DETAILED ACTION
Acknowledgements
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-10, 12-15 are pending.
This action is Final.
Drawings
The drawings are objected to because Figure 2 is missing lead lines for each element as is a requirement; Figures 4-5 also contains elements which are missing lead lines, as these are block diagrams underlining would not be proper and elements likely should be outside the blocks with proper lead lines drawn. 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.
37 CFR 1.84:
(q) Lead lines. Lead lines are those lines between the reference characters and the details referred to. Such lines may be straight or curved and should be as short as possible. They must originate in the immediate proximity of the reference character and extend to the feature indicated. Lead lines must not cross each other. Lead lines are required for each reference character except for those which indicate the surface or cross section on which they are placed. Such a reference character must be underlined to make it clear that a lead line has not been left out by mistake. Lead lines must be executed in the same way as lines in the drawing. See paragraph (l) of this section.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: 23. 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. 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.
37 CFR 1.84:
(p) Numbers, letters, and reference characters.
(1) Reference characters (numerals are preferred), sheet numbers, and view numbers must be plain and legible, and must not be used in association with brackets or inverted commas, or enclosed within outlines, e.g., encircled. They must be oriented in the same direction as the view so as to avoid having to rotate the sheet. Reference characters should be arranged to follow the profile of the object depicted.
(2) The English alphabet must be used for letters, except where another alphabet is customarily used, such as the Greek alphabet to indicate angles, wavelengths, and mathematical formulas.
(3) Numbers, letters, and reference characters must measure at least .32 cm. (1/8 inch) in height. They should not be placed in the drawing so as to interfere with its comprehension. Therefore, they should not cross or mingle with the lines. They should not be placed upon hatched or shaded surfaces. When necessary, such as indicating a surface or cross section, a reference character may be underlined and a blank space may be left in the hatching or shading where the character occurs so that it appears distinct.
(4) The same part of an invention appearing in more than one view of the drawing must always be designated by the same reference character, and the same reference character must never be used to designate different parts.
(5) Reference characters not mentioned in the description shall not appear in the drawings. Reference characters mentioned in the description must appear in the drawings.
The drawings are objected to because the numbering of sheets containing Figures 2, 3A, 3B are not in compliance with Rule 1.84(t) as the numbering is not larger than the reference characters. 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.
37 CFR 1.84:
(t) Numbering of sheets of drawings. The sheets of drawings should be numbered in consecutive Arabic numerals, starting with 1, within the sight as defined in paragraph (g) of this section. These numbers, if present, must be placed in the middle of the top of the sheet, but not in the margin. The numbers can be placed on the right-hand side if the drawing extends too close to the middle of the top edge of the usable surface. The drawing sheet numbering must be clear and larger than the numbers used as reference characters to avoid confusion. The number of each sheet should be shown by two Arabic numerals placed on either side of an oblique line, with the first being the sheet number and the second being the total number of sheets of drawings, with no other marking.
Specification
The disclosure is objected to because of the following informalities: The drawing elements and specification are not in agreement, see drawing objections above.
Appropriate correction is required.
Claim Objections
Claim 14 is objected to because of the following informalities: claim 14, “a wearer” should be “the wearer”, claim 14 “the smart wearable system” should read “the smart wearable”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-10, 12-15 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Applicant has amended claim 1 to recite the limitations: “each of said first and second microphones arranged in one of the cavities” and “the acoustic sensor device having the first and second microphones each arranged in one of the cavities” which are rejected for being new matter. The scope of the limitation includes both that the microphones are in a single cavity and in separate cavities. The separate cavities are supported, but there does not appear to be support that they are in the same cavity, and the scope including such is new matter. As such, one of skill in the art would not have recognized applicant was in possession of the claimed invention for the scope being claimed at the time the application was filed. The dependent claims are rejected for depending on a rejected claim.
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 1-10, 12-15 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.
Claim 1 has the following indefinite issues.
The limitation in claim 1 which recites "the kinematic sensor device" in line 14. There is insufficient antecedent basis for this limitation in the claim.
Regarding claims 1 and 3, the limitations of “each of said first and second microphones arranged in one of the cavities” and “the acoustic sensor device having the first and second microphones each arranged in one of the cavities” is not clear what is meant. It is not clear whether the limitations require that each is in a respective cavity, or that each is in a single cavity of the two cavities. This makes the metes and bounds of the claims unclear, which renders the claim indefinite.
Further regarding claim 1, the limitation “an acoustic sensor device, comprising first and second microphones, each of said first and second microphones arranged in one of the cavities, wherein a sensing area of the acoustic sensor device is configured to not contact skin of the wearer, and wherein the sensing area is configured to capture airborne acoustic emissions from the area of interest;” is not clear what is intended to be set forth. It appears that applicant is attempting to claim features of Figures 1-3, but what the limitation is meant to structurally connotate is unclear especially in reference to “wherein a sensing area of the acoustic sensor device is configured to not contact skin of the wearer, and wherein the sensing area is configured to capture airborne acoustic emission from the area of interest…”. The limitation includes both negative limitation and positive limitation for limiting structural features of the acoustic sensor device to include a sensing area, which is fine and not the basis for the rejection. However, it is not clear if this is sections of the frame that forms the sensor device and includes two microphones, which are not clear as previously discussed, claimed to be in a single cavity or separate cavities, or is meant to claim microphone area instead and should be two areas. It is not clear what the singularity area is supposed to represent in the claimed wearable as set forth. Area is not explicitly set forth in the disclosure as filed. A common meaning would have to be employed, which can include most relevant definitions from Merriam-Webster as “a particular extent of space or surface or one serving a special function: such as a : a part of the surface of the body b: a geographic region”. When viewing Figure 1, it is clear that element 3 sections between each microphone can have skin contact in the general area where the acoustic sensing device 13 is located, and since the features are curved, certainly would contain skin contact in the general area between the elements. Applicant should amend the features to more clearly define what is intended to be set forth as the positive structures of the claimed wearable. This also makes the metes and bounds of the claim unclear, which renders the claim indefinite.
Due to the uncertainty in claimed scope, any prior art rejection would be improper and based on assumptions and speculation for the proper interpretation of claimed features, as such, no prior art rejections will be speculatively applied to the claims as presented, In re Steele, MPEP 2173.06:
“Second, where there is a great deal of confusion and uncertainty as to the proper interpretation of the limitations of a claim, it would not be proper to reject such a claim on the basis of prior art. As stated in In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962), a rejection under 35 U.S.C. 103 should not be based on considerable speculation about the meaning of terms employed in a claim or assumptions that must be made as to the scope of the claims.
Claim 15 recites the limitations “further comprising a kinematic sensor device configured to measure kinematics of the joint, the data processor device being configured to receive and record data from the kinematic sensor device” which renders the claim indefinite. It is not clear if this is the same or different kinematic sensor device which is referenced in Claim 1 or a separate device. It is not clear if this is the same or different data being received as referenced in claim 1. For these reasons the metes and bounds of the claim are unclear, which renders the claim indefinite.
Claim 2 by amendment now depends on claim 15 and claim 1, it is unclear which reference of “the kinematic sensor device” is being further limited. This makes the metes and bounds of the claim unclear, which renders the claim indefinite.
Claim 5 by amendment now depends on claim 15 and claim 1, it is unclear which reference of “the kinematic sensor device” is being further limited. This makes the metes and bounds of the claim unclear, which renders the claim indefinite
Claim 8 by amendment now depends on claim 15 and claim 1, it is unclear which reference of “the kinematic sensor device” is being further limited. This makes the metes and bounds of the claim unclear, which renders the claim indefinite
Regarding claim 12, the limitations “wherein the protrusion and/or ridge is configured to protrude away from surface and is arranged to at least partially surround the opening of the cavity” is indefinite in view of the amendments to claim 1 which recites the features “wherein the elastic sensor frame comprises a curved shape and includes a protrusion and/or ridge at an opening of each of the first and second open cavities.” It is not clear which is being further limited here, the protrusion and/or ridge at the first, second, or both cavities as there is no longer claimed a singular “opening” in claim 1 as amended. This makes the metes and bounds of the claim unclear, which renders the claim indefinite.
Claim 14 by amendment now depends on claim 15 and claim 1, it is unclear which reference of “the kinematic sensor device” is being further limited. This makes the metes and bounds of the claim unclear, which renders the claim indefinite
The dependent claims are rejected for depending on a rejected claim.
Response to Arguments
The examiner acknowledges applicant’s submission of amendments to the claims and specification filed 6/1/2026.
Applicant’s arguments regarding the rejections under 101 and 112 have been fully considered and the amendments have overcome the rejections, however, the amendments have necessitated new grounds of rejections as presented above.
Applicant’s arguments regarding the specification objection have been fully considered and are partially persuasive due to the amendments; the objection remain as the specification and drawings are not in agreement for element “23”.
Applicant’s arguments regarding the rejections of the claims in view of prior art have been fully considered but due to the uncertainties in claimed scope and meaning, no prior art rejections can be speculatively made at this time. Upon a clearer form, prior art will be reviewed and any updated searches required will be conducted.
Applicant’s arguments regarding the drawing objections have been fully considered but are not persuasive. If applicant does not want to underline or lead line the elements of Figures 4-5, then remove the numerals from inside the box…Please amend the drawings, a repeat of these traversals without amendment will be treated as a request to hold the drawing objections in abeyance, which is not allowed. The objections are respectfully maintained.
37 CFR 1.84:
(p) Numbers, letters, and reference characters.
(1) Reference characters (numerals are preferred), sheet numbers, and view numbers must be plain and legible, and must not be used in association with brackets or inverted commas, or enclosed within outlines, e.g., encircled. They must be oriented in the same direction as the view so as to avoid having to rotate the sheet. Reference characters should be arranged to follow the profile of the object depicted.
(2) The English alphabet must be used for letters, except where another alphabet is customarily used, such as the Greek alphabet to indicate angles, wavelengths, and mathematical formulas.
(3) Numbers, letters, and reference characters must measure at least .32 cm. (1/8 inch) in height. They should not be placed in the drawing so as to interfere with its comprehension. Therefore, they should not cross or mingle with the lines. They should not be placed upon hatched or shaded surfaces. When necessary, such as indicating a surface or cross section, a reference character may be underlined and a blank space may be left in the hatching or shading where the character occurs so that it appears distinct.
(4) The same part of an invention appearing in more than one view of the drawing must always be designated by the same reference character, and the same reference character must never be used to designate different parts.
(5) Reference characters not mentioned in the description shall not appear in the drawings. Reference characters mentioned in the description must appear in the drawings.
37 CFR 1.84:
(q) Lead lines. Lead lines are those lines between the reference characters and the details referred to. Such lines may be straight or curved and should be as short as possible. They must originate in the immediate proximity of the reference character and extend to the feature indicated. Lead lines must not cross each other. Lead lines are required for each reference character except for those which indicate the surface or cross section on which they are placed. Such a reference character must be underlined to make it clear that a lead line has not been left out by mistake. Lead lines must be executed in the same way as lines in the drawing. See paragraph (l) of this section.
37 CFR 1.84:
(t) Numbering of sheets of drawings. The sheets of drawings should be numbered in consecutive Arabic numerals, starting with 1, within the sight as defined in paragraph (g) of this section. These numbers, if present, must be placed in the middle of the top of the sheet, but not in the margin. The numbers can be placed on the right-hand side if the drawing extends too close to the middle of the top edge of the usable surface. The drawing sheet numbering must be clear and larger than the numbers used as reference characters to avoid confusion. The number of each sheet should be shown by two Arabic numerals placed on either side of an oblique line, with the first being the sheet number and the second being the total number of sheets of drawings, with no other marking.
Conclusion
No prior art rejections were applied to the claims due to the uncertainties in claim meaning as addressed above. Due to the uncertainty in claimed scope, any prior art rejection would be improper and based on assumptions and speculation for the proper interpretation of claimed features, as such, no prior art rejections will be speculatively applied to the claims as presented, In re Steele, MPEP 2173.06:
“Second, where there is a great deal of confusion and uncertainty as to the proper interpretation of the limitations of a claim, it would not be proper to reject such a claim on the basis of prior art. As stated in In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962), a rejection under 35 U.S.C. 103 should not be based on considerable speculation about the meaning of terms employed in a claim or assumptions that must be made as to the scope of the claims.
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 MICHAEL R BLOCH whose telephone number is (571)270-3252. The examiner can normally be reached M-F 11-8 EST.
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, Robert (Tse) Chen can be reached at (571)272-3672. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL R BLOCH/Primary Examiner, Art Unit 3791
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