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 .
DETAILED ACTION
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 4-6, 8, 12-15, and 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Maloney (WO2008061300).
Regarding claim 1, Maloney teaches a knee brace (10) comprising: an upper frame member (12), designed for being fastened to the upper part of the user's leg, and a lower frame member (14), designed for being fastened to the lower part of the user's leg (see abstract); the upper frame member and the lower frame member being pivotally connected to each other by means of at least one articulation hinge (16a,16b) (pg. 3, lines 20-22); a patella protecting device (22 and high density neoprene or EVA foam, pg. 5, lines 19-22) positioned between the upper frame member and the lower frame member (fig. 7) the patella protecting device comprising a protecting cup (22, figs. 4-7, col. 5, lines 14-17) coupled to said at least one articulation hinge (16a,16b) (pg. 4, lines 6-8) and designed to be positioned over the patella of the user (col. 5, lines 14-17); characterized in that the patella protecting device further comprises an elastomeric protecting element extending between the upper frame member and the lower frame member and operatively coupled to the protecting cup (high density neoprene or EVA foam, pg. 5, lines 19-22), wherein the elastomeric protecting element (high density neoprene or EVA foam, pg. 5, lines 19-22) is directly or indirectly fastened to the upper frame member and to the lower frame member (the element is indirectly connect to the upper frame and lower frame by way of attachment to 20 which is attached to 12 and 14, at least fig. 8 or directly by member 48a and 50a).
Regarding claim 3, Maloney teaches the elastomeric protecting element has an upper end and a lower end, the upper end being fastened to an inner surface of the upper frame member and the lower end being fastened to an inner surface of the lower frame member (members 48a and 50a).
Regarding claim 4, Maloney teaches the upper frame member (12) comprises an upper main body (central area of 12), designed to be superimposed to the front portion of the thigh of the user's leg (figs. 7,8), an upper medial element, designed to be superimposed to the upper medial part of the knee joint, and an upper lateral element, designed to be superimposed to the upper lateral part of the knee joint (left and right sides of 12 on either side of the central area, figs. 7,8).
Regarding claim 5, Maloney teaches the lower frame member (14) comprises a lower main body (central area of 14), designed to be superimposed to the front portion of the shin of the user's leg (figs. 7,8), a lower medial element, designed to be superimposed to the lower medial part of the knee joint, and a lower lateral element, designed to be superimposed to the lower lateral part of the knee joint (left and right sides of 14 on either side of the central area, figs. 7,8).
Regarding claim 6, Maloney teaches the upper frame member (12 and 48) comprises an upper shield (48) and the lower frame member (14 and 50) comprises a lower shield (50); the upper shield (48) being coupled to an inner surface of an upper main body of the upper frame member, said upper main body being designed to be superimposed to the front portion of the thigh of the user’s leg (central area of 12) (fig. 8) and the lower shield being coupled to an inner surface of a lower main body of the lower frame member, said lower main body being designed to be superimposed to the front portion of the shin of the user’s leg, a lower medial element (central area of 14) (fig. 8).
Regarding claim 8, Maloney teaches the protecting cup (22) is made of rigid or semirigid material (col. 5, lines 17-19) and the elastomeric protecting element is made of an elastic polymeric material (high density neoprene or EVA foam, pg. 5, lines 19-22).
Regarding claim 12, Maloney teaches two articulation hinges (16a,16b) (pg. 4, lines 6-23); a medial articulation hinge pivotally connecting the upper medial element to the lower medial element and a lateral articulation hinge pivotally connecting the upper lateral element to the lower lateral element (figs. 1,7,8) (pg. 4, lines 6-23); the protecting cup (22) having a first side appendix connected to the medial articulation hinge and a second side appendix connected to the lateral articulation hinge (side appendixes are 47) (pg. 5, lines 21-31).
Regarding claim 13, Maloney teaches each side appendix (47) of the protecting cup is provided with an abutting surface designed to get in contact with a corresponding abutting surface of an appendix of an hinge body of the articulation hinge to block a rotation of the protecting cup around a transversal axis of the articulation hinge (47 extends into slot 18, pg. 5, lines 13-41).
Regarding claim 14, Maloney teaches with the knee brace in a straight configuration, a lower edge of the upper shield (48) is adjacent to an upper edge of the protecting cup (22) (fig. 4) and an upper edge of the lower shield (50) is adjacent to a lower edge of the protecting cup (fig. 4).
Regarding claim 15, Maloney teaches the upper shield (48) and the lower shield (50) extends from the upper frame member (12) and the lower frame member (14) underneath the protecting cup (22), so that an upper edge of the lower shield is adjacent to a lower edge of the upper shield with the knee brace in the straight configuration (figs. 6,8, adjacent i.e. not distant or nearby in as much as is claimed).
Regarding claim 18, Maloney teaches the protecting cup (22) is arranged on the outer surface of the elastomeric protecting element (pg. 5, lines 19-22).
Claims 1, 3, 16 and 17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ingimundarson et al. (U.S. 20080195013).
Regarding claim 1, Ingimundarson teaches a knee brace (100,500) comprising:- an upper frame member (104), designed for being fastened to the upper part of the user's leg (fig. 6), and a lower frame member (106), designed for being fastened to the lower part of the user's leg (fig. 6); the upper frame member and the lower frame member being pivotally connected to each other by means of at least one articulation hinge (108,110, paras. 90,65); a patella protecting device (500) positioned between the upper frame member and the lower frame member (fig. 25); the patella protecting device comprising a protecting cup (501) coupled to said at least one articulation hinge (para. 145) and designed to be positioned over the patella of the user (fig. 26); characterized in that the patella protecting device further comprises an elastomeric protecting element (524-526, could also include 512,514) (paras. 141-142) (figs. 22,23) extending between the upper frame member and the lower frame member (fig. 25) and operatively coupled to the protecting cup (at least via 531, para. 150), wherein the elastomeric protecting element (524-526) is directly or indirectly fastened to the upper frame member (104) and to the lower frame member (106) (via 512,514, para. 138, fig. 25); wherein the elastomeric protecting element (524-526) is indirectly fastened to the upper frame member (104) and to the lower frame member (106) (via 512,514, para. 138, fig. 25).
Regarding claim 3, Ingimundarson teaches the elastomeric protecting element (524-526) has an upper end (525 under 104) and a lower end (526 under 106); the upper end being fastened to an inner surface of the upper frame member and the lower end being fastened to an inner surface of the lower frame member (at least via 512,514, para. 138, fig. 25).
Regarding claim 16, Ingimundarson teaches the protecting cup (501) is provided with a slot (an aperture of 522) inside which the elastomeric protecting element (524) is slidably arranged (via 531, 537 can slide through aperture, para. 150). Alternatively, the elastomeric protecting element can further include 512,514 which includes 542 which extends through slot 535 (para. 156, fig. 23).
The following rejection of claim 1 is for use with claim 17.
Regarding claim 1, Ingimundarson teaches a knee brace (100,500) comprising:- an upper frame member (104), designed for being fastened to the upper part of the user's leg (fig. 6), and a lower frame member (106), designed for being fastened to the lower part of the user's leg (fig. 6); the upper frame member and the lower frame member being pivotally connected to each other by means of at least one articulation hinge (108,110, paras. 90,65); a patella protecting device (500) positioned between the upper frame member and the lower frame member (fig. 25); the patella protecting device comprising a protecting cup (524, can also include 508,510,525,526) coupled to said at least one articulation hinge (by way of attaching to 501 which attaches to the hinge by way of 518, para. 145) and designed to be positioned over the patella of the user (figs. 25,26); characterized in that the patella protecting device further comprises an elastomeric protecting element (504, perimeter edge portion is resilient, para. 144) extending between the upper frame member and the lower frame member (fig. 25) and operatively coupled to the protecting cup (at least by way of 531 extending through apertures of 522, para. 15), wherein the elastomeric protecting element (524-526) is directly or indirectly fastened to the upper frame member (104) and to the lower frame member (106) (via 512,514, para. 138, fig. 25).
Regarding claim 17, Ingimundarson teaches the protecting cup (524, can also include 508,510,525,526) is arranged on the inner surface of the elastomeric protecting element (504) (para. 150, figs. 24-26).
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.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Maloney (WO2008061300) in view of Grogro (U.S. 20140173815).
Regarding claim 9, Maloney fails to teach the elastomeric protecting element has a mesh structure extending uniformly over the whole surface thereof.
Grogro teaches a protecting element (330) having a mesh structure (310,320, para. 33) extending uniformly over the whole surface thereof (para. 31, figs. 6-8C).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have added a mesh structure extending uniformly over the whole surface of the elastomeric protecting element of Maloney in view of Grogro in order to provide a breathable protective structure (para. 37 of Grogro).
Claim(s) 10 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Maloney (WO2008061300) in view of Grogro (U.S. 20140173815) and further in view of Ingimundarson (U.S. 20100217169).
Regarding claims 10 and 11, the Maloney/Grogro combined reference teaches the mesh structure has a plurality of openings (mesh necessarily has openings); but fails to teach each opening of said plurality has an elongated shape, the elongated dimension of each opening of said plurality is arranged perpendicularly to a longitudinal axis of the knee brace.
Ingimundarson teaches padding (716) having a mesh covering (710) that defines a plurality of openings (720) (para. 215) such that each opening of said plurality has an elongated shape (figs. 32G, 32H), the elongated dimension of each opening of said plurality is arranged perpendicular to a vertical line (32H) extending through the pad structure (fig. 32G).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have formed each opening of the plurality of openings of the combined reference so as to have an elongated shape, the elongated dimension of each opening of said plurality is arranged perpendicularly to a longitudinal axis of the knee brace in view of Ingimundarson in order to limit taller particles from extending through the mesh. The examiner also notes that it is common to have openings of various shapes and sizes for the purpose of aesthetic appeal.
Response to Arguments
Applicant’s amendment and arguments, filed 07-14-2025, with respect to the 112 rejection, have been fully considered and are persuasive. Accordingly, the 112 rejection is hereby withdrawn.
Applicant’s amendment and arguments, filed 07-14-2025, with respect to the 102 & 103 rejections, have been fully considered, but they are not persuasive.
Applicant argues that the prior art does not teach “the elastomeric is directly or indirectly fastened to the upper frame member and to the lower frame member”. However, the examiner respectfully disagrees since Maloney teaches the structure at least indirectly attached the lower and upper member (the element is indirectly connected to the upper frame and lower frame by way of attachment to 20 which is attached to 12 and 14, at least fig. 8), or directly (member 48a and 50).
In addition Ingimundarson also teaches that the elastomeric is indirectly connected to the upper and lower frames (members 512 and 514, para 0138, fig 25).
Allowable Subject Matter
Claim 7 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Applicant's amendment necessitated the new/revised 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.
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/KHOA D HUYNH/Supervisory Patent Examiner, Art Unit 3732
