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 .
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.
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Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 12,337,189. Although the claims at issue are not identical, they are not patentably distinct from each other because they encompass the same essential invention.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 11,771,915. Although the claims at issue are not identical, they are not patentably distinct from each other because they encompass the same essential invention.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 10,850,116. Although the claims at issue are not identical, they are not patentably distinct from each other because they encompass the same essential invention.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 4-5 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 4 , lines 2-5, recites among other things “the determining the activity of the user comprises determining that the user is stationary, and the method further comprises in accordance with the determination that the user is stationary, reducing a brightness of the display,” however, the rewritten description supports no such recitation.
Claim 5, lines 2-5, recites among other things “the determining the activity of the user comprises determining that the user is moving, and the method further comprises in accordance with the determination that the user is moving, increasing a brightness of the display,” however, the rewritten description supports no such recitation.
Corrections are required.
Claim Rejections - 35 USC § 102
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 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.
Claims 1-3, 6-10, and 12-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Osterhout et al. (U.S. Patent Application Publication 2015/0309316).
Regarding claim 1, Osterhout et al. disclose a device comprising:
one or more sensors (see any and/or all of the sensors or sensing/detecting elements in [0018], [0022], [0025], [0029], [0036]-[0042], [0045]-[0047], [0053] and many other instances disclosed throughout 225 pages of the disclosure);
a lighting system adapted to provide a light signal to a user (see for example at least the light/image source(s) associated with the display, see for example [0028], [0071] and many other instances disclosed throughout 225 pages of the disclosure);
an audio system (comprising a “speaker,” see [0285], [0393], [0502] and many other instances disclosed throughout 225 pages of the disclosure) adapted to provide an audio signal to the user;
a haptic system adapted to provide a haptic signal to the user (see haptic/vibration actuation [0068], [0362], [0429], [0436] for example); and
one or more processors (see the processor and/or processing unit in abstract, [0026]-[0029], [0224] for example and many other instances disclosed throughout 225 pages of the disclosure) adapted to perform a method comprising:
presenting a stimulus, wherein the presenting the stimulus comprises one or more of:
presenting, to the user via the lighting system, a light signal (see for example [0311], [0542], [0759], for example and many other instances disclosed throughout 225 pages of the disclosure) comprising a component at a first frequency;
presenting, to the user via the audio system, an audio signal (see for example [0391], [0396], [0456], for example and many other instances disclosed throughout 225 pages of the disclosure) comprising a component at the first frequency; and
presenting, to the user via the haptic system, a haptic signal user (see haptic/vibration actuation [0068], [0362], [0429], [0436] for example and many other instances disclosed throughout 225 pages of the disclosure) comprising a component at the first frequency,
wherein the stimulus is configured to cause changes in the user's brain by reinforcing a brain communication frequency (see [0455]-[0456] for example);
determining, via the one or more sensors, a response of the user to the stimulus (many instances including gps tracking in response to light stimulation for directional target, movement in response to the light stimuli to move, etc.); and
adjusting a level of one or more of the light signal, the audio signal, and the haptic signal based on the response (see [0020], [0064]-[0066], [0313]-[0317] for example and many other instances disclosed throughout 225 pages of the disclosure).
Regarding claims 2-3, Osterhout et al. disclose the claimed invention (see [0024], [0037]-[0039], [0353], [0355]-[0356] for example many other instances disclosed throughout 225 pages of the disclosure).
Regarding claims 6-7, Osterhout et al. disclose the claimed invention (see [0087] and [0372]).
Regarding claim 8, Osterhout et al. disclose the claimed invention (see [0479], [0517], [0524], for example many other instances disclosed throughout 225 pages of the disclosure).
Regarding claims 9-10, Osterhout et al. disclose the claimed invention (see figure 7).
Regarding claims 12-13, Osterhout et al. disclose the claimed invention (see [0087]).
Regarding claim 14, Osterhout et al. disclose the claimed invention (see [0087], [0313]-[0314]).
Regarding claim 15, Osterhout et al. disclose the claimed invention (see [0025], [0050]-[0051], [0080], for example many other instances disclosed throughout 225 pages of the disclosure).
Regarding claim 16, Osterhout et al. disclose a method comprising:
presenting a stimulus, wherein the presenting the stimulus comprises one or more of:
presenting, to the user via a lighting system of a wearable device, a light signal comprising a component at a first frequency (see for example [0311], [0542], [0759], for example and many other instances disclosed throughout 225 pages of the disclosure);
presenting, to the user via an audio system of the wearable device, an audio signal comprising a component at the first frequency (see for example [0391], [0396], [0456], for example and many other instances disclosed throughout 225 pages of the disclosure); and
presenting, to the user via a haptic system of the wearable device, a haptic signal comprising a component at the first frequency (see haptic/vibration actuation [0068], [0362], [0429], [0436] for example and many other instances disclosed throughout 225 pages of the disclosure),
wherein the stimulus is configured to cause changes in the user's brain by reinforcing a brain communication frequency (see [0455]-[0456] for example);
determining, via one or more sensors of the wearable device, a response of the user to the stimulus (many instances including gps tracking in response to light stimulation for directional target, movement in response to the light stimuli to move, etc.); and
adjusting a level of one or more of the light signal, the audio signal, and the haptic signal based on the response (see [0553], [0604], for example).
Regarding claim 17, Osterhout et al. disclose the claimed invention (see [0024], [0037]-[0039], [0353], [0355]-[0356] for example many other instances disclosed throughout 225 pages of the disclosure).
Regarding claims 18-19, Osterhout et al. disclose the claimed invention (see [0087] and [0372]).
Regarding claim 20, Osterhout et al. disclose the claimed invention (see [0087], [0313]-[0314]).
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.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Osterhout et al. (U.S. Patent Application Publication 2015/0309316) as applied to claim 1 above, and further in view of Edgerton et al. (U.S. Patent Application Publication 2014/0296752).
Regarding claim 11, Osterhout et al. also disclose the use of the device for and during therapy (see [0442], and [0472]) but fail to recite the stimulation frequency of 40 hz,
Like Osterhout et al., Edgerton et al. disclose device placed on the user and teach providing stimulation having the frequency of 40 hz (see Table 1, [0071], and [0077]) in order to provide a known and workable manner of providing a therapeutic effect to the user.
Therefore, at the time of the of invention it would have been obvious to one of ordinary skill in the art to modify the invention of Osterhout et al., as taught by Edgerton et al., to provide a known and workable manner of providing a therapeutic effect to the user.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AARON F ROANE whose telephone number is (571)272-4771. The examiner can normally be reached generally Mon-Fri 8am-9pm.
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/AARON F ROANE/Primary Examiner, Art Unit 3792
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