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 Arguments
Applicant’s arguments with respect to claim(s) 1,3-4,6-7,11,15-20,22 and 24-26 have been considered but are moot in view of applicant’s amendment to the claims and the corresponding new grounds of rejection.
Applicant’s amendment introduced new matter thus requiring a new rejection under 35 USC 112(a) new matter as noted below. Upon cancellation of the new matter the reference to Karp et al.( US 20190247611) is still applicable. Furthermore, Karp et al. is primarily applicable due to the sound output device as set forth in paragraph [0025] of Karp et al. the control system in is further configured to provide, based on the distress status of the infant, a control signal to operate at least one of the movable platform and the sound output device. Thus the audio device may be operated without the moveable platform.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1,3-4,6-7,11,15-20,22 and 24-26 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Applicant’s specification does not support the language added to Claims 1 and 22:
“wherein the audio device is a passive, non-motion device lacking any infant supporting platform or motion generating mechanism, and
“wherein the audio device outputs the first and second sound patterns according to a predetermined, non-adaptive sequence that is independent of sensed infant crying or ambient sound; “and
“wherein the audio device is configured to be in an enclosure having a fixed minimum distance between the loudspeaker and a nearest infant ear.”
These limitations are not supported in applicants original disclosure.
Note MPEP 2173.05(i) Negative limitations: Any negative limitation or exclusionary proviso must have basis in the original disclosure. If alternative elements are positively recited in the specification, they may be explicitly excluded in the claims. See In re Johnson, 558 F.2d 1008, 1019, 194 USPQ 187, 196 (CCPA 1977) ("[the] specification, having described the whole, necessarily described the part remaining."). See also Ex parte Grasselli, 231 USPQ 393 (Bd. App. 1983), aff’d mem., 738 F.2d 453 (Fed. Cir. 1984). In describing alternative features, the applicant need not articulate advantages or disadvantages of each feature in order to later exclude the alternative features. See Inphi Corporation v. Netlist, Inc., 805 F.3d 1350, 1356-57, 116 USPQ2d 2006, 2010-11 (Fed. Cir. 2015). The mere absence of a positive recitation is not basis for an exclusion. However, a lack of literal basis in the specification for a negative limitation may not be sufficient to establish a prima facie case for lack of descriptive support. Ex parte Parks, 30 USPQ2d 1234, 1236 (Bd. Pat. App. & Inter. 1993). "Rather, as with positive limitations, the disclosure must only 'reasonably convey[] to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.' ... While silence will not generally suffice to support a negative claim limitation, there may be circumstances in which it can be established that a skilled artisan would understand a negative limitation to necessarily be present in a disclosure." Novartis Pharms. Corp. v. Accord Healthcare, Inc., 38 F.4th 1013, 2022 USPQ2d 569 (Fed. Cir. 2022) (quoting Ariad Pharm. Inc. v. Eli Lilly & Co., 589 F.3d 1336, 1351, 94 USPQ2d 1161, 1172). Any claim containing a negative limitation which does not have basis in the original disclosure should be rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, as failing to comply with the written description requirement. See MPEP § 2163 - § 2163.07(b) for a discussion of the written description requirement of 35 U.S.C. 112(a) and pre-AIA 35 U.S.C. 112, first paragraph.
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) 1,3-4,6-7,11,18,19,20,24, and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over BYRNE (WO 2004069319) hereinafter BYRNE in view of Karp et al.( US 20190247611) hereinafter Karp et al.
BYRNE device for soothing a baby the device comprising sound detection means or microphone (12), a sound output means or speaker (16) and sound output actuation means which causes the sound output means (16) to emit a soothing sound in response to the detection of a sound by the sound detection means (16) where the detected sound exceeds a predetermined threshold sound limit. The device can automatically soothe a baby when the baby becomes restless or cries thus helping the baby to return to sleep. The sound selection switch 13 is used to select one of the pre-recorded or pre-programmed sounds such as music, singing, or other noises associated with soothing of babies, such as car noises, vacuum cleaner noises, or mother's tummy noises.
Regarding claims 1 and 22 BYRNE teaches a loudspeaker, a controller for controlling the loudspeaker,
a sound input pattern configured to be fed to the loudspeaker and a power source wherein the audio device is programmable to output audio sequences at two or more sound levels. BYRNE also teaches a plurality of sound activated settings and a plurality of different soothing sounds are pre-set, wherein each soothing sound corresponds to a different setting. This allows the soothing sound to be automatically changed to the suitable sound for baby's attitude. Furthermore, BYRNE does not include a motion device or infant supporting platform or motion generating mechanism, and BYRNE is a non-adaptive device and it is enclosed in an enclosure and may be placed near a user.
BYRNE teaches playing more than one sound but does not specifically teach wherein the audio device controller is further programmed to output a first sound pattern during a first time period at a first sound level and automatically switch, when a duration of the first time period has expired, to output a second sound pattern during a second time period at a second sound level when the duration of the first time period has expired, and the second sound level is lower than the first sound level.
Karp et al. teaches in the same field of endeavor an infant calming/sleep-aid device that includes a sound generator, the sound is adapted to calm a fussy baby, induce sleep, and maintain sleep under normal conditions. Karp et al . further teaches wherein the audio device controller is further configured programmed to output a first sound pattern during a first time period at a first sound level and automatically switch, when a duration of the first time period has expired, to output a second sound pattern during a second time period at a second sound level when the duration of the first time period has expired, and the second sound level is lower than the first sound level. Note Figure 10 and paragraphs [0114] sets forth speakers and a controller , [0152]-[0153], [0157] teaches Audio generation module 130 (FIG. 14) may begin to increase sound levels when mild signals are received, [0167] sets forth The sound in the device may be adapted to respond to the baby's upset by starting a specially engineered high-pitched sound, then stepping down to quieter, lower pitched white noise over several minutes. A wide variety of sound patterns may be enabled. The device may be adapted to gradually increase the intensity of the sound during the early weeks of life and to gradually reduce (i.e. wean) the intensity of the sound over a suitable time period, such as several weeks or several months later in infancy.
Therefore, It would have been obvious to one of ordinary skill in the art at the time of the invention to include in the device of BYRNE an improved audio output controller wherein the audio device controller is further programmed to output a first sound pattern during a first time period at a first sound level and automatically switch, when a duration of the first time period has expired, to output a second sound pattern during a second time period at a second sound level when the duration of the first time period has expired, and the second sound level is lower than the first sound level as taught by Karp et al. to promote better infant sleep and reduce crying episodes.
Regarding claims 3, 4, and 6 BYRNE in view of Karp et al. teaches wherein the duration of the first time period is in the region 1- 30 seconds, or 1 - 20 seconds, or 1 - 10 seconds, or 4 - 7 seconds, or 5 seconds, with a deviation of +/- 0,5 seconds, and wherein the duration of the second time period is indefinite, and wherein the first sound level and/or the second sound level is adjustable. Note Karp et al Figure 22G and paragraph [0209] teaches FIG. 22G illustrates an exemplary process 2296 for quantifying an infant cry with a threshold filter. An average of amount of energy, or sound intensity, during a specified time period may be determined. For example, an average sound intensity over a rolling six second period may be obtained. Paragraph [0216]-[0219] and [0254] –[0260] sets forth Baseline may step up to Intervention1 if Crying______D1 is detected. Crying______D1 may trigger at 0.6 accumulated seconds of Crying Audio Classification time during a period of 6 seconds, and the like. [0256] Intervention2 settings may be based on the age of the infant. Intervention2 settings for an infant younger than 0.5 months may be 2.8 Hz motion and Strong Hair Drier sound at 75 dB, may switch to Timeout if Crying______D2 is detected in the last 10 seconds (3:50 to 4:00), otherwise step to CoolDown2 after 4 minutes, and the like. Crying______D2 may trigger at 1.2 accumulated seconds of Crying Audio Classification time in a period of 6 seconds. Note Karp et al. paragraph [0260] indicates the device may be reset manually by the user which would imply an indefinite timeframe. Note Karpe et al. Figure 10 and paragraphs [0114], [0157] , [00158] The level of motion and or sound output may also be modified by the caregiver's choice of a special boost function, [0167], [0189] , and [0269].
Therefore, It would have been obvious to one of ordinary skill in the art at the time of the invention to include in the device of BYRNE an improved audio output controller wherein the duration of the first time period is in a region 1- 30 seconds, or 1 - 20 seconds, or 1 - 10 seconds, or 4 - 7 seconds, or 5 seconds, with a deviation of +/- 0,5 seconds wherein the duration of the second time period is indefinite, and wherein the first sound level and/or the second sound level is adjustable as taught by Karp et al. to allow for better audio control and sleep control.
Regarding claim 7, BYRNE teaches a start button for starting or restarting the audio output sequence. The sound selection switch 13 is used to select one of the pre-recorded or pre-programmed sounds such as music, singing, or other noises associated with soothing of babies, such as car noises, vacuum cleaner noises, or mother's tummy noises.
Regarding claim 11, BYRNE teaches a power storage device for powering the audio device, wherein the power storage device is one of, or a combination of: a one-time use battery a rechargeable battery a capacitor a remote connected power source or a power grid connector connecting the audio device to a power grid. he device 1 is powered by rechargeable a DC battery, such as Ni-Cd or Ni-H battery, or by an AC power source via an AC/DC adapter (not shown) . Figure 6 shows a removable lid 20 of the battery case, and a jack 21 for the connection of the lead of the AC/DC adapter. A battery charger is provided within the device 1 for charging the rechargeable battery using the AC power source.
Regarding claim 18,BYRNE in view of Karp et al. teaches further comprising a sound directing device for directing the sound output from the loudspeaker. In BYRNE Figure 4, a sound output means having a speaker 16 is provided in the right side face 5 of the device to emit the soothing sound. The speaker 16 has a circular form with approximately the same diameter as the width of the right side face 5 to ensure as large a sound emitting area as possible.
Regarding claims 19 ,20, and 26 BYRNE teaches an enclosure for being mounted close to an infant resting pillow/headrest position. Note Fig. 1 the device is in the form of a cube that may be moved to any location.
Regarding claim 24,BYRNE in view of Karp et al. teaches an audio device according to claim 1 and a remote processing device. Note Karpe et al. Figure 10 and paragraphs [0024]-[0025], [0108] teaches The sensor signal can be fed back through rigid base control electronics 36 or/and control panel 34 to a control system such as software, either on-board or remote from infant calming/sleep-aid device 10. [0114], [0157] , [00158] , [0167], [0185] teaches microphone or sound sensor 2202 may send data to cry/state detection module 2218. Accelerometer or motion sensor 2208 may send motion data to motion analysis module 2222. Communication facility 2214 may be used to establish communication between inputs 2200 and control system 2216. Communication may be established via direct control, remote control, and the like. Direct control may include providing control inputs to the communication facility from input devices directly integrated with the infant calming/sleep-aid device 2258. Remote control may include providing control inputs to the communication facility from input devices remotely connected to the infant calming/sleep-aid device 2258. Remote connectivity may include wired and wireless connectivity. Wireless connectivity may include Wi-Fi connectivity, Bluetooth connectivity, and the like. Journaling may include track feedings, track diapers, and the like.
Claim(s) 15 – 17 and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over BYRNE (WO 2004069319) hereinafter BYRNE in view of Karp et al.( US 20190247611) hereinafter Karp et al. and further in view of Jackson(US 20170258398) hereinafter Jackson.
BYRNE in view of Karp et al. teaches the claimed invention as set forth above including a wireless broadband connection and remote control of the device and Figure 15 shows a further embodiment of the present invention in which the device 200 is directly connectable to a central server 204 by means of a wireless connection. The coupling means 201 may be provided by cellular phone technology or other suitable means, which allows connection to the central server. The device may also be provided with an interface to allow the user to select the digital soothing sound files from a small screen (not shown) provided on the device in BYRNE and in Karp et al. a control system and a microprocessor [0270] a Microprocessors may be used to differentiate sounds, such as infant sounds, system sounds, or ambient noise. Microprocessors may be used to record and analyze sounds. Such sounds may include sounds which reflect a baby's state (e.g. sleeping, crying) or to provide feedback. Microprocessors may be used to generate responses and deliver the optimal mix of sound. [0172] User interface 2201 may be an integral part of the infant calming/sleep-aid device 2258, or a separate piece, such as on a mobile peripheral device, which may be connected by a wired connection, a wireless connection, and the like to the infant calming/sleep aid device 2258. The wireless connection may be a Wi-Fi connection, Bluetooth connection, and the like. [0185] Remote connectivity may include wired and wireless connectivity. Wireless connectivity may include Wi-Fi connectivity, Bluetooth connectivity, and the like. Journaling may include track feedings, track diapers, and the like. [0262] A connected device may be a smartphone, tablet computer, and the like. [0275] The infant calming/sleep-aid device 2258 may be controlled remote by smartphone or other mobile device using communication standards such as Bluetooth. [0187] Control system 2216 may also be in communication with data storage facility 2254, rules engine 2256, and the like. Data storage facility 2254 may store information that may be accessed by other modules of the control system, and the like. Rules engine 2256 may provide rules for inputs and triggers to a mechanism to activate the “calming reflex” of an infant.
BYRNE in view of Karp et al. does not specifically teach an antenna for signal communication
Jackson teaches a system for collecting and/or communicating information to a caregiver or other user relating to the sleep and/or development of a child. Example embodiments of the invention are configured to collect and/or relay information relating to the sleep of a child and automatically implement a sequence of child-soothing measures to calm down a crying infant before resorting to alerting the caregiver. For example, the system can be configured to implement soothing measures such as white noise, vibration, soft music, and rocking. [0029] The monitoring device 102 is configured to send the measured data (e.g., number of hours slept in a night, number of sleep cycles completed) to the feedback device 104. In typical embodiments, the monitoring device 102 includes a conventional transmitter and antenna and the feedback device 104 includes a conventional antenna and receiver for conventional wireless communications from the monitoring device to the feedback device. [0066] Further similarly, the control unit 1104 includes a processor 1122, a storage device 1124, and communication components 1126. These elements can be of a conventional type commonly used in consumer and children's products, so for brevity they will not be detailed. The storage device 1124 includes non-transitory memory that stores control software with instruction sets that are readable by the processor for implementing the functionally described herein (including to analyze the measured physical-condition data to determine a sleep condition of the child, and based on that control the output devices to run a sleep-training process). The memory optionally stores data such as preset (default or user selected) output sequences, preset wake-up parameters, user information (e.g., the name and birth-date/age of the child), and other data for implementing the functionality described herein. [0067] The remote data source 1128 can be a database, website, or other data source on a remote computer that is connected for communications with the control unit 1104.
Therefore, It would have been obvious to one of ordinary skill in the art at the time of the invention to include in the device of BYRNE in view of Karp et al. an antenna as taught by Jackson to support the wireless and remote communications and “cloud” or external website based data sources.
Claim(s) 19, 20, and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over BYRNE (WO 2004069319) hereinafter BYRNE in view of Karp et al.( US 20190247611) hereinafter Karp et al. and further in view of LEE(KR 20080006302) hereinafter LEE.
BYRNE teaches the device is in the form of a cube that may be moved to any location.
BYRNE in view of Karp et al. does not specifically teach a necklace string with a length equal to the minimum distance from the loudspeaker to the nearest user’s ear.
LEE teaches detachable necklace-type sound reproducing device is provided to deliver the sound to the ear of a user without an ear phone or a head phone and to reproduce high-quality sound using a high-performance amplifier. A detachable necklace-type sound reproducing device comprises an interface unit(200), a control unit(100), and a speaker unit(300). The interface unit is connected to the reproducing device to transmit and receive data with the reproducing device. The control unit reads sound data among the data received by the interface unit, and outputs the sound data as a sound signal. The speaker unit is positioned at an end portion of the device to reproduce the sound signal output from the control unit, where the output of the speaker unit is controlled according to a distance between the speaker unit and the ear of a user. Note figures 1, 2, and 8.
Therefore, It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device of BYRNE in view of Karp et al. to include the option of a necklace string with a length equal to the minimum distance from the loudspeaker to the nearest user’s ear as taught by LEE to increase the portability by a detachable necklace-type sound reproducing apparatus capable of being detachable from a reproducing apparatus and delivering sound to a user's ear.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
XU(CN 210201996) teaches a necklace-type player, comprising a player main body, a loudspeaker and a connecting line, the player main body comprises a shell and an upper cover, the shell and the upper cover are respectively provided with a battery groove and a cavity, the battery groove and the chamber is fixed with a battery and a circuit board; the battery is electrically connected with the circuit board; the upper end of the shell is set with output socket, one end of the connecting line of the inserted circuit board output jack and player is connected, the other end of said connecting wire is connected with the input end of the loudspeaker can be detachably connected. The utility model is simple in structure, convenient to carry, the player main body and a loudspeaker are connected through the connecting line, is then worn on the neck, the speaker located on the ear by a telescopic rope, so the wearing out music euphonious, without using an earplug wearing to the ear for listening to music, and solves the earplug wearing problem of easy to produce pain.
Yang et al.( US 11157143) teaches (143) In some embodiments, device 500 has one or more input mechanisms 506 and 508. Input mechanisms 506 and 508, if included, can be physical. Examples of physical input mechanisms include push buttons and rotatable mechanisms. In some embodiments, device 500 has one or more attachment mechanisms. Such attachment mechanisms, if included, can permit attachment of device 500 with, for example, hats, eyewear, earrings, necklaces, shirts, jackets, bracelets, watch straps, chains, trousers, belts, shoes, purses, backpacks, and so forth. These attachment mechanisms may permit device 500 to be worn by a user.
Perrin et al.( US 20140265480) teaches Systems for soothing and prolonging sleep maintain an experience of riding in a vehicle in a car seat, even as a pattern of driving changes, when vehicle motion ceases or when the car seat is removed from the vehicle. Sensors detect one or more of motion, light and sound in an environment of the car seat. As motion, light and/or associated with the ride decrease, change or stop, a controller automatically controls actuators to apply compensatory motion, light and/or sound in the environment of the car seat, in order to provide continuity of the riding experience and decrease likelihood of an infant awakening or fussing. This allows the driver of the vehicle to concentrate on driving safely, rather than breaking concentration on the road in order to soothe the infant.
FREED et al.( CN 109936997) teaches a sleep auxiliary device, comprising a shell, a non-contact biometric sensor, a processor, a memory and a loudspeaker. said processor can be detected based on the change of heart rate, body motion or respiration of the at least one, by reading the signal from the non-contact biometric sensor to detect the sleep state of the user. the processor also can be based at least in part on the sleep state of the user detected to arranged the scape, the scape comprises a separate audio recording, a single audio recording representation associated with the selected scape of sound.
Logan(US 6494719) teaches a system and method for increasing the cognitive function in a fetus. The system transmits a pattern of sonic variations to the fetus. The pattern of sonic variations is formed of a plurality of sequences of tones in which each sequence is repeated at a predetermined tempo. Each sequence of tones is selected to be transmitted to the fetus at a predetermined time during the term of the pregnancy. Preferably, each subsequent sequence of tones is selected to be repeated at increasing tempo during the term of the pregnancy, thereby providing a progressive pattern of sonic variations. A similar system and method can be used for improving the cognitive function of a premature baby. In addition, the present invention relates to a system and method for altering the cognitive function in a postnatal human by transmitting aurally or through bone conduction a progressive pattern of sonic variations or a regressive pattern of sonic variations to the wearer of the system.
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 BRIAN L CASLER whose telephone number is (571)272-4956. The examiner can normally be reached M-Th 6:30 to 4:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Marmor 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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/BRIAN L CASLER/Primary Examiner, Art Unit 3791
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