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 .
Status of Claims
Claims 1-5 and 15 are rejected
Claims 6-14, 16-20 are objected to
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.
Claim 15 is 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 15 merely recites ‘a use’ without any active, positive steps delimiting how this use is actually practiced. This renders the claim indefinite.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-5 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Baker et al (US PUB 20200129760, hereinafter Baker).
Regarding Claim 1, Baker discloses a medical device for stimulating neurons of a patient to suppress a pathologically synchronous activity of the neurons (e.g. a tinnitus treatment device 100), (see [0024], and figures 1-3), comprising: a stimulation unit configured for selectively generating acoustic stimuli to be administered to the patient (e.g. earbuds 160, 170 selectively apply stimuli to the user) and a control unit (e.g. a controller) for actuating the stimulation unit to generate a plurality of stimuli of different frequencies (e.g. plurality of tinnitus therapy sound templates that are based on different frequencies), (see [0047]-[0048], [0058]-[0059] and [0066], also figure 3-4),
wherein the control unit is configured to determine a target frequency range (e.g. specific frequency ranges) within a hearing range of the patient in dependence on an auditory perception of the patient (see figure 5B); and to select the plurality of stimuli such that the frequencies of the plurality of stimuli are within the target frequency range (e.g. in step 560, plurality of stimuli having frequency within the target frequency range are selected), (see Baker, [0073]-[0075] and [0087]-[0089], also figures 5B and 6).
Baker does not explicitly disclose that the frequencies of the selected plurality stimuli correspond to tone frequencies of a musical scale spanning at least one octave.
However, Middlebrooks in the same field of endeavor teaches that tit is well known in the art to select plurality of stimuli having frequencies corresponding to tone frequencies of a musical scale spanning at least one octave as set forth in [0036], and figure 3. Therefore, it would have been obvious to any person having an ordinary skill in the art to incorporate selecting plurality of stimuli with frequencies spanning at least one octave as taught by Middlebrooks in the teachings of Baker in order to effectively suppress high pitched hearing problems such as tinnitus in the patient.
Regarding Claim 2, Baker as modified by Middlebrooks discloses the medical device according to claim 1, wherein the control unit is configured to determine the target frequency range (e.g. specific tinnitus therapy sounds) in dependence on a subjective evaluation of the auditory perception of the patient (see Baker, [0023] and figure 3).
Regarding Claim 3, Baker as modified by Middlebrooks discloses the medical device according to claim 1, wherein the control unit is configured to determine the target frequency range in dependence on an evaluation of at least one frequency-dependent characteristic of the auditory perception of the patient (see Baker, [0023] and figure 3).
Regarding Claim 4, Baker as modified by Middlebrooks discloses the medical device according to claim 1, wherein the control unit is configured to determine the target frequency in dependence on at least one of an audiogram determination procedure, a psychoacoustic tinnitus spectrum determination procedure, a procedure for determining auditory hallucinations, a similarity measure procedure, or a procedure for determining pleasantness or unpleasantness of different tones experienced by the patient (see Baker, [0023] and figure 3).
Regarding Claim 5, Baker as modified by Middlebrooks discloses the medical device according to claim 1, wherein the musical scale comprises a pitch pattern consisting of a plurality of pitches per octave (see Baker, [0066] and [0073], also figure 3).
Regarding Claim 15, Baker as modified by Middlebrooks discloses a method, comprising using the medical device according to claim 1 to treat a pathologically synchronous activity of neurons of the patient (see Baker, [0022] and [0112])
Allowable Subject Matter
Claims 6-14, 16-20 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record provided on PTO 892 and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OYESOLA C OJO whose telephone number is (571)272-0848. The examiner can normally be reached Monday through Friday 8:00am to 4:00pm Central Time.
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/OYESOLA C OJO/Primary Examiner, Art Unit 2695
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