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 .
Election/Restrictions
Claims 9 – 20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on December 5, 2025.
Applicant’s remarks on rejoinder are noted. However, the examined claims are not drawn to allowable subject matter, as discussed below.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 22 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. With regard to claim 22, the relationship between “a retention band” as recited in the dependent claim and the previously defined retention band is unclear. If the dependent claim is introducing an additional band, the claim should more distinctly describe the element.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 3 and 21 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. The claim limitation set forth in dependent claim 3 is broader than that of the base claim and thus does not serve to further limit the claim scope. With regard to claim 21, the information contained in ‘feedback’ is necessarily a broadly defined “recommendation” at the time the user receives the feedback signal and thus, there is no difference in claim scope despite the use of different terms for the information. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 – 4, 6, 7, 21, and 22 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kim et al. (USPGPub 2018/0103917 – previously cited). As discussed in the Non-final rejection, Kim et al. (Figures 1, 4 and the descriptions thereof) teach a head-mounted display EEG device, in which a housing/frame 101/404 receives a portable electronic device (PED), where the PED can include display and processing elements. The housing/frame is connected with plural electrode sensors that are retained on a band/strap, such that at least some of the electrodes are positioned behind the subject’s head during use. In addition, Kim et al. teach that the electrodes may be removable from the band/strap (paragraphs [0047], [0049]). The collected data is provided to the processor for analysis (paragraphs [0075] – [0077]). Processed EEG data may be used to create visual and/or haptic outputs (paragraphs [0064]; [0100] – [0101]).
Additionally, Examiner notes that Kim et al. recognize and disclose use of their invention for providing feedback as part of a neurofeedback loop (paragraphs [0126] – [0127]).
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) 5 and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al. as applied to claim 1 above, further in view of further in view of Connor (USPGPub 2021/0137455 – previously cited). Kim et al. teach a head-mountable device, as described above. Additionally, Kim et al. recognize that a variety of configurations may be utilized to position the components on the user’s head (paragraph [0046], for example), but do not provide details of each implementation. Consistent with this, Connor teach an alternate combined EEG/eyeglass arrangement for collection and processing of the EEG signals. Connor indicate a variety of relations between the sensor band and the frame, as generally illustrated in the various figures of the publication. Connor particularly indicate that the two elements may be pivotably associated with each other (Figure 58; paragraph [0269] – [0271]) and/or that they may be detachably connected (Figure 60; paragraph [0279]). As such, it would have been within the skill level of the art before the effective filing date to have implemented Kim et al. with the EEG band and frame in either a pivotable relationship or detachably connected relationship, as taught by Connor, since Kim et al. require the two elements to be connected and recognize that varied arrangements for positioning the sensor on the subject may be relied upon and Connor teach known manners to provide the required relationships, including through use of pivotable or removably connectable attachments. One implementing Kim et al., consistent with Connor, would have a reasonable expectation of successful results given the close overlap in the two teachings.
Response to Arguments
Applicant's arguments filed April 6, 2026 have been fully considered but they are not persuasive with regard to the prior art rejection over Kim et al. Although the originally filed claims generally referred to "feedback" among other responses, these details were not previously set forth in a manner to limit claim scope to the extent they are in the amended claim set. Thus, while Applicant is correct that the portions of Kim et al. relied upon in the Non-Final rejection do not address the amended claim scope, those portions never were cited for relating to this detail. However, upon further review of Kim et al., it is recognized that the teaching discloses use of the device for "neurofeedback" which would be understood to be consistent with the amended claim scope. As such, contrary to Applicant's assertions, the claims do not define over Kim et al. The statement of the rejection has been updated to align with the details of the amended claims.
Applicant’s arguments, see Remarks, filed April 6, 2026, with respect to the rejections under 35 USC 112(b) and the prior art rejections based on Goodall et al. have been fully considered and are persuasive. The rejections have been withdrawn.
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 ERIC FRANK WINAKUR whose telephone number is (571)272-4736. The examiner can normally be reached Mon-Fri 9 am - 6 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chuck 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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/ERIC F WINAKUR/Primary Examiner, Art Unit 3791
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