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 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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
The claim(s) recite(s) abstract idea that can be done in the head or organizing human activity of accessing the response of someone listening to must and choosing the music for a therapy without actively applying the therapy.
This judicial exception is not integrated into a practical application because there is no practical application recited in the claims. The limitation of creating a playlist is seen as abstract and the limitation of providing TMS is also seen as abstract as it can fall under just the abstract idea of TMS can then be applied but is not applied or organizing human activity.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements of the processor/computer elements and controller are recited at a high level and here there is no indication that the control apparatus/processor is anything other than a generic, off-the-shelf computer component, and the Symantec, TLI, and OIP Techs. court decisions cited in MPEP 2106.05(d)(II) indicate that mere collection or receipt of data over a network is a well-understood, routine, and conventional function when it is claimed in a merely generic manner (as it is here).
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 5-7, 10 and is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Stupacher, “Musical groove modulates motor cortex excitability: A TMS investigation” (see attached) herein referred to as Stupacher.
Regarding claim 1, Stupacher discloses: A method for transcranial magnetic stimulation (abstract), comprising: identifying a beat offset in a music track that when played for a patient is associated with desynchronization of alpha waves and synchronization of beta waves of the patient (2.2 Music; specifically the high groove music which is associated with movement where movement is seen as synchronization of beta waves versus alpha waves as beta waves are associated with movement and focus rather than alpha waves; Procedure 2.4, applying music with the TMS); playing back the music track for the patient (2.4 Procedure; specifically playing music with the TMS); and providing transcranial magnetic stimulation pulses using a transcranial magnetic stimulation device to the patient, where the pulses are delivered a time equal to the beat offset with respect to beats in the music track (2.4 Procedure; specifically playing music with off-beat pulses with TMS).
Regarding claim 5, Stupacher discloses: wherein the music track is played back to the patient using headphones (2.2 Musical Stimuli; specifically in ear headphones).
Regarding claim 6, Stupacher discloses: wherein the transcranial magnetic stimulation is single pulse transcranial magnetic stimulation (2.4 Procedure; specifically doing the pulse and waiting which is seen as a single pulse TMS).
Regarding claim 7, Stupacher discloses: wherein the transcranial magnetic stimulation is multi-pulse transcranial magnetic stimulation (2.3 TMS and EMG Recording; specifically the pulses every 6 seconds).
Regarding claim 10, Stupacher discloses: wherein a target of the transcranial magnetic stimulation is in a motor cortex of the patient (abstract).
Claim Rejections - 35 USC § 103
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.
Claim(s) 2-4, 9, 10, 12-17 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stupacher in view of JP 20180504719 (See attached with English translation), herein referred to as “Smart audio headphone system”.
Regarding claims 11, 15-17 and 20, claim 11 is similarly rejected over Stupacher as seen above in claim 1 with the additional system elements of the TMS are seen as disclosed further by Stupacher see section 2.3. Stupacher does not explicitly disclose the use of a computer/memory and processor/controller. However, Smart audio headphone system does disclose the use of a computer and processor/memory and controller to create algorithms for recording and performing functions (see DESCRIPTION-OF-EMBODIMENTS paragraph 10/11; specifically the computer/programs, controller, processor).
It would have been obvious before the effective filing date of the claimed invention to modify Stupacher with the computer/programs/processor of Smart audio headphone system. The motivation being to automate a known process with a predictable result where replacing human activity with a computer is seen as replacing one known element for another and having a predictable result of performing the same function as needed.
Regarding claims 2 and 12, Stupacher does disclose: selecting musical tracks as seen in 2.2 Music section of the paper. Stupacher does not explicitly disclose: wherein the music track is selected by: playing back each music track of a plurality of music tracks; recording, using electroencephalogram (EEG) electrodes, brain waves of the patient during playback of each music track of the plurality of music tracks; and selecting a music track in the plurality of music tracks that evoked a smallest salience response based on the recorded brain waves of the patient.
Smart audio headphone system discloses: wherein the music track is selected by: playing back each music track of a plurality of music tracks; recording, using electroencephalogram (EEG) electrodes, brain waves of the patient during playback of each music track of the plurality of music tracks; and selecting a music track in the plurality of music tracks that evoked a smallest salience response based on the recorded brain waves of the patient (Description paragraph 5 states selecting music based on preferences of user using EEG sensors in earphones which matches emotions, moods and/or preferences).
It would have been obvious before the effective filing date of the claimed invention to modify the music selection for TMS as seen in Stupacher with the selection process of Smart audio headphone system. The motivation being to stimulate and / or manipulate the listener's neurophysiological excitability as seen in Smart audio headphone system paragraph 4-5 of the Background/Art section.
Regarding claims 3 and 13, Stupacher does discloses: where the plurality of music tracks is constructed using music tracks that match a plurality of musical preferences of the patient (2.2 Music; specifically the high groove and low groove music where a premade sound track is seen as matching via preferences of the patient).
Regarding claims 4 and 14, Stupacher does disclose choosing high groove music as seen in 2.2 Music section. Stupacher does not explicitly disclose: where the plurality of music tracks is further constructed by: playing back music tracks that match the plurality of preferences of the patient; recording finger movements of the patient during playback; and selecting the plurality of music tracks based on rhythmic tapping of the patient based on the recorded finger movements.
Smart audio headphone system discloses: where the plurality of music tracks is further constructed by: playing back music tracks that match the plurality of preferences of the patient; recording finger movements of the patient during playback; and selecting the plurality of music tracks based on rhythmic tapping of the patient based on the recorded finger movements (Description paragraph 5 states selecting music based on preferences of user using EEG sensors in earphones which matches emotions, moods and/or preferences; where eeg is recording brain signals which if a finger moves the brain will create a signal and thus would be recorded).
It would have been obvious before the effective filing date of the claimed invention to modify the music selection for TMS as seen in Stupacher with the selection process of Smart audio headphone system. The motivation being to stimulate and / or manipulate the listener's neurophysiological excitability as seen in Smart audio headphone system paragraph 4-5 of the Background/Art section.
Regarding claims 9 and 19, Stupacher does disclose identifying beat offset and playing music back as well as recording activity and identifying a time before a beat onset in the music track at which the brain waves of the patient comprise maximum desynchronization of alpha waves and synchronization of beta waves of the patient (1.2 Auditory-motor links and music and paragraph 3; and 2.4 procedures).
Stupacher does not explicitly disclose: wherein identifying the beat offset comprises: playing back the music track; recording, using electroencephalogram (EEG) electrodes, brain waves of the patient during playback of the music track; and identifying a time before a beat onset in the music track at which the brain waves of the patient comprise maximum desynchronization of alpha waves and synchronization of beta waves of the patient.
However, Smart audio headphone system discloses: wherein identifying the beat offset comprises: playing back the music track (Description; paragraph 4-5 and abstract; specifically listening to music in order to select); recording, using electroencephalogram (EEG) electrodes, brain waves of the patient during playback of the music track (Description paragraph 5 states selecting music based on preferences of user using EEG sensors in earphones which matches emotions, moods and/or preferences) and identifying a time before a beat onset in the music track at which the brain waves of the patient comprise maximum desynchronization of alpha waves and synchronization of beta waves of the patient (Detailed Description; specifically selecting music and information in the music using algorithms in order to use it for application of the listener).
It would have been obvious before the effective filing date of the claimed invention to modify the music selection for TMS as seen in Stupacher with the selection process of Smart audio headphone system. The motivation being to stimulate and/or manipulate the listener's neurophysiological excitability as seen in Smart audio headphone system paragraph 4-5 of the Background/Art section.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stupacher’
Regarding claim 8, Stupacher does disclose using a beat offset of 320 ms, but not explicitly disclose: wherein the beat offset is 200 ms. However, there is no specific criticality stated for the beat offset being 200 ms. Paragraph [0054] of the present applications specification states that the 200 ms is an approximate beat offset. However, utilizing 200 ms vs 320 ms when looking at an beat offset for stimulation is based mostly on the song rather than the stimulation and 200 ms vs 320 ms is an obvious variant of beat offset. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify Stupacher by making the length of the beat offset 200 ms requires merelyroutine optimization since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable value by routine experimentation. See MPEP 2144
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stupacher and “Smart audio headphone system”.
Regarding claim 18, Stupacher does disclose using a beat offset of 320 ms, but not explicitly disclose: wherein the beat offset is 200 ms. However, there is no specific criticality stated for the beat offset being 200 ms. Paragraph [0054] of the present applications specification states that the 200 ms is an approximate beat offset. However, utilizing 200 ms vs 320 ms when looking at an beat offset for stimulation is based mostly on the song rather than the stimulation and 200 ms vs 320 ms is an obvious variant of beat offset. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify Stupacher by making the length of the beat offset 200 ms requires merelyroutine optimization since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable value by routine experimentation. See MPEP 2144.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOANNE M RODDEN whose telephone number is (303)297-4276. The examiner can normally be reached Monday - Friday 9:00 AM-5:00 PM MST.
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, Jonathan Moffat can be reached at 571-272-4390. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JOANNE M RODDEN/ Supervisory Patent Examiner, Art Unit 3794
Prosecution Insights