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 .
Response to Arguments
Applicant's arguments filed 08/14/26 have been fully considered but they are not persuasive.
On page 4 regarding prior art rejections Applicant argues “structural limitations are obvious” since the prior art includes the structures necessary to perform the functions of the claim. Applicant disagrees, stating that the “specified offset amount” is not just a functional description but rather is “required to resolve a mechanical conflict between a linear actuator and a rotational joint” that the prior art all fail to address. Applicant states the “offset amount” is not a routine parameter, but define how one converts linear motion to a specific reduction ratio profile without jamming that could occur if the linear actuator of Kim with the linkage of Krieger.
The Examiner respectfully disagrees, pointing out that the “specified offset amount” is not described as being “just a functional description”, as Applicant states. The Examiner addresses this specifically in the rejection of record as the necessary change made within connecting a linear motor to be applied to a knee joint. Krieger teaches this offset amount as a linear motor is used within a knee joint. That “mechanical conflict between a linear actuator and a rotational joint” is well-known in the art and why four-bar linkages are so popular within knee joints. The Examiner maintains Krieger teaches this specified amount and that the Examiner has not stated this is a “functional description” as Applicant states.
On pages 4-5 Applicant argues further that Krieger teaches away from the knee joint of claim 1, since Krieger is designed to minimize or eliminate torque at a knee angle of 80-90 degrees to allow sitting comfortable, whereas the instant invention of claim 1 has a maximum reduction ratio (torque) at a knee angle of 80-90 degrees which assists in sit-to-stand movements.
The Examiner respectfully disagrees, pointing out a teaching reference such as Krieger, cannot teach away from its base reference. The base reference can teach away from being modified, but as Applicant has observed, Kim does not teach away from modification to be applied to a knee joint. Suggestions that Krieger intends a different torque at a knee angle of 80-90 degrees does not actually influence whether or not the Kim Krieger Combination would have a maximum or minimum torque at any specific knee joint angle, since Krieger is not relied upon to suggest any torque at any angle. Suggestions that the use of a linear joint within a prosthetic knee, or creating that adjustment from use within an ankle to use within a knee via a linear motion member, crank mechanism, connecting rod, and arm member connected by a specified offset amount, has anything to do with the amount of torque being provided at a specific knee angle appears to be ignoring the Combination of record, and importing assumptions which the Examiner has not made or mentioned.
The Examiner reminds Applicant that the Combination is modified in light of Horst who teaches the required reduction ratio value at 80-90 degrees of the knee.
On page 5 Applicant concludes that a person of ordinary skill which desires a high torque at 90 degrees (Horst’s goal), would find Krieger’s structure to be technically a failure since it does not have a high torque at 90 degrees, and thus Applicant concludes it would NOT be obvious to use a structure which yield’s zero torque at 90 degrees as a baseline reference to achieve a maximum torque at 80-90 degrees as the claim requires.
The Examiner respectfully disagrees, noting no evidence that the structure of the Combination would be unable to function. The arguments of counsel cannot take the place of evidence in the record. See MPEP 716.01(c). Additionally, while the amount of torque of Krieger is being focused on, the rejection of record is actually Kim in view of Krieger, further in view of Horst. The person of ordinary skill who is modifying Kim would not hesitate to utilize a high torque at 90 degrees, since they do not mention where or when torque could or should be highest within a knee, as would be required for this argument to be persuasive.
On pages 5-6 Applicant argues further that Krieger’s “offset connection” misrepresents mechanical principles of claim 1, since figure 17 of Krieger is not a passive linkage, but is instead of a geared coupling that actively forces the connection point to move. Applicant argues this is in contrast to the instant invention, which teaches a reduction ratio being achieved through a specifically determined, fixed geometric offset.
The Examiner respectfully points out the claimed invention does not discuss any “geometric offset”, let alone a “fixed geometric offset” as Applicant is describing. There is likewise no requirement in any part of the claim for a “passive linkage”. There is likewise no part of the claim preventing a “geared coupling”. Applicant’s arguments are accordingly unpersuasive.
On page 6 Applicant argues further Krieger’s offset is a byproduct of the planetary gear radius which is locked into the performance profile seen in figure 5 (which has zero torque at 90 degrees of the knee), the person of ordinary skill would not arrive at the instant invention with minor adjustment, since this would require “removing the gears” and “re-calculating” the linkage geometry, and suggests this is a “structural overhaul” Krieger does not suggest.
The Examiner respectfully disagrees, and maintains that a person of ordinary skill in the art of prosthetic limbs absolutely understands how to adjust a linkage so a specific torque at a specific time is achievable. This in fact, is the prosthetic limb engineer’s job and is well-within their technical capabilities and regular duties, and is routinely done based on the desired torque at a specific time within the gait cycle or at a specific knee angle.
On page 6 Applicant argues further that although the Examiner relies on Horst to teach the reduction ratio profile near 90 degrees, this is achieved through a different physical mechanism (changes in effective radius on spools) and does not discuss linkage offsets of a crank.
The Examiner respectfully points out there are many mechanisms available to a person of ordinary skill to achieve torque at a specific part of the gait cycle or with a specific knee angle. It is understood that the person of ordinary skill would find any of these mechanisms which are known in the art to try. Structural differences in one prior art reference from another does not overcome the fact that the claimed subject matter of having a reduction ratio at a maximum between 80-90 degrees of a knee is known in the art.
On page 7 Applicant argues accordingly the Examiner relies on impermissible hindsight. Applicant argues further the suggestion that Kim can be minorly adjusted to be applicable to a knee “overlooks” the biomechanical requirements of both the knee and ankle joint.
The Examiner respectfully disagrees, pointing out that Krieger discusses the requirements that would be necessary to translate a liner actuator to a rotational joint such as a knee. This is not overlooking the requirements of a knee, but rather the exact thing that accounts for the biomechanical differences between a knee and ankle.
On page 8 Applicant argues further that Kim’s SEA unit would have an actuator length exceeding the anatomical dimensions of a human thigh/calf, and so a person of ordinary skill would “not pursue a modification that results in a prosthetic device that is physically too large to be worn by a human.”
The Examiner respectfully notes no evidence of dimensions within Kim, and no support for this statement made by the Applicant, making this unpersuasive.
On page 8 Applicant argues further Kim’s linear motion member is constrained to prevent deflection, and if “one were to simply connect Kim’s strictly linear rod to Krieger’s swinging crank” the result would jam or lock up.
The Examiner respectfully notes no evidence for this statement in the record, making it unpersuasive. Additionally, even if there were some evidence for this statement, the person of ordinary skill within the art of designing prosthetic limbs has the skill to understand how linkages and connections work in a way to modify Kim so functionality is maintained.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over the foreign translation of Kim et al. (KR 10-2008-0075465), provided by Applicant in the IDS, hereinafter known as Kim in view of Krieger (US 5728172 A), further in view of Horst et al. (US 20150374573 A1) hereinafter known as Horst.
Regarding claims 1 and 6 Kim discloses a joint (page 1 paragraph 1 “active ankle foot orthosis”) comprising a motor (Figure 4 item 320), a linear motion member (Figure 4 item 350/355/325/330) that is capable of reciprocating in a linear direction in accordance with a ball screw that is rotated by the motor by way of a transmission (The applicant is advised that, while the features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In addition, it has been held by the courts that apparatus claims cover what a device is, not what a device does. See MPEP 2144 (I). In this case, the patented apparatus of Kim discloses (as detailed above) all the structural limitations required to perform the recited functional language, therefore was considered to anticipate the claimed apparatus. See, for example the bottom of page 6 “The driving unit 300 includes a series elastic actuator 310 and drives the continuous elastic actuator 310 according to a control signal of the motor of the motor control unit 240 to adjust the ankle angle of the legless orthosis.”; see also the bottom of page 7 “The spring metal plates 350 and 355 are connected to the plunger 375 and the end of the plunger 375 is connected to a connection ring 380 which is used to connect with the ancillary. The bushing 335 is included in the three metal plates 350, 345, and 355, that is, the two spring metal plates 350 and 355 and the one ball nut metal plate 345 that are in contact with the guide rail 330, Is smoothly converted into linear motion by the ball screw (340) and the ball nut (360).” The presence of the transmission is inherent.),
but is silent with regards to the joint being for a prosthetic leg knee joint, and a crank mechanism for changing the knee angle,
the crank including the claimed reduction ratio,
and a point of connection between the linear motion member and connecting rod being offset by an offset amount.
However, regarding claims 1 and 6 Krieger teaches that knee joints (Column 1 lines 16-18) of prosthetic legs (Column 1 lines 65-67) which connects a linear motion member (Annotated Figure 17) to a crank mechanism for changing a knee angle (this this stated as a functional limitation of the crank mechanism (see the explanation above) which the crank mechanism is understood to be capable of doing. See for example Column 2 lines 11-17),
wherein the crank mechanism comprises a connecting rod (Annotated Figure 17) that is rotatably connected to the linear motion member (Annotated Figure 17), an arm member (Annotated Figure 17) that is attached to the connecting rod so as to be capable of rotating and that swings in accordance with movement of the connecting rod (this is likewise stated as a functional limitation (see explanation above). Since the elements are connected at pivots, they are all considered capable of rotating/swinging as the claim requires), and a rotation shaft (Annotated Figure 17) constituting a center of rotation when the arm member swings (since the rotation shaft rotates, it inherently constitutes a center of rotation),
wherein the linear motion member and connecting rod have a point of connection (Annotated Figure 17) which is arranged to be offset by a specified amount from a rotational center of the rotation shaft (Annotated Figure 17 shows the arm member and the center of rotation being offset from the pivoting connection between the arm member and the connecting rod). Kim and Kreiger are involved in the same field of endeavor, namely orthopedic joints. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to modify the joint of Kim so that it can be used as a knee joint, and so connected via a knee crank mechanism as is taught by Kreiger, since knee joints are a well-known joint which a patient might have need for prosthetic or orthotic augmentation. Technologies which are useful in helping one joint walk (e.g. an ankle) are known to have similarities to other joints (e.g. a knee), and can be adjusted minorly by a person of ordinary skill to apply them to the various joints of the leg to help a wider variety of patients.
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Further, regarding claims 1 and 6 when the crank mechanism of Kreiger is applied to connect the linear motion member of Kim as a knee joint, as is taught by the Combination, this would result in the crank mechanism being capable of converting linear motion from the linear motion member (of Kim) to rotational movement (of the knee joint of the Combination), as the claim requires.
Further, regarding claims 1 and 6 Horst teaches that a reduction ratio of a knee crank mechanism can be configured to hit a maximum value when the knee angle is 80-90º ([0007]), and is a lower reduction ration than the maximum value when the knee angle is 0-20º ([0014]) and is set so that the reduction ration becomes lower as the knee angle becomes smaller ([0014], [0093]). Kim and Horst are involved in the same field of endeavor, namely orthopedic joints. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to modify the joint of the Kim Krieger Combination so that the crank mechanism included a reduction ratio configuration that hits a maximum at about 80-90º and lowers as the knee angle becomes smaller such as is taught by Horst in order to enable the joint of the Combination to accommodate the need for high torque during stair ascent ([0007]). As regards the offset amount and reduction ratio, the Combination the specified offset is understood to inherently (or at least obviously) relate to the reduction ratio, since this is how multi-bar linkage inherently function, and any structural adjustment in the Kim Krieger Combination can be obviously made by the person of ordinary skill in order to achieve the taught reduction ratios taught by Horst.
Regarding claim 3 the Kim Krieger Horst Combination teaches the knee joint of claim 1 substantially as is claimed,
wherein Krieger further teaches an upper connection section (Figure 17 item 1) for connecting a socket and the knee joint (This is stated as an “intended use” of the claimed device. The applicant is advised that a recitation of the intended use of an invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP 2111.02 (II). In this case, the structure of Krieger was considered capable of performing the cited intended use of connected a socket thereto if desired, since pyramid connectors are understood are understood to be suitable for this purpose), wherein the crank mechanism is connected to the upper connection section (Annotated Figure 17), and is configured to cause rotational movement of the upper connection section in forward and backward directions (this is stated as a functional limitation (see the explanation above). See also for example, Figure 16 which shows the knee upper section 1 moving toward/backward during use).
Regarding claim 4 the Kim Krieger Horst Combination teaches the knee joint of claim 1 substantially as is claimed,
wherein Kim further discloses the linear motion member includes a linear motion rod that extends in a movement direction of the linear motion member (Figure 4 items 325, 330) and
wherein the Combination further teaches the connecting rod is rotatably connected to an end part of the linear motion rod (see Krieger Annotated Figure 17 which shows how a linear motion member can be rotatably connected to the connecting rod).
Regarding claim 5 the Kim Krieger Horst Combination teaches the knee joint of claim 1 substantially as is claimed,
wherein the Combination further teaches a frame (Kim Figure 5), wherein a rotational shaft of the crank mechanism is supported by the frame (the frame supports the entirety of the joint, including the rotational shaft of the crank mechanism of the Combination).
Conclusion
THIS ACTION IS MADE FINAL. 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 extension fee 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 Jacqueline Woznicki whose telephone number is (571)270-5603. The examiner can normally be reached M-Th 10am-6pm EST.
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, Jerrah Edwards can be reached on 408-918-7557. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Jacqueline Woznicki/Primary Examiner, Art Unit 3774
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