DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application claims priority to an application filed before March 16, 2013, and is being examined under pre-AIA first to invent provisions.
Priority
Application 17/876,965 is a continuation of 16/999,915, filed on 8/21/2020, now US Patent 11,428,505, which is a divisional of application 16/027,045 filed on 07/03/2018, now US Patent 10,782,104, which is a continuation of application 13/720,492 filed 12/19/2012 now US Patent 10,145,656. Accordingly application 17/876,965 has priority to 12/19/2012.
Continued Examination Under 37 CFR 1.114
A request for continued examination (RCE) under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on January 26, 2026 has been entered.
Status of Claims
This action is in reply to the RCE and amendment filed on January 26, 2026. Claims 1-20 are pending, and claims 1, 13-16, and 18-20 have been amended.
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 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/667,829 in view of art of record in the attached notice of references cited.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-15 are rejected under 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claims contain 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 inventors, at the time the application was filed, had possession of the claimed invention.
Specifically, the limitations:
“a plan of care comprising individualized behavioral and safety protocols for the special individual” found in claim 1;
“wherein the first edge of the pad and the first handle are adjacent the second edge of the pad and the second handle; wherein the first edge of the pad and the first handle are adjacent the fourth edge of the pad and the fourth handle; wherein the first edge of the pad and the first handle are adjacent the third edge of the pad and the third handle” found in claim 14 recite NEW MATTER.
With regard to limitation 1), the specification states at ¶70, “During the response to an aggressive episode, the user may speak with the S.I. only if it is determined that is likely to be helpful. This determination may have been pre-established in writing in the behavioral strategies for the plan of care for the S.I. If the user does speak with the S.I., it may be brief and have a positive intent.” However, the specification does not describe that the plan of care comprises individualized safety protocols. In addition, the determination is established in writing. There is no description of obtaining individualized behavioral and safety protocols for the special individual using an electronic device. Therefore, the specification and drawings do not provide a written description supporting this limitation.
With regard to claim 14, a review the specification, drawings, and claims as originally filed reveal no description of a first edge with handle that is adjacent to each of second, third, and fourth edges with associated handles. Instead, a first edge is described and shown in the drawing as being adjacent to at most two edges of the pad with corresponding handles (e.g., on either side of the first edge), but not adjacent to three edges with handles. Moreover, it is believed that such a configuration is not physically possible. Therefore, the specification and drawings do not provide a written description supporting this limitation.
Claims 2-15 depend from a rejected base claim, and therefore also lack written description based on their dependency.
As a result, claims 1-15 contain subject matter which lacks adequate written description, and for at least these reasons, claims 1-15 are found to fail the written description requirement.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 12, 14, 15, 19, and 20 are rejected und are 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention.
In re claim 12, the claim recites the limitation “the plurality of handles” at line 1. There is insufficient antecedent basis for this limitation in the claim. It is believed this claim should depend from claim 11.
Claim 14 recites “wherein the first edge of the pad and the first handle are adjacent the second edge of the pad and the second handle; wherein the first edge of the pad and the first handle are adjacent the fourth edge of the pad and the fourth handle; wherein the first edge of the pad and the first handle are adjacent the third edge of the pad and the third handle.” This language is unclear and/or confusing, as it appears from the drawings and description that any edge with corresponding handle of the blocking pad can at most be adjacent to only two other edges with handles (and not three edges as claimed). Moreover, one edge cannot be physically adjacent to three edges. Therefore, the claim is unclear and of indeterminant scope. For purposes of the application of art to the claims, the third edge and handle with be interpreted as being opposite the first edge and handle, which is consistent with the specification and drawings.
In re claims 15 and 19, the claims recite the limitation “the attendant” at line 7. There is insufficient antecedent basis for this limitation in the claim. It is believed this should read --the user--.
Claim 20 recites “a plurality of interior handles” and “a plurality of exterior handles.” However, the claim does not include any spatial references or relationships to other elements of the claim with which to determine what constitutes “interior” vs. “exterior.” As a result, one cannot determine the configuration of the handles as they relate to each other and/or other aspects of the claimed blocking pad. Therefore, the claims are unclear and of indeterminant scope.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-12 and 16, 17, and 20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
A patent may be obtained for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. The Supreme Court has held that this provision contains an important implicit exception: laws of nature, natural phenomena, and abstract ideas are not patentable. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014); Gottschalk v. Benson, 409 U.S. 63, 67 (1972) (“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”). Notwithstanding that a law of nature or an abstract idea, by itself, is not patentable, the application of these concepts may be deserving of patent protection. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293-94 (2012). In Mayo, the Court stated that “to transform an unpatentable law of nature into a patent eligible application of such a law, one must do more than simply state the law of nature while adding the words ‘apply it.” Mayo, 132 S. Ct. at 1294 (citation omitted).
In Alice, the Supreme Court reaffirmed the framework set forth previously in Mayo “for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of these concepts.” Alice, 134 S. Ct. at 2355. The first step in the analysis is to “determine whether the claims at issue are directed to one of those patent-ineligible concepts.” Id. If the claims are directed to a patent-ineligible concept, then the second step in the analysis is to consider the elements of the claims “individually and ‘as an ordered combination” to determine whether there are additional elements that “transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 132 S. Ct. at 1298, 1297). In other words, the second step is to “search for an ‘inventive concept’-i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Id. (brackets in original) (quoting Mayo, 132 S. Ct. at 1294). The prohibition against patenting an abstract idea “cannot be circumvented by attempting to limit the use of the formula to a particular technological environment or adding insignificant post-solution activity.” Bilski v. Kappos, 561 U.S. 593, 610-11 (2010) (citation and internal quotation marks omitted). The Court in Alice noted that “[s]imply appending conventional steps, specified at a high level of generality,’ was not ‘enough’ [in Mayo] to supply an ‘inventive concept.” Alice, 134 S. Ct. at 2357 (quoting Mayo, 132 S. Ct. at 1300, 1297, 1294).
Examiners must perform a Two-Part Analysis for Judicial Exceptions. In Step 1, it must be determined whether the claimed invention is directed to a process, machine, manufacture or composition of matter.
Claims 1-12 and 16, 17, and 20 are directed to methods. As such, the claimed invention falls into the broad categories of invention. However, even claims that fall within one of the four subject matter categories may nevertheless be ineligible if they encompass laws of nature, physical phenomena, or abstract ideas. See Diamond v. Chakrabarty, 447 U.S. at 309.
In Step 2A, it must be determined whether the claimed invention is ‘directed to’ a judicially recognized exception. According to the specification, a “humane and care centric method provides a progressive set of treatment tactics aimed at curtailing the aggressive and self-injuring behavior and honors the patients', students', prisoners' individual rights and is focused on helping the individual overcome the aggression episode whether directed at themselves or others.” (See, e.g., par. 20).
Independent claim 1 recites the following (with emphasis):
A method of providing care to a special individual during an emergency safety situation, the method comprising:
obtaining, by an electronic device, a plan of care comprising individualized behavioral and safety protocols for the special individual;
providing a blocking pad to a user providing care to the special individual;
providing instructions through the electronic device to the user providing care to the special individual before or during the emergency safety situation wherein the instructions instruct the user on using the blocking pad with the special individual during the emergency safety situation in which the special individual exhibits aggressive behavior in a manner such that the special individual is not restrained during the emergency safety situation and the special individual is not secluded during the emergency safety situation; using by the user the blocking pad during the emergency situation according to the instructions to protect the user and the special individual during the emergency situation without restraining the special individual and without secluding the special individual;
communicating by the user with the special individual during the emergency situation according to the plan of care; and
providing feedback to at least the user addressing the emergency situation through at least the electronic device to address emergency situation and actions taken by the user utilizing the blocking pad.
The underlined portions of claim 1 generally encompass the abstract idea. Claims 16 and 20 recite substantially similar recitations to that of claim 1, but additionally include a generic description of the blocking pad. Claims 2-12 and 17 further define the abstract idea such as by defining additional instructions. Under prong 2, the claimed invention encompasses an abstract idea in the form of certain methods of organizing human activity. The claims recite a method of providing care to an individual. This is a method of organizing human activity because it is drawn to a method of managing personal behavior or relationships or interactions between people, (including social activities, teaching, and following rules or instructions). For example, managing the personal behavior or interactions between a client (e.g., student, individual with special needs, disabled person, and prisoner) and a user (e.g., a caregiver, a teacher, a public official, a medical professional, and professional staff).
The claims recite instructing a user how to provide care and use a blocking pad, using the blocking pad by the user, and communicating by the user with an individual, and, therefore, the claims are directed to the abstract concept sub-grouping of "managing personal behavior or relationships or interactions between people" for example, the behavior and/or interaction of a teacher and student or following instructions. Therefore, under prong 2, the claimed invention encompasses an abstract idea in the form of certain methods of organizing human activity.
Under prong 2, the instant claims do not integrate the abstract idea into a practical application. In other words, the claims do not (1) improve the functioning of a computer or other technology, (2) effect a particular treatment or prophylaxis for a disease or medical condition (3) are not applied with any particular machine, (4) do not effect a transformation of a particular article to a different state, and (5) are not applied in any meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim, as a whole, is more than a drafting effort designed to monopolize the exception, the claims are directed to the judicially recognized exception of an abstract idea. See MPEP §§ 2106.05(a)-(c), (e)-(h).
Furthermore, the claims do not include additional elements that either alone or in combination are sufficient to claim a practical application. To the extent that providing a care plan, instructions provided by an electronic device, including display or audio, and a blocking pad are claimed, these elements are directed to insignificant extra-solution activity to the judicial exception to facilitate the abstract concept of managing personal behavior or relationships or interactions between the user and the individual and do no more than generally link the use of a judicial exception to a particular environment or field of use. Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. Therefore, the claims are directed to an abstract idea.
Step 2B requires that if the claim encompasses a judicially recognized exception, it must be determined whether the claimed invention recites additional elements that amount to significantly more than the judicial exception. Here, the elements of a using a generic (i.e., not specific) blocking pad and electronic device are not sufficient to direct the claimed invention to significantly more.
These elements amount to generic, well-understood and conventional components. The use of electronic devices to provide information such as instructions and using a blocking pad to prevent injury to a user (see art of record) represents well-understood, routine, conventional activity previously known. As demonstrated by Berkheimer v. HP, such recitation cannot save an otherwise ineligible claim under §101.
Considered as an ordered combination, only generic components are present. Viewed as a whole, the claims simply recite the concept of managing care of an individual by a user. The claims do not, for example, purport to solve a technical problem, nor do they effect an improvement in any other technology or technical field. Instead, the claims at issue amount to nothing significantly more than provide instruction to apply the abstract idea using some generic (i.e., not specific) equipment recited at a high level of generality. Under relevant court precedents, that is not enough to transform an abstract idea into a patent-eligible invention.
As a result, claims 1-12 and 16, 17, and 20 are not patent eligible.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to pre-AIA 35 U.S.C. 102 and 103 (or as subject to AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis 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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 1 and 16 are rejected under 35 U.S.C. 103(a) as being unpatentable over Publication titled “The Effects of an Action Plan, Staff Training, Management Support and Monitoring on Restraint Use and Costs of Work-Related Injuries” by Sanders (“Sanders”) in view of US Publication No. 2005/0131740 by Massenzio et al. (“Massenzio”).
In re claim 1, Sanders discloses a method of providing care to a special individual during an emergency safety situation [See Background], the method comprising: obtaining a plan of care comprising behavioral and safety protocols for the special individual [p. 217 describes developing action plan for special individuals which would apply to individual at the facility]; providing a blocking pad to a user providing care to the special individual [¶ bridging pp. 217-218 describe use of a blocking pad, e.g., a umpires shield]; providing instructions using an electronic device to the user providing care to the special individual before or during the emergency safety situation wherein the instructions instruct the user on using the blocking pad with the special individual during the emergency safety situation in which the special individual exhibits aggressive behavior in a manner such that the special individual is not restrained during the emergency safety situation and the special individual is not secluded during the emergency safety situation [p. 217, second col., describes training (i.e., instructions) via PowerPoint (an electronic device) before an emergence situation for using a blocking pad and not restraining an individual with special needs, using a blocking pad when individual is aggressive (deflecting hits, kicks, slaps) and supporting and comforting a client experiencing emotional distress. In addition, using the blocking resulted in not restraining the individual or secluding the individual]; using by the user the blocking pad during the emergency situation according to the instructions to protect the user and the special individual during the emergency situation without restraining the special individual and without secluding the special individual [p. 217 second col. describes actual use of the blocking pad and not restraining an individual with special needs, using a blocking pad when individual is aggressive (deflecting hits, kicks, slaps) and supporting and comforting a client experiencing emotional distress. In addition, using the blocking resulted in not restraining the individual or secluding the individual]; and communicating by the user with the special individual during the emergency situation according to the plan of care [p. 217 describes supporting and comforting (communication) a client experiencing emotional distress according to the action plan].
Sanders provides individual, facility-specific plans and reviewing and recording feedback for each incident to address emergency situation and actions taken by the user utilizing the blocking pad. However, Sanders does not explicitly teach a care plan with individualized protocol for a particular individual with special needs and obtaining the plan with an electronic device. In addition, Sanders does not explicitly teach providing feedback through at least the electronic device. Massenzio teaches providing an individualized treatment plan for special needs individuals using an electronic device to obtain the plan and provide instructions/feedback to address an emergency situation [¶¶8, 62, 65, 75, 82, 86, 88, among others, describes obtaining, receiving, and updating patent specific instructions regarding the patients care to a caregiver using an electronic field device. Using the field device 202 instructions regarding a patient care plan can be displayed and the caregiver can enter information regarding the patient. The care plan includes specific instructions on the service to be provided, including (OASIS) codes, patient medical history (to the extent deemed appropriate by the agency) and detailed guidance on problem diagnosis and response. Health care provider can use administration system to send specific instructions to caregivers as to how to deal with each patient in the event of an emergency. A patient history module provides the caregiver with background information for each patient should the caregiver require a review of what has been done in the past. A clinical history module is a review tool that assists the caregiver and their supervisor in making diagnosis of conditions that may change over time and then planning an effective course of treatment].
Sanders and Massenzio are both considered to be analogous to the claimed invention because they are in the same field of caring for special needs individuals. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the care of special needs individuals of Sanders and include an individualized care plan including providing instructions to a caregiver using an electronic device, as taught by Massenzio, in order to improve patient care, e.g., by providing individual plans for a user in accordance with an individual’s physician even in remote locations that are up to date and to reduce waste (e.g., by eliminating paper instructions/records).
In re claim 16, Sanders discloses a method of providing care to a special individual during an emergency safety situation [See Background], the method comprising: providing a blocking pad to a user providing care to the special individual [¶ bridging pp. 217-218 describe use of a blocking pad, e.g., a umpires shield]; providing instructions, via an electronic device, to the user providing care to the special individual during the emergency safety situation wherein the instructions instruct the user on using the blocking pad with the special individual before or during the emergency safety situation in which the special individual exhibits aggressive behavior in a manner such that the special individual is not restrained during the emergency safety situation and the special individual is not secluded during the emergency safety situation [p. 217, second col., describes training (i.e., instructions) via PowerPoint (an electronic device) for using a blocking pad and not restraining an individual with special needs, using a blocking pad when individual is aggressive (deflecting hits, kicks, slaps) and supporting and comforting a client experiencing emotional distress. In addition, using the blocking resulted in not restraining the individual or secluding the individual]; using by the user the blocking pad during the emergency situation according to the instructions to protect the user and the special individual during the emergency situation without restraining the special individual and without secluding the special individual [p. 217 second col. describes actual use of the blocking pad and not restraining an individual with special needs, using a blocking pad when individual is aggressive (deflecting hits, kicks, slaps) and supporting and comforting a client experiencing emotional distress. In addition, using the blocking resulted in not restraining the individual or secluding the individual]; and communicating by the user with the special individual during the emergency situation to address at least one of self-fulfillment needs, psychological needs, and basic needs of the special individual [p. 217 describes supporting and comforting (communication) a client experiencing emotional distress according to the action plan. Supporting and comforting would address basic needs of an induvial experiencing stress].
Sanders provides individual, facility-specific plans and reviewing and recording feedback for each incident to address emergency situation and actions taken by the user utilizing the blocking pad. However, Sanders does not explicitly teach providing feedback through at least the electronic device. Massenzio providing feedback and instructions to a care giver of a special individual through an electronic device to address emergency situation and actions taken by care giver. [¶¶8, 62, 65, 75, 82, 86, 88, among others, describes obtaining, receiving, and updating patent specific instructions regarding the patients care to a caregiver using an electronic field device. Using the field device 202 instructions regarding a patient care plan can be displayed and the caregiver can enter information regarding the patient. The care plan includes specific instructions on the service to be provided, including (OASIS) codes, patient medical history (to the extent deemed appropriate by the agency) and detailed guidance on problem diagnosis and response. Health care provider can use administration system to send specific instructions to caregivers as to how to deal with each patient in the event of an emergency. A patient history module provides the caregiver with background information for each patient should the caregiver require a review of what has been done in the past. A clinical history module is a review tool that assists the caregiver and their supervisor in making diagnosis of conditions that may change over time and then planning an effective course of treatment].
Sanders and Massenzio are both considered to be analogous to the claimed invention because they are in the same field of caring for special needs individuals. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the care of special needs individuals to provide feedback and instructions to a care giver of a special individual (user of the blocking pad) through an electronic device to address emergency situation and actions taken by care giver, as taught by Massenzio, in order to improve patient care, e.g., by providing individualized instructions and update plans of care for an individual that are up to date even in remote locations and to reduce waste (e.g., by eliminating paper instructions/records).
Claim 2 is rejected under 35 U.S.C. 103(a) as being unpatentable over Sanders in view of Massenzio, and further in view of US Patent No. 6,491,038 to McQueen (“McQueen”).
In re claim 2, Sanders discloses instructions for holding the blocking pad. However, Sanders lacks, but McQueen teaches hold the blocking pad slightly away from a body of the user with bent elbows utilizing two or more handles of the blocking pad elbows [Fig. 8 shows individual holding blocking pad away from body with bent elbows].
Sanders and McQueen are both considered to be analogous to the claimed invention because they describe the user of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the instructions in use of a blocking pad of Sanders to hold the pad away from the body with bent elbows, as taught by McQueen, in order to absorb energy from an impact and/or prevent injury to the user when the pad is impacted.
Claim 3 is rejected under 35 U.S.C. 103(a) as being unpatentable over Sanders in view of Massenzio, and further in view of the YoutTubeTM Video “Outlet and Finish Drill with Blocking Pad” by Troy Sowders (“Sowders”).
In re claim 3, Sanders lacks, but Sowders teaches moving the user with the blocking pad away from or around the special individual in slow or quick small steps [YouTube Video at the 35, 45 second mark (among others) show trainer with blocking pad moving around individual with small and/or quick steps].
Sanders and Sowders are both considered to be analogous to the claimed invention because they describe the use of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the instructions in use of a blocking pad of Sanders to move around an individual while using a blocking pad, as taught by Sowders, in order to properly position the pad relative to a moving individual.
Claim 4 is rejected under 35 U.S.C. 103(a) as being unpatentable over Sanders in view of Massenzio, and further in view of US Patent No. 5,833,330 to Kos (“Kos”).
In re claim 4, Sanders teaches providing written instructions (power point) on how to use a blocking pad. Sanders lacks, but Kos teaches written instructions for secured to an object for retrieval and use for care of patients [col. 3, ll. 3-7].
Sanders and Kos are both considered to be analogous to the claimed invention because they describe the providing care for individuals. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the instructions in use of a blocking pad of Sanders to include securing the instructions to the pad, as taught by Kos, in order to prevent the instructions for being lost.
Claims 5, 6, and 10 are rejected under 35 U.S.C. 103(a) as being unpatentable over Sanders in view of Massenzio.
In re claim 5, Sanders discloses providing the instructions is performed during the emergency safety situation. Sanders lacks, but Massenzio teaches providing the instructions is performed by delivering the instructions to a display of an electronic device [¶62 describes displaying instructions to a caregiver using field device].
Sanders and Massenzio are both considered to be analogous to the claimed invention because they are in the same field of caring for special needs individuals. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the care of special needs individuals of Sanders and include display instructions, as taught by Massenzio, in order to improve patient care, e.g., by providing up to data/instructions remotely and to reduce waste (e.g., by eliminating paper).
In re claim 6, Sanders discloses providing the instructions is performed during the emergency safety situation. Sanders lacks, but Massenzio teaches providing the instructions is performed by delivering the instructions via audio from an electronic device [¶89 describers providing audio instructions to a caregiver].
Sanders and Massenzio are both considered to be analogous to the claimed invention because they are in the same field of caring for special needs individuals. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the care of special needs individuals of Sanders and provide audio instructions, as taught by Massenzio, in order to improve patient care, e.g., not requiring a user to read instructions allowing them to focus on the patient’s care and to reduce waste (e.g., by eliminating paper).
In re claim 10, Sanders discloses providing the instructions is performed during the emergency safety situation. Sanders lacks, but Massenzio teaches providing the instructions to the user providing care to the special individual is performed using an electronic device [¶62 describes displaying instructions to a caregiver using field device].
Sanders and Massenzio are both considered to be analogous to the claimed invention because they are in the same field of caring for special needs individuals. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the care of special needs individuals of Sanders and include display instructions, as taught by Massenzio, in order to improve patient care, e.g., by providing up to data/instructions remotely and to reduce waste (e.g., by eliminating paper).
Claim 7 is rejected under 35 U.S.C. 103(a) as being unpatentable over Sanders in view of Massenzio, and further in view of the Publication “Colour psychology and meaning green and blue” (“Colour”).
In re claim 7, Sander lacks a surface of the blocking pad is visually configured to calm the special individua. Colour teaches the color blue calls to mind feelings of calmness or serenity and is often described as peaceful, tranquil, secure, and orderly. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the pad surface to be of a blue color, as taught by Colour, in order to promote feelings of calmness or serenity in potentially violent situations.
Claim 8 is rejected under 35 U.S.C. 103(a) as being unpatentable over Sanders in view of Massenzio, and further in view of US Patent No. 5,501,649 to Queppet (“Queppet”).
In re claim 8, Sanders lacks, but Queppet teaches a surface of the blocking pad is visually configured to encourage the special individual to direct blows to specific areas of the blocking pad [col. 5, ll., 21-24 describes markings or target areas to direct blows to surfaces of the blocking pad].
Sanders and Queppet are both considered to be analogous to the claimed invention because they are in the same field of use of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the blocking pad of Sanders and to include a surface that is visually configured to encourage direction of blows to specific areas of the blocking pad, as taught by Queppet, in order to improve user experience, e.g., attempting to have blows land in the spot that most protects the user from harm.
Claim 9 is rejected under 35 U.S.C. 103(a) as being unpatentable over Sanders in view of Massenzio and further in view of Publication titled “Does education of alternative measures decrease the use of physical restraints and seclusion?” by Bybel (“Bybel”).
In re claim 9, Sander discloses supporting and comforting (communication) a client experiencing emotional distress according to the action plan. Sanders doesn’t explicitly teach wherein the communicating comprises communicating at least one statement selected to meeting at least one of self-fulfillment needs, psychological needs, and basic needs of the special individual.
Bybel teaches improving direct care staff’s communication with patients in order to decrease violence and reduce the need for restraints and seclusion for special needs individuals by communicating by the user with the special individual during the emergency situation comprises communicating at least one statement selected to meeting at least one of self-fulfillment needs, psychological needs, and basic needs of the special individual [p. 38].
Sanders and Bybel are both considered to be analogous to the claimed invention because they are in the same field of caring for special needs individuals. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the care of special needs individuals of Sanders and include communicating at least one statement selected to meeting at least one of self-fulfillment needs, psychological needs, and basic needs of the special individual, as taught by Bybel, in order to improve patient care, e.g., improving direct care staff’s communication with patients in order to decrease violence and reduce the need for restraints and seclusion (See, e.g., pp. 32-38).
Claims 11 and 13-15 are rejected under 35 U.S.C. 103(a) as being unpatentable over Sanders in view of Massenzio, and further in view of US Patent No. 5,329,636 Siddle (“Siddle”).
In re claim 11, Sanders teaches using a blocking pad with handle (e.g., an umpire’s shield). Sanders lacks, but Siddle teaches the blocking pad comprises a support, a pad operatively connected to the support, and a plurality of handles positioned at a back side of the support [Figs. 2& 7 show support 14/15 at back of pad 1, the back including a plurality of handles].
Sanders and Siddle are both considered to be analogous to the claimed invention because they describe the use of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the simple substitution of one blocking pad of Sanders with another blocking pad as taught by Siddle, in order to improve user experience, for example, by providing more handles for a better grip (vs the single handle of an umpire’s shield) and provide better blocking of blows in addition to the predictable result of blocking blows.
In re claim 13, Sanders teaches a blocking pad with handle (e.g., an umpire’s shield). Sanders lacks, but Siddle teaches the blocking pad comprises: a first edge, a second edge, a third edge, and a fourth edge, the first edge opposite the second edge, the third edge opposite the fourth edge; a pad disposed between the first, second, third, and fourth edges; a first handle adjacent the first edge, a second handle adjacent the second edge, a third handle adjacent the third edge, and a fourth handle adjacent the fourth edge; wherein the first edge and the pad, the second edge and the pad, the third edge and the pad, and the fourth edge and the pad for providing gripping surfaces for the user [Figs 1 and 2 (and Fig. 5 reproduced below) show a shield (blocking pad) with edges ## 5, 6, 7, and 8, col. 1, l. 64 to col. 2, l. 30 describes foam and cushioning forming pad disposed between the edges 5, 6, 7, and 8, Figs 2 and 4 show a handles #10 #11 adjacent to each edge. The edges and surfaces of the pad are sized and dimensioned such that they may be gripped by a user].
Sanders and Siddle are both considered to be analogous to the claimed invention because they describe the use of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the simple substitution of one blocking pad of Sanders with another blocking pad as taught by Siddle, in order to improve user experience, for example, by providing more handles for a better grip (vs the single handle of an umpire’s shield) and provide better blocking of blows in addition to the predictable result of blocking blows.
In re claim 14, Sanders teaches a blocking pad with handle. Sanders lacks, but Siddle teaches the blocking pad comprises: a pad [col. 2, l. 30 describe foam and cushioning forming pad ]; a first edge of the pad adjacent a first handle of the pad; a second edge of the pad adjacent a second handle of the pad; a third edge of the pad adjacent a third handle of the pad; a fourth edge of the pad adjacent a fourth handle of the pad; wherein the first edge of the pad and the first handle are adjacent the second edge of the pad and the second handle; wherein the first edge of the pad and the first handle are adjacent the fourth edge of the pad and the fourth handle; wherein the first edge of the pad and the first handle are opposite the third edge of the pad and the third handle; wherein the second edge of the pad and the second handle are opposite the fourth edge of the pad and the fourth handle [Fig. 5 as reproduced below include edges 5, 6, 7, and 8 with handles 10 adjacent to edges 5 and 7 and handles 11 adjacent to edges 6 and 8 edge 7 with a handle 10 is adjacent to edges 6 and 8 with handles 11 and handles 11 with edges 6 and 8 are opposite each other]; wherein the first edge and the pad, the second edge and the pad, the third edge and the pad, and the fourth edge and the pad provide gripping surfaces for the user [Fig. 2 shows the edges and surfaces of the pad are sized and dimensioned such that they may be gripped by a user for example a hand of the user is capable of gripping edge 5].
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In re claim 15 Sanders teaches a blocking pad with handle. Sanders lacks, but Siddle teaches the blocking pad comprises: a pad [col. 2, l. 30 describe foam and cushioning forming pad]; a first pair of opposing handles of the pad [Fig. 5 handle #10]; a second pair of opposing handles of the pad [Fig. 5 handles 11]; a first pair of opposing edges of the pad [Fig. 5 above edges 5 and 7]; a second pair of opposing edges of the pad [Fig. 5 above edges 6 and 8]; wherein the first pair of opposing handles of the pad are adjacent the first pair of opposing edges of the pad [Fig. 5 above handles 10 adjacent to edges 5 and 7]; wherein the second pair of opposing handle of the pad are adjacent the second pair of opposing edges of the pad [Fig. 5 above handles 11 adjacent to edges 6 and 8]; wherein the first pair of opposing edges and the pad provide gripping surfaces for the attendant to utilize [Fig. 2 shows the edges 5 and 7 include surfaces of the pad that are sized and dimensioned such that they may be gripped by a user, for example, a hand of the user is capable of gripping edge 5 or 7 while holding one of the handles or when arm is looped through handles]; wherein the second pair of opposing edges and the pad provide gripping surfaces for the user [Fig. 2 shows the edges 6 and 8 include surfaces of the pad that are sized and dimensioned such that they may be gripped by a user, for example, a hand of the user is capable of gripping edges 6 or 8 while holding one of the handles or when arm is looped through handles].
Sanders and Siddle are both considered to be analogous to the claimed invention because they describe the use of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the simple substitution of one blocking pad of Sanders with another blocking pad as taught by Siddle, in order to improve user experience, for example, by providing more handles for a better grip (vs the single handle of an umpire’s shield) and provide better blocking of blows in addition to the predictable result of blocking blows.
Claim 12 is rejected under 35 U.S.C. 103(a) as being unpatentable Sanders in view of Massenzio and further in view of Siddle and US Patent No. 5,377,577 to Bounkong (“Bounkong”).
In re claim 12, Sanders teaches using a blocking pad with handle (e.g., an umpire’s shield). Sanders lacks, but Siddle teaches the blocking pad and a plurality of handles positioned at a back side of the support [Figs. 2& 7 show support 14/15 at back of pad 1, the back including a plurality of handles].
Sanders and Siddle are both considered to be analogous to the claimed invention because they describe the use of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the simple substitution of one blocking pad of Sanders with another blocking pad as taught by Siddle, in order to improve user experience, for example, by providing more handles for a better grip (vs the single handle of an umpire’s shield) and provide better blocking of blows in addition to the predictable result of blocking blows.
Sanders in view Siddle lacks, but Bounkong teaches the plurality of handles include a plurality of interior handles positioned in the center of the blocking pad and a plurality of exterior handles positioned around a periphery of the blocking pad. [Fig. 1 show center handles 53 and periphery handles 30, 32, 38, 40, 44].
Sanders, Siddle, and Bounkong are both considered to be analogous to the claimed invention because they describe the use of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the pad as taught by Siddle to include a plurality of interior handles positioned in the center of the blocking pad and a plurality of exterior handles positioned around a periphery of the blocking pad, as taught by Bounkong, in order to improve user experience, for example, by providing more handles for a better grip and different possible handhold to give the user more option to secure the pad in their hands.
Claim 17 is rejected under 35 U.S.C. 103(a) as being unpatentable over Sanders in view of Massenzio and further in view of Bybel.
In re claim 17, Sanders describes communicating and providing instructions to the caregivers. However, Sanders doesn’t explicitly teach the communicating includes statements. However, Bybel teaches improving direct care staff’s communication with patients in order to decrease violence and reduce the need for restraints and seclusion for special needs individuals by training (instructing) users on how to communicate with the special individual during the emergency situation comprises communicating at least one statement selected to meeting at least one of self-fulfillment needs, psychological needs, and basic needs of the special individual including talking with the patient about their feelings and behavior (statements).
Sanders and Bybel are both considered to be analogous to the claimed invention because they are in the same field of caring for special needs individuals. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the care of special needs individuals of Sanders and include communicating at least one statement selected to meeting at least one of self-fulfillment needs, psychological needs, and basic needs of the special individual, as taught by Bybel, in order to improve patient care, e.g., improving direct care staff’s communication with patients in order to decrease violence and reduce the need for restraints and seclusion (See, e.g., pp. 32-38).
Claims 18 and 19 are rejected under 35 U.S.C. 103(a) as being unpatentable over Sanders in view of Massenzio Bybel and further in view of Siddle.
In re claim 18, Sanders teaches a blocking pad with handle (e.g., an umpire’s shield). Sanders lacks, but Siddle teaches the blocking pad comprises: a first edge, a second edge, a third edge, and a fourth edge, the first edge opposite the second edge, the third edge opposite the fourth edge; a pad disposed between the first, second, third, and fourth edges; a first handle adjacent the first edge, a second handle adjacent the second edge, a third handle adjacent the third edge, and a fourth handle adjacent the fourth edge; wherein the first edge and the pad, the second edge and the pad, the third edge and the pad, and the fourth edge and the pad for providing gripping surfaces for the user [Figs 1 and 2 (and Fig. 5 reproduced below) show a shield (blocking pad) with edges ## 5, 6, 7, and 8, col. 1, l. 64 to col. 2, l. 30 describes foam and cushioning forming pad disposed between the edges 5, 6, 7, and 8, Figs 2 and 4 show a handles #10 #11 adjacent to each edge. The edges and surfaces of the pad are sized and dimensioned such that they may be gripped by a user].
Sanders and Siddle are both considered to be analogous to the claimed invention because they describe the use of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the simple substitution of one blocking pad of Sanders with another blocking pad as taught by Siddle, in order to improve user experience, for example, by providing more handles for a better grip (vs the single handle of an umpire’s shield) and provide better blocking of blows in addition to the predictable result of blocking blows.
In re claim 19, Sanders teaches a blocking pad with handle. Sanders lacks, but Siddle teaches the blocking pad comprises: a pad [col. 2, l. 30 describe foam and cushioning forming pad]; a first pair of opposing handles of the pad [Fig. 5 handle #10]; a second pair of opposing handles of the pad [Fig. 5 handles 11]; a first pair of opposing edges of the pad [Fig. 5 above edges 5 and 7]; a second pair of opposing edges of the pad [Fig. 5 above edges 6 and 8]; wherein the first pair of opposing handles of the pad are adjacent the first pair of opposing edges of the pad [Fig. 5 above handles 10 adjacent to edges 5 and 7]; wherein the second pair of opposing handle of the pad are adjacent the second pair of opposing edges of the pad [Fig. 5 above handles 11 adjacent to edges 6 and 8]; wherein the first pair of opposing edges and the pad provide gripping surfaces for the attendant to utilize [Fig. 2 shows the edges 5 and 7 include surfaces of the pad that are sized and dimensioned such that they may be gripped by a user, for example, a hand of the user is capable of gripping edge 5 or 7 while holding one of the handles or when arm is looped through handles]; wherein the second pair of opposing edges and the pad provide gripping surfaces for the user [Fig. 2 shows the edges 6 and 8 include surfaces of the pad that are sized and dimensioned such that they may be gripped by a user, for example, a hand of the user is capable of gripping edges 6 or 8 while holding one of the handles or when arm is looped through handles].
Sanders and Siddle are both considered to be analogous to the claimed invention because they describe the use of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the simple substitution of one blocking pad of Sanders with another blocking pad as taught by Siddle, in order to improve user experience, for example, by providing more handles for a better grip (vs the single handle of an umpire’s shield) and provide better blocking of blows in addition to the predictable result of blocking blows.
Claim 20 is rejected under 35 U.S.C. 103(a) as being unpatentable over Sanders in view of Massenzio, Siddle, and Bounkong.
In re claim 20, Sanders discloses a method of providing care to a special individual during an emergency safety situation [See Background], the method comprising: obtaining a plan of care for the special individual [p. 217 describes developing action plan for special individuals which would apply to individual at the facility]; providing a blocking pad to a user providing care to the special individual [¶ bridging pp. 217-218 describe use of a blocking pad, e.g., a umpires shield]; providing, via an electronic device, instructions to the user providing care to the special individual before or during the emergency safety situation wherein the instructions instruct the user on using the blocking pad with the special individual during the emergency safety situation in which the special individual exhibits aggressive behavior in a manner such that the special individual is not restrained during the emergency safety situation and the special individual is not secluded during the emergency safety situation [p. 217, second col., describes training (i.e., instructions) via PowerPoint (an electronic device) before an emergency safety situation for using a blocking pad and not restraining an individual with special needs, using a blocking pad when individual is aggressive (deflecting hits, kicks, slaps) and supporting and comforting a client experiencing emotional distress. In addition, using the blocking resulted in not restraining the individual or secluding the individual]; using by the user the blocking pad during the emergency situation according to the instructions to protect the user and the special individual during the emergency situation without restraining the special individual and without secluding the special individual [p. 217 second col. describes actual use of the blocking pad and not restraining an individual with special needs, using a blocking pad when individual is aggressive (deflecting hits, kicks, slaps) and supporting and comforting a client experiencing emotional distress. In addition, using the blocking resulted in not restraining the individual or secluding the individual]; and communicating by the user with the special individual during the emergency situation according to the plan of care [p. 217 describes supporting and comforting (communication) a client experiencing emotional distress according to the action plan].
Sanders provides individual, facility-specific plans and reviewing and recording feedback for each incident to address emergency situation and actions taken by the user utilizing the blocking pad. However, Sanders does not explicitly teach a care plan with individualized protocol for a particular individual with special needs and obtaining the plan with an electronic device. In addition, Sanders does not explicitly teach providing feedback through at least the electronic device. Massenzio teaches providing an individualized treatment plan for special needs individuals using an electronic device to obtain the plan and provide instructions/feedback to address an emergency situation [¶¶8, 62, 65, 75, 82, 86, 88, among others, describes obtaining, receiving, and updating patent specific instructions regarding the patients care to a caregiver using an electronic field device. Using the field device 202 instructions regarding a patient care plan can be displayed and the caregiver can enter information regarding the patient. The care plan includes specific instructions on the service to be provided, including (OASIS) codes, patient medical history (to the extent deemed appropriate by the agency) and detailed guidance on problem diagnosis and response. Health care provider can use administration system to send specific instructions to caregivers as to how to deal with each patient in the event of an emergency. A patient history module provides the caregiver with background information for each patient should the caregiver require a review of what has been done in the past. A clinical history module is a review tool that assists the caregiver and their supervisor in making diagnosis of conditions that may change over time and then planning an effective course of treatment].
Sanders and Massenzio are both considered to be analogous to the claimed invention because they are in the same field of caring for special needs individuals. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the care of special needs individuals of Sanders and include an individualized care plan and to provide feedback and instructions to a care giver of a special individual (user of the blocking pad) through an electronic device to address emergency situation and actions taken by care giver, as taught by Massenzio, in order to improve patient care, e.g., by providing individualized plans for a user in accordance with an individual’s physician even in remote locations that are up to date and to reduce waste (e.g., by eliminating paper instructions/records).
Sanders teaches using a blocking pad with handle (e.g., an umpire’s shield). Sanders lacks, but Siddle teaches the blocking pad comprises a support, a pad operatively connected to the support, and a plurality of handles positioned at a back side of the support [Figs. 2& 7 show support 14/15 at back of pad 1, the back including a plurality of handles].
Sanders and Siddle are both considered to be analogous to the claimed invention because they describe the use of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the simple substitution of one blocking pad of Sanders with another blocking pad as taught by Siddle, in order to improve user experience, for example, by providing more handles for a better grip (vs the single handle of an umpire’s shield) and provide better blocking of blows in addition to the predictable result of blocking blows.
Sanders in view of Siddle discloses a plurality of handles. As noted above, the language of claim 20 is unclear as it provided no basis to determine what interior and exterior mean as no spatial or orientation language is provided in the claim. For example, in the lengthwise direction the upper and lower handles of Siddle could be considered to be exterior handles and the two handles between could be considered interior handles. However, to the extent that Siddle lacks a teaching of the embodiment shown in Applicant’s Fig. 2; Bounkong teaches the plurality of handles include a plurality of interior handles and a plurality of exterior handles [Fig. 1 show interior handles 53 and exterior handles 30, 32, 38, 40, 44].
Sanders, Siddle, and Bounkong are both considered to be analogous to the claimed invention because they describe the use of blocking pads. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the pad as taught by Siddle to include the interior handles, as taught by Bounkong, in order to improve user experience, for example, by providing more handles for a better grip and different possible handhold to give the user more option to secure the pad in their hands.
Response to Arguments
Applicant’s arguments filed January 26, 2026, have been fully considered.
The provisional rejection of claims 1-20 on the ground of nonstatutory double patenting is maintained. Applicant did not traverse the rejection in their remarks.
The objection to claims 13-15, 18 and 19 is withdrawn in view of Applicant’s amendments to the claims.
With regard to the rejection of claims 1 and 14 under pre-AIA 35 U.S.C. 112, first paragraph, Applicant’s arguments have been considered but are not persuasive. Applicant states “The Specification expressly contemplates electronic communication of customized guidance to the caregiver. For example, the Detailed Description states that ‘a blocking pad, an electronic audio or visual system, media system, personal electronic devices (e.g., cell phone, headset, mp3 player, etc.) may communicate instructions to a user for utilizing the blocking pad and facing the situation,’ and that ‘a computing, display, or communications device may be configured to display information and reminders to the user in real time,’ and that ‘a mobile or computing application may be configured to help the user address the situation.’ (Specification, [0020, 0022, 0053]) These passages describe the use of an electronic device to present individualized instructions, inherently supporting the recited step of electronically obtaining a plan of care with tailored behavioral and safety protocols.” The examiner disagrees. As pointed out above these paragraphs describe communicating instructions to a user for utilizing the blocking pad, facing the situation, displaying information and reminders to the user in real time, and a mobile or computing application may be configured to help the user address the situation. However, none of the portions of the specification describe a plan of care comprising individualized behavioral and safety protocols for the special individual. Therefore, it is unclear how these portions describe this limitation. Applicant asserts that these portions inherently support the recited step of electronically obtaining a plan of care with tailored behavioral and safety protocols, but Applicant provides no evidence or explanation of why the recited step is inherent. Therefore the rejection is maintained for the reasons give above.
In addition, Applicant’s remarks do not address the rejection of claim 14, and therefore the rejection is maintained for the reasons give above.
The rejection of claims 12, 14, 15, 19, and 20 under pre-AIA 35 U.S.C. 112, second paragraph, is maintained for the reasons given above. Applicant did not specifically address the rejection of these claims in their amendments or remarks. Therefore the rejection is maintained for the reasons give above.
With regard to the rejection under 35 U.S.C. 101, Applicant’s arguments have been considered but are not persuasive. The rejection has been updated in view of Applicant’s amended claims.
The Examiner notes Applicant’s remarks make reference to “concrete” and “tangible”; however, the "useful, concrete and tangible result" test used to determine patent eligibility has been replaced by the Supreme Court's two-part test in Alice Corp. v. CLS Bank International. According to the two-part test, the claims are examined to determine whether they recite an abstract concept, and if an abstract concept is recites whether there is a practical application of the concept or additional elements such that the claims as a whole amounts to significantly more than the abstract concept.
In their remarks, Applicant states “The claim recites, in part: ‘obtaining, by an electronic device, a plan of care comprising individualized behavioral and safety protocols for the special individual.’ This language is not merely a mental process or abstract concept, it requires a tangible device retrieving a customized, data-driven set of instructions, tailored to an individual's behavioral needs. Such retrieval and delivery of personalized protocols through an electronic interface is rooted in practical digital systems, not abstract human activity.” The Examiner disagrees. First, the Examiner points out that the claims are not rejected as being directed to a mental process. Second, the use of a device or electronic device, tangible or otherwise, does not preclude the determination of an abstract concept; otherwise, one could simply rely on draftsmanship to overcome rejections of ineligible subject matter. Moreover, the use of a generic “electronic device” does not root the claimed method in technology. The device is used for a well know function of communicating information. Nor does the use of an electronic device preclude claims being directed to organizing a human activity. In addition, whether the recitations are generic or concrete is not determinative in whether the claims recite an abstract concept. Under the Alice two-part test, it is first determined whether an abstract concept is recited, and then it is determined whether the claims as a whole recite a practical application of the concept or amount to significantly more. Here, as stated by Applicant, the claims recite a process of the instruction of a caregiver in the individualized behavioral and safety protocols, delivered and managed through an electronic device, to address the unique challenges of emergency safety situations involving special individuals. In particular, instructions are provided by the electronic device to guide the caregiver in using a blocking pad in a manner that avoids both restraint and seclusion of the special individual. Providing instructions to a caregiver regarding an individual is a form of organizing human activity and thus an abstract concept.
Applicant continues “The next step, ‘providing a blocking pad to a user providing care to the special individual,’ introduces a concrete physical tool. The blocking pad is not a generic item but a specialized safety device disclosed in the specification as being engineered with unique geometry, grip structures, and visual cues to manage aggression without restraint. Its function and use are integral to the claimed method and cannot be separated from the physicality and utility of the tool. This further supports eligibility by anchoring the claim to specific hardware, per Diamond v. Diehr, 450 U.S. 175 (1981).” The Examiner disagrees. The rejected claims recite “a blocking pad.” The art of record is replete with pads used to block and deflect blows and protect a user of the pad. Of note Applicant’s mention of “unique geometry and grip structures” do not appear in the claims rejected under Section 101. All that is claimed is a blocking pad. The Examiner points out that claims that recite features of “unique geometry and grip structures” are not rejected as patent ineligible. Therefore, the Examiner suggests incorporating these features into the independent claims to overcome the rejection under Section 101.
Applicant continues “The claim continues: ‘providing instructions through at least the electronic device to the user...before or during the emergency safety situation....’ This is not a generic instruction step. The specification supports real-time or pre-loaded delivery of situational guidance that adapts to emergent behavior and user responses, requiring computer-implemented processes and timed execution, which courts have recognized as moving beyond abstract ideas (see McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016)).” Again the Examiner points out the language in Applicant’s arguments directed to “real-time or pre-loaded delivery of situational guidance that adapts to emergent behavior and user responses” are not found in the claims. Moreover, Applicant has not provided any explanation of how the claims in McRO are in any way analogous to Applicant’s claims. The court in McRO found the specification identified a specific problem in the technology of animation.1 In particular, the court found “The computer here is employed to perform a distinct process to automate a task previously performed by humans. McRO states that animators would initially set keyframes at the point a phoneme was pronounced to represent the corresponding morph target as a starting point for further fine tuning. J.A. 3573 at 8:53 (McRO's Claim Construction Presentation). This activity, even if automated by rules, would not be within the scope of the claims because it does not evaluate sub-sequences, generate transition parameters or apply transition parameters to create a final morph weight set. It is the incorporation of the claimed rules, not the use of the computer, that "improved [the] existing technological process" by allowing the automation of further tasks.” In marked contrast, Applicant’s claims are not analogous to the claims in McRO and Applicant’s specification does not provide any technical problems solved by a technical solution that provided by the claims.
Applicant does state “Further, ‘using by the user the blocking pad...to protect the user and the special individual...without restraining...and without secluding’ highlights the novel and practical utility of the claimed method. The combination of training, physical intervention tools, and guided actions transforms what may have been abstract training concepts into a repeatable, real-world solution to a technical safety problem.” Applicant has not explained how this presents a “technical” safety problem. The problem stated is one of personal safety. Moreover, the solution does not appear to be technical either.
Applicant concludes “Additionally, the step of ‘communicating by the user with the special individual during the emergency situation according to the plan of care’ and ‘providing feedback to at least the user...through at least the electronic device to address [the] emergency situation and actions taken’ brings the method full-circle, facilitating a closed-loop care protocol. This recorded feedback loop through a physical and digital system is a key.” Again, providing instruction through an electronic device fails to recite a practical application of the abstract idea. Here there is no improvement to the technology that would result in a practical application. Rather the technology is used in a traditional manner as a means to provide or disseminate information, such as instructions, which is notoriously old and well known. While the use of an electronic device “may” lead to improvement of the care of the individual, the improvement is directed to the abstract process and not an improvement to the technology (i.e., electronic devices).
With regard to the rejection under pre-AIA 35 U.S.C. 102, 103 Applicant’s arguments have been considered but are not persuasive. The rejection has been updated in view of Applicant’s amended claims.
Applicant argues, “The claim recites obtaining, by an electronic device, a plan of care comprising individualized behavioral and safety protocols for a special individual. None of the cited references, including Sanders, Massenzio, or others of record, teach or suggest this limitation. Sanders generally discloses a behavior support plan but does not disclose or suggest a digital system configured to obtain individualized safety protocols for a specific person. The recited element involves dynamic, device- executed retrieval of individualized care data, which represents a non-trivial implementation of electronic behavior management and is not disclosed by the cited art.” While Sanders may lack a specific teaching of obtaining, by an electronic device, a plan of care comprising individualized protocols for an individual, Massenzio teaches providing an individualized treatment plan for special needs individuals using an electronic device to obtain the plan and receive instructions. For example, ¶¶8, 62, 65, 75, 82, 86, 88, among others, describes obtaining, receiving, and updating patent specific instructions regarding the patients care to a caregiver using an electronic field device. Using the field device 202 instructions regarding a patient care plan can be displayed and the caregiver can enter information regarding the patient. The care plan includes specific instructions on the service to be provided, including (OASIS) codes, patient medical history (to the extent deemed appropriate by the agency) and detailed guidance on problem diagnosis and response. Health care provider can use administration system to send specific instructions to caregivers as to how to deal with each patient in the event of an emergency. A patient history module provides the caregiver with background information for each patient should the caregiver require a review of what has been done in the past. A clinical history module is a review tool that assists the caregiver and their supervisor in making diagnosis of conditions that may change over time and then planning an effective course of treatment.
Applicant argues “Next, the claim includes: ‘providing a blocking pad to a user providing care to the special individual.’" Applicant continues “While the Examiner may argue that blocking tools are known, the blocking pad disclosed in the application is not a generic shield or pad. As taught in the specification, it is a purpose-built, non-restraining, non-secluding safety tool configured with structural features for user and patient protection during aggression. The references of record do not disclose or suggest use of such a specialized blocking pad in the context of individualized care delivered through an integrated electronic plan.” Examiner disagrees. First, limitations from the specification are not read into the claims. As pointed out by Applicant, the independent claims only recite “providing a blocking pad to a user providing care to the special individual.” Second, Sanders expressly teaches this limitation as pointed above. For example, p. 217, second col., among others, describes using a blocking pad and not restraining an individual with special needs, including using a blocking pad when individual is aggressive (deflecting hits, kicks, slaps) and supporting and comforting a client experiencing emotional distress. In addition, Sanders describes using the blocking pad resulted in not having to restrain the individual or seclude the individual.
Applicant also argues “The claim also recites: ‘using by the user the blocking pad during the emergency situation according to the instructions to protect the user and the special individual...without restraining...and without secluding...’ Sanders generally advocates for restraint reduction, but nowhere suggests a physical, real-time behavioral intervention strategy that utilizes a blocking pad under electronic guidance to eliminate both restraint and seclusion altogether. The claimed method presents a practical, repeatable, and specific solution that eliminates the need for more invasive practices and improves safety for all parties involved. The combination of such physical tools with digital prompts is not taught or suggested in the art.” Sanders explicitly teaches eliminating restraint and seclusion2 and use of a blocking pad to do so, see, p. 217. The limitations “real-time behavioral intervention strategy that utilizes a blocking pad under electronic guidance to eliminate both restraint and seclusion altogether” are not found in the claims. While Sanders does not describe providing real-time instructions to caregivers using an electronic device, Massenzio does.
Finally Applicant concludes “The claim further includes ‘communicating by the user with the special individual during the emergency situation according to the plan of care,’ and ‘providing feedback to at least the user addressing the emergency situation through at least the electronic device to address emergency situation and actions taken by the user utilizing the blocking pad.’ These steps introduce a closed-loop behavioral support system where the electronic device not only provides situational instructions but also gives responsive feedback based on actions taken. Such feedback mechanisms, especially those tailored to blocking pad use during real-time aggression events, are entirely absent from the cited references. The cited art does not suggest feedback loops or a system designed to record, analyze, and respond to intervention dynamics during aggressive incidents.” The Examiner again points out the limitations feedback loops or a system designed to record, analyze, and respond to intervention dynamics during aggressive incidents are not found in the claims. An while Sanders may not teaching provide instruction to caregivers through an electronic device as to how to provide care during an emergency safety situation and providing feedback, Massenzio teaches providing an individualized treatment plan for special needs individuals using an electronic device to obtain the plan and provide instructions/feedback to address an emergency situation. The device can provide real-time instructions to a caregiver of an individual and can record observations and treatment provided by the caregiver to update a plan of care, see, e.g., ¶¶8, 62, 65, 75, 82, 86, 88, as cited above. Therefore, Sanders provides a teaching of the care given to special individual which can be modified by Massenzio to provide those instruction to a user using an electronic device during an emergency safety situation that are individualized for the reasons given above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and is listed on the attached Notice of References Cited.
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/ANDREW BODENDORF/Examiner, Art Unit 3715
/XUAN M THAI/Supervisory Patent Examiner, Art Unit 3715
1 As the specification confirms, the claimed improvement here is allowing computers to produce "accurate and realistic lip synchronization and facial expressions in animated characters" that previously could only be produced by human animators. '576 patent col. 2 ll. 49-50. As the district court correctly recognized, this computer automation is realized by improving the prior art through "the use of rules, rather than artists, to set the morph weights and transitions between phonemes." Patentability Op., 55 F. Supp.3d at 1227. McRO, Inc. v. Bandai Namco Games America Inc., 837 F. 3d 1299.
2 See, p.216 which describe minimizing the use of restraints is a key goal for all services for people with intellectual disabilities. Safe restraint reduction has been recognized by other respected healthcare and educational organizations. The Substance Abuse and Mental Health Services Administration has a vision to reduce and ultimately eliminate the use of seclusion and restraint for all age groups in institutional and community-based behavioral health care settings (Bullard et al. 2003).