Ex Parte Nicholson

Patent Trial and Appeal Board

Dec 17, 2018

14878109 (P.T.A.B. Dec. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/878,109
62439 7590
SINORICA, LLC
20251 Century Blvd.
Suite 140
FILING DATE
10/08/2015
12/19/2018
Germantown, MD 20874
FIRST NAMED INVENTOR
Kenneth Evan Nicholson
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.
TUP25848 3102
EXAMINER
HOUGH, JESSANDRA F
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
12/19/2018 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):
SINORICA@GMAIL.COM
sinorica@outlook.com
pair@sinorica.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KENNETH EV AN NICHOLSON
Appeal2017-011347
Application 14/878, 109
Technology Center 3700
Before JEFFREY N. FREDMAN, DEBORAH KATZ, and JOHN G. NEW,
Administrative Patent Judges.
KATZ, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-011347
Application 14/878, 109
Appellant1 seeks our review, under 35 U.S.C. § I34(a), of the
Examiner's decision to reject claims 1-3, 6-9, 12, and 13 (Appeal Brief filed
May 1, 2017 ("App. Br.") 10.) Claims 4, 5, 10, 11, 14, and 15 were also
finally rejected, but were not appealed. (See Appeal Br. 2-3, 9.)
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
35 U.S.C. § l l 2(a)
The Examiner rejects Appellant's claims 1-15 under 35 U.S.C.
§ 112(a) as failing to comply with the written description requirement.
(Final Office Action mailed November 30, 2016 ("Final Act.") 2.) Because
Appellant does not argue that the rejection was made in error, we summarily
affirm the rejection. See 37 C.F.R. § 4I.37(c)(iv) ("The arguments shall
explain why the examiner erred as to each ground of rejection contested by
appellant. ... any arguments or authorities not included in the appeal brief
will be refused consideration by the Board for purposes of the present
appeal.").
35 u.s.c. § 103
The Examiner rejects claims 1-3 under 35 U.S.C. § 103 as being
rendered obvious by Tucek2 and Haase. 3 (Final Act. 3---6.)
The Examiner also rejects claims 6-9, 12, and 13 under 35 U.S.C.
§ 103 as being rendered obvious by Tucek, Haase, and Glegyak. 4 (Final
Act. 9-10.)
1 Appellant reports that the real party in interest is Kenneth Evan Nicholson.
2 Tucek, US 7,341,597 B2; issued March 11, 2008
3 Haase et al., US 8,092,506 B2; issued January 10, 2012
4 Glegyak et al., US 6,280,461 Bl; issued August 28, 2001
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Application 14/878, 109
Appellant argues independent claims 1, 7, and 12 together. Appellant
does not present separate arguments for the patentability of claims 2-3, 6, 8,
9, and 13 under 35 U.S.C. § 103. In addition, Appellant does not raise any
arguments against the separate rejections of claims 4, 5, 10, 11, 14, and 15 as
being obvious over Tucek, Haase, and other prior art. (See Final Act. 8 and
10-12.) We focus on claim 1 in our review. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
Appellant's Specification provides a system including a fluid reservoir
for submerging a user's hands or feet in saltwater and an electrode assembly
located in the fluid reservoir for providing an electrical current through the
user's body. (See Specification ("Spec.") 2:22-30; 3:17-24.) The electrode
assembly is electrically connected to an enclosure containing a switching
power supply, a control unit, and an electrical relay set. (Spec. 2:22-26;
3:4--22.)
Appellant's claim 1 recites:
1. An electron flow detoxification system comprising:
a fluid reservoir;
a switching power supply;
a control unit;
an enclosure;
an electrode assembly;
an electrical relay set;
a quantity of saltwater;
the quantity of saltwater being positioned within the fluid
reserv01r;
the electrode assembly being submerged within the
quantity of saltwater;
the switching power supply, the control unit and the
electrical relay set being positioned within the enclosure;
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Application 14/878, 109
the control unit being electrically connected to the
switching power supply;
the control unit and the switching power supply being
electrically connected to the electrode assembly through the
electrical relay set;
the electrode assembly comprising a pair of support
members, a pair of electrodes and a pair of protective guard
members;
the pair of support members being oriented parallel to
each other;
the pair of protective guard members and the pair of
electrodes being connected in between the pair of support
members;
the pair of electrodes being positioned in between the
pair of protective guard members;
the pair of protective guard members being oriented
parallel to the pair of electrodes;
the pair of protective guard members and the pair of
electrodes being oriented normal to the pair of support
members;
each of the pair of protective guard members having two
guard ends respectively mounted on the pair of support
members;
each of the pair of electrodes having two electrode ends
respectively mounted on the pair of support members; and
each of the pair of support members being mounted onto
an inner bottom of the fluid reservoir.
(App. Br. 15-16, Claims App'x.)
The Examiner finds that Tucek teaches an electron flow detoxification
system including a fluid reservoir containing a quantity of saltwater and an
electrode assembly submerged within the quantity of saltwater. (See Final
Act. 3, citing Tucek Fig. 6, col. 2, 11. 24--26; col. 5, 11. 5-7, 30-32.) The
Examiner further finds Tucek teaches an enclosure including a control unit,
a switching power supply, and an electrical relay set connected to the
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electrode assembly. (Id., citing Tucek, Fig. 6, col. 2, 11. 22-23; col. 3, 11. 16-
19, 46-48, 58---66; col. 4, 11. 4--5, 29-31.) The Examiner finds that Tucek
does not teach the claimed electrode assembly. (Id. 3--4.)
The Examiner finds that Haase teaches the electrode assembly as
claimed, including a pair of parallel support members, a pair of electrodes,
and a pair of protective guard members. (Final Act. 4--5, citing Haase Fig.
1.) The Examiner determines that it would have been obvious to one of
ordinary skill in the art to modify Tucek with the electrode assembly of
Haase in order to provide a support stand for easier use of the bath. (Id. 5---6,
citing Haase col. 2, 11. 13-19.)
Appellant argues that the invention requires an "electrical relay set"
that reverses the electrical current flow direction through a user's body.
(App. Br. 11.) Appellant argues that Tucek does not disclose that the control
box 50 has any electrical relay set for reversing an electrical current flow
direction. (Id. 12.) Instead, Appellant argues that Tucek discloses a control
box 50 with a timer, a switch for reversing which electrode the power is
applied to, a switch for varying the amount of power, and an on/off switch.
(Id.)
We are not persuaded by Appellant's arguments. We first examine
the broadest reasonable interpretation of the claim language, particularly the
"electrical relay set" as highlighted by Appellant. The claim recites an
"electrical relay set" that is required to connect the control unit and the
switching power supply to the electrode assembly. Although Appellant
directs us to the Specification for an interpretation of "electrical relay set"
that reverses electrical current flow direction, Appellant does not direct us to
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Application 14/878, 109
any express disclaimer or a definition that requires this function. (See App.
Br. 11.) "Absent claim language carrying a narrow meaning, the PTO
should only limit the claim based on the specification or prosecution history
when those sources expressly disclaim the broader definition." In re Bigio,
381 F.3d 1320, 1325 (Fed. Cir. 2004). Accordingly, we do not import
limitations, such as the specific function of reversing current flow for the
claimed "electrical relay set," from the specification into the plain meaning
of the claim. See E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369
(Fed. Cir. 2003).
The Examiner states that "an electrical relay as known in the art is a
set of switches which allows current to switch direction by opening and
closing circuits in order to control the direction." (Ans. 12-13.) The
Specification supports the Examiner's finding because it provides that "[t]he
electrical relay set 9 may be utilized in order to reverse the electrical current
flow direction and prevent the user's pores from clogging." (Spec. 6:3--4
(emphasis added).) Thus, we find the Examiner's finding to be reasonable
and consistent with the Specification, and we adopt this interpretation as the
broadest reasonable interpretation. We therefore conclude that the claims do
not necessarily require an electric relay set "used to reverse an electrical
current flow direction through a [user's] body," as Appellant argues. (App.
Br. 11.)
Having agreed with the Examiner's interpretation of "electrical relay
set," we tum to whether Tucek teaches an electrical relay set that meets the
claimed element. The Examiner finds that Tucek teaches a system which
allows the current to change hence qualifying as an electrical relay set. (See
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Ans. 3 and 13, citing Tucek col. 3, 11. 13-15, 58---60, 62---66; col. 4, 11. 4--5,
29-31.) Here, Tucek teaches a control box that includes circuitry for setting
various parameters of therapy, including duration, mode and intensity.
(Tucek col. 3, 11. 13-15, 58-66.) The parameter control circuitry includes a
switch for reversing the electrode to which power is applied and a switch for
varying the amount of power delivered. (Id.) Tucek further teaches that
"the timers and switches are electrical components known in the art, as
individual components or in integrated circuits." (Id. col. 4, 11. 4--7.) We
find that the circuitry of Tucek provides the structure of an electrical relay in
view of the broadest reasonable interpretation of the claim element.
Therefore, Appellant does not persuade us that the Examiner erred in finding
an electrical relay set in Tucek.
Appellant argues that, like Tucek, Glegyak does not teach an
"electrical relay set" that reverses the electrical current flow direction. See
App. Br. 13. However, as we have explained above, the claims are not
limited as Appellant argues, and we are therefore not persuaded by this
argument.
Appellants do not provide other arguments against the rejections of
independent claims 1, 7, and 12, or dependent claims 2, 3, 6, 8, 9, and 13.
(See App. Br. 11-14.) Accordingly, we are not persuaded that the Examiner
erred in rejecting these claims as being obvious over Tucek, and Haase, or
Tucek, Haase and Glegyak.
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Conclusion
Upon consideration of the record and the reasons given, the rejections
of claims 1-15 are sustained.
Therefore, we affirm the decision of the Examiner.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6.
AFFIRMED
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