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 .
Amendment
This office action is responsive to the amendment filed on 6/2/26. As directed by the amendment: claims 1-6 and 8-9 have been amended, no claims have been canceled, and no new claims have been added. Thus, claims 1-9 are presently pending in the application.
Claims 2-9 are allowed.
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.
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 configured to be installed on the mid-strap on a side of the 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) configured to be 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 shoe with 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) configured to be fixed at a first end of the first strap to the waist strap at a rear part of the waist (Fig. 1-2 Tiede, Col. 2, ll. 55-60) and fixed at a second end of the first strap 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 strap is not fixed to the mid-strap and moves relative to the mid-strap while sliding through 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.
Response to Arguments
Applicant's arguments filed 6/2/26 have been fully considered but they are not persuasive.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Applicant argues the individual references on pages 10-16, however a 103 rejection was made in which various references are applied to teach the missing limitations as detailed in the rejection of claim 1 above.
Applicant argues on page 16 that Tiede, Dean, Johnson and Hall fail to teach a configuration in which a first end of the first wire is fixed to a rear part of the waist strap, a second end of the first wire is fixed to the fore foot strap, and the first wire between the first and second ends is not fixed to the mid-strap and moves relative to the mid-strap while sliding through the first sheath member installed on the mid-strap at a lateral side of the knee.
This argument is not taken well since the combined references do teach a configuration in which a first end of the first wire ([0043] Hall) is fixed to a rear part of the waist strap (Fig. 1-2 Tiede, Col. 2, ll. 55-60), a second end of the first wire is fixed to the fore foot strap (Fig. 1 and 4, Col. 2, ll. 55-62 Tiede, Fig. 2C Dean, Fig. 1 Johnson), and the first wire between the first and second ends is not fixed to the mid-strap (224 Dean) and moves relative to the mid-strap while sliding through the first sheath member installed on the mid-strap at a lateral side of the knee ([0023] Dean).
Applicant argues on page 16 that the references teach that the first wire is fixed to the mid-strap.
Examiner disagrees since Dean teaches connectors 221 that are sheaths that bands 218 are guided through ([0023] Dean), and therefore the bands are not fixed to the mid-strap.
Applicant argues on page 16 that the first sheath member does not maintain the first wire so as not to be separated from the lateral side of the knee, while allowing relative movement of the wire. Further on page 12 applicant argues that Dean’s connector 221 is described as a D-ring, loop, grommet, clip, latch, or the like, and is different from the first sheath member, which stably guides a path of the wire such that the wire slides while being maintained in close contact with a lateral side of the knee.
First, the word “lateral” in not found in the claim language. Second, as detailed above, Dean teaches connectors 221 that are sheaths that bands 218 are guided through ([0023] Dean), and therefore the bands are not fixed to the mid-strap and do stably guide a path of the modified wire such that the wire slides while being maintained in close contact with a side of the knee. It is noted that the definition of a sheath is 1. a case or close-fitting covering, esp. one for the blade of a sword, dagger, or the like. Random House Kernerman Webster's College Dictionary, © 2010 K Dictionaries Ltd. Copyright 2005, 1997, 1991 by Random House, Inc. All rights reserved. Therefore, Dean’s D-ring meets the definition of a sheath since the D-ring is a close-fitting covering.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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
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