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 .
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 (i.e., changing from AIA to pre-AIA ) 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.
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 23-42 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1
The claimed invention in claims 23-42 are directed to statutory subject matter as the claims recite a method (claims 23-42) for operating a walking assistance apparatus.
Step 2A, Prong One
Regarding claims 23-42, the recited steps are directed mental process of performing concepts in a human mind or by a human using a pen and paper (see MPEP 2106.04(a)(2) subsection (III)).
Specifically from claim 23:
defining a state variable based on a result obtained by measuring a gait motion of a user; and
generating a torque profile based on the state variable, a gain and a delay such that the torque profile assists the gait motion or resists the gait motion based on the gain.
Specifically from claim 34:
measuring a gait motion of a user;
defining a state variable based on the gait motion;
generating a torque profile based on the state variable, a gain and a delay associated with the state variable; and
outputting torque to resist the gait motion based on the torque profile.
These limitations describe a mental process (including an observation, evaluation, judgment, opinion) under the broadest reasonable standard, as a skilled practitioner is capable of performing the recited limitations and making a mental assessment thereafter. Examiner notes that nothing from the claims suggests that the limitations cannot be practically performed by a medical, biomedical or engineering professional with the aid of a pen and paper; their knowledge gained from education, background, or experience; or by using a generic computer as a tool to perform mental process steps in real time. Examiner additionally notes that nothing from the claims suggests and undue level of complexity that the mental process steps cannot be practically performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform the mental process steps. The claims merely require observation (measuring), evaluation and judgement (defining and generating) and opinion (outputting).
Examples of ineligible claims that recite mental processes include:
• a claim to “collecting information, analyzing it, and displaying certain results of the collection and analysis,” where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group, LLC v. Alstom, S.A.;
• claims to “comparing BRCA sequences and determining the existence of alterations,” where the claims cover any way of comparing BRCA sequences such that the comparison steps can practically be performed in the human mind, University of Utah Research Foundation v. Ambry Genetics Corp.
• a claim to collecting and comparing known information (claim 1), which are steps that can be practically performed in the human mind, Classen Immunotherapies, Inc. v. Biogen IDEC.
See p. 7-8 of October 2019 Update: Subject Matter Eligibility.
Step 2A, Prong Two
This judicial exceptions (abstract ideas) in claims 23-42 are not integrated into a practical application because:
•The abstract idea amounts to simply implementing the abstract idea on a computer. For example, the recitations regarding the generic computing components for defining and generating merely invoke a computer as a tool.
•There is no improvement to a computer or other technology. “The McRO court indicated that it was the incorporation of the particular claimed rules in computer animation that "improved [the] existing technological process", unlike cases such as Alice where a computer was merely used as a tool to perform an existing process.” MPEP 2106.05(a) II.
•The claims do not apply the abstract idea to effect a particular treatment or prophylaxis for a disease or medical condition. Rather, the abstract idea is utilized to determine a relationship among data to provide a medical measurement.
•The claims do not apply the abstract idea to a particular machine. “Integral use of a machine to achieve performance of a method may provide significantly more, in contrast to where the machine is merely an object on which the method operates, which does not provide significantly more.” MPEP 2106.05(b). II. “Use of a machine that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would not provide significantly more.” MPEP 2106.05(b) III.
When considered in combination, the additional elements (i.e. the generic computer functions and conventional equipment/steps) do not amount to significantly more than the abstract idea. Looking at the claim limitations as a whole adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation.
Step 2B
The additional elements are identified as follows: ‘output torque’ in claim 31, ‘outputting torque’ in claim 34 (Examiner notes these elements can be considered merely opinion as they are recited at a high level of generality but for the sake of compact prosecution they will be shown how even treated as an additional element they do not provide significantly more as they are claimed at a high level of generality).
Under BRI the outputting of torque is merely outputting of data on a display. The claims do not require any torque applied to a user in any specific way. Those in the relevant field of art would recognize the above-identified additional elements as being well-understood, routine, and conventional means for data-gathering and computing and outputting of data, as demonstrated by:
• The prior art provided by the Applicant in the IDS and by the Examiner in PTO-892 which disclose each of the elements as being known and conventional in the art elements;
Thus, the claimed additional elements “are so well-known that they do not need to be described in detail in a patent application to satisfy 35 U.S.C. § 112(a).” Berkheimer Memorandum, III. A. 3. Furthermore, the court decisions discussed in MPEP § 2106.05(d)(ll) note the well-understood, routine and conventional nature of such additional elements as those claimed. See option III. A. 2. in the Berkheimer memorandum.
No clear machine is claimed. Regardless, use of a machine that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would not integrate a judicial exception into a practical application or provide significantly more. See Bilski, 561 U.S. at 610, 95 USPQ2d at 1009 (citing Parker v. Flook, 437 U.S. 584, 590, 198 USPQ 193, 197 (1978)), and CyberSource v. Retail Decisions, 654 F.3d 1366, 1370, 99 USPQ2d 1690 (Fed. Cir. 2011). See MPEP 2106.05(b).
Regarding the dependent claims, the dependent claims are directed to either 1) steps that are also abstract or 2) additional data output that is well-understood, routine and previously known to the industry or 3) further recite additional elements at a high level of generality which are conventional in the art.
• Claims 24-30 and 32-33 and 35-42 are steps that are also abstract as a mental process through additional data gathering or analysis
Although the dependent claims are further limiting, they do not recite significantly more than the abstract idea. A narrow abstract idea is still an abstract idea and an abstract idea with additional well-known equipment/functions is not significantly more than the abstract idea.
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.
Claim(s) 23-24, 30-32, 34-35, and 40-41 is/are rejected under 35 U.S.C. 103 as being unpatentable over De Rossi et al. (US 2017/0202724) in view of Takenaka et al. (US 2016/0338897).
Regarding claim 23, De Rossi teaches an operating method of a walking assistance apparatus (Abstract), the operating method comprising:
defining a state variable based on a result obtained by measuring a gait motion of a user (Paragraphs 0026-0027 and 0103); and
generating a torque profile based on the state variable, a gain and a delay such that the torque profile assists the gait motion or resists the gait motion based on the gain (Paragraphs 0319-0320).
Should De Rossi be found silent on the gain and delay aspects of the torque profile.
Takenaka teaches generating a torque profile based on the state variable, a gain and a delay such that the torque profile assists the gait motion or resists the gait motion based on the gain (Paragraphs 0087-0088 and 0015, 0077-0079, 0084, and 0098).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
Regarding claim 24, De Rossi is silent on defining the state variable as a difference between functions of two joint angles. Takenaka teaches wherein the defining the state variable comprises: defining the state variable as a difference between a first function based on a first hip joint angle of the user and a second function based on a second hip joint angle (Paragraphs 0012 and 0084-0085). It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
Regarding claim 30, De Rossi teaches wherein the gait motion of the user includes a left hip joint angle and a right hip joint angle of the user (Figure 2D; Paragraphs 0124).
Regarding claim 31, De Rossi teaches further comprising: outputting torque based on the torque profile (Paragraph 0320).
Regarding claim 32, De Rossi is silent on the gait motion filtering. Takenaka teaches further comprising: filtering the result obtained by measuring the gait motion of the user (Paragraphs 0060-0062). It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
Regarding claim 34, De Rossi teaches an operating method of a walking assistance apparatus (Abstract), the operating method comprising:
measuring a gait motion of a user (Paragraphs 0026-0027 and 0103);
defining a state variable based on the gait motion (Paragraphs 0026-0027 and 0103);
generating a torque profile based on the state variable, a gain and a delay associated with the state variable (Paragraphs 0319-0320), and
outputting torque to resist the gait motion based on the torque profile (Paragraph 0320).
Should De Rossi be found silent on the gain and delay aspects of the torque profile.;
Takenaka teaches generating a torque profile based on the state variable, a gain and a delay associated with the state variable (Paragraphs 0087-0088 and 0015, 0077-0079, 0084, and 0098).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
Regarding claim 35, De Rossi is silent on defining the state variable as a difference between functions of two joint angles. Takenaka teaches wherein the defining the state variable comprises: defining the state variable as a difference between a first function based on a first hip joint angle of the user and a second function based on a second hip joint angle (Paragraphs 0012 and 0084-0085). It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
Regarding claim 40, De Rossi teaches wherein the gait motion of the user includes a left hip joint angle and a right hip joint angle of the user (Figure 2D; Paragraphs 0124).
Regarding claim 41, De Rossi is silent on the gait motion filtering. Takenaka teaches further comprising: filtering the gait motion of the user (Paragraphs 0060-0062). It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
Claim(s) 25 and 36 is/are rejected under 35 U.S.C. 103 as being unpatentable over De Rossi et al. (US 2017/0202724) in view of Takenaka et al. (US 2016/0338897) and in further view of Endo (US 2015/0366738).
Regarding claim 25, De Rossi is silent on the trigonometrical functions for the joint angles. Takenaka teaches wherein the angle difference is a difference between a function of the left joint angle and a function of the right joint angle (Paragraph 0056 discloses wherein the differential angle is computed by subtracting one of the femoral angles (right femoral angle) θR from the other femoral angle (left femoral angle) θL, or θ=θL-θR and figure 2 shows wherein θL and θR relate to hip joint angle measurements). In the same field of walking assistance systems, Endo teaches wherein each of the first function and the second function corresponds to a trigonometrical function (Paragraphs 0123-0126 disclose wherein the system determines phase angle difference between the left and right hip angles and paragraph 0051 discloses wherein phase angle φ=Arctan(ω/φ) tm).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Endo because it enables more accurate improvement to abnormal gait characteristics (Paragraph 0124 of Endo).
Regarding claim 36, De Rossi is silent on the trigonometrical functions for the joint angles.
Takenaka teaches wherein the angle difference is a difference between a function of the left joint angle and a function of the right joint angle (Paragraph 0056 discloses wherein the differential angle is computed by subtracting one of the femoral angles (right femoral angle) θR from the other femoral angle (left femoral angle) θL, or θ=θL-θR and figure 2 shows wherein θL and θR relate to hip joint angle measurements). In the same field of walking assistance systems, Endo teaches wherein each of the first function and the second function corresponds to a trigonometrical function (Paragraphs 0123-0126 disclose wherein the system determines phase angle difference between the left and right hip angles and paragraph 0051 discloses wherein phase angle φ=Arctan(ω/φ) tm).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Endo because it enables more accurate improvement to abnormal gait characteristics (Paragraph 0124 of Endo).
Claim(s) 26-29, 33, 37-39, and 42 is/are rejected under 35 U.S.C. 103 as being unpatentable over De Rossi et al. (US 2017/0202724) in view of Takenaka et al. (US 2016/0338897) and in further view of Sugar et al. (US Patent No. 9308642).
Regarding claim 26, Should De Rossi be found silent on the gain and delay aspects of the torque profile with different gains. Takenaka teaches wherein the generating the torque profile comprises:
generating the torque profile to assist the gait motion by applying a first gain and the delay to the state variable in response to the gain being the first gain (Paragraphs 0011-0012, 0023-0024, 0044, 0048, and 0094-0095; wherein the differential phase angle (state variable) is based on the difference in angles between the left and right joint; Paragraphs 0015-0016, 0078-0079, and 0084; wherein a phase or timing delay is accounted for in the differential angle phase computation; Paragraphs 0006 and 0071 disclose wherein the differential angle is used to output the torque output or assist force (torque profile) of the walking assist device; Paragraph 0088 discloses applying a gain constant (gain) to the assist force phase Φas of the differential angle θ (state variable) to determine the left and right assist force)
Sugar teaches generating the torque profile to resist the gait motion by applying a second gain and the delay to the state variable in response to the gain being the second gain (Column 7, Lines 20-67, Column 8, Lines 1-4, Column 16, Lines 54-67, and Column 17, Lines 1-17 disclose wherein the system can apply both positive and negative external forces (gain) and/or torque based on the desired effect so as to selectively increase or decrease movement and/or apply assistance or resistance to particular parts or areas of the body in the produced motion control signal (state variable) and Column 6, Lines 23-29 and Column 16, Lines 54-66 disclose wherein a phase shift or delay is applied to the outputted or motion control signal which applies the generated torque profile).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Sugar because it would enhance motion while reducing metabolic output during activities (Column 2, Lines 12-13 of Sugar).
Regarding claim 27, Should De Rossi be found silent on the gain and delay aspects of the torque profile with different gains. Sugar teaches wherein a sign of the first gain and a sign of the second gain are different from each other (Column 7, Lines 20-67, Column 8, Lines 1-4, Column 16, Lines 54-67, and Column 17, Lines 1-17 disclose wherein the system can apply both positive and negative external forces (gain) and/or torque based on the desired effect so as to selectively increase or decrease movement and/or apply assistance or resistance to particular parts or areas of the body in the produced motion control signal (state variable) and Column 6, Lines 23-29 and Column 16, Lines 54-66 disclose wherein a phase shift or delay is applied to the outputted or motion control signal). It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Sugar because it would enhance motion while reducing metabolic output during activities (Column 2, Lines 12-13 of Sugar).
Regarding claim 28, Should De Rossi be found silent on the gain and delay aspects of the torque profile with different gains. Sugar teaches wherein the generating the torque profile determines a direction of a torque based on the gain (Column 7, Lines 20-67, Column 8, Lines 1-4, Column 16, Lines 54-67, and Column 17, Lines 1-17 disclose wherein the system can apply both positive and negative external forces (gain) and/or torque based on the desired effect so as to selectively increase or decrease movement and/or apply assistance or resistance to particular parts or areas of the body in the produced motion control signal (state variable)). It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Sugar because it would enhance motion while reducing metabolic output during activities (Column 2, Lines 12-13 of Sugar).
Regarding claim 29, Should De Rossi be found silent on the gain and delay aspects of the torque profile with different gains. Takenaka and Sugar teach wherein the generating the torque profile determines an output timing of torque based on the delay (Paragraphs 0077-0079 of Takenaka and Column 6, Lines 23-29 and Column 16, Lines 54-66 of Sugar disclose wherein a phase shift or delay is applied to the outputted or motion control signal).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Sugar because it would enhance motion while reducing metabolic output during activities (Column 2, Lines 12-13 of Sugar).
Regarding claim 33, Should De Rossi be found silent on the gain and delay aspects of the torque profile with different gains. Takenaka and Sugar teach wherein the generating the torque profile comprises: determining an output timing of torque associated with the torque profile based on the delay and a time delay associated with the filtering (Paragraphs 0077-0079 of Takenaka and Column 6, Lines 23-29 and Column 16, Lines 54-66 of Sugar disclose wherein a phase shift or delay is applied to the outputted or motion control signal).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka). It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Sugar because it would enhance motion while reducing metabolic output during activities (Column 2, Lines 12-13 of Sugar).
Regarding claim 37, Should De Rossi be found silent on the gain and delay aspects of the torque profile with different gains.
Takenaka teaches generating a first torque profile corresponding to a first leg of the user by applying the gain and the delay to the state variable (Paragraphs 0011-0012, 0023-0024, 0044, 0048, and 0094-0095; wherein the differential phase angle (state variable) is based on the difference in angles between the left and right joint; Paragraphs 0015-0016, 0078-0079, and 0084; wherein a phase or timing delay is accounted for in the differential angle phase computation; Paragraphs 0006 and 0071 disclose wherein the differential angle is used to output the torque output or assist force (torque profile) of the walking assist device; Paragraph 0088 discloses applying a gain constant (gain) to the assist force phase Φas of the differential angle θ (state variable) to determine the left and right assist force); and
De Rossi teaches generating a second torque profile corresponding to a second leg of the user by changing a sign of the torque profile corresponding to the second leg (Column 7, Lines 20-67, Column 8, Lines 1-4, Column 16, Lines 54-67, and Column 17, Lines 1-17 disclose wherein the system can apply both positive and negative external forces (gain) and/or torque based on the desired effect so as to selectively increase or decrease movement and/or apply assistance or resistance to particular parts or areas of the body in the produced motion control signal (state variable) and Column 6, Lines 23-29 and Column 16, Lines 54-66 disclose wherein a phase shift or delay is applied to the outputted or motion control signal which applies the generated torque profile).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Sugar because it would enhance motion while reducing metabolic output during activities (Column 2, Lines 12-13 of Sugar).
Regarding claim 38, Should De Rossi be found silent on the gain and delay aspects of the torque profile with different gains. Sugar teaches wherein the generating the torque profile determines a direction of torque based on the gain (Column 7, Lines 20-67, Column 8, Lines 1-4, Column 16, Lines 54-67, and Column 17, Lines 1-17 disclose wherein the system can apply both positive and negative external forces (gain) and/or torque based on the desired effect so as to selectively increase or decrease movement and/or apply assistance or resistance to particular parts or areas of the body in the produced motion control signal (state variable)). It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Sugar because it would enhance motion while reducing metabolic output during activities (Column 2, Lines 12-13 of Sugar).
Regarding claim 39, Should De Rossi be found silent on the gain and delay aspects of the torque profile with different gains. Takenaka and Sugar teach wherein the generating the torque profile determines an output timing of torque based on the delay (Paragraphs 0077-0079 of Takenaka and Column 6, Lines 23-29 and Column 16, Lines 54-66 of Sugar disclose wherein a phase shift or delay is applied to the outputted or motion control signal).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Sugar because it would enhance motion while reducing metabolic output during activities (Column 2, Lines 12-13 of Sugar).
Regarding claim 42, Should De Rossi be found silent on the gain and delay aspects of the torque profile with different gains. Takenaka and Sugar teach wherein the generating the torque profile determines an output timing of torque based on the delay and a time delay associated with the filtering (Paragraphs 0077-0079 of Takenaka and Column 6, Lines 23-29 and Column 16, Lines 54-66 of Sugar disclose wherein a phase shift or delay is applied to the outputted or motion control signal).
It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka). It would have been obvious to one of ordinary skill in the art to have modified De Rossi with Sugar because it would enhance motion while reducing metabolic output during activities (Column 2, Lines 12-13 of Sugar).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 23-42 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 11109778 in view of Takenaka et al. (US 2016/0338897). The patent discloses the claimed invention of defining a state variable based on gait motion of a user and generating a torque profile (See at least claims 1 and 7). The patent is silent on the gain aspect. Takenaka teaches generating a torque profile based on the state variable, a gain and a delay such that the torque profile assists the gait motion or resists the gait motion based on the gain (Paragraphs 0087-0088 and 0015, 0077-0079, 0084, and 0098). It would have been obvious to one of ordinary skill in the art to have modified the patent with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
Claims 23-42 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 11717187 in view of Takenaka et al. (US 2016/0338897). The patent discloses the claimed invention of defining a state variable based on gait motion of a user and generating a torque profile (See at least claims 1 and 6). The patent is silent on the gain aspect. Takenaka teaches generating a torque profile based on the state variable, a gain and a delay such that the torque profile assists the gait motion or resists the gait motion based on the gain (Paragraphs 0087-0088 and 0015, 0077-0079, 0084, and 0098). It would have been obvious to one of ordinary skill in the art to have modified the patent with Takenaka because it enables cyclic assistance to a user with an asymmetric disability without requiring any complex parameter setting (Paragraph 0010 of Takenaka).
Conclusion
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/PATRICK FERNANDES/Primary Examiner, Art Unit 3791