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 .
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.
No claim limitation has been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-16 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Specifically, claims 1 and 16 recite an abstract idea of “selecting at least the current interface signal as an interface signal suitable for the user in response to the transmission of the current interface signal having caused the measured physiological signal of the user to have an intensity exceeding a threshold”. Under the broadest reasonable interpretation, there is nothing in the claims themselves that foreclose them from being performed by a human, mentally or with pen and paper. The “selecting at least the current interface signal as an interface signal suitable for the user in response to the transmission of the current interface signal having caused the measured physiological signal of the user to have an intensity exceeding a threshold” step amounts to an evaluation or judgement that can be performed wholly mentally based on the received measured physiological signal of the user (step 2A: Prong One).
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the limitations “transmitting at least one interface signal referred to as a current interface signal”, “a device” (claim 1), “a processing circuit” (claims 15 and 16), and “the interface signal comprising a carrier first frequency and a modulation second frequency” merely represent elements and/or steps are well-understood, routine, and conventional in the art. They represent components and/or activities which would routinely be used in applying the abstract idea. As such, they do not meaningfully limit the claim, taken as a whole, to a particular application of the abstract idea; rather, the claim would tend to monopolize the abstract idea itself in practice. As evidence that these elements are well-understood, routine and conventional in the art, the Office cites Smits et al. (US 2003/0073920 A1), specifically [0052], and Li et al. (US 2002/0038208 A1), specifically [0010]-[0011].
The limitation “receiving a measured physiological signal of the user… the physiological signal resulting from a reaction of the user to the transmission of the current interface signal” is merely insignificant extra-solution activity, such as mere data gathering, recited at a high level of generality and/or in a well-understood, routine, and conventional way, of the information needed to carry out the claimed algorithm (step 2A: Prong Two).
Moreover, the claim(s) does/do not include additional elements that contribute an inventive concept, either individually, or in combination, because the claims do not include any limitations that amount to an improvement in the functioning of a computer, or an improvement to other technology or technical field, apply or use the judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, implement the judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, effect a transformation or reduction of a particular article to a different state or thing, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception (step 2B).
Regarding the dependent claims 2-14, the limitations of these dependent claim(s) merely add details to the algorithm which forms the abstract idea, but does not contain any further “additional elements”. Thus, the dependent claim(s) are not significantly more than the extended abstract idea.
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) 1-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by John et al. (US Patent No. 7,014,613 B2).
Regarding claim 1, John et al. discloses a method for determining at least one interface signal suitable for a user, to be applied to an interface operating by detection of an evoked potential in a physiological signal of the user in response to a transmission of an interface signal intended for the user, the method being implemented by a device and comprising:
transmitting at least one interface signal referred to as a current interface signal (see col. 10, lines 20-22 – “The next step M2 is to transduce the test signal to create a stimulus and present this stimulus to the subject 60”); and
after transmitting the current interface signal, receiving a measured physiological signal of the user and selecting at least the current interface signal as an interface signal suitable for the user in response to the transmission of the current interface signal having caused the measured physiological signal of the user to have an intensity exceeding a threshold, the physiological signal resulting from a reaction of the user to the transmission of the current interface signal (see col. 5, lines 50-61 – “The objective audiometric test apparatus 10 can be used to assess the auditory system of a subject 60 by presenting SSAEP stimuli to the subject 60. While the stimulus is being presented, the objective audiometric test apparatus 10 records sensed potentials (i.e. EEG data) and amplifies the EEG data. This is done while substantially simultaneously presenting the SSAEP stimuli to the subject 60. The EEG data is then processed and statistically evaluated to determine if the recorded EEG data contains SSAEP responses. For example, data processing may show the responses that are statistically significantly different than the background EEG noise levels” and col. 10, lines 22-35 – “The next step M3 is to record the EEG data of the subject 60 simultaneously with presentation of the stimulus. The presentation of the stimulus and the acquisition of the EEG data must be synchronized with the objective audiometric test apparatus 10 to accurately represent signals of interest. The next step M4 consists of analyzing the recorded EEG data to determine whether there are any responses present in the EEG data. This step will typically involve performing a noise reduction method on the EEG data and then applying a detection method to the noise reduced data. The next step M5 may be to report test results. The steps outlined in FIG. 1b may be part of a larger audiometric test that will involve performing each of the steps several times”), the interface signal comprising a carrier first frequency and a modulation second frequency (see col. 7, lines 24-28 – “The signal creator module 42 creates data series for the carrier signals that are used in the SSAEP stimulus. The signal creator module 42 will typically employ the modulator module 44 to amplitude modulate and/or frequency modulate these carrier signals” and col. 8, lines 15-22 – “The user can define the frequency of the carrier signal (i.e. carrier frequency), the frequency of the modulation signal (i.e. modulation frequency), the amplitude modulation depth, the frequency modulation depth, the stimulus intensity, and the phase of the frequency modulation component relative to the phase of the amplitude modulation component for a particular type of SSAEP stimulus”).
Regarding claim 2, John et al. discloses the transmitted interface signal results from a transformation of the current interface signal (see Figure 11 and col. 8, lines 15-30 – “The user can define the frequency of the carrier signal (i.e. carrier frequency), the frequency of the modulation signal (i.e. modulation frequency), the amplitude modulation depth, the frequency modulation depth, the stimulus intensity, and the phase of the frequency modulation component relative to the phase of the amplitude modulation component for a particular type of SSAEP stimulus. The Stimulus Setup-Up screen therefore allows the user to choose the SSAEP stimulus to comprise an amplitude modulation test signal (AM), a frequency modulation test signal (FM), a combined amplitude modulation and frequency modulation test signal (referred to as mixed modulation or MM), an optimum vector combined amplitude modulation and frequency modulation test signal (OVMM) and an independent amplitude modulation and frequency modulation test signal (IAFM)”; see also col. 27, line 47-col. 28, line 24 and col. 28, line 43-col. 29, line 7).
Regarding claim 3, John et al. discloses transforming the current interface signal as long as no interface signal suitable for the user has been selected (see col. 27, line 47-col. 28, line 24 and col. 28, line 43-col. 29, line 7).
Regarding claim 4, John et al. discloses measuring the user's physiological signal, in reaction to the transmission of the current interface signal,
transforming the current signal, and
repeating the measurement and transformation a plurality of times, in order to retain a plurality of interface signals suitable for the user and for which the respective transmissions caused the physiological signal of the user to have an intensity exceeding the threshold (see col. 27, line 47-col. 28, line 24 and col. 28, line 43-col. 29, line 7).
5. The method according to claim 4, wherein said threshold is a function of an average of the intensities successively measured (see col. 9, lines 16-24 – “The Record Data screen allows the user to view the sensed EEG data for the current epoch that is being sampled. The user can also view the amplitude spectra of the average sweep (a sweep is a concatenation of epochs and the average sweep is the result from averaging a plurality of sweeps). When the average sweep is displayed, the frequencies of the SSAEP responses in the EEG data are highlighted for easy comparison with background EEG activity (i.e. background noise)”).
Regarding claim 6, John et al. discloses the transformation of the current interface signal is carried out by modifying at least one frequency among the first and second frequencies (see col. 8, lines 15-22 – “The user can define the frequency of the carrier signal (i.e. carrier frequency), the frequency of the modulation signal (i.e. modulation frequency), the amplitude modulation depth, the frequency modulation depth, the stimulus intensity, and the phase of the frequency modulation component relative to the phase of the amplitude modulation component for a particular type of SSAEP stimulus”; see also Figures 4a-f, col. 17, lines 39-42, and col. 20, lines 7-32).
Regarding claim 7, John et al. discloses the transformation of the current signal is carried out by modifying at least one amplitude associated with a frequency among the first and second frequencies, relative to an amplitude associated with the other frequency among the first and second frequencies (see col. 8, lines 15-22 – “The user can define the frequency of the carrier signal (i.e. carrier frequency), the frequency of the modulation signal (i.e. modulation frequency), the amplitude modulation depth, the frequency modulation depth, the stimulus intensity, and the phase of the frequency modulation component relative to the phase of the amplitude modulation component for a particular type of SSAEP stimulus”; see also Figures 4a-f, col. 17, lines 39-42, and col. 20, lines 7-32).
Regarding claim 8, John et al. discloses the transformation of the current signal is carried out by adding random noise in a time-frequency representation of the current signal (see col. 8, lines 51-55 – “The signal creator 42 can also generate stimuli consisting of tones, broad-band noise, high-pass noise, low-pass noise, or band-pass noise all of which can be either modulated or unmodulated. Noise stimulus may further consist of white noise, pink noise or speech spectra”).
Regarding claim 9, John et al. discloses the selected signal comprises at least a first, noisy portion, followed in time by a second, non-noisy portion (see col. 8, lines 51-55 – “The signal creator 42 can also generate stimuli consisting of tones, broad-band noise, high-pass noise, low-pass noise, or band-pass noise all of which can be either modulated or unmodulated. Noise stimulus may further consist of white noise, pink noise or speech spectra”).
Regarding claim 10, John et al. discloses said at least one interface signal suitable for the user is selected by implementing inverse correlation filters (see col. 22, lines 4-12 – “The database of normative values can contain phase difference data (i.e. difference between the phases of the FM and AM components of the OVMM SSAEP stimulus) which is correlated to subject characteristics and stimulus characteristics. Subject characteristics typically include the age of the subject, the sex of the subject and the like. Stimulus characteristics include the carrier frequency of the FM or AM component, the intensity of the stimulus, the AM modulation depth, the FM modulation depth and the like” and col. 26, line 63-col. 27, line 7 – “The objective audiometric test apparatus 10 also utilizes one of the databases of normative data, stored in the master database 52, to construct SSAEP stimuli, detect SSAEP responses and determine whether detected SSAEP responses are indicative or normal or abnormal hearing. The databases contain data which is correlated by subject characteristics such as age, sex and state over a variety of stimulus characteristics such as type of modulation, type of modulation envelope, modulation rate and modulation depth, etc. The database also contains data about SASEP responses such as latency, the ratio of amplitudes of SSAEP responses to AM and FM SSAEP stimuli, etc.”).
Regarding claim 11, John et al. discloses the interface signals are sound signals, and the method further comprises data storage (34) for the signals selected as being suitable for the user with a view to playback, by loudspeakers (26), of at least part of said selected signals, simultaneously (see Figure 1a and col. 6, lines 16-23 – “The SSAEP stimulus is presented to the subject 60 via the transducer 26 which may be a pair of speakers, headphones or at least one insert earphone. The insert earphones may be earphones designed by Etymotics Research. The transducer 26 allows the SSAEP stimulus to be presented to the left and/or right ears of the subject 60. The stimuli may also be presented using free-field speakers, bone conduction vibrators or other acoustic transducers” and col. 7, lines 46-50 – “The software program 40 can also display test results in the frequency domain on the display monitor 36. The software program 40 can also save the test results on the storage device 34 which may be a hard drive or the like for further extensive analysis by other programs.”).
Regarding claim 12, John et al. discloses measuring the physiological signal of the user, in reaction to the transmission of the current interface signal, by searching for a frequency in the physiological signal corresponding to the second frequency (see col. 17, lines 39-52 – “In addition to detecting responses at the modulation frequencies used in the SSAEP stimulus, the detection module 50 may be adapted to detect the SSAEP responses that occur at the carrier frequency. In this case, the sampling rate of the ADC 18 would have to be increased so that EEG data with frequency content in the range of the carrier frequency could be properly sampled”).
Regarding claim 13, John et al. discloses the intensity of the physiological signal of the user is determined by estimating a signal-to-noise ratio of the physiological signal measured in the user (see Figures 2a-f).
Regarding claim 14, John et al. discloses the intensity of the physiological signal of the user is determined by estimating a signal-to-noise ratio of the physiological signal measured in the user, the method further comprising:
retaining at least the interface signal suitable for the user, of which the transmission caused a maximization (see Figure 2e-f), at the modulation second frequency, of the signal-to-noise ratio of the physiological signal measured in the user (see Figures 2a-f).
Regarding claim 15, John et al. discloses a non-transitory computer-readable medium storing computer program instructions causing an implementation of the method according to claim 1, when the computer program is executed by a processing circuit of the device (see col. 5, lines 41-49 – “A personal computer, for example a Pentium 750 running Windows 98, may provide the processor 12, storage device 34 and display monitor 36. The software program 40 is run on the personal computer and the master database 52 along with the plurality of databases D1 to Dn can be stored in the memory of the personal computer and can communicate with the software program. Alternatively, these components may be effected on a laptop, a handheld computing device, such as a palmtop, or a dedicated electronics device”).
Regarding claim 16, John et al. discloses device comprising:
a processing circuit (12) configured to determine at least one interface signal suitable for a user, to be applied to an interface operating by detection of an evoked potential in a physiological signal of the user in response to a transmission of an interface signal intended for the user (see Figure 1a), the determining comprising:
transmitting at least one interface signal referred to as a current interface signal (see col. 10, lines 20-22 – “The next step M2 is to transduce the test signal to create a stimulus and present this stimulus to the subject 60”); and
after transmitting the current interface signal, receiving a measured physiological signal of the user and selecting at least the current interface signal as an interface signal suitable for the user in response to the transmission of the current interface signal having caused the measured physiological signal of the user to have an intensity exceeding a threshold, the physiological signal resulting from a reaction of the user to the transmission of the current interface signal (see col. 5, lines 50-61 – “The objective audiometric test apparatus 10 can be used to assess the auditory system of a subject 60 by presenting SSAEP stimuli to the subject 60. While the stimulus is being presented, the objective audiometric test apparatus 10 records sensed potentials (i.e. EEG data) and amplifies the EEG data. This is done while substantially simultaneously presenting the SSAEP stimuli to the subject 60. The EEG data is then processed and statistically evaluated to determine if the recorded EEG data contains SSAEP responses. For example, data processing may show the responses that are statistically significantly different than the background EEG noise levels” and col. 10, lines 22-35 – “The next step M3 is to record the EEG data of the subject 60 simultaneously with presentation of the stimulus. The presentation of the stimulus and the acquisition of the EEG data must be synchronized with the objective audiometric test apparatus 10 to accurately represent signals of interest. The next step M4 consists of analyzing the recorded EEG data to determine whether there are any responses present in the EEG data. This step will typically involve performing a noise reduction method on the EEG data and then applying a detection method to the noise reduced data. The next step M5 may be to report test results. The steps outlined in FIG. 1b may be part of a larger audiometric test that will involve performing each of the steps several times”), the interface signal comprising a carrier first frequency and a modulation second frequency (see col. 7, lines 24-28 – “The signal creator module 42 creates data series for the carrier signals that are used in the SSAEP stimulus. The signal creator module 42 will typically employ the modulator module 44 to amplitude modulate and/or frequency modulate these carrier signals” and col. 8, lines 15-22 – “The user can define the frequency of the carrier signal (i.e. carrier frequency), the frequency of the modulation signal (i.e. modulation frequency), the amplitude modulation depth, the frequency modulation depth, the stimulus intensity, and the phase of the frequency modulation component relative to the phase of the amplitude modulation component for a particular type of SSAEP stimulus”).
Conclusion
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/DEVIN B HENSON/ Primary Examiner, Art Unit 3791