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 .
Notice of Reply
This communication is responsive to the amendment(s) and/or argument(s) filed 3/20/26. The previous ground(s) of objection and/or rejection is/are withdrawn. The following new and/or reiterated ground(s) of rejection is/are set forth hereinbelow.
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:
“an analytics device” in claim 3,
“a monitoring device” in claim 4, and
“a device” in claim 10.
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 § 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 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gong et al. (US 10,758,160 B2) in view of Kavcic et al. (7/10/23 IDS Non-Patent Literature Cite No 7: ‘KAVCIC N., et al., "Determining the Stabilizing Role of Individual Torso Muscles During Rehabilitation Exercises," SPINE, vol. 29, pp. 1254-1265, June 2004,’, hereinafter Kavcic).
For claim 1, Gong discloses a system to monitor and visualize spine motion (Figs 1,2,4,6,9-12) ([Cols 4-17]), comprising inter alia:
a scanning device (1232, 1240) configured to capture parameters of spinal curvature, range of motion of the spine, and regional and segmental angles of the spine (Figs 1, 12) (Cols 3-6, 15-16);
at least one sensor (1230) configured to process signals resulting from spinal movement (Figs 1, 12) (Cols 3-6, 15-16); and
a device (1212) configured to produce a 3D model of the spine based on the parameters captured by the scanning device and the signals processed by the at least one sensor (Figs 1, 12) (Cols 3-6, 15-16).
For claim 1, Gong discloses the claimed invention except for explicitly disclosing the scanning device being an optical scanner and the 3D model being based on parameters captured by the optical scanner.
For claim 1, Kavcic, in the same field of endeavor of spinal motion monitoring and kinematic model reconstruction from multiple physiological signals, teaches (Pgs 1254-1258,1265) an optical scanner (kinematic limb position section, page 1257) configured to capture parameters of spinal curvature, range of motion of the spine, and regional and segmental angles of the spine and a 3D model of the spine (Fig 2) based on the parameters captured by the optical device and the signals processed by the at least one sensor (Fig 2) (page 1257).
For claim 1, Gong and Kavcic are both considered to be analogous to the claimed invention because they are in the same field of spine motion monitoring and visualizing using a plurality of physiological signals. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Gong to incorporate the teachings of Kavcic to provide alternate and/or additional physiological signal inputs including optical-based signals. Doing so would aid in the accurate generation of a 3D model of the spine motion based on sensed physiological data of which both Gong and Kavcic are expressly concerned.
For claim 2, Gong discloses the system of claim 1, wherein the 3D model of the spine comprises a 3D angular position of the spine (Figs 1, 12) (Cols 3-6, 15-16).
For claim 3, Gong discloses the system of claim 2, further comprising an analytics device (1220) configured to interpret the signals processed by the at least one sensor (Figs 1, 12) (Cols 3-6, 15-16).
For claim 4, Gong discloses the system of claim 3, further comprising a monitoring device (1214) that is configured to produce data based on the interpretation by the analytics device of the signals produced by the at least one sensor (Figs 1, 12) (Cols 3-6, 15-16).
For claim 5, Gong discloses the system of claim 1, wherein the at least one sensor comprises a sensor array (Figs 1, 12) (Cols 3-6, 15-16).
For claim 6, Gong discloses the system of claim 1, wherein the at least one sensor comprises at least four capacitive stretch sensors (Cols 6, 9).
For claim 7, Gong discloses the system of claim 6, wherein the at least four capacitive stretch sensors are in an X-shaped configuration (Cols 6, 9).
For claim 8, Gong discloses the system of claim 1, further comprising a display configured to produce visual feedback of the spinal movement and the 3D model (Cols 15-16).
For claim 9, Gong discloses the system of claim 8, wherein the display is part of a VR headset (Cols 10-12, 15-16).
For claim 10, Gong discloses the system of claim 1 further comprising a garment device (Figs 1, 12) (Cols 3-6, 15-16) configured to be attached to the back of a subject to measure spine motion and spine curvature change (Figs 1, 12) (Cols 3-6, 15-16), the device including the at least one sensor, the at least one sensor comprising: a first capacitive stretch sensor located on the top left of the back of the subject (Cols 4-6, 9); a second capacitive stretch sensor located on the top right of the back of the subject (Cols 4-6, 9); a third capacitive stretch sensor located on the lower right of the back of the subject (Cols 4-6, 9); and a fourth capacitive stretch sensor located on the lower left of the back of the subject (Cols 4-6, 9).
For claim 11, Gong discloses the system of claim 10, wherein the first capacitive stretch sensor, the second capacitive stretch sensor, the third capacitive stretch sensor and the fourth capacitive stretch sensor are integrated into a wearable garment or clothing (Figs 1, 12) (Cols 3-6, 15-16).
For claim 12, Gong discloses the system of claim 10, wherein the first capacitive stretch sensor, the second capacitive stretch sensor, the third capacitive stretch sensor and the fourth capacitive stretch sensor are in a X-shaped configuration (Cols 6,9).
For claim 13, Gong discloses the system of claim 10, wherein the first capacitive stretch sensor is configured to be attached to a left shoulder area of a wearer (Figs 1, 12) (Cols 3-6, 15-16), the second capacitive stretch sensor is configured to be attached to a right shoulder area of the wearer (Figs 1, 12) (Cols 3-6, 15-16), the third capacitive stretch sensor is configured to be attached to a right anterior superior iliac spine area of the wearer (Figs 1, 12) (Cols 3-6, 15-16), and the fourth capacitive stretch sensor is configured to be attached to a left anterior superior iliac spine area of the wearer (Figs 1, 12) (Cols 3-6, 15-16).
Response to Arguments
Applicant’s arguments, see pages 5-6, filed 3/20/26, with respect to the rejection(s) of amended claim(s) under 112 and 102 have been fully considered and are persuasive. The amendments obviate the prior rejections. Therefore, the rejections have been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Kavcic as set forth hereinabove.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 nonprovisional extension fee (37 CFR 1.17(a)) 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 Jeffrey G. Hoekstra whose telephone number is (571)272-7232. The examiner can normally be reached Monday through Thursday from 5am-3pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles A. Marmor II can be reached at (571)272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Jeffrey G. Hoekstra
Primary Examiner
Art Unit 3791
/JEFFREY G. HOEKSTRA/ Primary Examiner, Art Unit 3791
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