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 .
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claims 61 and 72 are objected to because of the following informalities: in each claim, "a blood-oxygen level sensors" should be "a blood-oxygen level sensor". Appropriate correction is required.
Claim Rejections - 35 USC § 112
Claims 54-55, 59, and 68-69 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.
Regarding claims 54-55 and 68-69, the phrase "maximum toe clearance (foot with toes angled downward)” and “second maximum toe clearance (foot with toes angled downward)" renders the claim indefinite because it is unclear whether the limitation(s) in the parentheses are part of the claimed invention akin to the use of exemplary claim language. It is not clear if the claim is meant to be interpreted according to the broadest reasonable interpretation of “maximum toe clearance”, or if the parenthetical limitations are intended to further limit “maximum toe clearance” by narrowing the meaning of the phrase. See MPEP § 2173.05(d). The limitation is currently interpreted as referring to a maximum toe clearance of the foot with toes angled downward.
Claim 59 recites the limitations “the first raw sensor data” and “the second raw sensor data” in lines 3-4 of the claim. There is insufficient antecedent basis for each of these limitations. The limitations are currently interpreted as referring to first sensor data which is obtained using the one or more of the plurality of wireless sensors while the person is wearing the gait-altering device and second sensor data which is obtained using the one or more of the plurality of wireless sensors while the person is not wearing the gait-altering device. It is noted that while claims 54 and 55 provide antecedent basis for “first sensor data” and “second sensor data”, respectively, neither claim provides antecedent for “raw” first or second sensor data, and that even if claim 59 were amended to depend from either of claim 54 or 55, the limitations would lack antecedent basis for this reason.
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.
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Claims 53-60 and 62-71 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 12220230. Although the claims at issue are not identical, they are not patentably distinct from each other because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See table below for exact locations.
Instant Application
US 12220230
53. A method comprising: placing a gait-altering device on at least one foot of a person;
Claim 1, line 1-4
attaching a transferable housing to the gait-altering device, wherein the transferable housing contains a plurality of wireless sensors that monitor a gait of the person;
Claim 1, line 5-8
obtaining, using one or more of the plurality of wireless sensors of the transferable housing that monitor a gait of the person, first gait parameters while the person is wearing the gait-altering device;
Claim 1, line 9-12
removing the gait-altering device from the at least one foot of the person;
Claim 1, line 26-27
removing the transferable housing from the gait-altering device and attaching the transferable housing to the at least one foot of the person;
Claim 1, line 28-30
obtaining, using one or more of the plurality of wireless sensors of the transferable housing that monitor the gait of the person, second gait parameters while the person is not wearing the gait-altering device and has the transferable housing attached to the at least one foot;
Claim 1, line 31-35
analyzing, by one or more processors, at least a portion of the first gait parameters and the second gait parameters, wherein the analyzing at least comprises comparing at least a portion of the first gait parameters and the second gait parameters;
Claim 1, line 49-53
And determining, by the one or more processors, based at least in part on the analysis, a treatment plan and/or a modification of an existing treatment plan for the person involving use of the gait-altering device.
Claim 1, line 54-57
54. The method of claim 53, wherein obtaining the first gait parameters comprises transforming first sensor data from the one or more of the plurality of wireless sensors of the transferable housing into one or more of the first gait parameters wherein the one or more of first gait parameters includes one or more of gait cycle duration, gait cadence, stride length, stride velocity, turning angle, stance, swing, loading, foot flat, pushing, double support, peak angular velocity, swing speed, strike angle, lift-off angle, swing width, 3D path length, maximum heel clearance, maximum toe clearance (foot with toes angled downward), minimum toe clearance, and second maximum toe clearance (foot with toes angled downward) while the person is wearing the gait-altering device.
Claim 1, line 13-25
55. The method of claim 53, wherein obtaining the second gait parameters comprises transforming second sensor data from the one or more of the plurality of wireless sensors of the transferable housing into one or more of the second gait parameters wherein the one or more of second gait parameters includes one or more of gait cycle duration, gait cadence, stride length, stride velocity, turning angle, stance, swing, loading, foot flat, pushing, double support, peak angular velocity, swing speed, strike angle, lift-off angle, swing width, 3D path length, maximum heel clearance, maximum toe clearance (foot with toes angled downward), minimum toe clearance, and second maximum toe clearance (foot with toes angled downward) while the person is not wearing the gait-altering device.
Claim 1, line 36-48
56. The method of claim 53, wherein the gait-altering device comprises a gait-altering shoe comprising a frame adapted to support the at least one foot of the person; and at least one wheel that supports the frame above a walking surface, the wheel having a radius that varies as a function of angular position of the wheel such that the wheel automatically rotates when weight is applied to the shoe.
Claim 1, line 58-64
57. The method of claim 53, further comprising modifying an aspect of the gait- altering shoe based on at least a portion of the analyzed first gait parameters and/or second gait parameters.
Claim 5, line 1-4
58. The method of claim 57, wherein modifying the aspect of the gait-altering shoe based on at least a portion of the analyzed first gait parameters and/or second gait parameters comprises providing a new wheel with a design based at least in part on the portion of the analyzed first gait parameters and/or second gait parameters.
Claim 5, line 5-10
59. The method of claim 53, wherein the one or more processors comprise at least a portion of a cloud network, wherein the cloud network includes cloud storage, and at least a portion of the first raw sensor data and/or the first gait parameters related to the gait of the person while wearing the gait-altering device and at least a portion of the second raw sensor data and/or the second gait parameters related to the gait of the person while not wearing the gait-altering device is stored in the cloud storage.
Claim 2
60. The method of claim 53, wherein the plurality of wireless sensors comprise one or more of an accelerometer, a gyroscope, a barometer, and a position detection device.
Claim 3
It is noted that a GPS detection device may serve as a position detection device.
61. The method of claim 60, wherein the plurality of wireless sensors further comprise one or more of a video camera, a blood-pressure sensor, a pulse/heart rate sensor, a blood-oxygen level sensors, and a temperature sensor.
Not Present
See obviousness-type rejection in view of Pease (US 20130041617 A1)
62. The method of claim 53, wherein analyzing, by the one or more processors, at least the portion of the first gait parameters and the second gait parameters, further comprises comparing at least a portion of the first gait parameters obtained at a first time to at least a portion of the first gait parameters obtained at a second time and/or comparing at least a portion of the second gait parameters obtained at a first time to at least a portion of the second gait parameters obtained at a second time, wherein the first time and the second time are not the same.
Claim 4
63. The method of claim 53, further comprising providing, by the one or more processors, access to at least a portion of the analyzed first gait parameters and/or second gait parameters to one or more devices, wherein the one or more devices comprise one or more devices controlled by authorized persons.
Claim 6
64. A system comprising: a gait-altering device, wherein the gait-altering device is configured to be placed on at least one foot of a person;
Claim 7, line 1-4
a transferable housing comprising a plurality of wireless sensors contained within the transferable housing, said plurality of wireless sensors configured to monitor a gait of the person;
Claim 7, line 10-12
And one or more processors, wherein the one or more processors:
Claim 7, line 14-15
determine, from first sensor data received from one or more of the plurality of wireless sensors, first gait parameters while the person is wearing the gait-altering device on the at least one foot of the person, wherein the transferable housing containing the plurality of wireless sensors is attached to the gait-altering device while obtaining the first sensor data;
Claim 7, line 16-23
determine, from second sensor data received from one or more of the plurality of wireless sensors, second gait parameters, wherein said second sensor data comprises data obtained from the one or more of the plurality of wireless sensors while the person is not wearing the gait- altering device, wherein the transferable housing is removed from the gait- altering device and attached to the at least one foot of the person while obtaining the second sensor data;
Claim 7, line 34-42
analyze at least a portion of the first gait parameters and at least a portion of the second gait parameters wherein the analyzing at least comprises comparing at least a portion of the first gait parameters and the second gait parameters;
Claim 7, line 53-57
And determine, based at least in part on the analysis, a treatment plan and/or a modification of an existing treatment plan for the person involving use of the gait-altering device.
Claim 7, line 58-61
65. The system of claim 64, wherein the gait-altering device comprises a gait-altering shoe comprising a frame adapted to support at least one foot of a person; and at least one wheel that supports the frame above a walking surface, the wheel having a radius that varies as a function of angular position of the wheel such that the wheel automatically rotates when weight is applied to the shoe.
Claim 7, line 4-9
66. The system of claim 65, wherein an aspect of the gait-altering shoe is modified based on at least a portion of the analyzed first gait parameters and/or second gait parameters.
Claim 10, line 1-4
67. The system of claim 66, wherein modifying the aspect of the gait-altering shoe based on at least a portion of the analyzed first gait parameters and/or second gait parameters comprises providing a new wheel with a design based at least in part on the portion of the analyzed first gait parameters and/or second gait parameters.
Claim 10, line 4-9
68. The system of claim 64, wherein determining, from first sensor data received from the one or more of the plurality of wireless sensors, the first gait parameters comprises the one or more processors transforming the first sensor data obtained from the one or more of the plurality of wireless sensors into one or more of the first gait parameters, wherein the one or more of first gait parameters includes one or more of gait cycle duration, gait cadence, stride length, stride velocity, turning angle, stance, swing, loading, foot flat, pushing, double support, peak angular velocity, swing speed, strike angle, lift-off angle, swing width, 3D path length, maximum heel clearance, maximum toe clearance (foot with toes angled downward), minimum toe clearance, and second maximum toe clearance (foot with toes angled downward) while the person is wearing the gait-altering device.
Claim 7, line 23-33
69. The system of claim 64, wherein determining, from second sensor data received from the one or more of the plurality of wireless sensors, the second gait parameters comprises transforming the second sensor data obtained from the one or more of the plurality of wireless sensors into one or more of second gait parameters, wherein the one or more of second gait parameters includes one or more of gait cycle duration, gait cadence, stride length, stride velocity, turning angle, stance, swing, loading, foot flat, pushing, double support, peak angular velocity, swing speed, strike angle, lift-off angle, swing width, 3D path length, maximum heel clearance, maximum toe clearance (foot with toes angled downward), minimum toe clearance, and second maximum toe clearance (foot with toes angled downward) while the person is not wearing the gait- altering device.
Claim 7, line 42-52
70. The system of claim 64, wherein the one or more processors comprise at least a portion of a cloud network.
Claim 8
71. The system of claim 64, wherein the plurality of wireless sensors comprise at least an accelerometer, a gyroscope, a barometer, and a position detection device.
Claim 9
It is noted that a GPS detection device may serve as a position detection system.
72. The system of claim 71, wherein the plurality of wireless sensors further comprise one or more of a video camera, a blood-pressure sensor, a pulse/heart rate sensor, a blood-oxygen level sensors, and a temperature sensor.
Not Present
See obviousness-type rejection in view of Pease (US 20130041617 A1)
73. The system of claim 64, further comprising one or more devices controlled by authorized persons, wherein each of the one or more devices are configured to communicate with the one or more processors, and providing, by the one or more processors, access to at least a portion of the analyzed first gait parameters and/or second gait parameters to one or more of the devices.
Not present
See obviousness-type rejection in view of Benford (US 20180132758 A1)
Claims 61 and 72 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 3 and 9, respectively of U.S. Patent No. 12220230 in view of Pease (US 20130041617 A1).
Regarding claims 61 and 72, the reference patent teaches all limitations of the method of claim 60 and the system of claim 71. However, the reference patent fails to disclose wherein the plurality of wireless sensors further comprise one or more of a video camera, a blood-pressure sensor, a pulse/heart rate sensor, a blood-oxygen level sensors, and a temperature sensor.
Pease, in the same field of endeavor of system including a housing with a plurality of wireless sensors which attaches to a shoe of a user for monitoring gait parameters (Abstract; paragraph 0005-0009), discloses that the plurality of wireless sensors further comprise one or more of a video camera, a blood-pressure sensor, a pulse/heart rate sensor, a blood-oxygen level sensors, and a temperature sensor (Paragraph 0010, 0051-- The apparatus may include means for determining at least one second performance characteristic of the user, which can be based upon an output from the first sensor and/or be based upon an output from one or more second sensor(s). The second sensor(s) may include, or consist essentially of, one or more accelerometers, pressure sensors, force sensors, temperature sensors, chemical sensors, global positioning systems, piezoelectric sensors, rotary position sensors, gyroscopic sensors, heart-rate sensors, and/or goniometers. Other sensors, such as, but not limited to, electrocardiograph sensors, electrodermograph sensors, electroencephalograph sensors, electromyography sensors, feedback thermometer sensors, photoplethysmograph sensors, and/or pneumograph sensors may also be utilized in various embodiments of the invention).
It would have been obvious to one having ordinary skill in the art to modify the method and system of the reference patent to include additional sensors comprising one or more of a video camera, a blood-pressure sensor, a pulse/heart rate sensor, a blood-oxygen level sensors, and a temperature sensor as disclosed by Pease in order to predictably improve the system by enabling the monitoring of additional parameters of the user which may correlate with parameters relating to gait performance or indicating the presence of a condition which additionally relates to gait which would additionally enable the system to provide more substantive feedback to a user (see Pease, paragraph 0010, 0043, 0063-- The at least one second performance characteristic may include, or consist essentially of, at least one of a cadence, a posture, a lean, a speed, a distance travelled, and/or a heart rate of the user… improved systems, and related methods, for measuring, transmitting, storing, analyzing, and/or communicating substantive biofeedback data that may be utilized instantaneously, or substantially instantaneously, to promote good running form in an athlete during and/or after a run… the systems described herein may include sensors for measuring other parameters related to a runners performance including, but not limited to, distance, pace, time, calories burned, heart rate, breaths per minute, blood lactate and/or muscle activity (EMG). For example, measuring blood lactate levels may be of use in determining lactate threshold data in long-distance runners and other athletes).
Claim 73 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of U.S. Patent No. 12220230 in view of Benford (US 20180132758 A1).
Regarding claim 73, the reference patent teaches all limitations of the system of claim 64. However, the reference patent fails to explicitly disclose further comprising one or more devices controlled by authorized persons, wherein each of the one or more devices are configured to communicate with the one or more processors, and providing, by the one or more processors, access to at least a portion of the analyzed first gait parameters and/or second gait parameters to one or more of the devices.
Benford, in the same field of endeavor of a system for monitoring gait of a person using a gait altering device and one or more sensors to determine gait parameters of a user (Paragraph 0027-0028, 0033, 0040, 0063), teaches the system further comprising one or more devices controlled by authorized persons, wherein each of the one or more devices are configured to communicate with the one or more processors, and providing, by the one or more processors, access to at least a portion of the analyzed first gait parameters and/or second gait parameters to one or more of the devices (Paragraph 0036 results may be shared back over the network and perhaps also with one or more third parties having authorization to receive and review gait data; Paragraph 0056--Once the data is analyzed and processed, results may be made available to certain parties, such as doctors, family members, nurses, and so on, who may be included in that client's network; Paragraph 0071 differences may be characterized according to results that are meaning to the client's doctor and other parties having authorization to the client's data; It is noted that in this case, the “one or more devices” would correspond to the devices used by the third parties with authorization to receive and review data).
It would have been obvious to one having ordinary skill in the art at the time of filing to modify the reference patent to include the one or more devices as described by Benford in order to predictably improve the system by enabling the analyzed gait parameters to be reviewed by a medical provider in order to allow for monitoring of patient progress or worsening of gait which may be indicative of healing or a possible medical condition requiring further follow-up and treatment.
Conclusion
No rejection has been applied under 35 U.S.C. 102/103. The prior art of the record fails to teach and/or fairly suggest, in combination with all other recited limitations, "attaching a transferable housing to the gait-altering device, wherein the transferable housing contains all of a plurality of wireless sensors that monitor a gait of the person" and "removing the transferable housing from the gait-altering device and attaching the transferable housing to the at least one foot of the person".
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/ANNA ROBERTS/Examiner, Art Unit 3791
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