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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on July 13, 2026, has been entered.
As directed by the amendment: Claims 18-19, 32-35, and 37 were amended. Claim 36 was canceled. Claims 1-23, 30-35, and 37 are pending and currently under consideration for patentability under 37 CFR 1.104.
Election/Restrictions
Applicant’s election without traverse of Invention 2 and Species I in the reply filed on March 24, 2025, is acknowledged.
Claims 1-17, 20-23, and 30-31 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and species, there being no allowable generic or linking claim.
Claim Rejections - 35 USC § 103
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 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 18-19, 32-35, and 37 are rejected under 35 U.S.C. 103 as being unpatentable over Thor et al. (2018/0333285) in view of Mance (5,257,969).
Regarding claim 18, Thor discloses a method of providing dorsiflexion support to a user (“by appropriately tensioning support strap 408, one may provide for sufficient dorsi-flexion support” see lines 16-18 of [0093]), the method comprising:
providing a dynamic sock (orthosis 400, Fig. 4A, “is manufactured as a sock” see the second sentence of [0092]. Since the sock has a tension band 408 for a therapeutic purpose, it is considered a dynamic sock) including a main body section (the body of the sock) and a tension band (tensioning support strap 408, Fig. 4A) integrated into the main body section of the dynamic sock (“Ankle strap 410 may be fixedly secured to the sock” … and “Support strap 408 may be fixedly secured adjacent to the foot support 414 of the sock” see the last sentence of [0093], the first sentence of [0094] and Fig. 4A. Thus, the strap 408 is integrated into the main body of the sock, by being directly connected to the main body of the sock) to define a band path (strap 408 is coupled to the sock via strap(s) 402, 410, and support structure 404 and attachment point 406, Fig. 4A; see para. [0092]), (i) the main body section of the dynamic sock configured to cover and surround at least a portion of a foot and a lower leg of the user (the orthosis 400 “is manufactured as a sock” see the second sentence of [0092]. The main body of the sock is configured to cover and surround at least a portion of a foot and lower leg, see Figs. 4A-4F), and (ii) the band path joining over metatarsals of the user in a third section (see third section 30, annotated Fig. A below. Note, Thor states the plurality of tensioning straps and supporting structures may be manufactured as a unitary component, see the last sentence of [0088]. Although this is stated with reference to Fig. 3A, one of ordinary skill in the art would have understood that the tensioning straps and structures in the Figs. 4A-4F orthosis may be similarly made unitary), extends superiorly over a front of an ankle of the user in a fourth section (see fourth section 40, annotated Fig. A below), and extends medially and laterally around a calf of the user to join in an upper calf region of the user in a fifth section (see fifth section 50, annotated Fig. A below. Thor states the plurality of tensioning straps and supporting structures may be manufactured as a unitary component, see the last sentence of [0088]), wherein the band path does not extend under or around the heel of the user (the path of strap 408 does not extend under or around the heel of the user); and
increasing tension for dorsiflexion of a forefoot with the tension band (“support strap may include one or more of a tensioning cable … [and] by appropriately tensioning support strap 408, one may provide for sufficient dorsi-flexion support” see lines 14-18 of [0093]).
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Annotated Figure A (from Fig. 4A of Thor): Thor discloses a tension band (408, which may be formed as a unitary component with the additional straps and support structures) that joins over metatarsals of the user in a third section (30), extends superiorly over a front of an ankle of the user in a fourth section (40), and extends medially and laterally around a calf of the user (as the strap wraps around the calf) to join in an upper calf region of the user in a fifth section (50).
Thor states the foot support (414) “may be placed on the medial (and/or lateral side) of the foot (e.g., adjacent to the metatarsal region) … [to provide] additional eversion (and/or inversion) support” (see para. [0094]), but is silent regarding the band path extending from a first section under metatarsal heads and toes of the user, and extending superiorly, medially and laterally in a second section.
Mance teaches a related dorsiflexion support device for the foot (Fig. 1, Fig. 4; see col. 5, lines 50-52) wherein a tensioning band (foot support 10 includes elastic straps 34, 36, see Fig. 1) includes a pocket (pouch 18, Fig. 1) extending from a first section under metatarsal heads and toes of the user (the lower surface of the pouch 18 will be under metatarsal heads and toes of the user as their toes and metatarsophalangeal joints are inserted into the pouch, see Figs. 1-6 and col. 4, lines 50-54), and extending superiorly, medially and laterally in a second section (the medial, lateral, and upper surfaces of the pouch 18, Fig. 1). This configuration “serve[s] the function[] of assisting dorsiflexion of the ankle and foot, assisting inversion and eversion of the foot and assisting extension of the metatarsophalangeal joints of the first through fifth digits” (see col. 6, lines 31-37).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the tension band of Thor to include a first section under metatarsal heads and toes of the user, and extending superiorly, medially and laterally in a second section as taught by Mance because the pouch configuration would be expected to assist extension of the metatarsophalangeal joints of the first through fifth digits.
Furthermore, although the pouch taught by Mance (18) is illustrated as a distinct structure from the tension band, it is reiterated that Thor generally teaches the plurality of tensioning straps and supporting structures may be manufactured as a unitary component (see the last sentence of [0088]). Additionally, it has been held that the use of a one piece construction instead of [multiple components] would be merely a matter of obvious engineering choice (see MPEP 2144.04(V)(B)).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the pouch and tensioning band of Thor/Mance to be a unitary tensioning structure, since such a one piece construction would merely provide expected results of the tension band assisting extension of the toes and since such a change has been held to be a matter of obvious engineering choice. Thus, in the modified device, the band path extends from the first and second sections (taught by Mance’s pouch 18), through the third, fourth, and fifth sections (disclosed by Thor).
Regarding claim 19, Thor discloses a method of providing dorsiflexion support to a user (“by appropriately tensioning support strap 408, one may provide for sufficient dorsi-flexion support” see lines 16-18 of [0093]), the method comprising:
providing a dynamic sock (orthosis 400, Fig. 4A, “is manufactured as a sock” see the second sentence of [0092]. Since the sock has a tension band 408 for a therapeutic purpose, it is considered a dynamic sock) including a main body section (the body of the sock) and a tension band (tensioning support strap 408, Fig. 4A) coupled to or integrated into the main body section (“Ankle strap 410 may be fixedly secured to the sock” … and “Support strap 408 may be fixedly secured adjacent to the foot support 414 of the sock” see the last sentence of [0093], the first sentence of [0094] and Fig. 4A. Thus, the strap 408 is at least coupled to or integrated into the main body of the sock, by being directly connected to the main body of the sock) to define a band path (strap 408 is coupled to the sock via strap(s) 402, 410, and support structure 404 and attachment point 406, Fig. 4A; see para. [0092]), (i) the main body section configured to cover at least a portion of a foot and a lower leg of the user (the orthosis 400 “is manufactured as a sock” see the second sentence of [0092]. The main body of the sock is configured to cover at least a portion of a foot and lower leg, see Figs. 4A-4F), and (ii) the band path extends over a superior aspect of metatarsals of the user in a third section (see third section 30, annotated Fig. A above. Note, Thor states the plurality of tensioning straps and supporting structures may be manufactured as a unitary component, see the last sentence of [0088]. Although this is stated with reference to Fig. 3A, one of ordinary skill in the art would have understood that the tensioning straps and structures in the Figs. 4A-4F orthosis may be similarly made unitary), extends superiorly over a front of an ankle of the user in a fourth section (see fourth section 40, annotated Fig. A above), and extends medially and laterally around a calf of the user to join in an upper calf region of the user in a fifth section (see fifth section 50, annotated Fig. A above. Thor states the plurality of tensioning straps and supporting structures may be manufactured as a unitary component, see the last sentence of [0088]), wherein the band path does not extend under or around the heel of the user (the path of strap 408 does not extend under or around the heel of the user); and
increasing tension for dorsiflexion of a forefoot with the tension band (“support strap may include one or more of a tensioning cable … [and] by appropriately tensioning support strap 408, one may provide for sufficient dorsi-flexion support” see lines 14-18 of [0093]).
Thor states the foot support (414) “may be placed on the medial (and/or lateral side) of the foot (e.g., adjacent to the metatarsal region) … [to provide] additional eversion (and/or inversion) support” (see para. [0094]), but is silent regarding the band path extending from a first section under all toes of the user, extends superiorly over a top of all toes in a second section; and increasing tension for dorsiflexion of the toes.
Mance teaches a related dorsiflexion support device for the foot (Fig. 1, Fig. 4; see col. 5, lines 50-52) wherein a tensioning band (foot support 10 includes elastic straps 34, 36, see Fig. 1) includes a pocket (pouch 18, Fig. 1) extending from a first section under all toes of the user (the lower surface of the pouch 18 will be under all the toes of the user as their toes and metatarsophalangeal joints are inserted into the pouch, see Figs. 1-6 and col. 4, lines 50-54), and extends superiorly over a top of all toes in a second section (the medial, lateral, and upper surfaces of the pouch 18, Fig. 1). This configuration “serve[s] the function[] of assisting dorsiflexion of the ankle and foot, assisting inversion and eversion of the foot and assisting extension of the metatarsophalangeal joints of the first through fifth digits” (see col. 6, lines 31-37). Thus, the tension band increases dorsiflexion of the forefoot and toes.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the tension band of Thor to include a first section under all toes of the user, and extends superiorly over a top of all toes in a second section as taught by Mance because the pouch configuration would be expected to assist extension of the metatarsophalangeal joints of the first through fifth digits.
Furthermore, although the pouch taught by Mance (18) is illustrated as a distinct structure from the tension band, it is reiterated that Thor generally teaches the plurality of tensioning straps and supporting structures may be manufactured as a unitary component (see the last sentence of [0088]). Additionally, it has been held that the use of a one piece construction instead of [multiple components] would be merely a matter of obvious engineering choice (see MPEP 2144.04(V)(B)).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the pouch and tensioning band of Thor/Mance to be a unitary tensioning structure, since such a one piece construction would merely provide expected results of the tension band assisting extension of the toes and since such a change has been held to be a matter of obvious engineering choice. Thus, in the modified device, the band path extends from the first and second sections (taught by Mance’s pouch 18), through the third, fourth, and fifth sections (disclosed by Thor), and increases tension for dorsiflexion of a forefoot and the toes with the tension band.
Regarding claim 32, the modified Thor/Mance method discloses further comprising imparting a compressive force against the portion of the foot and the lower leg of the user with the main body section (Thor states that “the sock is manufactured so as to have a high stretch in the horizontal direction (e.g., across the foot, etc.), and a lesser amount of stretch in the vertical direction (e.g., along the skin) … the low stretch in the vertical direction assists in providing the requisite support to enable sufficient dorsi-flexion support for the user” see lines 4-11 of [0092], and this “limited ability to stretch in the longitudinal direction … [maintains] appropriate amount of tension when tension is applied” see para. [0078], “to ensure proper stability of the dorsi flexion support strap/cable” see the last sentence of [0098]. Thus, the limited stretch imparts a compressive force to ensure stability of the dorsi flexion strap/cable and enable sufficient dorsi-flexion support).
Regarding claim 33, the modified Thor/Mance method discloses further comprising imparting a compressive force against the portion of the foot and the lower leg of the user with the main body section (Thor states that “the sock is manufactured so as to have a high stretch in the horizontal direction (e.g., across the foot, etc.), and a lesser amount of stretch in the vertical direction (e.g., along the skin) … the low stretch in the vertical direction assists in providing the requisite support to enable sufficient dorsi-flexion support for the user” see lines 4-11 of [0092], and this “limited ability to stretch in the longitudinal direction … [maintains] appropriate amount of tension when tension is applied” see para. [0078], “to ensure proper stability of the dorsi flexion support strap/cable” see the last sentence of [0098]. Thus, the limited stretch imparts a compressive force to ensure stability of the dorsi flexion strap/cable and enable sufficient dorsi-flexion support).
Regarding claim 34, the modified Thor/Mance method does not specifically state wherein a compression value of the tension band is greater than the main body section. However, the compression of the main body section (limited stretch in vertical direction) is primarily to maintain the tension band in proper position and stability, and the compression applied by the tension band is adjustable by a rotary tensioning dial to provide dorsiflexion support (rotary tensioning dial 104, see Fig. 1A and para. [0076] of Thor, and see lines 14-18 of [0093]).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the adjustable tensioning of the tension band of Thor/Mance to have the compression value of the tension band to be greater than the main body section because this will help provide additional dorsiflexion support, and since it has been held that where the general conditions of a claim are disclosed in the prior art (an adjustable tension band to provide dorsiflexion support, integrated into a sock), discovering the optimum or workable ranges (the compression value of the tension band being greater than the main body section) involves only routine skill in the art. See MPEP 2144.05.
Regarding claim 35, the modified Thor/Mance method discloses wherein the compression value of the tension band is greater than the main body section (as stated in the claim 34 rejection statement above), but does not specifically state wherein the compression value of the main body section is about 8 mmHg to about 15 mmHg inclusive, and the compression value of the tension band is about 15 mmHg to about 20 mmHg, inclusive.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the adjustable tensioning of the tension band and the degree of compression of the sock of Thor/Mance to have the compression value of the main body section is about 8 mmHg to about 15 mmHg inclusive, and the compression value of the tension band is about 15 mmHg to about 20 mmHg, inclusive because this will help provide additional dorsiflexion support, and since it has been held that where the general conditions of a claim are disclosed in the prior art (an adjustable tension band to provide dorsiflexion support, integrated into a sock that has different degrees of stretching/compression), discovering the optimum or workable ranges (the compression value of the main body section is about 8 mmHg to about 15 mmHg inclusive, and the compression value of the tension band is about 15 mmHg to about 20 mmHg, inclusive) involves only routine skill in the art. See MPEP 2144.05.
Regarding claim 37, the modified Thor/Mance method discloses wherein the tension band (408 of Thor, as modified by Mance) is adapted to maintain the foot in a dorsiflexed position (“applying tension to a support strap in order to place the user's foot into a neutral to slight dorsiflexion” see para. [0029] of Thor).
Response to Arguments
Applicant's arguments filed July 13, 2026, have been fully considered but they are not persuasive.
Regarding the argument that the proposed combination of Beckwith/Thor does not teach the method recited in claim 18, as Beckwith is not integrated into the main body section of a dynamic sock, is external to any attire that may be worn by the user, and Beckwith’s tension member is inelastic (see the first full paragraph of page 10 of the Remarks), this argument has been considered but it is moot because Beckwith is no longer relied upon in the current rejection(s).
Regarding the argument that Beckwith does not include a first section that is under metatarsal heads and toes of the user (see the last paragraph of page 10 of the Remarks), this argument has been considered but it is moot because Beckwith is no longer relied upon in the current rejection(s).
Regarding the argument that Thor’s tensioning band 408 may be routed on the top of the foot, which effectively teaches away from the method recited in claim 18, wherein a tension band is provided that increases tension for dorsiflexion of a forefoot by including a first section that is under metatarsal heads and toes of the user (see the first paragraph of page 11 of the Remarks), this argument is not persuasive.
First, a “teaching away” requires a reference to actually criticize, discredit, or otherwise discourage investigation into the claimed solution. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Furthermore, it is noted that "[w]e will not read into a reference a teaching away from a process where no such language exists." DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006).” In the instant case, there is no language in Thor that actually criticizes, discredits, or discourages the use of a tension band that would include a section under metatarsal heads and toes of the user.
Second, Thor has now been used as the primary reference and is modified by Mance to teach a dorsiflexion assistance device with a first section that is under metatarsal heads and toes of the user.
Regarding the argument that the proposed combination of Beckwith and Thor fails to render claim 18 obvious because it would not motivate a skilled practitioner to provide an elastic band integrated into a sock that is able to deliver a force that advantageously increases tension for dorsiflexion of a forefoot in a first section that is under metatarsal heads and toes of the user (see the last two lines of page 11 of the Remarks, through the first paragraph of page 12), this argument is not persuasive.
First, in response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., an “elastic” band) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Second, Beckwith is no longer relied upon. Instead, Thor is the primary reference, and Mance teaches a dorsiflexion assistance device with a first section that is under metatarsal heads and toes of the user
Regarding the argument that Cropper does not teach a force analogous to the force generated by Applicant’s dynamic sock (see the last two paragraphs of page 12 of the Remarks, through the first paragraph of page 13), this argument has been considered but it is moot because Cropper is no longer relied upon in the current rejection(s).
Regarding the argument that Thor’s tensioning band 408 may be routed on the top of the foot, which effectively teaches away from the method recited in claim 19, wherein a tension band is provided that increases tension for dorsiflexion of a forefoot by including a first section that is under all toes of the user (see the second paragraph of page 13 of the Remarks, through page 14), this argument is not persuasive.
First, a “teaching away” requires a reference to actually criticize, discredit, or otherwise discourage investigation into the claimed solution. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Furthermore, it is noted that "[w]e will not read into a reference a teaching away from a process where no such language exists." DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006).” In the instant case, there is no language in Thor that actually criticizes, discredits, or discourages the use of a tension band that would include all toes of the user.
Second, Thor has now been used as the primary reference and is modified by Mance to teach a dorsiflexion assistance device with a first section that is under metatarsal heads and toes of the user.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Heaney (4,239,982) discloses a related tensioning band that is applied between the calf and the foot to help provide dorsi-flexion. Bergmann et al. (5,776,090) discloses a related tensioning device that is applied between the calf and the toes to help provide dorsi-flexion. Mattson (11,338,173) discloses a related foot strengthening device with a tensioning band that is applied between the calf and the toes. Fisher (7,354,413) discloses a related tensioning band that is applied between the calf and the toes to help provide dorsi-flexion.
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/CHRISTOPHER E MILLER/ Examiner, Art Unit 3785
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