DETAILED ACTION
Notice of Reply
This Office Action is responsive to the amendments and/or arguments filed 2/4/26. The previous ground(s) of rejection is/are withdrawn. The following new and/or reiterated ground(s) of rejection is/are set forth hereinbelow.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 3-18 are rejected under 35 U.S.C. 102(a)(1) based upon a public use or sale or other public availability of the invention. The internet website www.valdperformance.com/forceframe (see accompanying PTO-892, NPL citation U: “Website: www.ValdPerformance.com/ForceFrame, available 08/12/2020, accessed 10/27/2025 via internet archive wayback machine (https://web.archive.org/web/20200812114138/https://www.valdperformance.com/forceframe/).”, and hereinafter Vald) anticipatorily discloses (as evidenced in detail below) the claimed invention publicly and/or for public use or sale before the effective filing date on the instant invention. The Vald reference is materially similar in nature to 6/28/22 IDS NPL citation 14, but includes further detail. The examiner respectfully notes the internet archive wayback machine website for www.valdperformance.com/forceframe includes at least six captures prior to the effective filing date. Although merely two have been provided as evidence to rely upon, the others further include videos of the muscle user adjustable and sensing force frame product in use, including for example at least a working smart muscle testing device with multiple adjustable arms, multiple rotatable sensing pads, and including multiple user interfaces.
For claim 1, Vald discloses a muscle testing device ((see pages 1-15 & Figures copied/annotated below), comprising:
a frame (see pages 1-15 & Figures copied/annotated below) comprising a central frame element (see pages 1-15 & Figures copied/annotated below) and two arms (see pages 1-15 & Figures copied/annotated below) extending from the central frame element, wherein a distance between the two arms is adjustable (see pages 1-15 & Figures copied/annotated below);
a first sensing pad (see pages 1-15 & Figures copied/annotated below) (a) configured to be secured to a first arm of the two arms (see pages 1-15 & Figures copied/annotated below), (b) configured to measure a force or pressure applied to a sensing surface thereof (see pages 1-15 & Figures copied/annotated below), and (c) being moveable between a first position about the first arm and a second position about the first arm via rotation of a first pad bracket about the first arm (see pages 1-15 & Figures copied/annotated below), wherein the first pad bracket is configured to couple the first sensing pad to the first arm about the first arm (see pages 1-15 & Figures copied/annotated below); and
a second pad (see pages 1-15 & Figures copied/annotated below) (a) configured to be secured to a second arm of the two arms (see pages 1-15 & Figures copied/annotated below), (b) having a pad surface configured for receiving a force or pressure (see pages 1-15 & Figures copied/annotated below), and (c) being moveable between a first position about the second arm and a second position about the second arm via rotation of a second pad bracket about the second arm (see pages 1-15 & Figures copied/annotated below), wherein the second pad bracket is configured to couple the second pad to the second arm (see pages 1-15 & Figures copied/annotated below),
wherein when the first sensing pad is in the first position about the first arm and the second pad is in the first position about the second arm, the sensing surface and the pad surface are facing each other and when the first sensing pad is in the second position about the first arm and the second pad is in the second position about the second arm, the sensing surface and the pad surface are facing away from one another (see pages 1-15 & Figures copied/annotated below).
For claim 2, Vald discloses the muscle testing device of claim 1, wherein when the first sensing pad is secured to the first arm in the first position, the sensing surface of the first sensing pad faces a second arm of the two arms and when the first sensing pad is secured to the first arm in the second position, the sensing surface of the first sensing pad faces away from the second arm (see pages 1-15 & Figures copied/annotated below).
For claim 4, Vald discloses the muscle testing device of claim 1, wherein the first sensing pad comprises a cradle and a sensor device (see pages 1-15 & Figures copied/annotated below), the cradle is coupled to the first arm by the first pad bracket (see pages 1-15 & Figures copied/annotated below), and the cradle is configured to couple the sensor device to the first arm, the sensor device comprising the sensing surface (see pages 1-15 & Figures copied/annotated below).
For claim 5, Vald discloses the muscle testing device of claim 4, wherein the first pad bracket is configured to couple the cradle to the first arm at a selected position along the first arm such that the first arm has a selected effective length (see pages 1-15 & Figures copied/annotated below).
For claim 6, Vald discloses the muscle testing device of claim 4, wherein one of:
the cradle and the first pad bracket are configured such that the cradle is rotatable with respect to the first pad bracket, while the cradle is coupled to the first pad bracket, about an axis that is transverse to a direction substantially parallel to the first arm (see pages 1-15 & Figures copied/annotated below).
For claim 7, Vald discloses the muscle testing device of claim 4, wherein the sensor device is a myometer (see pages 1-15 & Figures copied/annotated below).
For claim 8, Vald discloses the muscle testing device of claim 1, further comprising at least one user interface configured to provide human perceivable output of a muscle strength measurement (see pages 1-15 & Figures copied/annotated below).
For claim 9, Vald discloses the muscle testing device of claim 8, wherein the at least one user interface is integrated into the first sensing pad (see pages 1-15 & Figures copied/annotated below).
For claim 10, Vald discloses the muscle testing device of claim 1, further comprising a pressure and/or force sensor integrated into the first sensing pad and comprising the sensing surface (see pages 1-15 & Figures copied/annotated below), the pressure and/or force sensor configured to measure pressure and/or force applied to the sensing surface thereof (see pages 1-15 & Figures copied/annotated below).
For claim 11, Vald discloses the muscle testing device of claim 1, wherein the first arm and the second arm are respectively moveable between respective in-use positions where a respective arm of the first arm and the second arm extends in a direction that is transverse to a direction substantially parallel to the central frame element and respective stowed positions where the respective arm extends in a direction that is substantially parallel to the central frame element (see pages 1-15 & Figures copied/annotated below).
For claim 12, Vald discloses the muscle testing device of claim 1, wherein the second pad is one of a second sensing pad or a support pad (see pages 1-15 & Figures copied/annotated below).
For claim 13, Vald discloses a muscle testing kit (see pages 1-15 & Figures copied/annotated below), comprising:
at least one of a muscle testing device or a muscle testing device frame (see pages 1-15 & Figures copied/annotated below), wherein the muscle testing device comprises:
a frame (see pages 1-15 & Figures copied/annotated below) comprising a central frame element (see pages 1-15 & Figures copied/annotated below) and two arms (see pages 1-15 & Figures copied/annotated below) extending from the central frame element, wherein a distance between the two arms is adjustable( see pages 1-15 & Figures copied/annotated below);
a first sensing pad (see pages 1-15 & Figures copied/annotated below) (a) configured to be secured to a first arm of the two arms (see pages 1-15 & Figures copied/annotated below), (b) configured to measure a force or pressure applied to a sensing surface thereof (see pages 1-15 & Figures copied/annotated below), and (c) being moveable between a first position about the first arm and a second position about the first arm via rotation of a first pad bracket about the first arm (see pages 1-15 & Figures copied/annotated below), wherein the first pad bracket is configured to couple the first sensing pad to the first arm (see pages 1-15 & Figures copied/annotated below); and
a second pad (see pages 1-15 & Figures copied/annotated below) (a) configured to be secured to a second arm of the two arms (see pages 1-15 & Figures copied/annotated below), (b) having a pad surface configured for receiving a force or pressure (see pages 1-15 & Figures copied/annotated below), and (c) being moveable between a first position about the second arm and a second position about the second arm via rotation of a second pad bracket about the second arm (see pages 1-15 & Figures copied/annotated below), wherein the second pad bracket is configured to couple the second pad to the second arm (see pages 1-15 & Figures copied/annotated below),
wherein when the first sensing pad is in the first position about the first arm and the second pad is in the first position about the second arm, the sensing surface and the pad surface are facing each other (see pages 1-15 & Figures copied/annotated below) and when the first sensing pad is in the second position about the first arm and the second pad is in the second position about the second arm, the sensing surface and the pad surface are facing away from one another (see pages 1-15 & Figures copied/annotated below).
For claim 14, Vald discloses the muscle testing kit of claim 13 further comprising a stand (see pages 1-15 & Figures copied/annotated below), the at least one of the muscle testing device or the muscle testing device frame configured to be coupled to the stand and the stand configured to maintain the at least one of the muscle testing device or the muscle testing device frame in one or more designated configurations when the at least one of the muscle testing device or the muscle testing device frame is coupled to the stand (see pages 1-15 & Figures copied/annotated below).
For claim 15, Vald discloses the muscle testing kit of claim 13 further comprising at least one of an alignment mat illustrating positioning of one or more limbs of a patient for one or more muscle testing measurements, a table or plinth attachment configured to secure the at least one of the muscle testing device or the muscle testing device frame to a table or plinth, or a grip attachment configured to measure grip strength (see pages 1-15 & Figures copied/annotated below).
For claim 16, Vald discloses the muscle testing kit of claim 15, wherein the alignment mat is a jig board configured to have the at least one of the muscle testing device or the muscle testing device frame coupled thereto in one or more designated configurations for the one or more muscle testing measurements (see pages 1-15 & Figures copied/annotated below).
For claim 17, Vald discloses the muscle testing kit of claim 13 further comprising one or more support pads configured to be selectively secured to the at least one of the muscle testing device or the muscle testing device frame and to be positioned against a patient's body to properly position the patient's body for one or more muscle testing measurements (see pages 1-15 & Figures copied/annotated below).
For claim 18, Vald discloses the muscle testing kit of claim 13, wherein the muscle testing kit is configured to enable muscle testing measurements of one or more of ankle dorsiflexion, ankle plantarflexion, elbow flexion, elbow extension, functional elbow flexion, functional elbow extension, knee flexion, knee extension, hip abduction, hip adduction, hip extension supine, hip abduction clamshell, shoulder abduction, shoulder adduction, shoulder horizontal adduction, shoulder internal rotation, shoulder external rotation, grip strength, neck lateral flexion, neck extension, and neck forward flexion (see pages 1-15 & Figures copied/annotated below).
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Response to Arguments
Applicant's arguments filed 2/4/26 have been fully considered but they are not persuasive. Applicant argues the 102 rejection of the claims, as reiterated hereinabove, specifically arguing:
Vald fails to teach or suggest a muscle testing device comprising a frame comprising a central frame element and two arms extending from the central frame element; a first sensing pad being moveable between a first position about the first arm and a second position about the first arm via rotation of a first pad bracket about the first arm, wherein the first pad bracket is configured to couple the first sensing pad to the first arm; and a second pad being moveable between a first position about the second arm and a second position about the second arm via rotation of a second pad bracket about the second arm, wherein when the first sensing pad is in the first position about the first arm and the second pad is in the first position about the second arm, the sensing surface and the pad surface are facing each other and when the first sensing pad is in the second position about the first arm and the second pad is in the second position about the second arm, the sensing surface and the pad surface are facing away from one another. In response the Examiner respectfully notes the following:
Vald is silent with respect to the pin restraints that attach the central bar to which the myometers are attached being rotatable about the arms. Indeed, in none of the illustrations of Vald are the pin restraints illustrated as being rotated or as having been rotated around the arms. The central bar, to which the myometers are attached and that extends between the two arms and that is coupled to the arms via respective pin restraints prevents rotation of the pin restraints around the respective arms. Therefore, the frame of Vald is not capable of performing the recited function.
The Office Action appears to depend on the of Vald that the myometer pads can be articulated from the cradle in 15 degree increments as teaching rotation of the pads. However, this articulation does not amount to a rotation of the pads about the arms. Moreover, as illustrated, this articulation does not enable the pads to be rotated around the arms such that the pads face each other in a first position and then can be rotated about the respective arms so the pads face away from each in a second position.
In response to Applicant’s arguments, the Examiner respectfully disagrees and notes the following:
Vald explicitly discloses movability and rotation of the two outer sensing pads with respect to the first and second side arms via bracket rotation, especially as broadly as structurally and/or functionally claimed.
As one example, the bottom two Figures of Vald copied show above the sensing pads rotated 90 degrees via corresponding brackets into a horizontal plane parallel to the floor mat and perpendicular to the supportive arm such that the pads face away. See knee and neck test above. This moveability and rotation occur within the planes between the first and second arms. In this instance the pads rotate away from each other when both are facing towards the ground. These configurations require rotation and movement of the sensing pads via their brackets about the arms as one of the configurable means for achieving the 35+ different positions that Vald’s sensing pads of the muscle measuring device may assume.
In another example, the entire crossbar of Vald is configured to rotate about the longitudinal axis therethrough, moving and rotating the sensing pads about their respective side arms in concert with the rotation. See shoulder testing Figure above. This moveability and rotation occurs within planes normal to those parallel planes between the first and second arms These configurations require rotation and movement of the sensing pads via their brackets about the arms as one of the configurable means for achieving the 35+ different positions that Vald’s sensing pads of the muscle measuring device may assume.
In a final example, the sensing pads move and rotate about in both manners, wherein the sensing pads via their corresponding brackets and the rotatable crossbar are moveable and rotatable both inside and out of the plane defined by the first and second arms and away from facing each other. These configurations require rotation and movement of the sensing pads via their brackets about the arms as one of the configurable means for achieving the 35+ different positions that Vald’s sensing pads of the muscle measuring device may assume.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., “pin restraints”) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In response to applicant's argument that Vald does not disclose first or second sensing pads “being moveable” between respective first and second positions on respective first and second arms “via rotation” of the pad about the arm, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In the instant case, Vald not only explicitly discloses the claimed intended use, as set forth hereinabove and particularly as broadly as structurally and/or functionally claimed, but also may reasonably be considered either the structural equivalent of the claimed muscle testing device and/or more than fully or inherently capable of the intended moving and rotation of the sensing pads.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jeffrey G. Hoekstra whose telephone number is (571)272-7232. The examiner can normally be reached Monday through Thursday from 5am-3pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles A. Marmor II can be reached at (571)272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Jeffrey G. Hoekstra
Primary Examiner
Art Unit 3791
/JEFFREY G. HOEKSTRA/Primary Examiner, Art Unit 3791