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 .
Claim Objections
Claims 1-15 are objected to because of the following informalities: "playbinaural beats" should read "play binaural beats". Appropriate correction is required.
Claim 2 is objected to because of the following informalities: "29 Hz to 16 Hz" should read "16 Hz to 29 Hz". Appropriate correction is required.
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:
Control Unit first cited in Claim 1, the corresponding structure found in specification as Item 5 in Figure 4, 5, & 6.
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.
Claims 1-15 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.
Claim 1 recites “the two speakers configured to play binaural beats with frequency following response to the ears of the user” in lines 9-10. As written, the limitation “with
frequency following response” is indefinite as it raises the question “response of what?”.
Furthermore, it is grammatically unclear whether “frequency” is intended to reference
the frequency of the binaural beats, or applicant intends to define some other relationship between the binaural beats and “frequency”. Clarification is required.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 3-5, & 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by TW I751095 Hereinafter Shang-Yu.
In regards to Claim 1: A balance rehabilitation apparatus, configured for a user to use, including:
a support unit, corresponding to a head shape of the user, including two ears’ portions corresponding to ears of the user (Shang-Yu, Figure 3 Item 3) and a top-side portion connected between the two ears portions and configured to be disposed across a top of a head of the user upwardly (Shang-Yu, Figure 3 Item 2);
an audio stimulation unit (Shang-Yu, Figure 3 Item 31), including two speakers disposed on the two ears portions, the two speakers configured to play binaural beats with frequency following response to the ears of the user, the binaural beats with frequency following response having an audio frequency difference (Shang-Yu, Claim 1);
an electronic stimulation unit, including two front extension pieces connected with the two ears portions and extending to cheeks of the user respectively (Shang-Yu, Figure 3 Item 24), a rear extension piece connected between the two ears portions and configured to be disposed across a back of the head of the user (Shang-Yu, Figure 3 Item 23), a plurality of first electronic stimulation agents and two second electronic stimulation agents (Shang-Yu, Figure 3 Item 5), two of the plurality of first electronic stimulation agents respectively disposed on the two front extension pieces for corresponding to the cheeks of the user, two of the plurality of first electronic stimulation agents disposed on the rear extension piece for corresponding to two sides of a cerebellum of the user, the two second electronic stimulation agents disposed on an inner side of the rear extension piece for corresponding to mastoid processes behind the ears of the user, the plurality of first electronic stimulation agents and the two second electronic stimulation agents configured to output physical stimulations including one of a current for transcranial electrical stimulation and an electromagnetic pulse for transcranial magnetic stimulation to the head of the user (Shang-Yu, Page 3 Paragraph 4); and
a control unit, electrically connected with the two speakers, the plurality of first electronic stimulation agents and the two second electronic stimulation agents (Shang-Yu, Figure 2 Item 9), the control unit storing digital information of the binaural beats with frequency following response, controlling the two speakers to play the binaural beats with frequency following response simultaneously, and controlling the plurality of first electronic stimulation agents and the two second electronic stimulation agents to output the physical stimulations (Shang-Yu, Page 3 Paragraph 4).
In regards to Claim 3: when the plurality of first electronic stimulation agents and the two second electronic stimulation agents are of a type outputting direct current, a current intensity of the current is between 0.5 mA and 2 mA, a current density of the current is between 0.03 mA/cm2 and 0.09 mA/cm2; and when the plurality of first electronic stimulation agents are of a type outputting the electromagnetic pulse, an electromagnetic frequency of the electromagnetic pulses is between 1 Hz and 20 Hz (Shang-Yu, Page 4 Paragraph 10).
In regards to Claim 4: two of the plurality of first electronic stimulation agents disposed on the rear extension piece and corresponding to the cerebellum of the user include a plurality of conductive pillars parallel to one another and configured to output the physical stimulations (Shang-Yu, Page 4 Paragraph 11).
In regards to Claim 5: including a display and optical frequency-flashed stimulation unit, wherein the display and optical frequency-flashed stimulation unit is disposed on the support unit and electrically connected with the control unit, the display and optical frequency-flashed stimulation unit is switchable between a display mode and a frequency-flashed stimulation mode; in the display mode, the display and optical frequency-flashed stimulation unit displays a virtual image to the user; and in the frequency-flashed stimulation mode, the display and optical frequency-flashed stimulation unit displays a flashing image to stimulate eyes of the user (Shang-Yu, Page 4 Paragraph 12; Page 5 Paragraph 1).
In regards to Claim 7: when the display and optical frequency-flashed stimulation unit is in the frequency-flashed stimulation mode, the flashing image displayed by the display and optical frequency-flashed stimulation unit stimulates eyes of the user with an optical frequency difference (Shang-Yu, Page 4 Paragraph 12; Page 5 Paragraph 1; “Stimulates the eyes of the user”).
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.
Claim(s) 2 & 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over TW I751097 hereinafter Shang-Yu.
In regards to Claim 2: Shang-Yu teaches Claim 1 and wherein the audio frequency difference of the binaural beats with frequency following response is from 29 Hz to 16 Hz (Shang-Yu, Page 4 Paragraph 2).
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to use the frequency of binaural beats taught by Shang-Yu, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. See MPEP 2144.05.II. The Examiner notes that a particular parameter must be recognized as a result effective variable, in this case, that parameter is frequency which achieves the recognized result of resulting in the users reduced anxiety therefore, one of ordinary skill in the art at the filing date of the invention would have found the claimed range through routine experimentation. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). See also In re Boesch, 617 F.2d 272, USPQ 215 (CCPA 1980).
In regards to Claim 6: Shang-Yu teaches all of claim 1, and the display and optical frequency-flashed stimulation unit is in the frequency-flashed stimulation mode, the flashing image displayed by the display and optical frequency-flashed stimulation unit is flashed with a predetermined optical frequency, and the predetermined optical frequency is between 25 Hz and 50 Hz (Shang-Yu, Page 8 Paragraph 6).
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to use the frequency of binaural beats taught by Shang-Yu, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. See MPEP 2144.05.II. The Examiner notes that a particular parameter must be recognized as a result effective variable, in this case, that parameter is frequency which achieves the recognized result of resulting in the users reduced anxiety therefore, one of ordinary skill in the art at the filing date of the invention would have found the claimed range through routine experimentation. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). See also In re Boesch, 617 F.2d 272, USPQ 215 (CCPA 1980).
Conclusion
The examiner notes that, though no art has been applied against claims 8-15 at the is time, they are not presently allowable and the question of prior at will be revisited once the 112B issues have been addressed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 2020/0069966 (Porter) teaches a neuro-training device by applying visual and auditory stimulation to a patient.
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/N.R.D./Patent Examiner, Art Unit 3791 /ALEX M VALVIS/Supervisory Patent Examiner, Art Unit 3791