 17
least a low set point temperature (40°C in the example), the AND gate 84 18
restores the power to the diode 30. Nodine describes this mode of operation 19
as providing a hysteresis which ensures safe operation of the transmitter. 20
(Nodine, col. 6, ll. 5-13; see also Ans. 9, ll. 1-3 and App. Br. 12, l. 34 – 13, l. 21
3). 22
23
Kennedy 24
14. Kennedy describes a device for initiating the curing of 25
photoreactive substances such as photocurable polymers. (Kennedy, col. 1, 26
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ll. 41-44). The device includes a base unit 12 and a remote LED array head 1
assembly 14. (Kennedy, col. 2, l. 67 – col. 3, l. 3). 2
15. Kennedy’s device also includes a cooling system 22. More 3
specifically, the remote LED array head assembly 14 includes a liquid 4
cooled cold plate 40 mounted behind an LED array 32 for absorbing heat 5
generated by the LED array 32. (Kennedy, col. 3, ll. 47-50). 6
16. One or more temperature sensors 36 placed in or near the LED 7
array 32 generate and forward temperature data to a controller 18. The 8
controller 18 uses the temperature data to control the cooling system 22 and 9
to terminate the supply of power to the LED array 32 to ensure that the LED 10
array 32 operates within a recommended temperature range. (Kennedy, col. 11
7, ll. 9-14; see also Ans. 8, ll. 7-11). 12
13
Tankovich 14
17. Tankovich describes a technique for heating skin tissue of the 15
papillar area to a temperature high enough to prevent hair growth. 16
(Tankovich, col. 17, ll. 46-49). The method includes illuminating oil-treated 17
skin with a laser. (Tankovich, col. 17, ll. 13-32). 18
18. Tankovich teaches delivering 240 J/cm2 to the skin tissue. 19
Tankovich further teaches that delivering this energy input may cause 20
general damage to the skin tissue. (Tankovich, col. 18, ll. 8-11). 21
19. Tankovich teaches controlling the energy input to the skin 22
tissue by illuminating the skin tissue with 100 ms light pulses. For example, 23
Tankovich teaches allowing the skin at least three minutes to cool down 24
between consecutive 100 ms pulses to keep the temperature of the skin 25
tissue within a safe range. (Tankovich, col. 18, l. 60 – col. 19, l. 5). 26
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Bruning 1
20. Bruning describes the use of arrays 210R, 210G, 210B of red, 2
green and blue LEDs to backlight a liquid crystal display. (Bruning, col. 2, 3
ll. 34-43). 4
21. Bruning also describes drive circuitry for driving the arrays 5
210R, 210G, 210B. The drive circuitry includes a central controller 240 and 6
a temperature sensor 228 which provides a temperature feedback signal to 7
the central controller 240. (Bruning, col. 8, ll. 48-53). 8
22. The central controller 240 controls the maximum level of light 9
output by the arrays 210R, 210G, 210B by controlling the duty cycle of an 10
electronic switch Q1 in communication with the arrays 210R, 210G, 210B. 11
(Bruning, col. 8, ll. 29-39). The central controller 240 adjusts the maximum 12
level of light output by the arrays 210R, 210G, 210B in response to the 13
temperature feedback signal provided by the temperature sensor 228. 14
(Bruning, col. 8, ll. 48-53). 15
16
ANALYSIS 17
First Issue 18
The Appellants contend that claims 1-8, 34, 37, 38, 79 and 80 are 19
patentable over the combined teachings of Salansky, Doiron, Nodine and 20
Kennedy because a method as recited in claim 1 including the steps of: 21
interrupting the therapeutic radiation for a 22
cooling-down period after the predetermined time 23
period has expired; [and] 24
automatically extending the cooling-down 25
period if the sensed temperature exceeds a low set 26
point temperature but is below a high set point 27
temperature, the cooling-down period is extended 28
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until the sensed temperature falls below the low set 1
point temperature. 2
would not have been obvious. Likewise, the Appellants contend that claims 3
9, 14, 16, 17 and 82 are patentable over the combined teachings of Salansky, 4
Doiron, Nodine and Kennedy because a device as recited in claim 9 5
including a control circuit configured to: 6
interrupt the therapeutic radiation for a 7
cooling-down period after the first treatment 8
session; [and] 9
automatically extend the cooling-down 10
period if the sensed temperature exceeds a low set 11
point temperature but is below a high set point 12
temperature, the cooling-down period is extended 13
until the sensed temperature falls below the low set 14
point temperature. 15
would not have been obvious. (See App. Br. 10; see also id. 15). 16
The Examiner finds that Salansky teaches interrupting therapeutic 17
radiation after a predetermined time has expired. (See Ans. 10, citing 18
Salansky, col. 24, ll. 14-17). The Examiner interprets the term “cooling-19
down period” as being sufficiently broad to encompass the time between the 20
interruption of one illuminative treatment and the start of the next treatment. 21
(See Ans. 3 (“the time between treatments is a cool down period”)). 22
The Appellants do not appear to formally define the term “cooling-23
down period” in the Specification. Nevertheless, the step of “automatically 24
extending the cooling-down period . . .” implies that the cooling-down 25
period has an endpoint independent of whether the sensed temperature 26
exceeds the low set point temperature. Without such an endpoint, it would 27
be incongruous to say that one must “extend” the cooling-down period when 28
it is determined that the sensed temperature exceeds low set point 29
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temperature. The endpoint of the cooling-down period need not be 1
predetermined in the sense that the time period of the treatment is a 2
“predetermined time period.” Neither can the endpoint be illusory, 3
dependent solely on the whim of the user. This interpretation is not 4
inconsistent with the Specification, which discloses an example of a cooling-5
down period of about eighty-eight seconds. (See Spec. 16, ll. 3-5). The 6
Examiner points to nothing in the Specification which might imply a broader 7
usage of the term “cooling-down period.” 8
The Examiner’s interpretation of the term “cooling-down period” as 9
being sufficiently broad to encompass any amount of time which may pass 10
between the interruption of one illuminative treatment and the start of the 11
next treatment is unreasonably broad. The Examiner has not provided a 12
persuasive reason for concluding that a method including the step of 13
“interrupting the therapeutic radiation for a cooling-down period after the 14
predetermined time period has expired,” properly construed, or a device 15
including a control circuit configured for the performance of the similar step 16
recited in claim 9, properly construed, would have been obvious. Neither 17
Salansky nor Doiron, which disclose therapeutic treatments including 18
illumination of the skin, describes a fixed time period between the 19
interruption of one illuminative treatment and the start of the next treatment. 20
(See, e.g., FF 1, 4, 5, 7 and 8). The only criteria suggested by Salansky, 21
Doiron, Nodine or Kennedy for determining how long one might wait 22
between one LED illumination and another relates to the time required for 23
the LEDs to cool below a set point temperature. (See, e.g., FF 4, 5, 7, 13 and 24
16). 25
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The Examiner has not articulated a persuasive reason why one of 1
ordinary skill in the art might have interrupted the therapeutic radiation 2
between treatments for a cooling-down period that has an endpoint 3
independent of whether the sensed temperature exceeded the low set point 4
temperature. We do not sustain the rejection of claims 1-9, 14, 16, 17, 34, 5
37, 38, 79, 80 and 82 under § 103(a) as being unpatentable over Salansky, 6
Doiron, Nodine and Kennedy. 7
8
Second Issue 9
The Examiner has not provided a persuasive reason for concluding 10
that a method including the step of “interrupting the therapeutic radiation for 11
a cooling-down period after the predetermined time period has expired,” 12
properly construed, or a device including a control circuit configured for the 13
performance of the similar step recited in claim 9, properly construed, would 14
have been obvious from the teachings of Doiron, Bruning and Nodine. The 15
only criteria suggested by Doiron, Bruning or Nodine for determining how 16
long one might wait between one LED illumination and another relates to 17
the time required for the LEDs to cool below a low set point temperature. 18
(See, e.g., FF 7, 13 and 22). The Examiner’s additional finding addresses 19
only the material used to fabricate the heat sink and not the method of 20
treatment or the configuration of a control circuit. (See Ans. 5). 21
A device including all of the limitations of claim 9 would not have 22
been obvious. We do not sustain the rejection of claims 9-13, 15, 18-23, 25, 23
27-31 and 82 under § 103(a) as being unpatentable over Doiron, Bruning, 24
Nodine and the Examiner’s finding that the Appellants admit it was known 25
to “fabricat[e] heat sinks out of an aluminum alloy.” The Examiner does not 26
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even posit that the subject matter of independent claim 1, from which claim 1
9 depends, would have been obvious from the combined teachings of 2
Doiron, Bruning, Nodine and the Examiner’s additional finding. We do not 3
sustain the rejection of dependent claims 79 and 80 under § 103(a) as being 4
unpatentable over Doiron, Bruning, Nodine and the Examiner’s finding that 5
the Appellants admit it was known to “fabricat[e] heat sinks out of an 6
aluminum alloy.” 7
8
Third Issue 9
Tankovich teaches that illuminating the skin may cause general 10
damage to the skin due to overheating. (See FF 18). Tankovich teaches 11
allowing the skin at least three minutes to cool down between consecutive 12
treatment sessions to keep the temperature of the skin tissue within a safe 13
range while undergoing treatment by Tankovich’s technique. (FF 19). 14
The Appellants do not appear to dispute that one of ordinary skill in 15
the art familiar with the teachings of Salansky, Doiron, Nodine, Kennedy 16
and Tankovich would have understood that prolonged illumination might 17
have resulted in overheating of the skin. (See, e.g., App. Br. 15-16; Reply 18
Br. 7). The one of ordinary skill in the art would have had reason to address 19
this problem by interrupting, that is, shutting off, the therapeutic radiation 20
for a period of time sufficient to allow the skin to cool to within a safe range. 21
Although the technique described by Tankovich differs from the light 22
stimulation treatment provided by Salansky’s apparatus (compare FF 1 with 23
FF 17), the Appellants do not appear to dispute that one of ordinary skill in 24
the art familiar with the teachings of Salansky, Doiron, Nodine, Kennedy 25
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and Tankovich would have had reason to allow a period of three minutes 1
(180 seconds) for the skin to cool between treatments. 2
The Examiner correctly concludes that the term “cooling-down 3
period” as used in claims 1 and 9, and incorporated into claims 84 and 85, is 4
sufficiently broad to include a time period sufficient to allow the skin to cool 5
after a treatment. (See Ans. 10, ll. 12-18). The time period would have an 6
endpoint independent of whether the sensed temperature exceeds the low set 7
point temperature, namely, the expiration of an amount of time during which 8
the skin is likely to cool to a desired degree. Furthermore, one could fairly 9
characterize the time period sufficient to allow the skin to cool after a 10
treatment as a “cooling-down period,” since the plurality of optoelectric 11
devices by which the skin is illuminated would cool simultaneously with the 12
cooling of the skin during the period. (See Office Action mailed July 8, 13
2008 [“Final Rejection”] at 3, l. 18 – 4, l. 1; cf. App. Br. 16 (contrary 14
argument by the Appellants)). 15
The Appellants contend that the Examiner has not articulated 16
reasoning with some rational underpinning sufficient to explain why it 17
would have been obvious to combine the references in the fashion claimed. 18
(See App. Br. 10-13). Salansky describes a method and apparatus for 19
treating at least one of joint or muscle pain. (FF 1 and 2). Salansky’s 20
method and apparatus uses optoelectronic devices, namely, LEDs, to apply 21
therapeutic radiation to the skin. (See FF 1 and 4). Salansky teaches 22
applying the therapeutic radiation for a predetermined time period at a preset 23
constant energy output. (FF 4 and 5). 24
In addition, Salansky teaches the criticality of applying therapeutic 25
radiation of a correct wavelength in order to generate a desired healing 26
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response in the tissue. (See FF 2). Doiron teaches that over-heating may 1
affect the wavelengths emitted by LEDs. (FF 9). These teachings would 2
have suggested a need to control the temperature of the LEDs used to 3
illuminate the skin. (See Ans. 8, ll. 2-7). 4
Nodine addresses a problem with which both the Appellants and 5
Doiron were involved, namely, the problem of dissipating sufficient heat 6
from diode light sources. (See FF 11; see also FF 9-10; cf. Spec. 15, ll. 13-7
16 (stating that the cooling-down period can be increased if not enough heat 8
has been dissipated from the LEDs)). Nodine addresses this problem by 9
providing a thermistor 36 and an AND gate 84 which cooperate to cut off 10
power to the diodes when the temperature of the diodes is above a high set 11
point temperature and to withhold power until the temperature of the diodes 12
is below a low set point temperature. (FF 13). The combined teachings of 13
Salansky, Doiron and Nodine would have suggested controlling the 14
temperature of the LEDs of Salansky’s apparatus by providing a mechanism 15
to cut off power to the LEDs when the temperature of the LEDs exceeded a 16
high set point temperature; and to continue any interruption of the power to 17
the LEDs so long as the temperature of the LEDs exceeded a low set point 18
temperature. 19
Furthermore, it would have been obvious to improve Salansky’s 20
apparatus by both interrupting the power to the LEDs for a cooling-down 21
period after a treatment session as suggested by Tankovich and extending 22
any interruption of the power to the LEDs so long as the temperature of the 23
LEDs exceeded a low set point temperature as suggested by Nodine. The 24
two improvements would have addressed separate problems, namely, 25
protecting the skin and the LEDs from overheating. The combination of the 26
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two improvements would have done no more than arrange old elements with 1
each performing the function it had been known to perform. The 2
combination would have yielded no more than one might have expected 3
from each of the two improvements individually. Therefore, it would have 4
been obvious to combine the two improvements in one apparatus. See KSR 5
Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007)(citing Sakraida v. Ag 6
Pro, Inc., 425 U.S. 273, 282 (1976)). (See also Ans. 6, l. 22 – 7, l. 6). 7
Turning primarily to claim 85, Salansky teaches a self-contained, self-8
powered, hand-held device for treating at least one of muscle and joint pain. 9
(FF 1 and 3). (See Ans. 10, ll. 18-20; cf. App. Br. 14 (arguing to the 10
contrary)). The modification proposed by the Examiner would not have 11
disturbed this feature. Nodine teaches cutting off power to the laser diodes 12
when the temperature of the diodes is above a high set point temperature and 13
withholding the power until the temperature of the diodes is below a low set 14
point temperature. (FF 13). Since Salansky describes a self-contained 15
device (FF 3), it would have been obvious to measure the temperature of the 16
diodes from within the housing. (See Reply Br. 7 (arguing to the contrary)). 17
The apparatuses described by Salansky and Doiron each include 18
control circuits in the form of microprocessors. (FF 3 and 7). Tankovich 19
itself does not describe a microprocessor configured to interrupt the power to 20
the LEDs for a cooling-down period after a treatment session and to extend 21
any interruption of the power to the LEDs so long as the temperature of the 22
LEDs exceeded a low set point temperature. (See App. Br. 16). 23
Nevertheless, it would have been obvious as a matter of common sense to 24
automate these steps by programming the microprocessor taught by 25
Salansky and Doiron to implement the steps. See Perfect Web Techs. v. 26
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InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009)(the Examiner’s use of 1
common sense does not require a specific hint or suggestion in a particular 2
reference). (See Final Rejection 3, ll. 10-15). 3
We sustain the rejection of claims 84 and 85 under § 103(a) as being 4
unpatentable over Salansky, Doiron, Nodine, Kennedy and Tankovich. 5
6
DECISION 7
We AFFIRM the Examiner’s decision rejecting claims 84 and 85. 8
We REVERSE the Examiner’s decision rejecting claims 1-23, 25, 27-9
31, 34, 37, 38, 79, 80 and 82. 10
11
AFFIRMED-IN-PART 12
13
14
Klh 15