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 15-21 in the reply filed on 31 May 2026 is acknowledged. Claims 1-14 and 22-35 are withdrawn from consideration.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “90A” has been used to designate both “wearable device” and “cuff or band member”.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “90B” has been used to designate: “wearable device”, “wearable therapy system” and “cuff or band member”.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “91B” has been used to designate: “wearable device”, “arm extensions” and “design”.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “93B” has been used to designate: “therapeutic delivery device” and “unit”.
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: “wearable audio delivery and monitoring device” and “system”.
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: “ear buds”, “wearable audio delivery and/or monitoring device and “wearable audio delivery and 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: “80”, “90A” and “94B”. Corrected drawing sheets in compliance with 37 CFR 1.121(d) 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: “signal generating output device” in claim 15, the equivalent structures of which are described in at least paragraphs [0011], [0012], [0075], [0117], [0125] of the instant publication; “multiple signal source output device” in claims 19 and 20; and “neck monitoring module adapted to be operatively coupled to the spine…transdermally sense or detect and transmit physiological data” in claim 21.
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 Rejections - 35 USC § 112
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 15-21 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.
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 15 recites the broad recitation “at least one vibration speaker or vibration transduction component”, and the claim also recites “wherein there is included an RF module operatively coupled to the transduction component” 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.
At line 7 of claim 15, it is unclear if “at least one vibration speaker” is the same as or different than “at least one vibration speaker” recited at line 2.
At line 8 of claim 15, it is unclear if “vibration transduction component” is the same as or different than “vibration transduction component” recited at line 2.
At line 10 of claim 15, it is unclear if “the vibration speaker” is referring back to “vibration speaker” of line 2 or line 7.
At lines 10-11 of claim 15, it is unclear if “the…vibration transduction component” is referring back to “vibration transduction component” of line 2 or line 8.
Claim 16 at line 3 recites the limitation "the housing…module". There is insufficient antecedent basis for this limitation in the claim.
Claim 17 at line 2 recites “…and deliver same”. It is unclear what constitutes “same” in this instance.
Claim limitation “multiple signal source output device” (claims 19 and 20) and ““neck monitoring module adapted to be operatively coupled to the spine…transdermally sense or detect and transmit physiological data” (claim 21) invokes 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. 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.
Claim 19 at line 2 recites the limitation "the housing". There is insufficient antecedent basis for this limitation in the claim.
Claim 19 at line 4 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 19 at lines 5-6 recites the limitation “provides the vibration speaker or vibration transduction component digital media”. This recitation is unclear, though it appears that the term --with-- prior to “digital medial” could resolve the rejection.
Claim 20 at line 1 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 20 at line 2 recites the limitation "the housing". There is insufficient antecedent basis for this limitation in the claim.
Claim 20 at line 4 recites the limitation "the ear audio devices". There is insufficient antecedent basis for this limitation in the claim.
Claim 20 at lines 5-6 recites the limitation “providing the vibration speaker or vibration transduction component digital media”. This recitation is unclear, though it appears that the term --with-- prior to “digital medial” could resolve the rejection.
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 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Afshar (U.S. Pub. No. 2007/0038164) in view of Yoo et al. (U.S. Pub. No. 2013/0017520).
Regarding claim 15, Afshar teaches a wearable sensory stimulation neck apparatus comprising:
a housing member 502/604 comprising at least one vibration speaker or vibration transduction component ([0041] and [0043]) electrically coupled to a power source ([0010] and claim 26) and wherein there is included a wireless transceiver operatively coupled to the at least one vibration speaker or vibration transduction component ([0040] and [0058]),
the housing member adapted to be positioned on a back of a user's neck and over an uppermost portion of a spine of the user (Figs. 5, 9 and 11), and
wherein an outer portion of the housing member includes an attachment member (“support structure”/ “curved harnesses”) adapted to attach or adhere the housing member to the user's neck (Figs. 5-6C and [0041]),
wherein at least one vibration speaker or vibration transduction component within the housing member is adapted to receive a wired or wireless signal from a signal generating output device via the wireless transceiver ([0039]-[0040] and [0058]-[0060]), and
wherein the wired or wireless signal from the signal generating output device provides the vibration speaker or vibration transduction component digital media that becomes sensory vibrational stimulation ([0058]-[0063], [0067]-[0068]).
However, Afshar fails to disclose explicitly that the power source is located in the housing and that the wireless transceiver is an RF module. Yoo et al. (hereinafter Yoo) teaches a multisensory system, for providing an audio and visual output to the head of a user (see Abstract), wherein the housing member/frame comprising at least one vibration speaker 106/108 or vibration transduction component ([0033]-[0034] and Fig. 9) and further comprises a power source (“power source”), processor, controller and user input interface [0033], wherein the user input component may receive input via radio signal ([0068] and [0040]) for controlling/providing the audio and visual output to the head of the user [0033]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to locate a power source as taught by Afshar, in the housing member as suggested by Yoo, as Afshar recognizes that the power source supplies the signal processing circuitry, located in the housing member, with power ([0010] and claim 26). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the wireless transceiver as taught by Afshar, as an RF module, as suggested by Yoo, as Afshar recognizes that the device may communicate with the signal generating device via wired or wireless means to communicate the audio or haptic data [0040], and Yoo teaches that such wired or wireless means may include radio or infrared communications ([0040] and [0068]).
Regarding claims 16 and 18, Afshar discloses the invention as claimed, see rejection supra; however Afshar fails to disclose that the apparatus further comprises at least one of an augmented reality (AR) accessory, a virtual reality (VR) accessory, and a mixed reality (MR) accessory that is operatively coupled to the housing member, wherein each of the accessories is adapted to provide at least video or visual images to the user. 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 with a housing member/frame (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 an apparatus for delivering audio, vibrational and visual stimulation as suggested by Afshar, 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 17, and in view of its indefinite nature, Afshar teaches that the housing member 502/604 and the transduction component (602a,b) are adapted to receive vibrational sensory content and digital data and deliver same to the user ([0039]-[0041], [0043], [0045]).
Regarding claim 19, and in view of its indefinite nature, Afshar teaches that the at least one vibration speaker or vibration transduction component within the housing member 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”) via a transceiver ([0040] and [0045]), 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 an AR 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 accessory as taught by Yoo, in an apparatus for delivering audio, vibrational and visual stimulation as suggested by Afshar, 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.
However, Afshar fails to disclose explicitly that the wireless transceiver is an RF module. As indicated above, Yoo teaches a multisensory system, for providing an audio and visual output to the head of a user (see Abstract), wherein the housing member/frame comprising at least one vibration speaker 106/108 or vibration transduction component ([0033]-[0034] and Fig. 9) and further comprises processor, controller and user input interface [0033], wherein the user input component may receive input via radio signal ([0068] and [0040]) for controlling/providing the audio and visual output to the head of the user [0033]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the wireless transceiver as taught by Afshar, as an RF module, as suggested by Yoo, as Afshar recognizes that the device may communicate with the signal generating device via wired or wireless means to communicate the audio or haptic data [0040], and Yoo teaches that such wired or wireless means may include radio or infrared communications ([0040] and [0068]).
Regarding claim 20, and in view of its indefinite nature, Afshar teaches that wired or wireless in-ear or over-ear audio devices 504a,b and 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”) via a transceiver ([0040] and [0045]), with the signal from the multiple source output device providing the ear audio devices 504a,b with audio sensory stimulation and providing 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 a 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 VR accessory as taught by Yoo, in an apparatus for delivering audio, vibrational and visual stimulation as suggested by Afshar, 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.
However, Afshar fails to disclose explicitly that the wireless transceiver is an RF module. As indicated above, Yoo teaches a multisensory system, for providing an audio and visual output to the head of a user (see Abstract), wherein the housing member/frame comprising at least one vibration speaker 106/108 or vibration transduction component ([0033]-[0034] and Fig. 9) and further comprises processor, controller and user input interface [0033], wherein the user input component may receive input via radio signal ([0068] and [0040]) for controlling/providing the audio and visual output to the head of the user [0033]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the wireless transceiver as taught by Afshar, as an RF module, as suggested by Yoo, as Afshar recognizes that the device may communicate with the signal generating device via wired or wireless means to communicate the audio or haptic data [0040], and Yoo teaches that such wired or wireless means may include radio or infrared communications ([0040] and [0068]).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Afshar (U.S. Pub. No. 2007/0038164) in view of Yoo et al. (U.S. Pub. No. 2013/0017520) and further in view of Chandra et al. (U.S. Pub. No. 2015/0258302). (It is noted that Chandra et al. is considered as prior art as the effective filing date of the instant application for art purposes is considered to be 18 March 2015 which discloses a RF module as recited in claim 15). Regarding claim 21, Afshar and Yoo discloses the invention as claimed, see rejection supra; however the combination fails to disclose wherein the housing member further comprises a neck monitoring module adapted to be operatively coupled to the spine of the user, the neck monitoring module adapted to transdermally sense or detect and transmit physiological data via the RF module to an external device. Chandra et al. (hereinafter Chandra) teaches a wearable device to determine a current physiological state of a user, further configured to provide adjustable, tactile vibration to the wearer upon activation of a remote device (see Abstract), to provide therapeutic vibration to a user suffering from anxiety [0007]. Chandra further teaches that the strap/housing member may be placed around the neck of the user [0008], which would place it adjacent the spine, and comprises an integrated heart rate monitor (“neck monitoring module”) and accelerometer for monitoring whether the wearer is experiencing an episode of anxiety [0008]. The wearable device/strap further comprises wireless communication, such as radio-frequency or Bluetooth, in order to transmit data/signals between the wearable device and the remote control [0008]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the housing member, which rests upon the neck/spine of a user as taught by Afshar, to include a neck monitoring module adapted to be operatively coupled to the spine of the user and transdermally sense and transmit physiological data via an RF module to an external device as taught by Chandra, as Afshar recognizes the provision of vibrations to the neck area of a user ([0008], [0039] and [0044]), and Chandra teaches that sensing physiological parameters in the neck area enables the determination of an anxiety-inducing event which would require the provision of vibration therapy ([0007]-[0008], [0011]-[0014]).
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; and U.S. Patent No. 12,220,251 to Snow.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTINE HOPKINS MATTHEWS whose telephone number is (571)272-9058. The examiner can normally be reached Monday - Friday, 7:30 am - 4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles A Marmor, II can be reached at (571) 272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTINE H MATTHEWS/Primary Examiner, Art Unit 3791
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