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 .
Response to Amendment
The amendments made to claims 1, 5, 19, and 20 in the response filed on 9/16/2025 are acknowledged. Claims 1-5, 7-9, 11, 14-23 are still pending in the application and are examined below.
Response to Arguments
Applicant’s arguments, see page 1, filed on 9/16/2025, with respect to the rejection of claims 1, 19, and 20 under 35 U.S.C 103 have been fully considered and are persuasive. However, upon further consideration, a new ground of rejection was made in view of Nilforushan et al. (US 20080201818 A1) in view of Ogulnick et al. (US 20120078147 A1) in view of DeWall (US 5007412 A) and in further view of Rao et al. (US 20180161617 A1) to meet the newly added limitations of claim 1, Nilforushan et al. (US 20080201818 A1) in view of Ogulnick et al. (US 20120078147 A1) and in further view of Rao et al. (US 20180161617 A1) to meet the newly added limitations of claim 19, and Nilforushan et al. (US 20080201818 A1) in view of Ogulnick et al. (US 20120078147 A1) in view of Rao et al. (US 20180161617 A1) in view of Schultz (US 20180132543 A1) and in further view of DeWall (US 5007412 A) to meet the newly added limitations of claim 20.
Drawings
The drawings are objected to because figure 3, figure 4, figure 7A-7D, figure 8A-8D, figure 9A has text/captions. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the bottom opening in the lower back region, orthotic bracing component, and plurality of slits must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: said chamber having a width that is at least two times the corresponding dimension of the at least one corrective element.
Claim Objections
Claim 11 objected to because of the following informalities: “inner layer or the outer layer of the cavity or chamber” should be “inner layer or the outer layer of the chamber” in line 2. Appropriate correction is required.
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.
Claim 1 is 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. Claims 2-5, 7-9, 11, 14-18, and 21-23 are also rejected due to its dependency on claim 1. 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. Regarding the limitation in claim 1, the term “at least two times” is new matter. In paragraph 0043 of the written specification, it states “As a result, the cavities or chambers have a width that is a multiple (for example, 1.5, 2, 2.5, or 3) of the corresponding dimension of one of the corrective elements”. The specification states that 1.5 of the corresponding dimensions of one of the corrective elements; therefore, the term “at least two times” is new matter since Applicant intends to have the chamber with a multiple that is less than 2 times (or 1.5 times). Examiner proposes to remove the term “at least” to overcome the 35 U.S.C. 112(a) rejection.
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.
Claims 1-5, 8, 9, 11, 14-16, 18, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Nilforushan et al. (US 20080201818 A1) in view of Ogulnick et al. (US 20120078147 A1) in view of DeWall (US 5007412 A) and in further view of Rao et al. (US 20180161617 A1).
Regarding claim 1, Nilforushan et al. discloses a wearable orthotic appliance (100 – figure 1, a garment: paragraph 0046) configured to releasably attach to at least one corrective element (4 – figure 1, a thermal transfer element: paragraph 0046) for correcting neuromuscular imbalances (figure 1, the wearable orthotic applicant [100] is used to prevent or treat injuries and relieve pain of the human body: paragraph 0003), comprising: an assembly made up of panels of resilient fabric (1 – figure 1, article of clothing made of any flexible material that is stretchable or breathable such as a blend of nylon, polyester, and spandex: paragraph 0050), the assembly (1) including a plurality of chambers (A – see annotated figure 1, the assembly [1] has a plurality of chambers: paragraph 0049), wherein the plurality of chambers (A) comprise an unbroken loop fastener material (5A – figure 1, a loop material: paragraph 0056) secured to an inner layer within the plurality of chambers (figure 1, the outer layer [11 – figure 1] of the assembly [1] has an interior surface [2] that is brushed to create a loop material [5A] suitable for hook and loop fastener: paragraph 0049-0050/0056) that is configured to receive and secure the at least one corrective element (4) at any positions within each of the plurality of chambers (A) by latch-and-hook attachment (the plurality of chambers [A] has an unbroken loop fastener that [2] that receive and secures the at least one correct element [4] at any position via hook and loop: paragraph 0047/0049), said chamber (A) having a width that is at least two times the corresponding dimension of the at least one corrective element (4) (figure 1, the chamber [A] are large, not only relative to the size of the corrective element [4], but also to the size of the wearable orthotic appliance [100]; the one corrective element [4] is about 15cm by 25cm while the chamber [A] has an area of about 1000cm2, therefore, the chamber [A] has a width that is at least times the dimension of the corrective element [4]: paragraph 0051/0053); wherein the plurality of chambers (A) are present on each of: an abdominal region, an upper back region and a lower back region to stabilize the at least one corrective element in three planes in response to patient movement (see annotated figure 1/annotated figure 2, the plurality of chambers [A] are located in the abdominal region, upper back region, and a lower back region; the at least one corrective element [4] is stabilized via the hook and loop fasteners: paragraph 0047/0049; the term “stabilize” is defined as “to make or hold stable, firm, or steadfast” by https://www.thefreedictionary.com/stabilize).
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Annotated figure 1: front and back of the garment of Nilforushan et al. (left image is the front view while the right image is the back view)
However, Nilforushan et al. fails to explicitly disclose the assembly made up of a plurality of stitched-together panels of resilient fabric wherein adjacent panels are stitched to provide differential compressive tension against a user's torso when worn, wherein the plurality of chambers are located on the panels that are stitched under tension at the time of assembly and configured to have a higher compressive tension than adjacent panels when worn; wherein the lower back region comprises a bottom opening into the chamber of a lower back region panel; and wherein the at least one corrective element is a weight.
Ogulnick et al. teaches an analogous assembly (1600 – see annotated figure 2, a double layer of fabric that are compressive, elastic, and stretchable: paragraph 0096) made up of a plurality of stitched-together panels of resilient fabric (see annotated figure 2, the assembly [1600] comprises different panels that are stitched [the fabric layers are stitched at the top of each chamber opening {1620/1625/1635/1640 – see annotated figure 2]: paragraph 0098) wherein adjacent panels are stitched to provide differential compressive tension against a user's torso when worn (see annotated figure 2, the plurality of stitched-together panels provides gradient compression to the user: paragraph 0096/0098-0099), wherein an analogous plurality of chambers (B - see annotated figure 2, plurality of pockets formed from the fabric layers: paragraph 0096-0098) are located on the panels that are stitched (see annotated figure 2, the long sleeve compression shirt [1600 - see annotated figure 2] comprises different panels that are stitched [the fabric layers are stitched at the top of each chamber opening {1620/1625/1635/1640 - see annotated figure 1 below}: paragraph 0096/0098) under tension to have a higher compressive tension than adjacent panels when worn (the long sleeve compression shirt [1600] is made of dual layers comprising 4-way stretch yarn that is compressive, elastic and stretchable; as such, the dual layers comprising the 4-way stretch yarn is under tension in order to achieve the desire function of the compression garment, which allows the plurality of chambers [B] to hold the correcting element in the chamber [B] while additionally being held compressively against the desired body part of the wearer: paragraph 0017/0085/0096).
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Annotated figure 2: garment of Ogulnick et al.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the assembly of Nilforushan et al. with a plurality stitched-together panels of resilient fabric to provide differential compression as taught by Ogulnick et al. in order to provide a wearable orthotic appliance that has an improved assembly to improve blood circulation, which delivers more oxygen to working muscles and allows the body to eliminate lactic acid and other metabolic waste that causes muscle fatigue (paragraph 0016, Ogulnick et al.).
Furthermore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the plurality of chambers on the panel of Nilforushan et al. with a higher compression tension than adjacent panels taught by Ogulnick et al. in order to provide a wearable orthotic appliance that has an improved assembly to improve blood circulation and to stabilize the corrective element in its respective chamber (paragraph 0016-0017/0085/0096, Ogulnick et al.).
However, Nilforushan et al. in view of Ogulnick et al. fails to disclose wherein the lower back region comprises a bottom opening into the chamber of a lower back region panel; and wherein the at least one corrective element is a weight.
DeWall teaches wherein an analogous lower back region (20 - figure 2, lower back supporting section: column 2, lines 20-30) comprises a bottom opening (figure 2, the pocket [68 - figure 2, a pocket that is capable of holding an element: column 2, lines 56-61] is removably attachable to the vest [10 - figure 1, a vest] via hook and loop fasteners and can be removed starting from the bottom which creates a bottom opening that allows elements to be placed into the pocket [68]) into an analogous chamber (68) of the analogous lower back region panel (C - see annotated figure 3, a lower back region panel that is a part of the garment).
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Annotated Figure 3: a panel in the lower back region of DeWall
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the chamber of the lower back region of Nilforushan et al. in view of Ogulnick et al. with a bottom opening as taught by DeWall in order to provide a wearable orthotic appliance that has an improved chamber including a bottom opening to improve accessibility of the chamber, which allows users to conveniently place a variety of supporting devices into the chamber (column 2, lines 56-61, DeWall).
However, Nilforushan et al. in view of Ogulnick et al. and in further view of DeWall fails to disclose wherein the at least one corrective element is a weight.
Rao et al. teaches wherein the at least one analogous corrective element is a weight (108a – figure 1, a plurality of compressive inserts that provide resistance when inserted into a pocket; the compressive inserts come in varying weights: paragraph 0007/0029-0030).
The device of Nilforushan et al. and Rao et al. are in the same general field of endeavor and are therefore, considered analogous art; both would be considered appliances that provide therapeutic effect to the user’s body (Nilforushan et al.: paragraph 0003/Rao et al.: paragraph 0005/0006).
Therefore, at the time the invention was made, it would have been well within the skill of an ordinary artisan to substitute one known element for another to obtain predictable results. Substituting the thermal transfer media (4) of Nilforushan et al. with the compressive insert with varying weights 108a) of Rao et al. would have achieved the predictable result of decreasing risk of injury, relieving pain in body parts, and improving flexibility (Nilforushan et al.: paragraph 0003/Rao et al.: paragraph 0006). It would have been obvious to one of ordinary skill in the art to have modified the thermal transfer media of Nilforushan et al. to be a weight of Rao et al. in order to have provided an improved orthotic appliance to facilitate proper posture and joint orientation (paragraph 0005, Rao et al.).
Where a claimed improvement on a device or apparatus is no more than "the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for improvement," the claim is unpatentable under 35 U.S.C. 103(a). Ex Parte Smith, 83 USPQ.2d 1509 (BPAI, 2007) (citing KSR International Co. v. Teleflex Inc., 550 U.S. ___, ___, 82 USPQ2d 1385, 1396 (2007). Accordingly, Applicant claims a combination that only unites old elements with no change in the respective functions of those old elements, and the combination of those elements yields predictable results. KSR International Co. v. Teleflex Inc., 550 U.S. ___, ___, 82 USPQ2d 1385, 1395 (2007).
Regarding claim 2, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 1. Ogulnick et al. further teaches wherein said compressive tension includes a compression gradient that assists in maintaining a position of the at least one corrective element within the cavity or chamber (B) (the long sleeve compression shirt [1600] is made of dual layers comprising 4-way stretch yarn that is compressive, elastic and stretchable; as such, the dual layers comprising the 4-way stretch yarn is under tension in order to achieve the desire function of the compression garment, which allows the plurality of chambers [B] to hold the correcting element in the chamber [B] while additionally being held compressively against the desired body part of the wearer: paragraph 0017/0085/0096).
Regarding claim 3, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 1. Nilforushan further discloses wherein the wearable orthotic appliance (100) is a garment or article of clothing (figure 1, the wearable orthotic appliance [100] is an article of clothing: paragraph 0046).
Regarding claim 4, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 3. Nilforushan further discloses wherein the garment or article of clothing is a shirt or vest (figure 1 - the garment can be shirts or vests: Paragraph 0051).
Regarding claim 5, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 1. Rao et al. further teaches wherein a therapeutic effect of the weight (108a) depends on proper positioning relative to the torso (the weights [108a] are in the pockets [110a-d] and the location of the pockets [110a-d] can vary depending upon the application and problems being addressed by the vest: paragraph 0029).
Regarding claim 8, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 1. Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. further discloses wherein at least one of the analogous panels of the plurality of stitched-together panels (Ogulnick et al.: see annotated figure 2, the assembly [1600] comprises different panels that are stitched [the fabric layers are stitched at the top of each chamber opening {1620/1625/1635/1640 – see annotated figure 2]: paragraph 0098) is constructed of a plurality of layers (Nilforushan et al.: 2/10/11 – figure 1, an interior surface [2], first layer [10] and an outer layer [11]: paragraph 0049) that form at least one of the plurality of chambers (Nilforushan et al.: A) (figure 1/figure 4, the plurality of layers [2/10/11] creates the at least one of the plurality chambers [A]: paragraph 0049).
Regarding claim 9, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 8. Nilforushan et al. further discloses wherein the plurality of layers (2/10/11) include an outside fabric layer (11 - figure 1, outer layer: paragraph 0049), an inside fabric layer (10 - figure 1, inner layer: paragraph 0049) and a third layer including the unbroken loop fastener material (5A) (2 – an interior surface of the outside fabric layer [11] that includes broken loop fastener material [5A]: paragraph 0049) adapted to removably secure the at least one corrective element (4) (figure 1, the unbroken loop fastener material [5A] is adapted to removable secure the corrective element [4]: paragraph 0047/0056).
Regarding claim 11, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 9. Nilforushan et al. further discloses wherein the third layer (2) is secured to the inner layer or the outer layer (11) of the cavity or chamber (A) (figure 1, the third layer [2] is a part of the outer layer [11]: paragraph 0049), and the inner (10) and outer layer (11) are secured to each other to form a discrete panel (figure 1/figure 4, the inner [10] and outer layer [11] are secured to each other at its hidden lines [besides the openings to allow the corrective element {4} to enter into the plurality of chambers {A}] to create a discrete panel: paragraph 0013/0014)).
Regarding claim 14, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 8. Nilforushan et al. further discloses wherein the panels include at least one ventilation panel and made of a single layer resilient mesh material (figure 1, the assembly [1] comprises the inner layer [10], which is made of any flexible material such as a fine mesh material: paragraph 0049).
Examiner further notes: Regarding claim 14, the definition of “mesh” is defined as “any knit, woven, or knotted fabric of open texture” by Dictionary.com. The inner layer (10) is a mesh material.
Regarding claim 15, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 1. Nilforushan et al. further discloses wherein the resilient fabric is a lightweight synthetic fabric material having elastic memory properties (the assembly [1] can be made from any flexible material. More specifically, and without limitation, the material can be moisture absorbent, breathable, stretchable, meshed, or any blend or combination thereof. Even more particularly, the material can be a blend of nylon, polyester, and spandex: paragraph 0050).
Regarding claim 16, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 1. Nilforushan et al. further discloses wherein a number of the plurality chambers (A) is at least three (see annotated figure 1/figure 3, there can be at least four chambers [A]; additionally, figure 16 and 19 has at least three pluralities of chambers [each chamber has a corrective element {4}]: paragraph 0013-0014).
Regarding claim 18, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 1. Nilforushan et al. further discloses an unbroken loop fabric region extending parallel to the wearer's spine on the lower back region (the unbroken loop material [5A] can be found anywhere on the interior surface [2] of the outer layer [11]; therefore, it is implied that a region of the unbroken loop fabric region extends parallel to the wearer’s spine on the lower back region: paragraph 0056).
Regarding claim 21, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 1. Ogulnick et al. further teaches wherein the panels stitched under tension are adjacent to a panel having a different tension (see annotated figure 2, the panels comprising the chamber [B] with opening [specifically 1635/1640] have a higher compressive tension than the adjacent panels comprising the chamber [B] with opening [specifically 1625]: paragraph 0099).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Nilforushan et al. (US 20080201818 A1) in view of Ogulnick et al. (US 20120078147 A1) in view of DeWall (US 5007412 A) in view of Rao et al. (US 20180161617 A1) and in further view of Gibson-Hornet al. (US 8215773 B2).
Regarding claim 7, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 1. Rao et al. further teaches wherein the corrective element include weights (108a – figure 1, a plurality of compressive inserts that provide resistance when inserted into a pocket; the compressive inserts come in varying weights: paragraph 0007/0029-0030).
However, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. fails to disclose wherein the corrective elements include electrodes.
Gibson-Horn et al. teaches wherein analogous corrective elements include electrodes (there can be additional sensory treatment modalities such as electrical simulation, which involves electrodes: column 20, lines 34-59; column 21, lines 1-16).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the corrective element of Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. with electrodes as taught by Gibson-Horn et al. in order to provide a wearable orthotic appliance that has an improved element including weights and electrodes to allow users to conveniently select a certain type of therapy or therapeutic benefit needed when worn (column 20, lines 34-59, Gibson-Horn et al.).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Nilforushan et al. (US 20080201818 A1) in view of Ogulnick et al. (US 20120078147 A1) in view of DeWall (US 5007412 A) in view of Rao et al. (US 20180161617 A1) and in further view of Turner (US 20100024089 A1).
Regarding claim 17, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. discloses the invention as discussed in claim 1. Ogulnick et al. further teaches the chamber (B) of the lower back region includes an opening (1640 – see annotated figure 2, a pocket opening: paragraph 0097) at a lower back area of the user's torso (see annotated figure 2, the chamber [B] is located at the lower back area of the user and has an opening [1640] provides access to the lower back pockets: paragraph 0097).
However, Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. fails to disclose wherein the chamber on the abdominal region includes a downward-facing opening.
Turner teaches wherein the analogous chamber on an analogous abdominal region (F - see annotated figure 4, the garment comprises two layers [407/408 - see annotated figure 4] and in between, there is a pocket of space for attachment elements [411 - see annotated figure 4, elements]: paragraph 0083-0085) includes a downward-facing opening (G - see annotated figure 4, the chamber [F] has a downward-facing opening where the corrective elements [411] can fall out from if not secured properly: paragraph 0083-0085).
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Annotated Figure 4: chamber located on the abdominal region of Turner et al.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the chamber on the abdomen region of Nilforushan et al. in view of Ogulnick et al. in view of DeWall and in further view of Rao et al. with a downward opening as taught by Turner in order to provide a wearable orthotic appliance that has an improved chamber to facilitate insertion or removal of attachable elements and secure the attachable elements to the chamber (paragraph 0084-0085, Turner).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Nilforushan et al. (US 20080201818 A1) in view of Ogulnick et al. (US 20120078147 A1) and in further view of Rao et al. (US 20180161617 A1).
Regarding claim 19, Nilforushan et al. discloses a wearable orthotic appliance (100 – figure 1, a garment: paragraph 0046) configured to releasably attach to at least one corrective element (4 – figure 1, a thermal transfer element: paragraph 0046) for correcting neuromuscular imbalances (figure 1, the wearable orthotic applicant [100] is used to prevent or treat injuries and relieve pain of the human body: paragraph 0003), comprising: an assembly made up of panels of resilient fabric (1 – figure 1, article of clothing made of any flexible material that is stretchable or breathable such as a blend of nylon, polyester, and spandex: paragraph 0050), the assembly (1) including a plurality of chambers (A – see annotated figure 1, the assembly [1] has a plurality of chambers: paragraph 0049), wherein the plurality of chambers (A) comprise an unbroken loop fastener material (5A – figure 1, a loop material: paragraph 0056) secured to an inner layer within the plurality of chambers (figure 1, the outer layer [11 – figure 1] of the assembly [1] has an interior surface [2] that is brushed to create a loop material [5A] suitable for hook and loop fastener: paragraph 0049-0050/0056) that is configured to receive and secure the at least one corrective element (4) at any positions within each of the plurality of chambers (A) by latch-and-hook attachment (the plurality of chambers [A] has an unbroken loop fastener that [2] that receive and secures the at least one correct element [4] at any position via hook and loop: paragraph 0047/0049); wherein the plurality of chambers (A) are present on each of: an abdominal region, an upper back region and a lower back region (see annotated figure 1/annotated figure 2, the plurality of chambers [A] are located in the abdominal region, upper back region, and a lower back region; the at least one corrective element [4] is stabilized via the hook and loop fasteners: paragraph 0047/0049), wherein each chamber in the plurality of chambers (A) has a width that is at least two times larger than a width of the at least one corrective element (4) (figure 1, the chamber [A] are large, not only relative to the size of the corrective element [4], but also to the size of the wearable orthotic appliance [100]; the one corrective element [4] is about 15cm by 25cm while the chamber [A] has an area of about 1000cm2, therefore, the chamber [A] has a width that is at least times the dimension of the corrective element [4]: paragraph 0051/0053); a plurality of corrective elements (4 – figure 1, there are multiple corrective elements: paragraph 0046), configured to be placed and secured at any of a plurality of continuously-adjustable positions within any chamber of the plurality of chambers (A) (the plurality of chambers [A] has an unbroken loop fastener that [2] that receive and secures the at least one correct element [4] at any position via hook and loop: paragraph 0047/0049).
However, Nilforushan et al. fails to explicitly disclose an assembly made up of a plurality of stitched-together panels of resilient fabric wherein adjacent panels are stitched to provide differential compressive tension against a user's torso when worn, wherein the plurality of chambers are located on the panels stitched under tension to have a higher compressive tension than adjacent panels to stabilize the at least one corrective element in three planes in response to patient movement; and wherein the at least one corrective element is at least one weight.
Ogulnick et al. teaches an analogous assembly (1600 – see annotated figure 2, a double layer of fabric that are compressive, elastic, and stretchable: paragraph 0096) made up of a plurality of stitched-together panels of resilient fabric (see annotated figure 2, the assembly [1600] comprises different panels that are stitched [the fabric layers are stitched at the top of each chamber opening {1620/1625/1635/1640 – see annotated figure 2]: paragraph 0098) wherein adjacent panels are stitched to provide differential compressive tension against a user's torso when worn (see annotated figure 2, the plurality of stitched-together panels provide a gradient compression to the user: paragraph 0096/0098-0099), wherein an analogous plurality of chambers (B - see annotated figure 2, plurality of pockets formed from the fabric layers: paragraph 0096-0098) are located on the panels stitched (see annotated figure 2, the long sleeve compression shirt [1600 - see annotated figure 2] comprises different panels that are stitched [the fabric layers are stitched at the top of each chamber opening {1620/1625/1635/1640 - see annotated figure 1 below}: paragraph 0096/0098) under tension to have a higher compressive tension than adjacent panels to stabilize the at least one corrective element (4) in three planes in response to patient movement (the long sleeve compression shirt [1600] is made of dual layers comprising 4-way stretch yarn that is compressive, elastic and stretchable; as such, the dual layers comprising the 4-way stretch yarn is under tension in order to achieve the desire function of the compression garment, which allows the plurality of chambers [B] to stabilize the correcting element in the chamber [B] while additionally being held compressively against the desired body part of the wearer: paragraph 0017/0085/0096; the term “stabilize” is defined as “to make or hold stable, firm, or steadfast” by https://www.thefreedictionary.com/stabilize).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the assembly of Nilforushan et al. with a plurality stitched-together panels of resilient fabric to provide differential compression as taught by Ogulnick et al. in order to provide a wearable orthotic appliance that has an improved assembly to improve blood circulation, which delivers more oxygen to working muscles and allows the body to eliminate lactic acid and other metabolic waste that causes muscle fatigue (paragraph 0016, Ogulnick et al.).
Furthermore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the plurality of chambers on the panel of Nilforushan et al. with a higher compression tension than adjacent panels to stabilize the at least one corrective element taught by Ogulnick et al. in order to provide a wearable orthotic appliance that has an improved assembly to improve blood circulation and to maintain the corrective element in its respective chamber (paragraph 0016-0017/0085/0096, Ogulnick et al.).
However, Nilforushan et al. in view of Ogulnick et al. fails to disclose wherein the at least one corrective element is at least one weight.
Rao et al. teaches wherein the at least one analogous corrective element is a weight (108a – figure 1, a plurality of compressive inserts that provide resistance when inserted into a pocket; the compressive inserts come in varying weights: paragraph 0007/0029-0030).
The device of Nilforushan et al. and Rao et al. are in the same general field of endeavor and are therefore, considered analogous art; both would be considered appliances that provide therapeutic effects to the user’s body (Nilforushan et al.: paragraph 0003/Rao et al.: paragraph 0005/0006).
Therefore, at the time the invention was made, it would have been well within the skill of an ordinary artisan to substitute one known element for another to obtain predictable results. Substituting the thermal transfer media (4) of Nilforushan et al. with the compressive insert with varying weights 108a) of Rao et al. would have achieved the predictable result of decreasing risk of injury, relieving pain in body parts, and improving flexibility (Nilforushan et al.: paragraph 0003/Rao et al.: paragraph 0006). It would have been obvious to one of ordinary skill in the art to have modified the thermal transfer media of Nilforushan et al. to be a weight of Rao et al. in order to have provided an improved orthotic appliance to facilitate proper posture and joint orientation (paragraph 0005, Rao et al.).
Where a claimed improvement on a device or apparatus is no more than "the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for improvement," the claim is unpatentable under 35 U.S.C. 103(a). Ex Parte Smith, 83 USPQ.2d 1509 (BPAI, 2007) (citing KSR International Co. v. Teleflex Inc., 550 U.S. ___, ___, 82 USPQ2d 1385, 1396 (2007). Accordingly, Applicant claims a combination that only unites old elements with no change in the respective functions of those old elements, and the combination of those elements yields predictable results. KSR International Co. v. Teleflex Inc., 550 U.S. ___, ___, 82 USPQ2d 1385, 1395 (2007).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Nilforushan et al. (US 20080201818 A1) in view of Ogulnick et al. (US 20120078147 A1) in view of Rao et al. (US 20180161617 A1) in view of Schultz (US 20180132543 A1) and in further view of DeWall (US 5007412 A).
Regarding claim 20, Nilforushan et al. discloses a wearable orthotic appliance (100 – figure 1, a garment: paragraph 0046) configured to releasably attach to at least one corrective element (4 – figure 1, a thermal transfer element: paragraph 0046) for correcting neuromuscular imbalances (figure 1, the wearable orthotic applicant [100] is used to prevent or treat injuries and relieve pain: paragraph 0003), comprising: an assembly made up of panels of resilient fabric (1 – figure 1, article of clothing made of any flexible material that is stretchable or breathable such as a blend of nylon, polyester, and spandex: paragraph 0050), the assembly (1) including a plurality of chambers (A – see annotated figure 1, the assembly [1] has a plurality of chambers: paragraph 0049) configured to receive and secure the at least one corrective element (4) at any positions within each of the chambers (A) (the plurality of chambers [A] has an unbroken loop fastener that [2] that receive and secures the at least one correct element [4] at any position via hook and loop: paragraph 0047/0049), each chamber (A) having a width that is at least two times a width of one of the at least one corrective element (4) (figure 1, the chamber [A] are large, not only relative to the size of the corrective element [4], but also to the size of the wearable orthotic appliance [100]; the one corrective element [4] is about 15cm by 25cm while the chamber [A] has an area of about 1000cm2, therefore, the chamber [A] has a width that is at least times the dimension of the corrective element [4]: paragraph 0051/0053); wherein the panels forming the chambers (A) are present on each of: an abdominal region, an upper back region and a lower back region (see annotated figure 1/annotated figure 2, the plurality of chambers [A] are located in the abdominal region, upper back region, and a lower back region; the at least one corrective element [4] is stabilized via the hook and loop fasteners: paragraph 0047/0049); a plurality of slits (figure 1, there are openings that are slits: paragraph 0013-0014).
However, Nilforushan et al. fails to disclose an assembly made up of a plurality of stitched-together panels of resilient fabric wherein adjacent panels are stitched to provide differential compressive tension against a user's torso when worn; wherein the panels forming the chambers are pre-tensioned to have a higher compressive tension and stiffness than adjacent panels to stabilize the at least one corrective element in three planes in response to patient movement; wherein the at least one corrective element is at least one weight; a plurality of slits in the stitched-together panels configured to provide access for an end of one or more straps into the chambers of the panels; a bottom panel configured to fold over an opening along a bottom of the chamber on the lower back region to increase compression over the wearer's lower torso; and a plurality of straps having ends configured to be secured within the chambers.
Ogulnick et al. teaches an analogous assembly (1600 – see annotated figure 2, a double layer of fabric that are compressive, elastic, and stretchable: paragraph 0096) made up of a plurality of stitched-together panels of resilient fabric (see annotated figure 2, the assembly [1600] comprises different panels that are stitched [the fabric layers are stitched at the top of each chamber opening {1620/1625/1635/1640 – see annotated figure 2]: paragraph 0098) wherein adjacent panels are stitched to provide differential compressive tension against a user's torso when worn (see annotated figure 2, the plurality of stitched-together panels provides gradient compression to the user: paragraph 0096/0098-0099); wherein the panels forming the analogous chambers (B - see annotated figure 2, plurality of pockets formed from the fabric layers: paragraph 0096-0098) are pre-tensioned to have a higher compressive tension and stiffness than adjacent panels to stabilize the at least one corrective element (4) in three planes in response to patient movement (the long sleeve compression shirt [1600] is made of dual layers comprising 4-way stretch yarn that is compressive, elastic and stretchable; as such, during assembly, it would have been inherent that the dual layers comprising the 4-way stretch yarn was under tension in order to achieve the desire function of the compression garment, which allows the chambers [A] to hold/stabilize the correcting element in the chamber while additionally being held compressively against the desired body part of the wearer: paragraph 0017/0085/0096; the term “stabilize” is defined as “to make or hold stable, firm, or steadfast” by https://www.thefreedictionary.com/stabilize).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the assembly of Nilforushan et al. with a plurality stitched-together panels of resilient fabric to provide differential compression as taught by Ogulnick et al. in order to provide a wearable orthotic appliance that has an improved assembly to improve blood circulation, which delivers more oxygen to working muscles and allows the body to eliminate lactic acid and other metabolic waste that causes muscle fatigue (paragraph 0016, Ogulnick et al.).
Furthermore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the plurality of chambers on the panel of Nilforushan et al. to be pretensioned and have a higher compression tension and stiffness than adjacent panels to stabilize the at least one corrective element taught by Ogulnick et al. in order to provide a wearable orthotic appliance that has an improved assembly to improve blood circulation and to maintain the corrective element in its respective chamber (paragraph 0016-0017/0085/0096, Ogulnick et al.).
However, Nilforushan et al. in view of Ogulnick et al. fails to disclose wherein the at least one corrective element is at least one weight; a plurality of slits in the stitched-together panels configured to provide access for an end of one or more straps into the chambers of the panels; a bottom panel configured to fold over an opening along a bottom of the chamber on the lower back region to increase compression over the wearer's lower torso; and a plurality of straps having ends configured to be secured within the chambers.
Rao et al. teaches wherein the at least one analogous corrective element is at least one weight (108a – figure 1, a plurality of compressive inserts that provide resistance when inserted into a pocket; the compressive inserts come in varying weights: paragraph 0007/0029-0030).
The device of Nilforushan et al. and Rao et al. are in the same general field of endeavor and are therefore, considered analogous art; both would be considered appliances that provide therapeutic effect to the user’s body (Nilforushan et al.: paragraph 0003/Rao et al.: paragraph 0005/0006).
Therefore, at the time the invention was made, it would have been well within the skill of an ordinary artisan to substitute one known element for another to obtain predictable results. Substituting the thermal transfer media (4) of Nilforushan et al. with the compressive insert with varying weights 108a) of Rao et al. would have achieved the predictable result of decreasing risk of injury, relieving pain in body parts, and improving flexibility (Nilforushan et al.: paragraph 0003/Rao et al.: paragraph 0006). It would have been obvious to one of ordinary skill in the art to have modified the thermal transfer media of Nilforushan et al. to be a weight of Rao et al. in order to have provided an improved orthotic appliance to facilitate proper posture and joint orientation (paragraph 0005, Rao et al.).
Where a claimed improvement on a device or apparatus is no more than "the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for improvement," the claim is unpatentable under 35 U.S.C. 103(a). Ex Parte Smith, 83 USPQ.2d 1509 (BPAI, 2007) (citing KSR International Co. v. Teleflex Inc., 550 U.S. ___, ___, 82 USPQ2d 1385, 1396 (2007). Accordingly, Applicant claims a combination that only unites old elements with no change in the respective functions of those old elements, and the combination of those elements yields predictable results. KSR International Co. v. Teleflex Inc., 550 U.S. ___, ___, 82 USPQ2d 1385, 1395 (2007).
However, Nilforushan et al. in view of Ogulnick et al. and in further view of Rao et al. fails to disclose a plurality of slits in the stitched-together panels configured to provide access for an end of one or more straps into the chambers of the panels; a bottom panel configured to fold over an opening along a bottom of the chamber on the lower back region to increase compression over the wearer's lower torso; and a plurality of straps having ends configured to be secured within the chambers.
Schultz teaches an analogous plurality of slits (H - see annotated figure 5, a plurality of slits) in the analogous stitched-together panels (98/52 - figure 2a, the slits [H] are within these stitched-together panels: paragraph 0051) configured to provide access for an end of one or more straps into the chambers of the panels (I - see annotated figure 5, the slits [H] create an opening that leads into a chamber, which is configured to receive the end of the straps [96 - figure 1a/2a, end of straps]: paragraph 0051); a bottom panel (136 - figure 4, a bottom panel) configured to fold over to increase compression over the wearer's lower torso (the bottom panel [134] folds towards the user’s lower torso and increases compression: paragraph 0056); and a plurality of straps (figure 2a, there are two straps) having ends configured to be secured within the analogous chambers (I) (the ends of the strap [96] are stitched [64 - figure 2a, horizontal stitches] to ensure that the ends of the strap [96] are secured within the chambers [I]: paragraph 0051).
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Annotated Figure 5: slits and chamber for straps
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the plurality of slits and chambers of Nilforushan et al. in view of Ogulnick et al. and in further view o