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 .
Status of Claims
2. Claims 7-21 are pending and currently under consideration for patentability under 37 CFR 1.104.
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.
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.
Claim(s) 7-8, 10-11, 13-14, and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Ewing (2015/0351990) in view of Farris et al. (4,665,899).
Regarding claim 7, Ewing discloses a knee joint stimulation device (Fig. 1) comprising:
a swing arm (outer arm 80 and inner arm 82 form a swing arm, see Fig. 2) rotatably supported by a center shaft (horizontal shaft 84, Fig. 2, “motor 144 drives the chain 160, which in turn rotates the horizontal shaft 84 to rotate the actuation arm 26 mounted to the horizontal shaft 84.” See para. [0049]) provided to a frame (the swing arm is “provided to” a case 12, Fig. 1, as it is provided adjacent to the frame) and hanging down from the center shaft (see Figs. 1-2), a length of the swing arm being adjustable (the inner arm 82 and outer arm 80 are telescopic to allow for adjusting the length of the swing arm, see para. [0043]);
a motor (motor 144, Fig. 4) configured to rotate the swing arm about the center shaft (motor 144 drives the chain 160, which in turn rotates the horizontal shaft 84 to rotate the actuation arm 26 mounted to the horizontal shaft 84.” See para. [0049]); and
a support plate unit (end plate 120, Figs. 1-2) provided at a lower end of the swing arm (see Figs. 1-2) and allowing a user in a sitting position to put a sole of the user thereon (end plate 120 is “to serve as a foot support” see the first sentence of [0045], and the user can be seated in seat 14, Fig. 1. Thus, the end plate 120 allows a user in a sitting position to put a sole on it),
wherein the support plate unit (120) is configured, by swinging movement of the swing arm (80, 82) about the center shaft (84), to move the sole resting thereon in a flexion direction or an extension direction about a knee joint of the user (“actuation arm 26 is configured to rotate between a maximum extended position 180 and a maximum flexed position 182 along an arc X (which includes X’ and X’’ as illustrated)″ see Figure 1 and para. [0050]).
Ewing is silent regarding wherein the support plate unit is pivotably attached on a support shaft that horizontally extends from the lower end of the swing arm across a central part of a bottom surface of the support plate unit so as to be pivotable about the support shaft.
Farris teaches a related device for stimulating the knee joint to perform flexion and extension (Fig. 1, the knee joint is articulated see col. 4, lines 44-46), wherein a support plate unit (foot support 24 including rectangular plate 88, unlabeled in Fig. 1, depicted in Fig. 2) is pivotally attached (“The foot is held to a foot support pivotally mounted on the carriage” see col. 2, lines 41-42) on a support shaft (axle 90, Fig. 2 and/or axle 160, Fig. 6; “The ends of axle 90 are journaled in holes in the upper ends of the side pieces 34” see col. 4, lines 57-58) that horizontally extends from a lower end of a leg link (axle 90 indirectly extends horizontally from a lower end of second arm 18, via side piece(s) 34, see Figs. 1-2) across a central part of a bottom surface of the support plate (see Figure 2, the axle 90 is centrally located across rectangular plate 88; see col. 4, lines 54-57) so as to be pivotable about the support shaft (the foot support is pivotable, see col. 2, lines 41-42. This is due to the journaled axle, see col. 4, lines 57-58 and similarly, col. 5, lines 64-67). One of ordinary skill in the art would have recognized that this pivoting foot plate provides an expected result of allowing the user’s foot to provide at least some degree of plantarflexion and dorsiflexion while the knee is articulated, thereby improving user comfort and motion.
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 support plate unit of Ewing to be pivotably attached on a support shaft that horizontally extends from the lower end of the swing arm across a central part of a bottom surface of the support plate unit so as to be pivotable about the support shaft as taught by Farris because this provides an expected result of allowing the user’s foot to provide at least some degree of plantarflexion and dorsiflexion while the knee is articulated, thereby improving user comfort and motion.
Regarding claim 8, the modified Ewing/Farris device discloses wherein the support plate unit (120, Ewing, as modified by Farris) is large enough to hold one sole of the user or to hold both soles of the user side by side (at least one sole of the user is held, see Fig. 1 and the first sentence of [0045] of Ewing).
Regarding claim 10, the modified Ewing/Farris device discloses wherein the support plate unit (120, Ewing, as modified by Farris) is attached to the support shaft (90, Farris) at an attachment angle orthogonal to a lengthwise direction of the swing arm (perpendicular to the lengthwise direction of Ewing’s swing arm, see Figs. 1-2 of Farris), and wherein a stabilizer is provided between the support shaft and the support plate unit (“a torsion spring (not visible in the figures) surrounds the axle 90 and engages the plate 88 to urge the foot support to a predetermined neutral position” see col. 4, lines 61-64 of Farris), and is configured to bias the support plate unit to keep the attachment angle constant (urged to a predetermined neutral angle, see col. 4, lines 61-64 of Farris).
Regarding claim 11, the modified Ewing/Farris device discloses wherein the support plate unit (120, Ewing, as modified by Farris) is attached to the support shaft (90, Farris) at an attachment angle orthogonal to a lengthwise direction of the swing arm (perpendicular to the lengthwise direction of Ewing’s swing arm, see Figs. 1-2 of Farris), and wherein a stabilizer is provided between the support shaft and the support plate unit (“a torsion spring (not visible in the figures) surrounds the axle 90 and engages the plate 88 to urge the foot support to a predetermined neutral position” see col. 4, lines 61-64 of Farris), and is configured to bias the support plate unit to keep the attachment angle constant (urged to a predetermined neutral angle, see col. 4, lines 61-64 of Farris).
Regarding claim 13, the modified Ewing/Farris device discloses wherein the center shaft (84, Fig. 2 of Ewing) is protruded from the swing arm (protrudes at least to the left side of the swing arm as seen in Fig. 2) so as to abut on the pivot point of the knee joint of the user in the sitting position (this is a recitation of intended use. It is noted that the protrusion of the horizontal shaft 84 places the swing arm and locator 124 towards the user’s knee joint. The locator 124 is used “to facilitate alignment of the knee with the horizontal shaft 84” see the last two sentences of [0041] of Ewing. Thus, the center shaft is capable of abutting on the pivot point of the knee joint of the user, as the locator 124 is aligned with the pivot point of the user and they would be able to lean their knee against the locator) and putting the sole on the support plate unit (the user’s sole can be placed on support plate unit 120 of Ewing), such that the support plate unit is configured to move the sole in the flexion direction or the extension direction about the knee joint with the center shaft being aligned with the pivot point of the knee joint (aligned via locator 124, see the last two sentences of [0041] of Ewing).
Regarding claim 14, the modified Ewing/Farris device discloses wherein the center shaft (84, Fig. 2 of Ewing) is protruded from the swing arm (protrudes at least to the left side of the swing arm as seen in Fig. 2) so as to abut on the pivot point of the knee joint of the user in the sitting position (this is a recitation of intended use. It is noted that the protrusion of the horizontal shaft 84 places the swing arm and locator 124 towards the user’s knee joint. The locator 124 is used “to facilitate alignment of the knee with the horizontal shaft 84” see the last two sentences of [0041] of Ewing. Thus, the center shaft is capable of abutting on the pivot point of the knee joint of the user, as the locator 124 is aligned with the pivot point of the user and they would be able to lean their knee against the locator) and putting the sole on the support plate unit (the user’s sole can be placed on support plate unit 120 of Ewing), such that the support plate unit is configured to move the sole in the flexion direction or the extension direction about the knee joint (“actuation arm 26 is configured to rotate between a maximum extended position 180 and a maximum flexed position 182 along an arc X (which includes X’ and X’’ as illustrated)″ see Figure 1 and para. [0050] of Ewing) with the center shaft being aligned with the pivot point of the knee joint (aligned via locator 124, see the last two sentences of [0041] of Ewing).
Regarding claim 19, the modified Ewing/Farris device discloses wherein the support shaft (90, Figs. 1-2 of Farrell) is provided below the bottom surface of the support plate unit (“rectangular plate 88 having a laterally extending axle 90 secured to the underside thereof” see col. 4, lines 54-57 and Figs. 1-2 of Farris).
Regarding claim 20, the modified Ewing/Farris device discloses wherein the support plate unit (120, Ewing, as modified by Farris) is pivotably provided at the lower end of the swing arm (pivotable about axle 90, Figs. 1-2 of Farris). The modified device as currently combined has a bias member (torsion spring, col. 4, lines 61-64 of Farris) and thus is silent regarding being without a bias member that biases the support plate unit with respect to the swing arm about the support shaft in a direction to move the ankle joint in the dorsiflexion direction.
However, it is noted that omission of an element has been held obvious if its function is not desired (MPEP 2144.04(II)(A)), and the omission of Farris’ torsion spring would provide an expected result that the foot plate is freely pivotable as opposed to having an urge towards a neutral position. This would be desirable for at least some users, as the lack of the torsion spring would allow the user greater control over the amount of plantarflexion and/or dorsiflexion that they provide to the foot support plate during the rehabilitation movements.
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 support plate unit of Ewing/Farris to omit the torsion spring and thus be without a bias member that biases the support plate unit with respect to the swing arm about the support shaft in a direction to move the ankle joint in the dorsiflexion direction, since omission of an element has been held obvious if its function is not desired and because omitting the torsion spring provides an expected result of a freely pivotable foot platform that would be desirable for at least some users, as the lack of the torsion spring would allow the user greater control over the amount of plantarflexion and/or dorsiflexion that they provide to the foot support plate during the rehabilitation movements.
Regarding claim 21, the modified Ewing/Farris device discloses wherein the length of the swing arm (80, 82, Ewing) is configured to be adjusted (the inner arm 82 and outer arm 80 are telescopic to allow for adjusting the length of the swing arm, see para. [0043] of Ewing) such that a pivot point of a knee joint of the user in the sitting position and putting the sole on the support plate unit is aligned with the center shaft (this is a recitation of intended use, and adjusting the length of the swing arm would help align the user’s knee with the locator 124 of Ewing).
Claim(s) 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Ewing (2015/0351990) in view of Farris et al. (4,665,899) as applied to claims 7-8 above, and further in view of Blanchard et al. (5,454,773).
Regarding claim 16, the modified Ewing/Farris device discloses wherein the support plate unit (120, Ewing, as modified by Farris) is provided at the lower end of the swing arm (see Figs. 1-2 of Ewing) and allowing the user in the sitting position (in seat 14, Fig. 1 of Ewing) to put the sole of the user thereon (support plate unit 120 is a foot support). The modified Ewing/Farris device discloses a pair of members that sandwich a portion of a lower limb (102, 104, Figs. 1-2 of Ewing) and thus is silent regarding being without a pair of members that sandwiches therebetween a portion of a lower limb of the user below the knee joint.
Blanchard teaches a related knee joint stimulation device (Fig. 1) wherein the lower end of the swing arm (arm 32, Fig. 1) includes a patient engaging member (34, Fig. 1) which is a singular cuff that would wrap around the user’s leg, rather than being a pair of members that sandwich a user’s leg. This is a known alternative to the sandwiching members (102, 104) of Ewing, and would be expected to perform substantially the same.
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 sandwiching pads (102, 104) of Ewing/Farris to be replaced with a single patient engaging cuff as taught by Blanchard because this is a simple substitution of one known lower leg engaging member for another lower leg engaging member, and would provide expected results of coupling the swing arm to the patient’s leg.
Regarding claim 17, the modified Ewing/Farris device discloses wherein the support plate unit (120, Ewing, as modified by Farris) is provided at the lower end of the swing arm (see Figs. 1-2 of Ewing) and allowing the user in the sitting position (in seat 14, Fig. 1 of Ewing) to put the sole of the user thereon (support plate unit 120 is a foot support). The modified Ewing/Farris device discloses a pair of members that sandwich a portion of a lower limb (102, 104, Figs. 1-2 of Ewing) and thus is silent regarding being without a pair of members that sandwiches therebetween a portion of a lower limb of the user below the knee joint.
Blanchard teaches a related knee joint stimulation device (Fig. 1) wherein the lower end of the swing arm (arm 32, Fig. 1) includes a patient engaging member (34, Fig. 1) which is a singular cuff that would wrap around the user’s leg, rather than being a pair of members that sandwich a user’s leg. This is a known alternative to the sandwiching members (102, 104) of Ewing, and would be expected to perform substantially the same.
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 sandwiching pads (102, 104) of Ewing/Farris to be replaced with a single patient engaging cuff as taught by Blanchard because this is a simple substitution of one known lower leg engaging member for another lower leg engaging member, and would provide expected results of coupling the swing arm to the patient’s leg.
Claim(s) 9, 12, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Ewing (2015/0351990) in view of Farris et al. (4,665,899) and Hasler (DE 19531833).
Regarding claim 9, Ewing discloses a knee joint stimulation device (Fig. 1, Fig. 14) comprising:
a pair of swing arms (outer arm 80 and inner arm 82 form a swing arm, see Fig. 2. There may be a pair of these swing arms as seen in Fig. 14) rotatably supported by a center shaft (horizontal shaft 84, Fig. 2, “motor 144 drives the chain 160, which in turn rotates the horizontal shaft 84 to rotate the actuation arm 26 mounted to the horizontal shaft 84.” See para. [0049]) provided to a frame (the swing arm is “provided to” a case 12, Fig. 1, as it is provided adjacent to the frame) and hanging down from the center shaft (see Figs. 1-2), a length of the swing arms being adjustable (the inner arm 82 and outer arm 80 are telescopic to allow for adjusting the length of the swing arm, see para. [0043]);
a motor (motor 144, Fig. 4) configured to rotate the swing arm about the center shaft (motor 144 drives the chain 160, which in turn rotates the horizontal shaft 84 to rotate the actuation arm 26 mounted to the horizontal shaft 84.” See para. [0049]); and
a pair of support plate units (end plate 120, Figs. 1-2. There may be a pair of these support plates as seen in Fig. 14) provided at lower ends of the swing arms (see Figs. 1-2, Fig. 14) and allowing a user in a sitting position to put soles of the user thereon (end plate 120 is “to serve as a foot support” see the first sentence of [0045], and the user can be seated in seat 14, Fig. 1. Thus, the end plate 120 allows a user in a sitting position to put a sole on each end plate),
wherein the support plate units (120) are configured, by swinging movement of the swing arms (80, 82) about the center shaft (84), to move the soles resting thereon in a flexion direction or an extension direction about knee joints of the user (“actuation arm 26 is configured to rotate between a maximum extended position 180 and a maximum flexed position 182 along an arc X (which includes X’ and X’’ as illustrated)″ see Figure 1, Fig. 14, and para. [0050]).
Ewing is silent regarding the pair of swing arms hanging down from both sides of the center shaft, with a (single) motor configured to rotate the swing arms about the center shaft; and wherein the support plate units are pivotably attached on support shafts that horizontally extend from the lower ends of the swing arms across central parts of bottom surfaces of the support plate units so as to be pivotable about the support shafts.
Farris teaches a related device for stimulating the knee joint to perform flexion and extension (Fig. 1, the knee joint is articulated see col. 4, lines 44-46), wherein a support plate unit (foot support 24 including rectangular plate 88, unlabeled in Fig. 1, depicted in Fig. 2) is pivotally attached (“The foot is held to a foot support pivotally mounted on the carriage” see col. 2, lines 41-42) on a support shaft (axle 90, Fig. 2 and/or axle 160, Fig. 6; “The ends of axle 90 are journaled in holes in the upper ends of the side pieces 34” see col. 4, lines 57-58) that horizontally extends from a lower end of a leg link (axle 90 indirectly extends horizontally from a lower end of second arm 18, via side piece(s) 34, see Figs. 1-2) across a central part of a bottom surface of the support plate (see Figure 2, the axle 90 is centrally located across rectangular plate 88; see col. 4, lines 54-57) so as to be pivotable about the support shaft (the foot support is pivotable, see col. 2, lines 41-42. This is due to the journaled axle, see col. 4, lines 57-58 and similarly, col. 5, lines 64-67). One of ordinary skill in the art would have recognized that this pivoting foot plate provides an expected result of allowing the user’s foot to provide at least some degree of plantarflexion and dorsiflexion while the knee is articulated, thereby improving user comfort and motion.
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 support plate unit of Ewing to be pivotably attached on a support shaft that horizontally extends from the lower end of the swing arm across a central part of a bottom surface of the support plate unit so as to be pivotable about the support shaft as taught by Farris because this provides an expected result of allowing the user’s foot to provide at least some degree of plantarflexion and dorsiflexion while the knee is articulated, thereby improving user comfort and motion.
The modified Ewing/Farris device is silent regarding the pair of swing arms hanging down from both sides of the center shaft, with the motor configured to rotate the swing arms about the center shaft.
Hasler teaches a related knee joint stimulation device (Figs. 1-4) having a pair of swing arms hanging down from both sides of a center shaft (“swivel arms 29, 30 are articulated on both sides of the swivel arrangement 12” see Figs. 1-4 and the fifth paragraph of page 6 of the English translation. Each swivel arm 29, 30, has a horizontal portion along axis 13 that is considered a center shaft), with a motor (loading device 36, Fig. 1) configured to rotate the pair of swing arms (29, 30) about the center shaft (each swing arm 29, 30, is rotated about the axis 13 as seen by the rotational arrows in Fig. 1. This is along the horizontal portion that is considered the center shaft). This provides an expected result that the drive can exercise two of the user’s legs at once, with a single actuation system.
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 motor and swing arms of Ewing/Farris to have the pair of swing arms hanging down from both sides of the center shaft, with the motor configured to rotate the swing arms about the center shaft as taught by Hasler because this configuration will allow the user to have both legs exercised by a single device, rather than needing to arrange a pair of drive units on either side of their body.
Regarding claim 12, the modified Ewing/Farris/Hasler device discloses wherein the support plate units (120, Ewing, as modified by Farris) are attached to the support shafts (90, Farris) at an attachment angle orthogonal to a lengthwise direction of the swing arms (perpendicular to the lengthwise direction of Ewing’s swing arm, see Figs. 1-2 of Farris), and wherein stabilizers are provided between the support shafts and the support plate units (“a torsion spring (not visible in the figures) surrounds the axle 90 and engages the plate 88 to urge the foot support to a predetermined neutral position” see col. 4, lines 61-64 of Farris), and are configured to bias the support plate units to keep the attachment angle constant (urged to a predetermined neutral angle, see col. 4, lines 61-64 of Farris).
Regarding claim 15, the modified Ewing/Farris/Hasler device discloses wherein the center shaft (84, Fig. 2 of Ewing) is protruded from the swing arms (protrudes at least towards the central frame as seen in Fig. 2 of Ewing, Fig. 1 of Hasler) so as to abut on the pivot points of the knee joints of the user in the sitting position (this is a recitation of intended use. It is noted that the protrusion of the horizontal shaft 84 of Ewing, and the corresponding horizontal portions of 29, 30, in Fig. 1 of Hasler, places the swing arm and locator 124 towards the user’s knee joint. The locator 124 is used “to facilitate alignment of the knee with the horizontal shaft 84” see the last two sentences of [0041] of Ewing. Thus, the center shaft is capable of abutting on the pivot point of the knee joint of the user, as the locator 124 is aligned with the pivot point of the user and they would be able to lean their knee against the locator) and putting the soles on the support plate units (the user’s sole can be placed on support plate unit 120 of Ewing), such that the support plate units are configured to move the soles in the flexion direction or the extension direction about the knee joints (“actuation arm 26 is configured to rotate between a maximum extended position 180 and a maximum flexed position 182 along an arc X (which includes X’ and X’’ as illustrated)″ see Figure 1 and para. [0050] of Ewing) with the center shaft being aligned with the pivot points of the knee joints (aligned via locator 124, see the last two sentences of [0041] of Ewing).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Ewing (2015/0351990) in view of Farris et al. (4,665,899) and Hasler (DE 19531833) as applied to claim 9 above, and further in view of Blanchard et al. (5,454,773).
Regarding claim 18, the modified Ewing/Farris/Hasler device discloses wherein the support plate units (120, Ewing, as modified by Farris) are provided at the lower ends of the swing arms (see Figs. 1-2 of Ewing) and allowing the user in the sitting position (in seat 14, Fig. 1 of Ewing) to put the soles of the user thereon (support plate unit 120 is a foot support). The modified Ewing/Farris device discloses a pair of members that sandwich a portion of a lower limb (102, 104, Figs. 1-2 of Ewing) and thus is silent regarding being without a pair of members that sandwiches therebetween a portion of a lower limb of the user below the knee joint.
Blanchard teaches a related knee joint stimulation device (Fig. 1) wherein the lower end of the swing arm (arm 32, Fig. 1) includes a patient engaging member (34, Fig. 1) which is a singular cuff that would wrap around the user’s leg, rather than being a pair of members that sandwich a user’s leg. This is a known alternative to the sandwiching members (102, 104) of Ewing, and would be expected to perform substantially the same.
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 sandwiching pads (102, 104) of Ewing/Farris/Hasler to be replaced with a single patient engaging cuff as taught by Blanchard because this is a simple substitution of one known lower leg engaging member for another lower leg engaging member, and would provide expected results of coupling the swing arm to the patient’s leg.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 7-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of U.S. Patent No. 11,389,365 in view of Ewing (2015/0351990), Farris et al. (4,665,899), Hasler (DE 19531833), and Blanchard et al. (5,454,773).
Instant claims 7-21 are broader versions of claims 1-6 of U.S. Patent No. 11,389,365. For example, instant claims 7-21 omit features from patented claim 1 such as “a base; a frame provided upright on the base … a crank connecting a motor and the center shaft and configured to be driven by rotation of the motor, to rotate the center shaft … thereby an ankle joint is caused to move in a plantarflexion direction and a dorsiflexion direction” etc.
Furthermore, to any extent that instant claims 7-21 recite any limitations that are not disclosed by claims 1-6 of U.S. Patent No. 11,389,365, these limitations are taught by Ewing, Farris, Hasler, and/or Blanchard as described in the 35 USC 103 rejection(s) above and would merely provide expected results.
Claims 7-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12,059,382 in view of Ewing (2015/0351990), Farris et al. (4,665,899), Hasler (DE 19531833), and Blanchard et al. (5,454,773).
Instant claims 7-21 are broader versions of claims 1-16 of U.S. Patent No. 12,059,382. For example, instant claims 7-21 omit features from patented claim 1 such as “a base; a frame provided upright on the base … a crank connecting a motor and the center shaft and configured to be driven by rotation of the motor, to rotate the center shaft … support shaft that horizontally extends in the widthwise direction from the lower end of the swing arm across a central part of a bottom surface… to pivotally follow the movement of the sole …thereby an ankle joint is caused to move in a plantarflexion direction and a dorsiflexion direction” etc.
Furthermore, to any extent that instant claims 7-21 recite any limitations that are not disclosed by claims 1-16 of U.S. Patent No. 12,059,382, these limitations are taught by Ewing, Farris, Hasler, and/or Blanchard as described in the 35 USC 103 rejection(s) above and would merely provide expected results.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Brockman (2,641,250) discloses a foot support unit with a support shaft that allows the foot to pivot in plantarflexion/dorsiflexion motion. Gillmeier (2,616,416) discloses a foot support unit with a support shaft that allows the foot to pivot in plantarflexion/dorsiflexion motion. Piller (3,525,522) discloses a foot support unit with a support shaft that allows the foot to pivot in plantarflexion/dorsiflexion motion. Beny et al. (2006/0211957) discloses a knee joint stimulation device with a foot support unit that has a support shaft that allows the foot to pivot in plantarflexion/dorsiflexion motion. Turner (2002/0193210) discloses a leg exercising device with a foot support unit that has a support shaft that allows the foot to pivot in plantarflexion/dorsiflexion motion. Branch et al. (2003/0120186) discloses a related knee joint stimulation device with a foot support unit that has a support shaft that allows the foot to pivot in plantarflexion/dorsiflexion motion. Chen (2015/0165255) discloses a related knee joint stimulation device with a pair of swing arms that connect to foot support units to move through flexion/extension motion. Donohue et al. (2015/0051520) discloses a related leg rehabilitation device with a foot support having a hinge assembly to allow the user’s foot to pivot in plantarflexion/dorsiflexion motion to correspond to normal flexure and extension of the human foot during exercise. Carlson et al. (4,776,587) discloses a related knee joint stimulation device with a swing arm that rotates through flexion/extension and couples to one or two legs of the user. Pecheux (4,323,060) discloses a related knee joint stimulation device with an adjustable angle for the foot plate to pivot. Simmons (8,615,301) discloses a related knee joint stimulation device in which the foot plate pivots to a plantarflexion position as the user extends their knee, and the foot plate pivots to a dorsiflexion position as the user flexes their knee.
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/CHRISTOPHER E MILLER/Examiner, Art Unit 3785
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