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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 13 January 2026 has been entered.
The Examiner acknowledges the amendments to claim 1, the cancelation of claims 6-8 and 11, and the addition of new claims 13-19. Claims 1 and 12-19 are pending.
Claim Objections
Claim(s) 13-15 and 18-19 is/are objected to because of the following informalities:
Claim 13 should read “[[the]] a length of the second movable arm is from 1.2 to 1.4 times greater than [[the]] a length of the first movable arm” [lines 1-2].
Claim 14 should read “[[that]] than the diameter” [line 2].
Claim 15 should read “[[that]] than the diameter” [line 2].
Claim 18 should read “[[the]] a length of the second movable arm is from 1.2 to 1.4 times greater than [[the]] a length of the first movable arm” [lines 1-2].
Claim 18 should read “[[that]] than the diameter” [line 3-4].
Claim 19 should read “[[the]] a length of the second movable arm is from 1.2 to 1.4 times greater than [[the]] a length of the first movable arm” [lines 1-2].
Claim 19 should read “[[that]] than the diameter” [line 3-4].
Appropriate correction is required.
Claim Interpretation
Examiner Notes: currently, NO limitation invokes interpretation under § 112(f).
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.
Claim9s) 15-19 is/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.
Claim 15 recites the limitation “wherein the first joint has a diameter that is from 1.15 to 1.25 times greater than the diameter of the second joint” [lines 1-2], which is considered indefinite, as it is not clear whether the recited diameter of the first joint and recited diameter of the second joint are meant to be different from the previously defined diameter of the first joint and diameter of the second joint as recited in claim 14 [lines 1-2] or not. For examination purposes, the Examiner has interpreted the diameters as referred to in claim 15 to be the same as the diameters as referred to in claim 14.
Claim 16 recites the limitation “the angle of inclination” [line 3], which is considered to lack antecedent basis as there is no previously defined angle of inclination in claims 1 or 16, and is further considered to render claim 16 indefinite, as claim 16 recites “how far each adjacent arm has spread apart”, such that it is unclear whether “the angle of inclination” is meant to refer to any one or each respective angle between either of the second arm and the third arm and each respective adjacent arm to the second arm and the third arm or not. For examination purposes, the Examiner has interpreted either identified interpretation to be applicable in light of any art applied under § 102 or § 103. The Examiner notes that claim 18 is considered to recite similar subject matter that lacks antecedent basis and is also indefinite [lines 4-7 of claim 19] that is similarly rejected and interpreted to claim 17 above mutatis mutandis.
Claim 16 recites “a joint angle” [line 4], which is considered indefinite, as it is unclear whether the recites joint angle is meant to be different from the previously defined joint angle of claim 1 [line 7] or not. For examination purposes, the Examiner has interpreted the indefinite limitation to read “[[a]] the joint angle”. The Examiner notes that claims 17 [line 3], 18 [lines 6-7], and 19 [line 6] each recite similarly indefinite subject matter that is similarly rejected and interpreted to claim 16 above mutatis mutandis.
Claim 17 recites the limitations “the angle of slope” [line 2] and “the angle of inclination” [line 3], which are each considered to lack antecedent basis as there is no previously defined angle of slope or angle of inclination in claims 1 and 17, and wherein claim 17 is further considered indefinite, as claim 17 recites that the first/second dial measure “the angle of slope with respect to the adjacent arm to determine the angle of inclination” [lines 2-3], while the Examiner notes that the first dial is adjacent the first arm and the third arm, such that it is unclear whether the angle of slope of the adjacent arm is meant to refer to each or any of an angle of slope between the second arm and the first/third arms. For examination purposes, the Examiner has interpreted either identified interpretation to be applicable in light of any art applied under § 102 or § 103. The Examiner notes that claim 19 is considered to recite similar subject matter that lacks antecedent basis and is also indefinite [lines 4-6 of claim 19] that is similarly rejected and interpreted to claim 17 above mutatis mutandis.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim(s) 15 is/are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 15 fails to further limit the subject matter of claim 14, as claim 15 only recites “wherein the first joint has a diameter that is from 1.15 to 1.25 times greater that the diameter of the second joint”, which is already recited in claim 14.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 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 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.
Claim(s) 1, 13-15, 17, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shim (US-20150231018-A1, previously presented) in view of Snow (US-20200069452-A1, previously presented) and Stark (US-20050113652-A1, previously presented, hereinafter Stark ‘652) which incorporates by reference Stark (US-5052375-A, previously presented, hereinafter Stark ‘375) [see Stark ‘375 ¶0078 (MPEP § 2131.01(I)].
Regarding claim 1, Shim teaches
A hip knee range of motion measurement device for physical therapy, comprising:
a first movable arm having first and second ends [second waist support unit 14 (Shim Figures 1-2), see Annotated Fig. 1];
a first joint attached to the first end of the first movable arm [first joint 21 (Shim Figures 1-2)];
a second movable arm having first and second ends [first link 22 (Shim Figures 1-2), see Annotated Fig. 1], wherein the first end of the second movable arm is attached to the first joint [The first joint 21 is a part corresponding to the hip joint of the human body and is provided in a connection region of a second waist support unit 14 and the first link 22 (Shim ¶0066, Figures 1-2)];
a first dial attached to the second movable arm [The first detection unit 200a may include at least one of, for example, a joint angle sensor, an inclination sensor, an acceleration sensor, and an inertial measurement unit (IMU). The first detection unit 200a may be installed in at least one of the first joint 21 and the first link 22 (Shim ¶0100), wherein based on the Applicant’s definition of a “dial” on p. 9:16-18 of the Applicant’s Specification, the joint angle sensor of Shim is considered to be a “structure that is capable of measuring a slope, an elevation, or an angle of inclination of a specific axial axis of a body part of joint angle with respect to an adjacent arm”];
a second joint attached to the second end of the second movable arm [second joint 31 (Shim Figures 1-2)];
a third movable arm having first and second ends [second link 32 (Shim Figures 1-2), see Annotated Fig. 1], wherein the first end of the third movable arm is attached to the second joint [The second joint 31 is a part corresponding to the knee joint of the human body, and is provided in a connection region of the first link 22 and the second link 32 (Shim ¶0074, Figures 1-2)];
a second dial attached to the third movable arm [The second detection unit 200b may include at least one of the joint angle sensor, the inclination sensor, the acceleration sensor, and the IMU. The second detection unit 200b may be installed in at least one of the second joint 31 and the second link 32 (Shim ¶0102), wherein based on the Applicant’s definition of a “dial” on p. 9:16-18 of the Applicant’s Specification, the joint angle sensor of Shim is considered to be a “structure that is capable of measuring a slope, an elevation, or an angle of inclination of a specific axial axis of a body part of joint angle with respect to an adjacent arm”]; and
a first movable strap attached to the first movable arm [the second waist fixing unit 12 may fix the housing 10a to the waist or buttocks of the wearer. The first waist fixing unit 11 and the second waist fixing unit 12 may be made of a metal material or an elastic material such as rubber. The first waist fixing unit 11 and the second waist fixing unit 12 may be provided in the form of a chain, a band with elasticity, or various kinds of straps (Shim ¶0091, Figures 1-2)], a second movable strap attached to the second movable arm [a first fixing unit 23 for fixing the first link 22 to the femoral region of the wearer may be provided in an inner side or an outer side of the first link 22 (Shim ¶0069, Figure 1)); the first fixing unit 23 may be made of a metal material, an elastic material such as rubber and the like. The first fixing unit 23 may be implemented in the form of a chain as shown in FIG. 1, in the form of a band with elasticity, or in the form of a strap, however example embodiments are not limited thereto (Shim ¶0072)], and a third movable strap attached to the third movable arm [at least one second fixing unit 33 and 34 for fixing the second link 32 to the lower thigh region of the wearer may be provided in an inner side or an outer side of the second link 32 (Shim ¶0076, Figure 1); Meanwhile, configurations, structures, materials, and the like of the second fixing units 33 and 34 may be the same as those of the first fixing unit 23 (Shim ¶0079)]; wherein
the first movable arm is configured to remain longitudinally oriented with a horizontal axis of a pelvis of a clinical patient with the first movable strap [the first waist fixing unit 11 and the second waist fixing unit 12 may include various fixing means which can be considered by those skilled in the art in order to fix the first waist support unit 13 or the housing 10a to the waist, the buttocks, or the like (Shim ¶0091), wherein as depicted in Shim Figures 1-2, the second waist fixing unit 12 maintains the second waist support unit 14 about the patient’s pelvic region], the second movable arm is configured to remain in axial alignment to a horizontal axis of a femur of the clinical patient with the second movable strap [Thus, when the first link 22 is rotated, the femoral region of the wearer fixed to the first link 22 by the first fixing unit 23 may be rotated in the same direction as the first link 22 (Shim ¶0069)], and the third movable arm is configured to remain in axial alignment to a horizontal axis of a tibia of the clinical patient with the third movable strap [Thus, when the second link 32 is rotated, the lower thigh region of the wearer fixed to the second link 32 by the second fixing units 33 and 34 may be rotated in the same direction as the second link 32 (Shim ¶0076), wherein as depicted in Figures 1-2 of Shim, the second link is positioned about the tibia of the patient]; and
the first joint is configured to be positioned adjacent to a hip joint of the clinical patient, is configured to remain longitudinally oriented with a horizontal axis of a hip of the clinical patient [The joint may include a first joint and a second joint respectively corresponding to a hip joint and a knee joint of the wearer, and the link may include a first link that connects the first joint and the second joint and is rotated in response to rotation of the first joint (Shim ¶0011, Figures 1-2); the first joint may be rotated in a front, rear, left, or right direction of the wearer in response to movement of the hip joint when the wearer walks (Shim ¶0017); The first joint 21 is a part corresponding to the hip joint of the human body (Shim ¶0066)]; and
the second joint is configured to be positioned adjacent to a knee joint of the clinical patient [Shim ¶0011, Figures 1-2; The second joint 31 is a part corresponding to the knee joint of the human body (Shim ¶0074)]; and
the first and second dials are configured to measure a joint angle of the clinical patient [The first measuring unit 210a is connected to the first joint 21 to obtain information related to movements of the first joint 21. The information related to the movement of the first joint 21 may include at least one of a rotation angle (Shim ¶0101); The second measuring unit 210b may obtain information related to the movement of the second joint 31. The information related to the movement of the second joint 31 may include at least one of a rotation angle (Shim ¶0103)]; and
the first, second, and third movable arms are coplanar [wherein as depicted in Figures 1-2 of Shim, the second waist support unit 14, the first link 22, and the second link 32 are disposed within the same plane]; and
wherein the first, second, and third movable arms are configured to measure an angle of knee flexion while the hip joint is stabilized [In addition, the main body 10 supports an upper body of the wearer to assist the wearer in stably wearing the walk-assistive apparatus 1 (Shim ¶0083), wherein the second waist support unit 14, the first link 22, and the second link 32 being respectively fixed (Shim ¶¶0091, 0069, 0076) to each of the waist, the thigh, and the shank is considered to read on the claimed limitation, and wherein the stabilization is considered to occur during measurement of a popliteal angle of the clinical patient based on ¶¶0102-0103 of Shim disclosing measuring the knee angle, as the knee angle as measured by Shim is considered to be an angle of knee flexion, which is further considered to be the popliteal angle (see Applicant’s Specification p. 2:5), wherein it is understood that the popliteal angle may be measured at any time, such that the device is considered to be configurable to perform the measurement while the hip is stabilized].
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Annotated Figure 1. Figure 2 of Shim has been annotated to identify the first and second end of each of the first, second, and third movable arms.
However, while Shim discloses that the range of rotation allowed by at least the first joint is within an operation range of the corresponding joint of the patient [A range of the rotation of the first joint 21 may be within an operation range of the hip joint of the wearer (Shim ¶0069)], Shim is silent regarding a specific rotatable range of motion of the first joint and the second joint, such that Shim fails to explicitly disclose wherein the first joint is rotatable through 180 degrees and wherein the second joint is rotatable through 180 degrees.
Snow discloses a hip and thigh brace configured to be worn by a patient, wherein Snow discloses a range of motion of the brace allowing for a joint of the brace to be rotatable through 180 degrees based on a range of motion of the patient [For instance, a set of one or more openings may be provided in which motion stops (e.g., 516) may be inserted and secured to lock the range of motion stops for the brace 100. For instance, the openings may define a range of motion adjustable up to 90 degrees of flexion (or more) (e.g., range of motion restrictions ranging from −90 degrees extension to 90 degrees of flexion) (Snow ¶0029), wherein +90 degrees of flexion and -90 degrees of extension is considered to be a range of motion of 180 degrees].
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 device of Shim to employ wherein the first joint is rotatable through 180 degrees and wherein the second joint is rotatable through 180 degrees, so as to accommodate different ranges of motion of patients.
However, Shim in view of Snow fails to explicitly disclose wherein the first joint comprises a first lock to secure the hip joint at a predetermined angle within the device and wherein the second joint comprises a second lock to secure the knee joint at a predetermined angle within the device, such that the measured angle of knee flexion while the hip joint is stabilized is at the predetermined angle by the first lock.
Stark ‘375 discloses a hip knee range of motion device for physical therapy, wherein Stark ‘375 discloses that the device comprises a first movable arm [support section 820 (Stark ‘375 Fig. 20)], a first joint attached to the first movable arm [hip hinge 804 (Stark ‘375 Fig. 20)], a second movable arm attached to the first joint [thigh support 806 (Stark ‘375 Fig. 20)], wherein the first joint comprises a lock to secure the hip joint at a desired angle within the device [Hinges 108, 110, 136 preferably can be locked at a selected angle to protect the joint from undesired motion and/or to provide for isometric exercises. Hinges 108, 110 can be mechanical, electromechanical or a combination thereof, as described further below. In preferred embodiments, the hinge/flexible connection includes a position sensor such that the relative orientation of the hinge can be measured and monitored by the controller 112 (Stark ‘375 ¶0078); To perform the isometric exercises of a particular joint, the corresponding hinge is adjusted to a particular angle. If a manual hinge is used, the hinge is manually adjusted. The controller may instruct the patient if the hinge is set at the desired angle (Stark ‘375 ¶0166); When the engaging members 22a and 24a are tightened together in this manner, as shown in FIGS. 6 and 7, an angle between the respective distal end sections 6aa' and 6ab' of the elongated restraining bar 6a' will be fixed and the device 2' can then be used to restrain an individual wearing or engaged in the device 2' conducting isometric exercises at a series of different degree of flexion generally corresponding to this angle (Stark ‘652 Col 18:7-14), such that it is understood that a first hinge (joint) of Stark ‘375 may be locked at a certain angle while another hinge (second joint) may be unlocked to allow for measurement of an angle at the unlocked hinge, wherein any desired angle for range of motion testing or isometric exercises is considered to read on the hinge being configurable to secure the hip joint at a predetermined angle].
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 device of Shim in view of Snow to employ wherein the first joint comprises a lock to secure the hip joint at 90 degrees within the device, so as to allow for the clinical patient to perform isometric exercises while the hip is secured at a desired angle as part of a physical therapy routine.
Regarding claim 13, Shim in view of Snow and Stark ‘652, which incorporates Stark ‘375 by reference, teaches
The device of claim 1.
However, while Shim in view of Snow and Stark ‘375 and Stark ‘652 discloses wherein the length of the second arm, the length of the third arm are adjustable to accommodate different sizes of patients [Shim ¶¶0068, 0075], Shim fails to explicitly disclose wherein the length of the second movable arm is from 1.2 to 1.4 times greater than the length of the first movable arm and the third movable arm.
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 length of the second movable arm to be from 1.2 to 1.4 times greater than the length of the first movable arm and the third movable arm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 US. 830, 225 SPQ 232 (1984). In the instant case, the device of Shim in view of Snow and Stark ‘375 and Stark ‘652 would not operate differently with the claimed length adjustability limit, and since Shim in view of Snow and Stark ‘375 and Stark ‘652 is considered to disclose slidable adjustability to accommodate any size of patient, the device would function appropriately having the claimed adjustable length limit. Further it appears the Applicant places no criticality on the adjustable length limit claimed, indicating that the length limit “may” be adjustable to such a length [Applicant’s Specification p. 8:1-4].
Regarding claim 14, Shim in view of Snow and Stark ‘652, which incorporates Stark ‘375 by reference, teaches
The device of claim 1.
However, Shim fails to explicitly disclose wherein the first joint has a diameter that is from 1.15 to 1.25 times greater that the diameter of the second joint.
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 diameter of the first joint to be from 1.15 to 1.25 times greater than the diameter of the second joint since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 US. 830, 225 SPQ 232 (1984). In the instant case, the device of Shim in view of Snow and Stark ‘375 and Stark ‘652 would not operate differently with the claimed length adjustability limit, the device would function appropriately having the claimed diameter proportions. Further it appears the Applicant places no criticality on the diameter proportions as claimed, indicating that the diameters “may” be within such a relative range [Applicant’s Specification p. 8:25-9:3].
Regarding claim 15, Shim in view of Snow and Stark ‘652, which incorporates Stark ‘375 by reference, teaches
The device of claim 14, wherein the first joint has a diameter that is from 1.15 to 1.25 times greater that the diameter of the second joint [see § 103 modification to claim 14 above].
Regarding claim 17, Shim in view of Snow and Stark ‘652, which incorporates Stark ‘375 by reference, teaches
The device of claim 1, wherein the first dial and second dial are each digital inclinometers that measure the angle of slope with respect to the adjacent arm to determine the angle of inclination as a signal input, thereby determining a joint angle [Shim ¶¶0100, 0102].
Regarding claim 19, Shim in view of Snow and Stark ‘652, which incorporates Stark ‘375 by reference, teaches
The device of claim 1, wherein the first dial and second dial are each digital inclinometers that measure the angle of slope with respect to the adjacent arm to determine the angle of inclination as a signal input, thereby determining a joint angle [Shim ¶¶0100, 0102].
However, while Shim in view of Snow and Stark ‘375 and Stark ‘652 discloses wherein the length of the second arm, the length of the third arm are adjustable to accommodate different sizes of patients [Shim ¶¶0068, 0075], Shim fails to explicitly disclose wherein the length of the second movable arm is from 1.2 to 1.4 times greater than the length of the first movable arm and the third movable arm, and wherein the first joint has a diameter that is from 1.15 to 1.25 times greater that the diameter of the second joint.
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 length of the second movable arm to be from 1.2 to 1.4 times greater than the length of the first movable arm and the third movable arm, and to have modified the diameter of the first joint to be from 1.15 to 1.25 times greater than the diameter of the second joint since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 US. 830, 225 SPQ 232 (1984). In the instant case, the device of Shim in view of Snow and Stark ‘375 and Stark ‘652 would not operate differently with the claimed length adjustability and joint diameter limit, and since Shim in view of Snow and Stark ‘375 and Stark ‘652 is considered to disclose slidable adjustability to accommodate any size of patient, the device would function appropriately having the claimed adjustable length limit. Further it appears the Applicant places no criticality on the adjustable length limit and the diameter proportions as claimed, indicating that the length limit “may” be adjustable to such a length [Applicant’s Specification p. 8:1-4] and that the diameters “may” be within such a relative range [Applicant’s Specification p. 8:25-9:3].
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shim in view of Snow and Stark ‘375 and Stark ‘652, as applied to claim 1 above, in further view of Kupfer (US-6152890-A, previously presented).
Regarding claim 12, Shim in view of Snow and Stark ‘652, which incorporates Stark ‘375 by reference, teaches
The device of claim 1, a length of the second movable arm, and a length of the third movable arm are each adjustable [A length of the first link 22 may be adjustable. Thus, the wearer may adjust the length of the first link 22 to match the length of his or her own femoral region before or while wearing the walk-assistive apparatus 1 (Shim ¶0068); Also, a length of the second link 32 may be adjustable in the same manner as the first link 22. Thus, the wearer may adjust the length of the first link 22 to match his or her own lower thigh region before or while wearing the walk-assistive apparatus 1 (Shim ¶0075)].
However, Shim in view of Snow and Stark ‘375 and Stark ‘652 fails to explicitly disclose wherein a length of the first movable arm, the second movable arm, and the third movable arm are slidably adjustable by half the total length of the first movable arm, the second movable arm, and the third movable arm respectfully.
Kupfer discloses a kip knee range of motion measurement device, wherein Kupfer discloses a movable arm [flexible, length-adjustable hip-knee connection 5 (Kupfer Figure 1)] that is slidably adjustable by an unspecified length to fit a patient’s thigh [Flexible, telescopic hip-knee connections, which can be adjusted to the length of the thigh and are easily detached at a quick-release catch 5a, are used to set both the knee angle sensors 1 and the hip angle sensors 4 (Kupfer Col 4:22-26), wherein being telescopic is considered to read on being slidable].
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 device of Shim in view of Snow and Stark ‘375 and Stark ‘652 to employ wherein a length of the first arm is adjustable and wherein the lengths of the first movable arm, the second movable arm, and the third movable arm are slidably adjustable, in order to allow for a more customizable fit to the patient [Kupfer Col 4:22-26]; to have modified the second movable arm and the third movable arm to have lengths that are slidably adjustable, as this modification would amount to mere simple substitution of one known element [adjustable mechanism of Shim] for another [telescopic adjustable mechanism of Kupfer] with similar expected results [MPEP § 2143(I)(B)]; and to have modified slidable adjustability of the first movable arm, the second movable arm, and the third movable arm to be adjustable by half the total length of the first movable arm, the second movable arm, and the third movable arm respectfully, since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 US. 830, 225 SPQ 232 (1984). In the instant case, the device of Shim in view of Snow and Stark ‘375 and Stark ‘652 would not operate differently with the claimed length adjustability limit, and since Shim in view of Snow and Stark ‘375 and Stark ‘652 is considered to disclose slidable adjustability to accommodate any size of patient, the device would function appropriately having the claimed adjustable length limit. Further it appears the Applicant places no criticality on the adjustable length limit claimed, indicating that the length limit “may” be adjustable to such a length [Applicant’s Specification p. 15:7-20].
Claim(s) 16 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shim in view of Snow and Stark ‘375 and Stark ‘652, as applied to claim 1 above, in further view of DeSena (US-20230380763-A1, effective filing date of 5 May 2022).
Regarding claim 16, Shim in view of Snow and Stark ‘652, which incorporates Stark ‘375 by reference, teaches
The device of claim 1.
However, Shim in view of Snow and Stark ‘375 and Stark ‘652 fails to explicitly disclose wherein the first dial and second dial are each an electrical resistive wheel that uses a photoelectric detector to determine how far each adjacent arm has spread apart to determine the angle of inclination as a signal input, thereby determining a joint angle.
DeSena discloses systems for monitoring hip and knee range of motion, wherein DeSena discloses the use of an electrical resistive wheel that uses a photoelectric detector to determine how far one arm has spread apart from an adjacent arm connected by a joint to determine an angle of inclination to determine a joint angle [A variety of angular position and time sensors such as rotary encoders (e.g., capacitive, magnetic, optical, variable resistance, transmissive, reflective, etc.) may be utilized to capture angular position and time. For example, FIG. 5 schematically illustrates an optical incremental encoder that may be incorporated into each of the joint modules of the present invention. The rotary encoder comprises a disk 210 comprising at least one annular ring of alternating clear and opaque sections 212, 214. The disk can be formed from glass, plastic or metal among other materials, and the clear (transmissive) and opaque sections 212, 214 can be formed by etching, printing, embossing or any other suitable method. The disk 210 is fixed to a pin 216 which may be secured with respect to the femoral strut 20, such that the pin and disk rotate in use relative to a housing which is fixed with respect to the wearers' pelvis in the example of a hip module 60. Referring to FIG. 5, the disk 210 is interposed between one or more light sources 218 and one or more corresponding sensors 220 with associated circuitry, and positioned such that the light sources 218 and sensors 220 are arranged on either side of the circumferential edge comprising the clear and opaque portions 212, 214. In a reflective configuration, the light sources and sensors may be positioned on the same side of the disc (DeSena ¶0074)].
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 device of Shim in view of Snow and Stark ‘375 and Stark ‘652 to employ wherein the first dial and second dial are each an electrical resistive wheel that uses a photoelectric detector to determine how far each adjacent arm has spread apart to determine the angle of inclination as a signal input, thereby determining a joint angle, as this modification would amount to mere simple substitution of one known element [first dial and second dial as defined by Shim] for another [optical incremental encoder as defined by DeSena] to obtain predictable results [measure a joint angle] [MPEP § 2143(I)(B)].
Regarding claim 18, Shim in view of Snow and Stark ‘652, which incorporates Stark ‘375 by reference, teaches
The device of claim 1.
However, while Shim in view of Snow and Stark ‘375 and Stark ‘652 discloses wherein the length of the second arm, the length of the third arm are adjustable to accommodate different sizes of patients [Shim ¶¶0068, 0075], Shim fails to explicitly disclose wherein the length of the second movable arm is from 1.2 to 1.4 times greater than the length of the first movable arm and the third movable arm, and wherein the first joint has a diameter that is from 1.15 to 1.25 times greater that the diameter of the second joint.
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 length of the second movable arm to be from 1.2 to 1.4 times greater than the length of the first movable arm and the third movable arm, and to have modified the diameter of the first joint to be from 1.15 to 1.25 times greater than the diameter of the second joint since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 US. 830, 225 SPQ 232 (1984). In the instant case, the device of Shim in view of Snow and Stark ‘375 and Stark ‘652 would not operate differently with the claimed length adjustability and joint diameter limit, and since Shim in view of Snow and Stark ‘375 and Stark ‘652 is considered to disclose slidable adjustability to accommodate any size of patient, the device would function appropriately having the claimed adjustable length limit. Further it appears the Applicant places no criticality on the adjustable length limit and the diameter proportions as claimed, indicating that the length limit “may” be adjustable to such a length [Applicant’s Specification p. 8:1-4] and that the diameters “may” be within such a relative range [Applicant’s Specification p. 8:25-9:3].
However, Shim in view of Snow and Stark ‘375 and Stark ‘652 fails to explicitly disclose wherein the first dial and second dial are each an electrical resistive wheel that uses a photoelectric detector to determine how far each adjacent arm has spread apart to determine the angle of inclination as a signal input, thereby determining a joint angle.
DeSena discloses systems for monitoring hip and knee range of motion, wherein DeSena discloses the use of an electrical resistive wheel that uses a photoelectric detector to determine how far one arm has spread apart from an adjacent arm connected by a joint to determine an angle of inclination to determine a joint angle [A variety of angular position and time sensors such as rotary encoders (e.g., capacitive, magnetic, optical, variable resistance, transmissive, reflective, etc.) may be utilized to capture angular position and time. For example, FIG. 5 schematically illustrates an optical incremental encoder that may be incorporated into each of the joint modules of the present invention. The rotary encoder comprises a disk 210 comprising at least one annular ring of alternating clear and opaque sections 212, 214. The disk can be formed from glass, plastic or metal among other materials, and the clear (transmissive) and opaque sections 212, 214 can be formed by etching, printing, embossing or any other suitable method. The disk 210 is fixed to a pin 216 which may be secured with respect to the femoral strut 20, such that the pin and disk rotate in use relative to a housing which is fixed with respect to the wearers' pelvis in the example of a hip module 60. Referring to FIG. 5, the disk 210 is interposed between one or more light sources 218 and one or more corresponding sensors 220 with associated circuitry, and positioned such that the light sources 218 and sensors 220 are arranged on either side of the circumferential edge comprising the clear and opaque portions 212, 214. In a reflective configuration, the light sources and sensors may be positioned on the same side of the disc (DeSena ¶0074)].
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 device of Shim in view of Snow and Stark ‘375 and Stark ‘652 to employ wherein the first dial and second dial are each an electrical resistive wheel that uses a photoelectric detector to determine how far each adjacent arm has spread apart to determine the angle of inclination as a signal input, thereby determining a joint angle, as this modification would amount to mere simple substitution of one known element [first dial and second dial as defined by Shim] for another [optical incremental encoder as defined by DeSena] to obtain predictable results [measure a joint angle] [MPEP § 2143(I)(B)].
Response to Arguments
Applicant’s arguments, see Applicant’s Remarks p. 6, filed 13 January 2026, with respect to the previously applied rejection(s) under § 112(b) have been fully considered and are persuasive. The rejection of claim 6 under § 112(b) has been withdrawn.
Applicant’s arguments, see Applicant’s Remarks p. 6-8, with respect to the rejection(s) of claim(s) 1 and those dependent therefrom under § 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Shim (US-20150231018-A1, previously presented) in view of Snow (US-20200069452-A1, previously presented) and Stark (US-20050113652-A1, previously presented, hereinafter Stark ‘652) which incorporates by reference Stark (US-5052375-A, previously presented, hereinafter Stark ‘375) [see Stark ‘375 ¶0078 (MPEP § 2131.01(I)].
The Applicant asserts that the amendments to claim 1 wherein the first joint is “is rotatable through 180 degrees, and comprises a first lock to secure the hip joint at a predetermined angle within the device” and wherein the second joint is “is rotatable through 180 degrees, and comprises a second lock to secure the knee joint at a predetermined angle within the device” fail to be taught or suggested by the cited references. However, the Examiner notes that Applicant’s arguments with respect to claim(s) 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Shim is further modified by Snow, as Snow discloses a range of motion of a brace allowing for a joint of the brace to be rotatable through 180 degrees based on a range of motion of the patient [For instance, a set of one or more openings may be provided in which motion stops (e.g., 516) may be inserted and secured to lock the range of motion stops for the brace 100. For instance, the openings may define a range of motion adjustable up to 90 degrees of flexion (or more) (e.g., range of motion restrictions ranging from −90 degrees extension to 90 degrees of flexion) (Snow ¶0029), wherein +90 degrees of flexion and -90 degrees of extension is considered to be a range of motion of 180 degrees], such that based on the additional modification by Stark ‘375 and Stark ‘652, the combination of Shim in view of Snow and Stark ‘375 and Stark ‘652, the combination is considered to read on the argued amended limitations.
The Applicant further asserts that the limitations of new claims 13-15 and 18-19 wherein “the length of the second movable arm is from 1.2 to 1.4 times greater than the length of the first movable arm and the third movable arm” and “the first joint has a diameter that is from 1.15 to 1.25 times greater that the diameter of the second joint” fail to be taught or suggested by the cited references. However, the Examiner notes that the argued subject matter is considered to only be a difference of relative dimensions, wherein the Applicant has failed to place any criticality on the claimed relative dimensions, such that the claimed relative dimensions are considered to be rendered obvious [Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 US. 830, 225 SPQ 232 (1984)].
The Applicant also asserts that the limitation of new claims 16 and 18 wherein “the first dial and second dial are each an electrical resistive wheel that uses a photoelectric detector to determine how far each adjacent arm has spread apart to determine the angle of inclination as a signal input, thereby determining a joint angle” fails to be taught or suggested by the cited references. However, the Examiner notes that Applicant’s arguments with respect to claim(s) 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Shim in view of Snow and Stark ‘375 and Stark ‘652 is further modified by DeSena (US-20230380763-A1) [effective filing date of 5 May 2022], which teaches an electrical resistive wheel that uses a photoelectric detector to determine how far an adjacent arm has spread apart to determine an angle of inclination as a signal input, thereby determining a joint angle [A variety of angular position and time sensors such as rotary encoders (e.g., capacitive, magnetic, optical, variable resistance, transmissive, reflective, etc.) may be utilized to capture angular position and time. For example, FIG. 5 schematically illustrates an optical incremental encoder that may be incorporated into each of the joint modules of the present invention. The rotary encoder comprises a disk 210 comprising at least one annular ring of alternating clear and opaque sections 212, 214. The disk can be formed from glass, plastic or metal among other materials, and the clear (transmissive) and opaque sections 212, 214 can be formed by etching, printing, embossing or any other suitable method. The disk 210 is fixed to a pin 216 which may be secured with respect to the femoral strut 20, such that the pin and disk rotate in use relative to a housing which is fixed with respect to the wearers' pelvis in the example of a hip module 60. Referring to FIG. 5, the disk 210 is interposed between one or more light sources 218 and one or more corresponding sensors 220 with associated circuitry, and positioned such that the light sources 218 and sensors 220 are arranged on either side of the circumferential edge comprising the clear and opaque portions 212, 214. In a reflective configuration, the light sources and sensors may be positioned on the same side of the disc (DeSena ¶0074)].
The Applicant finally asserts that the limitation of new claims 17 and 19 wherein “the first dial and second dial are each digital inclinometers that measure the angle of slope with respect to the adjacent arm to determine the angle of inclination as a signal input, thereby determining a joint angle” fails to be taught or suggested by the cited references. However, the Examiner disagrees, as Shim discloses the use of digital inclinometers as claimed [The first detection unit 200a may include at least one of, for example, a joint angle sensor, an inclination sensor, an acceleration sensor, and an inertial measurement unit (IMU). The first detection unit 200a may be installed in at least one of the first joint 21 and the first link 22 (Shim ¶0100)].
Conclusion
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/SEVERO ANTONIO P LOPEZ/Examiner, Art Unit 3791