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 .
Election/Restriction
REQUIREMENT FOR UNITY OF INVENTION
As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.
The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e).
When Claims Are Directed to Multiple Categories of Inventions:
As provided in 37 CFR 1.475 (b), a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to one of the following combinations of categories:
(1) A product and a process specially adapted for the manufacture of said product; or
(2) A product and a process of use of said product; or
(3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or
(4) A process and an apparatus or means specifically designed for carrying out the said process; or
(5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process.
Otherwise, unity of invention might not be present. See 37 CFR 1.475 (c).
Restriction is required under 35 U.S.C. 121 and 372.
This application contains the following inventions or groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1.
In accordance with 37 CFR 1.499, applicant is required, in reply to this action, to elect a single invention to which the claims must be restricted.
Group I, claim(s) 1-12, drawn to a wearable article.
Group II, claim(s) 13-20, drawn to a system and method of cycling between two states.
The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons:
Groups I and II lack unity of invention because the groups do not share the same or corresponding technical feature.
During a telephone conversation with Alexander Andrews on 5/19/2026 a provisional election was made without traverse to prosecute the invention of Group I, claims 1-12. Affirmation of this election must be made by applicant in replying to this Office action. Claims 13-20 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Drawings
The drawings are objected to for the following informalities:
Figs. 1A-1C, 3A-3B ,4A-4B are objected to for failing to comply with 37 CFR 1.84(b)(1) due to the illustrations being grayscale photographs
Figs. 6, 7, 9, 10, and 11 are objected to because each figure contains multiple views of the same structure. Applicant is suggested to change the figures so that each structure has its own Figure number (i.e. left image in Fig. 6 should be changed to Fig. 6A, and right image in Fig. 6 should be labeled Fig. 6B).
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.
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 drive mechanism for driving relative rotation between the first member and second member about the first axis” in claim 1,
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. In this case, the corresponding structures of drive mechanism described in paragraph [0052] of the specification include: a worm gear with threading engaged with teeth of a gear spool.
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 8 is 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 8, the phrase "optionally" renders the claim(s) indefinite because the claim(s) include(s) elements not actually disclosed (those encompassed by "or the like"), thereby rendering the scope of the claim(s) unascertainable. See MPEP § 2173.05(d).
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.
Claim(s) 1-5 and 7-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Luttrell (US 5,117,814).
Regarding claim 1, Luttrell teaches (Figs. 2-3) a wearable article, comprising:
a first member (housing member 95) extending from a first end to a second end (extends from right to left end);
a second member (housing member 79) extending from a first end to a second end (bottom end to upper end) and rotatably connected to the first member about a first axis (axis 93) toward their respective first ends (see Fig. 2); and
a drive mechanism (motor means 88) for driving relative rotation between the first member and second member about the first axis (Col. 4 lines 56-62).
Regarding claim 2, Luttrell discloses one or more cords (cable 70) extending between and attached to each of the first member and second member between their respective first and second ends (see Fig. 2 and Col. 4 lines 51-55).
Regarding claim 3, Luttrell discloses the one or more cords is operatively engaged with the drive mechanism such that the drive mechanism initiates the relative rotation via one or both of contracting and lengthening a section of the one or more cords that extends between the first member and second member (Col. 4 lines 56-62).
Regarding claim 4, Luttrell discloses one or both of the first member and second member includes an arm (comprising bracket 80 and lateral portion 72 of first member 95) extending outward and in a direction toward the other respective member (extends toward second member 79, see Fig. 2) and the cord is attached to the arm (cable attached to lateral portion 72, see Fig. 2).
Regarding claim 5, Luttrell discloses one or more straps (strapping means, Col. 4 lines 66-68 and Col. 5 lines 1-4) and for attaching the article to an individual or animal to initiate movement at a joint thereof (Col. 4 lines 64-68).
Regarding claim 7, Luttrell discloses the drive mechanism initiates a program of relative rotation in opposite directions (flexion and extension, Abstract).
Regarding claim 8, Luttrell discloses the drive mechanism optionally stops and maintains the first member and second member in one or more different relative rotational positions during execution of the program (“optionally” interpreted to mean what follows is not required of claimed invention, and thus claim 8 is anticipated by Luttrell).
Regarding claim 9, Luttrell discloses an opening between the first member and second member in an area proximate the axis (see gap between first member 95 and second member 79 in Fig. 3).
Regarding claim 10, Luttrell discloses the drive system is programable to initiate multiple different predetermined programs of rotation (“programmable” is conventionally defined as “capable of being programmed. The drive system of Luttrell is controlled by a pgrammable control means 104, Col. 5 lines 40-45, and thus the drive system is programmable to initiate different predetermined programs of rotation due to the control means 104 being capable of being programmed due to it being programmable).
Regarding claim 11, Luttrell discloses wherein the first member and second member extend obliquely relative to one another at a first intermediate angle (see oblique relationship in Fig. 2) and the drive mechanism (a) initiates relative rotation to a second minimum angle smaller than the first angle (causes bending to flex, which is less than the oblique angle, see Col. 4 lines 56-62 and Col. 5 lines 3-8), and (b) allows rotation to a third maximum angle greater than the first angle (causes extension, which is a greater angle than the oblique angle, Col. 4 lines 56-62 and Col. 5 lines 3-8).
Regarding claim 12, Luttrell discloses wherein the drive mechanism is configured to stop at multiple different angles between the second minimum angle and third maximum angle (includes adjustable pins that are able to be placed in different holes, which cause the drive mechanism to stop at different angles between the minimum and maximum angle, Col. 5 lines 3-10).
Claim(s) 1 and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Chiu (US 2011/0172578).
Regarding claim 1, Chiu discloses (Fig. 1-3B) a wearable article, comprising:
a first member (rotatable portion 20) extending from a first end to a second end (extends from left to right end);
a second member (securing portion 10) extending from a first end to a second end (bottom end to upper end) and rotatably connected to the first member about a first axis (axis extending through pivoting portion 30) toward their respective first ends (see Fig. 1); and
a drive mechanism (pulling portion 40 including driving portion 435) for driving relative rotation between the first member and second member about the first axis (see Figs. 3a-3b).
Regarding claim 6, Chiu discloses wherein the article is configured to be worn by an individual or animal on the foot and leg (worn on foot and leg of individual, see Fig. 3a-3b and Abstract).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Han (US 2012/0259429) discloses a foot orthosis having two members and a driving mechanism.
Horst (US 8,353,854) discloses a device for preventing DVT having two members and a driving mechanism.
Choi (US 2018/0055711) discloses a motion assistance apparatus having two members and a driving mechanism.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R MOON whose telephone number is (571)272-2554. The examiner can normally be reached Monday-Thursday 7:30am-5:30pm.
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, 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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/MATTHEW R MOON/Examiner, Art Unit 3785
/TIMOTHY A STANIS/Supervisory Patent Examiner, Art Unit 3785
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