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 Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-5 rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). In claims 1, 2, it is set forth “a myoelectric sensor attachable to a human cheek” which implies a human organism needs to be part of the device and therefore non-statutory. The examiner recommends amending the claims to read “a myoelectric sensor configured to be attachable to a human cheek”.
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. 18/905,781(reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are broader than in ‘781.
18/905,781
1. A bruxism reduction device comprising: a force sensor disposed at a mouthpiece; a myoelectric sensor attachable to a human cheek; and a bruxism reduction processor including an electrode attachable to a human outer skin layer at a position corresponding to a muscle that causes a human jaw to open when an electrical signal is applied, the bruxism reduction processor being configured to output the electrical signal from the electrode, 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.
Current app. 18/905,730
1. A detection system comprising: a detection device configured to perform sensing related to bruxism; and an information processing device configured to determine presence or absence of bruxism based on data indicating a result of sensing by the detection device, wherein the detection device includes a force sensor disposed at a mouthpiece, a myoelectric sensor attachable to a human cheek, 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 § 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 1-5 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.
In claims 1, 2, it is unclear what is meant by “data indicating a result of sensing by the detection device”; which implies that a step of indicating a results is performed by the information processing device.
In claims 1, 2 it is set forth “a force sensor disposed at a mouthpiece” but not that the mouthpiece is configured to be in the patient’s mouth, as the other sensor, the myelectric sensor is attached to a human cheek and further and as needed since such force sensor is taking data used by the information processing device.
In claim 2, is the synchronization of the output of the force sensor and the myelectric sensor before or after the determination of bruxism.
In claim 2, is the synchronization in time for the feature data and the correlation between a combination of the myelectric feature and the force feature done by the information processing device; these limitations appear to be determined by the information processing device based on the acquired sensing, but the claims does not provide an active step of doing the synchronization in time, the correlation, neither the filtering to obtain the force feature or the myoelectric feature.
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.
Claim(s) 1 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ober (US 4,669,477) in view of Yoon et al. (US 2015/0305671, hereinafter Yun).
With respect to claim 1, Ober discloses a detection system comprising:
a detection device configured to perform sensing related to bruxism (see Fig. 1, see Summary);
and an information processing device configured to determine presence or absence of bruxism based on data indicating a result of sensing by the detection device (co.2, lines 29-47)
wherein the detection device includes a force sensor (see pressure sensor, col. 2 ,lines 42-48),
a myoelectric sensor attachable to a human cheek (see Fig. 1, element 20, 12, col. 2 ,lines 35-40, EMG), and
a controller configured to output data in which an output of the force sensor is synchronized with an output of the myoelectric sensor (see co. 2, lines 35-49, inputs from the electrodes 20 and force sensor col. 2, lines 57-68, col. Lines 1-7, the inputs, if past a threshold generate a control signal).
However, Ober fails to explicitly disclose the force/pressure sensors are disposed at a mouthpiece.
In the same field of endeavor in the subject of bruxism Yoon disclose a mouthpiece with pressure sensors 108 for determining bruxism (see para. 0016-0018).
It would have been obvious to one skilled in the art before the effective filling date to put the pressure sensors in a mouthpiece for easier and more comfortable data acquisition from the patient’s mouth.
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Allowable Subject Matter
Claims 2-5 would be 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. The prior art fails to teach a detection system comprising: a detection device configured to perform sensing related to bruxism; and an information processing device configured to determine presence or absence of bruxism based on data indicating a result of sensing by the detection device, wherein the detection device includes a mouthpiece having a force sensor, a myoelectric sensor attachable to a human cheek, and a controller configured to synchronize an output of the force sensor with an output of the myoelectric sensor and output the synchronized outputs as the data, the information processing device includes a storage configured to store feature data and model data, the feature data is data in which a myoelectric feature corresponding to the output of the myoelectric sensor is synchronized in time with a force feature corresponding to the output of the force sensor, the model data is data indicating a correlation between a combination of the myoelectric feature and the force feature and an item related to bruxism, the myoelectric feature includes data obtained by filtering the output of the myoelectric sensor to a specific frequency component, and the force feature includes data obtained by filtering the output of the force sensor to a specific frequency componen
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH M SANTOS RODRIGUEZ whose telephone number is (571)270-7782. The examiner can normally be reached Monday-Friday 8:30am to 5:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anne M. Kozak can be reached at 571-270-0552. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSEPH M SANTOS RODRIGUEZ/Primary Examiner, Art Unit 3797
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