DETAILED ACTION
The Examiner acknowledges the amendments received 09 June 2026. Claims 5 and 15 are cancelled; claims 1-4, 6-14 and 16-22 are pending.
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 arguments filed 09 June 2026 have been fully considered but they are not persuasive. The Applicant argues (pages 7-8, “Remarks”) “John does not disclose generating "a single blended alternating current electrical stimulation waveform ... into a unified waveform that simultaneously delivers stimulation at both identified peak EEG frequencies."”, and refers to many of the previously cited portions of John. However, par. 0067, not discussed by the Applicant, refers to Figure 4b, which is reproduced in part below:
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As seen above, and in the accompanying text, John discloses the “single blended signal” (“combined signal”) as claimed.
The Applicant further argues “John does not disclose "identifying ... two peak EEG frequencies of the received signal" and generating a waveform by combining sinusoids at those two identified peaks.” The Examiner believes the above arguments are relevant here.
The Applicant argues (page 9, “Remarks”) that the par. 0145 previous cited by the Examiner “is a general listing of conditions and targets. It does not disclose the method of claim 1 receiving an EEG signal, identifying two peak EEG frequencies of that signal, generating a single blended waveform combining sinusoids at those two identified peaks, and applying that waveform to enhance sleep. A general reference to "sleep" among a list of treatable conditions does not disclose the specific arrangement of steps recited in claim 1.”
The Examiner respectfully disagrees, and notes that the claims are not specific as to how the previous steps are meant to “enhance sleep”, or even what the term “enhance sleep” is meant to entail. The instant application (par. 0022) teaches “various examples disclosed herein provide enhancements in a user's ability to enter sleep and advance through stages of sleep”, again without defining how sleep can be “enhanced”, e.g., longer duration, faster or slower advancement through sleep stages, etc. Therefore, the Examiner broadly interpreted the claimed elements as including treating sleep as disclosed by John.
The Applicant further argues (page 10, “Remarks”) “regarding claims 20 and 21, John does not disclose two peak EEG frequencies that are dominant rhythms from different spectral bands and that are combined into a single blended waveform as required by the independent claims from which these claims depend. The cited passage of John, [0092]-[0095], addresses setting a single stimulation frequency relative to endogenous activity and does not disclose combining two such peaks into one waveform.”
The Examiner respectfully disagrees, and points to previously cited par. 0094 of John:
The center frequency of the filter can be determined by the dominant peak frequency of the endogenously occurring activity, and the neurostimulation can be triggered when the output of the filter is above or below a specified level, or can be provided responsively based upon a different strategy. Accordingly, if synchronized activity was sensed from a target region, this signal could be used to create a stimulation signal that could be fed back to one or more stimulation electrodes either in phase, out of phase, or with a specific time delay (each of which may be individually set for each electrode contact) in order to reinforce, disrupt, or adjust the endogenous activity.
The Applicant argues “Regarding claim 22, John does not disclose two identified peak EEG frequencies comprising 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, combined into the single blended waveform recited in claim 1.”
The Examiner respectfully disagrees and points to previously cited par. 0095: “If a signal with a peak frequency between 4 and 8 Hz is desired then the center frequency of the band-pass can be determined by, or set to measure, the peak frequency in the EEG in that range (theta range), while a roughly 1 0 Hz stimulation signal is desired then the center frequency of the band-pass can be determined by, or set to measure, the peak frequency in the 8 to 12 Hz range (alpha frequency).”
Claim Objections
In view of the amendments received 09 June 2026, the Examiner withdraws the objection to claim 20.
Claim Rejections - 35 USC § 112
In view of the amendments received 09 June 2026, the Examiner withdraws the objection to claims 1-4, 6-9, 16 and 20-22 under 35 USC 112(b)/35 USC 112, second paragraph.
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 single blended 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
THIS ACTION IS MADE FINAL. 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 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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/DEBORAH L MALAMUD/Primary Examiner, Art Unit 3792
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