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 .
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 2, 4-8 are rejected under 35 U.S.C. 103 as being unpatentable over Joutras et al (5,954,621) hereinafter (Joutras) in view of Johnson (8,292,760) and Hopkins et al (8,601,734) hereinafter (Hopkins).
Claim 1, Joutras discloses an orthotic device (figure 56; column 25, lines 47-60) comprising:
a first support member (splint member 26A) having a first end (upper and lower affixed members 33A; see figures 1 and 2 for details);
a second support member (splint member 28A) having a second end (upper and lower snap-on portions 35A; see figures 1 and 2 for details);
a pivot joint (pivot joints 24A, 24B; shown in figures 1 and 2) centered about [[the]] a point where the first end of the first support member (26A) and the second end of the second support member (28A) meet;
one or more retention means for affixing (first support means 20 and second support means 22) the orthotic device to a user’s arm (exercise arm 12A; figure 56), wherein;
when the orthotic device is worn on the user’s arm (figure 56), the first support member is positioned on the user’s upper arm, the second support member is positioned on a user’s forearm, and the pivot joint is positioned at a lateral portion of the user’s elbow (figure 56 shows the second support member is positioned on a user’s forearm, and the pivot joint is positioned at a lateral portion of the user’s elbow) on the user’s forearm, and the pivot joint is positioned at the user’s elbow;
the arrangement of the first end relative to the second end in the pivot joint prevent the orthotic device from forming an angle less than 90° between the first support member and the second support member (as shown in figure 56, the angle between the first and second support members is slightly greater than 90°).
Joutras shows the control module may provide a resistance program to provide programmed resistance at different angles during a pivotable action (figure 56 shows the angle to be slightly greater than 90°). Joutras discloses the desirability to adjust the angle but does not expressly disclose the range of angles which may be utilized i.e.forming an angle less than or more than 90°. However, as disclosed by Johnson it is known in the art to use a pivot joint that is capable of being adjusted less than or more than 90° (column 2, lines 42-50; in one embodiment the angle A can be from about 90 degrees to about 135 degrees. In another embodiment the range of angle A can be from about 90 degrees to about 110 degrees).
Joutras discloses the claimed device with the exception of the first and second support members having an end which includes a plurality of interleaving fingers. However, Hopkins discloses (column 1, lines 33-39; column 3, lines 13-24; figures 1, 2, 6) it is known in the art to utilize an interleaved fingers to form a pivot joint. It would have been obvious to one of ordinary skill in the art to have used such a pivot joint for Joutras’ device given that Hopkins teaches such is a known manner of forming a pivot joint which allows for easy pivotal movement. One would have reasonably expected the Hopkins’ interleaved pivot joint incorporated into Joutras’ device to be predictably successful because both are in the same field of endeavor and are attempting to solve the same problem of providing pivotal movement to a device.
Claim 2, Joutras shows the one or more retention means is a strap (20 and 22; figures 1 and 2).
Claim 4, Joutras shows the first support member (26A) comprises an enlarged portion, wherein the enlarged portion has a width greater than the width of the second support member (28A; figures 1, 2 and 56 show the enlarged portion).
Claim 5, Joutras discloses the claimed device with the exception of a connecting strap removably connected to the first and second support members. The Examiner takes Official Notice that the use of a connecting strap is old and well known and obvious to incorporate because it aids in further securing the device on the user’s arm.
Claim 6, Joutras shows the connecting strap (20, 22) is connected to a first attachment point (figures 1, 2 and 56 show the attachment point) on the first support member (26A) and to a second attachment point (figures 1, 2 and 56 show the attachment point) on the second support member (28A).
Claim 7, Joutras shows that the straps are hook-and-loop material which may be formed of a material that is “stretchable”. It is noted that most material used for hook-and-loop material have some degree of stretchability.
Claim 8, Joutras shows that the straps are hook-and-loop material and are adjustable in length. It is noted that most material used for hook-and-loop material have some degree of stretchability i.e. adjusted in length or alternatively may be adjusted in order to fit the user.
Response to Arguments
Applicant's arguments filed 10 September 2025 have been fully considered but they are not persuasive. With regards to the Johnson patent, it is noted that the Johnson patent has been relied upon as a teaching reference in order to demonstrate that hinges are known in the art to pivot within the claimed range of less than or greater than 90 degrees. The Joutras reference shows the pivot joint is capable of pivoting but does not expressly disclose the range of motion. The structure of Johnson was not incorporated in to the Joutras reference, in other words, the Joutras structure was not modified by Johnson as applicant appears to be suggesting. With regards to the limitation “interleaved or interleaving” first and second fingers, the application as filed has placed no criticality with regards to this type of pivot hinge, absent placing criticality by applicant for this type of pivotal attached, one of ordinary skill in the art would have utilized any available and known pivotal hinge for connecting the upper and lower segments. The patent to Howard shows the first and second support members having a plurality of fingers on one end which are interleaved for pivotal movement. Additionally, by way of example the patent to Forney (594,865) shows a bifurcated pivot hinge. Selecting and utilizing a known hinge is not considered patentable subject matter by this examiner.
It is the examiner’s position that Joutras as modified above reads on the pending claims.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MITRA ARYANPOUR whose telephone number is (571)272-4405. The examiner can normally be reached on Mon, Thur, Fri 8:00am to 4:00pm, Wed 8:00-2:00
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eugene Kim can be reached on 571-272-4463. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MITRA ARYANPOUR/Primary Examiner, Art Unit 3711
/ma/
22 December 2025