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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Examiner notes: currently, NO limitation invokes interpretation under § 112(f).
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(s) 1 and 11 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 7 and 22 of U.S. Patent No. 10448888. Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claim(s) substantially anticipate(s) the identified claim(s) of this application.
Claim(s) 1 and 11 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 12, 19, and 20 of U.S. Patent No. 11779274. Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claim(s) substantially anticipate(s) the identified claim(s) of this application.
Claim(s) 1 and 11 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1 and 11 of U.S. Patent No. 12128270. Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claim(s) substantially anticipate(s) the identified claim(s) of this application.
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.
Examiner notes: for brevity, economy, and clarity of reading, select of the claims may be addressed jointly herein when instances of limitations with verbatim or near-verbatim similarity are recited in the body of differently numbered claims and/or when multiple different limitations are clearly addressed by a same/similar citation to/within a reference.
Claim(s) 1, 6, 8, 11, 12, 15, and 19-36 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Whitall (US 20110184225 A1).
For claim(s) 1 and 11, Whitall teaches
A method for rehabilitation of a patient having a physical impairment by providing repetitive motion therapy in which the patient is provided auditory stimulus having beat signals and the patient attempts to perform repetitive movements using a first side and an opposite second side of the patient's body in time with the beat signals, [entire disclosure – see at least abstract, ¶¶7-11]
the method being implemented on a computer system having a processor configured by machine-readable instructions which, when executed perform the method, [Fig(s). 2] the method comprising:
receiving, at the computer system, biomechanical data for the patient regarding repetitive movements of the patient performed using the first and second sides of the body respectively; [¶36]
selecting, by the computer system based on the biomechanical data, an entrainment side, [¶25 ¶¶32-33 ¶53 esp. ¶57]
wherein the entrainment side is one of the first or the second side of the body [¶25 ¶57]
wherein the step of selecting the entrainment side comprises:
measuring, from the biomechanical data, one or more of:
a consistency of the repetitive movement respectively for each side of the body, [Table 1 after ¶67]
a variability in the repetitive movement respectively for each side of the body, [Table 1 after ¶67]
an entrainment potential respectively for each side of the body, [¶57]
and selecting the entrainment side as a function of the result of the measuring step; [¶¶57-67]
performing, by the computer system, repetitive motion therapy using auditory stimulus selected or modified to trigger kinematic motion of the entrainment side. [¶¶29-31 ¶38]
For claim(s) 6, 15, Whitall teaches
wherein selecting the entrainment side comprises:
determining, based on the biomechanical data, a symmetry of the repetitive movements performed using the first side relative to the repetitive movements performed using the second side of the body, and wherein the entrainment side is selected based on the determined symmetry. [¶38 ¶57]
For claim 8, Whitall teaches The method of claim 1,
wherein the step of selecting the entrainment side comprises measuring, from the biomechanical data, the variability and wherein the variability measured is a gait cycle time (GCT) variability measured respectively for each side of the body. [¶47 ¶¶60-61]
For claim 12, Whitall teaches The system of claim 11, further comprising:
an auditory output device [250] for providing the auditory stimulus to the patient;
and the sensor associated with the patient and measuring time-stamped biomechanical data of the patient relating to the repetitive movements performed by the patient using at least the entrainment side in relation to the beat signals. [¶36 ¶¶45-56]
For claim 19, Whitall teaches The method of claim 1, further comprising:
generating, by the processor, a modification to the auditory stimulus for triggering kinematic motion of the entrainment side; causing the modification to be applied to the auditory stimulus, wherein the auditory stimulus modified according to the modification is output to a patient during the repetitive motion therapy. [¶¶60-63]
For claim 20, Whitall teaches The method of claim 19,
wherein modifying the auditory stimulus includes at least one of:
adjusting the beat tempo, modifying one or more of the beat signals, adjusting a chord of the auditory stimulus, adjusting a volume of the auditory stimulus, adjusting a meter of the auditory stimulus, adding one or more audible cues to the auditory stimulus, adding a rhythmic component to the auditory stimulus, adjusting a tempo of the auditory stimulus. [¶¶60-63]
For claim 21, Whitall teaches The method of claim 19,
wherein generating the modification includes generating an entrainment assistance cue for the auditory stimulus, the entrainment assistance cue including a sound added to beat signals of the auditory stimulus timed to trigger kinematic motion of the entrainment side. [¶¶60-63]
For claim 22, Whitall teaches The method of claim 21,
wherein the entrainment assistance cue is played on alternating beats of the beat signals of the auditory stimulus. [¶¶60-63]
For claim 23, Whitall teaches The method of claim 21, generating a modification defined for triggering kinematic motion of a side of the patient's body opposite the entrainment side, wherein the modification for triggering kinematic motion of the entrainment side is different from the modification defined for triggering kinematic motion of the side opposite the entrainment side. [¶¶57-61]
For claim 24, Whitall teaches The method of claim 1, further comprising, prior to the step of performing repetitive motion therapy:
determining, based on the biomechanical data, a baseline condition for the patient's entrainment side; and defining a baseline beat tempo for the auditory stimulus as a function of the baseline condition, wherein the baseline beat tempo has a constant frequency and is defined to trigger kinematic motion of the patient's entrainment side. [Fig(s). 10 ¶¶57-63]
For claim 25, Whitall teaches The method of claim 1,
wherein the step of providing repetitive motion therapy further comprises:
calculating an entrainment potential for the entrainment side based on time-stamped biomechanical data of the patient relating to the repetitive movements performed by the patient using at least the entrainment side in relation to the beat signals, wherein the entrainment potential is calculated by comparing a timing of the repetitive movements performed by the patient using the entrainment side to the respective beat times of the beat signals; and modifying the auditory stimulus as a function of the calculated entrainment potential. [Fig(s). 10 ¶¶57-63]
For claim 26, Whitall teaches The method of claim 25,
wherein modifying the auditory stimulus includes:
adjusting the beat tempo in relation to a goal beat tempo based on the entrainment parameter. [Fig(s). 10 ¶¶57-63]
For claim 27, Whitall teaches The method of claim 24,
wherein modifying the auditory stimulus includes at least one of:
adjusting the beat tempo in relation to a goal beat tempo, modifying one or more of the beat signals, adjusting a chord of the auditory stimulus, adjusting a volume of the auditory stimulus, adjusting a meter of the auditory stimulus, adding one or more audible cues to the auditory stimulus, adding a rhythmic component to the auditory stimulus, adjusting a tempo of the auditory stimulus. [Fig(s). 10 ¶38 ¶¶57-63]
For claim 28, Whitall teaches The system of claim 11,
wherein the processor is further configured to:
generate a modification to the auditory stimulus for triggering kinematic motion of the entrainment side; and cause the modification to be applied to the auditory stimulus, wherein the modified auditory stimulus is output to the patient during the repetitive motion therapy. [Fig(s). 10 ¶¶57-63]
For claim 29, Whitall teaches The system of claim 28,
wherein modifying the auditory stimulus includes at least one of:
adjusting the beat tempo, modifying one or more of the beat signals, adjusting a chord of the auditory stimulus, adjusting a volume of the auditory stimulus, adjusting a meter of the auditory stimulus, adding one or more audible cues to the auditory stimulus, adding a rhythmic component to the auditory stimulus, and adjusting a tempo of the auditory stimulus. [Fig(s). 10 ¶38 ¶¶57-63]
For claim 30, Whitall teaches The system of claim 28,
wherein the processor is configured to generate an entrainment assistance cue for the auditory stimulus, the entrainment assistance cue comprising a sound added to beat signals of the auditory stimulus timed to trigger kinematic motion of the entrainment side. [Fig(s). 10 ¶38 ¶¶57-63]
For claim 31, Whitall teaches The system of claim 30,
wherein the entrainment assistance cue is played on alternating beats of the beat signals of the auditory stimulus. [Fig(s). 10 ¶38 ¶¶57-63]
For claim 32, Whitall teaches The system of claim 30,
wherein the processor is configured to generate a modification defined for triggering kinematic motion of a side of the patient's body opposite the entrainment side, and wherein the modification for triggering kinematic motion of the entrainment side is different from the modification defined for triggering kinematic motion of the non-entrainment side. [Fig(s). 10 ¶38 ¶¶57-63]
For claim 33, Whitall teaches The system of claim 11,
wherein the processor is further configured to, prior to providing repetitive motion therapy:
determine, based on the biomechanical data, a baseline condition for the patient's entrainment side; and define a baseline beat tempo for the auditory stimulus as a function of the baseline condition, wherein the baseline beat tempo has a constant frequency and is defined to trigger kinematic motion of the patient's entrainment side.
For claim 34, Whitall teaches The system of claim 11,
wherein the processor is configured to:
calculate an entrainment potential for the entrainment side based on time-stamped biomechanical data of the patient relating to the repetitive movements performed by the patient using at least the entrainment side in relation to the beat signals; and modify the auditory stimulus as a function of the calculated entrainment potential. [Fig(s). 10 ¶38 ¶¶57-63]
For claim 35, Whitall teaches The system of claim 34,
wherein modifying the auditory stimulus includes adjusting the beat tempo in relation to a goal beat tempo based on the entrainment potential. [Fig(s). 10 ¶38 ¶¶57-63]
For claim 36, Whitall teaches The system of claim 34,
wherein modifying the auditory stimulus includes at least one of:
adjusting the beat tempo in relation to a goal beat tempo, modifying one or more of the beat signals, adjusting a chord of the auditory stimulus, adjusting a volume of the auditory stimulus, adjusting a meter of the auditory stimulus, adding one or more audible cues to the auditory stimulus, adding a rhythmic component to the auditory stimulus, adjusting a tempo of the auditory stimulus. [Fig(s). 10 ¶38 ¶¶57-63]
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BENJAMIN S MELHUS whose telephone number is (571)272-5342. The examiner can normally be reached Monday - Friday | 9:00 AM - 5:00 PM.
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/BENJAMIN S MELHUS/
Primary Examiner, Art Unit 3791
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