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 .
Election/Restrictions
Applicant's election with traverse of Species B and Sub-Species B2 in the reply filed on August 21, 2025 is acknowledged. The traversal is on the ground(s) that it should be no undue burden on the Examiner to consider all claims in the single application.
This is not found persuasive because at least the following reason(s) apply: (a) the species or groupings of patentably indistinct species have acquired a separate status in the art in view of their different classification; (b) the species or groupings of patentably indistinct species have acquired a separate status in the art due to their recognized divergent subject matter; (c) the species or groupings of patentably indistinct species require a different field of search (e.g., searching different classes/subclasses or electronic resources, or employing different search strategies or search queries). While the searches of the identified species may overlap, the overall search would be seriously burdensome because Examiner would need to search for each distinct invention or variation.
Furthermore, the search is only part of the examination process, and MPEP § 803 states "[i]f the search and examination of all the claims in an application can be made without serious burden". The examination of the application would also be burdensome because Examiner would be required to apply art and rejections to claims (presently presented or added in future prosecution) directed towards each distinct and different species of invention.
Indeed, as discussed in the restriction requirement, each grouping of identified species have mutually exclusive characteristics that are not obvious variants of each other based on the current record (i.e., mutually exclusive guide block and/or winding guide structures (or lack thereof)). Examiner further notes that Applicant’s traversal argument amounts to merely a general allegation of a lack of undue burden on the Examiner without further explanation.
Therefore, the requirement is still deemed proper and is therefore made FINAL.
In the reply, Applicant indicated claims 1-5 and 9-10 as reading upon the elected invention. That said, claims 3-4 and 9 are also withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Species A, there being no allowable generic or linking claim. More specifically, claim 3 appears directed to the nonelected embodiment of Species A as illustrated in Figs. 1-4 wherein winding guides are on adjustment portions of a waist protector instead of the main body of the elastic support device (i.e., Fig. 3). Claim 4 also appears directed to the nonelected embodiment in Figs. 1-4 wherein at least one connecting member is sleeved on one of the two side frames of the main body of the elastic support device (i.e., connecting member (95) of Fig. 4). Examiner notes that the connecting members (95) of claim 4 are only ever discussed in the application with respect to the structure of the nonelected elastic support device of Figs. 1-4, and it would be unclear how the connecting members would connect to the side frames of the elected embodiment of Figs. 10-12 without impeding the integral guide blocks and winding guides. Claim 9 is further withdrawn for being dependent on now withdrawn claim 4. Applicant timely traversed the restriction (election) requirement in the reply filed on August 21, 2025.
Status of the Claims
In the reply received on August 21, 2025, Applicant indicated claims 1-5 and 9-10 as reading upon the elected invention. That said, claims 3-4 and 9 are further withdrawn from further consideration as discussed above. Accordingly, claims 1-10 are currently pending in this application with claims 3-4 and 6-9 being withdrawn from further consideration. An action on the merits follows.
Drawings
The drawings are objected to because of the following informalities:
In Figs. 3-4, each of the two bands (94) and adjustment portions (91) should be individually labeled with the corresponding reference characters
In Figs. 6 and 9, each first penetrating hole (921A) should be individually labeled with the corresponding reference characters
In Figs. 10-12, each third penetrating hole (923B) should be individually labeled with the corresponding reference characters
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification – Disclosure
The disclosure is objected to because at page 4, lines 14-15, “Each of the two bands 94 includes the two adjustment portions 91” should instead read “Each of the two bands 94 includes a respective one of the two adjustment portions 91” based on Applicant’s overall disclosure and drawings.
Appropriate correction is required.
Claim Objections
Claim 5 is objected to because at line 3, “parts of the plurality of V-shaped elastic members” should read “the plurality of V-shaped elastic members”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 1-2, 5, and 10 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation “the waist protector extending in the first direction” at lines 4-5. It is unclear if the limitation is attempting to positively recite and/or structurally limit the waist protector in the claim, as the waist protector was only ever introduced as part of a functional limitation at lines 1-2. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. It is suggested that the limitation instead read “the waist protector configured to extend in the first direction”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claim 1 further recites the limitation “in the first direction the ribs of neighboring two of the plurality of V-shaped elastic members being connected to each other” at lines 8-9. There is insufficient antecedent basis for the limitation “the ribs” in the claim. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. It is suggested that the limitation instead read “ribs of two of the plurality of V-shaped elastic members neighboring and being connected to each other in the first direction”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art. Claim 10 includes the limitations of claim 1 and is similarly rejected.
Claim 1 further recites the limitation “in the second direction the connection portions of neighboring two of the plurality of V-shaped elastic members being connected to each other” at lines 9-11. It is unclear if the “neighboring two” are meant to be the same neighboring two of the plurality of V-shaped elastic members previously introduced at line 8, or if the limitation is meant refer to some other neighboring two of the plurality. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. It is suggested that the limitation instead read “the connection portions of two of the plurality of V-shaped elastic members neighboring and being connected to each other in the second direction”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art. Claim 10 includes the limitations of claim 1 and is similarly rejected.
Claim 2 recites the limitation “wherein the waist protector includes two adjustment portions, the two adjustment portions are connected to opposing ends of the main body in the first direction […]” at lines 1-5. It is unclear if the limitation is attempting to positively recite additional structures of the waist protector which was only introduced as part of a functional limitation in the claims. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. It is suggested that the limitation instead read “wherein the waist protector includes two adjustment portions, opposing ends of the main body are configured to connect to the two adjustment portions in the first direction […]”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claim 10 recites the limitation “A waist protector including the elastic support device of claim 1, further comprising:” at lines 1-2. It is unclear which of the previously introduced structures is meant to further comprising the subsequent limitations of the claim. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. Based on Applicant’s disclosure, it is suggested that the limitation instead read “A waist protector including the elastic support device of claim 1, the waist protector further comprising:”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claim 10 recites the limitation “two adjustment portions connected to opposing ends of the main body in the first direction and connected to the two bands” at lines 4-5. It is unclear if both of the adjustment portions are connected to both opposing ends, or if the adjustment portions are meant to connect to respective opposing ends. The relationship to the two bands is similarly unclear. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. It is suggested that the limitation instead read “two adjustment portions each connected to a respective opposing end of the main body in the first direction, each of the two adjustment portions being connected to a respective one of the two bands”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claims 2, 5, and 10 are also rejected for being dependent on and/or including all of the limitations of a rejected 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 1-2, 5, and 10, as best can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over USPN 8,795,214 to Conti (hereinafter, “Conti”) in view of US 2008/0154164 to Sheehan et al. (hereinafter, “Sheehan”).
Regarding claim 1, Conti teaches an elastic support device configured to be disposed on a waist protector (See Conti, Figs. 1-4; central portion (24) is capable of being disposed on a hypothetical waist protector such as brace (10); central portion (24) can be formed of an elastic material such as neoprene; Col. 3, line 67 – Col. 4, line 2), the elastic support device including: a main body defining a first direction and a second direction which are transverse to each other, the waist protector extending in the first direction (See Conti, Figs. 1-4; central portion (24), i.e., a main body, has a second direction extending along a length of brace (10) and a first direction transverse to the second direction), the main body being elastically restorable (See Conti, Figs. 1-4; central portion (24) can be formed of an elastic material such as neoprene; Col. 3, line 67 – Col. 4, line 2).
That said, Conti is silent to the main body including a plurality of V-shaped elastic members, each of the plurality of V-shaped elastic members including a connection portion and two ribs extending from the connection portion, in the first direction the ribs of neighboring two of the plurality of V-shaped elastic members being connected to each other, in the second direction the connection portions of neighboring two of the plurality of V-shaped elastic members being connected to each other.
However, Sheehan, in a related body support device/brace art, is directed to a body support device or brace having diamond-shaped openings formed by a plurality of elements (See Sheehan, Figs. 1-6; abstract). More specifically, Sheehan teaches the main body including a plurality of V-shaped elastic members, each of the plurality of V-shaped elastic members including a connection portion and two ribs extending from the connection portion (See annotated Fig. 6 of Sheehan below; support device/brace surface has diamond mesh shape formed from a plurality of V-shaped members joined at connection portions; Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)), in the first direction the ribs of neighboring two of the plurality of V-shaped elastic members being connected to each other (See annotated Fig. 6 of Sheehan below; neighboring or adjacent members are connected to each other along axis (3) which is in a direction transverse to a length of a supported body part), in the second direction the connection portions of neighboring two of the plurality of V-shaped elastic members being connected to each other (See annotated Fig. 6 of Sheehan below; neighboring or adjacent members are connected to each other at least by connection portions along axis (1) which is in a direction of a length of a supported body part).
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Annotated Fig. 6 of Sheehan
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to form the central portion, i.e., the main body, of Conti to have the diamond mesh shaped construction disclosed by Sheehan for a variety of reasons including for example, but not limited to, providing a shape that is able to provide support while also being conformable, pliable, stretchable, and compressible to at least some extend and/or reducing an amount of material required to form the structure (See Sheehan, [0161]-[0165]).
Regarding claim 2, the modified elastic support device of Conti (i.e., Conti in view of Sheehan, as discussed with respect to claim 1 above) further teaches wherein the waist protector includes two adjustment portions, the two adjustment portions are connected to opposing ends of the main body in the first direction, and the two adjustment portions are movable relative to each other to adjust a size of the waist protector (See Conti, Figs. 1-4; central portion (24) having bases (50, 54) and cords (51, 53) and as modified as discussed above, is capable of having opposing ends connected to a hypothetical waist protector having hypothetical adjustment portions that are movable relative to each other to adjust a size of the hypothetical waist protector; Examiner again notes that the waist protector was only ever introduced as part of a functional limitation in claim 1).
Regarding claim 5, the modified elastic support device of Conti (i.e., Conti in view of Sheehan, as discussed with respect to claim 1 above) further teaches wherein an angle between the two ribs of each of the plurality of V-shaped elastic members is acute (See annotated Fig. 6 of Sheehan above; angles between ribs are acute angles in the diamond mesh structure; [0333]-[0334]), and parts of the plurality of V-shaped elastic members are connected in the second direction to form X-shaped structures (See annotated Fig. 6 of Sheehan above; neighboring or adjacent V-shaped members are connected in the second direction along axis (1) to form X-shaped structure, i.e., those members indicated with dashed lines when taken as a whole).
Regarding claim 10, Conti teaches a waist protector including the elastic support device of claim 1 (See Conti, Figs. 1-4; brace (10) including elastic support device as discussed with respect to claim 1 above; Examiner notes that Applicant appears to use short-hand to refer back to the limitations of claim 1 within independent claim 10 directed to “a waist protector”), further including: two bands detachably connected to each other (See Conti, Figs. 1-4; separate first and second portions (14, 16) of brace (10) are detachably connected to each other at ends (18, 20); Col. 4, lines 5-9); and two adjustment portions connected to opposing ends of the main body in the first direction and connected to the two bands, the two adjustment portions being movable relative to each other to adjust a size of the waist protector (See Conti, Figs. 1-4; bases (50, 54) connected to opposing ends of central portion (24) along the first direction; bases (50, 54) are connected at least indirectly via central portion (24) to respective first and second portions (14, 16) of brace (10); bases (50, 54) are movable relative to each other to adjust a size of brace (10); Col. 7, lines 6-12).
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure. US 2014/0135672 to Joseph et al.; USPN 6,322,529 to Chung; US 2005/0059917 to Garth et al.; US 2017/0319371 to Wang; US 2006/0030802 to Nordt et al.; US 2014/0123370 to Chao; US 2014/0228727 to Burke et al.; US 2005/0251074 to Latham; USPN 4,768,502 to Lee; USPN 9,446,279 to Yelvington; USPN 4,294,240 to Thill; US 2010/0036300 to Sheehan et al.; and US 2016/0166420 to Sheehan et al. are each directed to waist support devices and/or support or brace devices formed of a plurality of members.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R MARCHEWKA whose telephone number is (571)272-4038. The examiner can normally be reached M-F: 9:00AM-5:00PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CLINTON T OSTRUP can be reached at (571) 272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MATTHEW R MARCHEWKA/Examiner, Art Unit 3732