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 .
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
Claim 15 is objected to because of the following informalities: at line 2 of claim 15, “and target sexual response profile” should apparently read –and the target sexual response profile--. 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: “stimulus device” in claims 1 and 18, which are disclosed at least at paragraph [0025] of the instant specification.
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 1-20 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.
At line 10 of claim 1, it is unclear if “the person’s response” is the same as or different than “a sexual response by a person” recited at line 2. If it is the former, a suggested amendment to line 10 is –the sexual response--.
Claim 8 at line 4 recites “the sensor profile”. It is unclear if “the sensor profile” is the same as or different than “one or more sensors profiles” recited in line 4; or if it is the same as or different than “a sensor profile” recited at line 7 of claim 1.
At line 2 of claim 11, it is unclear if “the person’s sexual response” is the same as or different than “a sexual response profile of the person” recited at line 3 of claim 7, or “a sexual response by a person” recited at line 2 of claim 1.
Claim 12 is indefinite as it appears to recite a method step; however the claim is directed to a personal massaging device and thus, it is unclear how the personal massaging device is being further limited.
Claim 14 at line 7 recites the limitation "the target sexual response". There is insufficient antecedent basis for this limitation in the claim.
Claim 15 is indefinite as it appears to recite a method step; however the claim is directed to a personal massaging device and thus, it is unclear how the personal massaging device is being further limited.
At line 12 of claim 16, “based on and analysis of the aggregate…” appears to be grammatically incorrect. It is unclear if this recitation is intended to recite an analysis, or if this recitation is intended to refer back to “the aggregate biofeedback data is analyzed…” (recited at line 9) or not.
Claim 18 at line 4 recites the limitation "the person’s response". There is insufficient antecedent basis for this limitation in the claim.
Claim 18 at line 6 recites the limitation "the sexual response". There is insufficient antecedent basis for this limitation in the claim.
Claim 18 at line 9 recites the limitation "the stimulus device". There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
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 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.
Claims 1-7, 9, 10 and 12-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mertens et al. (U.S. Pub. No. 2013/0116503). Regarding claim 1, Mertens et al. (hereinafter Mertens) discloses a personal massaging device (“506” of Fig. 10 and [0078]) comprising:
a stimulus device 502/100 configured to stimulate a sexual response by a person ([0078], [0049]-[0060]; and Figs. 1A-5D, 10-13D);
one or more sensors [0072];
a processor ([0071]-[0072], [0084]-[0086]); and
a memory unit having instructions stored thereon which when executed by the processor cause the processor to:
receive a sensor profile from the one or more sensors associated with the personal massaging device, while the person is using the personal massaging device ([0072], [0075] and [0086]);
wherein, the sensor profile includes information associated with the person's response to a stimulus provided by the personal massaging device ([0072], [0085]-[0086]); and
transmit the sensor profile over the Internet to a remote user contemporaneously (in real-time) with use of the stimulus device ([0071]-[0073], [0075], [0078] and [0085]-[0089]).
Regarding claim 2, the one or more sensors include one or more of the following: electrical potential sensors, optical sensors, pressure sensors, and thermal sensors [0072].
Regarding claim 3, the one or more sensors include one or more of the following: accelerometers, global position system (GPS), and proximity sensors (such as the disclosed photoplethysmography sensors [0072]).
Regarding claim 4, the sensor profile includes information on one or more of the following: heart rate, oxygen level, applied pressure, and temperature [0072].
Regarding claim 5, the stimulus device includes one or more vibrator motors [0058].
Regarding claim 6, the memory unit having further instructions stored thereon which when executed by the processor cause the processor to: adjust the stimulus provided by the stimulus device based on the sensor profile ([0072] and [0086]).
Regarding claim 7, the memory unit having further instructions stored thereon which when executed by the processor cause the processor to: generate a sexual response profile of the person based on the sensor profile ([0072], [0074]-[0086]).
Regarding claim 9, the sexual response profile is based on historical data ([0085]: “…using data collected from other users or data known as a standard for female arousal and behavior”).
Regarding claim 10, the sexual response profile is based on aggregated biofeedback data from a plurality of people ([0085]: “…using data collected from other users or data known as a standard for female arousal and behavior”) and dynamically constructed over time using machine learning algorithms (the claim does not require the actual construction of the data).
Regarding claim 12, and in view of its indefinite nature, the sensor profile and the sexual response profile are capable of being presented to a user via a computing device ([0072]: “Measurement sensors collect, identify, display and/or communicate with a first computer …”).
Regarding claim 13, the memory unit having further instructions stored thereon which when executed by the processor cause the processor to: adjust the stimulus provided by the stimulus device based on the generated sexual response profile [0072], [0074]-[0076]; [0017]-[0022]).
Regarding claim 14, the memory unit having further instructions stored thereon which when executed by the processor cause the processor to: generate a target sexual response profile based on the sensor profile ([0074}: “memory unit 404 is adapted to allow the user to download, select, program, and retain a specific sequence or sequences of related, desired, required, prescribed, and/or selected therapeutic activities. Additionally, the memory unit 404 is configured to combine and integrate these activities into a time-defined experience… the memory unit 404 retains individual user profiles including therapeutic programs, power management, diagnostics such as troubleshooting, and storage/data collection of all activities. The information stored on the memory unity 404 can comprise a session or recipe of treatment protocols to be shared…”); wherein the target sexual response profile (script with sequence of instructions) includes information intended to guide the person to achieving the target sexual response ([0075]: control profiles include “a script with a sequence of instructions to drive the various electro-mechanical operations of the device. The script is stored as a file which can be edited in the host computer and loaded into the device via the connector or cable, for example. A library of user preference files and/or medical treatment protocols particular to the user can be created to store a variety of therapy profiles to suit the needs and preferences of the user and prescribed protocol of a care giver, such as a physician or therapist. The host-side application can show, for example, a graphic of the vulva with the three modes of stimulation…”).
Regarding claim 15, and in view of its indefinite nature, the sexual response profile and the target sexual response profile are capable of being presented to a user via a computing device ([0015], [0071], [0072], [0074]-[0076], [0083] and [0089]).
Regarding claim 16, the memory unit having further instructions stored thereon which when executed by the processor cause the processor to:
transmit, via a network interface, the sensor profile to a remote data analytics platform 516/518 ([0084]-[0085], [0089], [0071], [0076] and [0078]; and Fig. 10);
wherein, the sensor profile is aggregated at the remote data analytics platform with other sensor profiles from a plurality of other people to form an aggregate biofeedback data [0085];
wherein, the aggregate biofeedback data is analyzed at the remote data analytics platform [0085]; and
wherein, an analyzed aggregated biofeedback data is output at the remote data analytics platform based on and analysis of the aggregate biofeedback data [0085] and [0074]-[0076]).
Regarding claim 17, the memory unit having further instructions stored thereon which when executed by the processor cause the processor to: receive, via the network interface, a sexual response profile of the person ([0074]-[0086]); wherein the sexual response profile is generated at the remote data analytics platform based on the sensor profile ([0085]-[0086]).
Regarding claim 18, Mertens teaches a method comprising:
receiving a sensor profile from one or more sensors associated with a personal massaging device ([0072], [0075] and [0086]), while a person is using the personal massaging device [0086];
wherein, the sensor profile includes information associated with the person's response to a stimulus provided by the personal massaging device ([0072], [0085]-[0086]);
wherein the stimulus is configured to stimulate the sexual response by the person [0078]; and
transmitting the sensor profile over the Internet to a remote user contemporaneously (in real-time) with use of the stimulus device ([0071]-[0073], [0075], [0078] and [0085]-[0089]).
Regarding claim 19, the one or more sensors include one or more of the following: electrical potential sensors, optical sensors, pressure sensors, and thermal sensors [0072].
Regarding claim 20, the one or more sensors include one or more of the following: accelerometers, global position system (GPS), and proximity sensors (such as the disclosed photoplethysmography sensors [0072]).
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.
Claims 8 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Mertens et al. (U.S. Pub. No. 2013/0116503). Regarding claim 8, Mertens teaches correlating sensor data from the person and from other users [0085]; identifying a characteristic pattern in the sensor data indicative of a sexual response (“female arousal and behavior” [0085]) based on the correlation of the sensor data from the person and other users [0085]; and generating a sexual response profile for the person based on an analysis of the characteristic pattern (in terms of creating a new program for the person based on the sensor data/“feedback” which was combined from the person and the other users – [0085]). While Mertens does not disclose explicitly that the sensor data collected/combined from the person and from other users is a sensor profile, Mertens does make such obvious as Mertens discloses that the data collected from the person and the users is compared to determine arousal and behavior and adjust stimulation accordingly for the person, which would constitute a sensor “profile” for the person as the data utilized to make the determination is a collection of various physiological metrics which measure the user's physiological response to stimuli, to provide information to facilitate assessment of genital arousal ([0072], [0086]).
Regarding claim 11, while Mertens does not disclose explicitly that the sexual response profile maps phases of the person's sexual response to the stimulus, Mertens does make such obvious as Mertens discloses assessing levels of arousal via various physiological sensors/metrics [0072], while recognizing that the “female sexual response cycle is divided into four phases: (1) excitement; (2) plateau; (3) orgasm; and (4) resolution” [0009], and the focus of the present invention is transitioning from plateau to orgasm (which would constitute two different phases of the cycle). Thus, in order to meet Merten’s disclosure of utilizing response data to enhance the female sexual response [0023]--which would obviate movement from one phase to another—one of ordinary skill in the art would find it obvious to “map” or identify the phases to ensure the person is ultimately able to achieve orgasm ([0009], [0021] and [0088]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: U.S. Patent No. 7,762,945; and U.S. Pub. No. 2003/0073881.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTINE HOPKINS MATTHEWS whose telephone number is (571)272-9058. The examiner can normally be reached Monday - Friday, 7:30 am - 4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles A Marmor, II 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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/CHRISTINE H MATTHEWS/Primary Examiner, Art Unit 3791
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