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 .
Status of Claims
The amendment filed on 9/22/2025 has been entered. In the amendment, Applicant amended claims 21 and 31. Currently claims 21-40 are pending.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claim 21 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), and further in view of Kang et al. (US 2019/0369726).
Claim 21 of this application
claim 1 of U.S. Patent No. 11,604,513
21. A method of individualized content media delivery, the method comprising:
detecting, using at least a sensor, at least a biofeedback signal as a function of a biofeedback of a user, wherein the sensor comprises an electromyography (EMG) sensor configured to record electrical activity;
presenting, using at least a display, content to the user;
controlling, using at least a computing device, at least an environmental parameter of a surrounding physical environment of the user as a function of the at least a biofeedback signal; and
communicating, using the at least a computing device, a communication metric, wherein the communication metric comprises feedback characterizing quality of communication with the user.
1. A method of individualized content media delivery, the method comprising:
detecting, using at least a sensor, at least a biofeedback signal as a function of a biofeedback of a user;
presenting, using at least a display, content to the user; and
controlling, using at least a computing device, at least an environmental parameter for an environment of the user as a function of the at least a biofeedback signal, wherein the at least an environmental parameter comprises a thermal parameter and controlling the at least an environmental parameter further comprises:
generating an environmental machine-learning model as a function of an environmental machine-learning algorithm;
training the environmental machine-learning model as a function of an environmental training set, wherein the environmental training set comprises biofeedback inputs correlated to environmental parameter outputs; and
generating the at least an environmental parameter as a function of the at least a biofeedback signal and the environmental machine-learning model.
As can be seen from the above comparison, claim 1 of U.S. Patent No. 11,604,513 teaches each feature of claim 21 of this instant application (Note: a thermal parameter teaches an environmental parameter of a surrounding physical environment) except the following two features:
1) wherein the sensor comprises an electromyography (EMG) sensor configured to record electrical activity; and
2) communicating, using the at least a computing device, a communication metric, wherein the communication metric comprises feedback characterizing quality of communication with the user.
Both features are not new, however.
As for differentiating feature 1), Kim teaches in Fig. 1 an EMG sensor, which comprises at least a ground electrode 212 and at least an EMG electrode 213, configured to record electrical activity ([0050]; [0054]-[0055]).
Before the effective filing date of the invention, it would have been obvious for one ordinary skill in the art to combine Kim’s teaching with the invention of claim 1 of U.S. Patent No. 11,604,513, i.e., using an EMG sensor to detect a biofeedback signal.
Because there are limited options of sensors for detecting biofeedback signals, the ordinary skill in the art would try any of options to optimize the result.
As for differentiating feature 2), in the same field of endeavor, Kang teaches
communicating, using the at least a computing device, a communication metric, wherein the communication metric comprises feedback characterizing quality of communication with the user ([0017]; [0037]; [0131]: “the processor 250 may measure a signal quality of the biological signal sensed by the sensor unit 210 and may transmit a control signal for outputting a warning indicating that the signal quality sensed by a specific electrode is defective to the electronic device 100 based on the measured signal quality. Alternatively, the processor 250 may output the warning indicating that the signal quality sensed by the specific electrode is defective through the LED or the speaker provided to the removable HMD device 200”).
Before the effective filing date of the invention, it would have been obvious for one ordinary skill in the art to further modify the invention of claim 1 of U.S. Patent No. 11,604,513 in view of Kim with Kang’s technique to provide an intuitive warning on reliability of the sensed biofeedback signal.
Claim 22 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), and further in view of Kang et al. (US 2019/0369726) because each feature of claim 22 is taught by claim 1 of U.S. Patent No. 11,604,513.
Claim 23 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), and further in view of Kang et al. (US 2019/0369726) because each feature of claim 23 is taught by Kang (Fig. 1: ground electrode 212, electromyography (EMG) 213).
Claim 24 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), and further in view of Kang et al. (US 2019/0369726) because each feature of claim 24 is taught by Kang (Fig. 1: ground electrode 212 is placed away from an eye).
Claim 25 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), and further in view of Kang et al. (US 2019/0369726).
Regarding claim 25, claim 1 of U.S. Patent No. 11,604,513 in view of Kim do not further teach the feature “wherein the EMG electrode is located about an eye of the user and configured to detect eye movement”.
However, it is not new arranging an EMD electrode to detect eye movement.
Kang, for instance, teaches in Fig. 3 and [0138] wherein the EMG electrode (i.e., electrodes 33-1 and 33-2 in Fig. 3) is located about an eye of the user and configured to detect eye movement ([0138]: “the electrodes 33-1 and 33-2 for sensing the EMG signal may be provided on the pad 30 which adheres to the lower ends of both eyes so as to sense the movement of muscles around the eyes and around the cheekbones that mainly change a face shape, respectively”).
Before the effective filing date of the invention, it would have been obvious for one ordinary skill in the art to further modify the technique of claim 1 of U.S. Patent No. 11,604,513 in view of Kim with Kang’s technique to obtain a biofeedback signal related to a change of a facial expression.
Claim 26 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), further in view of Kang et al. (US 2019/0369726) and further in view of claim 2 of U.S. Patent No. 11,604,513 because claim 2 of U.S. Patent No. 11,604,513 teaches all features of claim 26 of this instant application.
Claim 27 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), further in view of Kang et al. (US 2019/0369726) and further in view of claim 3 of U.S. Patent No. 11,604,513 because claim 3 of U.S. Patent No. 11,604,513 teaches all features of claim 27 of this instant application.
Claim 28 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), further in view of Kang et al. (US 2019/0369726) and further in view of claim 4 of U.S. Patent No. 11,604,513 because claim 4 of U.S. Patent No. 11,604,513 teaches all features of claim 28 of this instant application.
Claim 29 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), further in view of Kang et al. (US 2019/0369726) and further in view of claim 8 of U.S. Patent No. 11,604,513 because claim 8 of U.S. Patent No. 11,604,513 teaches all features of claim 29 of this instant application.
Claim 30 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), further in view of Kang et al. (US 2019/0369726) and further in view of claim 9 of U.S. Patent No. 11,604,513 because claim 9 of U.S. Patent No. 11,604,513 teaches all features of claim 30 of this instant application.
Claim 31 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), and further in view of Kang et al. (US 2019/0369726) for substantially the same rationale as applied to claim 21.
Claim 32 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), and further in view of Kang et al. (US 2019/0369726) because each feature of claim 32 is taught by claim 11 of U.S. Patent No. 11,604,513.
Claim 33 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), and further in view of Kang et al. (US 2019/0369726) because each feature of claim 33 is taught by Kang (Fig. 1: ground electrode 212, electromyography (EMG) 213).
Claim 34 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), and further in view of Kang et al. (US 2019/0369726) because each feature of claim 34 is taught by Kang (Fig. 1: ground electrode 212 is placed away from an eye).
Claim 35 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), and further in view of Kang et al. (US 2019/0369726).
Regarding claim 35, claim 11 of U.S. Patent No. 11,604,513 in view of Kim do not further teach the feature “wherein the EMG electrode is located about an eye of the user and configured to detect eye movement”.
However, it is not new arranging an EMD electrode to detect eye movement.
Kang, for instance, teaches in Fig. 3 and [0138] wherein the EMG electrode (i.e., electrodes 33-1 and 33-2 in Fig. 3) is located about an eye of the user and configured to detect eye movement ([0138]: “the electrodes 33-1 and 33-2 for sensing the EMG signal may be provided on the pad 30 which adheres to the lower ends of both eyes so as to sense the movement of muscles around the eyes and around the cheekbones that mainly change a face shape, respectively”).
Before the effective filing date of the invention, it would have been obvious for one ordinary skill in the art to further modify the technique of claim 21 of U.S. Patent No. 11,604,513 in view of Kim with Kang’s technique to obtain a biofeedback signal related to a change of a facial expression.
Claim 36 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), further in view of Kang et al. (US 2019/0369726) and further in view of claim 12 of U.S. Patent No. 11,604,513 because claim 12 of U.S. Patent No. 11,604,513 teaches all features of claim 36 of this instant application.
Claim 37 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), further in view of Kang et al. (US 2019/0369726) and further in view of claim 13 of U.S. Patent No. 11,604,513 because claim 13 of U.S. Patent No. 11,604,513 teaches all features of claim 37 of this instant application.
Claim 38 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), further in view of Kang et al. (US 2019/0369726) and further in view of claim 14 of U.S. Patent No. 11,604,513 because claim 14 of U.S. Patent No. 11,604,513 teaches all features of claim 38 of this instant application.
Claim 39 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), further in view of Kang et al. (US 2019/0369726) and further in view of claim 18 of U.S. Patent No. 11,604,513 because claim 18 of U.S. Patent No. 11,604,513 teaches all features of claim 39 of this instant application.
Claim 40 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 11,604,513 in view of Kim et al. (US 2021/0369193), further in view of Kang et al. (US 2019/0369726) and further in view of claim 19 of U.S. Patent No. 11,604,513 because claim 19 of U.S. Patent No. 11,604,513 teaches all features of claim 40 of this instant application.
Allowable Subject Matter
Claims 21-40 would be allowable if a timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) is filed to overcome the current Double Patenting rejection.
Response to Arguments
Double Patenting rejection set forth in previous Office action against US Patent No. 12,019,803 is withdrawn.
Applicant’s arguments with respect to claims 21 and 31 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
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/XUEMEI ZHENG/Primary Examiner, Art Unit 2629