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 .
Response to Arguments
Applicant's arguments filed 05/07/26 have been fully considered but they are not persuasive.
On page 9 regarding prior art rejections Applicant argues amendments overcome the drawing objections. Applicant argues item 20 is pointing to two items on purpose, since it is referring to “‘sensor information’ which is gathered at or near the prosthetic”, and argues items 18 and 22 are correct based on the corrected figures.
The Examiner respectfully disagrees, noting no amended figures have been provided. These drawing objections are accordingly maintained.
On page 9 regarding claim objections Applicant argues amendments overcome the objections of record.
The Examiner respectfully withdraws claim objections which were addressed, but maintains the objections which were not addressed.
On pages 9-10 regarding 112 rejections Applicant argues amendments overcome the rejection of record.
The Examiner respectfully disagrees, noting amendments do not appear to address all 112 rejections, and so the unaddressed 112s are maintained.
On pages 10-11 regarding prior art rejections Applicant argues the feedback signals have to be determined before they are transmitted to the user, whereas with Herr, the feedback loop does not give any feedback signal to the user.
The Examiner respectfully disagrees, noting the feedback acts to produce muscle stimulation or stretch ([0051]), which is a feedback that a user is inherently able to receive and perceive.
Drawings
The drawings are objected to because:
- items 18 and 22 point to the same thing in figure 2
-item 18 points to two different things in figures 2 and 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 Objections
Claims 1, 9, 17 are objected to because of the following informalities:
Claim 1 is objected to for referring to modeling a “body part of a human” and then later referring to “a user of said orthopedic device”, when it is unclear how, if at all, the human body and user are related to one another, if at all. The Examiner understands that the human body and user may actually be referring to the same thing.
Claim 9 is objected to for referring to the orthopedic device’s “part thereof” and “body part of the user” with improper antecedent basis. It is unclear how the two “parts” of the orthopedic device, and how the two recitations of the “body part of the user” are actually related, if at all.
Claim 17 is objected to for referring to “golgi” tendon organs when it is believed “Golgi” should be capitalized.
Appropriate correction is required.
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 9-10 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 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
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-7, 9-14, 16-19 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 which models at least one limb or body part of a human body that includes bones, muscles, muscles, tendons, and joints with corresponding degrees of freedom (Herr claim 31 paragraph “a” and Herr claim 35, the human body the model models is understood to inherently include bones, muscles, tendons, and joints),
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 inherently 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).
Regarding claim 17 Herr discloses the method of claim 1 substantially as is claimed,
wherein Herr further discloses the model models Golgi tendon organs, muscle spindles, muscle-tendon kinematics and kinetics (the human body the model models is understood to inherently include Golgi tendon organs, muscle spindles, muscle—tendon kinematics and kinetics.).
Regarding claim 18 Herr discloses the method of claim 1 substantially as is claimed,
wherein Herr further discloses the limb or body part has a corresponding limb or body part of the human body, wherein the model also models the corresponding limb or body part (any part of the human body which the model models can be understood to have a “corresponding” body part which is also part of the human body that is being modeled).
Regarding claim 19 Herr discloses the method of claim 1 substantially as is claimed,
wherein Herr further discloses the feedback signals to the user are provided by mechanical stimulators (the user is inherently understood capable of perceiving and receiving the mechanical stimulation provided by the actuator and feeling the stretch or movement as their body moves).
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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
THIS ACTION IS MADE FINAL. 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 extension fee 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 Jacqueline Woznicki whose telephone number is (571)270-5603. The examiner can normally be reached M-Th 10am-6pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jerrah Edwards can be reached on 408-918-7557. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Jacqueline Woznicki/Primary Examiner, Art Unit 3774 05/20/26
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