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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/30/2026 has been entered.
Status of Claims
Claims 1-11 and 13 are pending.
Response to Arguments
The remarks of 07/30/26 have been fully considered and are persuasive.
Applicant argues that the prior art doesn't explicitly teach or disclose all of the elements of amended claim 1. In particular, applicant argues the following claim language:
“and further characterized in that a phase space of two independent angle parameters and/or their derivatives is used to determine the cyclical movement
Neither Seyr nor Goldfarb disclose determining the cyclical movement based on a phase space of two independent angles. In this context “independent” means that the parameters are not mathematic derivatives/integrals of each other. Goldfarb discloses controlling a prosthesis based on a phase space of angular position and angular velocity, but these two variables are not independent.
However – claims 1-11 and 13 are currently drawn to an abstract idea as outlined under the 35 USC 101 rejection below. These claims are indicated as allowable over the prior art if amended to overcome the 35 USC 101 rejection. Examiner suggests relocating all of the structural elements in the preamble into the body of the method claim.
Specification
The amendment filed 01/18/2023 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows:
“This application is a U.S. national phase filing claiming the benefit of and priority to International Patent Application No. PCT/EP2021/070284, filed July 20, 2021, which claims priority from and the benefit of German Patent Application No. 10 2020 004 338.0, filed July 20, 2020. The entire contents of these applications are incorporated herein by reference”
Applicant is required to cancel the new matter in the reply to this Office Action. See MPEP 608.01(p) and 1893.03(b).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-11 and 13 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more
Prong 1 – is the claim to a process, machine, manufacture or composition of matter?
Yes. The claims are direction to a process – specifically a method for controlling a prosthesis or orthosis of the lower extremity.
Prong 2A – is the claim direction to a law of nature, a natural phenomenon (product of nature) or an abstract idea?
Yes. Claim 1 recite(s)
“detecting the flexion angle and at least one absolute angle of the lower part and/or the upper part over at least one movement cycle
“identifying the cyclical movement from the relative movements of the upper part and the lower part and from the absolute movements of the upper part and/or the lower part in space
“…a phase space of two independent angle parameters and/or their derivatives to determine the cyclical movement, in particular the direction of rotation in the phase space is determined and use
Regarding the first bullet – detecting the angle between an upper and lower part as well as absolute angles of these parts in space over a movement cycle is considered a mental process. This can practically be carried out in the human mind and is typical of a visual gait analysis provided in the field of prosthetics.
Regarding the second bullet – detecting a cyclical movement is also a mental process. This can practically be carried out in the human mind and is typical of a visual gait analysis provided in the field of prosthetics.
Regarding the third bullet point – noting the direction of rotation of two variables in a phase space is considered a mental process. This can practically be carried out in the human mind and is typical of a visual gait analysis provided in the field of prosthetics.
Prong 2B – Does the claim recite additional elements that amount to significantly more than the judicial exception?
No. This judicial exception is not integrated into a practical application because the preamble is being interpreted as intended use. There are many additional elements in the preamble of the claim (a prosthesis/orthosis with an upper part, lower part, knee joint, joint axis, adjustable resistance device, sensors, etc.) However – claim 1 does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the method is interpreted to be intended for use with a prosthesis/orthosis having the above structural elements.
Therefore – claims 1-11 and 13 are not eligible subject matter under 35 USC 101.
Allowable Subject Matter
Claims 1-11 and 13 are allowable if amended to over the 35 USC 101 rejection above. Examiner suggests relocating all of the structural elements in the preamble into the body of the method claim.
The following is a statement of reasons for the indication of allowable subject matter:
Claim 1 is allowable due to the following claim language:
“and further characterized in that a phase space of two independent angle parameters and/or their derivatives is used to determine the cyclical movement, in particular the direction of rotation in the phase space is determined and used”
US 2012/0221120 discloses the structural limitations of the preamble as well as detecting the relative and absolute angles of the prosthesis. However, it does not teach or disclose determining a cyclical movement based on a direction of rotation of the phase space of two independent angle parameters and/or their derivatives.
US 2018/0125681 discloses using a phase space to determine a mode different than walking. However – this only discloses modes such as walking down a ramp (see Fig. 5, curved b) or walking down stairs (Fig. 5, curve c) both of which require knee resistance to be increased.
When cycling with a prosthesis - a user will pedal unevenly in scenarios such as cycling downhill or when standing on the pedals. Determining when the user is cycling based on the direction of rotation of two independent phase angles accounts for these scenarios and makes cycling easier for the user.
Conclusion
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/MAXIMILIAN TOBIAS SPENCER/Examiner, Art Unit 3774
/YASHITA SHARMA/ Primary Patent Examiner, Art Unit 3774
