Detailed Action
Notice of Pre-AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Arguments
Applicant's arguments filed 12/02/2025 have been fully considered.
The amendments to claims 4-5 overcame the rejection under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph.
Claim(s) 1-2 and 4-7 are rejected under pre-AIA 35 U.S.C. 102(e) as being anticipated by Ezenwa (2008/0147204).
Applicant argues:
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The “pertinent part” is the entirety of claim 1. The examiner notes that applicant maybe implying there is an order to the steps with the added numerals. Regarding, “the specification explains”, the language of both paragraphs are not in the claims; and use of “may” and the unclaimed limitations, such as a high-pass filter, makes the comment unclear.
Applicant’s explanation of device/method of Ezenwa is noted. Applicant’s arguments are summarized as: Accordingly, a difference between the invention of claim 1 and the '204 disclosure is that the former relies on pressure whereas the latter relies on motion. The examiner agrees that Ezenwa does comprise a stride sensor 24 but surely relies on pressure sensor(s) 29 to infer a user activity level based on pressure.
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Figure 5 shows a pressure reading(s) 68 from which a user activity level (stride 64 (weighted), swing 66 (unweighted)) can be inferred relative to the plurality of activity reference pressures 62. This doesn’t even require a computer.
Regarding altering the pressure based on the activity level; see at least par. 0007.
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 1-2, 4-7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 of U.S. Patent No. 11,730,613. Although the claims at issue are not identical, they are not patentably distinct from each other because the current claims are broader in scope using the same terminology. The comparison of claim limitations is self-evident. Claims 1-4 of the ‘613 patent are copied below:
1. A method for control of at least one actuator of a dynamic support apparatus, the method comprising: monitoring, with a sensor, a pressure of the at least one actuator; altering, with a control system, the pressure of the at least one actuator based at least in part on the monitored pressure, wherein the control system includes a plurality of predefined modes, each predefined mode including an activity reference pressure indicative of a predetermined activity; evaluating (inferring), with the control system, a user activity level based at least on the pressure of the at least one actuator; and altering, with the control system, the pressure of the at least one actuator based at least in part on the activity level; wherein the evaluation of the user activity level is made with respect to the activity reference pressure indicative of the predetermined activity of a currently selected predefined mode of the plurality of predefined modes.
2. The method according to claim 1, additionally comprising increasing the pressure of the at least one actuator if the monitored pressure drops below a current pressure setpoint by more than a pre-determined threshold.
3. The method according to claim 1, additionally comprising evaluating whether a safety threshold has been exceeded based at least on the pressure of the at least one actuator.
4. The method according to claim 3, additionally comprising entering an auto-relief mode if the safety threshold has been exceeded.
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 pre-AIA 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 –
(e) the invention was described in (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language.
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claim(s) 1-2 and 4-7 are rejected under pre-AIA 35 U.S.C. 102(e) as being anticipated by Ezenwa (2008/0147204).
Claim 1, Ezenwa teaches a method of controlling an actuator (including 36; see par. 0008) of a dynamic support apparatus 16 comprising:
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inferring a user activity level (stride 64 through swing 66) based on a pressure (pressure sensor 29; see Monitor Actual Pressures block 74) of the actuator relative to a plurality of activity reference pressures (each pressure data point along the entire stride cycle 62 identified in Benchmark Pressures block 60); and
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altering the pressure based on the activity level (via valves 50).
Claim 2, see par. 0041 teaches increasing the pressure of the actuator if the monitored pressure drops below a current pressure setpoint equating to “drops below a predetermined value”. The language “by more than a threshold” is undefined in the claim and can be zero. The threshold is considered to be merely the setpoint.
Claim 4, the method further comprising evaluating with the control system whether a safety threshold (threshold 70) has been exceeded based on the pressure. See par. 0039-0040.
Claim 5, the method further comprising the control system entering an autorelief mode if the safety threshold (threshold 70) has been exceeded. The autorelief mode is interpreted as lowering the pressure when it’s above the threshold 70. See par. 0039-0040.
Claim 6, par. 0040-0041 and process block 74 teaches monitoring a pressure of the actuator with a sensor 29 and defining the monitored pressure including merely a numerical value.
Claim 7, wherein the activity reference pressure is indicative of an activity of a selected mode such weighted or swing or any position in the swing.
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 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRUCE EDWARD SNOW whose telephone number is (571)272-4759. The examiner can normally be reached 7:30 am - 5:00 pm Monday through Thursday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Melanie Tyson can be reached on 5712729062. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRUCE E SNOW/Primary Examiner, Art Unit 3774