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 .
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 Rejections - 35 USC § 103
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 8 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 4,315,502 (Gorges) in view of U.S. Patent No. 4,892,106 (Gleeson, III et al.).
Regarding claim 8, Gorges teaches a headset (Figure 1) for providing a therapeutically effective amount of a sensory stimulation to a user (abstract; col. 1, lines 5-9; col. 6, lines 21-col. 7, line 65; “headset”: col. 3, line 66-col. 4, line 2, Figure 1), comprising:
a frame (14, 20) configured to be worn on a head of the user (see Figure 1; col. 3, line 66-col. 4, line 2);
a processor (32) configured to generate a plurality of inputs including a left light source input, a right light source input, a left auditory source input, and a right auditory source input (col. 4, lines 3-9);
a left light source (50a) configured to produce, using the left light source input, a left visual stimulus pattern (col. 4, lines 47-53; col. 6, lines 56-col. 7, line 30; Figure 3);
a right light source (50b) configured to produce, using the right light source input, a right visual stimulus pattern (col. 4, lines 47-53; col. 6, lines 56-col. 7, line 30; Figure 3);
a left auditory source (16a) configured to produce, using the left auditory source input, a left auditory stimulus pattern (col. 6, lines 3-15; Figure 6); and
a right auditory source (16b) configured to produce, using the right auditory source, a right auditory stimulus pattern (col. 6, lines 3-15; Figure 6); and
wherein the processor (32) is further configured to administer, by the headset, the therapeutically effective amount of the stimulation to the user,
wherein the plurality of inputs alternate between:
a first input including simultaneously generating the left light source input and the left auditory source input, and
a second input including simultaneously generating a right light source input and a right auditory source input (col. 2, line 47-col. 3, line 2; col. 7, lines 3-54).
Gorges teaches a plurality of stimulus patterns may be delivered wherein the auditory and visual stimuli may be in or out of phase, and each stimulus may be delivered to the left and right sides of the patient simultaneously or alternatively (col. 2, line 47-col. 3, line 2; col. 6, line 56-col. 7, line 54). Gorges does not expressly state alternating sensory stimulation between a first pattern wherein the left light and right auditory stimuli are simultaneously applied, and a second pattern wherein the right light and left auditory stimuli are simultaneously applied.
However, Gleeson, III et al. teaches a headset to provide stimulation to a user (abstract), the apparatus comprising: a frame configured to be worn by a user comprising left and right auditory and light sources (Figure 4; col. 5, lines 3-34; col. 8, lines 44-64), and a control circuit (38) is configured to generate inputs for the sources wherein left and right light and auditory source inputs are separately delivered to the left and right light and auditory sources, respectively, in any of “16 possible combinations” (col. 4, lines 48-67; col. 7, line 22; col. 8, lines 44-64). Gleeson, III et al. teaches possible sensory stimulation patterns generated by the inputs include simultaneously delivering a left light input to the left light source and a right auditory input to the right auditory source, and simultaneously delivering a right light input to the right light source and a left auditory input to the left auditory source (col. 4, lines 48-67; col. 8, lines 44-64). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the processor of Gorges such that the left light input is simultaneously delivered with the right auditory input, and the right light input is simultaneously delivered with the left auditory input as taught by Gleeson, III et al., because Gleeson, III et al. teaches the particular stimulation pattern for the light and auditory stimulus may be altered depending on the desired induced reaction in the user (col. 1, lines 13-25; col. 2, lines 1-19).
Additionally, Gorges teaches the sequence of stimulus patterns includes variable frequencies which “may be raised or lowered” (col. 7, lines 55-65), and may range from 1 to 30 Hz (col. 8, lines 13-18 and lines 60-65). Gorges does not expressly teach the first and second inputs each include a first stimulus pattern having a first pulse frequency, and a second stimulus pattern having a second pulse frequency less than the first pulse frequency, and a third stimulus pattern having a third pulse frequency less than the second frequency.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Gorges and Gleeson, III et al. to progressively lower the frequency of the stimulus patterns of the first and second sensor stimulations to comprise a sequence of three patterns each having a different, successively lower frequency component in light of the teaching of Gorges, because Gorges teaches the frequencies “may be raised or lowered” as needed to meet the needs of the individual user and induce the desired “state of awareness and brain wave function” (col. 7, lines 55-65).
Regarding claim 15, Gorges teaches a system for treating a user having post-traumatic stress disorder (PTSD) (The limitation “for treating a user having…(PTSD)” is intended use. Since Gorges teaches treating “psychological stresses and tension”, the system is capable of performing the claimed intended use in treating a user having PTSD, col. 1, lines 5-9), comprising:
a headset (Figure 1) configured to be worn on a head of the user (col. 3, line 66-col. 4, line 2, Figure 1), the headset comprising a frame (14, 20), a left light source (50a), a left auditory source (16a), a right light source (50b), and a right auditory source (16b) (col. 4, lines 47-53; col. 6, lines 3-15; col. 6, lines 56-col. 7, line 30; Figure 6);
a processor (32) communicatively coupled to the headset and a controller (94, 96, 98, 100, 102, 104, 106, 108, 110), wherein the processor is configured to receive a sensory stimulation from the controller and transmit the sensory stimulation to the headset (col. 6, line 11-col. 7, line 65; Figure 7), wherein the sensory stimulation is transmitted at a therapeutically effective amount and the sensory stimulation alternates between:
a first sensory stimulation including simultaneously providing a left visual stimulus pattern from the left light source to a left eye of the user and a left auditory stimulus pattern from the left auditory source to the left side of the head of the user, and
a second sensory stimulation including simultaneously providing a right visual stimulus pattern from the right light source to a right eye of the user and a right auditory stimulus pattern to the right auditory source to the right side of the head of the user (col. 2, line 47-col. 3, line 2; col. 7, lines 3-54).
Gorges teaches a plurality of stimulus patterns may be delivered wherein the auditory and visual stimuli may be in or out of phase, and each stimulus may be delivered to the left and right sides of the patient simultaneously or alternatively (col. 2, line 47-col. 3, line 2; col. 6, line 56-col. 7, line 54). Gorges does not expressly state alternating sensory stimulation between a first pattern wherein the left light and right auditory stimuli are simultaneously applied, and a second pattern wherein the right light and left auditory stimuli are simultaneously applied.
However, Gleeson, III et al. teaches a system to provide stimulation to a user (abstract), the apparatus comprising: a headset having a frame configured to be worn by a user comprising left and right auditory and light sources (Figure 4; col. 5, lines 3-34; col. 8, lines 44-64), and a control circuit (38) is configured to generate inputs for the sources wherein left and right light and auditory source inputs are separately delivered to the left and right light and auditory sources, respectively, in any of “16 possible combinations” (col. 4, lines 48-67; col. 7, line 22; col. 8, lines 44-64). Gleeson, III et al. teaches possible sensory stimulation patterns generated by the inputs include simultaneously delivering a left light input to the left light source and a right auditory input to the right auditory source, and simultaneously delivering a right light input to the right light source and a left auditory input to the left auditory source (col. 4, lines 48-67; col. 8, lines 44-64). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the processor of Gorges such that the left light input is simultaneously delivered with the right auditory input, and the right light input is simultaneously delivered with the left auditory input as taught by Gleeson, III et al., because Gleeson, III et al. teaches the particular stimulation pattern for the light and auditory stimulus may be altered depending on the desired induced reaction in the user (col. 1, lines 13-25; col. 2, lines 1-19).
Additionally, Gorges teaches the sequence of stimulus patterns includes variable frequencies which “may be raised or lowered” (col. 7, lines 55-65), and may range from 1 to 30 Hz (col. 8, lines 13-18 and lines 60-65). Gorges does not expressly teach the first and second inputs each include a first stimulus pattern having a first pulse frequency, and a second stimulus pattern having a second pulse frequency less than the first pulse frequency, and a third stimulus pattern having a third pulse frequency less than the second frequency.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Gorges and Gleeson, III et al. to progressively lower the frequency of the stimulus patterns of the first and second sensor stimulations to comprise a sequence of three patterns each having a different, successively lower frequency component in light of the teaching of Gorges, because Gorges teaches the frequencies “may be raised or lowered” as needed to meet the needs of the individual user and induce the desired “state of awareness and brain wave function” (col. 7, lines 55-65).
Claims 1, 6, 7, 13, 14, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 4,315,502 (Gorges) in view of U.S. Patent No. 4,892,106 (Gleeson, III et al.) and U.S. Patent No. 6,409,655 (Wilson et al.).
Regarding claim 1, Gorges teaches a method of providing sensory stimulation to a user having psychological stress and tension (abstract; col. 1, lines 5-9), the method comprising:
receiving a set of sensory stimulation instructions by a processor (32) in a headset (14, 20) configured for being worn on a head of the user (“instructions” received by control panel 32 by manipulation of controls 102, 100, 98, 94, 96, 104, 106, 108, 110 as shown in Figure 7; col. 6, lines 21-col. 7, line 65; “headset”: col. 3, line 66-col. 4, line 2, Figure 1);
responsive to receiving the set of sensory stimulation instructions, administering a therapeutically effective amount of a sensory stimulation to the user, wherein the sensory stimulation alternates between: a first sensory stimulation including simultaneously providing a left visual stimulus pattern to a left eye of the user and a left auditory stimulus pattern to the left side of a head of the user, and a second sensory stimulation including simultaneously providing a right visual stimulus pattern to a right eye of the user and a right auditory stimulus pattern to the right side of the head (col. 2, line 47-col. 3, line 2; col. 7, lines 3-54).
Gorges teaches a plurality of stimulus patterns may be delivered wherein the auditory and visual stimuli may be in or out of phase, and each stimulus may be delivered to the left and right sides of the patient simultaneously or alternatively (col. 2, line 47-col. 3, line 2; col. 6, line 56-col. 7, line 54). Gorges does not expressly state alternating sensory stimulation between a first stimulation pattern wherein the left visual and right auditory stimuli are simultaneously applied, and a second stimulation pattern wherein the right visual and left auditory stimuli are simultaneously applied.
However, Gleeson, III et al. teaches a method of providing sensory stimulation to a user (abstract), the method comprising: alternating sensory stimulation between first and second sensory stimulations wherein left and right visual and auditory stimuli are separately delivered to the user’s left and right ears and eyes, respectively, in any of “16 possible combinations” (col. 4, lines 48-67). Gleeson, III et al. teaches the possible sensory stimulations include simultaneously delivering a left visual stimulus pattern to the left eye of the user and a right auditory stimulus pattern to the right side of the head, and simultaneously delivering a right visual stimulus pattern to the right eye of the user and a left auditory stimulus pattern to the left side of a head of the user (col. 4, lines 48-67; col. 8, lines 44-64). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Gorges such that the left visual stimulus pattern is simultaneously delivered with the right auditory stimulus pattern, and the right visual stimulus pattern is simultaneously delivered with the left auditory stimulus pattern as taught by Gleeson, III et al., because Gleeson, III et al. teaches the particular stimulation pattern for the visual and auditory stimulus pattern may be altered depending on the desired induced reaction in the user (col. 1, lines 13-25; col. 2, lines 1-19).
Additionally, Gorges teaches the sequence of stimulus patterns includes variable frequencies which “may be raised or lowered” (col. 7, lines 55-65), and may range from 1 to 30 Hz (col. 8, lines 13-18 and lines 60-65). Gorges does not expressly teach the first sensory stimulation and the second sensory stimulation each include a first stimulus pattern having a first pulse frequency, and a second stimulus pattern having a second pulse frequency less than the first pulse frequency, and a third stimulus pattern having a third pulse frequency.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Gorges and Gleeson, III et al. to progressively vary the frequency of the stimulus patterns of the first and second sensor stimulations to comprise a sequence of three patterns each having a different frequency component in light of the teaching of Gorges, because Gorges teaches the frequencies “may be raised or lowered” as needed to meet the needs of the individual user and induce the desired “state of awareness and brain wave function” (col. 7, lines 55-65).
Gorges as modified does not specify expressly treating a user having PTSD, or that the method includes a step of collecting a set of user data associate with the administering of the therapeutically effective amount of the sensory stimulation to the user.
However, Wilson teaches a method of treating a user having PTSD (col. 1, lines 5-10 and 20-22), comprising: administering a therapeutically effective amount of light and auditory sensory stimulation to the user; and collecting a set of user data associated with the administering of the therapeutically effective amount of the sensory stimulation to the user (col. 1, lines 5-10 and 20-22; physiological data collection: col. 4, lines 10-26 and col. 5, lines 15-17; col. 4, lines 33-48; col. 6, lines 38-48). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the method of Gorges as modified in order to treat a user having PTSD as taught by Wilson, as Wilson recognizes the application of alternating auditory and visual stimuli has “achieved good results in the treatment of PTSD” (Wilson: col. 1, lines 5-10 and 20-22). Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the method of Gorges as modified to include a step of collecting user data associated with the administering of the therapeutically effective amount of the sensory stimulation to the user as taught by Wilson in order to adjust the stimulation based on the user’s physiological response to optimize efficacy of the stimulation for the individual user (col. 4, lines 11-24).
Regarding claim 6, Gorges in view of Gleeson and Wilson teaches all the limitations of claim 1. Gorges as modified does not specify the first sensory stimulation further includes providing a right tactile stimulus pattern to the right side of the head simultaneously with the left visual stimulus pattern and a right auditory stimulus pattern, and wherein the second sensory stimulation further includes providing a left tactile stimulus pattern to the left side of the head simultaneously with the right visual stimulus pattern and the left auditory stimulus pattern.
However, Wilson further teaches providing a tactile stimulus coordinated with the auditory and visual stimuli alternatingly to the left and right sides of the user (col. 3, lines 3-7; col. 4, lines 33-47). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Gorges as modified such that the first sensory stimulation further includes providing a right tactile stimulus pattern to the right side of the head simultaneously with the left visual stimulus pattern and a right auditory stimulus pattern, and wherein the second sensory stimulation further includes providing a left tactile stimulus pattern to the left side of the head simultaneously with the right visual stimulus pattern and the left auditory stimulus pattern in light of the teachings of Wilson, in order to deliver tactile stimulation alternatingly to the left and right sides of the user coordinated with the light and audio stimulation in order to effectively treat conditions of psychological stress, such as PTSD, as is desired by Gorges (Wilson: col. 1, lines 5-10 and 20-22; col. 3, lines 3-7; col. 4, lines 33-47; Gorges: col. 1, lines 5-9).
Regarding claim 7, Gorges in view of Gleeson and Wilson teaches all the limitations of claim 1. Gorges as modified teaches the set of user data comprises at least one vital health statistic selected from the group consisting of a pule rate, a body temperature, and a blood pressure (see discussion for claim 1; Wilson: col. 1, line 67-col. 2, line 4; col. 5, lines 16-18).
Regarding claims 13 and 19, Gorges in view of Gleeson teaches all the limitations of claim 8 or 15. Gorges as modified does not specify the plurality of inputs further comprises a left tactile source input and a right tactile source input, and further comprises: a left tactile source configured to produce, using the left tactile source input, a left tactile stimulus pattern; and a right tactile source configured to produce, using the right tactile source input, a right tactile stimulus pattern, wherein the first input further comprises generating the right tactile source input simultaneously with the left light source input and the right auditory source input, and the second input further comprises generating the left tactile source input simultaneously with the right light source input and the left auditory source input.
However, Wilson teaches a headset for providing a therapeutically effective amount of a sensory stimulation to a user (col. 1, lines 5-9 and 20-22), comprising: left and right light sources, left and right auditory sources, and left and right tactile sources (col. 3, lines 55-col. 4, line 10; col. 4, lines 35-48; Figures 3-4). Wilson teaches providing a tactile stimulus coordinated with the auditory and visual stimuli alternatingly to the left and right sides of the user (col. 3, lines 3-7; col. 4, lines 33-47). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the headset of Gorges as modified such that the first input further comprises generating the right tactile source input simultaneously with the left light source input and the right auditory source input, and the second input further comprises generating the left tactile source input simultaneously with the right light source input and the left auditory source input in light of the teachings of Wilson, in order to deliver tactile stimulation alternatingly to the left and right sides of the user coordinated with the light and audio stimulation in order to effectively treat conditions of psychological stress, such as PTSD, as is desired by Gorges (Wilson: col. 1, lines 5-10 and 20-22; col. 3, lines 3-7; col. 4, lines 33-47; Gorges: col. 1, lines 5-9).
Regarding claims 14 and 20, Gorges in view of Gleeson teaches all the limitations of claim 8 or 15. Gorges as modified does not teach the headset comprises data sensors, wherein the data sensors are configured to collect a set of user data, wherein the set of user data comprises at least one vital health statistic selected from the group consisting of a pulse rate, a body temperature, a respiration rate, and a blood pressure.
However, Wilson teaches a headset for providing a therapeutically effective amount of a sensory stimulation to a user (col. 1, lines 5-9 and 20-22), comprising: left and right light sources, left and right auditory sources, and left and right tactile sources (col. 3, lines 55-col. 4, line 10; col. 4, lines 35-48; Figures 3-4). Wilson teaches providing a tactile stimulus coordinated with the auditory and visual stimuli alternatingly to the left and right sides of the user (col. 3, lines 3-7; col. 4, lines 33-47). Wilson further teaches the headset comprises data sensors, wherein the data sensors are configured to collect a set of user data, wherein the set of user data comprises at least one vital health statistic selected from the group consisting of a pulse rate, a body temperature, a respiration rate, and a blood pressure (col. 1, line 67-col. 2, line 4; col. 4, lines 10-26 and col. 5, lines 15-18; col. 4, lines 33-48; col. 6, lines 38-48). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the headset of Gorges as modified to include data sensors, wherein the data sensors are configured to collect a set of user data, wherein the set of user data comprises at least one vital health statistic selected from the group consisting of a pulse rate, a body temperature, and a blood pressure as taught by Wilson in order to adjust the stimulation based on the user’s physiological response to optimize efficacy of the stimulation for the individual user (Wilson: col. 4, lines 11-24).
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 4,315,502 (Gorges) in view of U.S. Patent No. 4,892,106 (Gleeson, III et al.) and U.S. Patent No. 6,409,655 (Wilson et al.) as applied to claim 1 above, and further in view of U.S. Patent Application Publication No. 2014/0024883 (Rosenzweig).
Regarding claims 3-5, Gorges in view of Gleeson and Wilson teaches all the limitations of claim 1. Gorges as modified does not teach administering the therapeutically effective amount of the sensory stimulation to the user occurs for a pre-determined treatment period, wherein the pre-determined treatment period is approximately 2 or 5 hours.
However, Rosenzweig teaches a method of treating a user having PTSD (abstract), comprising: administering a therapeutically effective amount of a visual sensory stimulation to the user occurs for a pre-determined treatment period, wherein the pre-determined treatment period is approximately 2 or 5 hours ([0003]; [0045]; 1-5 one-hour sessions for PTSD treatment, wherein 2 treatment sessions constitutes a predetermined total treatment prior of 2 hours and wherein 5 treatment session constitutes a predetermined total treatment period of 5 hours, [0088]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Gorges as modified such that the therapeutically effective amount of the sensory stimulation occurs for a pre-determined treatment period of about 2 or 5 hours as taught by Rosenzweig in order to “resolve post-traumatic stress disorder” (Rosenzweig: [0088]), wherein the number of sessions, thus the treatment period, is discoverable through routine experimentation. Applicant appears to place no criticality on the length of the pre-determined treatment period. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05(II)(A).
Claims 10-12, 17, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 4,315,502 (Gorges) in view of U.S. Patent No. 4,892,106 (Gleeson, III et al.) as applied to claim 8 or 15 above, and further in view of U.S. Patent Application Publication No. 2014/0024883 (Rosenzweig).
Regarding claims 10-12, 17, and 18, Gorges in view of Gleeson teaches all the limitations of claim 8 or 15. Gorges as modified does not teach administering the therapeutically effective amount of the sensory stimulation to the user occurs for a pre-determined treatment period, wherein the pre-determined treatment period is approximately 2 or 5 hours.
However, Rosenzweig teaches a system for treating a user having PTSD (abstract), wherein the system is configured to provide a therapeutically effective amount of a visual sensory stimulation to the user occurs for a pre-determined treatment period, wherein the pre-determined treatment period is approximately 2 or 5 hours ([0003]; [0045]; 1-5 one-hour sessions for PTSD treatment, wherein 2 treatment sessions constitutes a predetermined total treatment prior of 2 hours and wherein 5 treatment session constitutes a predetermined total treatment period of 5 hours, [0088]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the processor of Gorges as modified such that the therapeutically effective amount of the sensory stimulation occurs for a pre-determined treatment period of about 2 or 5 hours as taught by Rosenzweig in order to “resolve post-traumatic stress disorder” (Rosenzweig: [0088]), wherein the number of sessions, thus the treatment period, is discoverable through routine experimentation. Applicant appears to place no criticality on the length of the pre-determined treatment period. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05(II)(A).
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 8, 9, 15, and 16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 21 of U.S. Patent No. 10,328,236. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 8 and 15 of the instant application are merely broader in scope than all that is recited in claim 21 of the ‘236 patent. That is, claims 8 and 15 are anticipated by claim 21 of the ‘236 patent. 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 (see In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993)). Claims 9 and 16 of the instant application are anticipated by claim 21 of the ‘236 patent, by the same reasoning.
Claims 1, 2, 6, 7, 13, 14, 19, and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 10, 14, 18, and 21 of U.S. Patent No. 10,328,236 in view of U.S. Patent No. 6,409,655 (Wilson et al.).
Regarding instant claim 1, claim 1 of the ‘236 patent recites all the limitations of claim 1 except for requiring treatment of PTSD and the step of “collecting a set of user data…to the user”.
However, Wilson teaches a method of treating a user having PTSD (col. 1, lines 5-10 and 20-22), comprising: administering a therapeutically effective amount of light and auditory sensory stimulation to the user; and collecting a set of user data associated with the administering of the therapeutically effective amount of the sensory stimulation to the user (col. 1, lines 5-10 and 20-22; physiological data collection: col. 4, lines 10-26 and col. 5, lines 15-17; col. 4, lines 33-48; col. 6, lines 38-48). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the method of Gorges as modified in order to treat a user having PTSD as taught by Wilson, as Wilson recognizes the application of alternating auditory and visual stimuli has “achieved good results in the treatment of PTSD” (Wilson: col. 1, lines 5-10 and 20-22). Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the method of claim 1 of the ‘236 patent to include a step of collecting user data associated with the administering of the therapeutically effective amount of the sensory stimulation to the user as taught by Wilson in order to adjust the stimulation based on the user’s physiological response to optimize efficacy of the stimulation for the individual user (col. 4, lines 11-24).
Regarding instant claim 2, claim 1 of the ‘236 patent in view of Wilson teaches all the limitations of claim 2.
Regarding instant claim 6, claim 1 of the ‘236 patent in view of Wilson teaches all the limitations of claim 1. Claim 1 of the ‘236 patent as modified fails to disclose the first sensory stimulation further includes providing a right tactile stimulus pattern to the right side of the head simultaneously with the left visual stimulus pattern and a right auditory stimulus pattern, and wherein the second sensory stimulation further includes providing a left tactile stimulus pattern to the left side of the head simultaneously with the right visual stimulus pattern and the left auditory stimulus pattern.
However, Wilson further teaches providing a tactile stimulus coordinated with the auditory and visual stimuli alternatingly to the left and right sides of the user (col. 3, lines 3-7; col. 4, lines 33-47). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of claim 1 of the ‘236 patent as modified such that the first sensory stimulation further includes providing a right tactile stimulus pattern to the right side of the head simultaneously with the left visual stimulus pattern and a right auditory stimulus pattern, and wherein the second sensory stimulation further includes providing a left tactile stimulus pattern to the left side of the head simultaneously with the right visual stimulus pattern and the left auditory stimulus pattern in light of the teachings of Wilson, in order to deliver tactile stimulation alternatingly to the left and right sides of the user coordinated with the light and audio stimulation in order to effectively treat PTSD (Wilson: col. 1, lines 5-10 and 20-22; col. 3, lines 3-7; col. 4, lines 33-47).
Regarding instant claim 7, claim 1 of the ‘236 patent in view of Wilson teaches all the limitations of claim 1. Claim 1 of the ‘236 patent as modified further teaches the set of user data comprises at least one vital health statistic selected from the group consisting of a pulse rate, a body temperature, and a blood pressure (Wilson: col. 1, line 67-col. 2, line 4; col. 5, lines 16-18).
Regarding instant claims 13 and 19, claim 21 of the ‘236 patent recites all the limitations of claim 8 or 15, except left and right tactile sources configured as claimed.
However, teaches a headset for providing a therapeutically effective amount of a sensory stimulation to a user (col. 1, lines 5-9 and 20-22), comprising: left and right light sources, left and right auditory sources, and left and right tactile sources (col. 3, lines 55-col. 4, line 10; col. 4, lines 35-48; Figures 3-4). Wilson teaches providing a tactile stimulus coordinated with the auditory and visual stimuli alternatingly to the left and right sides of the user (col. 3, lines 3-7; col. 4, lines 33-47). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the system of claim 21 of the ‘236 patent as modified to further include left and right tactile sources such that the first sensory stimulation further includes providing a right tactile stimulus pattern to the right side of the head simultaneously with the left visual stimulus pattern and a right auditory stimulus pattern, and wherein the second sensory stimulation further includes providing a left tactile stimulus pattern to the left side of the head simultaneously with the right visual stimulus pattern and the left auditory stimulus pattern in light of the teachings of Wilson, in order to deliver tactile stimulation alternatingly to the left and right sides of the user coordinated with the light and audio stimulation in order to effectively treat PTSD (col. 1, lines 5-10 and 20-22; col. 3, lines 3-7; col. 4, lines 33-47).
Regarding instant claims 14 and 20, claim 21 of the ‘236 patent recites all the limitations of claim 8 or 15, except the headset comprises data sensors, wherein the data sensors are configured to collect a set of user data, wherein the set of user data comprises at least one vital health statistic selected from the group consisting of a pulse rate, a body temperature, a respiration rate, and a blood pressure.
However, Wilson teaches a headset for providing a therapeutically effective amount of a sensory stimulation to a user (col. 1, lines 5-9 and 20-22), comprising: left and right light sources, left and right auditory sources, and left and right tactile sources (col. 3, lines 55-col. 4, line 10; col. 4, lines 35-48; Figures 3-4). Wilson teaches providing a tactile stimulus coordinated with the auditory and visual stimuli alternatingly to the left and right sides of the user (col. 3, lines 3-7; col. 4, lines 33-47). Wilson further teaches the headset comprises data sensors, wherein the data sensors are configured to collect a set of user data, wherein the set of user data comprises at least one vital health statistic selected from the group consisting of a pulse rate, a body temperature, a respiration rate, and a blood pressure (col. 1, line 67-col. 2, line 4; col. 4, lines 10-26 and col. 5, lines 15-18; col. 4, lines 33-48; col. 6, lines 38-48). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the headset of claim 21 of the ‘236 patent as modified to include data sensors, wherein the data sensors are configured to collect a set of user data, wherein the set of user data comprises at least one vital health statistic selected from the group consisting of a pulse rate, a body temperature, and a blood pressure as taught by Wilson in order to adjust the stimulation based on the user’s physiological response to optimize efficacy of the stimulation for the individual user (Wilson: col. 4, lines 11-24).
Claims 3-5 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 21 of U.S. Patent No. 10,328,236 in view of U.S. Patent No. 6,409,655 (Wilson et al.) as applied to claim 1 above, and further in view of U.S. Patent Application Publication No. 2014/0024883 (Rosenzweig).
Regarding claims 3-5, claim 1 of the ‘236 patent in view of Wilson teaches all the limitations of claim 1. Claim 1 of the ‘236 patent as modified does not teach administering the therapeutically effective amount of the sensory stimulation to the user occurs for a pre-determined treatment period, wherein the pre-determined treatment period is approximately 2 or 5 hours.
However, Rosenzweig teaches a method of treating a user having PTSD (abstract), comprising: administering a therapeutically effective amount of a visual sensory stimulation to the user occurs for a pre-determined treatment period, wherein the pre-determined treatment period is approximately 2 or 5 hours ([0003]; [0045]; 1-5 one-hour sessions for PTSD treatment, wherein 2 treatment sessions constitutes a predetermined total treatment prior of 2 hours and wherein 5 treatment session constitutes a predetermined total treatment period of 5 hours, [0088]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of claim 1 of the ‘236 patent as modified such that the therapeutically effective amount of the sensory stimulation occurs for a pre-determined treatment period of about 2 or 5 hours as taught by Rosenzweig in order to “resolve post-traumatic stress disorder” (Rosenzweig: [0088]), wherein the number of sessions, thus the treatment period, is discoverable through routine experimentation. Applicant appears to place no criticality on the length of the pre-determined treatment period. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05(II)(A).
Claims 10-12, 17, and 18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 21 of U.S. Patent No. 10,328,236 in view of U.S. Patent Application Publication No. 2014/0024883 (Rosenzweig).
Regarding instant claims 10-12, 17, and 18, claim 21 of the ‘236 patent recites all the limitations of claims 8 and 15, except the processor is configured to provide the sensory stimulation for a predetermined treatment period of 2 or 5 hours.
However, Rosenzweig teaches a system for treating a user having PTSD (abstract), wherein the system is configured to provide a therapeutically effective amount of a visual sensory stimulation to the user occurs for a pre-determined treatment period, wherein the pre-determined treatment period is approximately 2 or 5 hours ([0003]; [0045]; 1-5 one-hour sessions for PTSD treatment, wherein 2 treatment sessions constitutes a predetermined total treatment prior of 2 hours and wherein 5 treatment session constitutes a predetermined total treatment period of 5 hours, [0088]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the processor of claim 21 of the ‘236 patent as modified such that the therapeutically effective amount of the sensory stimulation occurs for a pre-determined treatment period of about 2 or 5 hours as taught by Rosenzweig in order to “resolve post-traumatic stress disorder” (Rosenzweig: [0088]), wherein the number of sessions, thus the treatment period, is discoverable through routine experimentation. Applicant appears to place no criticality on the length of the pre-determined treatment period. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05(II)(A).
Claims 8, 9, 15, and 16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 14 of U.S. Patent No. 11,141,559. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 8 and 15 of the instant application are merely broader in scope than all that is recited in claim 14 of the ‘559 patent. That is, claims 8 and 15 are anticipated by claim 14 of the ‘559 patent. 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 (see In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993)). Claims 9 and 16 of the instant application are anticipated by claim 14 of the ‘559 patent, by the same reasoning.
Claims 8, 9, 15, and 16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 11,679,231. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 8 and 15 of the instant application are merely broader in scope than all that is recited in claim 12 of the ‘231 patent. That is, claims 8 and 15 are anticipated by claim 12 of the ‘231 patent. 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 (see In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993)). Claims 9 and 16 of the instant application are anticipated by claim 12 of the ‘231 patent, by the same reasoning.
Claims 8, 9, 15, and 16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 11,701,487. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 8 and 15 of the instant application are merely broader in scope than all that is recited in claim 12 of the ‘487 patent. That is, claims 8 and 15 are anticipated by claim 12 of the ‘487 patent. 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 (see In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993)). Claims 9 and 16 of the instant application are anticipated by claim 12 of the ‘487 patent, by the same reasoning.
Conclusion
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/CARRIE R DORNA/Primary Examiner, Art Unit 3791