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 .
Election/Restrictions
Applicant’s election without traverse of claims 1-16 in the reply filed on 30 October 2025 is acknowledged. Claims 17-20 have been withdrawn.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “envelope” in claims 1, 3, 4, 9, 11, and 12.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
“Envelope” is interpreted as “waveform,” as mentioned in [0038] of the PGPUB.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-16 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 1 follows.
STEP 1
Regarding claim 1, the claim recites a series of steps or acts, including receiving, by a processing device, an audio signal from an audio source. Thus, the claim is directed to a process, which is one of the statutory categories of invention.
STEP 2A, PRONG ONE
The claim is then analyzed to determine whether it is directed to any judicial exception. The steps of
identifying, by the processing device, an element of the audio signal that corresponds to a modulation characteristic of the desired mental state; and
determining, by the processing device, an envelope from the element
set forth a judicial exception. These steps describe a concept performed in the human mind (including an observation, evaluation, judgment, opinion). Thus, the claim is drawn to a Mental Process, which is an Abstract Idea.
STEP 2A, PRONG TWO
Next, the claim as a whole is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. Claim 1 recites generating, by the processing device, one or more non-audio signals based on at least a rate and phase of the envelope; and generating one or more non-audio outputs, which is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The generating of one or more non-audio signal and the generating of one or more non-audio outputs do not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the generated one or more non-audio signals and generated one or more non-audio outputs, nor does the method use a particular machine to perform the Abstract Idea.
STEP 2B
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Besides the Abstract Idea, the claim recites additional steps of receiving, by a processing device, an audio signal from an audio source; receiving, by the processing device, a desired mental state; and transmitting, by the processing device, the one or more non-audio signals to one or more non-audio output devices. Receiving data (audio signal and desired mental state) and transmitting the one or more non-audio signals are well-understood, routine and conventional activities for those in the field of medical diagnostics. Further, the receiving and transmitting steps are each recited at a high level of generality such that it amounts to insignificant presolution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes it from well-understood, routine, and conventional data gathering and comparing activity engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as the obtaining and comparing steps do not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
The same rationale applies to claim 9.
Regarding claims 1 and 9, the device recited in the claim is a generic device comprising generic components configured to perform the abstract idea. The recited one or more non-audio output devices is a generic device that adds insignificant extra-solution activity to the judicial exception, and the processing device is configured to perform the Abstract Idea. According to section 2106.05(f) of the MPEP, merely using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application.
The dependent claims also fail to add something more to the abstract independent claims. Claims 2, 3, 6, 8, 10, 11, 14, and 16 recite additional elements that are not significantly more than the exception. Claims 4, 5, 7, 12, 13, and 15 recite steps that add to the Abstract Idea as they recite mental processing steps. The steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3, 5-11, and 13-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Garten et al. ‘109 (US Pub No. 2015/0297109 – cited by Applicant).
Regarding claim 1, Garten et al. ‘109 teaches a method (Fig. 2) comprising:
receiving, by a processing device, an audio signal from an audio source (Fig. 2 microphone 30 and [0141]));
receiving, by the processing device, a desired mental state (Fig. 2 EEG and [0141]);
identifying, by the processing device, an element of the audio signal that corresponds to a modulation characteristic of the desired mental state (Fig. 2 brain state classification 16 and [0141]; “extract features”);
determining, by the processing device, an envelope from the element (Fig. 2 brain state of audio database 24 and [0141]);
generating, by the processing device, one or more non-audio signals based on at least a rate and phase of the envelope (Fig. 2 audio features/classifications 20 and [0141]); and
transmitting, by the processing device, the one or more non-audio signals to one or more non-audio output devices to generate one or more non-audio outputs (Fig. 2 display rules 26 and [0141]).
Regarding claim 2, Garten et al. ‘109 teaches wherein the modulation characteristic comprises one or more of a modulation rate, phase, depth, or waveform shape ([0006]; “epoch”).
Regarding claim 3, Garten et al. ‘109 teaches wherein the element comprises one or more of instruments, tempo, root mean square energy, loudness, event density, spectrum, temporal envelope, cepstrum, chromagram, flux, autocorrelation, amplitude modulation spectrum, spectral modulation spectrum, attack and decay, roughness, harmonicity, or sparseness ([0865]; “major and minor keys,” tempo”).
Regarding claim 5, Garten et al. ‘109 teaches transmitting, by the processing device, the audio signal to one or more audio outputs to generate one or more audio outputs (Fig. 4 music recommendation engine 56 and [0160]); and
coordinating, by the processing device, a relative timing of the more or more audio outputs and the one or more non-audio outputs (Fig. 4 audio track 69 and [0160]).
Regarding claim 6, Garten et al. ‘109 teaches wherein the coordinating is based on one or more predetermined models/rules (Fig. 2 brain state of audio database 24 and [0141] and Fig. 4 biological signal processing pipeline 60 and [0160]).
Regarding claim 7, Garten et al. ‘109 teaches wherein the coordinating is dynamically based on one or more sensors and comprises:
receiving, by the processing device, a sensor-input value from the one or more sensors (Fig. 2 EEG 12, microphone 30 and [0141]);
determining, by the processing device, from a mapping of sensor-input values to stimulation parameters, revised stimulation parameters determined by the sensor-input value ([0141]; “These audio classifications 20 are combined into the Brain state of Audio database 24.”); and
modifying the generating the one or more non-audio signals based on the revised stimulation parameters ([0141]; “The user can revise the estimate of the classification of Brain State Classification 16 (and Audio Classification 20). Based on the revised input provided the user, A Data Mining Improver 22 (shown in combination with manual override 22) can alter the methods for features extraction and the model of the Classifier.”).
Regarding claim 8, Garten et al. ‘109 teaches wherein the one or more sensors comprise one or more of an accelerometer ([0326]), a microphone (Fig. 2 microphone 30 and [0141]), a camera ([0783]), or a physiological sensor that measures heart rate ([0158]), blood pressure ([0618]), body temperature ([0290]), electroencephalogram (EEG) (Fig. 2 EEG 12 and [0141]), magnetoencephalogram (MEG), Near infrared (fNIRS), or bodily fluid.
Regarding claim 9, Garten et al. ‘109 teaches a device (Fig. 2) comprising a processor operative coupled to a memory, the memory configured to store instructions thereon, when executed by the processor, cause the processor to:
receive an audio signal from an audio source (Fig. 2 microphone 30 and [0141]));
receive a desired mental state (Fig. 2 EEG and [0141]);
identify an element of the audio signal that corresponds to a modulation characteristic of the desired mental state (Fig. 2 brain state classification 16 and [0141]; “extract features”);
determine an envelope from the element (Fig. 2 brain state of audio database 24 and [0141]);
generate one or more non-audio signals based on at least a rate and phase of the envelope (Fig. 2 audio features/classifications 20 and [0141]); and
transmit the one or more non-audio signals to one or more non-audio output devices to generate one or more non-audio outputs (Fig. 2 display rules 26 and [0141]).
Regarding claim 10, Garten et al. ‘109 teaches wherein the modulation characteristic comprises one or more of a modulation rate, phase, depth, or waveform shape ([0006]; “epoch”).
Regarding claim 11, Garten et al. ‘109 teaches wherein the element comprises one or more of instruments, tempo, root mean square energy, loudness, event density, spectrum, temporal envelope, cepstrum, chromagram, flux, autocorrelation, amplitude modulation spectrum, spectral modulation spectrum, attack and decay, roughness, harmonicity, or sparseness ([0865]; “major and minor keys,” tempo”).
Regarding claim 13, Garten et al. ‘109 teaches transmitting, by the processing device, the audio signal to one or more audio outputs to generate one or more audio outputs (Fig. 4 music recommendation engine 56 and [0160]); and
coordinating, by the processing device, a relative timing of the more or more audio outputs and the one or more non-audio outputs (Fig. 4 audio track 69 and [0160]).
Regarding claim 14, Garten et al. ‘109 teaches wherein the coordinating is based on one or more predetermined models/rules (Fig. 2 brain state of audio database 24 and [0141] and Fig. 4 biological signal processing pipeline 60 and [0160]).
Regarding claim 15, Garten et al. ‘109 teaches wherein the coordinating is dynamically based on one or more sensors and comprises:
receiving, by the processing device, a sensor-input value from the one or more sensors (Fig. 2 EEG 12, microphone 30 and [0141]);
determining, by the processing device, from a mapping of sensor-input values to stimulation parameters, revised stimulation parameters determined by the sensor-input value ([0141]; “These audio classifications 20 are combined into the Brain state of Audio database 24.”); and
modifying the generating the one or more non-audio signals based on the revised stimulation parameters ([0141]; “The user can revise the estimate of the classification of Brain State Classification 16 (and Audio Classification 20). Based on the revised input provided the user, A Data Mining Improver 22 (shown in combination with manual override 22) can alter the methods for features extraction and the model of the Classifier.”).
Regarding claim 16, Garten et al. ‘109 teaches wherein the one or more sensors comprise one or more of an accelerometer ([0326]), a microphone (Fig. 2 microphone 30 and [0141]), a camera ([0783]), or a physiological sensor that measures heart rate ([0158]), blood pressure ([0618]), body temperature ([0290]), electroencephalogram (EEG) (Fig. 2 EEG 12 and [0141]), magnetoencephalogram (MEG), Near infrared (fNIRS), or bodily fluid.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Sachs et al. ‘825 (US Pub No. 2020/0302825) teaches altering the shape of and audio signal.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AURELIE H TU whose telephone number is (571)272-8465. The examiner can normally be reached [M-F] 7:30-3:30.
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/AURELIE H TU/ Primary Examiner, Art Unit 3791