Appeal No. 2005-1117
Application 10/078,043
includes wavelengths of from about 190 nm to about 1200 nm, said broad-spectrum
electromagnetic radiation having an intensity sufficient to achieve meaningful suppression in
said growth potential of said pathogen in-vivo and wherein at least part of said apparatus is
adapted for placement proximate to the in-vivo location of said pathogen, wherein said in-vivo
location of said pathogen is a plant or plant parts thereof.
10. A method for achieving the meaningful suppression of the growth potential of a
pathogen in a living organism comprising applying a broad-spectrum electromagnetic radiation
from an apparatus according to Claim 11 to said living organism at the locus of said pathogen in
said living organism.
11. An apparatus for treatment of acute otitis media in an animal comprising an
electromagnetic radiation source capable of providing broad-spectrum electromagnetic radiation,
wherein said broad-spectrum electromagnetic radiation has wavelengths of from about 190 nm to
about 1200 nm, said broad-spectrum electromagnetic radiation having an intensity sufficient to
achieve meaningful suppression in acute otitis media while minimizing erythema on the
tympanic membrane of said animal; wherein at least part of said apparatus is adapted for
placement proximate to said tympanic membrane of said animal.
The references relied on by the examiner are:
Talmore et al. (Talmore) 5,344,433 Sep. 6, 1994
Eckhouse 5,720,772 Feb. 24, 1998
The examiner has rejected appealed claims 1 through 13 under 35 U.S.C. § 102(b) as
anticipated by Eckhouse, and appealed claim 10 under 35 U.S.C. § 103(a) as being unpatentable
over Eckhouse in view of Talmore.2
Appellants state that the appealed claims “stand or fall together” but argue the
patentability of claims 1, 10 and 11 (brief, e.g., pages 2, 3, 4 and 7). Thus, we decide this appeal
based on appealed claims 1 and 11 as representative of the first ground of rejection, and on
appealed claim 10 with respect to the second ground of rejection. 37 CFR § 1.192(c)(7) (2003);
see also 37 CFR § 41.37(c)(1)(vii) (effective September 13, 2004; 69 Fed. Reg. 49960 (August
12, 2004); 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)).
We affirm.
Rather than reiterate the respective positions advanced by the examiner and appellants,
we refer to the answer and to the brief for a complete exposition thereof.
Opinion
2 The examiner states in the answer (page 3) that the grounds of rejection are stated in the Office
action mailed December 30, 2003 (see pages 2-4).
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