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 Objections
Claims 3, 7, 9, 10 are objected to because of the following informalities:
Claim 3 is objected to for referring to “the detected measurement data” with improper antecedent basis.
Further, the claim is unclear for referring to “input signals” when it is unclear how, if at all, these input signals relate to the previous claimed “input signals” of claim 1, from which this claim indirectly depends.
Claim 7 is objected to for referring to ‘two different control signals” when it is unclear how, if at all, these “control signals” relate to the previously claimed “control signals” of claim 5, from which this claim depends.
Claim 9 is objected to for claiming the “sensor information comprise” when it appears an “s” is missing at the end of “comprise”.
The claim is further objected to for referring to the orthopedic device’s “part thereof” with improper antecedent basis.
Claim 10 is objected to for referring to “the sensor information” with improper antecedent basis.
Appropriate correction is required.
Drawings
The drawings are objected to because :
-items 12, 22, and 24 all are used to refer to the “musculoskeletal model”
-item 24 is used to represent both “musculoskeletal model” and “user-specific module unit”
- items 18 and 22 point to the same thing in figure 2
-item 18 points to two different things in figures 2 and 3
-item 20 points to two different things in figure 3
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 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 1-16 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 pre-AIA the applicant regards as the invention.
Claim 1 is indefinite for referring to having input signals being input variables of a “musculoskeletal model” but it is unclear what the scope of this term might mean. The Examiner notes that the model is discussed at length in the specification (pages 3-5), where it is discussed at the model determines feedback signals, models at least one limb, a joint, or a part of a human body, has information about bones, muscles and/or tendons and models corresponding degrees of freedom and movement, models parameters of the device during intended movement including position, orientation, velocity, acceleration, angular velocity of the device or parts thereof, forces, momentum, or muscle length, etc., the model comprises a number of mathematical equations used to mathematically describe motions and acting forces that can occur with the device, the model is stored in an electronic data storage, the model contains a mathematical model that describes the musculoskeletal system specific to the user, for amputees it reproduces and approximates the missing limb and musculoskeletal dynamics and kinematics, the basic model can remain unchanged but individualization can be adjusted and optimized by tuning model parameters, etc. Notably, while all this is discussed as being features of the model, the Examiner is not clear what exactly the model IS and what its scope is/needs to be for the purposes of examination. For example, the Examiner is unclear if the scope of the term should encompass all of the above, and a prior art should disclose all the above in order to anticipate the “musculoskeletal model”, or whether one of these might be sufficient to anticipate the claim, or if perhaps, none need to be taught or discussed at all, since the specification need not be read into the claims. It is possible that any computer program which receives input signals as variables that determines feedback signals is suitable to meet the limitations of the claim. However, the Examiner is unclear, so clarification is required. For the purposes of examination, the last suggestion will be used, so any computer program which receives input signals and determines feedback signals will be considered to meet the limitations of the claim.
Claim 5 is indefinite for claiming the control signals are determined using “another musculoskeletal model” when it is unclear what it would mean to use “another musculoskeletal model” and whether or not the other model has the same scope/requirements as the musculoskeletal model of claim 1. If it does not have the same scope/same definition, it is unclear what its scope is, and what exactly the “another musculoskeletal model” should entail. The specification does not describe any other musculoskeletal model anywhere, making the Examiner unclear overall on what this means.
Claim 9 is indefinite for claiming the sensor information comprises “at least one of” position, orientation, velocity, acceleration; torque, force, momentum; environment; another body part. It is unclear if the sensor information needs to comprise at least one from each grouping (e.g. the information includes 4 things), or whether the information needs to comprise one thing overall, and the elements are separated into paragraphs for no reason.
Remaining claims are rejected for depending on a rejected claim.
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 do not use the word “means,” but are nonetheless 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: “measurement device” in claim 2. The specification page 6 indicates that a measurement device is: an electromyography (EMG) sensor, high-density EMG (HD-EMG), a forcemyography (FMG) sensor, Mechanomyography sensors (MMG), ultra- sound (US) sensors, an electroencephalogram (EEG), video sensors such as a camera or Lidar (light detection and ranging) system, an inertial sensor, acceleration sensor, force sensor, pressure sensor, a sensor for detecting an electrical current or a temperature sensor.
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.
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 § 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 for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-7, 9-14, 16 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Herr et al. (US 20130310979 A1) hereinafter known as Herr.
Regarding claim 1 Herr discloses a method for controlling an orthopedic device (defined by the specification as a prosthesis, exoskeleton, or orthosis) ([0003]; Herr claim 31) comprising:
providing input signals (Herr claim 31 paragraph “a”),
using the input signals as variables of a musculoskeletal model (Herr claim 31 paragraph “a” and Herr claim 35),
determining feedback signals using the model (Herr claim 31 paragraph “a” regarding the feedback data), and
transmitting the feedback signals to a user of the device ([0005] the feedback loop conveys feedback data; [0009], [0051] the feedback stimulates muscle and mimics the stretch reflex of intact human tissue, which a user of the device is understood to be able to perceive).
Regarding claims 2-3 Herr discloses the method of claim 1 substantially as is claimed,
wherein Herr further discloses providing input signals comprises detecting measurement data from the user and/or the device using at least one measurement device (Herr claim 35 and 37-43), so the measurement data is processed to provide the input signals (Herr claim 31 paragraph “a”).
Regarding claim 4 Herr discloses the method of claim 2 substantially as is claimed,
wherein Herr further discloses the data comprises myoelectric signals (Herr claim 39) from the skin, muscle, or nerves of the user ([0273], [0277]).
Regarding claim 5-6 Herr discloses the method of claim 1 substantially as is claimed,
wherein Herr further discloses determining control signals for the device using the model (Herr claim 31).
Regarding claim 7 Herr discloses the method of claim 5 substantially as is claimed,
wherein Herr further discloses two different control signals for the device are determined ([0048] control commands for torque, impedances, positions of multiple joints).
Regarding claims 9 and 16 Herr discloses the method of claim 1 substantially as is claimed,
wherein Herr further discloses the feedback signals are determined using sensor information provided by a sensor (Herr claim 35),
wherein the sensor information comprises information about position/orientation/velocity/acceleration/torque/force/momentum/environment (temp, surface, terrain – clm 16)/another body part (Herr claims 36-43).
Regarding claim 10 Herr discloses the method of claim 7 substantially as is claimed,
wherein Herr further discloses updating, correcting, or amending the model using the sensor information ([0056]).
Regarding claim 11 Herr discloses the method of claim 1 substantially as is claimed,
wherein Herr further discloses using the model to model muscle forces, joint torques, joint stiffnesses, or joint dampings the user intends to exert by the input signals (Herr claim 31 paragraph “a”).
Regarding claim 12 Herr discloses the method of claim 11 substantially as is claimed,
wherein Herr further discloses the feedback signals are determined based on the muscle forces/joint torques/joint stiffnesses/joint dampings (Herr claim 31 paragraph “a”).
Regarding claim 13 Herr discloses the method of claim 11 substantially as is claimed,
wherein Herr further discloses the muscle forces/joint torques/joint stiffnesses/joint dampings are encoded in the feedback signals (Herr claim 31 paragraph “a”).
Regarding claim 14 Herr discloses an orthopedic device comprising an electronic controlling device which performs the method of claim 1 ([0055] the models are processors).
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 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 15 is/are rejected under 35 U.S.C. 102 as being anticipated by, or the in alternative, under 35 U.S.C. 103 as being unpatentable over Herr as is applied above.
Regarding claim 15 Herr discloses the method of claim 7 substantially as is claimed,
wherein Herr further discloses the two different control signals are determined simultaneously (Figure 1 shows how the multiple inputs are put through the musculoskeletal model and through the feedback loop at the same time. Alternatively, the Examiner understands that the person of ordinary skill at the time the invention was filed would have found it obvious, in light of Herr Figure 1 to have the various control signals determined at the same time.).
Claim 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herr as is applied above in view of Flaherty et al. (WO 2006076175 A2) hereinafter known as Flaherty.
Regarding claim 8 Herr discloses the method of claim 1 substantially as is claimed,
wherein Herr further discloses the feedback signals are somatosensory signals ([0009], [0051] the feedback stimulates muscle and mimics the stretch reflex of intact human tissue, which a user of the device is understood to be able to perceive via a sensation),
but is silent with regards to how the signals are transmitted to a user.
However, regarding claim 8 Flaherty teaches that feedback can be communicated to a user via a somatosensory signal which are transmitted to the user via auditory stimulators or visual stimulators (Flaherty claim 59). Herr and Flaherty are involved in the same field of endeavor, namely methods of prosthetic control. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to modify the method of Herr so that the feedback is communicated to a user via an auditory or visual stimulator as is taught by Flaherty since the courts have held that choosing from a finite number of identified, predictable solutions with a reasonable expectation of success results in a prima facie case of obviousness. See MPEP 2143 (I)(E). In this case, the use of any known method of communicating feedback to a user is considered obvious to the person of ordinary skill to try.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jacqueline Woznicki whose telephone number is (571)270-5603. The examiner can normally be reached M-Th 10am-6pm EST.
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/Jacqueline Woznicki/Primary Examiner, Art Unit 3774 01/14/26