DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to 37 CFR 1.105 Rule
Examiner acknowledges and appreciates Applicant’s response and information provided (see Applicant Response to Rule 105 Communication dated 09/19/2024) in response to information requested under 37 CFR 1.105 that the examiner has determined is reasonably necessary to the examination of this application i.e. support and effective benefit date for limitations found in each of claims in claims dated 07/22/2021.
Restriction/Election
Applicant’s election without traverse of claims 1-14 designated Group I in the reply filed on 08/28/2014 is acknowledged.
Claim 15-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/28/2014.
Specification
The disclosure is objected to because of the following informalities:
“…Binaural beats have been used in to entrain brainwaves…” in para.[0005] needs to be corrected. A suggested correction is --Binaural beats have been used [[in]] to entrain brainwaves--.
“Aacclimatization to binaural beats can be avoided…” in para. [0041] needs to be corrected. A suggested correction is –[[Aacclimatization]] Acclimatization to binaural beats can be avoided--
Appropriate correction is required.
Claim Objections
Following claims are objected to because of the following informalities:
Claims 2, 6, 7, include numerous acronyms/abbreviations. At least first occurrence of each acronym should be spelled out in full.
Claim 1 “A method of inducing a target mental state in a person comprising: administering a first progression … administering a second progression …a time-weighted average of the second progression” needs to be corrected. A suggested correction is as follows to avoid any potential 35 U.S.C 101 subject-matter ineligibility issues that may arise under MPEP Patent Subject Matter Eligibility sections 2106.04(a) , 2106.04(d), 2106.05 i.e. claim as recited lends itself as a whole to a broad yet reasonable interpretation under MPEP 2111 as reciting a judicial exception when claim limitations individually and in combination are deemed as reciting for example abstract idea without reciting additional elements that integrate the judicial exception into a practical application of the judicial exception with the additional elements also not amounting to significant more than the judicial exception.
Claim 1 (Proposed Amendment) A method of inducing a target mental state in a person comprising:
one or more audio speakers;
a computer having a processor, memory, a user interface, and software programmed to:
administering, by the processor via one of the speakers, first progression of binaural beat frequencies within a first range to the person during a first duration;
administering, by the processor via another of the speakers, a second progression of binaural beat frequencies within a second range to the person during a second duration after the first duration; and
wherein a time-weighted average of the first progression is greater than a time-weighted average of the second progression.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(B) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1-14 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
Claim 1 recites “progression of binaural beat frequencies” which renders this claim unclear. More specifically, it is unclear as to what is meant by “progression of binaural beat frequencies” in the context used. It is unclear to what the binaural beat are progressing from (initial state) and what the binaural beat are progressing towards (final/target state). It is unclear as to whether the progression is consistently and repetitive over time i.e. a predictable sequence, or whether progression varies within the respective duration of time.
Claim 1 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential steps, such omission amounting to a gap between the steps. See MPEP § 2172.01. The omitted step is that the binaural beats are applied irregularly and in varying and unpredictable manner as evidenced in instant specification as-filed [0015] “binaural beats are applied irregularly…. Binaural beats having frequencies that are not consistent or do not change at an easily predictable rate engage the person, prevent the person from becoming acclimatized to the binaural beats, and therefore, have an increased effectiveness over the course of one or more treatments) and which is also disclosed and detailed as an essential step instant specification as-filed abstract “Systems and methods for applying binaural beats to a person are disclosed in a way to prevent the listener from becoming acclimatized to the binaural beats. The system administers varying binaural beat frequencies according to varying progressions of binaural beats from a base binaural beat to a target binaural beat in an irregular manner”, [0041] “Aclimatization to binaural beats can be avoided by varying the frequency of binaural beats to keep an entity receiving the binaural beats engaged (e.g. an animal such as a person). Such binaural beats maintain the ability to entrain the person's brainwaves each time they are administered to the person, from a base frequency associated with a base mental state to a target frequency associated with a target mental state”, [0043] “administered binaural beat frequencies …are applied in an irregular manner to prevent the person from building a resistance to the brainwave training”, [0049] “way the frequencies vary within the respective ranges can be pre-determined, can be random or pseudo random, or can be established as a function of one or more body or ambient conditions”. Consequently, claim 1 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential steps, such omission amounting to a gap between the steps. Dependent claims 2-6, 8-14 when analyzed as a whole are held to be patent ineligible under 35 U.S.C. 112(b) because the additional recited limitations fail to cure the 35 U.S.C. 112(b) issue in their respective base claims. Consequently, dependent claims 2-6, 8-14 are also rejected under 35 U.S.C. 112(b) based on their direct/indirect dependency on their respective base claims.
Claim 1 recites “A method of inducing a target mental state in a person comprising...administering a first progression of binaural beat frequencies…administering a second progression of binaural beat frequencies” which renders this claim unclear. First, examiners notes that a broad yet reasonable interpretation of “binaural beat frequencies” would encompass frequencies that fall within audible range of 150 Hz to 20 kHz. When so interpreted, it is unclear as how binaural beat frequencies” that fall within audible range of 150 Hz to 20 kHz can induce/entrain a target mental state in a person since as disclosed in at least instant application specification as-filed at least [0038], in order for a method to inducing a target mental state in a person, frequency of the binaural beat need to be below 20 Hz within ranges as also detailed in table 1 instant application specification as-filed. Dependent claims 3-7 and 9-14 when analyzed as a whole are held to be patent ineligible under 35 U.S.C. 112(b) because the additional recited limitations fail to cure the 35 U.S.C. 112(b) issue in their respective base claims. Consequently, dependent claims 3-7 and 9-14 are also rejected under 35 U.S.C. 112(b) based on their direct/indirect dependency on their respective base claims.
Claim 13 recites “non-binaural stimulus is applied as a function of the concurrently-administered binaural beat frequency” which renders this claim unclear. More specifically, it is unclear as non-binaural stimulus is applied as what type or characteristic function of the concurrently-administered binaural beat frequency i.e. frequency, amplitude, algorithmically computed function, subjective user preference (i.e. both non-binaural stimulus and binaural beat frequency are selected by user), or both non-binaural stimulus and binaural beat frequency are selected to synergize and induce the same target mental state or something else.
Dependent claims 2-14 when analyzed as a whole are held to be patent ineligible under 35 U.S.C. 112(b) because the additional recited limitations fail to cure the 35 U.S.C. 112(b) issue in their respective base claims. Consequently, dependent claims 2-14 are also rejected under 35 U.S.C. 112(b) based on their direct/indirect dependency on their respective base claims.
Claim Interpretation
Claims terms where relevant are being interpreted in light of definitions enumerated in instant application specification as-filed at least para. [0015-0016], [0030-0038], [0056], [0076-0077].
The claim term “peak frequency” is being interpreted in light of instant application specification as-filed para. [0057] and [0068].
Please note that USPTO personnel are to give claims their broadest reasonable interpretation in light of the supporting disclosure. In re Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027-28 (Fed. Cir. 1997). Limitations appearing in the specification but not recited in the claim should not be read into the claim. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369, 67 USPQ2d 1947, 1950 (Fed. Cir. 2003) (claims must be interpreted "in view of the specification" without importing limitations from the specification into the claims unnecessarily). In re Prater, 415 F.2d 1393, 1404-05, 162 USPQ 541, 550-551 (CCPA 1969). See also In re Zletz, 893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989) ("During patent examination the pending claims must be interpreted as broadly as their terms reasonably allow.... The reason is simply that during patent prosecution when claims can be amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed.... An essential purpose of patent examination is to fashion claims that are precise, clear, correct, and unambiguous. Only in this way can uncertainties of claim scope be removed, as much as possible, during the administrative process.").
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims of U.S. Patent No. 11,090,459 B2 (U.S. Patent Application No. 16/339962, hereinafter referred to as “Holloway”). Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims drawn to species and anticipate the more generic or broader scope claims now pending (instant Claims 1-14). That is, the rationale of In re Goodman applies here in that once Applicant has received a patent for a species or a more specific embodiment, Applicant is not entitled to a patent for the generic or broader invention without maintaining common ownership and ensuring that the term of the latter issued patent will expire at the end of the original term of the earlier issued patent.
More specifically, independent claim 1 under examination is anticipated by claim 1 of Holloway. Similarly, claims 2-14 under examination are anticipated by claims 5-8, 11-19 respectively of Holloway i.e. and an example claim 2 under examination is anticipated by claim 5 of Holloway, claim 6 under examination is anticipated by claim 11 of Holloway.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and/or the claims.
Prior art US 20120149973 to Holloway for disclosing a multi-modal therapeutic system for inducing target mental state via autonomic nervous system (ANS) of a human patient similar to that disclosed, including a therapeutic dosage of a neurotransmitter supplement for administering to the patient; instrumentation for administering cranial electrotherapy stimulation (CES) to the patient; and instrumentation for administering a neuroacoustic entrainment program to the patient, the neuroacoustic entrainment program generating signal tones of two different frequencies presented separately and simultaneously to each ear of the patient to generate binaural beat frequencies that facilitate induction of the target mental state in the patient.
Prior art US 5356368 to Monroe for disclosing method of inducing desired states of consciousness, including different levels of sleep, in human beings, using a technique known as frequency following response (FFR) to entrain human brain patterns similar to that disclosed. More specifically, Monroe discloses methods and apparatus for entraining human brain patterns, employing frequency following response (FFR) techniques, facilitate attainment of desired states of consciousness. In one embodiment, a plurality of electroencephalogram (EEG) waveforms, characteristic of a given state of consciousness, are combined to yield an EEG waveform to which subjects may be susceptible more readily. In another embodiment, sleep patterns are reproduced based on observed brain patterns during portions of a sleep cycle; entrainment principles are applied to induce sleep. In yet another embodiment, entrainment principles are applied in the work environment, to induce and maintain a desired level of consciousness.
Prior art US 20150342493 to Hardt for disclosing a biofeedback system that utilizes isochronic tone technology to augment EEG feedback by providing to a subject isochronic tones at the frequency of a targeted aspect of a subject's brain waves, such as the brain's naturally occurring peak energy in the particular EEG band or bands subject to the biofeedback similar to that disclosed. Isochronic tones are regular beats of a single tone that are formed by separate pulses of sound and silence. In addition, feedback can be provided to the subject in the form of pulsed light and pulsed tactile impulses that are delivered in the form of alternating presence and absence of light or tactile pressure.
Prior art US 20100056854 to Chang for disclosing method and system for brain entrainment similar to that disclosed. More specifically, Chang discloses method of modifying music files to induce a desired state of consciousness. First and second modulations are introduced into a music file such that, when the music file is played, both of the modulations occur simultaneously. Additional modulations can be introduced, as well as sound tones at window frequencies.
Prior art US 9272118 to Acton for disclosing methods for treating brain through entrainment, binaural beats and/or neurofeedback similar to that disclosed. More specifically, Acton discloses methods of treating a brain malfunction by reducing EEG frequency of brainwaves in the subject by applying at least one EEG-slowing stimulus to the subject, whereby production of beta amyloid protein in the brain of the subject is reduced and progression of the brain malfunction is halted or slowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUNITA REDDY whose telephone number is (571)270-5151. The examiner can normally be reached on M-Thu 10-4 EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CHARLES A MARMOR II can be reached on (571)272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUNITA REDDY/Primary Examiner, Art Unit 3791