The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Election/Restrictions
Applicant’s election without traverse of Species A in the reply filed on February 26, 2026 is acknowledged. Claims 4-5 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim.
It is additionally noted that within claim 1, the Markush grouping of “a generator of music or electromagnetic frequency” comprises Species A (i.e., music) and Species B (i.e., electromagnetic frequency). As such, claim 1 is examined below with regard to the elected species A of music, and “or electromagnetic frequency” in claim 1, representative of Species B, is not considered herein and should be removed in the next response as being directed to a non-elected species.
Drawings
The drawings are objected to because Figure 6 shows a graph which, according to paragraph 45 of the specification, uses colors to differentiate between frequency bands. However, color photographs and color drawings are not accepted in utility applications unless a petition filed under 37 CFR 1.84(a)(2) is granted. Any such petition must be accompanied by the appropriate fee set forth in 37 CFR 1.17(h), one set of color drawings or color photographs, as appropriate, if submitted via the USPTO patent electronic filing system or three sets of color drawings or color photographs, as appropriate, if not submitted via the via USPTO patent electronic filing system, and, unless already present, an amendment to include the following language as the first paragraph of the brief description of the drawings section of the specification:
The patent or application file contains at least one drawing executed in color. Copies of this patent or patent application publication with color drawing(s) will be provided by the Office upon request and payment of the necessary fee.
Color photographs will be accepted if the conditions for accepting color drawings and black and white photographs have been satisfied. See 37 CFR 1.84(b)(2).
Since color is not currently accepted in this application, it is impossible to properly interpret the color distinctions of Figure 6.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Interpretation
Claim 1 is directed to “a generator of music”, which is an apparatus. Section 2114(II) of the MPEP states (with emphasis in the original), “’Apparatus claims cover what a device is, not what a device does.’ Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987.”
The following limitations are intended use and do not impart meaningful structural limitations that positively narrow the claimed generator of music:
“to excite the resonant action potentials in the cerebral cortex to reduce or minimize brain disease” (see claim 1 – intended use)
“to achieve an overall sensory activity for enhancement of the treatment volume of diseased brain neurons” (see claim 2 – intended use)
“…reduction of brain AD…” (see claim 3 – intended use)
Claim Rejections - 35 USC § 112
First Paragraph
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 3 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 3 is rejected for its recitation of “detected by TMS measurement of the eye retina”. This is stated verbatim in paragraph 7 of the originally filed specification, but no further description is provided anywhere else to this step or device. As such, it is not understood how a trans magnetic stimulation device would detect anything from a retina, or from any body part since it is a device for stimulation. Additionally, the specification does not provide description of what is significant within the retina for detecting that would lead to a verification of a reduction of brain AD, which is assumed to mean “Alzheimer’s Disease”, although the specification fails to define this acronym. Therefore, the specification fails to provide sufficient detail, in such a way as to reasonably convey to one skilled in the relevant art that the inventors, at the time the application was filed, had possession of the claimed invention. Rather, it appears that the specification provides details of the use of a Muse EEG headband to detect results.
Claim Rejections - 35 USC § 112
Second Paragraph
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 1-3 and 6 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 1 is rejected because “the appropriate spectra” in line 2 lacks antecedent basis.
Claim 1 is rejected because “the resonant action potentials” in line 2 lacks antecedent basis.
Claim 1 is rejected because “the cerebral cortex” in line 3 lacks antecedent basis.
Claim 1 is rejected because “the music or sound” in line 4 lacks antecedent basis. Specifically, there is no prior recitation of “sound”.
Claim 1 is rejected because “the brain” in lines 4-5 lacks antecedent basis.
Claim 1 is rejected because “the appropriate frequencies” in the last line lacks antecedent basis. It is noted also that “the appropriate frequencies” appears again in lines 1-2 of claim 2, and these two recitations should be corrected together.
Claim 2 is rejected because it is unclear how “the appropriate frequencies” can be “positioned outside the brain”, as claimed. In other words, the generator may be positioned outside of the brain, or the headphones in claim 1 may be positioned outside the brain, but it is unclear how the frequencies themselves would be “positioned outside the brain”.
Claim 2 is rejected because “the treatment volume” and/or “the treatment volume of diseased brain neurons” in line 3 lacks antecedent basis.
Claim 2 is rejected because it is unclear what is considered “enhancement” within the recitation of “an overall sensory activity for enhancement of the treatment volume of diseased brain neurons”.
Claim 3 is rejected because “the eye retina” in line 2 lacks antecedent basis. The claim is directed to “a generator of music”, and it is not inherent that a generator of music has an eye, a retina or an eye retina.
Claim 3 is rejected because it is unclear if the limitations are directed to an apparatus or a method. In other words, the claim depends from claim 1, which is an apparatus claim directed to “a generator of music”. However, claim 3 recites “wherein reduction of brain AD is detected by TMS measurement of the eye retina”. Firstly, it is re-iterated that “reduction of brain AD” is an intended use limitation (see Claim Interpretation section above). Furthermore, it is unclear how “a generator of music” would detect TMS measurements of an eye retina. Additionally, there is nothing in claims 1 or 3 that positively recites a TMS apparatus capable of detecting. Finally, a TMS (i.e., trans magnetic stimulation) is a delivery system and not inherently a detection system.
Claim 3 is rejected because the acronym “AD” in “brain AD” is not defined by the claim, nor by the specification. While it is assumed this means “Alzheimer’s Disease”, it is unclear and indefinite. Assuming that this does mean “Alzheimer’s Disease”, it is noted that Alzheimer’s Disease relates to plaque build up within the brain, but does not affect the entirety of the brain. As such, “brain AD” is unclear and indefinite.
Claim 6 is rejected because “the frequency ranges” in lines 1-2 lack antecedent basis.
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.
Claims 1-3 and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Izvarina (WO 2016/130843).
Izvarina discloses “Systems, methods and computer-readable media are disclosed for providing therapeutic auditory stimulation… The system may also comprise a therapy unit that generates, based on the provided values, one or more stimulation waveforms corresponding to one or more of the EEG frequency bands and provides the stimulation waveforms for therapeutic auditory stimulation. The stimulation waveforms may comprise audible carrier frequencies modulated by signals with frequencies that vary exponentially with time. The EEG frequency bands may comprise the delta, theta, alpha, beta 1, beta 2, and gamma EEG frequency bands” (see Abstract). “The audio output may comprise one or more speakers and/or headphones” (see paragraph 50). The disclosed embodiments of Izvarina may provide treatment for multiple things, including Alzheimer-type vascular dementia, memory loss, mental confusion, Parkinson’s disease, and more (see paragraph 6).
As such, Izvarina teaches a generator of music (i.e., headphones and/or the therapy unit – see paragraph 11 “The therapy unit may provide the stimulation waveforms for therapeutic auditory stimulation”), comprising the appropriate spectra to excite the resonance action potentials in the cerebral cortex to reduce or minimize brain disease (see paragraph 6 where it discusses the embodiments are for treating a multitude of brain diseases), the music or sound being delivered to the brain by headphone (see paragraph 50) that can reproduce the appropriate frequencies (it is re-iterated that the auditory stimulation is for treating the brain, which is the appropriate frequencies).
Regarding claim 2, it is noted that claim 1 already recites the use of headphones, which was described with regard to Izvarina in the rejection of claim 1. It is also noted that headphones are placed in or around the ear of a user, which is applied and positioned outside the brain. Therefore, the teachings of Izvarina teach the structural limitations of claims 1 and 2. The recitations of “to achieve an overall sensory activity for enhancement of the treatment volume of diseased brain neurons” does not positively narrow the structural aspects of the “generator of music” claimed in claim 1. Izvarina reads on all of the structural limitations of claim 1, and is therefore capable of providing music that would provide this same result.
Regarding claim 3, it is noted that “reduction of brain AD” and the detection of such reduction “by TMS measurement of the eye retina” is rejected above with regard to 35 U.S.C. 112(a) and 112(b). Additionally, it was noted above that “reduction of brain AD” is intended use. As such, the teachings of Izvarina read on all structural limitations of “a generator of music” that is claimed within claims 1 and 3. Additionally, Izvarina specifically teaches in paragraph 6 that the embodiments of its invention are directed to treatment of Alzheimer-type vascular disease, and other brain diseases.
Regarding claim 6, it is noted that Izvarina teaches that “The EEG frequency bands may comprise the delta, theta, alpha, beta 1, beta 2, and gamma EEG frequency bands” (see Abstract) and that “The system may also comprise a therapy unit that generates, based on the provided values, one or more stimulation waveforms corresponding to one or more of the EEG frequency bands and provides the stimulation waveforms for therapeutic auditory stimulation. The stimulation waveforms may comprise audible carrier frequencies modulated by signals with frequencies that vary exponentially with time” (see Abstract). Therefore, when Izvarina teaches that the auditory stimulation corresponds to one or more of the EEG frequency bands, and states that those frequency bands are the delta, theta, alpha, beta 1, beta 2, and gamma EEG frequency bands, then this reads on the limitations of claim 6.
Conclusion
The following prior art is herein made of record is considered pertinent to applicant's disclosure, but not relied upon in the rejections above:
The following three non-patent literature documents provided along with this correspondence each discuss the use of music and its therapeutic relation to Alzheimer’s disease and/or modulation of brain waves:
Matziorinis et al., “Music Intervention Approaches for Alzheimer’s Disease: A Review of the Literature”, published in 2022;
Leggieri et al., “Music Intervention Approaches for Alzheimer’s Disease: A Review of the Literature”, published in 2019;
Helen Thomson, “Music Intervention Approaches for Alzheimer’s Disease: A Review of the Literature”, published in February 2018. Thomson discusses a multitude of manners by which treatment may be provided, including the use of pink noise and/or rhythmic sounds, as well as flicker lights and electrical stimulation. Additionally, the chat on page 5 illustrates the various brain waves identically to the manner in which they are claimed in claim 6.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES KISH whose telephone number is (571)272-5554. The examiner can normally be reached M-F 10:00a - 6p EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Unsu Jung can be reached at (571) 272-8506. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES KISH/ Primary Examiner, Art Unit 3792