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 .
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.
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 2-7, 9, 11, 14-19, and 21 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.
Claim 2 recites ‘each filter template’ and it is unclear if this is part of the ‘plurality of filter templates’ as recited in claim 1 or not. This similarly applies to claim 14 relative to claim 13.
Claim 2 recites ‘each correlation’ and it is unclear if this is part of the ‘plurality of correlations’ as recited in claim 1 or not. This similarly applies to claim 14 relative to claim 13.
The term “desired” in claim 4 is a relative term which renders the claim indefinite. The term “desired” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. This similarly applies to claim 16.
Claim 4 recites the limitation "the comparison" in Line 4. There is insufficient antecedent basis for this limitation in the claim. This similarly applies to claim 16.
The term “desired” in claim 5 is a relative term which renders the claim indefinite. The term “desired” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. This similarly applies to claim 17.
Claim 5 recites the limitation "the scaled error signal" in Line 6. There is insufficient antecedent basis for this limitation in the claim. This similarly applies to claim 17.
Claim 6 recites the limitation "the scaled error signal" in Line 2. There is insufficient antecedent basis for this limitation in the claim. This similarly applies to claim 18.
Claim 7 recites the limitation "the stimulus parameter" in Line 2. There is insufficient antecedent basis for this limitation in the claim. This similarly applies to claim 19.
Claim 7 recites the limitation "the scaled error signal" in Line 2. There is insufficient antecedent basis for this limitation in the claim. This similarly applies to claim 19.
Claim 9 recites ‘each correlation’ and it is unclear if this is part of the ‘plurality of correlations’ as recited in claim 1 or not. This similarly applies to claim 21.
Claim 11 recites the limitation "the electrode array" in Line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites ‘a sense electrode’ and it is unclear if this is part of the ‘one or more sense electrodes’ as recited in claim 1 or not.
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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-42 of U.S. Patent No. 11890113. Although the claims at issue are not identical, they are not patentably distinct from each other because see the chart below. The only difference is the claimed invention recites a plurality of filter templates and a plurality of correlations. But this difference would have been obvious to one of ordinary skill in the art since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8. MPEP 2144.04(VI-B).
Instant Application 18/745,219
US Patent No. 11890113
1. (New) A controller for an implantable device, the controller comprising a processor configured to:
control an electrical stimulus source to generate a first electrical stimulus to be applied to neural tissue, the first electrical stimulus defined by at least one stimulus parameter;
obtain a neural measurement from one or more sense electrodes, the neural measurement comprising an artefact; and
correlate the neural measurement against a plurality of filter templates to determine a plurality of correlations, the plurality of filter templates being configured to detect a neural response evoked by the first electrical stimulus generated by the electrical stimulus source and to reject the artefact;
determine a magnitude of the neural response evoked by the first electrical stimulus based on the plurality of correlations; and
use the magnitude of the neural response in a closed loop feedback circuit to determine the at least one stimulus parameter to control neuromodulation.
1. A controller for an implantable device, the controller comprising a processor configured to:
control an electrical stimulus source to generate a first electrical stimulus to be applied to neural tissue, the first electrical stimulus defined by at least one stimulus parameter;
obtain a neural measurement from one or more sense electrodes, the neural measurement comprising an artefact; and
correlate the neural measurement against a filter template configured to detect a neural response evoked by the first electrical stimulus generated by the electrical stimulus source to determine a correlation;
determine a magnitude of the neural response evoked by the first electrical stimulus based on the correlation; and
use the magnitude of the neural response in a closed loop feedback circuit to determine the at least one stimulus parameter to control neuromodulation.
13. (New) A method of controlling a neural stimulus, the method comprising:
generating a first electrical stimulus to be applied to neural tissue, the first electrical stimulus defined by at least one stimulus parameter;
obtaining a neural measurement from one or more sense electrodes, the neural measurement comprising an artefact;
correlating the neural measurement against a plurality of filter templates to determine a plurality of correlations, the plurality of filter templates being configured to detect a neural response evoked by the first electrical stimulus and to reject the artefact;
determining a magnitude of the neural response evoked by the first electrical stimulus based on the plurality of correlations; and
using the magnitude of the neural response in a closed loop feedback circuit to determine the at least one stimulus parameter to control neuromodulation.
24. A method of controlling a neural stimulus, the method comprising:
generating a first electrical stimulus to be applied to neural tissue, the first electrical stimulus defined by at least one stimulus parameter;
obtaining a neural measurement from one or more sense electrodes, the neural measurement comprising an artefact;
correlating the neural measurement against a filter template configured to detect a neural response evoked by the first electrical stimulus to determine a correlation;
determining a magnitude of the neural response evoked by the first electrical stimulus based on the correlation; and
using the magnitude of the neural response in a closed loop feedback circuit to determine the at least one stimulus parameter to control neuromodulation.
24. (New) A non-transitory computer readable medium comprising machine-readable instructions, which when executed by a processor cause the processor to:
control an electrical stimulus source to generate a first electrical stimulus to be applied to neural tissue, the first electrical stimulus defined by at least one stimulus parameter;
obtain a neural measurement from one or more sense electrodes, the neural measurement comprising an artefact;
correlate the neural measurement against a plurality of filter templates to determine a plurality of correlations, the plurality of filter templates being configured to detect a neural response evoked by the first electrical stimulus and to reject the artefact;
determine a magnitude of the neural response evoked by the first electrical stimulus based on the plurality of correlations; and
use the magnitude of the neural response in a closed loop feedback circuit to determine the at least one stimulus parameter to control neuromodulation.
42. A non-transitory computer readable medium comprising machine-readable instructions, which when executed by a processor cause the processor to:
control an electrical stimulus source to generate a first electrical stimulus to be applied to neural tissue, the first electrical stimulus defined by at least one stimulus parameter;
obtain a neural measurement from one or more sense electrodes, the neural measurement comprising an artefact;
correlate the neural measurement against a filter template configured to detect a neural response evoked by the first electrical stimulus generated by the electrical stimulus source to determine a correlation;
determine a magnitude of the neural response evoked by the first electrical stimulus based on the correlation; and
use the magnitude of the neural response in a closed loop feedback circuit to determine the at least one stimulus parameter to control neuromodulation.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PATRICK FERNANDES whose telephone number is (571)272-7706. The examiner can normally be reached Monday-Thursday 9AM-3PM EST.
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/PATRICK FERNANDES/Primary Examiner, Art Unit 3791
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