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 § 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 2-4 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 2 recites “comprises, or consists of,” this is confusing because it recites two alternative scopes. The scopes based on “comprises” vs. “consists of” are two different scopes which do not clearly define the metes and bounds of the claims. Therefore, the claim is indefinite. The claims depending from this claim share this issue and are likewise rejected.
Claim 3 recites “comprises, uses, or consists of,” this is confusing because it recites two alternative scopes. The scopes based on “comprises” vs. “uses” vs. “consists of” are all different scopes which in the alternative do not clearly define the metes and bounds of the claims. Therefore, the claim is indefinite. The claims depending from this claim share this issue and are likewise rejected.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim(s) 2-4 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 20170197081 to Charlesworth et al. (hereinafter Charlesworth) in view of US 20150354941 to Heaton et al. (hereinafter Heaton).
Regarding Claim 2, an interpretation of Charlesworth discloses a device for artificially stimulating a nerve in a human body, for use with a network over a medium ([0153]-[0154] see also [0007], [0236]-[0247], [0254]-[0255], [0285]-[0287], [0386]-[0387]; to the extent “for artificially stimulating . . .” is an intended use of the device, the device as recited by the prior art is functionally capable of performing the intended use), the device comprising:
a controllable pulse generator for generating a bursts train signal ([0236]-[0237], Figs. 9-10 see also [0058], [0068], [0318], [0387]);
a sensor that outputs a sensor signal in response to a physical phenomenon ([0068], [0248], [0295] see also [0162], [0296]-[0299], [0387]), wherein the sensor is configured to measure the amount of a property or of a physical quantity or the magnitude relating to the physical phenomenon ([0068], [0248], [0295] see also [0162], [0296]-[0299], [0387]);
a port for coupling to the medium ([0236]-[0237], Figs. 9-10 see also [0068], [0318], [0387]; Per Applicants Spec [0065] (using pg pub for paragraph numbers) port includes an antenna);
a transceiver coupled to the port for transmitting digital data to, and for receiving digital data from, the network ([0236]-[0237], Figs. 9-10 see also [0035], [0068], [0318], [0387]);
two electrodes ([0024], [0050], [0236], Figs. 2H, 9-10 see also [0022], [0068], [0219]-[0220], [0318], [0386]-[0387]) attachable to a human body and connected to the pulse generator for coupling bursts train signal to the human body for periodically stimulating the nerve ([0024], [0029], [0058], [0178]-[0179], [0289], [0332] see also [0225], [0285]-[0287], [0387], Figs. 1A-d, 2E-H, 4E-H, 29; to the extent “for coupling bursts train signal to the human body for periodically stimulating the nerve. . .” is an intended use of the device, the device as recited by the prior art is functionally capable of performing the intended use. The reference recites a neuromodulator with a generator for applying electrical stimulation through electrodes to nerves);
software and a processor for executing the software ([0225] including “in addition to a non-transitory computer-readable storage medium storing a set of instructions capable of being executed by the processor that, when executed by the processor causes a TES waveform to be delivered transdermally”, [0236]-[0237], [0361] Figs. 9-10 see also [0035], [0068], [0219]-[0220], [0318] , [0387]), the processor is coupled to the sensor for receiving the sensor signal therefrom ([0068], [00225], [0248], [0295]-[0296] See also [0387]; to the extent “for . . .” is an intended use of the device, the device as recited by the prior art is functionally capable of performing the intended use.), to the transceiver for receiving the digital data from the network therefrom ([0195], [0236]-[0237], [0361] Figs. 9-10 see also [0035], [0068], [0318] , [0387], Fig. 36A; to the extent “for . . .” is an intended use of the device, the device as recited by the prior art is functionally capable of performing the intended use.), and to control and activate the controllable pulse generator ([0195], [0236]-[0237], [0361] Figs. 9-10 see also [0035], [0068], [0318] , [0387]; to the extent “to . . .” is an intended use of the device, the device as recited by the prior art is functionally capable of performing the intended use.);
a power source for supplying Direct Current (DC) power to the controllable pulse generator, the sensor, the transceiver, and the processor ([0236], [0296], Figs. 9-10 see also [0068], [0237], [0243], [0296], [0318] , [0387], Fig. 36A); and
a single wearable enclosure housing the pulse generator, the sensor, the transceiver, the port, the processor, and the power source ([0224] including “a TES system may use adherent electrodes and/or electrodes held in place by a wearable apparatus (i.e. cap, headband, necklace, eyeglass frame, or other form factor that enables an electrode to be in physical contact with the subject's skin).”, [0236]-[0237], [0295]-[0296], Figs. 9-10 see also [0068], [0219]-[0220], [0318]),
wherein the pulse generator is configured to be controlled or activated in response to the sensor signal or the received digital data from the network ([0068], [0195], [0219], [0236]-[0237], [0361] Figs. 9-10 see also [0035], [0068], [0318]).
An interpretation of Charlesworth may not explicitly disclose wherein the sensor comprises, or consists of, an eye blink detector.
However, in the same field of endeavor (electrical stimulation systems), Heaton teaches wherein the sensor comprises, or consists of, an eye blink detector ([0005], [0072]).
It would have been prima facie obvious to one of skill in the art before the effective filing date of the claimed invention to have modified the electrical stimulation system with physiological sensing as recited by Charlesworth to include the physiological is a blink detector as recited by Heaton in order to provide electrical stimulation to assist those with an impaired facial nerves on one side of their entire face appears to move in a concerted, symmetric, and ordinary way ([0006]).
Regarding Claim 3, an interpretation of Charlesworth further discloses wherein the network comprises, uses, or consists of, a wireless network ([0236]-[0237] see also [0387]), and the transceiver comprises, uses, or consists of, a wireless transceiver coupled to the antenna for wirelessly transmitting and receiving the digital data over the air using the wireless network ([0236]-[0237] see also [0352], [0374], [0387]), wherein the antenna is configured to transmit and receive Radio Frequency, RF, signals over the air ([0236]-[0237] see also [0352], [0374], [0387]).
Regarding Claim 4, an interpretation of Charlesworth further discloses integrated with at least one of a wireless device, a notebook computer, a laptop computer, or a smartphone ([0195], [0236] see also [0254], [0387]; the reference discloses a wearable device working with a user device the two functioning of the device is integrated together).
Double Patenting
Claims 2-4 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of U.S. Patent No. 12179011 (hereinafter ‘011) in view of Heaton. Claim 1 of ‘011 discloses all of claim 2 of the current app with the exception of the eye blink detector, which is disclosed by Heaton (see rejection of claim 2 above for citation). It would have been prima facie obvious to one of skill in the art before the effective filing date of the claimed invention to have modified the electrical stimulation system with sensing as recited by ‘011 to include the physiological sensor is a blink detector as recited by Heaton in order to provide electrical stimulation to assist those with an impaired facial nerves on one side of their entire face appears to move in a concerted, symmetric, and ordinary way ([0006]).
Claim 5 of ‘011 discloses claim 3 of the current app.
Claim 7 of ‘011 discloses claim 4 of the current app.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
US 20150238762 – Fig. 1E, [0130]-[0131], [0150]
US 20150005841 – Figs. 2
US 20110106220 – [0079], [0084]
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES R MOSS whose telephone number is (571)272-3506. The examiner can normally be reached Monday - Friday (9:30 am - 5:30 pm).
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/James Moss/Examiner, Art Unit 3792
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