Ex Parte Toftness

Board of Patent Appeals and Interferences

May 13, 2008

10347840 (B.P.A.I. May. 13, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID R. TOFTNESS
____________

Appeal 2008-1512
Application 10/347,840
Technology Center 3700
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Decided: May 13, 2008
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Before TONI R. SCHEINER, DEMETRA J. MILLS, and
LORA M. GREEN, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims. We have jurisdiction under 35 U.S.C.
§ 6(b). Claim 1 is representative of the claims on appeal, and reads as
follows:
Appeal 2008-1512
Application 10/347,840

1. A method for assessing the condition of a musculoskeletal structure of
a mammal, the method comprising the steps:
(a) providing a hand-held magnetometer; and
(b) detecting values of magnetic field along the musculoskeletal
structure of the mammal.

The Examiner relies on the following references:
I.N. Toftness, “New device detects microwave emissions in biological
systems,” 36 J. Wis. Chiro. Assoc. 10-11 (1982).

Walker Scientific “Fluxgate Magnetometers” February 19, 1999
http://web.archive.org/web/19990219170515/www.walkerscientific.com/Ma
gnetometers/Flux...gatemagnetometer,html

John Zhang, MD, PhD et al., “Comparison of a triaxial fluxgate
magnetometer and Toftness sensometer for body surface EMF
measurement,” 48(4) J Can chiropr Assoc.; 273-281 (2004).

We reverse.

DISCUSSION
Claims 1-12 stand rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Toftness and Walker Scientific.
Toftness is relied upon for teaching “that the human body emits
increased electromagnetic fields (EMF) or ‘biological microwaves’ at areas
of stress along the spine, which were reduced after Toftness performed an
adjustment.” (Ans. 3.) The Examiner notes that “Toftness fails to disclose
the use of a hand held magnetometer to measure the EMF.” (Id.)
Walker Scientific is relied upon for teaching “the use of a hand held
magnetometer, which is rugged, accurate, highly sensitive and portable
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(page 1, paragraph 1) for the measurement of electromagnetic fields.” (Id. at
3-4.)
The Examiner concludes that it “would have been obvious to one of
ordinary skill in the art to combine the teaching of use of a hand held
magnetometer, as taught by [Walker Scientific], to a method for treating
increased human EMF along the spine as per Toftness, because the Walker
magnetometer is rugged, accurate highly sensitive and portable.” (Id. at 4.)
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532, (Fed.
Cir. 1993) (citations omitted). In order to determine whether a prima facie
case of obviousness has been established, we considered the factors set forth
in Graham v. John Deere Co., 383 U.S. 1, 17 (1996): (1) the scope and
content of the prior art; (2) the differences between the prior art and the
claims at issue; (3) the level of ordinary skill in the relevant art; and (4)
objective evidence of nonobviousness, if present.
Appellant argues that the “term ‘human electromagnetic fields’ in the
Toftness reference . . . clearly refers to microwaves, and not to the magnetic
field of the present invention.” (App. Br. 10.) Appellant also relies on the
Declaration of Dr. Walter X. Balcavage, submitted under 37 C.F.R. § 1.132,
in which Dr. Balcavage “personally tested the [Walker Scientific] hand held
magnetometer and determined that the device is inoperable for detecting
microwave radiation.” (App. Br. 11.) According to Appellant,
A magnetic field is measured in nanotesla (nT), microtessla
(mT) or milligauss (mG). Microwave radiation and a magnetic
field are two completely different phenomena. Webster’s
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Application 10/347,840

Dictionary defines “magnetic field” as “a physical field that
arises from an electric charge in motion, producing a force on a
moving electric charge.” Webster’s Dictionary also defines
“microwave radiation” as “that part of the electromagnetic
spectrum associated with the larger infrared waves and the
shorter radio waves: used for radar, communications, etc. and
generally regarded as from 300,000 to 300 megahertz.”

(App. Br. 11.)
Thus, Appellant asserts, Toftness “does not disclose, teach, or suggest
the step of detecting values of magnetic field along the musculoskeletal
structure of the mammal.” (Id.) Appellant asserts that “one of ordinary skill
in the art would not attempt to detect the ‘biological microwaves,’
‘microwave emissions,’ ‘microwave radiation,’ and ‘microwaves,’ recited in
the Toftness reference . . ., due to the [Walker Scientific magnetometer]
being inoperable for detecting microwave radiation.” (Id.)
The Examiner responds that Toftness
clearly states “human electromagnetic fields” and the Walker
device measures EMF (which is not in question). As intrinsic
evidence that Electromagnetic fields does actually mean EMF
(Electromagnetic field) in the Toftness . . ., Zhang et al.
“Comparison of a triaxial fluxgate magnetometer and Toftness
sensometer for body surface EMF measurement” states that the
Toftness sensometer was “. . . originally thought to detect EMF
radiation from body surfaces.. .” (pg 275,2nd column). Thus
one of ordinary skill in the art has interpreted “human
electromagnetic fields” as human electromagnetic fields.

(Ans. 4.)
As to the Declaration, the Examiner asserts that the “facts presented
are not germane to the rejection at issue, i.e., whether Toftness discloses
measuring human EMFs; not whether the Magnetometer is inoperable for
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detecting microwave radiation.” (Final Rejection mailed August 21, 2006,
p. 2.) According to the Examiner, although Toftness only provides a brief
mention of human electromagnetic fields, “it is a disclosure, therefore, while
it may be ‘inoperable’ (though the declarant admits that the magnetometer
displays ‘little’ response to varying EMFs), for detecting microwaves, one of
ordinary skill in the art, e.g., a chiropractor, would find the combination of
the Fluxgate Magnetometer to detect human EMF as disclosed by Toftness
as obvious when viewing the cited references.” (Id.)
We conclude that Appellant has the better argument. Claim 1 (as well
as the other independent claims on appeal) requires the steps of providing a
hand-held magnetometer and using the hand-held magnetometer to detect
values of magnetic field along the musculoskeletal structure of the mammal.
The Specification notes that the magnetic measurements may be obtained
using the Walker Scientific Fluxgate Magnetometer (Spec. 7), such as one
with a resolution of 1 nT in a 100,000 nT field (Spec. 10). Thus, the
Specification defines the magnetic field as one that can be measured in
nanotesla (nT), microtessla (mT) or milligauss (mG), such as by the Walker
Scientific Fluxgate Magnetometer.
Toftness teaches that:
Instrumentation originally developed for satellite
communications and radio astronomy is now being used to
monitor human electromagnetic fields. It detects ‘biological
microwaves’ that may help explain some paradoxical aspects of
unconventional healing.

(Toftness, p. 11, ¶ 1.)

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Toftness goes on to explain:
A microwave radiometer is the heart of this system. This
extremely sensitive electronic device measures minute changes
in microwave levels.
The measurement technique is based on the physics of
block body radiation. All objects at temperatures greater than
absolute zero radiate energy measurable at microwave
frequencies.

(Id. at ¶¶ 5 and 6.)
It is clear from the above excerpts from Toftness that the reference to
“human electromagnetic fields” is to changes in microwave levels only, and
is not used by the reference to include all types “human electromagnetic
fields.” As noted in the Declaration, the Walker Scientific hand held
magnetometer is inoperable for detecting microwave radiation, a point
which the Examiner does not dispute. Thus, when read in context, the
ordinary artisan would have not used the hand held magnetometer of Walker
Scientific to measure the changes in microwave radiation, the human
magnetic fields referred to in the Toftness reference, due to the inability of
the instrument to detect changes in microwave fields. Thus, the Examiner
has failed to set forth a prima facie case of obviousness, and we are
compelled to reverse the rejection.

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CONCLUSION
In summary, we find that the Examiner has not set forth a prima facie
case of obviousness, and the rejection of claims 1-12 under 35 U.S.C. §
103(a) as being obvious over the combination of Toftness and Walker
Scientific, is reversed.

REVERSED

Ssc:

TIPTON L. RANDALL
19371 55TH AVENUE
CHIPPEWA FALLS, WI 54729
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