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 .
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “60” has been used to designate both “a system” and “wearable audio delivery and monitoring device”.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “30” has been used to designate both “earbuds”; “wearable audio delivery and monitoring device; and “wearable audio delivery and/or monitoring device”.
The drawings are objected to because it is unclear what reference character “66” is pointing to in Fig. 6.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: “96” and “80”.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: “96a,b”. Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
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: “sensing module” and “sensing…assembly” in claims 1 and 25.
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.
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 Objections
Claims 6, 7, 21, 23, 24, 28-32, 35 and 36 are objected to because of the following informalities: at line 1 of claims 6, 24, 28 and 32, and line 2 of claims 7, 21, 23 and 29-31, “the vibration speaker” should apparently read –the at least one vibration speaker--; at line 3 of claim 35, “the vibration speaker” should apparently read –the at least one vibration speaker--; and at line 4 of claim 36, “the vibration speaker” should apparently read –the at least one vibration speaker--. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 4, 5, 22 and 26 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Regarding claims 4 and 26, while the specification as originally filed appears to have support for in-ear or over-ear audio delivery devices being operatively coupled to the sensing module, the specification as originally filed does not appear to have support for in-ear or over-ear audio delivery devices being integrated into the sensory module.
Regarding claim 5, while the specification as originally filed appears to have support for a sensor incorporated into the band member of the “wearable…device”, wherein the wearable…device is attached, incorporated into or in conjunction with headsets for VR experiences (as disclosed at [0142] of the instant publication), the specification as originally filed does not appear to have support a AR accessory, a VR accessory or a MR accessory attachable to the sensory module.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 4-8 and 21-38 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In claims 1 and 25, while it appears that “at least one” applies to the “vibration speaker,” it is unclear if “at least one” also applies to the recitations “vibration transduction component” and “sensing module or assembly”.
Claim limitations “sensing module” and “sensing…assembly” (in claims 1 and 25) invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. While the specification discloses “...a plurality of sensing components on the back of the neck to assess the health condition of the individual. Brain stem activity, heart rate, oxygenation, pulse, movement and other processes may be monitored effectively on the back of the neck", this teaching lacks disclosure of an equivalent structure for a sensing module/assembly to sense brain activity and bodily functions as recited. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 1 recites the broad recitation “…at least one vibration speaker, vibration transduction component or sensing module or assembly…”, and the claim also recites “…wherein the sensing module or assembly is adapted to sense brain activity and bodily functions…” which is the narrower statement of the range/limitation. Additionally, claim 25 recites the broad recitation “…at least one vibration speaker, vibration transduction component or sensing module or assembly…”, and the claim also recites “…wherein the sensing module is adapted to sense brain activity and bodily functions…” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claims 6 and 28 recite “adapted to…receive…digital data to a user” which appears to be grammatically incorrect.
Claims 21 and 30 at lines 1-2 recite “a virtual reality accessory mixed reality (MR) accessory”. It is unclear if this recitation is meant to be one accessory or two separate accessories (a virtual reality accessory and/or a mixed reality (MR) accessory). For purposes of examination, it will be construed as the latter.
Claim 26 recites the limitation "the sensing module located on the cuff or u-shaped band”. There is insufficient antecedent basis for this limitation in the claim.
Claim 35 at line 1 recites “at least one vibration speaker or vibration transduction component”. It is unclear if this recited “at least one vibration speaker or vibration transduction component” is the same as or different than ““at least one vibration speaker or vibration transduction component” recited at line 2 of claim 25, from which claim 35 depends.
Claim 36 recites the limitation "the at least one vibration speaker or vibration transduction component within the housing”. There is insufficient antecedent basis for this limitation in the claim.
Claim 36 recites the limitation "the wired or wireless in-ear or over-ear audio delivery devices”. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 103
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 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 4, 6-8, 23-26, 28, 29, 31, 32, 35, 37 and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Afshar (U.S. Pub. No. 2007/0038164) in view of Brunner et al. (U.S. Pub. No. 2013/0343591). Regarding claims 1 and 8, Afshar teaches a wearable sensory stimulation system comprising:
a housing 502/604 comprising at least one vibration speaker, vibration transduction component ([0041] and [0043]) or sensing module or assembly (construed as processor/processing circuitry located therein ([0039]-[0040] and [0060]; though not required by the claim), the housing 502/604 adapted to be positioned on a back of a neck and on an uppermost portion of a spine of a user (Figs. 5, 9 and 11), wherein the sensing module or assembly is adapted to sense brain activity and bodily functions from the user’s neck and spine and further adapted to output a set of brain activity and bodily functions data (not required by the claim); and
a band member (headphone/earphone/neckphone) configured to be at least one of circumferential around or over a user's head ([0039] and Fig. 5), the band member adapted to be connected directly or indirectly connected to the housing ([0039] and Fig. 5).
However, Ashfar does not disclose explicitly that the band member includes a flexible material. Brunner et al. (hereinafter Brunner) teaches an audio listening system for providing an audio output to the head of a user, wherein the system comprises a resilient, adjustable headphone assembly comprising earphones or headphones (Figs. 1-2, [0003] and [0025]), wherein the adjustable headphone assembly comprises a U-shaped or C-shaped flexible material which enables adjustment of the assembly relatively to the curvature of the head or neck of the user [0025]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to construct the headphones/earphones as taught by Afshar of a flexible material as suggested by Brunner, as Afshar recognizes the use of headphones for providing audio to a user via speakers [0039], and Brunner teaches that a substantially U-shaped or C-shaped, flexible/elastic, and resilient headband assembly facilitates adjustable positioning around the user’s head [0025].
Regarding claim 4, and in light of the indefinite nature of the sensing module, the system of Afshar further comprises a set of wired or wireless in-ear or over-ear audio delivery devices 504a,b [0039] operatively coupled to a control module (“processor”) (Fig. 5 and [0039]-[0040], [0060]) (For purposes of examination, the “sensing module” is construed here as a computer controller/processor/processing circuitry).
Regarding claim 6 and in view of its indefinite nature, the vibration speaker or the transduction component of Afshar (602a,b) are adapted to deliver and receive vibrational sensory content and digital data to a user ([0039]-[0041], [0043], [0045]).
Regarding claim 7, the system of Afshar further comprises a set of earphones adapted to be operatively coupled with at least one of the vibration speaker, transduction component or the sensing module or assembly [0039].
Regarding claim 23, and in light of the indefinite nature of the sensing module, the sensing module or assembly of Afshar is operatively coupled with one of the vibration speaker or transduction component, wherein the vibration speaker or the transduction component is responsive to a signal received from the sensing module to deliver a therapeutic stimulation to the back of the user's neck ([0039]-[0040]; [0058]-[0060] and Figs. 5 and 19) (For purposes of examination, the “sensing module” is construed here as a computer controller/processing circuitry).
Regarding claim 24, the at least one of the vibration speaker or transduction component of Afshar is operatively coupled with, and is responsive to a signal from, any one of a smartphone, computer, gaming system, and a tablet device ([0040], [0058], [0062]).
Regarding claim 38, the housing 502/604 (which internally houses processing circuitry as disclosed by Afshar – [0060]) comprises at least one of a short range wireless receiver device [0040] and a microprocessor board ([0040], [0060], [0063] and Fig. 19), a battery, and a splitter (the battery and splitter not required by the claim due to the recitation “at least one of”).
Regarding claim 25, Afshar teaches a wearable sensory stimulation system comprising:
a housing 502/604 comprising at least one vibration speaker, vibration transduction component ([0041] and [0043]) or sensing module or assembly (construed as processor/processing circuitry located therein ([0039]-[0040] and [0060]; though not required by the claim), the housing 502/604 adapted to be positioned on a back of a neck and on an uppermost portion of a spine of a user (Figs. 5, 9 and 11), wherein the sensing module is adapted to sense brain activity and bodily functions from the user’s neck and spine and further adapted to output a set of brain activity and bodily functions data (not required by the claim); and
a cuff/ u-shaped band adapted to be worn around the neck and spine of the user (headphone/earphone/neckphone) ([0039] and Fig. 5), and adapted to be connected directly or indirectly connected to the housing ([0039] and Fig. 5).
However, Ashfar does not disclose explicitly that the band includes a flexible material. Brunner et al. (hereinafter Brunner) teaches an audio listening system for providing an audio output to the head of a user, wherein the system comprises a resilient, adjustable headphone assembly comprising earphones or headphones (Figs. 1-2, [0003] and [0025]), wherein the adjustable headphone assembly comprises a U-shaped or C-shaped flexible material which enables adjustment of the assembly relatively to the curvature of the head or neck of the user [0025]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to construct the headphones/earphones/band as taught by Afshar of a flexible material as suggested by Brunner, as Afshar recognizes the use of headphones for providing audio to a user via speakers [0039], and Brunner teaches that a substantially U-shaped or C-shaped, flexible/elastic, and resilient headband assembly facilitates adjustable positioning around the user’s head [0025].
Regarding claim 26, and in light of the indefinite nature of the sensing module, the system of Afshar further comprises a set of wired or wireless in-ear or over-ear audio delivery devices 504a,b [0039] operatively coupled to a control module (“processor”) (Fig. 5 and [0039]-[0040]), which is located on the cuff or u-shaped band [0060]. (For purposes of examination, the “sensing module” is construed here as a computer controller/processor/processing circuitry).
Regarding claim 28 and in view of its indefinite nature, the vibration speaker or the transduction component of Afshar (602a,b) are adapted to deliver and receive vibrational sensory content and digital data to a user ([0039]-[0041], [0043], [0045]).
Regarding claim 29, the system of Afshar further comprises a set of earphones adapted to be operatively coupled with at least one of the vibration speaker, transduction component or the sensing module [0039].
Regarding claim 31, and in light of the indefinite nature of the sensing module, the sensing module or assembly of Afshar is operatively coupled with one of the vibration speaker or transduction component, wherein the vibration speaker or the transduction component is responsive to a signal received from the sensing module to deliver a therapeutic stimulation to the back of the user's neck ([0039]-[0040]; [0058]-[0060] and Figs. 5 and 19) (For purposes of examination, the “sensing module” is construed here as a computer controller/processing circuitry).
Regarding claim 32, the at least one of the vibration speaker or transduction component of Afshar is operatively coupled with, and is responsive to a signal from, any one of a smartphone, computer, gaming system, and a tablet device ([0040], [0058], [0062]).
Regarding claim 35, the at least one vibration speaker or transduction component of Afshar is adapted to receive a wired or wireless signal from an audio output device ([0039]-[0040], [0045]), wherein the signal from the audio output device provides the vibration speaker or vibration transduction component digital media that becomes tactile vibrational stimulation ([0012] and [0041]).
Regarding claim 37, the housing 502/604 (which internally houses processing circuitry as disclosed by Afshar – [0060]) comprises at least one of a short range wireless receiver device [0040] and a microprocessor board ([0040], [0060], [0063] and Fig. 19), a battery, and a splitter (the battery and splitter not required by the claim due to the recitation “at least one of”).
Claims 5, 21, 22, 27, 30, 33, 34 and 36 are rejected under 35 U.S.C. 103 as being unpatentable over Afshar (U.S. Pub. No. 2007/0038164) in view of Brunner et al. (U.S. Pub. No. 2013/0343591) and further in view of Yoo et al. (U.S. Pub. No. 2013/0017520).
Regarding claims 5, 21 and 22, Ashfar and Brunner disclose the invention as claimed, see rejection supra; however the combination fails to disclose that the system further comprises at least one of an augmented reality accessory, a virtual reality accessory, or mixed reality (MR) accessory that is operatively coupled/attachable with the sensing module, wherein each of the accessories is adapted to provide at least video or visual images to the user. Yoo et al. (hereinafter Yoo) discloses a multi-sensory system, to include a VR/AR headset/eyewear/glasses 402/202 (Figs. 2 and 4 and [0054]) and headphones 204, adapted to provide sound and video/visual images to the user and emulate real-life scenarios ([0055] and [0046]), wherein the VR/AR headset/eyewear/glasses are operatively coupled/attachable with a controller/ “sensing module” (Fig. 4 and [0054]-[0055]). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate a VR/AR headset/eyewear as taught by Yoo, in a system for delivering audio, vibrational and visual stimulation as suggested by Afshar and Brunner, as Afshar indicates that the audio/vibrational stimulation system may include additional media such as video games and virtual reality environments ([0058] of Afshar), which would necessitate VR/AR headset/eyewear as disclosed by Yoo.
Regarding claims 27 and 30, Ashfar and Brunner disclose the invention as claimed, see rejection supra; however the combination fails to disclose that the system further comprises at least one of an augmented reality accessory, a virtual reality accessory, or mixed reality (MR) accessory that is operatively coupled/attachable with the sensing module, wherein each of the accessories is adapted to provide at least video or visual images to the user. Yoo et al. (hereinafter Yoo) discloses a multi-sensory system, to include a VR/AR headset/eyewear/glasses 402/202 (Figs. 2 and 4 and [0054]) and headphones 204, adapted to provide sound and video/visual images to the user and emulate real-life scenarios ([0055] and [0046]), wherein the VR/AR headset/eyewear/glasses are operatively coupled/attachable with a controller/ “sensing module” (Fig. 4 and [0054]-[0055]). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate a VR/AR headset/eyewear as taught by Yoo, in a system for delivering audio, vibrational and visual stimulation as suggested by Afshar and Brunner, as Afshar indicates that the audio/vibrational stimulation system may include additional media such as video games and virtual reality environments ([0058] of Afshar), which would necessitate VR/AR headset/eyewear as disclosed by Yoo.
Regarding claim 33, the virtual reality accessory is selected from a group consisting of a VR headset, VR goggles, VR helmet, display screen, VR olfactory device and a lens or lenses (VR/AR headset/eyewear/glasses 402/202 (Figs. 2 and 4 and [0054] of Yoo).
Regarding claim 34, the augmented reality accessory is selected from a group consisting of AR wearable glasses or goggles, an AR eye piece, a AR video projection device, an AR lens or lenses, a helmet and an AR olfactory device (VR/AR headset/eyewear/glasses 402/202 (Figs. 2 and 4 and [0054] of Yoo).
Regarding claim 36, Afshar teaches that the at least one vibration speaker or vibration transduction component within the housing 502/604 are each adapted to receive a wired or wireless signal from a multiple signal source output device ([0039]-[0040] – “such as a portable music device or video game console”), wherein the signal from the multiple source output device provides wired or wireless in-ear or over-ear audio delivery devices 504a,b with audio sensory stimulation and provides the vibration speaker or vibration transduction component digital media that becomes tactile vibrational stimulation ([0012] and [0041]). However, Afshar fails to disclose explicitly that the audio sensory stimulation is provided upon at least one of the AR or VR accessory being activated.
Yoo discloses provision of sound and video/visual images to the user ([0055] and [0046]) via activation of the VR/AR headset/eyewear/glasses (Fig. 4 and [0055]-[0058]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide activation of the AR/VR accessory as taught by Yoo, in a system for delivering audio, vibrational and visual stimulation as suggested by Afshar and Brunner, as Afshar indicates that the audio/vibrational stimulation system may include additional media such as video games and virtual reality environments ([0058] of Afshar), which would necessitate activation of the VR/AR headset/eyewear as disclosed by Yoo.
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, 8 and 25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2 and 5 of U.S. Patent No. 12,220,251. Although the claims at issue are not identical, they are not patentably distinct from each other because both disclose a wearable sensory stimulation system comprising:
a housing comprising at least one vibration speaker or vibration transduction component, the housing adapted to be positioned on a back of a neck and on an uppermost portion of a spine of a user (wherein the sensing module or assembly is adapted to sense brain activity and bodily functions from the user’s neck and spine and further adapted to output a set of brain activity and bodily functions data (not required by the claim); and a flexible band (“at least one cord loop and a tensioning member”) configured to be at least one of circumferential around or over a user's head, or worn about the neck/spine of the user, the band adapted to be connected directly or indirectly connected to the housing.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: U.S. Pub. No. 2008/0262350 to Unger.
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/CHRISTINE H MATTHEWS/Primary Examiner, Art Unit 3791
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