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 .
This Office Action is responsive to the Amendment filed 29 July 2026. Claims 1-10 are currently under consideration. The Office acknowledges the amendments to claims 1-10.
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: “an auditory output device configured to emit audio signals” in claims 1 and 6.
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 1-10 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.
Claim 1 recites the limitation "the participant supported thereon" in lines 4-5. There is insufficient antecedent basis for this limitation in the claim; while the claim previously recites a participant, it does not previously recite a participant supported on the trochoidal movement table.
Claim 1 also recites the limitation “an auditory device” in line 8. As detailed supra, this claim limitation invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The specification as-filed teaches no structure whatsoever for an auditory output device. Indeed, the term is not used a single time in the specification as-filed. Again, the specification only teaches an “auditory input device” that may comprise headphones. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claim 1 also recites the limitation “the selectable direction” in line 20. It is not clear which of the “at least two selectable directions” is being referred to.
Claims 2-5 are rejected by virtue of their dependence upon claim 1.
Claim 6 recites the limitation "the participant supported thereon" in line 5. There is insufficient antecedent basis for this limitation in the claim; while the claim previously recites a participant, it does not previously recite a participant supported on the trochoidal movement table.
Claim 6 also recites the limitation “an auditory device” in line 8. As detailed supra, this claim limitation invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The specification as-filed teaches no structure whatsoever for an auditory output device. Indeed, the term is not used a single time in the specification as-filed. Again, the specification only teaches an “auditory input device” that may comprise headphones. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claim 6 also recites the limitation “the selectable direction” in line 20. It is not clear which of the “at least two selectable directions” is being referred to.
Claims 7-10 are rejected by virtue of their dependence upon claim 6.
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 1-10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bolles et al. (U.S. Pub. No. 2006/0058701 A1; hereinafter known as "Bolles").
Regarding claim 1, Bolles discloses a system 100 for providing multi-sensory stimuli to a participant (Abstract; Fig. 1) comprising: (a) a trochoidal movement table 120 for supporting a moving input, a vestibular input, and a somatosensory input to the participant supported thereon ([0019]-[0020]); (b) a light emitting visual display 110 located for viewing by the participant supported on the trochoidal movement table ([0021]); (c) an auditory output device 140 configured to emit audio signals to the participant supported on the trochoidal movement table ([0024]); (d) a processor and a controller 160 in control communication with the trochoidal movement table, the light emitting visual display, and the auditory output device; wherein the controller is operable to receive and store a first sensory software program from a server 150, wherein the first sensory software program includes instructions executable by the processor to cause movement of the trochoidal movement table in one of at least two selectable directions, at a selectable rate of movement, cause light emissions from the light emitting visual display, and cause sound to emit from the auditory output device ([0019]; [0025]-[0026]; [0040]; claim 1), wherein the selectable direction and rate of movement of the trochoidal movement table are determined by the controller based on a clinically assessed sensory processing profile of the participant stored in the controller ([0032]; [0043]).
Regarding claim 2, Bolles discloses that the server is a remote server ([0025]- [0026]).
Regarding claims 3 and 4, Bolles discloses that the controller additionally has a second sensory software program stored which second sensory software program is operable in response to a characteristic of the participant, wherein the characteristic of the participant is evaluated upon interaction of the participant to stimuli produced in relation to the first sensory software program ([0025]; [0034]-[0039]; [0042]-[0043]).
Regarding claim 5, Bolles discloses that the controller has stored the first sensory software program and the second sensory software program received from the remote server, wherein the first sensory software program and the second sensory software program include instructions executable by the processor to cause movement of the trochoidal movement table at a defined rate of movement, to cause the auditory output device to emit an audible stimulus, and the light emitting visual display to emit a visual stimulus ([0035]-[0036]; [0040]; claims 1, 27, and 31).
Regarding claim 6, Bolles discloses a method for delivering a multi-sensory stimuli to a participant (Abstract) comprising the steps of: (a) providing a trochoidal movement and somatosensory table 120 for supporting a moving input, a vestibular input and a somatosensory input to the participant supported thereon ([0019]-[0020]); (b) providing a light emitting visual display 110 viewable by the participant supported on the trochoidal movement and somatosensory table ([0021]); (c) providing an auditory output device 140 configured to emit audio signals to the participant supported on the trochoidal movement and somatosensory table ([0024]); (d) providing a controller 160 in control communication with the trochoidal movement and somatosensory table, the light emitting visual display, and the auditory output device, the controller including a processor and a stored first sensory software program and (e) delivering a command from the stored first sensory software program to cause one or more of movement of the trochoidal movement and somatosensory table in one of at least two selectable directions, at a selectable rate of movement, cause light emissions from the light emitting visual display, or cause sound to emit from the auditory output device ([0019]; [0025]-[0026]; [0040]; [0043]; claim 1), wherein the selectable direction and rate of movement of the trochoidal movement and somatosensory table delivered in said command are determined by the controller based on a clinically assessed sensory processing profile of the participant stored in the controller ([0032]; [0043]).
Regarding claim 7, Bolles discloses a step of providing a remote server 150 in control communication with the controller ([0025]-[0026]).
Regarding claims 8 and 9, Bolles discloses a step of providing the controller with a stored second software program operable in response to a sensory processing characteristic of the participant and further including a step of evaluating the sensory processing characteristic of the participant based upon interaction of the participant with stimuli produced in relation to the first sensory software program ([0034]-[0039]; [0043]).
Regarding claim 10, Bolles discloses a step of the remote server providing a sensory program to the controller, wherein the sensory program includes instructions executable by the processor to cause movement of the trochoidal movement and somatosensory table at a clinically defined rate of movement selected based on the sensory processing characteristic of the participant, to cause the auditory output device to emit an audible stimulus, and to cause the light emitting visual display to emit a visual stimulus ([0005]; [0019]; [0032]; [0035]-[0040]; [0043]).
Response to Arguments
Applicant’s arguments with respect to the objections to the claims have been fully considered and are persuasive in light of the amendments. The objections have been withdrawn.
Applicant’s arguments with respect to the rejections under 35 U.S.C. 112(b) have been fully considered and are mostly persuasive in light of the amendments. Most of the rejections have been withdrawn. However, the rejections based upon language invoking 35 U.S.C. 112(f) (and the written description failing to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function) are maintained. Applicant argues that the term “auditory output device” connotes sufficiently definite structure to one of ordinary skill in the art, as a device that output audible signals such as headphones or speakers. Again, however, the specification as-filed teaches no structure whatsoever for an “auditory output device”; this term is not even used a single time. Producing auditory output is not a structural characteristic. Applicant argues that the term is not a generic placeholder but instead identifies a specific class of physical hardware such as headphones, speakers, or earbuds. The examiner disagrees. Components such as headphones, speakers, or earbuds are indeed specific pieces of physical hardware, but an “auditory output device” is not. Nearly any device in the world is able to produce an auditory output, whether through its operation or by making an impact with another object. Applicant is suggested to either amend this term to recite an “auditory input device” or “headphones.”
Applicant's arguments with respect to the rejections under 35 U.S.C. 102 have been fully considered but they are not persuasive. Applicant argues that Bolles fails to teach the newly recited last clauses of claims 1 and 6. Applicant argues that the intelligence and decision-making regarding the direction/rate reside at the remote server and not with the local controller. The examiner disagrees. Bolles teaches essentially the same interaction between the remote server and the controller as the present invention (indeed, much of the paragraphs are nearly identical). The present specification teaches that a series of colors may be presented automatically as dictated by a sensory program executed by the controller; Bolles teaches the same in paragraph 0021. The present application teaches that the controller executes software programs that may be sensory programs and that control the operational status of the table, the visual display, and the audio device; Bolles teaches the same in paragraph 0025. The present invention teaches that software is engaged to run a first light program, with motion of the table commencing automatically, and then running the second light program with the table automatically engaged per that light program protocol. This does not teach the controller autonomously making a determination of a selectable direction and a rate or movement; it merely teaches the controller operating the system in accordance with prescribed program parameters. To the extent that Applicant is arguing that the present claims recite a local controller that autonomously determines the direction and rate of movement based upon a profile, instead of merely following selections made by a remote trained professional: (1) this is not presently recited, and (2) if it was presently recited, there would not be sufficient written description to support this recitation and the claims would be rejected under 35 U.S.C. 112(a). The examiner is unable to find this taught anywhere in the present application. The present claims are interpreted as having the controller operate the movement of the table according to the clinically assessed sensory processing profile of the participant; i.e., that the controller looks at the parameters of the program that corresponds to the profile and moves the table based thereon.
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 THADDEUS B COX whose telephone number is (571)270-5132. The examiner can normally be reached M-F 9am-6pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jason M. Sims can be reached at (571)272-7540. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THADDEUS B COX/Primary Examiner, Art Unit 3791
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