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 .
Specification
The disclosure is objected to because of the following informalities:
Page 3, lines 15, 17, and 22 (per applicant’s line numbering), change “12” to --13--; and
Failure to include proper section headings.
The following guidelines illustrate the preferred layout for the specification of a utility application. These guidelines are suggested for the applicant’s use.
Arrangement of the Specification
As provided in 37 CFR 1.77(b), the specification of a utility application should include the following sections in order. Each of the lettered items should appear in upper case, without underlining or bold type, as a section heading. If no text follows the section heading, the phrase “Not Applicable” should follow the section heading:
(a) TITLE OF THE INVENTION.
(b) CROSS-REFERENCE TO RELATED APPLICATIONS.
(c) STATEMENT REGARDING FEDERALLY SPONSORED RESEARCH OR DEVELOPMENT.
(d) THE NAMES OF THE PARTIES TO A JOINT RESEARCH AGREEMENT.
(e) INCORPORATION-BY-REFERENCE OF MATERIAL SUBMITTED ON A READ-ONLY OPTICAL DISC, AS A TEXT FILE OR AN XML FILE VIA THE PATENT ELECTRONIC SYSTEM.
(f) STATEMENT REGARDING PRIOR DISCLOSURES BY THE INVENTOR OR A JOINT INVENTOR.
(g) BACKGROUND OF THE INVENTION.
(1) Field of the Invention.
(2) Description of Related Art including information disclosed under 37 CFR 1.97 and 1.98.
(h) BRIEF SUMMARY OF THE INVENTION.
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S).
(j) DETAILED DESCRIPTION OF THE INVENTION.
(k) CLAIM OR CLAIMS (commencing on a separate sheet).
(l) ABSTRACT OF THE DISCLOSURE (commencing on a separate sheet).
(m) SEQUENCE LISTING. (See MPEP § 2422.03 and 37 CFR 1.821 - 1.825). A “Sequence Listing” is required on paper if the application discloses a nucleotide or amino acid sequence as defined in 37 CFR 1.821(a) and if the required “Sequence Listing” is not submitted as an electronic document either on read-only optical disc or as a text file via the patent electronic system.
Appropriate correction is required.
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.
The following phrases invoke 112(f): claim 16, line 3, “measuring means”; and claim 16, line 4, “lifting means”.
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 17, 19, 22, 24, 25, and 26 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.
It is unclear if the cooperating “columns” and “uprights” recited in claim 17 are referencing and/or include the “lifting means” previously recited in claim 16, line 4.
In claim 19, lines 1-2, “the columns” lacks antecedent basis. It is noted the “columns” are first introduced in claim 17. The following change would receive favorable consideration:
Claim 18. (proposed amendment) The device according to claim [[16]] 17, wherein the work platform is provided with supports for a person standing on it.
Claims 22 and 24 are rejected under 35 U.S.C. 112(b) as they depend from a rejected claim.
It is unclear if the “tubes” and “drive” recited in claims 25 and 26 are referencing and/or include the “lifting means” previously recited in claim 16, line 4.
Regarding claim 26, line 2, 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). The following change would receive favorable consideration:
Claim 26. (proposed amendment) The device according to claim 25, wherein the drive comprises
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 16-24, 27, and 30 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Baxter (US#1981941).
Regarding claim 16, Baxter discloses a device for measuring footwear ergonomically, comprising a base 10 (Fig. 2) and a frame 44,48 (Fig. 2), which is mounted on the base, wherein the frame comprises a work platform 44 with a standing surface for a person, which is suitable for placing measuring means (e.g. see element 46 placed thereon), wherein the device comprises lifting means (col. 2, lines 34-49, “suitable means…for raising and lowering”) for moving the frame relative to the base between a rest position, wherein the frame occupies a lowest position and an adjustable working position, wherein the frame occupies a higher position. It is noted the measuring means is not being claimed.
Regarding claim 17, wherein the device comprises one or more uprights 48, which extend from the base 10, and wherein the frame comprises one or more columns 50,52, which extend from the work platform 44, wherein the columns are slidable over the uprights as the uprights slidably move within the columns.
Regarding claim 18, wherein the work platform 44 is “provided with” (i.e. indirectly coupled to) supports 18 for a person standing on it.
Regarding claim 19, wherein the supports 18 are indirectly attached to the columns 50,52.
Regarding claim 20, wherein the work platform 44 extends substantially above the base 10 (see Fig. 2).
Regarding claim 21, wherein the device also comprises a chair 14 for the person.
Regarding claim 22, wherein the device also comprises a chair 14 for the person and the chair is indirectly attached to the columns 50,52.
Regarding claim 23, wherein the chair 14 extends at least partially outside of the work platform 44 (see Fig. 2).
Regarding claim 24, wherein the lifting means are “accommodated in” the uprights 48 via the threading of the uprights.
Regarding claim 27, wherein the frame is “detachably” mounted on (i.e. capable of being detached from) the base 10.
Regarding claim 30, wherein the work platform 44 is “detachably” mounted to (i.e. capable of being detached from) the frame.
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.
Claims 25, 26, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Baxter (US#1981941) in view of Spence (US#2019/0142665).
Regarding claims 25 and 26, Baxter fails to disclose wherein the uprights 48 comprise a number of telescopically slidable tubes and an electric spindle drive for sliding the tubes. However, as evidenced by Spence, such a configuration is known in the analogous art, see the device of Fig. 1 wherein the uprights 14 comprise a number of telescopically slidable tubes 22,24 and an electric 60,52 (electric motor) spindle drive 54 for sliding the tubes (Fig. 5). Therefore, as evidenced by Spence, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Baxter by replacing its uprights and lifting means with uprights comprising a number of telescopically slidable tubes and an electric (electric motor) spindle drive for sliding the tubes. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art (See MPEP 2143 and KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007)). The substitution of the uprights comprising a number of telescopically slidable tubes and an electric spindle drive for sliding the tubes would simplify lifting movement via an automated system.
Regarding claim 28, Baxter fails to disclose wherein the base is provided with a number of wheels. However, as evidenced by Spence, such a configuration is known in the analogous art, see the device of Fig. 2 and base 84 provided with wheels 26. Therefore, as evidenced by Spence, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Baxter by including wheels on the base. The rational for supporting this conclusion of obviousness is the proposed combination is based upon combining prior art elements according to known methods to yield predictable results. Moreover, all the claimed elements are known in the prior art and one skilled in the art could combine the elements as claimed by known methods with no change in their respective functions, and the combination yield nothing more than predictable results to one of ordinary skill in the art (MPEP 2143 and KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007)). The inclusion of wheels on the base would facilitate relocation and/or transport of the device if required.
Allowable Subject Matter
Claim 29 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.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 29, Baxter fails to disclose wherein the device further comprises an auxiliary platform, which is arranged on the frame above the work platform and is slidable between a position of use, wherein the auxiliary platform is located substantially above the work platform, and a rest position, wherein the auxiliary platform largely leaves the standing surface on the work platform free. GB 255800 teaches an auxiliary platform 7 (Fig. 2), which is arranged on the frame above the work platform 1 and is slidable between two positions on the work platform (see Fig. 4) However, GB255800 does not teach a position wherein the auxiliary platform does not largely leave the standing surface on the work platform free.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM L MILLER whose telephone number is (571)272-7068. The examiner can normally be reached 9:30 - 6:00 PM.
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, Jason San can be reached at (571) 272-6531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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WILLIAM L. MILLER
Primary Examiner
Art Unit 3677
/WILLIAM L MILLER/Primary Examiner, Art Unit 3677