DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant’s amendment and arguments filed 8/12/2026, with respect to the claim rejections set forth in the Non-Final Rejection dated 7/13/2026 has been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Cushing et al. (2015/0032186).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 2, 6-8, 22-24 and 26-29 are rejected under 35 U.S.C. 103 as being unpatentable over Cushing et al. (2015/0032186).
Regarding Claims 1, 6-8, 22, and 27-29, Cushing discloses a balance stabilization system comprising providing stimulation, such as electrical stimulation to the vestibular system through galvanic electrodes and/or intracochlear electrodes (par. [0076, 0129). In a separate embodiment, Cushing also discloses providing balance compensation output signals in response to information obtained by balance sensors wherein the compensation signals can be auditory, tactile, vibratory, visual, etc. (par. [0076]). This would equate to Applicant’s claimed “non-vestibular channels” as defined in par. [0027] of the specification. While Cushing does not explicitly combine multiple embodiments, Cushing does disclose a single embodiment can have multiple different stimulation modalities (par. [0041, 0084]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device in the Cushing reference to include both electrical stimulation of the vestibular system with auditory or vibratory stimulation to non-vestibular channels, as taught and suggested by Cushing, for the purpose of more effectively managing balance disorders in a user, particularly one with a cochlear implant. Cushing provides multiple stimuli that can be provided and acknowledges they can be combined in a single embodiment to provide the same benefits each would provide alone.
In regard to Claims 2 and 24, Cushing discloses the balance compensation output (such as auditory stimuli) provides information about pitch and roll axis orientations (par. [0068]).
Regarding Claims 23 and 26, Cushing discloses the system can provide electrical simulation to the vestibular system in conjunction with cochlear stimulation to promote hearing percepts (par. [0097]). This can be done with other combinations of non-vestibular stimuli as well, see rejection of Claim 1.
Claims 9-13 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Cushing et al. (2015/0032186) in view of Della Santina et al. (2015/0039057), herein Santina ‘057 .
Regarding Claim 9, Cushing discloses various forms of stimuli can be applied to a user to help with vestibular dysfunction but fails to disclose that the stimulation is inhibitory. However, in the same field of endeavor of combined cochlear/vestibular stimulation systems, Santina ‘057 teaches that it is known that delivery of DC and low frequency alternating current (LF-AC) would allow for an implantable system to provide both excitatory and inhibitory vestibular nerve stimulation and that providing such inhibition of the vestibular nerve activity would allow pulse-rate-modulated biphasic current pulse stimuli to assume greater control over the vestibular nerve firing rates, which removes spontaneous neural activity from the pattern of activity conveyed to the CNS giving an unprecedented ability to encode head rotation (e.g. paragraphs [0130], [0132]) which thus increases the dynamic range of encoding and allows the prosthesis full control over afferent spike rates (e.g. paragraph [0133]). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the method as taught by Cushing, with inhibitory stimulation (DC or LF-AC) as taught by Santina'057, since such a modification would provide the predictable results of allowing for an implantable system to provide both excitatory and inhibitory vestibular nerve stimulation which thus increases the dynamic range of encoding and allows the prosthesis full control over afferent spike rates.
In regard to Claims 10 and 25, Cushing discloses encoding pitch and roll information into the balance compensation signal but fails to disclose modifying loudness, pitch, frequency, melody, rhythm, stereo effect or location. Santina'057 as it already modifies Cushing teaches wherein the first and second characteristics are selected from a group consisting of loudness, pitch, stimulation frequency, melody, rhythm, stereo effect, and location (e.g. paragraphs [0027], [0029], [0074], [0075]).
Regarding claim 11, Santina '057 as it modifies Cushing discloses delivering stimulation at less than 1 KHz, since it discloses low frequency alternating current stimulation (LF-AC), which is known in the field of neurostimulation to specify a range under 1 KHz.
Regarding claims 12 and 13, Cushing as modified discloses the invention substantially as claimed, but does not expressly disclose delivering stimulation at approximately 500 Hz or approximately 900 Hz. However, the disclosed LF-AC stimulation is a finite range of frequencies under 1000 Hz. It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the method as taught by Cushing with stimulation at either approximately 500 Hz or approximately 900 Hz, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art [In re Aller, 105 USPQ 233] and/or since it has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America V. Banner, 778 F.2d 775, 227 USPQ (Please see MPEP 2144.05).
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.
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/ALLEN PORTER/Primary Examiner, Art Unit 3796
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