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 .
Preliminary Amendment
Preliminary Amendment dated 08/07/2024 has been formally entered and claims 1-15 submitted with Preliminary Amendment dated 08/07/2024 are being examined on the merits.
Examiner notes that since claim 15 in claim set dated 08/07/2024 has been amended, claim 15 in claim set dated 08/07/2024 should be identified with the label (Currently Amended) and not (Original) as currently indicated.
Specification
The disclosure is objected to because of the following informalities:
“…It has been propose to automatically turn down music volume when sleep is detected…” in page 1 line 22 needs to be corrected. A suggested correction is -- It has been proposed to automatically turn down music volume when sleep is detected--.
“Audio data is received for the delivered audio the frequency and amplitude characteristics of the delivered audio are processed using the audio data” in page 2 lines 14-15 needs to be corrected. A suggested correction is -- Audio data is received for the delivered audio, and the frequency and amplitude characteristics of the delivered audio are processed using the audio data--.
“It is expected that when a person becomes drowsy his head movements will decrease and eventually the head will become stable in a particular position for a prolonged period time” in page 9 lines 5-7 needs to be corrected. A suggested correction is -- It is expected that when a person becomes drowsy his head movements will decrease and eventually the head will become stable in a particular position for a prolonged period of time--.
“A computer program may be stored/distributed on a suitable medium, such as an optical storage medium or a solid-state medium supplied together with or as part of other hardware, but may also be distributed in other forms, such as via the Internet or other wired or wireless telecommunication systems. (optional)” in page 10 lines 5-8 needs to be corrected. A suggested correction is -- A computer program may be stored/distributed on a suitable medium, such as an optical storage medium or a solid-state medium supplied together with or as part of other hardware, but may also be optionally distributed in other forms, such as via the Internet or other wired or wireless telecommunication systems. [[(optional)]]--.
Appropriate correction is required.
Claim Objections
Following claims are objected to because of the following informalities:
Claim 1 line 3 “the ear drum” needs to be corrected. A suggested correction is –[[the]] an ear drum – in light of lack of antecedent for this term in the claim.
Claim 5 “the deriving [[a]] the baseline ear pressure over time” needs to be corrected. A suggested correction is --deriving a baseline ear pressure over time – in light of antecedent for this term in the claim 1 line 9.
Each of claim 6 and claim 15 includes the acronyms/abbreviation “IMU”. At least first occurrence of each acronym/abbreviation should be spelled out in full.
Claim 1 in lines 6-9 “process (i) the frequency and amplitude characteristics of the delivered audio using the audio data and (ii) the external ear pressure, thereby to remove the pressure effect of the audio being listened to from the detected external ear pressure, thereby to derive a baseline ear pressure over time” needs to be corrected. A suggested correction is – process (i) the frequency and amplitude characteristics of the delivered audio using the audio data and (ii) the external ear pressure, and derive a baseline ear pressure over time by removing the pressure effect of the audio being listened to from the detected external ear pressure
Claim 12 lines 8-11 “process (i) frequency and amplitude characteristics of the delivered audio using the audio data and (ii) the corresponding sensed external ear pressure, thereby to remove the pressure effect of the audio being listened to from the detected external ear pressure, thereby to derive a baseline ear pressure over time” needs to be corrected. A suggested correction is --process (i) frequency and amplitude characteristics of the delivered audio using the audio data and (ii) the corresponding sensed external ear pressure, and derive a baseline ear pressure over time by removing the pressure effect of the audio being listened to from the detected external ear pressure
Claim 3 “generate an output signal to indicate if there is incorrect fitting” needs to be corrected in light of MPEP 2111.04(II) which states the broadest reasonable interpretation of a method (or process) claim having contingent limitations requires only those steps that must be performed and does not include steps that are not required to be performed because the condition(s) precedent are not met.. A suggested correction is -- generate an output signal to indicate an incorrect fitting—or -- generate an output signal to indicate upon detecting incorrect fitting--.
Claim 15 “generate an output signal to indicate if there is incorrect fitting” needs to be corrected. A suggested correction is -- generate an output signal to indicate an incorrect fitting -- to avoid conditional/contingent limitation recitation which would raise question as to whether the limitations resulting from the conditional clause is even required (see MPEP 2111.04) and also raises question as to what occurs when the condition is not met.
Claim 15 " the delivery of audio " in line 11 should read -- the audio delivery
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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.
Claim 1-15 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
Claim 1 recites in line 4 “the delivery”, in line 6-7 “the frequency and amplitude characteristics”, in line 8 “the pressure effect”. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 in line 3 recites “middle ear pressure” which renders this claim unclear. More specifically, it is unclear as to whether claim 2 line 3 “middle ear pressure” is the same as, different than or in addition to “external ear pressure” recited in claim 1 line 3.
Claim 3 in line 2 recites “the correct fitting”. There is insufficient antecedent basis for this limitation in the claim.
Claim 4 in line 2 “an external ear pressure” which renders this claim unclear. More specifically, it is unclear as to whether claim 4 line 2 “an external ear pressure” is the same as, different than or in addition to “external ear pressure” recited in claim 1 line 3.
Claim 12 recites in line 4 “the ear drum”, in line 6 “the audio”, in line 8 “the pressure effect”. There is insufficient antecedent basis for this limitation in the claim.
Claim 15 in line 2 “the correct fitting”, “the sensed movement”. There is insufficient antecedent basis for this limitation in the claim.
Claim 15 recites “the sensed movement” which renders this claim unclear in the absence of a step and corresponding structure that actually performs the sensing of the movement.
Claim 13 in line 3 recites “middle ear pressure” which renders this claim unclear. More specifically, it is unclear as to whether claim 13 line 3 “middle ear pressure” is the same as, different than or in addition to “external ear pressure” recited in claim 12 lines 3-4.
Claim 1 in lines 9 and claim 12 in line 11 recites “derive a baseline ear pressure over time” which renders this claim unclear. More specifically, it is unclear as to how the baseline ear pressure can be derived over time using just the frequency and amplitude characteristics of the delivered audio and the external ear pressure without taking into account physiology of the listener and the physical dimensions of the external ear canal such as volume and shape characteristics. Additionally, each of claim 1 and claim 12 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential elements, such omission amounting to a gap between the elements. See MPEP § 2172.01. The omitted elements are: physiology of the listener and the physical dimensions of the external ear canal such as volume and shape characteristics required to derive the baseline ear pressure be over time as also evidenced in instant application specification as-filed page 2 lines 8-11, page 3 lines 10-13, page 6 line 8, page 7 lines 8-9.
Claim 1 in lines 9 and claim 12 in line 11 recites “derive a baseline ear pressure over time” which renders this claim unclear. More specifically, it is unclear as to how the baseline ear pressure is actually derived over time using the frequency and amplitude characteristics of the delivered audio and the external ear pressure i.e. applying timestamps to audio data and the detected ear pressure for signal synchronizing and analysis, using a function/equation for estimation, using an algorithm, machine learning, in comparison to a population statistically computed metrics, in comparison individual based historical data or some in some other way. Examiner suggests further amending claims to include subject-matter as in page 2 lines 8-11 and lines 26-27.
Claim 1 in line 10 recites “detecting drowsiness and/or sleep from the derived baseline ear pressure” which renders this claim unclear. More specifically, it is unclear as to what metric or threshold or outcome/result or criteria of the derived baseline ear pressure is actually used to detect drowsiness and/or sleep. Dependent claims 3-11 when analyzed as a whole are held to be patent ineligible under 35 U.S.C. 112(b) because the additional recited limitations fail to cure the 35 U.S.C. 112(b) issue in their respective base claims. Consequently, dependent claims 3-11 are also rejected under 35 U.S.C. 112(b) based on their direct/indirect dependency on their respective base claims.
Claim 12 in lines 12 recite “detect drowsiness and/or sleep from the derived baseline ear pressure” which renders this claim unclear. More specifically, it is unclear as to what metric or threshold or outcome/result or criteria of the derived baseline ear pressure is actually used to detect drowsiness and/or sleep. Dependent claims 14-15 when analyzed as a whole are held to be patent ineligible under 35 U.S.C. 112(b) because the additional recited limitations fail to cure the 35 U.S.C. 112(b) issue in their respective base claims. Consequently, dependent claims 14-15 are also rejected under 35 U.S.C. 112(b) based on their direct/indirect dependency on their respective base claims.
Dependent claims 2-11 and 13-15 when analyzed as a whole are held to be patent ineligible under 35 U.S.C. 112(b) because the additional recited limitations fail to cure the 35 U.S.C. 112(b) issue in their respective base claims. Consequently, dependent claims 2-11 and 13-15 are also rejected under 35 U.S.C. 112(b) based on their direct/indirect dependency on their respective base claims.
Claim Interpretation
Claims terms where relevant are being interpreted in light of definitions enumerated in instant application specification as-filed page 5 lines 17-23, page 9 line 35 through page 10 line 12.
The claimed term “adapted to” is being interpreted in light of the instant application specification as-filed page 10 lines 9-10 which explicitly states “If the term “adapted to” is used in the claims or description, it is noted the term “adapted to” is intended to be equivalent to the term “configured to”.
Please note that USPTO personnel are to give claims their broadest reasonable interpretation in light of the supporting disclosure. In re Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027-28 (Fed. Cir. 1997). Limitations appearing in the specification but not recited in the claim should not be read into the claim. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369, 67 USPQ2d 1947, 1950 (Fed. Cir. 2003) (claims must be interpreted "in view of the specification" without importing limitations from the specification into the claims unnecessarily). In re Prater, 415 F.2d 1393, 1404-05, 162 USPQ 541, 550-551 (CCPA 1969). See also In re Zletz, 893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989) ("During patent examination the pending claims must be interpreted as broadly as their terms reasonably allow.... The reason is simply that during patent prosecution when claims can be amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed.... An essential purpose of patent examination is to fashion claims that are precise, clear, correct, and unambiguous. Only in this way can uncertainties of claim scope be removed, as much as possible, during the administrative process.").
Contingently Allowable Subject-Matter
As per independent method claim 1 and independent system claim 12, independent method claim 1 and independent system claim 12 would be contingently allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action in addition to overcoming any other rejections/objections enumerated above.
As per dependent claims 2-11 and 13-15, dependent claims 2-11 and 13-15 would be contingently allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and by further including all of the limitations of the base claims and any intervening claims in addition to overcoming any other rejections/objections enumerated above.
As per dependent claims 2-11 and 13-15, dependent claims 2-11 and 13-15 each is being 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 in addition to overcoming any other rejections/objections enumerated above.
The following is a statement of reasons for the indication of allowable subject matter:
The claimed term “adapted to” is being interpreted in light of the instant application specification as-filed page 10 lines 9-10 which explicitly states “If the term “adapted to” is used in the claims or description, it is noted the term “adapted to” is intended to be equivalent to the term “configured to”.
As per independent Claim 1, the prior art of record fails to disclose or render obvious method of detecting drowsiness and/or sleep of a subject, comprising using a processor to: receive a detected external ear pressure, between the ear drum and an in-ear speaker, from a pressure sensor forming part of the in-ear speaker during the delivery of audio to the in-ear speaker; receive audio data for the delivered audio and process (i) the frequency and amplitude characteristics of the delivered audio using the audio data and (ii) the external ear pressure, … and detecting drowsiness and/or sleep from the derived baseline ear pressure including all the other features, structures, steps, specific arrangement and combination of features, structures and steps as in independent Claim 1.
As per independent Claim 12, the prior art of record fails to disclose or render obvious a drowsiness and/or sleep detection system for detecting drowsiness and/or sleep of a subject, comprising: an in-ear speaker having a pressure sensor for detecting an external ear pressure between the ear drum and the in-ear speaker; and a processor, wherein the processor is adapted to: receive audio data for the audio that is delivered to the in-ear speaker; receive a sensed external ear pressure from the pressure sensor; process (i) frequency and amplitude characteristics of the delivered audio using the audio data and (ii) the corresponding sensed external ear pressure… and detect drowsiness and/or sleep from the derived baseline ear pressure> including all the other features, structures, specific arrangement and combination of features and structures as in independent Claim 12.
Prior art WO 2012058886 A1 to Li et al. discloses method for intelligently controlling multi-media playing which includes a sensor for detecting a person's pulse is set on an earphone, and the said sensor generates a signal when a pulse is detected and transmits the signal to a mobile terminal. A sleep mode selection is set on the mobile terminal. When the sleep mode is selected, the mobile terminal obtains the user's real-time heart rate according to the pulse number in a unit time, which is detected by the sensor, and controls the multi-media playing on the terminal after confirming that the user enters the sleep state according to the heart rate variety before and after sleep. A system and an earphone are also disclosed in the present invention. By applying the present invention, the multi-media playing can be intelligently stopped exactly when a user enters a sleep state. Accordingly, the damage to the user's ear, which is caused by multi-media playing when sleeping, can be reduced, the sleep quality can be improved, the standby time of a mobile terminal can be extended, and meanwhile the health information can be provided to users in real time. However, Li does not disclose a drowsiness and/or sleep detection system or method for detecting drowsiness and/or sleep of a subject comprising wherein the processor configured to receive audio data for the audio that is delivered to the in-ear speaker; receive a sensed external ear pressure from the pressure sensor; process (i) frequency and amplitude characteristics of the delivered audio using the audio data and (ii) the corresponding sensed external ear pressure… and detects drowsiness and/or sleep from the derived baseline ear pressure including all the other features, structures, steps, specific arrangement and combination of features, structures and steps as in independent claim 1 or all the other features, structures, specific arrangement and combination of features and structures as in independent claim 12 either.
Prior art US 20200344541 A1 to Pergament et al. discloses an earphone apparatus and method. The earphone apparatus includes an earpiece, including a speaker, configured for arrangement relative to a user's ear for listening to audio from the speaker, a bio-sensor, a motion sensor, and a controller configured to determine an activity state of the user based on aggregated sensor data from the bio-sensor and the motion sensor over time, and to control audio output to the user based on the determined activity state using a microphone, wherein the controller may be further configured to control the microphone to capture ambient sounds, and, to determine the activity state of the user, the controller may determine a preliminary activity state of the user based on the sensor data from the bio-sensor and the sensor data from the motion sensor, and confirm the preliminary activity state based on a determination whether the preliminary activity state of the user correlates to an activity state represented by the captured ambient sounds. However, Pergament does not disclose a drowsiness and/or sleep detection system or method for detecting drowsiness and/or sleep of a subject comprising wherein the processor configured to receive audio data for the audio that is delivered to the in-ear speaker; receive a sensed external ear pressure from the pressure sensor; process (i) frequency and amplitude characteristics of the delivered audio using the audio data and (ii) the corresponding sensed external ear pressure… and detects drowsiness and/or sleep from the derived baseline ear pressure including all the other features, structures, steps, specific arrangement and combination of features, structures and steps as in independent claim 1 or all the other features, structures, specific arrangement and combination of features and structures as in independent claim 12 either.
Prior art EP 3181041 A1 to Phillips discloses a system for managing a sleep session of a subject via an ear insert, one or more hardware processors. The ear insert is configured to engage an ear of the subject. The ear insert comprises one or more sensory stimulators configured to provide sensory stimulation to the subject during the sleep session and one or more sensors configured to generate output signals conveying information related to brain activity of the subject. The one or more hardware processors are configured by machine-readable instructions to: determine one or more brain activity parameters of the subject based on the output signals; and control the one or more sensory stimulators based on the one or more brain activity parameters to provide sensory stimulation to the subject to enhance and/or otherwise adjust brain activity (e.g., slow wave sleep) in the subject during the sleep session. However, Phillips does not disclose a drowsiness and/or sleep detection system or method for detecting drowsiness and/or sleep of a subject comprising wherein the processor configured to receive audio data for the audio that is delivered to the in-ear speaker; receive a sensed external ear pressure from the pressure sensor; process (i) frequency and amplitude characteristics of the delivered audio using the audio data and (ii) the corresponding sensed external ear pressure… and detects drowsiness and/or sleep from the derived baseline ear pressure including all the other features, structures, steps, specific arrangement and combination of features, structures and steps as in independent claim 1 or all the other features, structures, specific arrangement and combination of features and structures as in independent claim 12 either.
Prior art US 20220218273 A1 to Barnacka et al. discloses system and method for noninvasive sleep monitoring. The system includes an in-ear biosensor system (“biosensor system”) and a data analysis system. The biosensor system includes at least one earbud placed at or within an ear canal of an individual. The earbud includes an acoustic sensor that detects biosignals including infrasonic and audible signals from the individual in the ear canal. A controller board of the biosensor system collects and forwards the biosignals to the data analysis system. The data analysis system analyzes the biosignals to identify and monitor physiological information of the individual during sleep. The physiological information includes sleep stages, sleeping position information, sleep events including snore, breathing cessation and bruxism events, and sleep disorders, in examples. The system can also induce changes to the physiological information during sleep using external stimuli to improve a quality of sleep. However, Barnacka does not disclose a drowsiness and/or sleep detection system or method for detecting drowsiness and/or sleep of a subject comprising wherein the processor configured to receive audio data for the audio that is delivered to the in-ear speaker; receive a sensed external ear pressure from the pressure sensor; process (i) frequency and amplitude characteristics of the delivered audio using the audio data and (ii) the corresponding sensed external ear pressure… and detects drowsiness and/or sleep from the derived baseline ear pressure including all the other features, structures, steps, specific arrangement and combination of features, structures and steps as in independent claim 1 or all the other features, structures, specific arrangement and combination of features and structures as in independent claim 12 either.
However, patentable subject-matter as now explicitly, positively and specifically recited by the Applicants in independent method claim 1 and independent system claim 12 has neither been disclosed nor is rendered obvious by the prior art of record.
Additionally, as per dependent claims 2-11 and 13-15, dependent claims 2-11 and 13-15 would be contingently allowable based on their direct/indirect dependency on respective contingently allowable respective base claim.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and/or the claims.
Prior art US 20180113673 A1 to Sheynblat; Leonid discloses systems and method for in-ear control of remote devices similar to that disclosed. More specifically, methods, systems, computer-readable media, and apparatuses for systems and methods for in-ear control of remote devices. One disclosed method includes receiving, by a microphone of an in-ear device, audio signals from an audio source, the in-ear device inserted into a wearer's ear; determining a command based on the audio signals using a speech recognition technique; performing a voice recognition technique to determine an identity of the audio source; authenticating the command based on the identity of the audio source; and transmitting a signal to a remote electronic device, the signal configured to cause the remote electronic device to execute the command.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUNITA REDDY whose telephone number is (571)270-5151. The examiner can normally be reached on M-Thu 10-4 EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CHARLES A MARMOR II can be reached on (571)272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUNITA REDDY/Primary Examiner, Art Unit 3791
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