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 .
Drawings
The drawings are objected to because figures 18 & 19 contain illegible text. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 12 is objected to because of the following informalities: the phrase "in case that", for clarity, should be "when". 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: Controller in claim 1.
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 1, 2, 5, 6, 7, 9, 11, 12, 14, 18, 20, 21, 23, 25-28, 31, 32, 44 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.
The term “approximately” in claims 1, 2, 23, 25, 27, 32, 44 is a relative term which renders the claim indefinite. The term “approximately” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 12 recites the limitation "the wearable audio device" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Regarding Claim 27, it is unclear as to what the phrase “between the modulated pattern at the vibration devices” pertains to. Clarity is requested.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 32 recites the broad recitation approximately one second to approximately 20 seconds, and the claim also recites approximately 7 seconds which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Regarding Claims 23 & 32, the phrase “approximately 15-20 minutes or less” is considered unclear. Examiner askes for clarification on whether the claims are refereeing to 15 minutes or less, or 16 minutes or less etc.
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 2, 20, & 27, 28, 31, 32, 44 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).
Regarding Claim 2, the phrase “wherein the peak drive level applies a force to at least one of the concha region or the ear canal of the user” invokes 35 U.S.C. 101. Examiner suggests replacing with “wherein the peak drive level is configured to apply a force to at least one of the concha region or the ear canal of the user”.
Regarding Claim 20, the phrase “wherein the earpiece is in electrically non-conducting contact with the user’s skin” invokes 35 U.S.C 101. Examiner suggests replacing with “wherein the earpiece is configured to be in electrically non-conducting contact with the user’s skin”.
Regarding Claim 27, the phrase “wherein the peak drive level applies a force to at least one of the concha region or the ear canal of the user” invokes 35 U.S.C. 101. Examiner suggests replacing with “wherein the peak drive level is configured to apply a force to at least one of the concha region or the ear canal 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.
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, 12, & 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0141879 hereinafter Harper.
In regards to Claim 1: A wearable device (Harper, Figure 1 Item 100) for providing vibrotactile stimulus to at least one nerve proximate an ear of a user, the device comprising:
an earpiece (Harper, Figures 1 & 3-7 Item 10; Paragraph 59) comprising a vibration device (Harper, Figure 1 & 3-7 Item 2, Paragraph 67) for application of vibrotactile stimulus proximate at least one of a concha region or an ear canal of the user (Harper, Figures 4 & 7; Paragraph 67); and
a controller (Harper, Figure 1 Item 20) connected with the vibration device (Harper, Paragraph 70), the controller configured to actuate the vibration device according to a modulated pattern (Harper, Paragraph 62 & 77) to stimulate at least one nerve proximate the ear of the user (Harper, Paragraph 55), wherein the modulated pattern is characterized by:
a peak drive level sufficient to stimulate nerve endings of at least one nerve proximate the ear of the user (Harper, Paragraphs 5 & 31; Stimulation of Cranial Nerves); and
a carrier frequency of approximately 50 Hertz (Hz) to approximately 500 Hz (Harper, Paragraph 62).
Harper does not teach the exact carrier frequency of approximately 50 Hertz (Hz) to approximately 500 range.
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to utilize the frequency taught in Harper, 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 in hertz which achieves the recognized result of modulating the activity of the sensory nerve 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 5: wherein the controller is configured to adjust the modulated pattern in response to receiving biometric feedback about the user from a sensor system (Harper, Paragraph 62).
In regards to Claim 12: wherein the wearable device comprises an in-ear audio device, an on-ear audio device or an over-ear audio device (Harper, Figures 4 & 7, wherein, in the case that the wearable audio device comprises an on-ear audio device or an over-ear audio device, the earpiece further comprises an extension member for positioning proximate at least one of the concha region or the ear canal of the user when the earpiece is positioned on or over the ear of the user (Harper, Figure 4; Paragraph 67).
In regards to Claim 23: The wearable device of claim 1, wherein the modulated pattern comprises a session of recurring modulated patterns lasting approximately 15-20 minutes or less, wherein the session is repeated at least two times throughout a day (Harper, Paragraph 62; “A stimulation session may be established for periods ranging from 1-2 minutes to 60 minutes”; Examiner interprets a session as short as 60 minutes can be administered multiple times a day.).
Claim(s) 1, 6, 9, 11, 18, 20, 21, & 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2016/0279021 hereinafter Hyde.
In regards to Claim 1: A wearable device for providing vibrotactile stimulus to at least one nerve proximate an ear of a user (Hyde Figure 2 Item 200 & 202; Paragraph 64), the device comprising:
an earpiece (Hyde, Figure 3-5) comprising a vibration device for application of vibrotactile stimulus proximate at least one of a concha region or an ear canal of the user (Hyde, Paragraph 66); and
a controller (Hyde, Paragraph 64; Figure 2 Item 208) connected with the vibration device (Hyde, Paragraph 64 Items 210 & 212), the controller configured to actuate the vibration device according to a modulated pattern (Hyde, Paragraph 100; “pulse shape”) to stimulate at least one nerve proximate the ear of the user (Hyde, Paragraph 64), wherein the modulated pattern is characterized by:
a peak drive level sufficient to stimulate nerve endings of at least one nerve proximate the ear of the user (Hyde, Paragraph 64; “stimulus sufficient to activate one or more nerves”); and
a carrier frequency of approximately 50 Hertz (Hz) to approximately 500 Hz (Hyde, Paragraph 100).
Hyde does not teach the exact carrier frequency of approximately 50 Hertz (Hz) to approximately 500 range.
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to utilize the frequency taught in Harper, 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 in hertz which achieves the recognized result of modulating the activity of the sensory nerve 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 regard to Claim 6: the vibration device vibrates at the carrier frequency, and the modulated pattern is controlled by a stimulation waveform, wherein the modulated pattern is further characterized by one of:
a) a fast onset and a gradual decay (Hyde, Paragraph 62, “match the duration and timing of an inspiration or expiration when the device is used for overcoming sleep-disordered breathing.”),
b) a fast onset, a gradual decay, and a period of nominal vibrational force,
c) a fast onset, a gradual decay, and a period of zero vibrational force,
d) a symmetric onset and decay, or
e) a multi-frequency pattern comprising a first segment with a first frequency and a first period, and a second segment with a second, higher frequency and a second, longer period.
In regards to Claim 9: The wearable device of claim 1, further comprising:
an electro-acoustic transducer connected with the controller and configured to provide an audio output, wherein the audio output comprises: an audio noise signal configured to entrain the user's breathing, or a noise signal (Hyde, Paragraph 89; “delivering an auditory signal”).
In regards to Claim 11: a thermal actuator connected with the controller for thermally stimulating an area proximate the ear of the user (Hyde, Paragraph 80, Figure 7 Item 742).
In regards to Claim 18: the earpiece comprises an ear tip and a support structure extending from the ear tip, wherein the vibration device is located in the support structure (Hyde, Figure 3 Items 300, 310a-c, 306, Paragraph 70).
In regards to Claim 20: the vibration device comprises at least one of: an eccentric rotating mass (ERM) motor, a linear resonant actuator (LRA), a piezoelectric motor, a haptic engine, a focused ultrasound device, or a transducer without a voice coil, and wherein the earpiece is in electrically non-conducting contact with the user's skin during use (Hyde, Paragraph 20).
In regards to Claim 21: the controller comprises a control circuit contained in the earpiece, wherein the control circuit is configured to receive commands from at least one of a local logic engine or a remote logic engine for actuating the vibration device according to the modulated pattern (Hyde, Paragraph 68; Figure 2 Item 202, 208 & 218).
In regards to Claim 26: an additional vibration device in the earpiece and coupled with the controller, wherein the controller is configured to actuate the additional vibration device according to the modulated pattern (Hyde, Figure 3 Item 310a-c; Paragraph 70).
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0141879 hereinafter Harper in view of 2020/0228904 hereinafter Liao.
In regards to Claim 2: Harper teaches all of claim 1, but does not teach wherein the peak drive level applies a force to at least one of the concha region or the ear canal of the user of approximately;)0.1 Newton (N) to approximately 0.9 N, approximately: ii) 0.3 N to approximately 0.7 N, or iii) approximately 0.5 N.
Liao teaches wherein the peak drive level applies a force to at least one of the concha region or the ear canal of the user of approximately;)0.1 Newton (N) to approximately 0.9 N, approximately: ii) 0.3 N to approximately 0.7 N, or iii) approximately 0.5 N (Liao, Paragraph 4, 115 & 116).
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to add the applied force taught in Liao to the device taught in Harper, 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 force in newtons which achieves the recognized result of conveying a clear sound through the device 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).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0141879 hereinafter harper in view of US 2016/0245830 hereinafter Mace.
In regards to Claim 7: Harper teaches all of claim 1 but does not teach wherein the modulated pattern approximates a breath rate of the user and has a period equal to approximately one second to approximately 20 seconds.
Mace teaches wherein the modulated pattern approximates a breath rate of the user and has a period equal to approximately one second to approximately 20 seconds (Mace, Paragraph 20 & 21).
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to add the breath rate of the user taught in Mace to the device taught in Harper, 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 time which achieves the recognized result of standardizing the breath rate of the user 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).
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0141879 hereinafter Harper in view of US 2010/0322454 hereinafter Ambrose.
In regards to Claim 14: Harper teaches all of claim 1 and an additional earpiece comprising an additional vibration device for application of vibrotactile stimulus proximate at least one of a concha region or an ear canal of an additional ear of the user, wherein the controller is connected with the additional vibration device and is configured to actuate the vibration device and the additional vibration device according to the modulated pattern (Harper, Paragraph 66; Figure 2). Harper does not teach the modulated pattern is further characterized by a phase difference between the user's ears, and wherein the phase difference is equal to or less than 180 degrees.
Ambrose teaches the modulated pattern is further characterized by a phase difference between the user's ears, and wherein the phase difference is equal to or less than 180 degrees (Ambrose, Paragraph 358).
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to add phase difference taught in Ambrose to the device of Harper, 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 degrees which achieves the recognized result of canceling out audio waves 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).
Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0141879 hereinafter Harper in view of 2013/0303953 hereinafter Lattner.
In regards to Claim 25: Harper teaches all of claim 1 and a tactile actuator coupled with the controller (Harper, Figure 1 Item 30; Paragraph 59), but does not teach providing a low-frequency tactile stimulus to the at least one nerve proximate the ear of the user, wherein the low-frequency tactile stimulus is characterized by a frequency of approximately ½ Hertz (Hz) or less.
Lattner teaches providing a low-frequency tactile stimulus to the at least one nerve proximate the ear of the user, wherein the low-frequency tactile stimulus is characterized by a frequency of approximately ½ Hertz (Hz) or less (Lattner, Paragraph 106).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the low frequency tactile stimulus taught in Lattner to the device taught in Harper, the motivation being to provide a greater immersion of the audio.
Claim(s) 27 & 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0141879 hereinafter Harper in view of 2020/0228904 hereinafter Liao in view of 2010/0322454 hereinafter Ambrose.
In regards to Claim 27: Harper teaches a wearable device (Harper, Figure 1 Item 100; Paragraph 59) for providing vibrotactile stimulus to at least one nerve proximate an ear of a user, the device comprising:
a set of two earpieces (Harper, Figure 2) each comprising a vibration device (Harper, Figure 3-7 Item 2; Paragraph 67) for application of vibrotactile stimulus proximate at least one of a concha region or an ear canal of the user's ears (Harper, Paragraph 67; Figure 4 Item 10); and
a controller (Harper, Figure 1 Item 20; Paragraph 59) connected with the vibration devices (Harper, Paragraph 70; Figure 5 Items 2, 4, 10, & 30), the controller configured to actuate the vibration devices according to a modulated pattern (Harper, Paragraph 62 & 77) to stimulate at least one nerve proximate the ear of the user Harper, Paragraph 55), wherein the modulated pattern is characterized by:
a peak drive level sufficient to stimulate nerve endings of the at least one nerve proximate the ear of the user (Harper, Paragraphs 5 & 31);
a carrier frequency of approximately 50 Hertz (Hz) to approximately 500 Hz (Harper, Paragraph 62).
However, Harper does not teach a phase difference between the modulated pattern at the vibration devices, wherein the peak drive level applies a force to at least one of the concha region or the ear canal of the user of approximately 0.3 N to approximately 0.7 N.
Liao teaches wherein the peak drive level applies a force to at least one of the concha region or the ear canal of the user of approximately 0.3 N to approximately 0.7 N (Liao, Paragraph 4).
The combination of Harper and Liao does not teach the exact ranges given within the claim.
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to add the force applied to the ear taught in Liao to the device taught in Harper, 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 force in newtons which achieves the recognized result of conveying clear audio to the ear of the user 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).
Ambrose teaches a phase difference between the modulated pattern at the vibration devices (Ambrose, Paragraph 358).
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to add the phase difference taught in Ambrose to the device of a modified Harper, 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 phase shift which achieves the recognized result of canceling out audio waves 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 28: A modified Harper teaches all of claim 27, and wherein the phase difference is equal to or less than 180 degrees (Ambrose, Paragraph 358).
Claim(s) 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0141879 hereinafter Harper in view of US 2020/0228904 hereinafter Liao in view of US 2010/0322454 hereinafter Ambrose in further view of US 2016/027021 hereinafter Hyde.
In regards to Claim 31: A modified Harper teaches all of claim 27, but does not teach wherein the modulated pattern is further characterized by one of:
a) a fast onset and a gradual decay (Hyde, Paragraph 62, “match the duration and timing of an inspiration or expiration when the device is used for overcoming sleep-disordered breathing.”),
b) a fast onset, a gradual decay, and a period of nominal vibrational force,
c) a fast onset, a gradual decay, and a period of zero vibrational force,
d) a symmetric onset and decay, or
f) a multi-frequency pattern comprising a first segment with a first frequency and a first period and a second segment with a second, higher frequency and a second, longer period.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the modulated pattern taught in Hyde to the device of a modified Harper, the motivation being to provide a repeatable pattern that is easy for the user to follow.
Claim(s) 32 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0141879 hereinafter Harper in view of US 2020/0228904 hereinafter Liao in view of US 2010/0322454 hereinafter Ambrose in further view of US 2016/0245830 hereinafter Mace.
In regards to Claim 32: A modified Harper teaches all of claim 27, but does not teach wherein the modulated pattern either:
approximates a breath rate of the user and has a period equal to approximately one second to approximately 20 seconds, wherein the period is equal to approximately 7 seconds, or
comprises a session of recurring modulated patterns lasting approximately 15-20 minutes or less, wherein the session is repeated at least two times throughout a day.
Mace teaches wherein the modulated pattern either:
approximates a breath rate of the user and has a period equal to approximately one second to approximately 20 seconds, wherein the period is equal to approximately 7 seconds (Mace, Paragraph 20 & 21, “six breaths-per-minute” equals a breath every 10 seconds), or
comprises a session of recurring modulated patterns lasting approximately 15-20 minutes or less, wherein the session is repeated at least two times throughout a day.
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to add the breath rate of the user taught in Mace to the device taught in Harper, 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 time which achieves the recognized result of standardizing the breath rate of the user 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).
Claim(s) 44 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0141879 hereinafter Harper in view of US 2020/0228904 hereinafter Liao in view of US 2010/0322454 hereinafter Ambrose in further view of US 2013/0303953 hereinafter Lattner.
In regards to Claim 44: A modified Harper teaches all of claim 27, but does not teach wherein at least one of the earpieces further comprises a tactile actuator connected with the controller for providing a low-frequency tactile stimulus to the at least one nerve proximate the ear of the user, wherein the low-frequency tactile stimulus is characterized by a frequency of approximately ½ Hertz (Hz) or less.
Lattner teaches wherein at least one of the earpieces further comprises a tactile actuator connected with the controller for providing a low-frequency tactile stimulus to the at least one nerve proximate the ear of the user, wherein the low-frequency tactile stimulus is characterized by a frequency of approximately ½ Hertz (Hz) or less (Lattner, Paragraph 106).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the low frequency tactile stimulus taught in Lattner to the device taught in Harper, the motivation being to provide a greater immersion of the audio.
Conclusion
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/N.R.D./ Patent Examiner, Art Unit 3791
/CHRISTINE H MATTHEWS/ Primary Examiner, Art Unit 3791
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