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 .
Response to Amendment
The preliminary amendments made to claims 1-6 in the response filed 6/28/24 are acknowledged.
Claims 1-6 are pending in the application and are examined below.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Objections
Claims 1, 3, 4, and 6 are objected to because of the following informalities:
“suspender type wearing tool” in claim 1, line 3 should be amended to recite --suspender wearing tool--
“tight contact” in claim 1, line 8 should be amended to recite --contact--
“the other side” in claim 1, line 12 should be amended to recite --another side--
“the other side” in claim 1, line 17 should be amended to recite --another side--
“a negative pressure frame support hole” in claim 1, lines 20-21 should be amended to recite --the negative pressure frame support hole--
“a pair” in claim 1, line 21 should be amended to recite --the pair--
“tight contact” in claim 1, line 21-22 should be amended to recite --contact--
“the separation” in claim 3, line 9 should be amended to recite --each separation--
“valve 310” in claim 4, line 3 should be amended to recite --valve--
“inner surface” in claim 6, line 3 should be amended to recite --inner surface of--
“is inserted into and installed” in claim 6, line 5 should be amended to recite --installed--
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.
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: automatic negative pressure maintenance device in claim 6.
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. Please see fig. 9 and [55]-[64] of the instant specification.
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 § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-6 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Regarding claim 1, the claim positively recites a back of a body in line 9. Language such as “configured” or “adapted” is suggested to avoid claiming a human organism.
Regarding claims 2-6, the claims are rejected under 35 U.S.C. 101 by virtue of their dependence on claim 1.
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 1-6 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.
Regarding claim 1, the claim recites the limitation “excellent wear comfort” in lines 1-2. The phrase “excellent wear comfort” is a relative phrase which renders the claim indefinite. The term “excellent” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree of what is considered excellent wear comfort, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 3, the claim contains the trademark/trade name Velcro in line 8. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe hook and loop fastener and, accordingly, the identification/description is indefinite.
Regarding claim 6, the claim recites the limitation “the negative pressure head” in line 3. There is insufficient antecedent basis for this limitation in the claim.
Regarding claims 2, 4, and 5, the claims are rejected under 35 U.S.C. 112(b) by virtue of their dependence on claim 1.
Allowable Subject Matter
Claims 1-6 recite allowable subject matter.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding independent claim(s) 1, the prior art of record when applied alone or in combination neither anticipates nor renders obvious a pectus excavatum correction device, the pectus excavatum correction device comprising: a suspender wearing tool comprising: a negative pressure frame support having a negative pressure frame support hole formed in a center thereof and a pair of support belts installed at a front surface thereof so as to intersect each other; a webbing connection bar spaced apart from the negative pressure frame support by a distance in a forward-rearward direction, the webbing connection bar configured to be in contact with a back of a body; a pair of shoulder webbings each having one side connected to a corresponding one of opposite sides of an upper part of the negative pressure frame support and another side connected to a corresponding one of opposite sides of an upper part of the webbing connection bar; a pair of female buckles connected to opposite sides of a lower part of the negative pressure frame support; and a pair of waist webbings each having one side connected to a corresponding one of opposite sides of a lower part of the webbing connection bar and another side coupled to a corresponding one of a pair of male buckles configured to be coupled to the pair of female buckles with one touch; and a negative pressure frame configured to extend through the negative pressure frame support hole and to be pressed by the pair of support belts so as to be supported in contact with pectus excavatum.
Castro US 2011/0172576 A1 and Vitalzentrum DE 20308328 U1 are the closest prior art references from the search to date. Castro discloses a device for correction of pectus excavatum (fig. 6 and [0036]) comprising a suction device 30 (fig. 6 and [0026]) and shoulder straps 44 and belt 34, which secures over the front via singular buckle 36 (fig. 6 and [0023]). However, Castro fails to disclose the arrangement of components required by claim 1 of the instant application, namely, the negative pressure frame support with support belts intersecting each other over the front surface of the negative pressure frame support, the arrangement of webbing connection bar, shoulder webbings, waist webbings, and female and male buckles, and a negative pressure frame within the negative pressure frame support hole that is pressed by the support belts. Further, while Vitalzentrum teaches a clavicle bandage (fig. 1 and p. 5 of translation) that features straps 1/2 that intersect over the padding 3 of the bandage (fig. 1 and p. 5) and a pair of buckles 5/5 (fig. 1 and p. 5), it is not evident to one of ordinary skill in the art exactly how to modify Castro’s device with the strap arrangement of Vitalzentrum to arrive at the claimed invention. Vitalzentrum’s straps 1/2 and pad 3 are free-standing and are not connected in any way to a waist belt, and a modification of Castro to have its shoulder straps 44/44 intersect over the suction device 30 would then result in detachment from the waist belt 34 due to the configuration of Vitalzentrum’s device; it would further be unclear as to how to arrange the pair of Vitalzentrum’s buckles 5/5 when modifying Castro to arrive at the claimed limitations regarding the pair of female and male buckles connecting to a webbing connection bar and a pair of waist webbings. Furthermore, no other reference to date has been found in the prior art that would be able to properly modify Castro and/or Vitalzentrum to address their deficiencies. Dependent claims 2-6 are allowable by virtue of their dependence on independent claim(s) 1.
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Martinez Ferro et al. US 2011/0028875 A1
Idowu et al. US 2014/0336543 A1
Schenk DE 102014012940 A1
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/MICHELLE J LEE/ Primary Examiner, Art Unit 3786