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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 25 February 2026 has been entered.
Claims 5 and 15 are cancelled; new claims 20-22 are entered; claims 1-4, 6-14 and 16-22 are pending.
Response to Arguments
Applicant's arguments filed 25 February 2026 have been fully considered but they are not persuasive. Since the arguments pertain to the amendments, they will be addressed below in the prior art rejection.
Claim Objections
Claim 20 is objected to because of the following informalities: claim 20 ends in a comma, rather than a period. Appropriate correction is required.
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 1-4, 6-9, 16 and 20-22 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.
Claim 1 recites the limitation "the alternating current electrical stimulation waveform" in line 10. There is insufficient antecedent basis for this limitation in the claim, since it is unclear whether this is the same waveform as the “single blended alternating current electrical stimulation waveform” in lines 6-7, or a different waveform entirely.
In addition, claims 6 and 16 require “The method of claim 5” and “The system of claim 15” in line 1, respectively. Since claims 5 and 15 are cancelled herein, there is insufficient antecedent basis for these limitations in the claims.
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, 3, 6-11, 13 and 16-22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by John (U.S. 2007/0142874). John discloses receiving, by at least one processor (see par. 40), an electroencephalogram (EEG) signal from a user's brain (par. 0042); identifying, with the at least one processor, two peak (EEG) frequencies of the received signal (par. 0052 and 0078); generating, with the at least one processor, a single blended alternating current electrical stimulation waveform by combining sinusoids at the two identified peak EEG frequencies (par. 0067 and 0072) into a unified waveform that simultaneously delivers stimulation at both identified peak EEG frequencies (par. 0104); and applying, with at least one electrode, the alternating current electrical stimulation waveform to the user's brain (par. 0059 and 0112) to enhance sleep (par. 0145).
Regarding claim 3, John discloses wherein the identifying identifies a first peak closest to 5 Hz within a 4-6 Hz band (see theta range; par. 0095) and a second peak closest to 10 Hz within a 9-11 Hz band (see alpha frequency; par. 0095).
Regarding claims 6 and 16, John discloses wherein the EEG signal is measured during daytime before the applying (par. 0133).
Regarding claims 7 and 17, John discloses wherein the applying applies the waveform in phase (par. 0024 and 0094).
Regarding claims 8 and 18, John discloses wherein the sinusoids are not harmonics (see random fluctuations; par. 0111).
Regarding claims 9, 13, and 19, John discloses wherein the identifying includes
calculating all peaks within 3 Hz and 12Hz and identifying a first peak within a 4-6 Hz band and a second peak within a 9-11 Hz band (par. 0095).
Regarding claim 10, see rejection of claim 1 above. John discloses a computer readable storage medium for carrying out the steps (par. 0031 and 0035).
Regarding claim 11, see rejections of claims 1 and 10 above. John further discloses an electrode (par. 0138), processor (see evaluation subsystem 18; par. 0043 and Fig. 1), and memory (28; par. 0034).
Regarding claim 20, John discloses (par. 0092-0094) the two peak EEG frequencies are dominant rhythms from different spectral bands,
Regarding claim 21, John discloses (par. 0095) different spectral bands include a theta band and an alpha band.
Regarding claim 22, John discloses (par. 0095) the two identified peak EEG frequencies comprise a first frequency associated with theta band activity linked to sleep stage transitions and a second frequency associated with alpha band activity linked to sleep onset.
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 2, 4, 12, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over John (U.S. 2007/0142874). John discloses wherein the identifying comprises: bandpass filtering the received EEG signal with cutoff frequencies of 0.5Hz and 20 Hz (par. 0078), but not specifically 0.3 Hz and 45 Hz. It would have been obvious to one of ordinary skill in the art at the time of the invention to make the cutoff frequency range 0.3 Hz to 45 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); removing aperiodic components of the filtered signal (see bandpass noise; par. 0075); and calculating peaks in the filtered signal with removed aperiodic components (par. 0078).
Regarding claims 4 and 14, John discloses setting the parameters of the stimulation signal, but does not specify the amplitude of the sinusoids (par. 0064). It would have been obvious to one of ordinary skill in the art at the time of the invention to set the amplitude to 0.6mA since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art (In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980)).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH L MALAMUD whose telephone number is (571)272-2106. The examiner can normally be reached Mon - Fri 1:00-9:30 Eastern.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Unsu Jung can be reached at (571) 272-8506. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DEBORAH L MALAMUD/Primary Examiner, Art Unit 3792