DETAILED ACTION
This action is in response to the amendment filed 5/29/2026. Currently, claims 1-14 and 16-18 are pending in the application. Claims 16-18 are withdrawn and not examined at this point. Claim 15 is cancelled by Applicant.
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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Response to Arguments
Applicant’s cancellation of claim 15 is sufficient to overcome the previous objection to the drawings.
Applicant’s amendment to the abstract is sufficient to overcome the previous objections to the specification.
Applicant’s amendment to claim 1 is sufficient to overcome the previous objections to claim 1. Applicant’s amendment to claims 1 and 12 is sufficient to overcome the previous objection to claims 1 and 12. Applicant’s amendment to claims 1-4, 7-11 and 13-15 is sufficient to overcome the previous objection to claims 1-4, 7-11 and 13-15. Applicant’s amendment to claim 10 is sufficient to overcome the previous objection to claim 10. Applicant’s amendment to claim 3 is sufficient to overcome the previous objections to claim 3. Applicant’s amendment to claim 12 is sufficient to overcome the previous objection to claim 12.
Applicant’s amendment to claim 3 is sufficient to overcome the previous rejection of claims 3-5 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. Applicant’s amendment to claim 4 is sufficient to overcome the previous rejections of claims 4 and 5 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. Applicant’s amendment to claim 5 is sufficient to overcome the previous rejection of claim 5 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. Applicant’s amendment to claim 6 is sufficient to overcome the previous rejection of claim 6 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. Applicant’s amendment to claim 7 is sufficient to overcome the previous rejection of claims 7 and 8 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. Applicant’s amendment to claim 8 is sufficient to overcome the previous rejection of claim 8 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. Applicant’s amendment to claim 11 is sufficient to overcome the previous rejection of claims 11-14 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph.
Applicant's arguments filed 5/29/2026 have been fully considered but they are not persuasive.
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., that the device can be installed with a single handed operation; a limb-encircling member that is capable of being formed and self-tightened by a one-handed operation) 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).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, it would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to modify the second closed position of Wenger as modified by Lee et al. to provide that a portion of the openable lower leg attachment portion adjacent the first end thereof extends through the aperture at the second end as taught by Lee et al. because this element is known to provide that the lower leg attachment portion can conveniently “bend upon tensioning” to facilitate securement about the user’s limb, as Lee et al. teaches in column 7, lines 40-41.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: at least one attachment member in claims 1 and 3.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. Applicant’s disclosure teaches the following structure(s) as performing the claimed function: buttons, toggles, studs, poppers, zips, or any combination thereof; and hook and loop fasteners.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: guide member(s) in claims 1 and 11.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. Applicant’s disclosure teaches the following structure(s) as performing the claimed function: an open-ended channel.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: shoe attachment member in claims 1 and 7.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. Applicant’s disclosure teaches the following structure(s) as performing the claimed function: a hook.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: cooperative attachment members in claim 4.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. Applicant’s disclosure teaches the following structure(s) as performing the claimed function: buttons, toggles, studs, poppers, zips, or any combination thereof; and hook and loop fasteners.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: first attachment member in claim 4.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. Applicant’s disclosure teaches the following structure(s) as performing the claimed function: buttons, toggles, studs, poppers, zips, or any combination thereof; and hook and loop fasteners.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: cooperative second attachment member in claim 4.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. Applicant’s disclosure teaches the following structure(s) as performing the claimed function: buttons, toggles, studs, poppers, zips, or any combination thereof; and hook and loop fasteners.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: adjustment mechanism in claims 7 and 8.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. Applicant’s disclosure teaches the following structure(s) as performing the claimed function: toggle.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 11 is 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 11 recites the limitation "the opposed outer surface" in line 2 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 103
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) 1-6 and 11-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wenger (US 2017/0165096 A1) in view of Lee et al. (US 8,740,829 B2).
Regarding claim 1, Wenger teaches in Figures 1-5D
an openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) configured in use to be positioned against and to extend around a portion of a lower leg of a user ([0028] teaches “the ankle brace 102 is installed around the wearer's ankle”), in which a first end (second and third wings 114, 116) of ([0027] teaches “ankle brace 102 can include a first wing 112, a second wing 114, and a third wing 116” and “first wing 112 and second wing 114 can extend from opposite sides of ankle brace 102”) the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) is engageable to a portion of ([0031] teaches “the second and third wings 114, 116 are independently configurable to overlap and selectively couple to a portion of the first wing 112”) the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) at or adjacent a second end (first wing 112) thereof ([0027] teaches “ankle brace 102 can include a first wing 112, a second wing 114, and a third wing 116” and “first wing 112 and second wing 114 can extend from opposite sides of ankle brace 102”), and in which the first end (second and third wings 114, 116) of ([0027] teaches “ankle brace 102 can include a first wing 112, a second wing 114, and a third wing 116” and “first wing 112 and second wing 114 can extend from opposite sides of ankle brace 102”) the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) comprises at least one attachment member (first ankle brace fastener 118, second ankle brace fastener 120; [0031] teaches “ankle brace fasteners 118 and 120 can comprise, for example, hook and loop fasteners (e.g., VELCRO), elastic fasteners, and/or button fasteners”) for securing the first end (second and third wings 114, 116) in position relative to ([0031] teaches “second wing 114 and third wing 116 can include first ankle brace fastener 118 and second ankle brace fastener 120 for releasably engaging the second wing 114 and the third wing 116 to the first wing 112”) the second end (first wing 112);
a second attachment portion (elastic strap 106) comprising an elongate member (Figures 1 and 2 teach the elastic strap 106 being an elongate member) having a first end (as defined in the annotated copy of Figure 5B provided below) located at or adjacent (the annotated copy of Figure 5B teaches the first end being positioned on the ankle brace 102) the openable lower leg attachment portion (ankle brace 102), and a second opposed (the annotated copy of Figure 5B teaches the second end 132 being positioned vertically opposite the first end) end (second end 132) comprising ([0037] teaches “one or more hook fasteners 134 disposed on at least one of the first and second ends 130, 132”) a shoe attachment member (one or more hook fasteners 134) configured in use for direct engagement with ([0042] teaches “hook fasteners 134 can engage at least one of the laces 204, eyelets 206, or any other looped structure commonly found on the wearer's shoes 200”) a fastener (at least one of the laces 204, eyelets 206, or any other looped structure commonly found on the wearer's shoes 200) of a shoe (wearer's shoes 200) of the user, in which the shoe attachment member (one or more hook fasteners 134) comprises a hooked portion (as shown in Figures 1 and 2; [0037] teaches “hook fasteners 134”),
and in which the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) further comprises a pair of guide members (secondary strap loops 126 and 128) provided on opposing sides (left and right sides, as shown in Figure 2) of the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102), each guide member (secondary strap loops 126 and 128) defining an open-ended channel (as shown in Figure 2) configured in use to receive at least a portion of the second attachment portion (elastic strap 106) therein ([0035] teaches “elastic strap 106 can be routed through secondary strap loops 126 and 128”) and to enable movement of the second attachment portion (elastic strap 106) through the respective open-ended channel (inasmuch as there is no structure taught that would prevent sliding of the elastic strap 106 through the secondary strap loops 126 and 128; Figure 2 teaches the secondary strap loops 126 and 128 being wider than the elastic strap 106 such that the elastic strap 106 would be capable of sliding therethrough).
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Wenger does not teach that the second end provides an aperture configured to enable the first end to pass therethrough; and wherein the aperture of the second end of the openable lower leg attachment portion is configured to receive the first end of the openable lower leg attachment portion to form a circumferential loop around the lower leg of the user, wherein the circumferential loop is tightenable by pulling the first end of the openable lower leg attachment portion.
However, Lee et al. teaches in Figures 1 and 3 and column 7, lines 33-36 an analogous device wherein the second end (upper subshell 18) provides an aperture (slots 76, 78) configured to enable the first end (strap 28) to pass therethrough (column 7, lines 33-36 teaches “upper subshell 18 defines lateral and medial portions 62, 64, whereby each portion defines a slot 76, 78, respectively, for receiving a strap (as in strap 28 in FIG. 1)”); wherein the aperture (slots 76, 78) of the second end (upper subshell 18) of the openable lower leg attachment portion (upper subshell 18, strap 28 and slots 76, 78; capable of being opened by releasing securement of strap 28) is configured to receive (column 7, lines 33-36 teaches “upper subshell 18 defines lateral and medial portions 62, 64, whereby each portion defines a slot 76, 78, respectively, for receiving a strap (as in strap 28 in FIG. 1)”) the first end (strap 28) of the openable lower leg attachment portion (upper subshell 18, strap 28 and slots 76, 78; capable of being opened by releasing securement of strap 28) to form a circumferential loop around the lower leg of the user (as shown in Figure 1), wherein the circumferential loop is tightenable by pulling (column 6, lines 14-17 teaches “because the upper and lower subshells 18, 20 are flexible, when the straps 28, 24 are tensioned, opposed end portions of the subshells connecting to the straps are drawn toward one another”) the first end (strap 28) of the openable lower leg attachment portion (upper subshell 18, strap 28 and slots 76, 78; capable of being opened by releasing securement of strap 28).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to modify the device of Wenger such that the second end provides an aperture configured to enable the first end to pass therethrough; and wherein the aperture of the second end of the openable lower leg attachment portion is configured to receive the first end of the openable lower leg attachment portion to form a circumferential loop around the lower leg of the user, wherein the circumferential loop is tightenable by pulling the first end of the openable lower leg attachment portion as taught by Lee et al. because this element is known to provide that the lower leg attachment portion can conveniently “bend upon tensioning” to facilitate securement about the user’s limb, as Lee et al. teaches in column 7, lines 40-41.
Regarding claim 2, Wenger and Lee et al. teach the apparatus of claim 1. Wenger teaches in Figures 1 and 2 and [0027] that the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) is an elongate member (Figures 1 and 2 teach the ankle brace 102 having an elongate length extending between first wing 112 and wings 114/116; [0027] teaches “ankle brace 102 can include a first wing 112, a second wing 114, and a third wing 116” and “first wing 112 and second wing 114 can extend from opposite sides of ankle brace 102”).
Regarding claim 3, Wenger and Lee et al. teach the apparatus of claim 1. Wenger teaches in Figures 1-5D and [0031] that the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) comprises an inner surface (interior face 110) configured in use to be positioned adjacent a lower leg of a user ([0038] teaches “the interior face 110 is positioned against the wearer's ankle 202”), and an opposed outer surface (exterior face 108), and in which the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) is moveable between (as shown in Figures 4A-4F; [0031] teaches “second wing 114 and third wing 116 can include first ankle brace fastener 118 and second ankle brace fastener 120 for releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”): a first open position (shown in Figures 1-3) in which the first end (second and third wings 114, 116) of ([0027] teaches “ankle brace 102 can include a first wing 112, a second wing 114, and a third wing 116” and “first wing 112 and second wing 114 can extend from opposite sides of ankle brace 102”) the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) is disengaged from (as shown in Figures 1-3) the second end (first wing 112) thereof ([0027] teaches “ankle brace 102 can include a first wing 112, a second wing 114, and a third wing 116” and “first wing 112 and second wing 114 can extend from opposite sides of ankle brace 102”); and a second closed position (shown in Figures 5A-5D), and the at least one attachment member (first ankle brace fastener 118, second ankle brace fastener 120; [0031] teaches “ankle brace fasteners 118 and 120 can comprise, for example, hook and loop fasteners (e.g., VELCRO), elastic fasteners, and/or button fasteners”) secures the first end (second and third wings 114, 116) adjacent ([0031] teaches “second wing 114 and third wing 116 can include first ankle brace fastener 118 and second ankle brace fastener 120 for releasably engaging the second wing 114 and the third wing 116 to the first wing 112;” Figure 1 teaches the first wing 112 being positioned on exterior face 108) the opposed outer surface (exterior face 108) of the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102).
Wenger does not teach that the opposed outer surface provides the at least one attachment member; and the second closed position in which a portion of the openable lower leg attachment portion adjacent the first end thereof extends through the aperture at the second end.
However, Lee et al. teaches in Figure 1 and column 7, lines 33-36 an analogous device with a second closed position (shown in Figure 1) in which a portion of the openable lower leg attachment portion (upper subshell 18 and strap 28) adjacent the first end (strap 28) thereof extends through (column 7, lines 33-36 teaches “upper subshell 18 defines lateral and medial portions 62, 64, whereby each portion defines a slot 76, 78, respectively, for receiving a strap (as in strap 28 in FIG. 1)”) the aperture (slots 76, 78) at the second end (upper subshell 18).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to modify the second closed position of Wenger as modified by Lee et al. to provide that a portion of the openable lower leg attachment portion adjacent the first end thereof extends through the aperture at the second end as taught by Lee et al. because this element is known to provide that the lower leg attachment portion can conveniently “bend upon tensioning” to facilitate securement about the user’s limb, as Lee et al. teaches in column 7, lines 40-41.
Wenger and Lee et al. do not teach that the opposed outer surface provides the at least one attachment member.
However, it would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to provide that the opposed outer surface provides the at least one attachment member, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70. One having ordinary skill in the art before the effective filing of the present invention would find it obvious that the position of complementary components of hook and loop fastener can be reversed to achieve the same function and result.
Regarding claim 4, Wenger and Lee et al. teach the apparatus of claims 1 and 3. Wenger teaches in Figures 1-5D and [0031] that the at least one attachment member (first ankle brace fastener 118, second ankle brace fastener 120; [0031] teaches “ankle brace fasteners 118 and 120 can comprise, for example, hook and loop fasteners (e.g., VELCRO), elastic fasteners, and/or button fasteners”) of the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) comprises at least one pair of cooperative attachment members (ankle brace fasteners 118/120 and complementary fastener on first wing 112; [0031] teaches “ankle brace fasteners 118 and 120 can comprise, for example, hook and loop fasteners (e.g., VELCRO), elastic fasteners, and/or button fasteners” and “second wing 114 and third wing 116 can include first ankle brace fastener 118 and second ankle brace fastener 120 for releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”), wherein the at least one pair of cooperative attachment members (ankle brace fasteners 118/120 and complementary fastener on first wing 112; [0031] teaches “ankle brace fasteners 118 and 120 can comprise, for example, hook and loop fasteners (e.g., VELCRO), elastic fasteners, and/or button fasteners” and “second wing 114 and third wing 116 can include first ankle brace fastener 118 and second ankle brace fastener 120 for releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) comprises a first attachment member (ankle brace fasteners 118/120) being located on a surface of the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) at or adjacent ([0031] teaches “second wing 114 and third wing 116 can include first ankle brace fastener 118 and second ankle brace fastener 120”) the first end (second and third wings 114, 116) thereof ([0027] teaches “ankle brace 102 can include a first wing 112, a second wing 114, and a third wing 116” and “first wing 112 and second wing 114 can extend from opposite sides of ankle brace 102”) and a cooperative second attachment member (complementary fastener on first wing 112, taught in [0031]; [0031] teaches “second wing 114 and third wing 116 can include first ankle brace fastener 118 and second ankle brace fastener 120 for releasably engaging the second wing 114 and the third wing 116 to the first wing 112”) being located on the opposed outer surface (exterior face 108) of (as shown in Figures 1-5D) the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) and spaced apart from (as shown in Figures 1 and 2) the first attachment member (ankle brace fasteners 118/120).
Wenger does not teach the first attachment member being located on the opposed outer surface of the lower leg attachment portion.
However, it would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to provide the first attachment member being located on the opposed outer surface of the lower leg attachment portion, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70. One having ordinary skill in the art before the effective filing of the present invention would find it obvious that the position of complementary components of hook and loop fastener can be reversed to achieve the same function and result.
Regarding claim 5, Wenger and Lee et al. teach the apparatus of claim 1. Wenger teaches in [0031] that the at least one attachment member (first ankle brace fastener 118, second ankle brace fastener 120; [0031] teaches “ankle brace fasteners 118 and 120 can comprise, for example, hook and loop fasteners (e.g., VELCRO), elastic fasteners, and/or button fasteners”) of the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) comprises hook and loop fasteners ([0031] teaches “ankle brace fasteners 118 and 120 can comprise, for example, hook and loop fasteners (e.g., VELCRO), elastic fasteners, and/or button fasteners”).
Regarding claim 6, Wenger and Lee et al. teach the apparatus of claim 1. Wenger teaches in Figures 1, 2, 5B and 5C that the elongate member (Figures 1 and 2 teach the elastic strap 106 being an elongate member) of the second attachment portion (elastic strap 106) is a tubular member (Figures 1, 2, 5B and 5C teach the elastic strap 106 being structured as a rounded, tubular cord).
Regarding claim 11, Wenger and Lee et al. teach the apparatus of claim 1. Wenger teaches in Figures 1, 2, 5B and 5C and [0035] that the pair of guide members (secondary strap loops 126 and 128) are provided on the opposed outer surface (exterior face 108) of (as shown in Figures 1, 2, 5B and 5C; [0035] teaches “secondary strap loops 126 and 128 can also be disposed on the exterior face 108 of the ankle brace 102”) the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102).
Regarding claim 12, Wenger and Lee et al. teach the apparatus of claim 1. Wenger teaches in Figures 5A-5D that the ankle-foot orthopaedic device (ankle-foot orthotic 100) is free from contact with a foot of a user in use (Figures 5A-5D teach that the ankle-foot orthotic 100 does not directly contact a foot of the user).
Regarding claim 13, Wenger and Lee et al. teach the apparatus of claim 1. Wenger teaches in [0031] that the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102) is composed of flexible material ([0031] teaches “ankle brace 102 can be constructed of an elastic material”).
Claim(s) 7-10 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wenger (US 2017/0165096 A1), in view of Lee et al. (US 8,740,829 B2) and further in view of Corrales (US 2006/0036204 A1).
Regarding claims 7 and 8, Wenger and Lee et al. teach the apparatus of claim 1. Wenger and Lee et al. do not teach an adjustment mechanism configured in use to adjust separation of the shoe attachment member at the second opposed end of the second attachment portion from the lower leg attachment portion; and wherein the adjustment mechanism comprises a toggle mechanism in communication with the elongate member.
However, Corrales teaches in Figures 1-4 an analogous device with an adjustment mechanism (slidable locking connector 17) configured in use to adjust separation of ([0018] teaches “locking connector 17 is then adjusted to increase or decrease tension on the wearer”) the shoe attachment member (loop end 16; [0018] teaches “the loop end 16 is affixed over the back cleats 20 of a pair of cleats”) at (as shown in Figure 3) the second opposed end (bottom end) of the second attachment portion (loop of cord 14) from the openable lower leg attachment portion (neoprene strap 12; [0017] teaches “a neoprene strap 12 which has a Velcro attachment 16, 18 to secure to the player just below the knee”); and wherein the adjustment mechanism (slidable locking connector 17) comprises a toggle mechanism (as shown in Figures 1 and 4) in communication with ([0017] teaches “the top of the cord is affixed to a slidable locking connector 17”) the elongate member (loop of cord 14).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to modify the device of Wenger as modified by Lee et al. to further include an adjustment mechanism configured in use to adjust separation of the shoe attachment member at the second opposed end of the second attachment portion from the openable lower leg attachment portion; and wherein the adjustment mechanism comprises a toggle mechanism in communication with the elongate member as taught by Corrales because this element is known to enable convenient adjustments “to increase or decrease tension on the wearer” without having to move the second attachment portion, as Corrales teaches in [0018].
Regarding claim 9, Wenger, Lee et al. and Corrales teach the apparatus of claims 1 and 7. Wenger teaches in Figures 1, 2 and 5B that at least a portion of the second attachment portion (elastic strap 106) is configured in use to extend around at least a portion of (as shown in Figures 1, 2 and 5B) the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102).
Regarding claim 10, Wenger, Lee et al. and Corrales teach the apparatus of claims 1, 7 and 9. Wenger teaches in Figures 5B and 5C that the second attachment portion (elastic strap 106) is configured in use to extend entirely around (inasmuch as the elastic strap 106 is shown in Figures 5B and 5C to extend around the entire width of the ankle brace 102) the openable ([0031] teaches “releasably engaging the second wing 114 and the third wing 116 to the first wing 112 such that the ankle brace 102 forms a generally cylindrical shape around a wearer's ankle 202”) lower leg attachment portion (ankle brace 102).
Regarding claim 14, Wenger and Lee et al. teach the apparatus of claims 1 and 13. Wenger and Lee et al. do not teach that the lower leg attachment portion is composed of neoprene.
However, Corrales teaches in [0017] and claim 2 an analogous device wherein the lower leg attachment portion (neoprene strap 12; [0017] teaches “a neoprene strap 12 which has a Velcro attachment 16, 18 to secure to the player just below the knee”) is composed of neoprene ([0017] teaches “neoprene strap 12;” claim 2 teaches “the strap is constructed from neoprene”).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to modify the lower leg attachment portion of Wenger as modified by Lee et al. to be composed of neoprene as taught by Corrales because this element is known in the art to be a suitable and effective material from which the lower leg attachment portion can be made, as Corrales teaches in [0017] and claim 2.
Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VICTORIA H FISHER whose telephone number is (571)270-7033. The examiner can normally be reached M-TH 6:00AM-4:00PM EST.
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/VICTORIA HICKS FISHER/Primary Examiner, Art Unit 3786 8/26/2026
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