DETAILED ACTION
This is a Final Rejection for Application 18/616,379 filed March 26, 2024. Claims 1-13 are currently pending.
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 .
Response to Amendment
The amendments to the claims and new drawings are acknowledged by the examiner.
The objection to the drawings indicated in the office action filed September 15, 2025 has been overcome by the replacement drawings filed November 6, 2025 and is hereby withdrawn.
The claim objections indicated in the office action filed September 15, 2025 have been overcome by the amendments filed November 6, 2025 and are hereby withdrawn.
The 112(b) rejections indicated in the office action filed September 15, 2025 have not been overcome by the amendments filed November 6, 2025 and are maintained. The 112(b) rejections are restated below.
The 101 rejection indicated in the office action filed September 15, 2025 has been overcome by the amendments filed November 6, 2025 and is hereby withdrawn.
The amendments to claim 1 change the scope of the claim. Therefore, new grounds of rejection are presented below in response to the change in scope. See the 35 USC § 103 rejection below.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Jewell is not being relied on the teach the added limitations in claim 1.
Claim Rejections - 35 USC § 112(b)
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 5 and 11-13 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 5, the claim recites the limitation "the left-side and right-side stabilizer-containment sleeves' tubular enclosures" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. Tubular enclosures were not previously recited in a claim from which claim 5 depends. Therefore, it is unclear what a tubular enclosure comprises in the claim. Tubular enclosures for the left-side and right-side stabilizer-containment sleeves are disclosed in claim 3, so this rejection may be overcome by amending claim 5 to depend from claim 3 or by reciting “tubular enclosures of the left-side and right-side stabilizer-containment sleeves”.
Regarding claim 11-13, the claims are rejected for depending from and not curing the deficiencies of claim 5. This rejection may be overcome by overcoming the 35 U.S.C. 112(b) rejection of claim 5.
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.
Claim(s) 1-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2009/0144873 (Jewell et al.) in view of US 2019/0048923 (Gunnsteinsson et al.).
Regarding claim 1, Jewell discloses a knee-brace (Jewell discloses athletic pants with supports that aid in restricting lateral movement of an athlete’s knee. This is interpreted as a knee-brace due to the support of the knee of the athletic pants. See the abstract and Figs. 1-4.) comprising:
a knee-surrounding sleeve (Jewell discloses that pants 10 comprises a second region 22 designed to encompass the lower portion of the athlete's thigh, their knee and the upper portion of their calf. See [0022]. The second region 22 is interpreted as a knee-surrounding sleeve since it is a part of pants 10 and encompasses the knee.);
a right-side stabilizer-containment sleeve (Jewell discloses that the second region 22 comprises a pair of pockets 30a, 30b which are configured to receive a support 32 therein. See [0024] and Fig. 1. The pocket 30a in interpreted as a right-side stabilizer-containment sleeve since it is on the right side of the right leg of the wearer depicted in Fig. 1 and is configured to receive the support 32 therein.);
a left-side stabilizer-containment sleeve (Jewell discloses that the second region 22 comprises a pair of pockets 30a, 30b which are configured to receive a support 32 therein. See [0024] and Fig. 1. The pocket 30b in interpreted as a left-side stabilizer-containment sleeve since it is on the left side of the right leg of the wearer depicted in Fig. 1 and is configured to receive the support 32 therein.); and
stabilizer elements operative to be inserted into the right-side and left-side stabilizer-containment sleeves (Jewell discloses a support 32. See [0024] and Fig. 2. The support 32 is interpreted as a stabilizer element since it is configured to stabilize the wearer’s knee and is configured to be inserted into the pockets 30a, 30b.).
Jewell does not disclose wherein the stabilizer elements are unitary structures and the stabilizer elements are each operative to provide one of a plurality of lateral-motion stabilization levels.
However, Gunnsteinsson discloses a hinge for an orthopedic device. [0051] – “The preferred embodiment shows the hinge 102 as being monolithically formed, meaning that it is formed as a single body, without interruptions, and is unitary in shape and function.” [0048] – “An insert 126 may be provided with the hinge 102 to selectively modify the rigidity of the hinge 102. The insert 126 may be elongate as in having length greater than its width, and preferably extends in a longitudinal direction along the length of the hinge. Specifically, the hinge 102 may be formed of a rigid or semi-rigid plastic, such as from an EVA polymer, and its rigidity can be enhanced at least at an articulation area, such as a middle portion 128 of the hinge 102 where it is intended to bend.” Gunnsteinsson teaches wherein the stabilizer elements are unitary structures (The hinge 102 is unitary. See [0051]) and the stabilizer elements are each operative to provide one of a plurality of lateral-motion stabilization levels (The hinge 102 may include an insert 126 to provide one of a plurality of stabilization levels. See [0048]).
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to modify the supports 32 of Jewell to be unitary and to have adjustable rigidity as taught by Gunnsteinsson. A skilled artisan would have been motivated to do so because Gunnsteinsson teaches that the hinge 102 is readily produced by injection molding using only a single mold ([0051]) and by adjusting the rigidity of the hinge 102, the degree of support can be adjusted as well ([0047]-[0048]). A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn orthopedic devices with knee stabilization elements.
Regarding claim 2, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 1 wherein: the knee-surrounding sleeve is made of elastic, stretchable fabric (Jewell discloses that the second region 22 is made of an elastic fabric. See Claim 1. The elastic fabric is configured to stretch over the wearer’s knee.).
Regarding claim 3, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 1 wherein: the right-side and left-side stabilizer-containment sleeves are operative to enclose one of the stabilizer elements inside a tubular enclosure (The pockets 30a, 30b are interpreted as comprising a tubular enclosure as the pockets 30a, 30b are long and hollow and are configured to enclose support 32 therein.).
Regarding claim 4, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 3 wherein: the right-side and left-side stabilizer-containment sleeves, when affixed to the knee-surrounding sleeve, are oriented such that their tubular containment axes are essentially vertical when a person is wearing the brace and standing (The pockets 30a, 30b are oriented such that their tubular containment axes are essentially vertical when a person is wearing the pants and standing. See Fig. 1.).
Regarding claim 5, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 1 wherein: the stabilizer elements are operative to be inserted into the left-side and right-side stabilizer-containment sleeves' tubular enclosures and the stabilizers' lengths and girths will fit completely inside these tubular enclosures (The support 32 is configured to be inserted into the pockets 30a, 30b and the length and girth of the support 32 is configured to fit completely inside these pockets 30a, 30b. See [0024] and Figs. 1 and 2.).
Regarding claim 6, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 1 wherein: the stabilizer elements are rigid and do not flex (The support 32 is planar and manufactured from plastic, aluminum or any other suitable material that is rigid. See [0024].).
Regarding claim 7, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 1 wherein: the stabilizer elements are semi-rigid and capable of flexing (The support 32 is manufactured from plastic, aluminum or any other suitable material. As taught by Gunnsteinsson, the support 32 may be semi-rigid. See [0048] of Gunnsteinsson.).
Regarding claim 8, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 1 wherein: the right-side and left-side stabilizer-containment sleeves are permanently affixed to the knee-surrounding sleeve (The pockets 30a, 30b are secured to the second region 22 by way of stitches. See [0024].).
Regarding claim 9, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 1 wherein: the right-side and left-side stabilizer-containment sleeves are attached to, and detached from, the knee-surrounding sleeve using an adhesion fixture (The pockets 30a, 30b are secured to the second region 22 by way of hook and pile fasteners. See [0024]. Hook and pile fasteners allow for the attachment and detachment of the pockets 30a, 30b from the second region 22.).
Regarding claim 10, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 1 wherein: the right-side and left-side stabilizer-containment sleeves are positioned on the knee-surrounding sleeve such that they are on opposite sides of the knee-surrounding sleeve and configured to be directly adjacent to the position of a surrounded knee's bones interface (The pockets 30a, 30b are positioned on the second region 22 such that they are on opposite sides of the second region 22 directly adjacent to the position of a surrounded knee's bones interface. See Fig. 1.).
Regarding claim 11, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 5 wherein: the stabilizer elements are inserted through an opening in the top of the stabilizer-containment sleeves, the top being the uppermost portion of the attached stabilizer-containment sleeves when a user is standing (The support 32 is inserted through an opening in the top of the pockets 30a, 30b since the pockets 30a, 30b are attached to the second region 22 by hook and pile fasteners at the top end. See [0024] and Fig. 2.).
Regarding claim 12, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 5. Jewell in view of Gunnsteinsson does not directly disclose wherein the stabilizer elements are inserted through an opening in the bottom of the stabilizer-containment sleeves, the bottom being the lowest portion of the attached stabilizer-containment sleeves when a user is standing.
However, Jewell discloses that the pockets 30a, 30b are attached to the second region by hook and pile fasteners. See [0024]. It is well known in the art that hook and pile fasteners allow for detachment. Therefore, the pockets 30a, 30b may have an opening in the bottom by detaching any hook and pile fasteners fastening the bottom of the pockets 30a, 30b.
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to make the opening in pockets 30a, 30b in the bottom for the support 32 to be inserted through. A skilled artisan would have been motivated to do so because Jewell discloses that the pockets 30a, 30b are attached by hook and pile fasteners, which allows for the support 32 to be inserted into the pockets 30a, 30b by inserting the support through an opening in the bottom of the pocket. A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn to the same inventive concept.
Additionally, it would have been an obvious matter of design choice to place the opening in the pockets 30a, 30b on the bottom of the pockets 30a, 30b, since such a modification would have involved a mere rearrangement of parts. The court has held that the particular placement of a component is an obvious matter of design choice absent criticality of the placement. In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
As a result of the combination, Jewell in view of Gunnsteinsson is modified to disclose wherein the stabilizer elements are inserted through an opening in the bottom of the stabilizer-containment sleeves, the bottom being the lowest portion of the attached stabilizer-containment sleeves when a user is standing (The pockets 30a, 30b have an opening in their bottoms for support 32 to be inserted through.).
Regarding claim 13, Jewell in view of Gunnsteinsson discloses the knee-brace as in claim 5. Jewell in view of Gunnsteinsson does not directly disclose in the relied upon embodiment wherein the stabilizer elements are inserted through an opening in the side of the stabilizer-containment sleeves, the side opening being parallel to the axis of the tubular enclosure.
However, a different embodiment of Jewell discloses inserting a support 332 into a pocket 330 through an opening in the side of the pocket 330. See [0035] and Fig. 6.
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to make the opening in pockets 30a, 30b in the side for the support 32 to be inserted through. A skilled artisan would have been motivated to do so because Jewell discloses in an embodiment of the same invention that a support may be inserted into a pocket by inserting the support through an opening in the side of the pocket. A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn to the same inventive concept.
Additionally, it would have been an obvious matter of design choice to place the opening in the pockets 30a, 30b on the side of the pockets 30a, 30b, since such a modification would have involved a mere rearrangement of parts. The court has held that the particular placement of a component is an obvious matter of design choice absent criticality of the placement. In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
As a result of the combination, Jewell in view of Gunnsteinsson is modified to disclose wherein the stabilizer elements are inserted through an opening in the side of the stabilizer-containment sleeves, the side opening being parallel to the axis of the tubular enclosure (The pockets 30a, 30b have an opening in their sides for support 32 to be inserted through.).
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 Seth Brown whose telephone number is (571)272-5642. The examiner can normally be reached 8:00 AM – 11:00 AM or 1:00 PM – 3:00 PM ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner' s supervisor, Rachael Bredefeld can be reached at (571)270-5237. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SETH R. BROWN/Examiner, Art Unit 3786
/RACHAEL E BREDEFELD/Supervisory Patent Examiner, Art Unit 3786
