DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
Applicant has claimed priority of:
03/03/2017 – continuation (CON) of Application No. 15/449,674
09/21/2021 – child in pat (CIP) of Application No. 17/481,149
Claim 1 is given benefit of the priority date of 03/03/2017.
Claims 2-20 have new matter not disclosed in the previous applications above. As such, claims 2-20 will be given the priority date of the effective filing date of current application 17/887,175, that being 08/12/2022.
Response to Amendment
This Office Action is in response to a preliminary amendment filed on 1/27/2026. As directed by the preliminary amendment, no claims were canceled, amended, or added. Thus, claims 1-20 are pending for this application.
Election/Restrictions
Applicant’s election without traverse of Species A in the reply filed on 1/27/2026 is acknowledged. No claims have been withdrawn at this time.
The requirement is still deemed proper and is therefore made FINAL.
Drawings
The drawings are objected to because:
Figures 7-13 of the replacement drawings filed 10/12/2022 are objected to because the unlabeled rectangular/ovular/triangular boxes (i.e. 25, 27, 101, 102, 103, 104, 105, 160, 180 in Fig. 6, 201-204 in Fig. 7, etc.) should be provided with descriptive text (e.g. unlabeled rectangular box 102 should be provided with “load cell” inside the box or adjacent to the reference number). See 37 CFR 1.83(a).
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that use the word “means” and are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“means for securing an upper portion of the patient's leg above the knee to the seating surface” in claim 1 lines 4-5
“means for securing a lower portion of the patient's leg below the knee to the support platform, wherein the means for securing the lower portion of the patient's leg is axially movable relative to the support platform” in claim 1 lines 7-9
“means for applying a tension force to the support platform whereby a tension force is applied to the knee joint for causing the knee to be stretched in an axial direction and adjacent bone surfaces of the knee to move away from each other” in claim 1 lines 10-12
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. In this case, the corresponding structures of “means for securing an upper portion of the patient's leg above the knee to the seating surface” described in paragraph [0054] of the specification include: a strap having hooks and loop fasteners; the corresponding structures of “means for securing a lower portion of the patient's leg below the knee to the support platform, wherein the means for securing the lower portion of the patient's leg is axially movable relative to the support platform” described in paragraph [0054] of the specification include: : a strap having hooks and loop fasteners; and the corresponding structures of “means for applying a tension force to the support platform whereby a tension force is applied to the knee joint for causing the knee to be stretched in an axial direction and adjacent bone surfaces of the knee to move away from each other” described in paragraph [0056] of the specification include: a linear actuator.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
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 3-5 and 11-20 are rejected under 35 U.S.C. 112(b) or 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 (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 3, the phrase “any device capable” and “may be” in lines 3-4 is unclear as to what the metes and bounds of the phrase “any device” (i.e. appears to be limitless), and “may be” creates confusion whether the components are required of the claimed invention or not.
Regarding claim 11, the phrase “the controller system…comprising…a controller system” in lines 1-4 is unclear how the system comprises itself, or whether the second controller system is in addition to the first controller system.
Claim 18 recites the limitation "the web-based portal" in line 1. There is insufficient antecedent basis for this limitation in the claim.
The remaining claims are rejected due to dependence on a rejected base claim.
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.
Claim(s) 11 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Diallo (US 2014/0094721).
Regarding claim 11, Diallo discloses (Figs. 2, 6, 8 and 11) a controller system for controlling a therapeutic device, comprising:
a therapeutic device (knee treatment device, Abstract);
a controller system, comprising:
a microcontroller (controller 36);
a mobile device (smart phone, paragraph [0069]) coupled to the microcontroller by a wireless networking medium (“Bluetooth”, paragraph [0069]);
a mobile application operating on the mobile device (app on smart phone, paragraph [0069]), said mobile application in communication with the microcontroller (paragraph [0069]);
wherein the controller is configured to control actuation of one or more movements of the therapeutic device (paragraph [0045]-[0046]); and
wherein the therapeutic device comprises an apparatus for treating knee abnormalities (Abstract).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 12 is rejected under 35 U.S.C. 103 as being unpatentable over Diallo (US 2014/0094721 in view of Stinton (US 20210196191)
Regarding claim 12, Diallo discloses the system includes a therapeutic device, but doesn’t disclose it includes a plurality of therapeutic devices.
However, Stinton teaches (Fig. 1) a rehab device comprising a controller system that is associated with a plurality of devices (plurality of users 101 each with their own joint maniupation device 202, paragraph [0117]).
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 system of Diallo to include a plurality of therapeutic devices, as taught by Stinton, for the purpose of allowing operation of a plurality of devices to be monitored simultaneously so that users operate the devices correctly and so that a clinician is not required to be on site when operated (paragraph [0117] Stinton).
Claim 13 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Diallo (US 2014/0094721 in view of in view of Ruggiero (US 20210275388).
Regarding claim 13, Diallo discloses a mobile application but does not disclose wherein the mobile application requires a person to be authenticated before the person is allowed to access one or more user interfaces of the mobile application.
However, Ruggiero teaches (Fig. 4) a therapeutic device and control system wherein the mobile application (software application on the mobile communication device 402; [0028] and [0063]) requires a person to be authenticated before the person is allowed to access one or more user interfaces of the mobile application (prior to using the therapeutic device, users have to register a new account/create a login with a password or login to an existing customer account, “after an account has been created, an individual (e.g., individual 404 of FIG. 4) can perform user-software interactions to login to the vending massage chair system”; [0072], [0073], [0080], Lines 1-4, and [0092]).
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 mobile app of Diallo to include the software application authentication as taught in Ruggiero to have a customer account that retains a customer therapy profile (massage style, massage type, massage duration, massage location, etc.) and can be used at any therapy device once connected (Ruggiero: [0084], Lines 4-18).
Regarding claim 17, Diallo discloses a controller system but does not disclose the system further comprises a web-based portal, wherein the mobile application is in communication with said web-based portal.
However, Ruggiero teaches a controller system comprising a mobile application (Fig. 4; software application on mobile communication/computing device; “The software application that was downloaded/installed on the mobile communication device”; [0090], Lines 1-2) and a web-based portal (remote management system 408, paragraph [0090]) wherein the mobile application is in communication with said web-based portal (Fig. 4; “the mobile communication device can communicate with a remote management system (e.g., management system 408 of FIG. 4) (e.g., a remote sever) over a network (e.g., network 406 of FIG. 4)”; [0090]).
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 controller system of Diallo to include web-based portal, wherein the mobile application is in communication with said web-based portal, as taught by Ruggiero, for the purpose of allowing the system to have a remote server that can receive reports of diagnostic information and usage patterns as well as be connected to a datastore which stores registration/account information (Ruggiero: [0061-0062], [0073], [0090], [0104]).
Regarding claim 18, Diallo discloses a controller system but does not disclose the system further comprises a web-based portal, wherein the web-based portal comprises one or more user interfaces, one or more databases, or combinations thereof.
However, Ruggiero teaches a mobile application (Fig. 4; software application on mobile communication/computing device; “The software application that was downloaded/installed on the mobile communication device”; [0090], Lines 1-2) and a web-based portal (remote management system 408, paragraph [0090]) wherein the mobile application is in communication with said web-based portal (Fig. 4; “the mobile communication device can communicate with a remote management system (e.g., management system 408 of FIG. 4) (e.g., a remote sever) over a network (e.g., network 406 of FIG. 4)”; [0090]), and wherein the web-based portal (Ruggiero: Fig. 4; a remote management system (e.g., management system 408 of FIG. 4) (e.g., a remote sever) over a network (e.g., network 406 of FIG. 4)”; [0090]) comprises one or more user interfaces (Ruggiero: “settings of the vending massage chair 100 can be remotely controlled and/or adjusted by an administrator using the remote server”; [0061]), one or more databases (Ruggiero: Fig. 4; datastore 410; [0073], [0090], [0104]), or combinations thereof.
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 controller system of Diallo to include web-based portal, wherein the web-based portal comprises one or more user interfaces, one or more databases, or combinations thereof, as taught by Ruggiero, for the purpose of allowing the system to have a remote server that can receive reports of diagnostic information and usage patterns as well as be connected to a datastore which stores registration/account information (Ruggiero: [0061-0062], [0073], [0090], [0104]).
Claim 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Diallo (US 2014/0094721 in view of Lee (KR 20200033697) and its translation (EspaceNet Translation Lee).
Regarding claim 14, Diallo discloses a mobile application but does not disclose the mobile application provides one or more user interfaces which allow a person to configure one or more parameters of operation of the therapeutic device.
However Lee teaches a therapeutic device wherein the mobile application (Figs. 12-16;”the operation is driven by an app on a smartphone by linking one or more of WIFI, Bluetooth, IoT, and wireless communication provided in the massage chair device”; [0098]) provides one or more user interfaces (Figs. 12-16; buttons/touch screen provided in smartphone/app; [0114]) which allow a person to configure one or more parameters of operation of the therapeutic device (“These smartphone apps can input, adjust or change any selection including the intensity of movement, movement order, movement speed, movement time, movement area, movement start, movement stop, etc. of the general massage mode, the initial massage mode and the cellulite removal massage mode.” [0114]).
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 mobile application of Diallo to include providing one or more user interfaces which allow a person to configure one or more parameters of operation of the therapeutic device., as taught by Lee, for the purpose of providing an app that can input, adjust or change any selection in order to drive the operation of the therapeutic device (Lee: [0098], Lines 10-12 and [0114], Lines 1-7).
Regarding claim 15, Diallo discloses a mobile application but does not disclose wherein the mobile application provides one or more user interfaces which allow a person to configure one or more sequences of operation of the therapeutic device.
However, Lee discloses a therapeutic device wherein the mobile application (Figs. 12-16;”the operation is driven by an app on a smartphone by linking one or more of WIFI, Bluetooth, IoT, and wireless communication provided in the massage chair device”; [0098]) provides one or more user interfaces (Figs. 12-16; buttons/touch screen provided in smartphone/app; [0114]) which allow a person to configure one or more sequences of operation of the therapeutic device (These smartphone apps can input, adjust or change any selection including the intensity of movement, movement order, movement speed, movement time, movement area, movement start, movement stop, etc. of the general massage mode” [0114]).
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 s the mobile application of Diallo to include provides one or more user interfaces which allow a person to configure one or more sequences of operation of the therapeutic device, as taught by Lee, for the purpose of providing an app that can input, adjust or change any selection such as a movement/operation sequence in order to drive the operation of the therapeutic device (Lee: [0098], Lines 10-12 and [0114], Lines 1-7; [0101], Lines 1-5).
Regarding claim 16, Diallo discloses a mobile application, but does not disclose the mobile application provides one or more user interfaces which allow a person to pause or stop operation of the therapeutic device.
However, Lee teaches a therapeutic device comprising a mobile application (Figs. 12-16;”the operation is driven by an app on a smartphone by linking one or more of WIFI, Bluetooth, IoT, and wireless communication provided in the massage chair device”; [0098]) that provides one or more user interfaces (Figs. 12-16; buttons/touch screen provided in smartphone/app; [0114]) which allow a person to pause or stop operation of the therapeutic device (These smartphone apps can input, adjust or change any selection including the intensity of movement, movement order, movement speed, movement time, movement area, movement start, movement stop, etc. of the general massage mode” [0114]).
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 mobile application of Diallo to provides one or more user interfaces which allow a person to pause or stop operation of the therapeutic device, as taught by Lee, for the purpose of providing an app that can input, adjust or change any selection including starting or stopping in order to drive the operation of the therapeutic device (Lee: [0098], Lines 10-12 and [0114], Lines 1-7; [0101], Lines 1-5).
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Diallo (US 2014/0094721) in view of in view of Ruggiero (US 20210275388), and further in view of Lee (KR 20200033697).
Regarding claim 19, modified Diallo discloses wherein the one or more databases (Ruggiero: Fig. 4; datastore 410; [0073], [0090], [0104]) comprise one or more records, said records comprising one or more fields of information identifying a clinic, a location (a map of massage chairs geographical locations ; [0073]), a user (user customer account information; [0090]), a machine (“this registration establishes the vending massage chair with a datastore (e.g., datastore 410 of FIG. 4)”; [0104]), a patient, a passcode (login sessions are remembered for future access in remote datastore; [0073], or combinations thereof.
The modified device of Diallo is silent as to wherein the one or more databases comprise one or more data tables for storing one or more records.
Lee discloses a smart therapeutic device wherein the one or more databases (Fig. 1; database (DB) comprising registration application information database 77, login information database 78, content information database 79, application information database 80, product driving content information database 81, content creation program information database 82, failure information database 83, incident information database 85, other information database 86; [0117]) comprise one or more data tables (Figs. 1 and 11-14) for storing one or more records (Figs. 1 and 11-14; records for device information such as registration info and device data such as usage of the device, error information; [0117] and [0146]).
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 remote management system and datastore of the modified device of Diallo with the plurality of databases of Lee to provide a plurality of data tables as seen in Figs. 11-14 that can provide a AS engineer or customer center with information on a device name of a product, serial number, error code (Lee: [0146]).
Regarding claim 20, modified Diallo discloses wherein the machine comprises the therapeutic device (Ruggiero: Fig. 4 and 38; registration of therapeutic device; [0104]; Lee: Figs. 11-14; device information and data is for a therapeutic device).
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 1-4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,123,253 in view of Diallo (US 2014/0094721).
Although the claims are not identical, they are not patentably distinct from one another. The application claims recite additional features not claimed in the patent claims.
For claim 1:
Patent claim 1
Application claim 1
Apparatus for treating abnormalities in the knee comprising;
a) a chair forming a seating surface for a patient, the chair having a lower laterally extending rod,
b) means for securing an upper portion of the patient's leg above the knee to the seating surface,
c) a support platform movable with respect to the seating surface,
d) means for securing a lower portion of the patient's leg below the knee to the support platform, wherein the means for securing the lower portion of the patient's leg is axially movable relative to the support platform,
e) means for applying a tension force to the support platform whereby a tension force is applied to the knee joint for causing the knee to be stretched in an axial direction and adjacent bone surfaces of the knee to move away from each other, and
f) a main housing for supporting the support platform, the main housing being axially fixed to the seating surface during operation and the main housing being laterally adjustable along the seating surface via a tubular bearing that is slideably mounted on the rod of the chair; wherein the main housing includes side tracks extending along the axial direction and the main housing including a bottom surface having includes rollers, the side tracks and rollers being used to axially adjust the main housing with respect to the seating surface.
An apparatus for treating knee abnormalities, comprising:
a chair forming a seating surface for a patient, the chair having a lower laterally extending rod;
means for securing an upper portion of the patient's leg above the knee to the seating surface;
a support platform movable with respect to the seating surface;
means for securing a lower portion of the patient's leg below the knee to the support platform, wherein the means for securing the lower portion of the patient's leg is axially movable relative to the support platform;
means for applying a tension force to the support platform whereby a tension force is applied to the knee joint for causing the knee to be stretched in an axial direction and adjacent bone surfaces of the knee to move away from each other;
a main housing for supporting the support platform, the main housing being axially fixed to the seating surface during operation and the main housing being laterally adjustable along the seating surface via a tubular bearing that is slideably mounted on the rod of the chair, wherein the main housing includes side tracks extending along the axial direction and the main housing including a bottom surface having rollers, the side tracks and the rollers having a capability to axially adjust the main housing with respect to the seating surface; and
a controller system, said controller system for providing control of the means for applying the tension force.
With respect to the additional features recited in application claim 1, patent claim 1 fails to recite a controller system, said controller system for providing control of the means for applying the tension force.
However, Diallo teaches (Figs. 2, 6, 8 and 11) an apparatus for treating knee abnormalities (the device treats users with knee abnormalities and injuries, see paras. [0008]-[0011]), comprising a controller system (comprising controller 36, power supply 34, user interface 38, remote controller i.e. smart phone, and sensors such as force sensor and strain gauge, see paragraphs [0045], [0046] and [0069]), said controller system for providing control of the means for applying the tension force (paragraph [0046]).
Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the apparatus of claim 1 of patent ‘253 to include a controller system, said controller system for providing control of the means for applying the tension force, as taught by Diallo, for the purpose of allowing for user to adjust the device operation according to the treatment prescribed to a user, thereby improving therapeutic outcome.
Regarding claim 2, modified claim 1 of patent ‘253 discloses wherein the controller system comprises a power supply (power supply 34 of Diallo) and a microcontroller (controller 36 of Diallo).
Regarding claim 3, modified claim 1 of patent ‘253 discloses wherein the controller system is operated wirelessly from a mobile application (app on smart phone, paragraph [0069] Diallo), said mobile application operating on a mobile device (smart phone, paragraph [0069] Diallo), said mobile device comprising any device capable of mobility on which the mobile application may be installed (smart phone, paragraph [0069] Diallo).
Regarding claim 4, modified claim 1 of patent ‘253 discloses wherein the controller system communicates with the mobile device via a wireless networking medium (Bluetooth technology, paragraph [0069] Diallo).
Claim 5 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,123,253 in view of Diallo (US 2014/0094721), and further in view of Ruggiero (US 2021/0275388).
Regarding claim 5, the modified claim 1 of U.S. Patent No. 11,123,253 discloses an apparatus for providing therapy to a user comprising a controller assembly and mobile application (paragraph [0069] Diallo), but does not disclose wherein the mobile application communicates with a web-based portal via a network communications medium, said web-based portal comprising a user interface, a database, or combinations thereof.
However, Ruggiero further discloses (Fig. 4) a mobile application (Fig. 4; “The software application that was downloaded/installed on the mobile communication device”; [0090], Lines 1-2) that communicates with a web-based portal via a network communications medium (Fig. 4; “the mobile communication device can communicate with a remote management system (e.g., management system 408 of FIG. 4) (e.g., a remote sever) over a network (e.g., network 406 of FIG. 4)”; [0090]), said web-based portal (Fig. 4; a remote management system (e.g., management system 408 of FIG. 4, e.g., a remote sever)) comprising a user interface, a database (Fig. 4; datastore 410; [0090]), or combinations thereof.
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 smartphone implementing the mobile application of the modified claim 1 of U.S. Patent No. 11,123,253 with the network, remote management system, and datastore of Ruggiero to have a remote server that can receive reports of diagnostic information and usage patterns as well as be connected to a datastore which stores registration/account information (Ruggiero: [0061-0062], [0073], [0090], [0104]).
Claim 6 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,123,253 in view of Diallo (US 2014/0094721), and further in view of Jacobs (US 11426007).
Regarding claim 6, modified claim 1 of U.S. Patent No. 11,123,253 discloses a controller system having a force sensor and strain gauge to determine tension force (paragraphs [0046] and [0061]), but does not disclose the controller system performs a calibration function to calibrate the tension force applied to the moveable support platform.
Jacobs teaches a therapy device comprising a controller system (A remote control may, for example, include fifteen individual buttons: 13 calibrate; Col. 47, Lines 10-22) performs a calibration function to calibrate the tension force applied to the moveable support platform (“After calibration a full extend soft stop may be set such that movement of an associated chairs does not ram into a hard stop. ¼ and ½ open may be set from an associated hard stop”; Col. 47, Lines 10-22) Col. 24, Lines 65-67 and Col. 25, Lines 1-11 and 56-57. Tension force is calibrated indirectly as a result of this calibration by setting hard and soft stops).
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 controller of modified claim 1 of U.S. Patent No. 11,123,253 to have a calibration button as taught in Jacobs to set a full extend soft stop after calibration such that device does not ram into a hard stop (Jacobs: Col. 47, Lines 10-22), thereby preventing injury to a user.
Claims 7- 9 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,123,253 in view of Diallo (US 2014/0094721), and further in view of Bass (US 7,654,974).
Regarding claim 7, modified claim 1 of U.S. Patent No. 11,123,253 the means for applying the tension force to the moveable support platform is controlled by one or more protocols performed by the controller system, but does not disclose said one or more protocols comprising a protocol completion function.
However, Bass teaches (Fig. 14-18) a therapy device comprising a movable platform (traction device 10) controlled by one or more protocols performed by the controller system (“The doctor can also set the controller's "session treatment time"; Col. 10, Lines 28-29), said one or more protocols (Col. 10, Lines 28-39) comprising a protocol completion function (Col. 10, Lines 28-39).
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 controller of the modified device of modified claim 1 of U.S. Patent No. 11,123,253 to be able to set the controller as taught by Bass in order to have a customizable session treatment time that the actuator will cycle through (Bass: Col. 10, Lines 28-39).
Regarding claim 8, modified claim 1 of U.S. Patent No. 11,123,253 discloses wherein the protocol completion function causes the means for applying the tension force to the moveable support platform to pause for a duration of time at a current configuration and then return to a home position. (“After the 12 minutes are timed out, the seat-bottom actuator motor 245 returns to its pre-distraction neutral position and can shut itself off”; Col. 10, Lines 28-39 Bass).
Regarding claim 9, modified claim 1 of U.S. Patent No. 11,123,253 discloses wherein the one or more protocols: cause the means for applying the tension force to the support platform to apply all of, or one or more portions of, a prescribed tension force to the support platform (“once the desired distraction force is achieved, the doctor may then set the controller 212 to begin intermittent cycling of the actuator motor 245 and repeat the actuator's movement back and forth”; tolerance (patients tolerance of how far the seat is moved away) of distraction force is set by foot pedal; Col. 10, Lines 18-27 Bass).
Regarding claim 10, modified claim 1 of U.S. Patent No. 11,123,253 discloses wherein the one or more protocols comprises a static traction protocol (Diallo discloses controller includes a protocol holds tension until user overcomes, paragraph [0060] Diallo).
Allowable Subject Matter
Claims 1-2 and 6-10 are allowable over the prior art of record, but is currently rejected under non-statutory double patenting. A terminal disclaimer disclaiming the parent application would overcome rejection.
Claims 3-5 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims. Claims 3-5 are also rejected under non-statutory double patenting. A terminal disclaimer disclaiming the parent application would overcome rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Zealand (US 2022/0004167) discloses a knee rehab device having a control system similar to that claimed.
Mason (US 2021/0134457) discloses a knee exercise device having a control system similar to that claimed.
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/MATTHEW R MOON/Examiner, Art Unit 3785
/TIMOTHY A STANIS/Supervisory Patent Examiner, Art Unit 3785