DETAILED ACTION
Status of Claims
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-6 and 8-22 are pending.
Claim 7 is cancelled.
Response to Arguments
First, Applicant argues that “Moser thus discloses a strap and latch closure mechanism which is coupled to a frame assembly; it is not a surround fastening means that fastens the surround to itself.” See Remarks at 7.
Applicant’s first argument has been fully considered but it is not persuasive.
As Non-Final Rejection (2/10/2026) stated “Moser teaches an applicator for applying functional electrical stimulation (FES) to rehabilitate a person ([0029], [0030], Figs. 1-5, 13, 14), the applicator including: a surround (10, Figs. 3, 4) for surrounding a portion of the person (e.g., [0032]-[0033]) …” See Non-Final Rejection at 3. It is important to appreciate at that surround 10 comprises not only the strap 14 and latch mechanism 18 but also the frame assembly 12. See Figs. 1, 3, 4 and associated text. Therefore, Moser discloses a surround fastening means that fastens the surround to itself.
Second, Applicant argues that Yang teaches away from the use of gels. Specifically, Applicant writes:
Yang describes its invention as a "substantially dry electrode" (see Yang, [0001], [0012]) and
explains that conventional wet/hydrogel electrodes are unsuitable for long term use because
applying liquid gel to the skin can be time consuming, contamination may limit reuse, hydrogel
electrodes tend to dry out, and hydrogel stickiness can make repositioning difficult and painful. See
Yang, [0004]. Yang further teaches that its contact layer may not require gel to be applied to the skin and that certain electrodes provide a dry electrode that "does not require a gel to increase the contact between the skin and electrode." See Yang, [0019], [0119]. Thus, Yang does not provide a reasoned teaching or suggestion to modify Moser to include the gel coating and protector recited in claim 10, or the sheet and plastics material features recited in claims 11 and 12.
See Remarks at 9.
Applicant’s second argument has been fully considered but it is not persuasive.
It is important to clarify precisely what Yang teaches: Yang discloses that the prior art falls into two categories: wet/hydrogel electrodes and dry electrodes. See [0004]-[0005]. Then, Yang describes the claimed invention as falling into a third category: a “substantially dry electrode.” See [0012]. The “substantially dry electrode” comprises two functional layers: a conductive layer and a contact layer. See [0015], [0016] (“The contact layer may comprise an ink or paste, e.g. a cured ink or paste, the ink or paste comprising a mixture containing carbon and the rubber [construed as a sheet and/or plastics material].”). Importantly, the contact layer may (possibly but not necessarily) increase the contact between the skin and the electrode and the electrode may (possibly but not necessarily) not require a gel to be applied to the skin. See [0017] (“… the contact layer may increase the contact between the skin and the electrode, allowing accurate measurements of the (human or animal) wearer to be taken, for example by a wearable medical device attached to the electrode. Conveniently, the electrode may not require a gel to be applied to the skin …”) (emphases added). It is critical to appreciate that electrical conductivity is a matter of degree and that gels (despite its purported disadvantages) nevertheless may possibly improve conductivity.
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)(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 1-6, 8-9, and 18-21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Moser et al. (US 20140155978 A1, 2014-06-05) (hereinafter “Moser”).
Regarding claims 1-9 and 18-21, as discussed above (Response to Arguments incorporated by reference herein), Moser teaches an applicator for applying functional electrical stimulation (FES) to rehabilitate a person ([0029], [0030], Figs. 1-5, 13, 14), the applicator including: a surround (10, Figs. 3, 4); surround fastening means for fastening the surround to itself around the portion of the person (e.g., [0007], [0037],[0032]-[0033], [0045]-[0048]); for surrounding a portion of the person (e.g., [0032]-[0033]); and one or more electrodes (e.g., 24, 26, Fig. 2) for locating within the surround (e.g., [0032]-[0033]) (as recited in clam 1); wherein the electrodes are borne by the surround, when attaching the surround to the portion, to greatly reduce set-up time (e.g., [0032]-[0033]) (as recited in clam 2); including electrode fastening means for fastening the electrodes to the surround (e.g., [0007], [0037],[0032]-[0033], [0045]-[0048]) (as recited in clam 3); wherein the electrode fastening means is releasable and/or position adjustable (e.g., [0007], [0037],[0032]-[0033], [0045]-[0048]) (as recited in clam 4); wherein the electrode fastening means includes a hook-and loop fastener (e.g., [0036]-[0037]) (as recited in clam 5); wherein the fastener is adhesive-backed (e.g., [0036]-[0037]) (as recited in clam 6); wherein the surround fastening means is releasable and/or tightness adjustable (e.g., [0007], [0037],[0032]-[0033], [0045]-[0048]) (as recited in clam 8); wherein the surround fastening means includes a hook-and loop fastener (e.g., [0036]-[0037]) (as recited in clam 9); wherein the portion includes a limb, and the surround is shaped to fit at least part of the limb (e.g., Figs, 3, 4) (as recited in clam 18); wherein the applicator includes a garment (e.g., Figs, 3, 4) (as recited in clam 19); including a processor or computer (16, Fig.1; [0051]) borne by the surround (as recited in clam 20); a rehabilitation method involving: surrounding a portion of a person with a surround; wherein surrounding the portion includes fastening the surround to itself around the portion of the person using surround fastening means (e.g., [0007], [0037],[0032]-[0033], [0045]-[0048]); and applying functional electrical stimulation (FES) to the person using one or more electrodes located within the surround (as recited in clam 21).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 10-15, 17, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Moser in view of Yang et al. (US 20190217078 A1, 2019-07-18) (hereinafter “Yang”).
Regarding claims 10-15 and 17, Moser teaches an applicator as claimed in claim 1, as discussed above. However, Moser does not expressly teach the use of gels or the various feature recited in the clams at issue. Yang teaches use of gels (e.g., [0004]-[0005], various electrode layers and materials (e.g., [0011]-[0020]), electrode connectors (e.g., [0033], [0076]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings of Yang with the invention taught by Moser such that the invention further comprises wherein the electrodes include a gel coating, and a protector for protecting the gel coating (as recited in clam 10); wherein the protector includes a sheet (as recited in clam 11); wherein the sheet includes plastics material (as recited in clam 12); wherein each electrode includes a pad, and a conductor extending from the pad (as recited in clam 13); wherein the conductor terminates in a connector or adaptor (as recited in clam 14); wherein the connector or adaptor is located external the surround (as recited in clam 15); wherein the surround includes a resilient sheet (as recited in clam 17); wherein the surround includes a neoprene sheet (e.g., [0015]-[0020] of Yang) (as recited in clam 22) in order to improve the usability of the invention.
Claims 16 is rejected under 35 U.S.C. 103 as being unpatentable over Moser in view of Yang, as applied to claim 14, and further in view of Su et al. (US 20080003841 A1, 2008-01-03) (hereinafter “Su”).
Regarding claim 16, Moser teaches an applicator as claimed in claim 1, as discussed above. However, Moser does not expressly teach wherein the connector or adaptor includes a light emitting diode (LED). Su teaches a connector or adaptor includes a light emitting diode (LED). See, e.g, [0022]-[0026]. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings of Yang with the invention taught by Moser such that the invention further comprises wherein the connector or adaptor includes a light emitting diode (LED) (as recited in clam 16) in order to improve the usability of the invention.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SCOTT T LUAN whose telephone number is (571)270-1860. The examiner can normally be reached on 9am-5pm, M-F (generally).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Gary Jackson, can be reached on 571-272-4697. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Scott Luan
/SCOTT LUAN/Primary Examiner, Art Unit 3792
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