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 .
Claim Objections
Claim 1 is objected to because of the following informalities:
In Claim 1, “a myoelectric sensor attachable to a human cheek” should read “a myoelectric sensor configured to be attachable to a human cheek”.
Appropriate correction is required.
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.
Claim 1 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claim 1 of copending Application No. 18/905781 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s).
18/905696
18/905781
1. A detection device comprising:
1. A bruxism reduction device comprising:
a force sensor disposed at a mouthpiece;
a force sensor disposed at a mouthpiece;
a myoelectric sensor attachable to a human cheek;
a myoelectric sensor attachable to a human cheek;
and a controller configured to perform output in which an output of the force sensor is synchronized with an output of the myoelectric sensor.
wherein the bruxism reduction processor is configured to output the electrical signal when a human is determined to be having bruxism based on an output of the force sensor and an output of the myoelectric sensor synchronized with each other.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 1 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claim 1 of copending Application No. 18/905730 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s).
18/905696
18/905730
1. A detection device comprising:
1. A detection system comprising: a detection device configured to perform sensing related to bruxism... wherein the detection device includes
a force sensor disposed at a mouthpiece;
a force sensor disposed at a mouthpiece;
a myoelectric sensor attachable to a human cheek;
a myoelectric sensor attachable to a human cheek;
and a controller configured to perform output in which an output of the force sensor is synchronized with an output of the myoelectric sensor.
and a controller configured to output data in which an output of the force sensor is synchronized with an output of the myoelectric sensor.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 103
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.
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.
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.
Claims 1-4 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Yoon et al (US 20150305671 A1, hereinafter Yoon) in view of Ober (US 4669477 A, hereinafter Ober).
Regarding Claim 1, Yoon discloses a detection device (Element 103, Fig. 1; “Various examples are provided for a smart mouth guard for diagnosis, quantification, and/or management of e.g., bruxism”, Abstract) comprising:
a force sensor disposed at a mouthpiece (“The mouth guard 103 may include an array of capacitive pressure sensors 109”, [0103]; pressure is force over area and therefore these sensors are also force sensors under broadest reasonable interpretation); and
a controller (Element 706, Fig. 7; [0030]).
Yoon discloses the claimed invention except for expressly disclosing a myoelectric sensor attachable to a human cheek; and
a controller configured to perform output in which an output of the force sensor is synchronized with an output of the myoelectric sensor.
However, Ober, which also discloses a detection device (See Abstract), teaches a myoelectric sensor (Element 20, Fig. 1) attachable to a human cheek (“The EMG signal can be sensed by electrodes 20 which are attached on or near the temporal mandibular joint of the jaw”, 2:38-40); and
a controller (Element 14, Fig. 1) configured to perform output in which an output of the force sensor (“While electrodes 20 are the preferred means for developing a signal representative of jaw muscle activity, other apparatus, including a pressure transducer positioned between the patient's teeth, or an externally mounted head halter with a transducer for detecting jaw movement, can also be used”, 2:42-48) is synchronized with an output of the myoelectric sensor (“Control circuit 14 is configured to produce a control signal on control line 24 as a function of the input signal received on input ports 12”, 2:49-51; a signal from the EMG sensors 20 and the additional pressure transducer being received on input ports 12 would be synchronized under broadest reasonable interpretation). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the myoelectric sensor and synchronization of Ober to the device of Yoon, because this makes the sensing of jaw movement more accurate and robust due to redundancy of sensors (e.g. if one sensor type fails, the other sensor type can still detect jaw muscle movement).
Regarding Claim 2, modified Yoon discloses the detection device according to claim 1, wherein a plurality of force sensors are disposed at the mouthpiece (“The mouth guard 103 may include an array of capacitive pressure sensors 109”, [0018]), and the controller outputs data in which outputs of the force sensors are individually identifiable (See Fig. 5A, which shows individually identifiable outputs of force sensors 203a-203e in Fig. 4A).
Regarding Claim 3, modified Yoon discloses the detection device according to claim 1, wherein the force sensor is disposed at a flexible substrate (“Capacitive pressure sensors 109 may be fabricated using a flexible printed circuit board including a flexible substrate (e.g., R03003 by Rogers Inc.)”, [0025]), and the flexible substrate is mounted on the mouthpiece (See Fig. 1).
Regarding Claim 4, modified Yoon discloses the detection device according to claim 3, wherein the flexible substrate is adhesively fixed such that a gap is formed between the flexible substrate and the mouthpiece, inside the mouthpiece (“When a user bits down and/or grinds teeth (e.g., when bruxing occurs), the tooth exerts pressure on the elastomer material 206 underneath the tooth, changing the gap between the tooth and the electrode or conductive pad 203, resulting in a capacitance change. The capacitance change is proportional to the applied pressure and thus the bruxing level. By monitoring the capacitance change, it is possible to quantify the extent and severity of bruxism”, [0024]).
Regarding Claim 9, modified Yoon discloses the detection device according to claim 1, further comprising a display (See Fig. 10) configured to perform display output in which the output of the force sensor is synchronized with the output of the myoelectric sensor (“The signal is transferred to a processing circuitry 721, where it may be rendered and displayed on a screen or display via a graphical user interface (GUI) 724 such as illustrated in FIG. 10. The data may then be displayed in a Windows GUI operating within the Windows API. Both real time and statistic data may be made available to the user through the GUI 724”, [0033]).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Yoon in view of Ober, and further in view of Zhang et al (US 20190290137 A1, hereinafter Zhang).
Regarding Claim 5, modified Yoon discloses the detection device according to claim 1, wherein the myoelectric sensor includes an electrode (“a grounded sensor including a single conductive pad (or electrode) 203”, [0023]). Modified Yoon discloses the claimed invention except for expressly disclosing wherein gel and double-sided tape are applied on an attachment surface of the myoelectric sensor that is provided with the electrode. However, Zhang teaches wherein gel (“When the conductive silica gel is used as the electrode material, most of the area in the center of the first surface of the dry electrode is adhered to the skin by the self-adhesive patch of conductive silica gel”, [0027]) and double-sided tape are applied on an attachment surface (“only a small area of the first surface on a periphery of the contact surface layer is adhered to the skin by the double-sided adhesive tape”, [0027]) of the myoelectric sensor that is provided with the electrode (“a first electrode 51 and a second electrode 52 exposed on a front surface of the housing to acquire ECG signals, electromyogram (EMG) signals, or EEG signals”, [0111]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the device of Yoon by adding the gel and double-sided tape of Zhang to the electrodes of modified Yoon, because this allows the myoelectric sensor to be repeatedly adhered to the user for many times while reducing damage and pain during removal (See Zhang, [0027]).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Yoon in view of Ober and Zhang, and further in view of Gross et al (US 20020062060 A1, hereinafter Gross).
Regarding Claim 6. The detection device according to claim 5. Modified Yoon discloses the claimed invention except for expressly disclosing wherein the controller causes the myoelectric sensor to operate at a first cycle until the output of the myoelectric sensor exceeds a first threshold, and causes the myoelectric sensor to operate at a second cycle after the output of the myoelectric sensor exceeds the first threshold, and the second cycle is a higher-frequency cycle than the first cycle.
However, Gross, which also discloses EMG sensors, teaches wherein the controller (Elements 50 and 52) causes the myoelectric sensor to operate at a first cycle until the output of the myoelectric sensor exceeds a first threshold (“wherein the controller causes the myoelectric sensor to operate at a first cycle until the output of the myoelectric sensor exceeds a first threshold , and causes the myoelectric sensor to operate at a second cycle after the output of the myoelectric sensor exceeds the first threshold, and the second cycle is a higher-frequency cycle than the first cycle”, [0137]), and causes the myoelectric sensor to operate at a second cycle after the output of the myoelectric sensor exceeds the first threshold, and the second cycle is a higher-frequency cycle than the first cycle (“it signals A/D converter 50 to begin sampling at the high rate”, [0137]). "[A]n implicit motivation to combine exists not only when a suggestion may be gleaned from the prior art as a whole, but when the ‘improvement’ is technology-independent and the combination of references results in a product or process that is more desirable, for example because it is stronger, cheaper, cleaner, faster, lighter, smaller, more durable, or more efficient. Because the desire to enhance commercial opportunities by improving a product or process is universal-and even common-sensical-we have held that there exists in these situations a motivation to combine prior art references even absent any hint of suggestion in the references themselves. In such situations, the proper question is whether the ordinary artisan possesses knowledge and skills rendering him capable of combining the prior art references." Id. at 1368, 80 USPQ2d at 1651. See MPEP 2143(G). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify Yoon with Gross, because this would make the device of Yoon more efficient by conserving processing power until it is needed. The examiner notes this modification is also suggested by Gross (“In operation, A/D converter 50 and CPU 52 are normally maintained in a standby state, in which their power consumption is negligible”, [0137]).
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Yoon in view of Ober and Zhang, and further in view of Osorio Martini et al (US 20220008243 A1, hereinafter Osorio Martini).
Regarding Claim 7, modified Yoon discloses the detection device according to claim 5. Modified Yoon discloses the claimed invention except for expressly disclosing wherein the controller causes the force sensor to operate at a third cycle until the output of the force sensor exceeds a second threshold, and causes the force sensor to operate at a fourth cycle after the output of the force sensor exceeds the second threshold, and the fourth cycle is a higher-frequency cycle than the third cycle. However, Osorio Martini, which is also directed towards a detection device (See Abstract), teaches wherein the controller (“Electronics assembly, Fig. 5) causes the force sensor (“the smart night guard measures and records teeth grinding and clenching through an embedded pressure sensor”, [0006]) to operate at a third cycle until the output of the force sensor exceeds a second threshold, and causes the force sensor to operate at a fourth cycle after the output of the force sensor exceeds the second threshold, and the fourth cycle is a higher-frequency cycle than the third cycle (“In some embodiments, the smart night guard is configured to increase sampling rate of the at least one pressure sensor when the pressure exceeds a minimum threshold or a moving threshold”, [0007]). "[A]n implicit motivation to combine exists not only when a suggestion may be gleaned from the prior art as a whole, but when the ‘improvement’ is technology-independent and the combination of references results in a product or process that is more desirable, for example because it is stronger, cheaper, cleaner, faster, lighter, smaller, more durable, or more efficient. Because the desire to enhance commercial opportunities by improving a product or process is universal-and even common-sensical-we have held that there exists in these situations a motivation to combine prior art references even absent any hint of suggestion in the references themselves. In such situations, the proper question is whether the ordinary artisan possesses knowledge and skills rendering him capable of combining the prior art references." Id. at 1368, 80 USPQ2d at 1651. See MPEP 2143(G). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify Yoon with Osorio Martini, because this would make the device of Yoon more efficient by conserving processing power until it is needed.
Regarding Claim 8, modified Yoon discloses the detection device according to claim 5, further comprising a communication circuit (Elements 112/115, Fig. 1) configured to communicate with an external apparatus (Element 106, Fig. 1; “Applications (apps) or other programs executed by the external processing unit 106 can control communications between the mouth guard 103 and external processing unit 106 and/or data management”, [0018]).
Modified Yoon discloses the claimed invention except for expressly disclosing
wherein the controller does not cause the communication circuit to operate when neither a first condition nor a second condition is satisfied, and
causes the communication circuit to operate when at least one of the first condition and the second condition is satisfied,
the first condition is that the output of the myoelectric sensor exceeds a first threshold, and
the second condition is that the output of the force sensor exceeds a second threshold.
However, Osorio Martini teaches
wherein the controller does not cause the communication circuit to operate when neither a first condition nor a second condition is satisfied (“In some embodiments, the smart night guard is configured to transmit the sensor data when the pressure exceeds a minimum threshold or a moving threshold”, [0007]; this implies the communication circuit does not transmit the sensor data when the pressure is under the minimum threshold), and
causes the communication circuit to operate when at least one of the first condition and the second condition is satisfied (“In some embodiments, the smart night guard is configured to transmit the sensor data when the pressure exceeds a minimum threshold or a moving threshold”, [0007]),
the first condition is that the output of the myoelectric sensor exceeds a first threshold (as this limitation is in the alternative, it does not need to be taught in order for the claim to be anticipated), and
the second condition is that the output of the force sensor exceeds a second threshold (“In some embodiments, the smart night guard is configured to transmit the sensor data when the pressure exceeds a minimum threshold or a moving threshold”, [0007]).
"[A]n implicit motivation to combine exists not only when a suggestion may be gleaned from the prior art as a whole, but when the ‘improvement’ is technology-independent and the combination of references results in a product or process that is more desirable, for example because it is stronger, cheaper, cleaner, faster, lighter, smaller, more durable, or more efficient. Because the desire to enhance commercial opportunities by improving a product or process is universal-and even common-sensical-we have held that there exists in these situations a motivation to combine prior art references even absent any hint of suggestion in the references themselves. In such situations, the proper question is whether the ordinary artisan possesses knowledge and skills rendering him capable of combining the prior art references." Id. at 1368, 80 USPQ2d at 1651. See MPEP 2143(G). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify Yoon with Osorio Martini, because this would make the device of Yoon more efficient by conserving processing power until it is needed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
See Forutanpour et al (US 9092664 B2) (“changing a state of the EMG sensor from a lower power state to a higher power state”, Claim 1).
See Predovich (US 20180353122 A1).
See Stevens et al (US 20200376261 A1), relevant to Claim 5 ([0131]).
See Rmaile et al (US 20240180680 A1), which also discloses a myoelectric sensor attachable to a human cheek ([0098]-[0099]).
See Radmand (US 20240350298 A1).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN EPHRAIM COOPER whose telephone number is (571)272-2860. The examiner can normally be reached Monday-Friday 7:30AM-5:30PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jacqueline Cheng can be reached at (571) 272-5596. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JONATHAN E. COOPER/Examiner, Art Unit 3791
/JUSTIN XU/Primary Examiner, Art Unit 3791
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