DETAILED ACTION
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.
Claim(s) 1, 2, 4, 5, 8-10, 12, 14 and 17 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by [Sirois; Alain et al., US 20220276723 A1].
Regarding claim 1:
Sirois discloses:
1. An earbud [Sirois: Fig.7: e.g., ear bud 700, 710, 720, or 730] comprising:
a first electrode (302) [Sirois: Fig.1: electrode 102 or 112; Fig.7: e.g., electrode 701, 711, 733] positioned to physically contact a first anatomic location of an ear of a user when the earbud is worn by the user [Sirois: Fig.2; ¶ 0028: “FIG. 2 also includes an illustration of the auricular anatomy 250 in a human body. In order to measure the bioelectric signal, the electrodes can be placed in contact with the subject's skin at any location within or near the ear. For example, in the ear canal 251, inferior concha 252, superior concha 253, ear lobe 254, tragus 255, etc., or around the ear 260. The electrodes can be on the surface of a wearable device, such as an earbud, so that the electrodes are in contact with the skin when the subject wears the device”; Fig.7; ¶ 0107: “The earbud 700 comprises two electrodes 701 and 702 located on an external surface of the earbud. In this example, the electrodes are located on the ear tip 703 of the earbud, which is to be placed in the ear canal when the earbud is worn. In this way, the electrodes will be located in the ear canal when worn”; ¶ 0109: “In the specific embodiments of the invention where the electrodes are located in the ear, they can be located in the ear canal, as explained with reference to earbud 700, in the inferior concha, the superior concha, the ear lobe, the tragus, etc., or anywhere else around the ear”];
a second electrode (304) [Sirois: Fig.1: electrode 103 or 113; Fig.7: e.g., electrode 702, 712, 734] positioned to physically contact a second anatomic location of the ear when the earbud is worn by the user [Sirois: Fig.2; ¶ 0028: “FIG. 2 also includes an illustration of the auricular anatomy 250 in a human body. In order to measure the bioelectric signal, the electrodes can be placed in contact with the subject's skin at any location within or near the ear. For example, in the ear canal 251, inferior concha 252, superior concha 253, ear lobe 254, tragus 255, etc., or around the ear 260. The electrodes can be on the surface of a wearable device, such as an earbud, so that the electrodes are in contact with the skin when the subject wears the device”; Fig.7; ¶ 0107: “The earbud 700 comprises two electrodes 701 and 702 located on an external surface of the earbud. In this example, the electrodes are located on the ear tip 703 of the earbud, which is to be placed in the ear canal when the earbud is worn. In this way, the electrodes will be located in the ear canal when worn”; ¶ 0109: “In the specific embodiments of the invention where the electrodes are located in the ear, they can be located in the ear canal, as explained with reference to earbud 700, in the inferior concha, the superior concha, the ear lobe, the tragus, etc., or anywhere else around the ear”];
a third electrode (306) [Sirois: ¶ 0025: “It is possible to have several measurement electrodes, located at different places on the skin”; ¶ 0031: “Besides the aforementioned “measurement” and “reference” electrodes, the system can include additional electrodes. For example, the system can include a “Bias” or “Driven Right Leg” electrode, used to cancel the common mode measured across the different channels. The system can also include a “Ground” electrode, used to establish a common ground between the electronics and the body of the subject”; ¶ 0060: “ In specific embodiments, one or more distinct elements of the gesture recognition system (e.g., two separate earbuds or earpieces) can include different numbers and configurations of electrodes…In embodiments in which there were more than two electrodes the third could be another measurement electrode, a driven-right-leg electrode, or a ground electrode. In a specific embodiment of the invention, a system could include two elements which each include three electrodes for a total of six”] positioned to physically contact a third anatomic location of the ear when the earbud is worn by the user [Sirois: Fig.2; ¶ 0028: “FIG. 2 also includes an illustration of the auricular anatomy 250 in a human body. In order to measure the bioelectric signal, the electrodes can be placed in contact with the subject's skin at any location within or near the ear. For example, in the ear canal 251, inferior concha 252, superior concha 253, ear lobe 254, tragus 255, etc., or around the ear 260. The electrodes can be on the surface of a wearable device, such as an earbud, so that the electrodes are in contact with the skin when the subject wears the device”; Fig.7; ¶ 0107: “The earbud 700 comprises two electrodes 701 and 702 located on an external surface of the earbud. In this example, the electrodes are located on the ear tip 703 of the earbud, which is to be placed in the ear canal when the earbud is worn. In this way, the electrodes will be located in the ear canal when worn”; ¶ 0109: “In the specific embodiments of the invention where the electrodes are located in the ear, they can be located in the ear canal, as explained with reference to earbud 700, in the inferior concha, the superior concha, the ear lobe, the tragus, etc., or anywhere else around the ear”];
and a controller [Sirois: Fig1.: processing block 104 or 114] coupled to the first electrode (302), the second electrode (304), and the third electrode (306) [Sirois: Fig.1; Examiner: As shown in Fig.1, the electrodes are connected to the processing block.], the controller programmed to:
receive an electrophysiologic measurement from each of the first electrode (302), the second electrode (304), and the third electrode (306) [Sirois: Fig.1: Measure Signal 151; ¶ 0023: “The electrodes can measure a bioelectric signal, as indicated in step 151 of flowchart 150”], determine a gesture being performed by the user based on the received electrophysiologic measurements [Sirois: Fig.1: Analyze Signal 152; ¶ 0038: “ In specific embodiments of the invention, the system is configured to analyze the bioelectric signal measured by the electrodes, as indicated in step 152. The bioelectric signal can be analyzed in order to recognize a gesture signal in the bioelectric signal. The gesture signal can be a signal representative of a gesture performed by the wearer as comprised in the bioelectric signal measured by the electrodes. The gesture signal can be a signal associated to gestures involving the masseter muscle contraction, such as gestures involving the jaw clenching described above”], and transmit the determined gesture to an external device [Sirois: Fig.1: Personal User Device 120] for control thereof [Sirois: Fig.1: Generate Interface Signal; ¶ 0041: “In specific embodiments of the invention, the system is configured to generate an interface signal upon recognizing the gesture signal in the bioelectric signal, as indicated in step 153 of flowchart 150. The interface signal can alternatively or in combination be a feedback signal to notify the user that the gesture was recognized, a control signal for the wearable device or an associated device, or a training signal used to train an gesture recognition model for the gesture recognition system”; ¶ 0042: “The interface signal can be a feedback signal for the user that the gesture signal was recognized. The feedback can be in the form an auditory, visual or haptic feedback, such as a beep or hearable message, a message on a display, a vibration, etc... The user interface output can be located on the personal head wearable device itself. For example, the user interface output can be the speaker 106 of device 100. Alternatively, or in combination, the user interface output can be a vibrator or display on the wearable device. Alternatively, or in combination, the user interface output can be located on a device operating in conjunction with the personal head wearable device, such as personal user device 120. For example, the interface signal can be a representation of the gesture signal displayed on a display 128 or auditory message via speaker 126”; ¶ 0043: “The interface signal can not only be an explicit feedback that the gesture has been recognized but also a control signal for the system and/or other devices associated with the system. For example, the control signal can be used to perform certain actions or trigger certain events for devices associated with the system depending on the gesture performed by the user as recognized from the gesture signal. In this way, the interface signal can be used to control a play/pause function, a start/end call function, and the like. As a result, a system in accordance with specific embodiments of the invention can be used to control devices, including hands-free control”].
Regarding claim 2:
Sirois discloses:
2. The earbud of claim 1,
wherein the electrophysiologic measurements are selected from the group consisting of electrocardiogram (ECG), an electroencephalogram (EEG), or an electromyography (EMG) [Sirois: ¶ 0004: “ These electrodes can be installed in audio earbud devices or an earpiece to capture different types of electric signals, such as the EEG, ECG, EMG, and EOG signals mentioned above”; ¶ 0025: “Electrodes consisting of a conductive material, for example metal, can be put in contact with the skin and capture electrical potential changes at the surface of the skin. Those electrodes can be referred to as surface electrodes. This technique is called EMG.”].
Regarding claim 4:
Sirois discloses:
4. The earbud of claim 1,
wherein the external device comprises a virtual reality headset [Sirois: ¶ 0004: “. For instance, head wearable devices include smart glasses, earpieces generally, walkie talkie earpieces, headset or earbuds, wireless earbuds, VR/AR headsets, earphones, earplugs, etc.”; ¶ 0044: “Electronic devices, such as personal user device 120 of FIG. 1, can then be controlled by performing gestures and recognizing the gesture signals in the bioelectric signal. Several control functions can be performed by using the system described herein, such as play/pause music, for example using True Wireless earphones, open/close push-to-talk communication on a walkie talkie, grasp an object using VR Headset, trigger noise cancellation on sleep buds, trigger ASSR test on hearing aids, among others”].
Regarding claim 5:
Sirois discloses:
5. The earbud of claim 1,
wherein each of the first electrode (302), the second electrode (304), and the third electrode (306) comprise at least one of an elastomer, silicone, a metal, a ceramic, a carbon nanotube material, composites thereof, or combinations thereof [Sirois: ¶ 0116: “Candidate materials can include composite polymers, such as silicone (e.g., PDMS, Ecoflex, etc.) mixed with electronic-conductive particles (e.g., carbon black, CNT, graphite, Ag, etc.) and/or ionic-conductive particles (e.g., Ag/AgCl, etc.). Candidate materials can also include intrinsically conductive polymers, which include polymers that have conductive properties due to their original composition (e.g., PEDOT:PSS) mixed with additive to give them water resistant, stretchable or adhesive properties (e.g., waterborne polyurethane—WPU, D-sorbitol). Candidate materials can also include metal-coated fabric (e.g., coating using silver and silver chloride) and other suitable materials. The examples provided herein are not limiting examples of candidate materials”; ¶ 0117: “In specific embodiment of the invention, the electrodes can comprise a surface of composite polymer. The composite polymer can be a rubber polymer mixed with conductive particles. The rubber polymer can be soft silicone. The conductive particles can include at least one of carbon black, carbon nanotubes, graphite, silver and silver chloride. In specific embodiment of the invention, the electrodes comprise an intrinsically conductive polymer. The intrinsically conductive polymer can have a conductive original composition and a water-resistant additive”].
Regarding claim 8:
Sirois discloses:
8. The earbud of claim 1,
wherein the first anatomic location, the second anatomic location, and the third anatomic location are selected such that they correspond to at least two different nerves [Sirois: Fig.2; ¶ 0028: “FIG. 2 also includes an illustration of the auricular anatomy 250 in a human body. In order to measure the bioelectric signal, the electrodes can be placed in contact with the subject's skin at any location within or near the ear. For example, in the ear canal 251, inferior concha 252, superior concha 253, ear lobe 254, tragus 255, etc., or around the ear 260. The electrodes can be on the surface of a wearable device, such as an earbud, so that the electrodes are in contact with the skin when the subject wears the device”; Fig.7; ¶ 0107: “The earbud 700 comprises two electrodes 701 and 702 located on an external surface of the earbud. In this example, the electrodes are located on the ear tip 703 of the earbud, which is to be placed in the ear canal when the earbud is worn. In this way, the electrodes will be located in the ear canal when worn”; ¶ 0109: “In the specific embodiments of the invention where the electrodes are located in the ear, they can be located in the ear canal, as explained with reference to earbud 700, in the inferior concha, the superior concha, the ear lobe, the tragus, etc., or anywhere else around the ear”; Examiner: The nerve arrangement of a human ear and the branching out of various nerves from vague, greater auricular never and auriculotemporal within the ear are inherent. For example, the electrodes that are located in the concha are closer to the auricular branch of the vagus nerve.].
Regarding claim 9:
Sirois discloses:
9. A system [Sirois: Fig.1; ¶ 0011: “FIG. 1 includes an example of a gesture detection system”] comprising:
an earbud [Sirois: Fig.7: e.g., ear bud 700, 710, 720, or 730] comprising:
a first electrode (302) [Sirois: Fig.1: electrode 102 or 112; Fig.7: e.g., electrode 701, 711, 733] positioned to physically contact a first anatomic location of an ear of a user when the earbud is worn by the user [Sirois: Fig.2; ¶ 0028: “FIG. 2 also includes an illustration of the auricular anatomy 250 in a human body. In order to measure the bioelectric signal, the electrodes can be placed in contact with the subject's skin at any location within or near the ear. For example, in the ear canal 251, inferior concha 252, superior concha 253, ear lobe 254, tragus 255, etc., or around the ear 260. The electrodes can be on the surface of a wearable device, such as an earbud, so that the electrodes are in contact with the skin when the subject wears the device”; Fig.7; ¶ 0107: “The earbud 700 comprises two electrodes 701 and 702 located on an external surface of the earbud. In this example, the electrodes are located on the ear tip 703 of the earbud, which is to be placed in the ear canal when the earbud is worn. In this way, the electrodes will be located in the ear canal when worn”; ¶ 0109: “In the specific embodiments of the invention where the electrodes are located in the ear, they can be located in the ear canal, as explained with reference to earbud 700, in the inferior concha, the superior concha, the ear lobe, the tragus, etc., or anywhere else around the ear”],
a second electrode (304) [Sirois: Fig.1: electrode 103 or 113; Fig.7: e.g., electrode 702, 712, 734] positioned to physically contact a second anatomic location of the ear when the earbud is worn by the user [Sirois: Fig.2; ¶ 0028: “FIG. 2 also includes an illustration of the auricular anatomy 250 in a human body. In order to measure the bioelectric signal, the electrodes can be placed in contact with the subject's skin at any location within or near the ear. For example, in the ear canal 251, inferior concha 252, superior concha 253, ear lobe 254, tragus 255, etc., or around the ear 260. The electrodes can be on the surface of a wearable device, such as an earbud, so that the electrodes are in contact with the skin when the subject wears the device”; Fig.7; ¶ 0107: “The earbud 700 comprises two electrodes 701 and 702 located on an external surface of the earbud. In this example, the electrodes are located on the ear tip 703 of the earbud, which is to be placed in the ear canal when the earbud is worn. In this way, the electrodes will be located in the ear canal when worn”; ¶ 0109: “In the specific embodiments of the invention where the electrodes are located in the ear, they can be located in the ear canal, as explained with reference to earbud 700, in the inferior concha, the superior concha, the ear lobe, the tragus, etc., or anywhere else around the ear”],
a third electrode (306) [Sirois: ¶ 0025: “It is possible to have several measurement electrodes, located at different places on the skin”; ¶ 0031: “Besides the aforementioned “measurement” and “reference” electrodes, the system can include additional electrodes. For example, the system can include a “Bias” or “Driven Right Leg” electrode, used to cancel the common mode measured across the different channels. The system can also include a “Ground” electrode, used to establish a common ground between the electronics and the body of the subject”; ¶ 0060: “ In specific embodiments, one or more distinct elements of the gesture recognition system (e.g., two separate earbuds or earpieces) can include different numbers and configurations of electrodes…In embodiments in which there were more than two electrodes the third could be another measurement electrode, a driven-right-leg electrode, or a ground electrode. In a specific embodiment of the invention, a system could include two elements which each include three electrodes for a total of six”] positioned to physically contact a third anatomic location of the ear when the earbud is worn by the user [Sirois: Fig.2; ¶ 0028: “FIG. 2 also includes an illustration of the auricular anatomy 250 in a human body. In order to measure the bioelectric signal, the electrodes can be placed in contact with the subject's skin at any location within or near the ear. For example, in the ear canal 251, inferior concha 252, superior concha 253, ear lobe 254, tragus 255, etc., or around the ear 260. The electrodes can be on the surface of a wearable device, such as an earbud, so that the electrodes are in contact with the skin when the subject wears the device”; Fig.7; ¶ 0107: “The earbud 700 comprises two electrodes 701 and 702 located on an external surface of the earbud. In this example, the electrodes are located on the ear tip 703 of the earbud, which is to be placed in the ear canal when the earbud is worn. In this way, the electrodes will be located in the ear canal when worn”; ¶ 0109: “In the specific embodiments of the invention where the electrodes are located in the ear, they can be located in the ear canal, as explained with reference to earbud 700, in the inferior concha, the superior concha, the ear lobe, the tragus, etc., or anywhere else around the ear”], and
a controller [Sirois: Fig1.: processing block 104 or 114] coupled to the first electrode (302), the second electrode (304), and the third electrode (306), the controller [Sirois: Fig.1; Examiner: As shown in Fig.1, the electrodes are connected to the processing block.] programmed to:
receive an electrophysiologic measurement from each of the first electrode (302), the second electrode (304), and the third electrode (306) [Sirois: Fig.1: Measure Signal 151; ¶ 0023: “The electrodes can measure a bioelectric signal, as indicated in step 151 of flowchart 150”], and determine a gesture being performed by the user based on the received electrophysiologic measurements [Sirois: Fig.1: Analyze Signal 152; ¶ 0038: “ In specific embodiments of the invention, the system is configured to analyze the bioelectric signal measured by the electrodes, as indicated in step 152. The bioelectric signal can be analyzed in order to recognize a gesture signal in the bioelectric signal. The gesture signal can be a signal representative of a gesture performed by the wearer as comprised in the bioelectric signal measured by the electrodes. The gesture signal can be a signal associated to gestures involving the masseter muscle contraction, such as gestures involving the jaw clenching described above”];
an external device [Sirois: Fig.1: Personal User Device 120] communicably coupled to the earbud [Sirois: ¶ 0037: “ The system can communicate with the electronic devices either wirelessly, for example via Bluetooth, WiFi, etc., or via a wired connection”], the external device programmed to: receive the determined gesture from the controller of the earbud [Sirois: Fig.1: Analyze Signal 152; ¶ 0038: “ In specific embodiments of the invention, the system is configured to analyze the bioelectric signal measured by the electrodes, as indicated in step 152. The bioelectric signal can be analyzed in order to recognize a gesture signal in the bioelectric signal. The gesture signal can be a signal representative of a gesture performed by the wearer as comprised in the bioelectric signal measured by the electrodes. The gesture signal can be a signal associated to gestures involving the masseter muscle contraction, such as gestures involving the jaw clenching described above”], and perform an action in response to the determined gesture [Sirois: Fig.1: Generate Interface Signal; ¶ 0041: “In specific embodiments of the invention, the system is configured to generate an interface signal upon recognizing the gesture signal in the bioelectric signal, as indicated in step 153 of flowchart 150. The interface signal can alternatively or in combination be a feedback signal to notify the user that the gesture was recognized, a control signal for the wearable device or an associated device, or a training signal used to train an gesture recognition model for the gesture recognition system”; ¶ 0042: “The interface signal can be a feedback signal for the user that the gesture signal was recognized. The feedback can be in the form an auditory, visual or haptic feedback, such as a beep or hearable message, a message on a display, a vibration, etc... The user interface output can be located on the personal head wearable device itself. For example, the user interface output can be the speaker 106 of device 100. Alternatively, or in combination, the user interface output can be a vibrator or display on the wearable device. Alternatively, or in combination, the user interface output can be located on a device operating in conjunction with the personal head wearable device, such as personal user device 120. For example, the interface signal can be a representation of the gesture signal displayed on a display 128 or auditory message via speaker 126”; ¶ 0043: “The interface signal can not only be an explicit feedback that the gesture has been recognized but also a control signal for the system and/or other devices associated with the system. For example, the control signal can be used to perform certain actions or trigger certain events for devices associated with the system depending on the gesture performed by the user as recognized from the gesture signal. In this way, the interface signal can be used to control a play/pause function, a start/end call function, and the like. As a result, a system in accordance with specific embodiments of the invention can be used to control devices, including hands-free control”].
Regarding claim 10:
The limitations of claim 10 have been addressed in the discussion of claim 2 above.
Regarding claim 12:
The limitations of claim 12 have been addressed in the discussion of claim 4 above.
Regarding claim 14:
The limitations of claim 14 have been addressed in the discussion of claim 5 above.
Regarding claim 17:
The limitations of claim 17 have been addressed in the discussion of claim 8 above.
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.
Claim(s) 3 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Sirois; Alain et al., US 20220276723 A1] in view of [Kidmose; Preben et al., US 20220031217 A1].
Regarding claim 3:
Sirois discloses:
3. The earbud of claim 1.
However, Sirois does not expressly disclose:
wherein each of the first electrode (302), the second electrode (304), and the third electrode (306) comprise a size from about 5 mm to about 6 mm.
Kidmose discloses:
wherein each of the first electrode (302), the second electrode (304), and the third electrode (306) comprise a size from about 5 mm to about 6 mm [Kidmose: ¶ 0021: “The electrode has a base diameter D. In a preferred embodiment, the base diameter D is between 1.0 and 5.0 mm”].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have included the concept above of Kidmose in the invention of Sirois to yield the predictable result of providing a suitable size for the electrodes to measure the biosignals.
Regarding claim 11:
The limitations of claim 11 have been addressed in the discussion of claim 3 above.
Claim(s) 6-7 and 15-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Sirois; Alain et al., US 20220276723 A1] in view of [Andersen; Mikael et al., US 20190282119 A1].
Regarding claim 6:
Sirois discloses:
6. The earbud of claim 1.
However, Sirois does not expressly disclose:
wherein the first anatomic location comprises a concha, the second anatomic location comprises a tragus, and the third anatomic location comprises a triangular fossa.
Andersen discloses:
wherein the first anatomic location comprises a concha [Andersen: Fig.1-2; ¶ 0042: “As shown in FIG. 2, the bendable arm 34 provides a concha part, which is adapted to follow the shape of a concha 12 of the ear 10. Thereby, the concha part of the bendable arm 34 fits closely to at least one protrusion of the concha 12 and exerts thereby a pressure such that at least one of the external ear electrodes 32 is pressed against the skin of the person when in use” ], the second anatomic location comprises a tragus [Andersen: ¶ 0053: “Furthermore, an electrode placement at Tragus is preferred since this area allows for extra pressure by adding additional material to the bendable arm”], and the third anatomic location comprises a triangular fossa [Andersen: ¶ 0052: “In another form, the external ear part can extend towards or into the helix, triangular fossa, crura of antihelix or Scapha region where an electrode may be arranged”].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have included the concept above of Andersen in the invention of Sirois to yield the predictable result of measuring biosignals at different locations of the ear.
Regarding claim 7:
Sirois discloses:
7. The earbud of claim 1.
However, Sirois does not expressly disclose:
wherein the first anatomic location comprises a concha, the second anatomic location comprises a triangular fossa, and the third anatomic location comprises a helix.
Andersen discloses:
wherein the first anatomic location comprises a concha [Andersen: Fig.1-2; ¶ 0042: “As shown in FIG. 2, the bendable arm 34 provides a concha part, which is adapted to follow the shape of a concha 12 of the ear 10. Thereby, the concha part of the bendable arm 34 fits closely to at least one protrusion of the concha 12 and exerts thereby a pressure such that at least one of the external ear electrodes 32 is pressed against the skin of the person when in use” ], the second anatomic location comprises a triangular fossa [Andersen: ¶ 0052: “In another form, the external ear part can extend towards or into the helix, triangular fossa, crura of antihelix or Scapha region where an electrode may be arranged”], and the third anatomic location comprises a helix [Andersen: ¶ 0052: “In another form, the external ear part can extend towards or into the helix, triangular fossa, crura of antihelix or Scapha region where an electrode may be arranged”].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have included the concept above of Andersen in the invention of Sirois to yield the predictable result of measuring biosignals at different locations of the ear.
Regarding claim 15:
The limitations of claim 15 have been addressed in the discussion of claim 6 above.
Regarding claim 16:
The limitations of claim 16 have been addressed in the discussion of claim 7 above.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Sirois; Alain et al., US 20220276723 A1] in view of [Pridie; Steven William, US 20200184735 A1].
Regarding claim 13:
Sirois discloses:
13. The system of claim 12.
However, Sirois does not expressly disclose:
wherein the action comprises at least one of changing a field of view of the virtual reality headset or changing a mode of the virtual reality headset.
Pridie discloses:
wherein the action comprises at least one of changing a field of view of the virtual reality headset or changing a mode of the virtual reality headset [Pridie: ¶ 0060: “ The mode change may alternatively involve a gesture (e.g., a hand gesture), such as mimicking tapping an object, tapping a finger and thumb together, a snap, or simply making a hand gesture (e.g. two finger's raised) and moving a hand from left to right. It may be a voice command, looking in a certain direction within an AR/VR headset, or utilizing an in-AR or in-VR menu system to select a mode change. Numerous activities could trigger a mode change, but regardless a mode change may be made by a user”].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have included the concept above of Pridie in the invention of Sirois to yield the predictable result of changing a mode of the VR headset.
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.
Claims 1-6 and 9-15 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1--11 of U.S. Patent No. 12,008,163. As apparent from the claim comparison table below, although the claims at issue are not identical, they are not patentably distinct from each other because it is clear that all the elements of the application claim are to be found in patent claim (as the application claim fully encompasses patent claim). The difference between the application claim and the patent claim lies in the fact that the patent claim includes many more elements and is thus much more specific. Thus, the invention of the patent claim is in effect a “species” of the “generic” invention of the application claim. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since application claim is anticipated by the patent claim, it is not patentably distinct from the patent claim.
App. No. 19/210,010
Patent No. US 12,008,163 B1
1. An earbud comprising:
a first electrode positioned to physically contact a first anatomic location of an ear of a user when the earbud is worn by the user;
a second electrode positioned to physically contact a second anatomic location of the ear when the earbud is worn by the user;
a third electrode positioned to physically contact a third anatomic location of the ear when the earbud is worn by the user;
and a controller coupled to
the first electrode, the second electrode, and the third electrode, the controller programmed
to: receive an electrophysiologic measurement from each of the first electrode, the second electrode, and the third electrode,
determine a gesture being performed by the user based on the received electrophysiologic measurements,
and transmit the determined gesture to an external device for control thereof.
2. The earbud of claim 1,
wherein the electrophysiologic measurements are selected from the group consisting of electrocardiogram (ECG), an electroencephalogram (EEG), or an electromyography (EMG).
3. The earbud of claim 1,
wherein each of the first electrode, the second electrode, and the third electrode comprise a size from about 5 mm to about 6 mm.
4. The earbud of claim 1,
wherein the external device comprises a virtual reality headset.
5. The earbud of claim 1,
wherein each of the first electrode, the second electrode, and the third electrode comprise at least one of an elastomer, silicone, a metal, a ceramic, a carbon nanotube material, composites thereof, or combinations thereof.
6. The earbud of claim 1,
wherein the first anatomic location comprises a concha, the second anatomic location comprises a tragus, and the third anatomic location comprises a triangular fossa.
9. A system comprising:
an earbud comprising: a
first electrode positioned to physically contact a first anatomic location of an ear of a user when the earbud is worn by the user,
a second electrode positioned to physically contact a second anatomic location of the ear when the earbud is worn by the user,
a third electrode positioned to physically contact a third anatomic location of the ear when the earbud is worn by the user,
and a controller coupled to
the first electrode, the second electrode, and the third electrode, the controller programmed to: receive an electrophysiologic measurement from each of the first electrode, the second electrode, and the third electrode,
and determine a gesture being performed by the user based on the received electrophysiologic measurements;
an external device communicably coupled to the earbud, the external device programmed to:
receive the determined gesture from the controller of the earbud, and perform an action in response to the determined gesture.
10. The system of claim 9,
wherein the electrophysiologic measurements are selected from the group consisting of electrocardiogram (ECG), an electroencephalogram (EEG), or an electromyography (EMG).
11. The system of claim 9,
wherein each of the first electrode, the second electrode, and the third electrode comprise a size from about 5 mm to about 6 mm.
12. The system of claim 9,
wherein the external device comprises a virtual reality headset.
13. The system of claim 12,
wherein the action comprises at least one of changing a field of view of the virtual reality headset or changing a mode of the virtual reality headset.
14. The system of claim 9,
wherein each of the first electrode, the second electrode, and the third electrode comprise at least one of an elastomer, silicone, a metal, a ceramic, a carbon nanotube material, composites thereof, or combinations thereof.
15. The system of claim 9,
wherein the first anatomic location comprises a concha, the second anatomic location comprises a tragus, and the third anatomic location comprises a triangular fossa.
1. An earbud comprising:
a gestural sensor configured to detect movement data indicative of a gesture being performed by a user;
a first electrode positioned to physically contact a concha of an ear of the user when the earbud is worn by the user;
a second electrode positioned to physically contact a tragus of the ear when the earbud is worn by the user;
a third electrode positioned to physically contact a triangular fossa of the ear when the earbud is worn by the user;
and a controller coupled to
the gestural sensor,
the first electrode, the second electrode, and the third electrode, the controller programmed
to: receive an electrophysiologic measurement from each of the first electrode, the second electrode, and the third electrode,
wherein a first electrophysiological measurement from the first electrode corresponds to an electrophysiological signal indicative of the
gesture being performed by the user, a second electrophysiological measurement from the second electrode corresponds to a baseline electrophysiological signal, and a third electrophysiological measurement from the third electrode corresponds to a common mode signal, determine the gesture being performed by the user based on (i) a comparison of the electrophysiological signal indicative of the gesture to the baseline electrophysiological signal and the common mode signal and (ii) the movement data from the gestural sensor,
and transmit the determined gesture to an external device for control thereof.
2. The earbud of claim 1,
wherein the electrophysiologic measurements are selected from the group consisting of, electrocardiogram (ECG), an electroencephalogram (EEG), or an electromyography (EMG).
3. The earbud of claim 1,
wherein each of the first electrode, the second electrode, and the third electrode comprise a size from about 5 mm to about 6 mm.
4. The earbud of claim 1,
wherein the external device comprises a virtual reality headset.
5. The earbud of claim 1,
wherein each of the first electrode, the second electrode, and the third electrode comprise at least one of an elastomer, silicone, a metal, a ceramic, a carbon nanotube material, composites thereof, or combinations thereof.
(These claim features have been incorporated into claim 1)
6. A system comprising:
an earbud comprising:
a gestural sensor configured to detect movement data indicative of a gesture being performed by a user,
a first electrode positioned to physically contact a concha of an ear of a user when the earbud is worn by the user,
a second electrode positioned to physically contact a tragus of the ear when the earbud is worn by the user,
a third electrode positioned to physically contact a triangular fossa of the ear when the earbud is worn by the user,
and a controller coupled to the
gestural sensor,
the first electrode, the second electrode, and the third electrode, the controller programmed to: receive an electrophysiologic measurement from each of the first electrode, the second electrode, and the third electrode,
wherein a first electrophysiological measurement from the first electrode corresponds to an electrophysiological signal indicative of the gesture being performed by the user, a second electrophysiological measurement from the second electrode corresponds to a baseline electrophysiological signal, and a third electrophysiological measurement from the third electrode corresponds to a common mode signal, and determine the gesture being performed by the user based on (i) a comparison of the electrophysiological signal indicative of the gesture to the baseline electrophysiological signal and the common mode signal and (ii) the movement data from the gestural sensor;
and an external device communicably coupled to the earbud, the external device programmed to:
receive the determined gesture from the controller of the earbud, and perform an action in response to the determined gesture.
7. The system of claim 6,
wherein the electrophysiologic measurements are selected from the group consisting of, electrocardiogram (ECG), an electroencephalogram (EEG), or an electromyography (EMG).
8. The system of claim 6,
wherein each of the first electrode, the second electrode, and the third electrode comprise a size from about 5 mm to about 6 mm.
9. The system of claim 6,
wherein the external device comprises a virtual reality headset.
10. The system of claim 9,
wherein the action comprises at least one of changing a field of view of the virtual reality headset or changing a mode of the virtual reality headset.
11. The system of claim 6,
wherein each of the first electrode, the second electrode, and the third electrode comprise at least one of an elastomer, silicone, a metal, a ceramic, a carbon nanotube material, composites thereof, or combinations thereof.
(These claim features have been incorporated into claim 6)
Claim comparison table 1
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
[Wada; Seiji, US 20100239114 A1] discloses:
“Disclosed herein is an ear canal fitting unit including: a tube configured to be capable of being inserted into an ear canal; an electrode configured to have flexibility and be so disposed along an outer circumferential surface of the tube that a predetermined gap is formed between the electrode and an inner surface of the ear canal; pressing means for deforming the electrode in such a direction as to get away from the outer circumferential surface of the tube and pressing the electrode against the inner surface of the ear canal; and suppressing means for suppressing push-back of the electrode pressed against the inner surface of the ear canal”, as recited in the abstract.
[Kaiser; Sean et al., US 20190192077 A1] discloses:
“A system for sensing in-ear electrical signals includes a left electrode tip, a right electrode tip, and a signal acquisition subsystem. Each electrode tip includes: an elastic substrate configured to conform against an internal surface of an ear canal of a user; a sense electrode, a reference electrode, and a driven ground electrode each arranged on the outer surface of the elastic substrate. The signal acquisition subsystem is configured to, during a sampling period: output a left time series of a left voltage differential between the left sense electrode and the right reference electrode; and output a right time series of a right voltage differential between the right sense electrode and the left reference electrode”, as recited in the abstract.
[Cain; Robert C., US 20060094974 A1] discloses:
“A system for monitoring brain waves includes a detection electrode that is detects brain waves and is located on the part of the ear that is in or above the ear canal. The detection electrode also generates a brain wave data signal. A reference electrode is included in the system, and operates to detect a reference signal and to generate a reference data signal. A monitor is also included and receives the brain wave data signal and the reference data signal. The detection electrode and reference electrode form an electrode pair, and the monitor processes the brain wave data signal and data reference signal to generate neurofeedback”, as recited in the abstract.
[Gallégo; Stéphane, US 20220394396 A1] discloses:
“A processing system obtains a deformation signal generated by a deformation sensor. The deformation signal is indicative of a deformation of an outer ear of a user of a hearing instrument. Additionally, the processing system obtains an EMG signal generated by an electrode in a concha of the user, wherein the electrode is configured to detect activity of an intrinsic auricular muscle of the user. Furthermore, the processing system generates information regarding an auditory attention state of the user based on the deformation signal and the EMG signal. The processing system controls, based on the information regarding the auditory attention state of the user, the parameter of the audio system”, as recited in the abstract.
[Rüdiger; Julius Friedrich et al., US 10852829 B2] discloses: “A system includes at least one wearable device having a housing, at least one sensor disposed within the housing, at least one output device disposed within the housing, and at least one processor operatively connected to the sensors and output devices, wherein one or more sensors are configured to detect electrical activity from a user's facial muscles and to transmit a data signal concerning the electrical activity of the user's facial muscles to one of more of the processors. A method of controlling a wearable device includes determining facial muscular electrical data of a facial gesture made by a user, interpreting the facial muscular electrical data to determine a user response, and performing an action based on the user response”, as recited in the abstract.
[Azemi; Erdrin et al., US 20230225659 A1] discloses:
“A wearable electronic device includes a housing, and an electrode carrier attached to the housing and having a nonplanar surface. The wearable electronic device includes a set of electrodes, including electrodes positioned at different locations on the nonplanar surface. The wearable electronic device includes a sensor circuit and a switching circuit. The switching circuit is operable to electrically connect a number of different subsets of one or more electrodes in the set of electrodes to the sensor circuit”, as recited in the abstract.
Inquiry
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Koosha Sharifi-Tafreshi whose telephone number is (571)270-5897. The examiner can normally be reached Mon - Fri 8AM to 5PM EST.
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/KOOSHA SHARIFI-TAFRESHI/Primary Examiner, Art Unit 2628