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 .
Claims 1-9, filed 8/18/23, are currently pending.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“a first adjustment member…configured to adjust” in claim 4 (corresponding structure is at least a BOA dial [0024]).
“a second adjustment member…configured to adjust” in claim 4 (corresponding structure is at least a BOA dial [0024]).
“a protruding member disposed to protrude” in claim 6 (corresponding structure shown in fig. 1)
“a first adjustment member…configured to elastically wind” in claim 8 (corresponding structure is at least a BOA dial [0024]).
“a second adjustment member…configured to elastically wind” in claim 8 (corresponding structure is at least a BOA dial [0024]).
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Specification
The disclosure is objected to because of the following informalities:
“513” in [0024] line 6 is suggested to be changed to --613-- for consistency.
“thee” in [0030] line 8 is suggested to be changed to --the-- to correct a spelling error.
“wait” in [0031] in line 1 is suggested to be changed to --waist-- to correct a spelling error.
Appropriate correction is required.
Claim Objections
Claims 1-3 are objected to because of the following informalities:
Claim 1, line 6 and claim 2, line 4 recites “trap” suggested to be changed to --strap-- in order to correct a spelling error.
Claim 2 recites “The j apparatus” in line 1, suggested to be changed to --The apparatus-- in order to remove the j.
Claim 3 recites “it” in line 3 suggested to be changed to --the first sheath member--in order to refer back to the first sheath member.
Claim 3 recites “it” in line 6 suggested to be changed to --the second sheath member--in order to refer back to the second sheath member.
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 1-9 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.
Claim 1, line 1 and claim 8, lines 3 and 5 recite “type,” however it is unclear what the scope of this language includes.
Claim 1, line 4 recites “side of a knee” suggested to be changed to --side of the knee-- in order to clearly refer back to the knee in line 3.
Claim 1, line 6 recites “first end” suggested to be changed to --first end of the first wire-- to provide clarity.
Claim 1, line 6 recites “of a waist” suggested to be changed to --of the waist-- in order to refer back to the waist in line 2.
Claim 1, line 7 recites “second end” suggested to be changed to --second end of the first wire-- to provide clarity.
Claim 2 recites “a side of a knee” suggested to be changed to --the side of the knee-- in order to clearly refer back to the side of the knee from claim 1.
Claim 2 recites “a foot” and “a waist” suggested to be changed to --the foot-- and --the waist-- in order to clearly refer back to the foot and the waist from claim 1.
Claim 2, line 4 recites “first end” suggested to be changed to --first end of the second wire-- to provide clarity.
Claim 2, line 5 recites “second end” suggested to be changed to --second end of the second wire-- to provide clarity.
Claims 5 and 9 recite “BOA” which is a trademark and should not be used in claim language.
Claim 5 (lines 3-4 and 7-8) and claim 9 (lines 3-4 and lines 7-8) recites “such that rotation is allowed” however it is unclear exactly what structure is rotating here.
Any remaining claims are rejected as being dependent on a rejected base claim.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-9 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Claim 1 recites “a first sheath member installed on the mid-strap on a side of a knee” suggested to be changed to --a first sheath member configured to be installed on the mid-strap on a side of the knee-- in order to avoid claiming the side of the knee.
Claim 1 recites “a first wire fixed at a first end to the waist trap at a rear part of a waist” suggested to be changed to --a first wire configured to be fixed at a first end of the first wire to the waist strap at a rear part of the waist-- in order to avoid claiming the rear part of the waist.
Claim 2 recites “a second sheath member installed on the mid-strap on a side of a knee” suggested to be changed to -- a second sheath member configured to be installed on the mid-strap on the side of the knee-- in order to avoid claiming the side of the knee.
Claim 2 recites “a second wire fixed at a first end to the waist trap at a front part of a waist” suggested to be changed to -- a second wire configured to be fixed at a first end of the second wire to the waist strap at a front part of the waist-- in order to avoid claiming the front part of the waist.
Any remaining claims are rejected as being dependent on a rejected base claim.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Tiede et al. (5,172,703) in view of Dean (2023/0263690), Johnson et al. (6,099,446) and Hall et al. (2024/0130881).
Regarding claim 1, in fig. 1-4 Tiede discloses a hip joint and ankle connecting type gait assistance apparatus comprising: a waist strap 4 configured to be worn around a waist; but is silent regarding a mid-strap configured to be worn around a knee; and a first sheath member installed on the mid-strap on a side of a knee. However, in fig. 2C Dean teaches a mid-strap 224 configured to be worn around a knee; a first sheath member (221 at the front or back side of the knee) installed on the mid-strap on a side of a knee. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Tiede’s apparatus with the addition of a mid-strap and first sheath member, as taught by Dean, for the purpose of providing support and direction for the tension control strap. The modified Tiede discloses a shoe for connection to tension straps, but is silent regarding a fore foot strap configured to be worn on a front part of a foot. However, in fig. 1 Johnson teaches a fore foot strap configured to be worn on a front part of a foot and also extends towards the rear of the foot and Dean teaches a fore foot strap 203 configured to be worn on a front part of a foot that straps 218 are directly attached to. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Tiede’s apparatus with the addition of a fore foot strap that extends towards the rear of the foot and allows for direct coupling to the tension straps, as taught by Johnson and Dean, for the purpose of providing an alternate foot structure for connection to the tension straps having the predictable results of attaching the tension straps. The modified Tiede discloses a first strap (8 Tiede) fixed at a first end to the waist strap at a rear part of a waist (Fig. 1-2 Tiede, Col. 2, ll. 55-60) and fixed at a second end to the fore foot strap (Fig. 1 and 4, Col. 2, ll. 55-62 Tiede, Fig. 2C Dean, Fig. 1 Johnson) through the first sheath member (Fig. 2C Dean) such that the first band can slide while a path thereof is guided by the first sheath member ([0023] Dean). The modified Tiede is silent regarding that the tension straps are wires. However, Hall teaches elastic wires 108 used in ambulation apparatus [0043]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Tiede’s elastic tension strap with an elastic wire, as taught by Hall, for the purpose of providing an alternate elastic tension material having the predictable results of assisting in ambulation.
Allowable Subject Matter
Claims 2-9 would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph and 35 U.S.C. 101, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Yamada et al. (2022/0192911) directed to a gait assistance device, Kelley (1,308,675) directed to a device for gait assistance, Marji (2017/0291058) directed towards an exercise device, Cerioli (2011/0160630) directed towards a device for correcting the bending of the legs and Gigstad (2023/0320919) directed to a device for gait assistance.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RACHEL T SIPPEL whose telephone number is (571)270-1481. The examiner can normally be reached M-F 9:00-5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Stanis can be reached at (571) 272-5139. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RACHEL T SIPPEL/Primary Examiner, Art Unit 3785