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 .
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 7 and 17 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1 and 13 of U.S. Patent No. 11,896,870. This is a statutory double patenting rejection. Claim 7 of the instant application is identical to Claim 1 of U.S. Patent No. 11,896,870 and Claim 7 of the instant application is identical to Claim 13 of U.S. Patent No. 11,896,870.
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 1-6, 8-16, and 18-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 11,896,870. Although the claims at issue are not identical, they are not patentably distinct from each other because Claims 1-6, 8-16, and 18-20 are more broad than Claims 1-17 of U.S. Patent No. 11,896,870.
Instant Application Claims
Patent 11,896,870 Claims
Difference
1. A device for analysis and/or exercise of a neck region of a subject, said device comprising: a support frame; a curved guide arm supported by the support frame; a receiving surface supported by the curved guide arm, the receiving surface for receiving input force from the subject; and a motor assembly in communication with the curved guide arm, the motor assembly controlling movement of the receiving surface with respect to the subject based on input force received from the subject at the receiving surface.
1. A device for analysis and/or exercise of a neck region of a subject,said device comprising: a support frame; a curved guide arm supported by the support frame; a receiving surface supported by the curved guide arm, the receiving surface for receiving input force from the subject; and a motor assembly in communication with the curved guide arm, the motor assembly controlling movement of the receiving surface with respect to the subject based on input force received from the subject at the receiving surface; wherein the motor assembly is configured to move the receiving surface in a direction substantially aligned with the input force at a predetermined rate, so long as the input force remains within an allowable tolerance, until a pre-determined end position is reached; wherein the motor assembly is configured to stop movement of the receiving surface with respect to the subject upon interruption of the input force from the subject upon the receiving surface, upon failure of the input force to remain within an allowable tolerance, upon reaching a pre- determined end position, or any combination thereof, or both; and wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.
The instant application is anticipated by the patent in that it is more board and does not include the limitation of “wherein the motor assembly is configured to move the receiving surface in a direction substantially aligned with the input force at a predetermined rate, so long as the input force remains within an allowable tolerance, until a pre-determined end position is reached; wherein the motor assembly is configured to stop movement of the receiving surface with respect to the subject upon interruption of the input force from the subject upon the receiving surface, upon failure of the input force to remain within an allowable tolerance, upon reaching a pre- determined end position, or any combination thereof, or both; and wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.”
2. The device according to claim 1, wherein: the receiving surface is fixedly mounted to or integrated with the curved guide arm, and the motor assembly is mounted to the support frame and controls movement of the curved guide arm, such that movement of the receiving surface with respect to the subject is controlled by movement of the curved guide arm by the motor assembly; or the receiving surface is movably mounted to the curved guide arm, and the motor assembly is mounted to the curved guide arm and controls movement of the receiving surface along the curved guide arm, such that movement of the receiving surface with respect to the subject is controlled by movement of the receiving surface along the curved guide arm by the motor assembly.
2. The device according to claim 1, wherein: the receiving surface is fixedly mounted to or integrated with the curved guide arm, and the motor assembly is mounted to the support frame and controls movement of the curved guide arm, such that movement of the receiving surface with respect to the subject is controlled by movement of the curved guide arm by the motor assembly; or the receiving surface is movably mounted to the curved guide arm, and the motor assembly is mounted to the curved guide arm and controls movement of the receiving surface along the curved guide arm, such that movement of the receiving surface with respect to the subject is controlled by movement of the receiving surface along the curved guide arm by the motor assembly.
None.
3. The device according to claim 2, wherein the motor assembly engages with the curved guide arm via one or more non-slip complementary engagement members located on the motor assembly and curved guide arm.
3. The device according to claim 2, wherein the motor assembly engages with the curved guide arm via one or more non-slip complementary engagement members located on the motor assembly and curved guide arm.
None.
4. The device according to claim 1, wherein the device further comprises one or more input sensors for sensing input force received from the subject at the receiving surface and transmitting a control signal based on said input force, and a controller for receiving the control signal and controlling action of the motor assembly based on the control signal.
4. The device according to claim 1, wherein the device further comprises one or more input sensors for sensing input force received from the subject at the receiving surface and transmitting a control signal based on said input force, and a controller for receiving the control signal and controlling action of the motor assembly based on the control signal.
None.
5. The device according to claim 4, wherein at least one input sensor is located at the receiving surface.
The device according to claim 4, wherein at least one input sensor is located at the receiving surface.
None.
6. The device according to claim 1, wherein the motor assembly is configured to move the receiving surface in a direction substantially aligned with the input force at a predetermined rate, so long as the input force remains within an allowable tolerance, until a pre-determined end position is reached, wherein the motor assembly is configured to stop movement of the receiving surface with respect to the subject upon interruption of the input force from the subject upon the receiving surface, upon failure of the input force to remain within an allowable tolerance, upon reaching a pre-determined end position, or any combination thereof, or both.
1. A device for analysis and/or exercise of a neck region of a subject, said device comprising: a support frame; a curved guide arm supported by the support frame; a receiving surface supported by the curved guide arm, the receiving surface for receiving input force from the subject; and a motor assembly in communication with the curved guide arm, the motor assembly controlling movement of the receiving surface with respect to the subject based on input force received from the subject at the receiving surface; wherein the motor assembly is configured to move the receiving surface in a direction substantially aligned with the input force at a predetermined rate, so long as the input force remains within an allowable tolerance, until a pre-determined end position is reached; wherein the motor assembly is configured to stop movement of the receiving surface with respect to the subject upon interruption of the input force from the subject upon the receiving surface, upon failure of the input force to remain within an allowable tolerance, upon reaching a pre-determined end position, or any combination thereof, or both; and wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.
The instant application is anticipated by the patent in that it is more board and does not include the limitation of “wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.”
7. The device according to claim 6, wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.
1. A device for analysis and/or exercise of a neck region of a subject, said device comprising: a support frame; a curved guide arm supported by the support frame; a receiving surface supported by the curved guide arm, the receiving surface for receiving input force from the subject; and a motor assembly in communication with the curved guide arm, the motor assembly controlling movement of the receiving surface with respect to the subject based on input force received from the subject at the receiving surface; wherein the motor assembly is configured to move the receiving surface in a direction substantially aligned with the input force at a predetermined rate, so long as the input force remains within an allowable tolerance, until a pre-determined end position is reached; wherein the motor assembly is configured to stop movement of the receiving surface with respect to the subject upon interruption of the input force from the subject upon the receiving surface, upon failure of the input force to remain within an allowable tolerance, upon reaching a pre-determined end position, or any combination thereof, or both; and wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.
Exactly combination of Claims 1+6+7 of the instant application.
8. The device according to claim 1, wherein the device further comprises a positioning sensor which tracks location of the receiving surface, head positioning of the subject, or both, in 3D space.
9. The device according to claim 1, wherein the device further comprises a positioning sensor which tracks location of the receiving surface, head positioning of the subject, or both, in 3D space.
None.
9. The device according to claim 1, wherein the curved guide arm is rotatable with respect to the support frame about a substantially vertical axis, allowing for positioning of the receiving surface about at least a portion of an outer perimeter region surrounding the subject.
10. The device according to claim 1, wherein the curved guide arm is rotatable with respect to the support frame about a substantially vertical axis, allowing for positioning of the receiving surface about at least a portion of an outer perimeter region surrounding the subject.
None.
10. The device according to claim 1, wherein the device comprises a seat for the subject which orients the neck region of the subject with the receiving surface.
11. The device according to claim 1, wherein the device comprises a seat for the subject which orients the neck region of the subject with the receiving surface.
None.
11. The device according to claim 1, wherein the motor assembly controls movement of the receiving surface with respect to the subject so as to provide isometric exercise, isokinetic exercise, or both, to the subject during use so as to assess range of motion of the subject during use; or a combination thereof.
12. The device according to claim 1, wherein the motor assembly controls movement of the receiving surface with respect to the subject so as to provide isometric exercise, isokinetic exercise, or both, to the subject during use so as to assess range of motion of the subject during use; or a combination thereof.
None.
12. The device according to claim 1, wherein the device further comprises a user interface for guiding the subject’s interaction with the receiving surface during use, wherein the user interface instructs the subject to apply input force to the receiving surface in a specific manner, and provides the subject with real-time feedback allowing the subject to adjust application of input force so as remain within an allowable tolerance, wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.
6. The device according to claim 1, wherein the device further comprises a user interface for guiding the subject's interaction with the receiving surface during use, wherein the user interface instructs the subject to apply input force to the receiving surface in a specific manner, and provides the subject with real-time feedback allowing the subject to adjust application of input force so as remain within an allowable tolerance, wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.
None.
13. The device according to claim 12, wherein the user interface comprises a graphical interface displayed to the subject during use, an auditory interface played for the subject during use, or a combination thereof.
7. The device according to claim 6, wherein the user interface comprises a graphical interface displayed to the subject during use, an auditory interface played for the subject during use, or a combination thereof.
None.
14. The device of claim 12, wherein the user interface comprises a graphical user interface which provides an immersive visual experience to the subject during use which guides interaction of the subject with the receiving surface.
8. The device of claim 6, wherein the user interface comprises a graphical user interface which provides an immersive visual experience to the subject during use which guides interaction of the subject with the receiving surface.
None.
15. A method for exercising or analyzing a neck region of a subject, said method comprising: instructing the subject to apply an input force to a receiving surface; sensing the input force applied to the receiving surface over time; and controlling movement of the receiving surface with respect to the subject based on the input force received from the subject at the receiving surface using a motor assembly, whereby the motor assembly moves the receiving surface away from or toward the subject in a direction substantially aligned with the input force, or in a pre-determined direction, at a predetermined rate, so long as the input force remains within an allowable tolerance, until a pre-determined end position is reached, thereby exercising or analyzing function of the neck region.
13. A method for exercising or analyzing a neck region of a subject, said method comprising: instructing the subject to apply an input force to a receiving surface; sensing the input force applied to the receiving surface over time; and controlling movement of the receiving surface with respect to the subject based on the input force received from the subject at the receiving surface using a motor assembly, whereby the motor assembly moves the receiving surface away from or toward the subject in a direction substantially aligned with the input force, or in a pre-determined direction, at a predetermined rate, so long as the input force remains within an allowable tolerance, until a pre-determined end position is reached, thereby exercising or analyzing function of the neck region; and wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.
The instant application is anticipated by the patent in that it is more board and does not include the limitation of “wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.”
16. The method according to claim 15, wherein the motor assembly stops movement of the receiving surface with respect to the subject upon sensed interruption of the input force from the subject upon the receiving surface, upon sensed failure of the input force to remain within the allowable tolerance, upon reaching a pre-determined end position, or any combination thereof.
14. The method according to claim 13, wherein the motor assembly stops movement of the receiving surface with respect to the subject upon sensed interruption of the input force from the subject upon the receiving surface, upon sensed failure of the input force to remain within the allowable tolerance, upon reaching a pre-determined end position, or any combination thereof.
None.
17. The method according to claim 15, wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.
13. A method for exercising or analyzing a neck region of a subject, said method comprising: instructing the subject to apply an input force to a receiving surface; sensing the input force applied to the receiving surface over time; and controlling movement of the receiving surface with respect to the subject based on the input force received from the subject at the receiving surface using a motor assembly, whereby the motor assembly moves the receiving surface away from or toward the subject in a direction substantially aligned with the input force, or in a pre-determined direction, at a predetermined rate, so long as the input force remains within an allowable tolerance, until a pre-determined end position is reached, thereby exercising or analyzing function of the neck region; and wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof.
Exactly combination with Claim 15 + 17 of the instant application.
18. The method according to claim 15, wherein the method further comprises tracking location of the receiving surface, head positioning of the subject, or both, in 3D space over time.
15. The method according to claim 13, wherein the method further comprises tracking location of the receiving surface, head positioning of the subject, or both, in 3D space over time.
None.
19. The method according to claim 15, wherein the motor assembly controls movement of the receiving surface with respect to the subject so as to provide isometric exercise, isokinetic exercise, or both, to the subject, so as to assess range of motion of the subject, or a combination thereof.
16. The method according to claim 13, wherein the motor assembly controls movement of the receiving surface with respect to the subject so as to provide isometric exercise, isokinetic exercise, or both, to the subject, so as to assess range of motion of the subject, or a combination thereof.
None.
20. The method according to claims 15, wherein the instructing step comprises providing a user interface guiding the subject’s interaction with the receiving surface, wherein the user interface instructs the subject to apply input force to the receiving surface in a specific manner, and provides the subject with real-time feedback allowing the subject to adjust application of input force so as remain within the allowable tolerance, and wherein the user interface comprises a graphical user interface which provides an immersive visual experience to the subject during use which guides interaction of the subject with the receiving surface.
17. The method according to claim 13, wherein the instructing step comprises providing a user interface guiding the subject's interaction with the receiving surface, wherein the user interface instructs the subject to apply input force to the receiving surface in a specific manner, and provides the subject with real-time feedback allowing the subject to adjust application of input force so as remain within the allowable tolerance, and wherein the user interface comprises a graphical user interface which provides an immersive visual experience to the subject during use which guides interaction of the subject with the receiving surface.
None.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Della Santina et al (US 20110152711 A1).
Regarding Claim 1, Della Santina et al teaches a device for analysis and/or exercise of a neck region of a subject (The Office takes the position that the device is capable of being used as an exercise device for the neck region since it provides movement to the head as disclosed in Paragraph [0052]), said device comprising:
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a support frame 222,224,225 (Refer to Fig. 2B above) a curved guide arm 202 supported by the support frame; a receiving surface 208,220 supported by the curved guide arm 202, the receiving surface for receiving input force from the subject (Refer to Paragraph [0016]:” [0016] The head coupling component can be coupled to the subject's head by a bite block, a helmet, or a constellation of head fixation pads and posts.”); and a motor assembly 206 in communication with the curved guide arm, the motor assembly controlling movement of the receiving surface with respect to the subject based on input force received from the subject at the receiving surface (Refer to Fig. 2A,B Paragraph [0039]:” Referring now to FIG. 2A, an exploded view of a vestibular and oculomotor function testing device 200a is provided. The testing device 200a includes a track 202 supported by a plurality of bearings 204a-d. In some embodiments, a plurality of tracks can be coupled to reduce undesired motion in directions other than the desired axes of motion. An engine 206 selectively displaces the track 202. A head coupling component 208 is coupled to the track 202 to convey a controlled transient, sinusoidal, or other movement generated by the engine 206 to a subject's head. The track 202 can be a curved track 202a (e.g. an arc or a circle) as depicted in FIG. 2A or can be straight track 202b as depicted in FIG. 2E.”).
Regarding Claim 2, Della Santina et al continues to teach wherein: the receiving surface 220 is fixedly mounted to or integrated with the curved guide arm 202, and the motor assembly 206 is mounted to the support frame 222,224,225 and controls movement of the curved guide arm, such that movement of the receiving surface with respect to the subject is controlled by movement of the curved guide arm 202 by the motor assembly 206 (Refer to Paragraph [0039]:” An engine 206 selectively displaces the track 202. A head coupling component 208 is coupled to the track 202 to convey a controlled transient, sinusoidal, or other movement generated by the engine 206 to a subject's head. The track 202 can be a curved track 202a (e.g. an arc or a circle) as depicted in FIG. 2A or can be straight track 202b as depicted in FIG. 2E.”); or the receiving surface is movably mounted to the curved guide arm, and the motor assembly is mounted to the curved guide arm and controls movement of the receiving surface along the curved guide arm, such that movement of the receiving surface with respect to the subject is controlled by movement of the receiving surface along the curved guide arm by the motor assembly.
Regarding Claim 3, Della Santina et al continues to teach wherein the motor assembly 206 engages with the curved guide arm 202 via one or more non-slip complementary engagement members located on the motor assembly and curved guide arm 202 (Refer to Paragraph [0044]:” In another embodiment depicted in FIG. 2A, rubber wheel 210 is rotated by engine 206. Rotation of rubber wheel 210 is coupled by friction to displace track 202. The use of a rubber wheel 210 enhances the safety of the testing device 200a as any significant resistance will cause the rubber wheel 210 to slip, thereby preventing the subject's head from being forcibly rotated.”).
Regarding Claim 4, Della Santina et al continues to teach wherein the device further comprises one or more input sensors 219 for sensing input force received from the subject at the receiving surface 220 and transmitting a control signal based on said input force, and a controller for receiving the control signal and controlling action of the motor assembly 206 based on the control signal (Refer to Paragraph [0052]:” One or more motion sensors 219 (e.g. gyroscopes and accelerometers) can be coupled to head coupling component 208 to measure the head movements induced by engine 206. In embodiments incorporating a magnetic search coils, sensor 219 can be an additional magnetic coil coupled to head coupling component 208.”.. [0073]:” One skilled in the art will recognize that the systems and method described herein can be performed hardware, software, or a combination of both. Specifically, a control device can selectively apply appropriate amounts of electricity to motor 206 to convey movement to the subject's head. This control device can also capture data from an oculographic device 218 and motion sensor 219. This data can be associated with a particular movement.”).
Regarding Claim 5, Della Santina et al continues to teach wherein at least one input sensor is located at the receiving surface 208,220 (Refer to Paragraph [0052]:” In embodiments incorporating a magnetic search coils, sensor 219 can be an additional magnetic coil coupled to head coupling component 208. “ The Office considers the entire head coupling component the receiving surface and/or the sensors are indirectly located via connection to the head coupling component 208).
Regarding Claim 6, Della Santina et al continues to teach wherein the motor assembly 206 is configured to move the receiving surface 208,220 in a direction substantially aligned with the input force at a predetermined rate, so long as the input force remains within an allowable tolerance, until a pre-determined end position is reached (The Office considers the end position the end of the track 202), wherein the motor assembly 206 is configured to stop movement of the receiving surface 220 with respect to the subject upon interruption of the input force from the subject upon the receiving surface, upon failure of the input force to remain within an allowable tolerance, upon reaching a pre-determined end position, or any combination thereof, or both (Refer to Paragraph [0042] In one embodiment, the testing device 200a moves the subject's head for about 120 milliseconds in each direction, with about 60 milliseconds dedicated to an acceleration of about 3,000.degree. per second per second and about 60 milliseconds for deceleration of about -3,000.degree. per second per second. This movement results in about 15.degree. of head rotation about a given axis at about 1 meter per second of peak linear track velocity. Such speeds are sufficient to identify a difference between responses of healthy subjects and subjects with inadequate function of the angular VOR. In this embodiment, the engine and means for coupling engine movement to the track are designed so as to generate sufficient torque to move the head at the desired acceleration, but insufficient torque to injure the subject.”…&[0046]..The Office considers the interruption is made when the user resists movement of the motor 206 beyond a threshold).
Regarding Claim 7, Della Santina et al continues to teach wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof (Refer to Paragraph [0042]&[0046]..The Office considers the upper threshold value being the value at which the range of motion or point at which the engine will no longer engage the track).
Regarding Claim 8, Della Santina et al continues to teach wherein the device further comprises a positioning sensor which tracks location of the receiving surface 220, head positioning of the subject, or both, in 3D space (Refer to Paragraph [0052] One or more motion sensors 219 (e.g. gyroscopes and accelerometers) can be coupled to head coupling component 208 to measure the head movements induced by engine 206. In embodiments incorporating a magnetic search coils, sensor 219 can be an additional magnetic coil coupled to head coupling component 208.”).
Regarding Claim 9, Della Santina et al continues to teach wherein the curved guide arm 202 is rotatable with respect to the support frame 222,224,225 about a substantially vertical axis, allowing for positioning of the receiving surface 220 about at least a portion of an outer perimeter region surrounding the subject (Refer to Fig. 2A,B annotated below to depict that vertical axis about which the receiving surface Paragraph [0044]:” In another embodiment depicted in FIG. 2A, rubber wheel 210 is rotated by engine 206. Rotation of rubber wheel 210 is coupled by friction to displace track 202. The use of a rubber wheel 210 enhances the safety of the testing device 200a as any significant resistance will cause the rubber wheel 210 to slip, thereby preventing the subject's head from being forcibly rotated.”).
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Regarding Claim 10, Della Santina et al continues to teach wherein the device comprises a seat for the subject which orients the neck region of the subject with the receiving surface (Refer to Paragraph [0067]:” The subject can be a standing, seated, prone, or supine position.”. The Office takes the position in embodiments where the subjected is seated the seat is considered part of the device).
Regarding Claim 11, Della Santina et al continues to teach wherein the motor assembly controls 206 movement of the receiving surface 220 with respect to the subject so as to provide isometric exercise, isokinetic exercise, or both, to the subject during use so as to assess range of motion of the subject during use; or a combination thereof (Refer to Paragraph [0042]:” In one embodiment, the testing device 200a moves the subject's head for about 120 milliseconds in each direction, with about 60 milliseconds dedicated to an acceleration of about 3,000.degree. per second per second and about 60 milliseconds for deceleration of about -3,000.degree. per second per second. This movement results in about 15.degree. of head rotation about a given axis at about 1 meter per second of peak linear track velocity. Such speeds are sufficient to identify a difference between responses of healthy subjects and subjects with inadequate function of the angular VOR. In this embodiment, the engine and means for coupling engine movement to the track are designed so as to generate sufficient torque to move the head at the desired acceleration, but insufficient torque to injure the subject.”).
Claim Rejections - 35 USC § 103
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 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) 1 and 15-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dahl (US 20040220500) in view of Wunderly et al (US 20030028130 A1).
Regarding Claim 1, Dahl teaches a device for analysis and/or exercise of a neck region of a subject, said device comprising: a support frame 4,14; a curved guide arm supported by the support frame 4,14 (Refer to annotated Fig. 2 below);
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a receiving surface supported by the curved guide arm, the receiving surface for receiving input force from the subject (Refer to annotated Fig. 2 above); and a force element in communication with the curved guide arm, the force element controlling movement of the receiving surface with respect to the subject based on input force received from the subject at the receiving surface (Refer to Fig. 2 Paragraph [0021]:” During diagnosis and training, the patient places the head in the head unit of the apparatus and exerts force on the head unit. The head unit can be moved laterally and rotationally with respect to three orthogonal axes such that any arbitrary movement of the head unit is possible with maximum amplitude, for example a movement where the forehead travels along a circular path in a horizontal plane. With the apparatus according to the invention, all muscles in the cervical region can be examined and trained.”.. Refer to Paragraph [0032]-[0033]:” [0032] The passive rhythmic stabilisation is a special training, wherein the head unit is stationary at a prefixed position until the force exerted on the head unit by the patient is higher than a pre-set value, after which the head unit is configured to follow, preferably reluctantly, the direction of the exerted force. The prefixed position may for example be the natural equilibrium position as felt by the patient or the natural equilibrium position as expected and indicated by a therapist. This training method is especially useful for giving the patient the feeling for force without overloading the cervical muscles, as the head unit as an indicator may stop resisting the force of the head on the head unit at a predetermined force level. In principle, the head unit may stop the resistance against the force on the head unit instantaneously at a predetermined force level. However, this would imply that after having exceeded a certain force, the patient would risk to have his head moved fast and with a rather large amplitude before the patient has reduced the force again until below a certain level, where the head unit returns to the original position. By having the head unit to follow the direction of the force reluctantly, injuries are prevented to a higher degree for those patients for which motions with large amplitude are harmful….[0033] In active rhythmic stabilisation, the head unit exerts force on the head of the patient, who tries to resist the force without moving the head. The force starts at a small level in a certain direction and increases until a predetermined level, after which the force is reduced and build up in a new direction. Thus, the head of the patient is trained in different directions without having to move the head. If the strength of the neck muscles in a certain direction is not high enough and the patient starts moving the head, the force is instantaneously reduced for giving the patient the possibility to return to the original position.”). Dahl fails to expressly disclose that the force element is a motor assembly. Wunderly et al teaches an exercise device comprising a guide arm 16, receiving surface 28, and a motor assembly M1 in communication with the guide arm 16, the motor assembly controlling movement of the receiving surface 28 with respect to the subject based on input force received from the subject at the receiving surface (Refer to Paragraph [0064]:” Upon initiation of the program, the patient will actively engage the left arm support assembly 14 or right arm support assembly 16 at the patient interface 28R or 28L and will move the users arm along the arm support assemblies 14 and 16. The controller will monitor the force sensor 30 at the patient interface 28R or 28L and compare the force generated in the direction of motion along the dual arm support assemblies 14 and/or 16 with the active force resistance. The controller 100 will provide an output request to the motor M1 to oppose the motion of the users arm and thus create a resistance force at the Patient Interfaces 28R or 28L. The resistance force will be low enough so that the patient may overcome it and thus a form of resistance strength training will take place.”). Wunderly et al is analogous with Applicant invention since they both teach devices comprising motors used to oppose/create resistance and therefore it would have been obvious to one of ordinary skill in the art before the effectively filing date to modify the assembly of Dahl to be in view of Wunderly to comprise a motor assembly to control movement of the receiving surface 2 with respect to the subject based on input force received from the subject at the receiving surface since Wunderley et al teaches that motors are suitable and known in the art to provide controlled resistance to a device for exercise/therapy since it has been held that mere automatic to produce expected results does not patentably distinguish the invention over prior arts. Refer to MPEP 2144.04 III. AUTOMATING A MANUAL ACTIVITY.
Regarding Claim 15, Dahl teaches a method for exercising or analyzing a neck region of a subject, said method comprising: instructing the subject to apply an input force to a receiving surface 2 (Refer to Fig. 2 Paragraph [0021]:” During diagnosis and training, the patient places the head in the head unit of the apparatus and exerts force on the head unit. The head unit can be moved laterally and rotationally with respect to three orthogonal axes such that any arbitrary movement of the head unit is possible with maximum amplitude, for example a movement where the forehead travels along a circular path in a horizontal plane. With the apparatus according to the invention, all muscles in the cervical region can be examined and trained.”); sensing the input force applied to the receiving surface over time (Refer to Paragraph [0027]:” [0027] As the apparatus comprises a monitoring system functionally connected to the movement sensor and optionally the force sensor, training periods can be monitored for immediate or later evaluation. The monitoring system is configured to monitor and store parameters of the movement of the head unit, for example position, speed and direction, and/or of the force exerted on said head unit.”); and controlling movement of the receiving surface 2 with respect to the subject based on the input force received from the subject at the receiving surface 2 using a force element, whereby the force element moves the receiving surface 2 away from or toward the subject in a direction substantially aligned with the input force, or in a pre-determined direction, at a predetermined rate, so long as the input force remains within an allowable tolerance, until a pre-determined end position is reached, thereby exercising or analyzing function of the neck region (Refer to Paragraph [0032]-[0033]:” [0032] The passive rhythmic stabilisation is a special training, wherein the head unit is stationary at a prefixed position until the force exerted on the head unit by the patient is higher than a pre-set value, after which the head unit is configured to follow, preferably reluctantly, the direction of the exerted force. The prefixed position may for example be the natural equilibrium position as felt by the patient or the natural equilibrium position as expected and indicated by a therapist. This training method is especially useful for giving the patient the feeling for force without overloading the cervical muscles, as the head unit as an indicator may stop resisting the force of the head on the head unit at a predetermined force level. In principle, the head unit may stop the resistance against the force on the head unit instantaneously at a predetermined force level. However, this would imply that after having exceeded a certain force, the patient would risk to have his head moved fast and with a rather large amplitude before the patient has reduced the force again until below a certain level, where the head unit returns to the original position. By having the head unit to follow the direction of the force reluctantly, injuries are prevented to a higher degree for those patients for which motions with large amplitude are harmful….[0033] In active rhythmic stabilisation, the head unit exerts force on the head of the patient, who tries to resist the force without moving the head. The force starts at a small level in a certain direction and increases until a predetermined level, after which the force is reduced and build up in a new direction. Thus, the head of the patient is trained in different directions without having to move the head. If the strength of the neck muscles in a certain direction is not high enough and the patient starts moving the head, the force is instantaneously reduced for giving the patient the possibility to return to the original position.”). Dahl fails to expressly disclose that the force element is a motor assembly. Wunderly et al teaches an exercise device comprising a guide arm 16, receiving surface 28, and a motor assembly M1 in communication with the guide arm 16, the motor assembly controlling movement of the receiving surface 28 with respect to the subject based on input force received from the subject at the receiving surface (Refer to Paragraph [0064]:” Upon initiation of the program, the patient will actively engage the left arm support assembly 14 or right arm support assembly 16 at the patient interface 28R or 28L and will move the users arm along the arm support assemblies 14 and 16. The controller will monitor the force sensor 30 at the patient interface 28R or 28L and compare the force generated in the direction of motion along the dual arm support assemblies 14 and/or 16 with the active force resistance. The controller 100 will provide an output request to the motor M1 to oppose the motion of the users arm and thus create a resistance force at the Patient Interfaces 28R or 28L. The resistance force will be low enough so that the patient may overcome it and thus a form of resistance strength training will take place.”). Wunderly et al is analogous with Applicant invention since they both teach devices comprising motors used to oppose/create resistance and therefore it would have been obvious to one of ordinary skill in the art before the effectively filing date to modify the assembly of Dahl to be in view of Wunderly to comprise a motor assembly to control movement of the receiving surface 2 with respect to the subject based on input force received from the subject at the receiving surface since Wunderley et al teaches that motors are suitable and known in the art to provide controlled resistance to a device for exercise/therapy since it has been held that mere automatic to produce expected results does not patentably distinguish the invention over prior arts. Refer to MPEP 2144.04 III. AUTOMATING A MANUAL ACTIVITY.
Regarding Claim 16, Dahl in view of Wunderly continues to teach wherein the motor assembly stops movement of the receiving surface 2 with respect to the subject upon sensed interruption of the input force from the subject upon the receiving surface, upon sensed failure of the input force to remain within the allowable tolerance, upon reaching a pre-determined end position, or any combination thereof (Refer to Dahl Paragraph [0032]).
Regarding Claim 17, Dahl in view of Wunderly continues to teach wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof (Refer to Paragraph [0032]:” The passive rhythmic stabilisation is a special training, wherein the head unit is stationary at a prefixed position until the force exerted on the head unit by the patient is higher than a pre-set value”…” This training method is especially useful for giving the patient the feeling for force without overloading the cervical muscles, as the head unit as an indicator may stop resisting the force of the head on the head unit at a predetermined force level. In principle, the head unit may stop the resistance against the force on the head unit instantaneously at a predetermined force level.”..The Office takes the position that the “predetermined force level” is the upper threshold value).
Regarding Claim 18, Dahl in view of Wunderly continues to teach wherein the method further comprises tracking location of the receiving surface, head positioning of the subject, or both, in 3D space over time (Refer to Paragraph [0028],[0029],& [0057]:” This data processing may be used to evaluate the movement and the corresponding forces in accordance with predetermined algorithms for thorough analysis. The calculated results may be displayed graphically, for example as curves or two or three dimensional models that eases the understanding of deviations from a normal case and also allows easy comparison with other patients.”).
Regarding Claim 19, Dahl in view of Wunderly continues to teach wherein the motor assembly controls movement of the receiving surface with respect to the subject so as to provide isometric exercise, isokinetic exercise, or both, to the subject, so as to assess range of motion of the subject, or a combination thereof (Refer to Dahl Paragrsph [0032]-[0033]).
Claims 12-14 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dahl (US 20040220500) in view of Wunderly et al (US 20030028130) as applied above, further in view of Jones et al (US 20120108394).
Regarding Claims 12&20, Dahl in view of Wunderly et al continues to teach wherein the instructing step comprises providing a user interface guiding the subject’s interaction with the receiving surface, wherein the user interface instructs the subject to apply input force to the receiving surface in a specific manner, and provides the subject with feedback allowing the subject to adjust application of input force so as remain within the allowable tolerance, and wherein the user interface comprises a graphical user interface which provides an immersive visual experience to the subject during use which guides interaction of the subject with the receiving surface (Refer to Dahl Paragraph [0029]-[0033] and Wunderly et al Paragraph [0060] &[0064]), but fails to teach with real-time feedback. Jones teaches an exercise device comprising a user interface 114, wherein the user interface instructs a subject to apply input force to the receiving surface 106 in a specific manner and provides the subject with real-time feedback allowing the subject to adjust application (Refer to Figs. 1,10,&11 Paragraph [0137]:” The graphic portrait 1504 automatedly leads a user through sequences of punches and strikes to the pads…. Real-time content is output in the instructor display 1500, including, for example, round identifier 1506, level identifier 1508, a user's heart rate indicator 1510, a user's caloric expenditure indicator 1512, a number of strikes tracker 1514, a power of punch tracker 1516, and an accuracy of punch (including correct pad as well as punch response timing) tracker 1518”). Jones is analogous with Applicants invention in that they both teach exercise devices comprising interactive consoles and therefore it would have been obvious to one of ordinary skill in the art at the time of effective filing to modify the display of Dahl in view of Wunderly et al wherein the user interface instructs the subject to apply input force to the receiving surface in a specific manner, and provides the subject with real-time feedback allowing the subject to adjust application of input force so as remain within an allowable tolerance, wherein the allowable tolerance comprises a lower threshold value for the input force to exceed, an upper threshold value for the input force to not exceed, an acceptable direction vector range for the input force to align within, or any combination thereof, since Jones teaches that interactive consoles which display, monitor, and provide instruction lead exercises are common and known in the art to produce expected results of being a real-time interactive device to allow users motivation and regimen to his/her exercise.
Regarding Claim 13, Dahl continues to teach wherein the user interface comprises a graphical interface displayed to the subject during use, an auditory interface played for the subject during use, or a combination thereof (Refer to Dahl Figs. 4-13 Paragraph [0079]:”In FIG. 13, a monitor image is shown illustrating an interactive user interface with an indicator 6 on a background monitor image. The indicator 6 is functionally connected to the movement sensor of the apparatus and configured to move on the background image in relation to the movement of the head unit 2.”).
Regarding Claim 14, Dahl continues to teach wherein the user interface comprises a graphical user interface which provides an immersive visual experience to the subject during use which guides interaction of the subject with the receiving surface (Refer to Dahl Figs. 4-13 Paragraph [0079]:”In FIG. 13, a monitor image is shown illustrating an interactive user interface with an indicator 6 on a background monitor image. The indicator 6 is functionally connected to the movement sensor of the apparatus and configured to move on the background image in relation to the movement of the head unit 2.”).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Refer to attach list of references cited for prior arts pertinent to claimed and unclaimed subject matter.
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/NYCA T NGUYEN/ Primary Examiner, Art Unit 3784