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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 1-35. Although the claims at issue are not identical, they are not patentably distinct from each other:.
Claims 1, 5, 17 & 20 of U.S. App. 18/915490
Claims 1, 12 & 24 of U.S. Pat. No. 10,827,786
A method for reducing trauma in the head or neck of a user…
A method for reducing trauma in the head or neck of a living being…
…engaging a support with the neck of the user
…engaging a support with at least one of the head, neck and shoulder…
…reducing a speed or acceleration/strengthen a muscle of the user as the head moves/improving the posture and neck position of the users as the head moves through the range of motion using a damper embedded within the support
…reducing the speed at which the head moves/strengthen the muscle of the living being as the head moves/increasing a muscle contraction speed of the living being as the head moves through the range of motion using a physiological damper including at least one electrode associated with the support.
The patented claims of ‘786 and the instant claims of ‘490 are not patentably distinct because both are directed to the same inventive concept of reducing head and neck trauma through a support employing a damper to reduce movement of the head relative to the torso while maintaining a range of motion. Modifying the support engagement location, reciting a support extending from the base of the head to the torso, reciting a damper embedded within the support and reciting reduction of a speed or acceleration instead of speed alone would have been obvious design choices and constitute no more than obvious variations of the patented invention.
Accordingly, the pending claims merely define an obvious variation of the invention claimed in U.S. Pat. No. 10,827,786 and are therefore barred by the judicially created doctrine of obviousness-type double patenting.
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.
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) 1-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nagely et al. (US 2013/0205480) in view of Ghajar (US 2010/0204628).
Under the broadest reasonable interpretation consistent with the specification, a “support” encompasses structures extending between the head and/or neck region and the torso that permit relative movement while providing resistance thereto. Further, a “damper embedded within the support” reasonably encompasses a damping mechanism disposed within or forming part of a support member that resists motion through compression, extension, fluid displacement, spring force, gas force or other damping action.
Nagely et al. teaches:
Claim 1.
A method for reducing trauma in the head or neck caused by acceleration of the head relative to a torso
E.G. [0011], [0020], [0072], [0083]
engaging a support extending between a helmet/head region and a torso harness
E.G. [0013]-[0015], [0070]-[0072], [0086]-[0088]
permitting normal range of motion prior to activation of the restraint system
E.G. [0011], [0072], [0084]
reducing relative movement of the head with respect to the torso
E.G. [0011], [0014], [0020], [0072].
Nagely et al. does not explicitly disclose reducing the speed or acceleration using a damper embedded within the support.
Ghajar teaches a support extending between a headpiece and torso harness including a telescoping member having a hydraulic piston damper, gas spring piston damper, spring-loaded damper, and/or damping device disposed within the support member, [0028], [0032]-[0035].
It would have been obvious to incorporate Ghajar’s damping mechanism into the support system of Nagely et al. because both references are directed to reducing brain, neck and cervical injury resulting from acceleration of the head relative to the torso. Incorporating Ghajar’s damping member would have predictably dissipated forces, reduced peaked acceleration and controlled relative head movement while maintaining a desired range of motion, thereby improving Nagely’s injury mitigation system using a known technique for its established purpose. The modification represents the application of a known technique to improve a similar device in the same field and would have yielded no more than predictable results. KSR Int’l Co. Teleflex Inc., 550 U.S. 398, 417 (2007).
Claim 2.
Ghajar teaches hydraulic and gas damping mechanisms disposed within the telescoping support member that resist movement through compression and extension while dissipating forces ([0032]-[0035]). Such damping systems inherently provide increased resistance as movement velocity increases due to increased fluid flow and damping forces, thereby providing lower resistance during lower-speed motion and higher resistance during higher speed motion.
Claim 3, 7 & 21-22
Ghajar teaches mechanical damping systems including hydraulic piston dampers, gas springs dampers, spring-loaded dampers, and damping device disposed within the support member ([0032]-[0035]).
Claims 4, 9, 19 & 23
Nagely et al. teaches controlling head and neck movement to reduce cervical injury and improve head and neck position ([0020], [0072], [0084]-[0088]).
Ghajar teaches applying controlled resistance through the damping support during movement of the head relative to the torso ([0032]-[0035]).
It would have been obvious to one having ordinary skill in the art that repeated resisted motion of the head and neck using the damping support would strengthen associated musculature and improve posture and neck position as a predictable result of resisted movement training.
Claim 6
Obvious in view of claim 5 because strengthening of muscles of the head, neck and shoulder is an inherent and predictable result of performing resisted movement exercises using the damping support.
Claim 8
Obvious because repeated movement through a resisted range of motion would predictably improve flexibility and increase range of motion over time.
Claim 10-16
Nagely et al. teaches sensing parameters associated with the support, including force and acceleration, transmitting sensed information and controlling operation of the support based upon sensed parameters ([0089]-[0097]).
It would have been obvious to provide a user interface configured to receive, display, communicate and utilize such information because user feedback, monitoring and control interfaces were well known in rehabilitation, training, injury-prevention and biomechanical monitoring systems.
Claims 11-16
Claim 11-16 recite obvious variations relating to particular sensed parameters, graphical displays, coordinated control signals, user instructions, and feedback communications.
Claim 20
Nagely et al. teaches reducing speed or acceleration of head movement relative to the torso through structures disposed within the support. Ghajar teaches corresponding damping structures disposed within the support member, including hydraulic, gas spring, and spring-loaded damping mechanisms ([0032]-[0035]), which corresponds to the recited means for performing the claimed function.
Claim 24
Obvious matter of design choice regarding the particular configuration of the support as a balaclava, absent a showing of criticality.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICOLE F JOHNSON whose telephone number is (571)270-5040. The examiner can normally be reached Monday-Friday 8:00am-5:00pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Hamaoui can be reached at 571-270-5625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICOLE F JOHNSON/Primary Examiner, Art Unit 3796
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