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 .
Election/Restrictions
Applicant's election with traverse of Invention I, drawn to claim(s) 1-15, in the reply filed on 11/10/25 is acknowledged. The traversal is on the ground(s) that Examiner has not met is burden of demonstrating and explaining a search and/or examination burden. This is not found persuasive because the reasons set forth in the restriction requirement specifically stated that one or more of reasons (a) – (c) applied which are at least a form of appropriate explanation.
For example, the restriction did not merely state that different searches could be required but instead that such discrepant searches would require ‘searching different classes/subclasses or electronic resources, or employing different search queries’.
Equally, the restriction did not simply state that an examination burden existed but specifically reasoned that ‘the prior art applicable to one invention would not likely be applicable to another invention and/or the inventions would likely require burdensome, conflicting, and/or separate considerations of applicability of searched art’. Accordingly, clear reasoning demonstrating a search and examination burden has been provided along with the specific showing of different CPC symbols where each invention would be searched and reviewed.
The requirement is still deemed proper and is therefore made FINAL.
Information Disclosure Statement
The information disclosure statement filed 2/8/23 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because the scan quality has rendered the document unreadable and the patent numbers appear to refer to the US application numbers of the US references and the foreign references do not include a copy in the file wrapper. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
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:
Each limitation reciting ‘module’, ‘mechanism’ and ‘element’ in claim(s) 1, 4, 6, 8-13, 15, 16, and 18.
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 Objections
Claim(s) 1 is/are objected to because of the following informalities; appropriate correction is required:
In claim(s) 1, the limitation
‘and each module of the one or modules comprises;’ should be amended to recite
‘and each module of the one or more modules comprises: [[;]] ’ .
Claim Rejections - 35 USC § 112(b)
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.
Claim(s) 8 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 pre-AIA the applicant regards as the invention.
Claim(s) 8 depends from claim(s) 16 which is a method claim(s). It is not clear, in the context of the claim(s), how claim(s) 8 can further define the device and depend from claim(s) 16. Examiner suggests amending claim(s) 8 to depend from claim(s) 1 and interprets the claim(s) as such.
Claim Rejections - 35 USC § 102
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.
Examiner notes: for brevity, economy, and clarity of reading, select of the claims may be addressed jointly herein when instances of limitations with verbatim or near-verbatim similarity are recited in the body of differently numbered claims and/or when multiple different limitations are clearly addressed by a same/similar citation to/within a reference.
Claim(s) 1-15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ridington (US 20200410893 A1).
For claim 1, Ridington teaches A device that facilitates an awareness and the activation of muscles of a user in a corrected posture, [entire disclosure – see at least abstract] the device comprising:
one or more modules, [generally module 100 of Fig(s). 1 more detailed in modules 200-210 of Fig(s). 2]
wherein each module of the one or more modules is configured to be positioned adjacent to one or more associated muscles or regions of the user [Fig(s). 2]
and each module of the one or modules comprises;
one or more alerting mechanisms, wherein each alerting mechanism of the one or more alerting mechanisms is configured to generate an associated alert to the user; [tactile feedbacking in ¶¶64-81]
one or more attachment element(s) configured to attach the device to the user; [¶18]
and a controller [108, 116] configured to operate the device.
For claim 2, Ridington teaches The device according to claim 1,
wherein a first alerting mechanism of the one or more alerting mechanisms comprises an electrically powered device producing one or more of a vibration, a visual output, an audible sound, a sensory level electrical stimulation, or a notification from a personal computer or smart device. [¶¶22-33 ¶¶42-43 ¶¶64-68]
For claim 3, Ridington teaches The device according to claim 1,
wherein the one or more alerting mechanisms are configured to be activated sequentially, simultaneously, or separately. [¶¶22-33 ¶¶42-43 ¶¶64-68]
For claim 4, Ridington teaches The device according to claim 1,
wherein the one or more muscles associated with a first module of the one or more modules are in a first muscle group that is distinct from a second muscle group comprising the one or more muscles associated with a second module of the one or more modules. [Fig(s). 2 ¶¶64-81]
For claim 5, Ridington teaches The device according to claim 1,
wherein the one or more modules are configured to operate at least one of together or independently from one another. [Fig(s). 2 ¶¶64-81]
For claim 6, Ridington teaches The device according to claim 1,
wherein said controller is configured to direct a first alerting mechanism of the one or more alerting mechanisms to issue its associated alert. [¶¶22-33 ¶¶42-43 ¶¶64-68]
For claim 7, Ridington teaches The device according to claim 1, further comprising
a communication component configured to communicate with, receive communication from and store performance data from, one or more coupled devices, [wireless component 112 along with relevant portions of CPU and memory 108]
wherein each of the one or more coupled devices is one of a second device configured to operate specifically in connection with the device, a computer, or one or a smart device. [¶¶63-68]
For claim 8, Ridington teaches The device according to claim 16, further comprising a housing unit that comprises therewithin a printed circuit board (PCB), [108] mechanism to communicate with the one or more coupled devices, [112] a microswitch/timer, [at least some form of timing is present in the CPU (e.g., the CPU clock)] an electrically powered alerting mechanism, [110] a battery, [114] and a memory. [108]
For claim 9, Ridington teaches The device according to claim 1,
wherein the one or more attachment elements comprise a securing mechanism with one or two faces of to secure the device to a user's skin in an intended area, [¶18]
wherein the securing mechanism is one or more of reusable, removable, or replaceable, [¶18]
wherein:
a first face of said securing mechanism is adhesive;
and a second face of said securing mechanism is one of: adhesive, a first component of a hook and loop fastener, or a second component of a hook and loop fastener. [adhesive and Velcro together in ¶18]
For claim 10, Ridington teaches The device according to claim 1,
wherein said attachment element further comprises an article of clothing configured to assist in maintaining a positioning of the one or modules on the user when worn. [¶20]
For claim 11, Ridington teaches The device according to claim 9,
wherein said attachment element comprises one of a clip, a snap, or a magnet, [¶18]
wherein the one of said clip, said snap or said magnet comprises two corresponding attachment components that facilitate attachment of a first component of the two corresponding attachment components to said one or more modules and that facilitate attachment of a second component of the two corresponding attachment components to said article of clothing. [¶¶18-20]
For claim 12, Ridington teaches The device according to claim 1, in which said one or more alerting mechanisms are configured to provide the associated alert to the user independently of said controller. [vibration on each individual wearable module in ¶¶68-71 positioned apart from the controller 114 in Fig(s). 1 is a form of ‘independent’ alerting under BRI]
For claim 13, Ridington teaches The device according to claim 1, further comprising at least one additional alerting mechanism comprising at least one of a computer or a smart device configured to generate one or more additional alerts for the user to correct a posture of the user and to activate at least a subset of the muscles one of with or without activation of said modules. [computer and/or smartphone in ¶21 ¶37 ¶40]
For claim 14, Ridington teaches The device according to claim 1,
wherein the one or more additional alerts comprise one or more of at least one image, at least one video, or at least one auditory instruction. [¶¶42-43]
For claim 15, Ridington teaches The device of claim 1 wherein a first module of the one or more modules comprises one or more sensors and one or more signal processors to detect muscle activation, muscle contraction, or posture. [¶15]
Pertinent Prior Art
Prior art made of record and not relied upon which is considered pertinent to applicant's disclosure is provided in the Notice of References Cited (form PTO-892) herewith.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BENJAMIN S MELHUS whose telephone number is (571)272-5342. The examiner can normally be reached Monday - Friday | 9:00 AM - 5:00 PM.
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/BENJAMIN S MELHUS/
Primary Examiner, Art Unit 3791