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 23 December 2025. Claims 1-22 are currently under consideration. The Office acknowledges the amendments to claims 1, 3, 10, 12, and 13.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
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.
Claims 1-5, 11-16, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Warnke (U.S. No. 4,573,449), in view of Hillsman (U.S. No. 3,991,304).
Regarding claim 1, Warnke discloses an apparatus for inducing relaxation in a user (Abstract) comprising: a speaker to play a sound from sound data and a processor coupled with the speaker (col. 1, lines 47-57; col. 3, lines 5-40), the processor configured to repeatedly play the sound data through the speaker and to repeatedly adjust a period of the sound data, wherein the sound data comprises an exhalation cue portion and an inhalation cue portion (col. 2, lines 8-31; period continuously gets longer, first sound cues inhaling and second sound cues exhaling). Warnke fails to expressly disclose that the exhalation cue portion and the inhalation cue portion are in a predetermined ratio throughout the repeated playing and adjustment of the sound data (though it appears to be the case from Fig. 1). Hillsman discloses a similar breathing guidance apparatus (Abstract) wherein a normal ratio between expiration and inspiration is about 1.4 (col. 1, lines 60-62) and wherein the apparatus allows for independent setting of respiratory rate and expiration/inspiration ratio (col. 5, lines 12-16; col. 12, lines 43-45). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Warnke by setting the exhalation and inhalation cue portions in a predetermined ratio, as taught by Hillsman, in order to provide a normal ratio.
Regarding claim 2, the combination of Warnke and Hillsman discloses the invention as claimed, see rejection supra, and Hillsman further discloses that the predetermined ratio of the exhalation cue to the inhalation cue is about 1 to 1.4 (col. 1, lines 60-62).
Regarding claim 3, the combination of Warnke and Hillsman discloses the invention as claimed, see rejection supra, and Warnke further discloses that the repeated playing and the repeated adjustment of the sound data comprises initially playing the sound data with the sound data set to a first time length for a first period of playing time (e.g., t1) and thereafter increasing the first time length of the sound data to a second longer time length and repeatedly playing the sound data with the second longer time length for a second period of playing time (e.g., t3; if the person falls asleep after 256 breathing cycles but there are about 300 breathing cycles, the last 44 or so breathing cycles will be at the second longer time length; further, if the user does not fall asleep, the sound data should remain at the second longer time length of about 7 seconds).
Regarding claim 4, the combination of Warnke and Hillsman discloses the invention as claimed, see rejection supra, and Warnke further discloses that the apparatus is configured to repeatedly play and repeatedly adjust the sound data until the adjustment of the period of the sound data meets a threshold (e.g., the ending period of 7 seconds).
Regarding claim 5, the combination of Warnke and Hillsman discloses the invention as claimed, see rejection supra, and Warnke further discloses that the threshold comprises a repetition per minute minimum threshold (e.g., the ending period of 7 seconds or 0.14 Hz is such a threshold).
Regarding claim 11, the combination of Warnke and Hillsman discloses the invention as claimed, see rejection supra, and Hillsman further discloses that the predetermined ratio is a fixed ratio throughout repeated playing and repeated adjustment of the sound data (ratio can be set to 1.4, which is a “normal” ratio).
Regarding claim 12, Warnke discloses a method of operating an apparatus, that includes a processor, for inducing relaxation in a user (Abstract) comprising: with the processor, repeatedly playing sound data through a speaker (col. 1, lines 47-57; col. 3, lines 5-40) and repeatedly adjusting a period of the sound data, wherein the sound data comprises an exhalation cue portion and an inhalation cue portion (col. 2, lines 8-31; period continuously gets longer, first sound cues inhaling and second sound cues exhaling). Warnke fails to expressly disclose that the exhalation cue portion and the inhalation cue portion are in a predetermined ratio throughout the repeated playing and adjustment of the sound data (though it appears to be the case from Fig. 1). Hillsman discloses a similar breathing guidance apparatus and method (Abstract) wherein a normal ratio between expiration and inspiration is about 1.4 (col. 1, lines 60-62) and wherein the apparatus allows for independent setting of respiratory rate and expiration/inspiration ratio (col. 5, lines 12-16; col. 12, lines 43-45). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Warnke by setting the exhalation and inhalation cue portions in a predetermined ratio, as taught by Hillsman, in order to provide a normal ratio.
Regarding claim 13, the combination of Warnke and Hillsman discloses the invention as claimed, see rejection supra, and Hillsman further discloses that the predetermined ratio of the exhalation cue to the inhalation cue is about 1 to 1.4 (col. 1, lines 60-62).
Regarding claim 14, the combination of Warnke and Hillsman discloses the invention as claimed, see rejection supra, and Warnke further discloses that the repeated playing and the repeated adjustment of the sound data comprises initially playing the sound data with the sound data set to a first time length for a first period of playing time (e.g., t1) and thereafter increasing the first time length of the data to a second longer time length and repeatedly playing the sound data with the second longer time length for a second period of playing time (e.g., t3; if the person falls asleep after 256 breathing cycles but there are about 300 breathing cycles, the last 44 or so breathing cycles will be at the second longer time length; further, if the user does not fall asleep, the sound data should remain at the second longer time length of about 7 seconds).
Regarding claim 15, the combination of Warnke and Hillsman discloses the invention as claimed, see rejection supra, and Warnke further discloses that the processor repeatedly plays and repeatedly adjusts the sound data until the adjustment of the period of the sound data meets a threshold (e.g., the ending period of 7 seconds).
Regarding claim 16, the combination of Warnke and Hillsman discloses the invention as claimed, see rejection supra, and Warnke further discloses that the threshold comprises a repetition per minute minimum threshold (e.g., the ending period of 7 seconds or 0.14 Hz is such a threshold).
Regarding claim 22, the combination of Warnke and Hillsman discloses the invention as claimed, see rejection supra, and Hillsman further discloses that the predetermined ratio is a fixed ratio throughout repeated playing and repeated adjustment of the sound data (ratio can be set to 1.4, which is a “normal” ratio).
Claims 6 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Warnke and Hillsman as applied to claims 4 and 15 above, and further in view of Rubin et al. (U.S. Pub. No. 2007/0249952 A1; hereinafter known as “Rubin”). The combination of Warnke and Hillsman discloses the invention as claimed, see rejection supra, but fails to disclose that the processor is further configured to gradually reduce volume of the played sound data through the speaker during a further period of time, after the adjustment of the period of the sound data meets the threshold (though Warnke does teach reducing volume/amplitude of the sound data). Rubin discloses a similar apparatus and method (Abstract) that plays sounds to encourage the user to fall asleep and gradually diminishes the volume of these sounds after the user has fallen asleep ([0042]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Warnke and Hillsman by gradually reduce volume of the played sound data through the speaker during a further period of time, after the adjustment of the period of the sound data meets the threshold (which is when the user should fall asleep), as taught by Rubin, in order to diminish the volume of the sounds after the user has fallen asleep.
Allowable Subject Matter
Claims 7-10 and 18-21 are 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: regarding claims 7-9 and 18-20, while such movement sensors for determining a measure of respiration are known in the art, none of the prior art of record teaches or reasonably suggests using such a determined measure of respiration for setting the period of the sound data in combination with such an apparatus or method. Regarding claims 10 and 21, none of the prior art of record teaches or reasonably suggests maintaining the pitch of any sounds of the sound data during adjustment of the period, in combination with the other recited components or steps.
Response to Arguments
Applicant’s arguments with respect to the objections to the specification and the claims, as well as the rejections under 35 U.S.C. 112(b), have been fully considered and are persuasive in light of the amendments. The objections and rejections have been withdrawn.
Applicant's arguments with respect to the rejections under 35 U.S.C. 103 have been fully considered but they are not persuasive. Applicant argues that Hillsman fails to disclose that the exhalation cue portion and the inhalation cue portion are in a predetermined ratio throughout the repeated playing and adjustment of the sound data. More specifically, Applicant contends that Hillsman only adjusts an inspiration:expiration ratio for a visual feedback device, as opposed to the recited cue portions that correspond to sound data; and further contends that Hillsman does not teach cues at all. Applicant maintains that Hillsman’s visual/auditory alarms are not comparable to the claimed concept of breathing cues.
The proposed combination of Warnke and Hillsman does not rely upon the alarms taught by Hillsman. It also does not rely on Hillsman’s use of visual feedback nor on Hillsman teaching cues. As detailed supra, and in the previous Office action, Warnke teaches playing sounds from sound data that comprise exhalation and inhalation cues. Warnke also appears to show that these cues are in a predetermined ratio throughout use of the apparatus, but does not expressly describe this. Hillman is only relied on to show that a normal ratio between exhalation and inhalation is known and is in the range taught by the present invention (and recited in claim 2). Thus, the proposed combination takes Warnke’s apparatus and merely maintains a normal ratio between the already provided exhalation and inhalation cues; it is not importing visual feedback or alarms from Hillsman.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Gavish (U.S. Pub. No. 2006/0102171 A1) teaches an apparatus for providing a sound stimulus, wherein the user may select a desired end ratio of inspiration to expiration.
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 THADDEUS B COX whose telephone number is (571)270-5132. The examiner can normally be reached M-F 9am-6pm.
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/THADDEUS B COX/Primary Examiner, Art Unit 3791