DETAILED ACTION
Non-Final Rejection
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 Status
Claims 1-18 are 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:
mounting portion in claim 1 was interpreted in view of 120 in Fig. 1
holding portion in claim 1 was interpreted in view of 123 in Fig. 1
groove portions in claim 2 was interpreted in view of 123A in Fig. 1
band portion in claim 4 was interpreted in view of 130 in Fig. 7.
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 § 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 and 16-18 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.
In claim 1, the myoelectric sensor is not positively recited as part of the structure of the myoelectric sensor mounting member. For purposes of examination, the Office interpreted the myoelectric sensor as part of the structure. Appropriate claim amendments to positively recite the sensor as part of the structure is needed.
Claim 7 states, “a holder that holds the myoelectric sensor, and that is capable of rotating in the opening portion”. It is unclear what is capable of rotating in the opening portion. The Office interpreted this limitation as referring to the sensor’s ability to rotate. Claim 16 has the same issue.
Claim Rejections - 35 USC § 102
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)(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.
Claims 1, 2, and 7-10 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Kaminski (US 2021/0145302).
Regarding claim 1, Kaminski discloses a myoelectric sensor mounting member comprising:
a mounting portion (Fig. 3A, #50) for mounting to a measurement site of a living body ([0065] notes that 10, which is connected to 50 is configured to be worn on the body; and,
a holding portion (Fig. 3B, #58[x]) capable of holding a myoelectric sensor ([0063] “The snap sockets 58 are configured to receive the electrodes 12A-C”) at an optional rotational angle (58 is a snap socket and given that the electrodes are round, the socket is capable of receiving an electrode at different rotated angles), the myoelectric sensor comprising a detection electrode on a contact face for contacting the measurement site (electrodes 12[x] are configured for contacting skin for EMG measurement);
wherein an orientation of the detection electrode as to the measurement site can be changed by changing the rotational angle at which the holding portion holds the myoelectric sensor (as noted above, the circular snap socket/connector that is 58 is capable of allowable a person to reposition a circular electrode 12 at different rotational angles).
Regarding claim 2, Kaminski discloses wherein the holding portion comprises:
a recessed portion for accommodating the myoelectric sensor (see angled view of 58 in Fig. 4A, the circular opening for accommodating the electrode was interpreted as a well); and,
a plurality of groove portions continuously formed along an inner wall face of the recessed portion (see indicated structure below);
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wherein the myoelectric sensor can be held at each of predetermined rotational angles by the myoelectric sensor engaging a part of the groove portions at each of the predetermined rotational angles in the recessed portion (one can place the circular electrode into well 58 to snap into place using a friction fit against the indicated structure above at any angle a user predetermines is necessary for measurement).
Regarding claim 7, Kaminski discloses wherein the holding portion comprises:
an opening portion (58 is an open well); and,
a holder that holds the myoelectric sensor (as noted previously, the well 58 can be a snap connector for holding the electrode 12, see claim 2 rejection for portion that sticks out that creates a snap friction fit), and that is capable of rotating in the opening portion (as the electrode is circular and 58 merely includes a snap connector, the electrode would be capable of rotating within); wherein a large-diameter portion of the holder protrudes beyond a non-contact face of the mounting portion.
Regarding claim 8, Kaminski discloses wherein: the holder is capable of rotating at each of predetermined rotational angles in the opening portion (the claim does not state if a structure predetermines the rotational angles, in this case, the Office interpreted the predetermination being made by the user, for example, a user can determine before putting the electrode 12 in 58 that the electrode should be inserted at a particular angle).
Regarding claim 9, Kaminski discloses wherein: the holder is capable of rotating steplessly in the opening portion (as noted previously, 58 is a snap connector that provide a friction fit via the structure identified in the claim 2 rejection above; the electrode would be free to rotate steplessly once inserted).
Regarding claim 10, Kaminski discloses a myoelectric measurement device comprising:
a myoelectric sensor comprising a detection electrode on a contact face for contacting a measurement site of a living body ([0063] - discloses electrodes 12, electrodes 12 contact the body as shown in Fig. 1 for acquiring EMG signals);
a mounting portion for mounting to the measurement site (Fig. 3A, #50); and,
a holding portion (Fig. 3B, #58X) capable of holding the myoelectric sensor at an optional rotational angle ([0063] “The snap sockets 58 are configured to receive the electrodes 12A-C”) at an optional rotational angle (58 is a snap socket and given that the electrodes are round, the socket is capable of receiving an electrode at different rotated angles);
wherein an orientation of the detection electrode as to the measurement site can be changed by changing the rotational angle at which the holding portion holds the myoelectric sensor (the snap connector well 58 is circular; the electrode that fits within is circular and would be capable of rotating to whatever desired angle is necessary for measurement).
Claim Rejections - 35 USC § 103
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.
Claims 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over Kaminski (US 2021/0145302) in view of Hoppe et al. (US 2012/0330126, cited in the IDS).
Regarding claim 3, Kaminski does not disclose wherein: the mounting portion comprises a plurality of band portions provided so as to extend from the holding portion in different directions from each other. However, the use of band portions extending from a holding portion in different directions was known in the art. Hoppe et al. teach a monitoring device for attachment to a surface of a subject (see Abstract). The device includes a mounting portion (10) with band portion (8) extending in different directions from mounting portion 10 (see Fig. 2). It would have been obvious to a person having ordinary skill in the art at the time of the filing of the invention to modify Kaminski to use band as taught by Hoppe et al. to secure the electrodes to the body because it amounts to combining prior art elements according to known methods to yield predictable results. All the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
Regarding claim 4, Hoppe et al. teach wherein: each of the plurality of band portions has an adhesive face capable of being applied to the living body (8 includes an adhesive backing, see [0054]). The rationale for modifying remains the same.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Kaminski (US 2021/0145302). Regarding claim 5, Kaminski does not disclose wherein: the mounting portion has an annular shape in plan view. However, Kaminski states that the triangle shape is merely exemplary and other shapes can be used ([0059]). As this appears to be merely a design choice for Kaminski, the choice of an annular shape would have been obvious in view of Kaminski’s own teachings in column 7.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Kaminski (US 2021/0145302) as applied to claim 5 and further in view of Hoppe et al. (US 2012/0330126, cited in the IDS). This limitation is rejected using the same argument for claim 4 above.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Kaminski (US 2021/0145302) in view of Hoshall et al. (US 3735425).
Regarding claim 11, Kaminski does not disclose wherein the myoelectric sensor comprises: a belt mounting portion to which a belt can be attached for mounting the myoelectric sensor to the measurement site. However, Hoshall et al. teach a structure for placing an EMG electrode against the skin. Fig. 2 shows electromyographic electrodes 1 and 2 on a holding portion 23 with bands 21 extending in from the holding portion for securing the electrodes against the skin (see col. 4, 2nd paragraph reference to arm-band support apparatus 21). It would have been obvious to a person having ordinary skill in the art at the time of the filing of the invention to modify Kaminski to have a belt//band option as taught by Hoshall et al. for securing the electrode to the body because it amounts to combining prior art elements according to known methods to yield predictable results. All the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
Claims 12 and 14-18 are rejected under 35 U.S.C. 103 as being unpatentable over Kaminski (US 2021/0145302) in view of Meftah et al. (US 11058320, cited in the IDS).
Regarding claim 12, Kaminski et al. do not disclose wherein the myoelectric sensor comprises: a processor configured to determine a suitable rotational angle for the myoelectric sensor as to the measurement site, on the basis of a result of detection in which intensity of the myoelectric signal from the detection electrode is greatest, or the intensity thereof is no less than a predetermined threshold value. However, Meftah teaches a method and apparatus for determining at least one of a position and orientation of a wearable device on a subject (Abstract, the wearable sensor in this case may include EMG sensors per col. 9, first paragraph). Meftah teaches in claim 1 that a control unit is configured to analyze a characteristic of the sensor to determine an optimal position and orientation of the senser. Meftah teaches that characteristics may include a morphology and amplitude of the signal (claim 5). It would have been obvious to a person having ordinary skill in the art at the time of the filing of the invention to modify Kaminski et al. to also use a control unit to analyze the signal of the EMG sensor to determine an optimal position within well 58 based on characteristics of the EMG signal such as amplitude and morphology (together or separately interpreted as intensity) as taught by Meftah for acquiring the best EMG signal because it is the use of known technique to improve similar devices (methods or products) in the same way. The claim would have been obvious because the technique for improving a particular class of devices was part of the ordinary capabilities of a person of ordinary skill in the art, in view of the teaching of the technique for improvement in other situations.
The Office also notes that Heden et al. (US 5640966) provides a similar basis for determining optimal sensor position (see col. 4, 4th paragraph).
Claim 14 is essentially a combination of the limitations of claims 10 and 12 and are therefore rejected using the same citations in the claim 10 rejection coupled with the same argument for modifying Kaminski in view of Meftah in the claim 12 rejection above.
Claim 15 is rejected using the same argument for claim 2 above.
Regarding claim 16, Kaminski discloses wherein the holding portion comprises:
an opening portion (see opening of snap connector well 58); and,
a holder that holds the myoelectric sensor (see the claim 2 rejection above for the structure that enables the snap fit with the electrode), and that is capable of rotating in the opening portion (as noted previously, this is just a friction snap fit, the electrode would be capable of rotating within 58); wherein a large-diameter portion of the holder protrudes beyond a non-contact face of the mounting portion (Fig. 3C shows 58 protruding beyond face of 50).
Claim 17 is rejected using the same argument for claim 8.
Claim 18 is rejected using the same argument for claim 9.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Kaminski (US 2021/0145302) in view of Lemons et al. (US 20200054285).
Regarding claim 13, Kaminski does not disclose a height position of the contact face of the myoelectric sensor and a height position of a contact face of the mounting portion are equal to each other, and the detection electrode of the myoelectric sensor is provided so as to protrude beyond the contact face of the myoelectric sensor. In regards to the detection electrode protruding beyond the contact face of the myoelectric sensor, Lemons et al. teaches an electrode patch (Abstract) where the skin contacting points of the electrode (Fig. 1, #18) protrude beyond the surface of the myoelectric sensor (22 shown in the same figure). It would have been obvious to a person having ordinary skill in the art at the time of the filing of the invention to modify Kaminski such that the electrodes protrude above the general surface of the electromyographic sensor as taught by Lemons for measuring EMG signals because it can improve contact with the skin.
In regards to the equal height positions of the contact faces of the myoelectric sensor and mounting portion, the Office believes that this would amount to an obvious matter of design choice to a person of ordinary skill in the art. One of ordinary skill in the art would have expected Applicant’s invention and Kaminski to work equally well with protruding electrode tips. Therefore, it would have been prima facie obvious to modify Kaminski to obtain the invention as specified in claim 13 because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Kaminski.
Conclusion
Claims 1-18 are rejected.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Tho Q. Tran whose telephone number is (571)270-1892. The examiner can normally be reached 7-5.
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/THO Q TRAN/Examiner, Art Unit 3791
/JACQUELINE CHENG/Supervisory Patent Examiner, Art Unit 3791