lDETAILED 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 Objections
Claims 51, 54, and 60 are objected to because of the following informalities:
Claim 51: “a central nervous system stimulators” should read –central nervous system stimulators--.
Claim 54 appears to include a duplicate of “ultrasonic nebulizers comprising a vibrating transducer actuated by the control unit”. One instance should be removed.
Claim 60: “agents for use the formulation” in line 3 should read --agents for use in the formulation--.
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:
olfactory dispensing unit first appearing in claim 48 (corresponding structure disclosed in applicant’s original specification as element 120)
control unit first appearing in claim 48 (corresponding structure disclosed in applicant’s original specification as element 104, hardware, smartphone, or computer)
timing device in claims 50 and 54 (corresponding structure disclosed in applicant’s original specification as a clock)
wireless communication unit in claims 62 and 64 (corresponding structure disclosed in applicant’s original specification as wireless routers configured to operate using wireless technology standards selected from the group consisting of Bluetooth@, Bluetooth® low energy (BLE), Zigbee®, Wi-Fi@, infrared, and near field communication)
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 48-67 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.
Claims 48, 52, and 61 each recite “circadian outcomes”. Claims 49 and 56 each introduce a “circadian system”. Claims 48 and 52 each recite a “circadian state”. It is unclear from the claim language what the difference between a circadian “state”, “outcome”, “phase”, and “system” is, whether applicant intends to differentiate between a “state”, “outcome”, “phase”, and “system”, and if applicant does intend to differentiate between the terms, how a “state”, “outcome”, “phase”, and “system” are related. Based on applicant’s original specification, circadian “phase” (or “rhythm”) is construed as an endogenous biological rhythm that has an approximately 24-hour period (page 2). Applicant’s original specification discloses “a human or animal whose circadian state (e.g., sleep onset)” (page 39), thus a “circadian state” is seemingly defined as some point within the 24-hour circadian phase. Applicant’s original specification mentions “circadian outcomes” and “circadian systems”, but does not provide sufficient explanation or disclosure to establish the meaning or scope of a circadian “outcome” or “system”.
Claim 56 recites “the sensors” in line 3, yet previously recites “the one or more sensors”. It is unclear whether applicant intends to reference and require a plurality or, “one or more” of the sensor(s).
Claim 62 recites the limitation “the formulations” in line 7. There is insufficient antecedent basis for this limitation in the claim.
Claim 63 recites the limitation “the formulations in line 6. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 52-67 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). Claim 52 recites “wherein dispensing of the olfactory agents modulates a circadian phase and consciousness state of the one or more subject”. The broadest reasonable interpretation of this limitation encompasses a positive relationship to a human body, thus is nonstatutory. Similarly, claim 55 recites the limitation “the olfactory agents modulate sleep/wake patterns of the one or more subjects”. Claim 58 recites “software that tracks sleep history information of the one or more subjects”. The examiner suggests applicant amend these limitations to include language such as --configured to-- or --adapted to-- order to overcome these rejections.
Claim Rejections - 35 USC § 102
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)(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.
Claims 48, 50-55, 58, 63, and 65-67 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by U.S. Patent No. 10,384,032 (LaPorte et al.).
Regarding claim 48, LaPorte et al. teaches a method for adjusting consciousness patterns and circadian states of one or more subjects (Figure 3; col. 10, lines 3-5), the method comprising:
providing an olfactory dispensing unit (672) (col. 6, lines 4-27; col. 11, lines 47-50; col. 12, lines 21-24; Figures 1C, 3, and 6);
actuating the olfactory dispensing unit (672) using a control unit (670), and storing data from one or more sensors (180) (controller controls scent diffusion based on sensed and stored sleep data: col. 8, lines 10-25; col. 10, lines 3-32; controller 670 controls diffusing system 672 to alter dispersal of scent(s) based on sleep phase: col. 6, lines 4-27; col. 11, lines 47-50; col. 12, lines 21-24; Figures 1C and 6);
performing, using the one or more sensors (180), a function selected from the group consisting of estimating and tracking activity and inactivity data for one or more subjects, collecting and monitoring consciousness patterns data for one or more subjects, and quantifying measurements of circadian outcomes for one or more subjects (col. 2, lines 38-43; sleep monitoring device 180 detects consciousness pattern data, col. 8, lines 10-25; col. 10, lines 3-32);
inputting, using a user interface (140, 406), control commands for using the control unit (670) to actuate the olfactory dispensing unit (672) to dispense the olfactory agents (interface 140, may include button 406, may receive user input including configuration information, controller state adjustments: col. 6, lines 41-62; user input adjust scent, col. 10, lines 53-61);
electronically communicating, between the olfactory dispensing unit (672) and the control unit (670) and between the user interface (180, 406) and control unit (670) (Figure 1C; elements in electronic communication as the controller 670 controls dispensing unit 672 and the user input 140 controls controller operation: col. 6, lines 41-62; col. 10, lines 53-55); and
dispensing of the olfactory agents, thereby modulating a circadian phase of the one or more subjects in response to a condition of the one or more subjects and an environment of the one or more subjects (LaPorte teaches scents dispersed in accordance with detected sleep phase and environmental state of user: col. 6, lines 6-40; col. 8, lines 10-35; col. 9, lines 61-63; col. 10, lines 12-32 and lines 53-66; Figure 6. Since sleep is part of a biological 24-hour rhythm that is impacted and modulated by the dispersed scents, the reference teaches modulating “a circadian phase” in response to sensed data.).
Regarding claim 50, LaPorte et al. teaches the control unit (670) actuates the olfactory dispensing unit (372) as a function of time, according to a formulation, using a timing device configured to keep time (time monitored by controller circuitry construed as “timing device”, col. 10, lines 19-32; Figure 2), memory (662) to store the formulation and data from the one or more sensors (180) and other system components, using a processor (660) to compute relevant parameters and adjust the formulation in real-time to control timing when the olfactory agents are dispensed and amounts indicating a quantity of the olfactory agents to dispense (controller controls scent diffusion based on sensed and stored sleep data: col. 8, lines 10-25; col. 10, lines 3-32; controller 670 controls diffusing system 672 to alter dispersal of scent(s) based on sleep phase: col. 6, lines 4-27; col. 11, lines 47-50; col. 12, lines 21-24; Figure 2),
wherein the olfactory dispensing unit (672) is configured to dispense the olfactory agents using an actuator that uses at least one mechanism selected from the group consisting of electrical heating of olfactory agents comprising one or more liquids actuated by the control unit at specific times designated by the formulation to cause evaporation, ultrasonic nebulizers comprising a vibrating transducer actuated by the control unit, air-stream atomizers comprising an air- stream generator actuated by the control unit, and volatile substances stored in a container that is opened and closed by the control unit to respectively allow and prevent vapors of the olfactory agents to propagate out of the olfactory dispensing unit and into the environment of the one or more subjects (ultrasonic diffusers 640, 642 “break oil particles to micro-molecules to disperse the oil into the air as ions”, col. 12, lines 21-29).
Regarding claim 51, LaPorte teaches the olfactory agents comprise one or more agents selected from the group consisting of central nervous system depressants and a centra nervous system stimulator (“agents” construed as essential oils for both waking up and relaxing the user, thus oils disclosed are considered to include both central nervous system depressants and stimulators, col. 1, line 64-col. 2, line 1 and col. 2, lines 24-29).
Regarding claim 52, LaPorte et al. teaches a system for adjusting consciousness patterns and circadian states of one or more subjects, the system comprising:
an olfactory dispensing unit (672) configured to dispense olfactory agents (col. 6, lines 4-27; col. 11, lines 47-50; col. 12, lines 21-24; Figures 1C and 6);
a control unit (670) configured to actuate the olfactory dispensing unit (672) and store data from one or more sensors (180) configured to perform one or more functions selected from the group consisting of estimating and tracking activity and inactivity data for the one or more subjects, collecting and monitoring consciousness patterns data for the one or more subjects, and quantifying measurements of circadian outcomes for the one or more subjects (controller controls scent diffusion based on sensed and stored sleep data: col. 8, lines 10-25; col. 10, lines 3-32; controller 670 controls diffusing system 672 to alter dispersal of scent(s) based on sleep phase: col. 6, lines 4-27; col. 11, lines 47-50; col. 12, lines 21-24; Figures 1C and 6);
a user interface (140) operative to receive control commands, input from a user, for using the control unit (670) to actuate the olfactory dispensing unit (672) to dispense the olfactory agents (interface 140 may receive user input including configuration information, controller state adjustments: col. 6, lines 41-62; user input adjust scent, col. 10, lines 53-55);
wherein the olfactory dispensing unit (672) and the control unit (670) are configured to be in electronic communication and wherein the user interface (140) and the control unit (670) are configured to be in electronic communication (Figure 1C; elements in electronic communication as the controller 670 controls dispensing unit 672 and the user input 140 controls controller operation: col. 6, lines 41-62; col. 10, lines 53-55); and
wherein dispensing of the olfactory agents modulates a circadian phase and consciousness state of the one or more subjects in response to a condition of the one or more subjects and an environment of the one or more subjects as measured by the one or more sensors (LaPorte teaches scents dispersed in accordance with detected sleep phase and environmental state of user: col. 6, lines 6-40; col. 8, lines 10-35; col. 9, lines 61-63; col. 10, lines 12-32 and lines 53-66. Since sleep is part of a biological 24-hour rhythm that is impacted and modulated by the dispersed scents, the reference teaches modulating “a circadian phase and consciousness state” in response to sensed data.).
Regarding claim 53, LaPorte et al. teaches the olfactory dispensing unit (672) comprises one or more containers that store the olfactory agents, and one or more actuators that dispense the olfactory agents into the environment of the one or more subjects (ultrasonic diffusers 640, 642 contain oils and include ultrasonic actuators and a fan 630 for oil dispersal: col. 12, lines 21-31).
Regarding claim 54, LaPorte et al. teaches the control unit (670) actuates the olfactory dispensing unit (372) as a function of time, according to a formulation, using a timing device configured to keep time (time monitored by controller circuitry construed as “timing device”, col. 10, lines 19-32; Figure 2), memory (662) to store the formulation and data from the one or more sensors (180) and other system components, using a processor (660) to compute relevant parameters and adjust the formulation in real-time to control timing when the olfactory agents are dispensed and amounts indicating a quantity of the olfactory agents to dispense (controller controls scent diffusion based on sensed and stored sleep data: col. 8, lines 10-25; col. 10, lines 3-32; controller 670 controls diffusing system 672 to alter dispersal of scent(s) based on sleep phase: col. 6, lines 4-27; col. 11, lines 47-50; col. 12, lines 21-24; Figure 2),
wherein the olfactory dispensing unit (672) is configured to dispense the olfactory agents using an actuator that uses at least one mechanism selected from the group consisting of electrical heating of olfactory agents comprising one or more liquids actuated by the control unit at specific times designated by the formulation to cause evaporation, ultrasonic nebulizers comprising a vibrating transducer actuated by the control unit, air-stream atomizers comprising an air- stream generator actuated by the control unit, and volatile substances stored in a container that is opened and closed by the control unit to respectively allow and prevent vapors of the olfactory agents to propagate out of the olfactory dispensing unit and into the environment of the one or more subjects (ultrasonic diffusers 640, 642 “break oil particles to micro-molecules to disperse the oil into the air as ions”, col. 12, lines 21-29).
Regarding claim 55, LaPorte teaches the consciousness patterns comprise the subjects’ sleep/wake patterns; and wherein the olfactory agents modulate sleep/wake patterns of the one or more subjects (“ambient sleep system may detect sleep patterns and adjust the phases accordingly” and change settings of olfactory emissions for each phase, col. 9, lines 55-66; controller 670 controls diffusing system 672 to alter dispersal of scent(s) based on sleep phase: col. 6, lines 4-27; col. 11, lines 47-50; col. 12, lines 21-24; Figures 1C and 6; see discussion for claim 1).
Regarding claim 58, LaPorte teaches at least one smart olfactory dispensing unit (672) and software that tracks sleep history information of the one or more subjects (sleep history, col. 9, lines 55-66), then sets a sleep-and-wake schedule for the one or more subjects and designates specific olfactory agents assigned to activity events selected from the group consisting of bedtime, risetime, nap time, awake time and combinations thereof, wherein the olfactory agents will be automatically dispensed at specific times of day to facilitate at least one action selected from the group consisting of sleep, wake, increased energy, and relaxation, wherein the system uses algorithms to avoid habituation to olfactory agents relative to onset of activity events (changes to phases and olfactory cue programming made based on sleep history to adjust at least bedtime to affect sleep and relaxation, col. 9, lines 55-67).
Regarding claim 63, LaPorte teaches all the limitations of claim 52. LaPorte teaches the control unit (670, smartphone) is physically separated from the olfactory dispensing unit (672) and communicates electronically with the olfactory dispensing unit using wired or wireless technologies, wherein the control unit uses processors, memory, and dedicated software that control the system and the control unit is physically connected to the user interface configured to receive the input from the user to modify parameters of the system and adjust the formulations (“control unit” construed as controller 670 and smartphone wirelessly coupled to diffusing system 672, col. 11, lines 30-44).
Regarding claim 65, LaPorte teaches a fan (630), configured to circulate air through the system (col. 12, lines 30-32).
Regarding claim 66, LaPorte teaches the olfactory agents comprise one or more agents selected from the group consisting of central nervous system depressants and a centra nervous system stimulator (“agents” construed as essential oils for both waking up and relaxing the user, thus oils disclosed are considered to include both central nervous system depressants and stimulators, col. 1, line 64-col. 2, line 1 and col. 2, lines 24-29).
Regarding claim 67, LaPorte et al. teaches the one or more subjects comprise a human (col. 1, line 46; col. 5, line 48).
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 49, 56, and 57 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 10,384,032 (LaPorte et al.) in view of in view of U.S. Patent Application Publication No. 2006/0106275 (Raniere et al.).
Regarding claims 49 and 56, LaPorte et al. teaches all the limitations of claim 72 or 81. LaPorte et al. teaches the one or more sensors (180) are configured to perform collecting and monitoring of consciousness pattern data of the one or more subjects, and wherein the control unit (670) uses consciousness pattern data of each of the one more subjects to optimize a formulation of the olfactory agents in real-time to provide cues to achieve a stimuli response in each of the one or more subjects, wherein the stimuli response comprises one or more actions selected from the group consisting of shifting of timing of sleep, reducing sleep onset latency, enhancing sleep consolidation and reducing variability in sleep patterns (controller 670 controls diffusing system 672 to alter dispersal of scent(s) based on determined sleep phase to at least shift timing of sleep, and reduce variability in sleep patterns: col. 6, lines 4-27; col. 8, lines 16-20; col. 10, lines 12-32; col. 11, lines 47-50; col. 12, lines 21-24). LaPorte et al. does not specify the type of sensor(s), such that the sensor(s) quantify the sleep and circadian rhythm of the one or more subjects by sensing at least one signal selected from the group consisting of rest and activity cycles using actigraphy, signals using polysomnography, skin temperature, sleep onset time and duration, environmental light exposure, total light dosage received by the one or more subjects over a period of time, pulse oximetry, blood oxygen saturation levels, and skin secretions of the one or more subjects.
However, Raniere teaches a system and method for adjusting consciousness patterns and circadian states of one or more subjects (abstract), comprising: sensing at least one signal, wherein the at least one signal is of a type selected from the group consisting of polysomnography, skin temperature, pulse oximetry, blood oxygen saturation levels, and skin secretions of the one or more subjects, for quantifying the sleep and circadian rhythm of the one or more subjects ([0023]-[0028]). 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 sleep monitoring device to include one or more sensors detecting polysomnography, skin temperature, pulse oximetry, blood oxygen saturation levels, and skin secretions of the one or more subjects as taught by Raniere, because detecting such physiological characteristics provide signals indicative of a sleep phase or level of consciousness to thereby inform stimulation delivery ([0023]; [0028]).
Regarding claim 57, LaPorte teaches wherein the control unit (670) uses consciousness patterns data of each of the one more subjects to optimize a formulation of the olfactory agents in real-time to provide cues to achieve a stimuli response in each of the one or more subjects, wherein the stimuli response comprises one or more actions selected from the group consisting of shifting of timing of sleep, adjusting circadian phase, enhancing alertness, enhancing performance, reducing sleep onset latency, enhancing sleep consolidation and reducing variability in sleep patterns and adjusting mood (real-time sleep data captured, and olfactory cues adjusted based on captured data in order to adjust to the user falling asleep faster than expected, keep the user asleep if they start to wake too soon, and assist the user in staying asleep: col. 8, lines 24-50, lines 54-col. 9, line 23. Accordingly, the control unit uses sleep data to optimizing olfactory cues in real time to shift the timing of sleep, reduce sleep onset latency, enhance sleep consolidation, and reduce variability in sleep patterns.).
Claim 59 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 10,384,032 (LaPorte et al.) in view of U.S. Patent Application Publication No. 2013/0338446 (Van Vugt et al.).
Regarding claim 59, LaPorte teaches all the limitations of claim 52. LaPorte teaches the one or more sensors (180) are configured to sense the environment of the one or more subjects allowing the system to control a quantity of olfactory agents present in the environment of the one or more subjects (scents adjusted based on environment light and/or sound, etc.: col. 6, lines 4-40; microphone, col. 7, lines 4-17. . LaPorte does not specify the sensor(s) are configured to directly measure the concentration of olfactory agents in air of the environment of the one or more subjects, wherein the one or more sensors comprise a sensor selected from the group consisting of sensors configured for estimating concentrations in air for certain specific gases, sensors configured for estimating concentrations in air for volatile organic compounds, sensors that map aromas to images and combinations thereof.
However, Van Vugt teaches a sleep monitoring device (abstract), comprising sensors configured to sense the environment of one or more subjects by directly measuring the concentration of olfactory agents of the environment of the one or more subjects, wherein the one or more sensors comprise a sensor selected from the group consisting of sensors configured for estimating concentrations in air for certain specific gases, sensors configured for estimating concentrations in air for volatile organic compounds, sensors that map aromas to images and combinations thereof (air quality sensor detecting oxygen, nitrogen, and/or scent, [0015]; [0052]; sleep sensor, [0053]-[0054]). 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 LaPorte to include a sensor configured to directly measuring the concentration of olfactory agents of the environment of the one or more subjects, comprising a sensor configured for certain specific gases and a sensor configured for estimating concentrations in air for volatile organic compounds as taught by Van Vugt ([0052]).
Claim 60 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 10,384,032 (LaPorte et al.) in view of U.S. Patent Application Publication No. 2004/0033279 (Warrenburg et al.).
Regarding claim 60, LaPorte teaches all the limitations of claim 52. LaPorte teaches a formulation comprises a list of times and desired concentrations of the olfactory agents at each time (col. 6, lines 7-27; col. 11, lines 39-41). LaPorte does not specify the concentrations of olfactory agents for use the formulation are determined from measured amounts of the olfactory agents absorbed by the one or more subjects over a certain exposure period, and wherein concentrations of olfactory agents for use in the formulation are measured using absolute units, empirical units and combinations thereof.
However, Warrenburg teaches a system for delivering olfactory agents to a user to induce relaxation (abstract), wherein the olfactory agents have concentrations determined from measured amounts of the agents absorbed by one or more subjects over a certain exposure period, wherein the concentrations of the olfactory agents are measured using absolute units, empirical units, and combinations thereof (“concentration, C, preferably from about 1 nanogram per liter up to about 125 micrograms per liter and (iii) inhalation rate…preferably from about 1 microgram/hour up to about 45 milligrams/hour, of one or more fragrance compositions”, [0019]). 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 LaPorte such that the concentrations of olfactory agents are determined from measured amounts of the agents absorbed by one or more subjects over a certain exposure period, wherein the concentrations of the olfactory agents are measured using absolute units, empirical units, and combinations thereof as taught by Warrenburg in order to provide precise concentrations of olfactory agents to produce the desired effect, such as relaxation, in the one or more subjects ([0019]).
Claim 61 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 10,384,032 (LaPorte et al.) in view of JP 2019501354 (see attached machine translation).
Regarding claim 61, LaPorte teaches all the limitations of claim 52. LaPorte teaches the control unit (670) actuates the olfactory dispensing unit (672) to dispense olfactory agents with output and intensity based upon measurements of circadian outcomes to determine adequate concentrations of a formulation and the olfactory agents in an environment of the one or more subjects (controller controls scent diffusion based on sensed and stored sleep data: col. 8, lines 10-25; col. 10, lines 3-32; controller 670 controls diffusing system 672 to alter dispersal of scent(s) based on sleep phase: col. 6, lines 4-27; col. 11, lines 47-50; col. 12, lines 21-24; Figures 1C and 6). LaPorte does not teach the output and intensity is based upon application of machine learning techniques.
However, the ‘354 document teaches a system for delivering olfactory agents to one or more users (abstract), comprising: a control unit that actuates an olfactory dispensing unit to dispense olfactory agents with output and intensity based upon an application of machine learning techniques to indirectly infer adequate concentrations of a formulation of the olfactory agents (see translation, pg. 8, paragraph 6). 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 LaPorte such that the concentrations of the olfactory agents are determined via machine learning techniques as taught by the ‘354 document in order to determine the optimal concentrations based on the one or more subject’s historical data over time (see translation, pg. 8, paragraph 6).
Claim 62 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 10,384,032 (LaPorte et al.) in view of U.S. Patent Application Publication No. 2009/0200399 (McGee et al.).
Regarding claim 62, LaPorte teaches all the limitations of claim 52. LaPorte teaches the olfactory dispensing unit (672) and the control unit (670) are both contained within a physical device that further comprises a wireless communication unit (col. 11, lines 30-44), and wherein a formulation is stored in memory of the control unit controlling dispensing of the olfactory agents and the control unit is controlled remotely using wireless electronic communication sent from a separate device comprising the user interface configured to receive input from the user to modify parameters of the system and adjust the formulations (wireless, smartphone control: col. 11, lines 30-44). LaPorte does not teach the device comprises a smart plug.
However, McGee teaches a system for dispensing olfactory agents (abstract), comprising: an olfactory dispensing unit and a control unit contained within a device comprising a smart plug (abstract; [0012]; [0020]). 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 device of LaPorte such that the olfactory dispensing unit and control unit are contained within a device comprising a smart plug as taught by McGee because such a configuration enables the device to be plugged directly into a power source “without the need for a power cord”, is desirable (popular, [0002]; [0006]).
Claim 64 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 10,384,032 (LaPorte et al.).
Regarding claim 64, LaPorte teaches all the limitations of claim 52. LaPorte teaches the control unit (670), olfactory dispensing unit (672), and the one or more sensors communicate electronically (see discussion for claim 52). LaPorte does not expressly state in the cited embodiment the communication uses transceivers, wireless communication units and wireless routers configured to operate using wireless technology standards selected from the group consisting of Bluetooth, Bluetooth low energy (BLE),Zigbee, Wi-Fi, infrared, near field communication and combinations thereof.
However, LaPorte teaches an alternative system embodiment wherein a control unit (190), olfactory dispensing unit (162, 164), and other elements of the system communicate electronically via transceivers, wireless communication units and wireless routers configured to operate using wireless technology standards selected from the group consisting of Bluetooth, Bluetooth low energy (BLE), Zigbee, Wi-Fi, infrared, near field communication and combinations thereof (col. 7, lines 18-54; col. 7, line 66-col. 8, line 5; Figure 1B). It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify the system of Figure 6 of LaPorte such that the control unit, olfactory dispensing unit, and one or more sensors communicate electronically via transceivers, wireless communication units and wireless routers configured to operate using wireless technology standards selected from the group consisting of Bluetooth, Bluetooth low energy (BLE) Zigbee, and Wi-Fi as taught by LaPorte Figure 4, in order to facilitate remote communication with multiple system components, increasing flexibility of use.
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 48-57, 63, and 65-67 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 72-87 of copending Application No. 17/062,621 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 48 of the instant application is merely broader in scope than all that is recited in claim 81 of the ‘621 application. That is, claim 48 is anticipated by claim 81 of the ‘621 application. Similarly, claim 52 is anticipated by claim 72 of the ‘621 application. 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 49-51, 53-57, 63, and 65-67 of the instant application are anticipated by claims 72-87 of the ‘621 application, by the same reasoning.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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/CARRIE R DORNA/Primary Examiner, Art Unit 3791