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 .
Response to Amendment
Applicant’s amendments to claims 1-19 overcome the claim objections and 112(b) rejections previously set-forth in the non-final action.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-19 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Due to the amendment of the claims, the claims are interpreted over a new scope and new art is being applied below.
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)(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.
Claim(s) 1-14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Stupacher, “Musical groove modulates motor cortex excitability: A TMS investigation”, herein referred to as “Stupacher”.
Regarding claim 1, Stupacher teaches: A system comprising: a transcranial magnetic stimulation (TMS) device (2.3 TMS and EMG recordings: using TMS) configured, via a TMS controller, to generate, via a TMS waveform, a localized magnetic field waveform at a brain region (2.3 TMS and EMG recordings: applying TMS); and an acoustic controller configured to generate an audio waveform having at least one of a rhythm element, a harmonic element, or a melodic element synchronized to the localized magnetic field waveform, wherein the rhythm element, the harmonic element, or the melodic element of the audio waveform are in an auditory range (2.2 Musical Stimuli: music being listened to and the headphones being used), and wherein (i) the TMS controller is configured to adjust a phase offset of the TMS waveform to synchronize the TMS waveform with the at least one of the rhythm element, the harmonic element, or the melodic element of the audio waveform or (ii) the acoustic controller is configured to adjust the audio waveform to synchronize the at least one of the rhythm element, the harmonic element, or the melodic element of the audio waveform with the TMS waveform (2.4 Procedure: during auditory stimuli applying pules of TMS with off-beat or on-beat).
Regarding claim 7, Stupacher teaches: A method to perform a transcranial magnetic stimulation treatment (abstract), the method comprising: generating, via a transcranial magnetic stimulation (TMS) device (2.3 TMS and EMG recordings: using TMS), a localized magnetic field stimulation at a brain region of a patient (2.3 TMS and EMG recordings: applying TMS); and concurrent with the localized magnetic field stimulation, generating, via an acoustic controller, an acoustic stimulation having at least one of a rhythm element, a harmonic element, or a melodic element synchronized to the localized magnetic field stimulation (2.2 Musical Stimuli: music being listened to and the headphones being used); and introducing or adjusting a phase offset of a TMS waveform or audio waveform to synchronize the localized magnetic field stimulation with the at least one of the rhythm element, the harmonic element, or the melodic element of the audio waveform (2.4 Procedure: during auditory stimuli applying pules of TMS with off-beat or on-beat).
Regarding claims 2 and 8, Stupacher teaches: wherein the brain region is a motor cortex region of the brain (2.4 Procedure: over the motor cortex).
Regarding claim 3, Stupacher teaches: further comprising: a TMS controller, wherein the TMS controller is configured to generate the TMS waveform from a TMS waveform file, wherein the TMS waveform is amplified and subsequently applied to one or more TMS coils to generate the localized magnetic field waveform (2.3 and 2.4: applying TMS with the TMS device).
Regarding claim 4, Stupacher teaches: wherein the TMS controller is configured to adjust a phase offset of the TMS waveform to synchronize the TMS waveform with the at least one of the rhythm element, the harmonic element, or the melodic element of the audio waveform (2.4 Procedure: during auditory stimuli applying pules of TMS with off-beat or on-beat which is seen as adjusting the TMS to synch with the rhythm aspect (beats)).
Regarding claim 5, Stupacher teaches: wherein the acoustic controller is configured to adjust a phase offset of the at least one of the rhythm element, the harmonic element, or the melodic element of the audio waveform to synchronize the audio waveform with the TMS waveform (2.4 Procedure: during auditory stimuli applying pules of TMS with off-beat or on-beat which is seen as adjusting the TMS to synch with the rhythm aspect (beats) where adjusting the beats or music is seen as adjusting the acoustic element).
Regarding claims 6 and 14, Stupacher teaches: further comprising: an electromyographic equipment configured to acquire an electromyography (EMG) measurement during operation of the transcranial magnetic stimulation and acoustic controller (2.3: the EMG which is used in 2.4).
Regarding claim 9, Stupacher teaches: further comprising: repeating the localized magnetic field stimulation and the concurrent and synchronized acoustic stimulation over a plurality of treatment sessions to establish entrainment or conditioning, wherein the acoustic stimulation is subsequently performed to invoke a conditioned response or entrainment response without presence of the localized magnetic field stimulation (2.4 Procedure and 2.2 Musical stimuli; specifically applying pulses of TMS with the music where a plurality of treatment sessions are seen as applying TMS multiple times which is seen as entrainment or conditioning where the music is tested without the TMS and thus can be seen as conditioning without the TMS as seen as a result of the method).
Regarding claims 10 and 11, Stupacher teaches: wherein the localized magnetic field stimulation is used to treat pain/chronic pain (Stupacher performs the method of the claims and thus would result in the same outcome of the performing the method of being able to treat pain as this is a result of the method being performed).
Regarding claims 12 and 13, the claims are similarly rejected over Stupacher as seen in claims 3-5 above where the device performs the method steps and are capable of performing the method steps.
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.
Claim(s) 15-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stupacher in view of Goldwasser et al., US 20170224990, herein referred to as “Goldwasser”
Regarding claim 15, Stupacher teaches: cause, a transcranial magnetic stimulation (TMS) device, to generate a localized magnetic field waveform at a brain region (2.3 TMS and EMG recordings: using TMS); and cause, an acoustic controller, to generate an audio waveform having at least one of a rhythm element, a harmonic element, or a melodic element synchronized to the localized magnetic field waveform (2.2 Musical Stimuli: music being listened to and the headphones being used), wherein (i) a TMS controller is configured to adjust a phase offset of a TMS waveform to synchronize the TMS waveform with the at least one of the rhythm element, the harmonic element, or the melodic element of the audio waveform or (ii) the acoustic controller is configured to adjust the audio waveform to synchronize the at least one of the rhythm element, the harmonic element, or the melodic element of the audio waveform with the TMS waveform (2.4 Procedure: during auditory stimuli applying pules of TMS with off-beat or on-beat).
Stupacher does not explicitly disclose that there is a computer or code being run specifically to achieve even though the process of using these devices requires such need.
However, Goldwasser discloses: A non-transitory computer-readable medium having instructions stored thereon, wherein execution of the instructions by a processor causes the processor to for TMS and music ([0683]; specifically the computer and processor for running programs and [0783]; specifically neuromodulation with the combination of music can be performed).
It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to modify the procedures of Stupacher with the ability to control with computers and programs as seen in Goldwasser. The motivation being to control using a computer or mobile device, timing, intensity, or pulsing (Goldwasser, [0683]).
Regarding claim 16, Stupacher discloses: wherein the instructions further causes the processor to: receive a TMS waveform file; and generate the TMS waveform to be amplified and subsequently applied to one or more TMS coils to generate the localized magnetic field waveform (2.3 and 2.4: applying TMS with the TMS device).
Regarding claim 17, Stupacher discloses: wherein the instructions further causes the processor to: adjust a phase offset of the TMS waveform to synchronize the TMS waveform with the at least one of the rhythm element, the harmonic element, or the melodic element of the audio waveform (2.4 Procedure: during auditory stimuli applying pules of TMS with off-beat or on-beat which is seen as adjusting the TMS to synch with the rhythm aspect (beats)).
Regarding claim 18, Stupacher discloses: wherein the instructions further causes the processor to: adjust a phase offset of the at least one of the rhythm element, the harmonic element, or the melodic element of the audio waveform to synchronize the audio waveform with the TMS waveform (2.4 Procedure: during auditory stimuli applying pules of TMS with off-beat or on-beat which is seen as adjusting the TMS to synch with the rhythm aspect (beats) where adjusting the beats or music is seen as adjusting the acoustic element).
Regarding claim 19, Stupacher discloses: wherein the brain region is a motor cortex region of the brain (2.4 Procedure: over the motor cortex).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOANNE M RODDEN whose telephone number is (303)297-4276. The examiner can normally be reached Monday - Friday 9:00 AM-5:00 PM MST.
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/JOANNE M RODDEN/Supervisory Patent Examiner, Art Unit 3794
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