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 .
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 2-4, 7-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 6338723 to Carpenter et al. (hereinafter Carpenter, cited in IDS dated 9/16/24) in view of US 20040221370 to Hannula et al. (hereinafter Hannula, cited in IDS dated 9/16/24).
Regarding Claim 2, Carpenter discloses a method of securing a band around a portion of a user's body (Col 3:13-24, Figs. 22-26), the method comprising:
wrapping the band around the portion of the user's (Col 3:13-24 including “The compression device according to the invention provides a band for applying compression to an object such as a part of the body, and a system for measuring the compression provided by the device so that a prescribed or desired compression can be easily applied to the body part”, Col 20:45-53, Figs. 22-26 see also Col 19:11-19, Col 20:8-45), wherein the band comprises:
an elastic segment (61 Figs. 22-23, 70 Figs. 24-26, Col 11:31-41, Col 20:1-7 see also Col 3:13-41, Figs. 27-28) having a first end and a second end opposite the first end, the elastic segment having a first length when in an unstretched state (Col 20:25-45 including “is initially wrapped only loosely so that no compression is applied to the body part”, Figs. 22-26; the bands 61 and 70 each have a first end and a second end on opposite sides of the longitudinal axis); and
a first indicator and a second indicator (figs. 22-26 and annotated versions below including different pressures for each circumference, Col 19:20-28, Col 19:51-56, Col 20:8-24), the first indicator and second indicator spaced apart from one another and positioned along the elastic segment (figs. 22-26 see spacing between different pressures for the same circumference, Col 19:20-28, Col 19:51-56, Col 20:8-24 see also Col 20:54-67; The lower pressure is closer to closer to the base end than a higher pressure for the same circumference) closer to the first end than to the second end, wherein the first indicator is positioned closer to the first end than the second indicator (Figs. 22-23 and 24-25 both at least show two indicators for the same circumference closer to the first end than the other, Col 20:54-67 including “Adjustments to the locations of the compression marks 76 may be made for various reasons. . . . These adjustments can be determined empirically as discussed below in the section of this specification entitled “Explanation of Engineering Principles.”” see also Col 20:8-24, Figs. 24-26; furthermore, 23 and 25 both appear to show all of the indicators closer to one end than the other. Examiner also notes the reference recites alternative positions for the indicators can be used and discloses an explanation of the engineering principles Col 26:15-Col 27:51 discussing determining the amount of force of the elastic bands at certain stretches etc. Based on this recitation moving the indicators along the longitudinal axis is merely a design choice/routine optimization under MPEP 2144.04(VI)(C) or MPEP 2144.05(II) to provide first and second indicators for specific circumference);
at least partially aligning the first indicator with the second end of the elastic segment while the band is in an unstretched state (Col 20:8-24 including “The circumference marker 75 is also the zero compression mark for that circumference.”; Col 20:25-39 including “free end 72 wraps around and over the base end 71 of the band 70. The band 70 is initially wrapped only loosely so that no compression is applied to the body part”, Col 20:40-45 including “The band 70 is shown in FIG. 25 to be in the initial step of being wrapped loosely. The user will observe that the free end 72 aligns with the circumference marker 75”, Figs. 22-26; Examiner also notes the reference recites alternative positions for the indicators can be used and discloses an explanation of the engineering principles Col 26:15-Col 27:51 discussing determining the amount of force of the elastic bands at certain stretches etc. Based on this recitation moving the indicators along the longitudinal axis is merely a design choice/routine optimization under MPEP 2144.04(VI)(C) or MPEP 2144.05(II) to provide first and second indicators for specific circumference);
stretching the band to a second length, the second length being greater than the first length (Col 20:46-53 including “The band 70 is shown in FIG. 26 to be stretched (and thus tensioned) to a compression mark 76 having the stated value “30.” This corresponds to a compression of 30 millimeters of mercury.”, Figs. 22-26; Examiner also notes the reference recites alternative positions for the indicators can be used and discloses an explanation of the engineering principles Col 26:15-Col 27:51 discussing determining the amount of force of the elastic bands at certain stretches etc. Based on this recitation moving the indicators along the longitudinal axis is merely a design choice/routine optimization under MPEP 2144.04(VI)(C) or MPEP 2144.05(II) to provide first and second indicators for specific circumference);
at least partially aligning the second indicator with the second end of the elastic segment (Col 20:46-53 including “The band 70 is shown in FIG. 26 to be stretched (and thus tensioned) to a compression mark 76 having the stated value “30.” This corresponds to a compression of 30 millimeters of mercury.”, Figs. 22-26), alignment of the second indicator with the second end indicative of a first pressure exerted on the portion of the user's body (Col 20:46-53 including “The band 70 is shown in FIG. 26 to be stretched (and thus tensioned) to a compression mark 76 having the stated value “30.” This corresponds to a compression of 30 millimeters of mercury.”, Figs. 22-26; Examiner also notes the reference recites alternative positions for the indicators can be used and discloses an explanation of the engineering principles Col 26:15-Col 27:51 discussing determining the amount of force of the elastic bands at certain stretches etc. Based on this recitation moving the indicators along the longitudinal axis is merely a design choice/routine optimization under MPEP 2144.04(VI)(C) or MPEP 2144.05(II) to provide first and second indicators for specific circumference); and
securing the band to the portion of the user's body (Col 3:13-17 including “The compression device according to the invention provides a band for applying compression to an object such as a part of the body, and a system for measuring the compression provided by the device so that a prescribed or desired compression can be easily applied to the body part”, Col 20:45-53, Figs. 22-26 see also Col 19:11-19, Col 20:8-45).
An interpretation of Carpenter may not explicitly disclose the band so also around a physiological sensor to at least partially cover the sensor; wherein the first and second indicators are pairs of notches.
However, in the same field of endeavor (medical diagnostic systems), Hannula teaches wrapping a band around a body part and a physiological to at least partially cover the sensor ([0027]-[0028] including “Such a headband may be used to support the administration of a health care related service to a patient. Such a service may include the placement of a sensor 101 on a patient's forehead, such as for example, an oximetry sensor (e.g., those manufactured by Nellcor Puritan Bennett, the assignee herein)” see also [0029]); wherein the first and second indicators are pairs of notches (212 Fig. 10D’’, [0043] including “While the indicator 212 is shown as a notch, it can be a line, or any other suitable marker.” see also [0041]; Fig. 10D’’ shows using a pair of notches for each pressure level. Examiner notes that while 202 is recited as “substantially inelastic, or low stretch band 202” in [0041] it is recited as being the same material as applicants claim in the current invention being elastic see Applicants [0070] including “the headband 200, 300 can comprise nylon and/or spandex” and Claim 28 and from Hannula [0041] including “The inelastic or low stretch band 202 can be made of any type of low-stretch fabric, such as a Nylon, polyester or equivalent materials, including those described above.”). Examiner also notes that Hannula discloses wherein the first and second indicators are positioned closer to the first end than to the second end (Figs. 10A, 10D’, 10D’’; As can be seen on 10D’’ the notches are near the end of the band 202 for a broader view of context for 202 see 10A).
It would have been prima facie obvious to one of skill in the art before the effective filing date of the claimed invention to have modified the elastic belt with indicators for pressure of Carpenter to include indicators based on cuts/notches all closer to one as recited by Hannula as it provides a way to monitor the pressure of the band when worn by a user and holding a sensor ([0029], [0043]). Furthermore, combining/substituting the indicators on the elastic belt of Carpenter with notches/cuts as recited by Hannula to indicate pressure would be merely combining prior art elements according to known methods to yield predictable results and/or the simple substitution of one known element for another to obtain predictable results; the predictable result being an indication of the tension. Also, using notches instead of a graphic as an indicator is "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success; Carpenter recites indicators on a band to determine various amounts of pressure relative to circumference and Hannula recites visual indicators such as notch, line or marking as variants of indicators which are predictable solutions for indicating with a reasonable expectation of success.
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Regarding Claim 3, an interpretation of Carpenter further discloses wherein the band further comprises a tab connected to the elastic segment proximate a first end (63/64 Figs. 22-23 the portion which is portion shaped differently and 72/73 Fig. 24 the portion to the right of the vertical lines see also Col 19:39-42, Col 20:1-7; Examiner also notes the reference recites alternative positions for the indicators can be used and discloses an explanation of the engineering principles Col 26:15-Col 27:51 discussing determining the amount of force of the elastic bands at certain stretches etc. Based on this recitation moving the indicators along the longitudinal axis is merely a design choice/routine optimization under MPEP 2144.04(VI)(C) or MPEP 2144.05(II) to provide first and second indicators for specific circumference), and wherein the step of securing the band to the portion of the user's body comprises securing the tab to a portion of the elastic segment (Col 3:13-17 including “The compression device according to the invention provides a band for applying compression to an object such as a part of the body, and a system for measuring the compression provided by the device so that a prescribed or desired compression can be easily applied to the body part”, Col 20:1-7 including “a fastener 73 sewed on its underside for removable attachment of the free end 72 to the outer side of the band”, Col 20:45-53, Figs. 24-26 see also Col 19:11-19, Col 20:8-45, Figs. 22-23).
Regarding Claim 4, an interpretation of Carpenter further discloses wherein the elastic segment comprises a first edge and a second edge opposite the first edge (Figs. 22-26; the bands 61 and 70 each have a first end and a second end on opposite sides of the longitudinal axis with edges between to the band between them), each of the first and second edges extending between the first and second ends of the elastic segment (Figs. 22-26; the bands 61 and 70 each have a first end and a second end on opposite sides of the longitudinal axis with edges between to the band between them).
an interpretation of Carpenter may not explicitly disclose wherein each notch of the first and second indicators are positioned along the first edge or the second edge.
An interpretation of Carpenter may not explicitly disclose the band so also around a physiological sensor to at least partially cover the sensor; wherein the first and second indicators are pairs of notches.
However, in the same field of endeavor (medical diagnostic systems), Hannula teaches wherein each notch of the first and second indicators are positioned along the first edge or the second edge (212 Fig. 10D’’, [0043] see also [0041]; notches are formed in relative in pairs with one on each edge with multiple pairs).
It would have been prima facie obvious to one of skill in the art before the effective filing date of the claimed invention to have modified the elastic belt with indicators for pressure of Carpenter to include indicators based on cuts/notches all closer to one as recited by Hannula as it provides a way to monitor the pressure of the band when worn by a user and holding a sensor ([0029], [0043]). Furthermore, combining/substituting the indicators on the elastic belt of Carpenter with notches/cuts as recited by Hannula to indicate pressure would be merely combining prior art elements according to known methods to yield predictable results and/or the simple substitution of one known element for another to obtain predictable results; the predictable result being an indication of the tension. Also, using notches instead of a graphic as an indicator is "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success; Carpenter recites indicators on a band to determine various amounts of pressure relative to circumference and Hannula recites visual indicators such as notch, line or marking as variants of indicators which are predictable solutions for indicating with a reasonable expectation of success.
Regarding Claim 7, an interpretation of Carpenter wherein the first and second indicators are spaced apart from one another by a distance (Col 20:8-24 including “The circumference marker 75 is also the zero compression mark for that circumference.”; Col 20:25-39 including “free end 72 wraps around and over the base end 71 of the band 70. The band 70 is initially wrapped only loosely so that no compression is applied to the body part”, Col 20:40-45 including “The band 70 is shown in FIG. 25 to be in the initial step of being wrapped loosely. The user will observe that the free end 72 aligns with the circumference marker 75”, Col 20:46-53 including “The band 70 is shown in FIG. 26 to be stretched (and thus tensioned) to a compression mark 76 having the stated value “30.” This corresponds to a compression of 30 millimeters of mercury.”, Figs. 22-26; Examiner also notes the reference recites alternative positions for the indicators can be used and discloses an explanation of the engineering principles Col 26:15-Col 27:51 discussing determining the amount of force of the elastic bands at certain stretches etc. Based on this recitation moving the indicators along the longitudinal axis is merely a design choice/routine optimization under MPEP 2144.04(VI)(C) or MPEP 2144.05(II) to provide first and second indicators for specific circumference).
An interpretation of Carpenter may not explicitly disclose wherein the distance is between 1% and 5% of a length of the elastic segment.
Before the effective filing date of the claimed invention, it would have been an obvious matter of design choice to a person of ordinary skill in the art to space the indicators between 1% and 5% of the band length because Applicant has not disclosed that spacing the indicators between 1% and 5% of the band length provides an advantage, is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected the indicator spacing as recite/shown in Carpenter, and applicant' s invention, to perform equally well with either the spacing taught by Carpenter or the claimed spacing because both spacing’s would perform the same function of providing a distance between indicators which indicate an amount of tension provided equally well.
Therefore, it would have been prima facie obvious to modify Carpenter to obtain the invention as specified in claim 7 because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Carpenter.
Regarding Claim 8, an interpretation of Carpenter discloses various pressures related to the respective circumferences including increasing pressure by 10mmhg between respective indicators (Col 11:31-41, Col 20:8-24 including “The circumference marker 75 is also the zero compression mark for that circumference.”; Col 20:25-39 including “free end 72 wraps around and over the base end 71 of the band 70. The band 70 is initially wrapped only loosely so that no compression is applied to the body part”, Col 20:40-45 including “The band 70 is shown in FIG. 25 to be in the initial step of being wrapped loosely. The user will observe that the free end 72 aligns with the circumference marker 75”, Col 20:46-53 including “The band 70 is shown in FIG. 26 to be stretched (and thus tensioned) to a compression mark 76 having the stated value “30.” This corresponds to a compression of 30 millimeters of mercury.”, Figs. 22-26; Examiner also notes the reference recites alternative positions for the indicators can be used and discloses an explanation of the engineering principles Col 26:15-Col 27:51 discussing determining the amount of force of the elastic bands at certain stretches etc. Based on this recitation moving the indicators along the longitudinal axis is merely a design choice/routine optimization under MPEP 2144.04(VI)(C) or MPEP 2144.05(II) to provide first and second indicators for specific circumference)
An interpretation of Carpenter may not explicitly disclose wherein the first pressure is between about 5 mmHg (0.0967 psi) and 15 mmHg (0.290 psi). However, it would have been obvious in view of Carpenter to have the pressure represented by the second indicator be between 5 mmhg and 15 mmhg. At the time the invention was made, it would have been an obvious matter of design choice to a person of ordinary skill in the art to select a pressure measurement in this range because Applicant has not disclosed that the 5mmhg -15 mmhg range provides an advantage (see [0034] from Pg Pub), is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected the pressure ranges/values (such as 20 mmhg) as recited by the Carpenter reference, and applicant' s invention, to perform equally well with either the range/values taught by Carpenter or the claimed range because both ranges/values would perform the same function of determining the pressure applied to the body equally well considering the typical size of an infant.
Therefore, it would have been prima facie obvious to modify Carpenter to obtain the invention as specified in claim 8 because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Carpenter.
Regarding Claim 9, an interpretation of Carpenter further discloses wherein the step of securing comprises engaging a hook and loop mechanism between an outer surface of the band an inner surface of the second end (Col 20:1-7 including “As with the band 61 shown in FIGS. 22-23, the band 70 preferably is made of substantially elastic loop material. . . . The fastener 73 is preferably made of a hook material.”, Col 20:45-53, Figs. 24-26 see also Col 3:13-17, Col 19:11-19, Col 20:8-45, Figs. 22-23).
Allowable Subject Matter
Claims 5-6 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Claim 5 appears allowable over the prior art, based on its dependence from claim 5 claim 6 also appears allowable over the prior art.
Conclusion
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/James Moss/Examiner, Art Unit 3792