DETAILED ACTION
This is a Non-Final Rejection for non-provisional application 18/261,936 filed July 18th 2023. This application is a 371 of PCT/DE2022/100052 filed January 19th 2022 which claims priority from foreign application DE102021101293.7 filed January 21st 2021. Claims 1-16 are currently pending.
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 .
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.
Claims 1, 3-6 and 9-11 each recite the limitation “receiving means” which is disclosed in the specification as a “means for receiving at least part of a buttock region of the person with a longitudinal extent, a height, a front face, a rear face, a top face and a bottom face, wherein the receiving means comprises at least one connecting element for operative connection to a bed or a load-relief system” (pg. 1, lines 6-9). Therefore, the limitation “receiving means” has been interpreted under 35 U.S.C 112(f) as any structure, mechanism or component to receive, hold, or accommodate a buttock region of a person and equivalents thereof. Equivalent structures may include those that perform the function specified in the claim, structures that are not excluded by any specific definition provided in the specification for an equivalent, or is a structural equivalent of the corresponding element disclosed in the specification. See MPEP 2183.
Claims 1, 12 and 14 recites the limitation “connecting element” which is disclosed in the specification as an “element for operative connection to a bed or a load-relief system” (pg. 1, lines 8-9). Therefore, the limitation “connecting element” has been interpreted under 35 U.S.C 112(f) as a single structure or component that connects two or more parts in any functional or structural way and equivalents thereof. Equivalent structures may include those that perform the function specified in the claim, structures that are not excluded by any specific definition provided in the specification for an equivalent, or is a structural equivalent of the corresponding element disclosed in the specification. See MPEP 2183.
Claim 12 recites the limitation “connecting apparatus” which is disclosed in the specification as “corresponding to a connecting element with at least one connecting arm” (pg. 6, lines 19-20). Therefore, the limitation “connecting apparatus” has been interpreted under 35 U.S.C 112(f) as a single structure or component that connects two or more parts in any functional or structural way and equivalents thereof with at least one connecting arm. Equivalent structures may include those that perform the function specified in the claim, structures that are not excluded by any specific definition provided in the specification for an equivalent, or is a structural equivalent of the corresponding element disclosed in the specification. See MPEP 2183.
Claims 13 and 14 recites the limitation “suspension means” which is disclosed in the specification as a suspension “for fastening the load-relief system to a head end of a hospital bed” (pg. 6 line 33, pg. 7 line 1). Therefore, the limitation “suspension means” has been interpreted under 35 U.S.C 112(f) as any structure or mechanism that performs the function of suspending and equivalents thereof. Equivalent structures may include those that perform the function specified in the claim, structures that are not excluded by any specific definition provided in the specification for an equivalent, or is a structural equivalent of the corresponding element disclosed in the specification. See MPEP 2183.
Claims 13 and 14 recites the limitation “supporting means” which is disclosed in the specification as a support “for operative connection of the suspension means to an apparatus for supporting the person” (pg. 7 lines 1-2). Therefore, the limitation “supporting means” has been interpreted under 35 U.S.C 112(f) as any structure or mechanism that performs the function of support and equivalents thereof. Equivalent structures may include those that perform the function specified in the claim, structures that are not excluded by any specific definition provided in the specification for an equivalent, or is a structural equivalent of the corresponding element disclosed in the specification. See MPEP 2183.
Claim Objections
Claim 12 is objected to because of the following informalities:
pg. 6 line 14, “operative connection to the bed” should read “operative connection to the bed or load-relief system”.
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 4, 10-11 and 13-14 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding Claims 4, 10-11 and 13, the phrase "in particular" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding Claim 14, the claim is rejected under 35 U.S.C. 112(b) by virtue of its dependence on Claim 13 and not remedying the deficiencies of Claim 13.
Claim Rejections - 35 USC § 102
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.
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.
Claims 1, 3-6 and 11-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Amini (US8973188B1).
Regarding Claim 1, Amini discloses a buttock support (Fig. 1; pelvic positioning system 100), for at least partial load-relief of the body weight of a person, the buttock support comprising: a receiving means for receiving at least part of a buttock region of the person (Fig. 1; base 110), the receiving means having a longitudinal extent, a height, a front face, a rear face, a top face and a bottom face (See annotated Fig. 1 and 14F below); wherein the receiving means comprises at least one connecting element for operative connection to a bed or a load-relief system (See annotated Fig. 7 below, Col. 2 lines 18-27, Col. 6 lines 43-51; wherein the examiner is interpreting stirrup 310 as a load-relief system) wherein the receiving means further comprises two support regions (Fig. 1; 150a and 150b) which are separated from one another by a gap (Fig. 1; indentation 120), wherein the support regions are rounded at least with respect to the top face and the front face of the receiving means (Fig. 1); and wherein the gap separates the two support regions from one another centrally with respect to the longitudinal extent of the receiving means (Fig. 8).
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Regarding Claim 3, Amini discloses the buttock support of claim 1 wherein the receiving means is configured in one piece (Fig. 1, Col. 7 lines 32-42; wherein base 110 and backrest 350 are configured in one piece).
Regarding Claim 4, Amini discloses the buttock support of claim 1, wherein the receiving means is configured in multiple pieces, the two support regions, in particular, being configured as separate components (Fig. 6, Col. 7 lines 43-53; wherein backrest 350 is removable from base 110 and as such the receiving means is configured in multiple pieces and wherein support regions 150a and 150b are separate).
Regarding Claim 5, Amini discloses the buttock support of claim 1, wherein the receiving means has a greater height in the region of its lateral faces than in the region of the gap (Fig. 1 and 5; wherein the height of the lateral faces of the two support regions 150a and 150b are greater than the height of the gap 120).
Regarding Claim 6, Amini discloses the buttock support of claim 1, wherein the two support regions are configured so as to project out of a base plane of the receiving means in the direction of its front face (Fig. 1 and 7).
Regarding Claim 11, Amini discloses the buttock support of claim 1, wherein the receiving means comprises at least one handle for transporting the buttock support, in particular the receiving means, when not in use (Fig. 14E; wherein the examiner notes bedpan 420 is considered graspable and capable of use as handles).
Regarding Claim 12, Amini discloses the buttock support of claim 1, wherein the connecting element for operative connection to the bed comprises a connecting apparatus with at least one connecting arm wherein at least one connecting arm is mounted pivotably via at least one joint (See annotated Fig. 7 below), with the result that the buttock support can be moved from a storage position below a mattress of the bed into a use position above the mattress of the bed and vice versa (Col. 7 lines 56-59).
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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.
Claims 2 and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Amini (US8973188B1).
Regarding Claim 2, Amini does not explicitly disclose the buttock support of claim 1, wherein the gap is between 2 and 7 cm, preferably 4.75 cm (Fig. 12, Col. 8 lines 58-63; wherein the width of indentation 103d is between 20-38cm and may narrow toward the inner most point). In the absence of criticality in the instant specification, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the gap 120 of Amini to have a width between 2 and 7 cm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.” See In re Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777. In the instant case, the device of Amini as modified would not perform differently if modified such that the gap width is in a range of 2cm to 7cm. A skilled artisan would have been motivated to reduce the gap width of the buttock support to improve anatomical conformity, enhance user comfort, minimize perineal pressure and to accommodate users with smaller body sizes.
Regarding Claim 15, Amini does not explicitly disclose the buttock support of claim 2, wherein the gap is between 4 and 5 cm (Fig. 12, Col. 8 lines 58-63; 103d). However, in the absence of criticality in the instant specification, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the gap 120 of Amini to have a width between 4cm and 5cm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.” See In re Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777. In the instant case, the device of Amini as modified would not perform differently if modified such that the gap width is in a range of 4cm to 5cm.
Regarding Claim 16, Amini does not explicitly disclose the buttock support of claim 15, wherein the gap is 4.75 cm (Fig. 12, Col. 8 lines 58-63; 103d). However, in the absence of criticality in the instant specification, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the gap 120 of Amini to have a width of 4.75cm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.” See In re Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777. In the instant case, the device of Amini as modified would not perform differently if modified such that the gap width is 4.75cm.
Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Amini (US8973188B1) in view of Stephens (US20200261292A1).
Regarding Claim 7, Amini fails to explicitly disclose the buttock support of claim 1, wherein the two support regions have a non-slip surface with respect to skin at least with regard to the top face and/or the front face (Col. 9 lines 14-19).
However, Stephens teaches a patient stabilizing support wherein the support regions have a non-slip surface with respect to skin at least with regard to the top face and/or the front face (Fig. 1, ¶ 20, ¶ 23; visco-elastic foam 2). Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the two support regions of Amini with the visco-elastic foam material of Stephens. A skilled artisan would have been motivated to do so because visco-elastic materials are well known in the art to provide non-slip characteristics when in contact with skin – due to their tacky or high friction surfaces – but are also widely recognized for their ability to improve pressure redistribution, enhance user comfort, reduce shear forces, and absorb impact (¶ 23).
Regarding Claim 8, Amini fails to explicitly disclose the buttock support of claim 1, wherein the two support regions are formed from an elastic material or are provided with an elastic cushion layer at least with regard to the top face and/or the front face (Col. 9 lines 14-19).
However, Stephens teaches a patient stabilizing support wherein the support regions are formed from an elastic material or are provided with an elastic cushion layer at least with regard to the top face and/or the front face (Fig. 1, ¶ 20, ¶ 23; visco-elastic foam 2). Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the two support regions of Amini with the visco-elastic foam material of Stephens. A skilled artisan would have been motivated to do so because visco-elastic materials are well known in the art to provide non-slip characteristics when in contact with skin – due to their tacky or high friction surfaces – but are also widely recognized for their ability to improve pressure redistribution, enhance user comfort, reduce shear forces, and absorb impact (¶ 23).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Amini (US8973188B1) in view of Wunderlich (DE29711223U1).
Regarding Claim 9, Amini fails to disclose the buttock support of claim 1, further comprising at least one belt for reversible fixing of the receiving means on the person.
However, Wunderlich teaches a patient support rail comprising at least one belt for reversible fixing of the receiving means on the person (Fig. 1 and 2 straps 7 and 8). Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to add straps 7 and 8 of Wunderlich to the support 100 of Amini. A skilled artisan would have been motivated to do so because the incorporation of straps would enhance stability of the support and prevent migration during movement.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Amini (US8973188B1) in view of Hetzel (US20050022306A1).
Regarding Claim 10, Amini fails to explicitly disclose the buttock support of claim 1, wherein the receiving means, in particular the two support regions, are formed at least in sections from a disinfectable plastic made from polyurethane, or are provided with a disinfectable coating made from polyurethane (Col. 9 lines 14-19).
However, Hetzel teaches a contoured seat cushion wherein the receiving means are formed at least in sections from a disinfectable plastic made from polyurethane, or are provided with a disinfectable coating made from polyurethane (Fig. 1, ¶ 48; support structure 21). Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the receiving means of Amini with the polyurethane of Hetzel. A skilled artisan would have been motivated to do so as the incorporation of polyurethane in the receiving means would improve the overall comfort, durability, and long-term support of the receiving means. It has been held that “the mere substitution of one material for another, performing the same function and achieving the same result, is not inventive”. See Sinclair & Carroll Co. v.Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Claims 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Walker (US20020029417A1) in view of Amini (US8973188B1).
Regarding Claim 13, Walker discloses a load-relief system for at least partial load-relief of the body weight of a person (Fig. 1; draw sheet), the load-relief system comprising; a suspension means for fastening the load-relief system to a head end of a bed (See annotated Fig. 1 below; wherein straps 36 and 38 may be fastened to a head end of a bed), in particular of a hospital bed; and a supporting means for operative connection of the suspension means to an apparatus for supporting the person (See annotated Fig. 1 below; straps 36 and 38).
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Walker fails to explicitly disclose wherein the apparatus for supporting the person is a buttock support as claimed in claim 1 (¶ 2; wherein adjustable cushions may be included during active use of the drawsheet for patient comfort as well as to facilitate use of the draw sheet).
However, Amini teaches the apparatus for supporting the person is a buttock support as claimed in claim 1. Amini teaches a buttock support (Fig. 1; pelvic positioning system 100), for at least partial load-relief of the body weight of a person, the buttock support comprising: a receiving means for receiving at least part of a buttock region of the person (Fig. 1; base 110), the receiving means having a longitudinal extent, a height, a front face, a rear face, a top face and a bottom face (See annotated Fig. 1 and 14F below); wherein the receiving means comprises at least one connecting element for operative connection to a bed or a load-relief system (See annotated Fig. 7 below, Col. 2 lines 18-27, Col. 6 lines 43-51; wherein the examiner is interpreting stirrup 310 as a load-relief system) wherein the receiving means further comprises two support regions (Fig. 1; 150a and 150b) which are separated from one another by a gap (Fig. 1; indentation 120), wherein the support regions are rounded at least with respect to the top face and the front face of the receiving means (Fig. 1); and wherein the gap separates the two support regions from one another centrally with respect to the longitudinal extent of the receiving means (Fig. 8).
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Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the adjustable cushions of Walker to be the buttock support of Amini. A skilled artisan would have been motivated to do so because Walker discusses the need for adjustable cushions to maintain patient positioning and alignment during active use of the draw sheet for patient comfort as well as to facilitate use of the draw sheet (¶ 2) and Amini would provide for that need with the buttock support as the buttock support facilitates necessary pressure relief, postural stability, and comfort during prolonged use.
Regarding Claim 14, Walker discloses the load-relief system of claim 13, wherein the supporting means or a connecting element for operative connection to the load-relief system comprises a quick-action fastener which is configured to release the connection between the buttock support and the suspension means without further tools (Fig. 1, ¶ 9, ¶ 37; wherein fasteners 42 and 44 may be strips of hook and loop material, such as Velcro, which allows for fast and easy attachment and detachment).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Shefaali Sivabada whose telephone number is 571-272-0451. The examiner can normally be reached Monday-Thursday 7:30am-5:30pm.
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, Rachael E. Bredefeld can be reached at 571-270-5237. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHEFAALI SIVABADA/Examiner, Art Unit 3786
/RACHAEL E BREDEFELD/Supervisory Patent Examiner, Art Unit 3786