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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “collapsed position” and “wherein the central pivot axis and the side pivot axes are parallel and which pivot axes form a second angle with the horizontal plane, which second angle is smaller than the first angle” must be shown or the features canceled from the claims. No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 5-6 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 5, the phrase “wherein the central pivot axis and the side pivot axes are parallel and which pivot axes form a second angle with the horizontal plane, which second angle is smaller than the first angle” has not been described in the specification in such a way as to reasonably convey to a person of ordinary skill in the art that the inventor(s) had possession of the claimed invention because it is unclear based on the disclosure provided, i.e., the specification and the drawings, how the second angle smaller and/or anything other than the first angle, because based on the drawings they appear to be the same angles. Based on the drawings the angle of the backrest to horizontal and the angle of the three pivot axes to the horizontal are the same. See Figs. 1-2.
Claim 7 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The claim limitation “angle adjusting means” fails the written description test because, as discussed further below in relation to 112(b) the specification fails to provide any explanation as to what structure is used to achieve the claimed angle adjusting means.
Any claim not specifically addressed under 112(a) is rejected as being dependent on a claim rejected under 112(a).
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 1-8 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.
Regarding claim 1, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For the sake of compact prosecution claim limitations following “such as” are being treated similar to an “or,” i.e., optional.
Regarding claims 3 and 8, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For the sake of compact prosecution claim limitations following “preferably” are being treated similar to an “or,” i.e., optional.
Regarding claim 5, the phrase “which pivot axes” renders the claim indefinite because it lacks clear antecedent basis. Specifically, it is unclear which pivot axes are being referred to by the term as three different pivot axes have already been introduced and it is further unclear if “which pivot axes” is referring back to any/all of the previously introduced axes or attempting to introduce new pivot axes as “the” or “said” is not used.
Regarding claim 7, the claim limitation “angle adjusting means” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. Paragraphs [0024] and [0036] of Applicant’s PG Pub are the only paragraphs that mention the angle adjusting means, however, the only further explanation as to what the means for adjusting might be is that it is done “in a simple manner.” Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Any claim not specifically addressed under 112(b) is rejected as being dependent on a claim rejected under 112(b).
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)(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 and 7 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by US 2022/0233375 A1 to Mullins et al (hereinafter Mullins).
Regarding claim 1, Mullins discloses a seating device, such as for instance a chair or a wheelchair (Fig. 1A & Abstract), with a seat (7) and backrest (1) extending between a first (A) and a second (B) side of the seating device for the purpose of supporting a seated person (Mullins Annotated Fig. 1A & [0069] and [0106]), which seating device can be folded into a collapsed position (100b) and a folded-out position (100a) (Mullins Annotated Fig. 1A , Fig. 1B, & [0078]), wherein in the collapsed position (100b) the distance between the first (A) and the second side (B) is smaller than in the folded-out position (100a) (cf. Mullins Annotated Fig. 1A vs Fig. 1B), and which backrest (1) comprises a lumbar-thoracic support surface (C) for supporting in the folded-out position (100a) the lumbar-thoracic transition area of a person situated in the seating device during use at a first angle relative to the horizontal plane (Mullins Annotated Fig. 1A & [0106] disclose the seat back can be of a size or shape to provide full back support for the user, which is interpreted as including the lumbar, thoracic, and cervical zones as well as their transitional areas. Further, Figs. 5A-6B & [0107] discuss and depict the seat angle of the backrest in comparison to the horizontal plane.).
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Regarding claim 7, depending on claim 1, Mullins further discloses which seating device also comprises angle adjusting means, which angle adjusting means are configured to adjust the first angle (Figs. 5A-6B & [0107] disclose that when the seating device is moved between the transport mode and the rollator mode the back angle is adjusted).
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 2-3 are rejected under 35 U.S.C. 103 as being unpatentable over Mullins in view of US 2016/0338889 A1 to Izutsu.
Regarding claim 2, depending on claim 1, Mullins does not appear to further disclose wherein the backrest (1) comprises on either side of the lumbar-thoracic support surface at least one fixation strap for lateral fixation of the upper body of a seated person, and wherein the at least one fixation straps are each attached with both outer ends to respectively the lumbar-thoracic support surface and respectively the first and the second side of the seating device.
Izutsu teaches that it was old and well known in the art of back support for seated users, before the effective filing date of the claimed invention, for a backrest of a seating device to include on either side of the lumbar-thoracic support surface (1,2,3) at least one fixation strap (5,6,7) for lateral fixation of the upper body of a seated person, and wherein the at least one fixation straps (5) are each attached with both outer ends to respectively the lumbar-thoracic support surface and respectively the first and the second side of the seating device (Figs. 3-4 & [0012] discusses the fixation of the upper body and [0024]-[0025] discusses the at least one fixation strap 5.).
Therefore, it would have been obvious to one of ordinary skill in the art of back support for seated users before the effective filing date of the claimed invention to modify the supportive seating device disclosed by Mullins to incorporate the upper body supporting cushion as taught by Izutsu in order to provide additional body support for disabled users, e.g., paralyzed, e.g., see Izutsu [0012], and because doing so could be readily and easily performed by any person of ordinary skill in the art, without undue experimentation or risk of unexpected results.
Regarding claim 3, depending on claim 2, the modified combination of Mullins/Izutsu wherein the length between the outer ends of at least one fixation strap (Izutsu - 5, 6, 7), preferably of all fixation straps, is adjustable (Izutsu - Fig. 3 & [0024], [0028]-[0029]).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Mullins in view of US 2014/0077547 A1 to Huttenhuis et al (hereinafter Huttenhuis).
Regarding claim 4, depending on claim 1, although Mullins discloses the angle of the backrest to the horizontal may be comfortable in multiple modes, Mullins does not appear to explicitly disclose wherein the first angle lies in the range of 117-123°.
Huttenhuis teaches that it was old and well known in the art of seated back support, before the effective filing date of the claimed invention, for the angle of a backrest to the horizontal to be in the range of 117-123° (Fig. 6 & [0103] emphasizing the angle shown in Fig. 6 is 120°).
Therefore, it would have been obvious to one of ordinary skill in the art of seated back support before the effective filing date of the claimed invention to modify the back support device disclosed by Mullins to incorporate the angle of the backrest to be in the range of 117-123° as taught by Huttenhuis in order to provide an anatomically correct support angle for the back of a user , e.g., see Huttenhuis [0039], and because doing so could be readily and easily performed by any person of ordinary skill in the art, without undue experimentation or risk of unexpected results.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Mullins.
Regarding claim 8, depending on claim 1, Mullins does not appear to disclose wherein the lumbar-thoracic support surface (C) is a rectangle, preferably a rectangle with a width of about 8 cm and a height of about 12 cm.
However, as discussed in MPEP 2144.04(IV)(A)&(B) changes in size and shape are matters considered to be obvious modifications within the routine skill in the art absent persuasive evidence that a particular configuration is significant. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the shape of the lumbar-thoracic support surface (C) depicted in Mullins Annotated Fig. 1A to at least merely be rectangular in shape, e.g., because a rectangular shape is easier to manufacture.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER B WEHRLY whose telephone number is (303)297-4433. The examiner can normally be reached Monday - Friday, 8:30 - 4:30 MT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Valentin Neacsu can be reached at (571) 272-6265. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER B WEHRLY/Primary Examiner, Art Unit 3611