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.
Claim 2 recites “a means for the presentation” and “a means for instructing” which per the specification Examiner interprets as a display unit and control unit.
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 1-20 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.
Claims 1 and 18 (the rest by dependency) recite “motor imagery tasks involving mental manipulation”. It is unclear what this limitation means. What is the scope of “mental manipulation”? Is it merely referring mental rehearsal of movement?
Claims 1 and 18 (the rest by dependency) recite “mental manipulation by the user that relies on the user's internal body model”. It is unclear what this limitation means. What is the scope of “user’s internal body model”? What does it mean for a ‘mental manipulation’ to rely on a ‘body model’?
Claim 12 recites “the therapy session”. There is insufficient antecedent basis for this limitation.
Claim 12 recites “neutral position”. Examiner notes that on an unstable platform, “neutral” can be open to interpretation. It is unclear what the scope of the claim is.
Claim 12 and 14 recite “the random image(s)”. There is insufficient antecedent basis for this limitation.
Claim 13 recites “at the end of a therapy session”. There is insufficient antecedent basis for this limitation. It is also unclear what a therapy session is in the context of the claims.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1, 3-6, 8-11, 16, 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Marci et al. (US 10,603,545 B2 – cited by Applicant), hereinafter Marci in view of Hjerlt et al. (US 2015/0265878 A1 – cited by Applicant), hereinafter Hjerlt.
Regarding Claim 1 and 18, Marci teaches: An apparatus and related method for enhancing motor skill ability of a user through multimodal sensorimotor stimulation by combining a repetitive series of motor imagery tasks involving mental manipulation by the user that relies on the user's internal body model with the user's active movement of body parts that are linked to the motor imagery task as determined by the user, said apparatus comprising (abstract; figures 2-3; 9):
said apparatus further comprising a display unit to provide the user with a visually acquired motor imagery task (column 4 line 48 – column 5 line 11; column 13 line 29 -column 14 line 64; figures 1, 6A-8);
a motion sensor system for sensing the user's movement response which is made as a result of the user's mental performance of each motor imagery task that involves sensing other user movements (column 13 line 55 – column 14 line 16; column 21-22; figure 3); and
a control unit that provides the motor imagery tasks to the display unit that receives the motion sensor system output allowing the user's movement responses to be recorded (figures 1, 6A-8; column 10 line 33 – column 11 line 28; column 13 – column 14).
Marci does not mention an unstable platform that features an element which is moveable by the user, where said element comprises the entire platform or a part thereof, with the user maintaining active standing balance on said unstable platform wherein the user's sensorimotor system is being further stimulated by the act of balancing on said unstable platform while the user undertakes the motor imagery tasks and active movement of body parts, and in between said tasks; sensing the user's movement of the movable element of the unstable platform.
Hjerlt teaches an unstable platform that features an element which is moveable by the user, where said element comprises the entire platform or a part thereof, with the user maintaining active standing balance on said unstable platform wherein the user's sensorimotor system is being further stimulated by the act of balancing on said unstable platform while the user undertakes the motor imagery tasks and active movement of body parts, and in between said tasks; sensing the user's movement of the movable element of the unstable platform (abstract; figure 1; paragraph 0019-0022). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the apparatus to include an unstable platform that features an element which is moveable by the user, where said element comprises the entire platform or a part thereof, with the user maintaining active standing balance on said unstable platform wherein the user's sensorimotor system is being further stimulated by the act of balancing on said unstable platform while the user undertakes the motor imagery tasks and active movement of body parts, and in between said tasks; sensing the user's movement of the movable element of the unstable platform to further improve physical motor control.
Regarding Claim 3, Marci in view Hjerlt teach: The apparatus as defined in claim 1, wherein said unstable movable platform is a curved platform (abstract).
Regarding Claim 4, Marci in view of Hjerlt teach: An apparatus as defined in claim 3, wherein a user can stand astride the axis of rotation of the unstable movable curved platform in an even weight-bearing stance such that the long axis of each foot is aligned with the axis of rotation of the unstable movable curved platform (figure 1; paragraph 0017).
Regarding Claim 5, Marci in view of Hjerlt teach: An apparatus as defined in claim 4, but does not explicitly mention wherein the unstable movable curved platform is in the shape of an ovoid.
Hjerlt does however note that the platform can be any circular or polygonal shape (paragraph 0013). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the apparatus wherein the unstable movable curved platform is in the shape of an ovoid as it has been held that changes in shape is a matter of obvious design choice (MPEP 2144.04).
Regarding Claim 6, Marci in view of Hjerlt teach: An apparatus of claim 5, wherein the unstable moveable curved platform is made of wood (Hjerlt – paragraph 0013).
Regarding Claim 7, Marci in view of Hjerlt teach: The apparatus of claim 1, wherein the unstable movable platform comprises a portable platform incorporating two plates that are each rotatable about their own axis of rotation with the two axes of rotation usually but not necessarily being parallel to each other and with the platform being equipped with motion sensors to detect a user's motion response through movement of the rotatable plates (Hjerlt – figure 2).
Regarding Claim 8, Marci in view of Hjerlt teach: The apparatus of claim 1, wherein the motion sensor system further comprises handheld motion sensors that would typically be used if the user were required to respond to the mental motor imagery task by moving upper body joints such as the elbow or the shoulder (Marci – column 13 line 45-column 14 line 15; column 21 lines 25-35).
Examiner notes that Hjerlt also teaches the use of handheld sensor to determine body position (elements 136 and 138; paragraph 0025-0026). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the apparatus to include handheld motion sensors to get accurate body position information.
Regarding Claim 9, Marci in view of Hjerlt teach: The apparatus of claim 1, wherein the motion sensor system further comprises a wearable array of motion sensors that can allow positioning of the sensors to capture movement responses of the user for any body part (Marci - column 21 lines 25-35; Hjerlt - paragraph 0025-0026; figure 1).
Regarding Claim 10, Marci in view of Hjerlt teach: The apparatus of claim 1. Marci does not mention wherein the motion sensor system further comprises optical motion sensing, which could be achieved through an array of optical sensors or through video motion capture for allowing capture of movement responses by the user for any body part.
Hjerlt teaches the use of camera for motion sensing (paragraph 0026-0027). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the apparatus to include wherein the motion sensor system further comprises optical motion sensing, which could be achieved through an array of optical sensors or through video motion capture for allowing capture of movement responses by the user for any body part to track user movements.
Regarding Claim 11, Marci in view of Hjerlt teach: An apparatus as defined in claim 1, wherein the control unit is able to register the user response and record the time taken from the presentation of the visual image to the user's movement response, notify the user either visually or audibly that the response was recorded, compare the user response against the displayed visual image and assesses it as correct or incorrect according to the instructions provided to the user and provide feedback to the user whether the response was correct (figure 9).
Regarding Claim 16, Marci in view of Hjerlt teach: An apparatus as defined in claim 1, further comprising a speaker system used to deliver auditory stimulation from the control unit to the user during a training session to further enhance the motor skill ability and the therapeutic effect via multisensory stimulation by the addition of particular sound to somatosensory stimulation (column 24 lines 55-67; column 28 lines 50-67).
Regarding Claim 19, Marci in view of Hjerlt teach: The method as defined in claim 18, wherein said motion sensing device is mounted on said unstable movable platform or in some other location (Marci - column 13 line 55 – column 14 line 16; column 21-22; figure 3; Hjerlt - figure 1 and 2).
Claim(s) 14-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Marci in view of Hjerlt, further in view of Orr et al. (US 20200167009 A1), hereinafter Orr.
Regarding Claim 14, Marci in view of Hjerlt teach: An apparatus as defined in claim 1. While Marci notes that the display can be any display, such as, but not limited to, a computer monitor, projector, television, or the like (column 14 lines 14-20), Marci does not mention wherein the visual display unit comprises a wearable head mounted display such that the random images displayed to the user by the visual display unit may be displayed selectively to only one eye at a time in order to provide a challenge to the user's sensorimotor system by limiting access to visual information.
Orr teaches the use of a head mounted display (paragraph 0004) showing different images to each eye (paragraph 0071). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the apparatus wherein the visual display unit comprises a wearable head mounted display such that the random images displayed to the user by the visual display unit may be displayed selectively to only one eye at a time in order to provide a challenge to the user's sensorimotor system by limiting access to visual information.
Regarding Claim 15, Marci in view of Hjerlt in view of Orr teach: An apparatus as defined in claim 14, wherein the wearable head mounted display is a virtual reality headset, augmented reality glasses or other wearable display (Orr - paragraph 0004-0009).
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Marci in view of Hjerlt, further in view of Lee et al. (US 11145181 B1), hereinafter Lee.
Regarding Claim 17, Marci in view of Hjerlt teach: An apparatus as defined in claim 16, but do not mention wherein the speaker system is in the form of wearable headphones and the said control unit, through either a wired or wireless connection to the speaker system, delivers the sound signal to the speaker system.
Lee teaches the use of headphones (column 3 lines 50). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the apparatus wherein the speaker system is in the form of wearable headphones and the said control unit, through either a wired or wireless connection to the speaker system, delivers the sound signal to the speaker system as the substitution of one speaker type for another would have yielded predictable results to one of ordinary skill.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Marci in view of Hjerlt, further in view of Gwin (US 9311789 B1).
Regarding Claim 20, Marci in view of Hjerlt teach: A method according to claim 18, but do not mention further comprising the step of calculating a score that can be stored and used to monitor improvements in motor skill ability.
Gwin teaches the step of calculating a score that can be stored and used to monitor improvements in motor skill ability (column 24 lines 45-55). It would have been obvious to one of ordinary skill in the art, before the effective filing date, to have modified the method further comprising the step of calculating a score so that the score can be stored and used to monitor improvements in motor skill ability.
Allowable Subject Matter
Claims 2, 13 objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: The closest prior arts of record (Marci, Hjerlt, Lee and Orr) fail to mention 1) presenting random images and user's internal body model and 2) calculating a score based on the time taken for each user movement response. None of the prior art considered, alone or in combination, teaches that particular feature combined with the other limitations of the claim.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAY B SHAH whose telephone number is (571)272-0686. The examiner can normally be reached M-F 8-5.
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JAY SHAH
Primary Examiner
Art Unit 3791
/JAY B SHAH/Primary Examiner, Art Unit 3791
Prosecution Insights