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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Objections
Claim 1 is objected to because of the following informalities: the limitation,
“A posture correction device comprising:
a base part that can be freely fixed to a predetermined structure desired by the user; and a recognizing part having a frame whose one side is coupled to the base part in such a manner as to allow one or more of a height and an angle to be adjusted and adapted to be fixedly located under a user’s chin or around the user’s neck according to his or her posture to be recognized visually and tactilely,
wherein the recognizing part comprises:
support tubes coupled to the base part;
a recognizing support tube connected to the support tubes through articulation; and
at least one or more elastic members, tilting in one direction by the action of an external force and returned to original positions thereof by elastic force if the external force is released,
wherein the elastic member is connected to the base part or another support tube to provide an elastic restoring force,
allowing the user to recognize the relative position with the recognizing part fixed around the user through height and angle adjustments, determine posture, and naturally guide the user to correct posture through user recognition”
should read,
“A posture correction device comprising:
a base part that can be freely fixed to a predetermined structure desired by [[the]] a user; and a recognizing part having a frame whose one side is coupled to the base part in such a manner as to allow one or more of a height and an angle to be adjusted and adapted to be fixedly located under a user’s chin or around the user’s neck according to his or her posture to be recognized visually and tactilely,
wherein the recognizing part comprises:
support tubes coupled to the base part;
a recognizing support tube connected to the support tubes through articulation; and
at least one or more elastic members, tilting in one direction by [[the]] an action of an external force and returned to original positions thereof by elastic force [[if]] when the external force is released,
wherein the elastic member is connected to the base part or another support tube to provide an elastic restoring force,
allowing the user to recognize [[the]] a relative position [[with]] when the recognizing part is fixed around the user through height and angle adjustments, determine posture, and naturally guide the user to correct posture through user recognition”
Appropriate correction is required.
Claim 11 is objected to because of the following informalities: the limitation, “The posture correction device according to claim 10, wherein the recognizing part further comprises an upper body posture checking member connected to the frame in such a manner as to be located around the user’s upper body under the user’s neck if the visual/tactile checking member is located under the user’s chin or around the user’s neck” should read, “The posture correction device according to claim 10, wherein the recognizing part further comprises an upper body posture checking member connected to the frame in such a manner as to be located around the user’s upper body under the user’s neck [[if]] when the visual/tactile checking member is located under the user’s chin or around the user’s neck”. Appropriate correction is required.
Claim 12 is objected to because of the following informalities: the limitation, “The posture correction device according to claim 11, wherein the recognizing part further comprises: a string or frame connected to the other side end portion of the frame in such a manner as to located under the visual/tactile checking member; and an upper body posture checking member provided on the end of the string or frame in such a manner as to be located around the user’s upper body under the user’s neck if the visual/tactile checking member is located under the user’s chin or around the user’s neck” should read, “The posture correction device according to claim 11, wherein the recognizing part further comprises: a string or frame connected to the other side end portion of the frame in such a manner as to located under the visual/tactile checking member; and an upper body posture checking member provided on the end of the string or frame in such a manner as to be located around the user’s upper body under the user’s neck [[if]] when the visual/tactile checking member is located under the user’s chin or around the user’s neck”. Appropriate correction is required.
Claim 13 is objected to because of the following informalities: the limitation, “The posture correction device according to claim 11, wherein the recognizing part further comprises: a contact frame whose one side is coupled to the frame in such a manner as to protrude toward the user’s upper body; and an upper body posture checking member provided on the other side end portion of the contact frame in such a manner as to be located around the user’s upper body under the user’s neck if the visual/tactile checking member is located under the user’s chin or around the user’s neck” should read, “The posture correction device according to claim 11, wherein the recognizing part further comprises: a contact frame whose one side is coupled to the frame in such a manner as to protrude toward the user’s upper body; and an upper body posture checking member provided on the other side end portion of the contact frame in such a manner as to be located around the user’s upper body under the user’s neck [[if]] when the visual/tactile checking member is located under the user’s chin or around the user’s neck”. Appropriate correction is required.
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.
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:
Slider fixer means as set forth in claim 4.
An abdomen contact member as set forth in claim 4.
A coupling means as set forth in claim 5.
Fastening means as set forth in claim 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.
As per the specification, “the coupling means” is an articulation and the fastening means are bolt and nut.
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.
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 1-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. (12,161,224 B2). Although the claims at issue are not identical, they are not patentably distinct from each other because the application claims are a broader recitation of the invention than that of the patented application.
Claim 1of the instant application recites: a posture correction device comprising: a base part that can be freely fixed to a predetermined structure desired by the user; and a recognizing part having a frame whose one side is coupled to the base part in such a manner as to allow one or more of a height and an angle to be adjusted and adapted to be fixedly located under a user’s chin or around the user’s neck according to his or her posture to be recognized visually and tactilely, wherein the recognizing part comprises: support tubes coupled to the base part; a recognizing support tube connected to the support tubes through articulation; and at least one or more elastic members, tilting in one direction by the action of an external force and returned to original positions thereof by elastic force if the external force is released, wherein the elastic member is connected to the base part or another support tube to provide an elastic restoring force, allowing the user to recognize the relative position with the recognizing part fixed around the user through height and angle adjustments, determine posture, and naturally guide the user to correct posture through user recognition.
Claim 1 of U.S. Patent No. (12,161,224 B2) recites: a posture correction device comprising: a base part that can be freely fixed to a predetermined structure desired by a user; and a recognizing part having a frame whose one side is coupled to the base part in such a manner as to allow one or more of a height and an angle to be adjusted and adapted to be fixedly located under a user's chin or around the user's neck according to his or her posture to be recognized visually and tactilely, wherein the recognizing part comprises: support tubes coupled to the base part; a recognizing support tube connected to the support tubes through an articulation; and at least one or more elastic members tilting in one direction by an action of an external force and returned to original positions thereof if the external force is released, and wherein the elastic member is inserted into a hollow formed in the support tube or recognizing support tube, connected to the base part or other support tubes to provide elastic restoring force, allowing the user to recognize a relative position with the recognizing part fixed under the user's chin or around the user's neck through height and angle adjustments, determine incorrect posture while seated, and naturally guide the user to correct posture through recognition without physical contact.
Although the conflicting claims are not identical, they are not patentably distinct from each other because the difference between claim 1 of the current application and claim 1 of U.S. Patent No. (12,161,224 B2) lies in the fact that the patented claims include many more elements and is thus much more specific. Thus, the invention of claim 1 of U.S. Patent No. (12,161,224 B2) is in effect a “species” of the “generic” invention of current application claim 1. It has been held that the generic invention is “anticipated” by the “species". See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since claim 1 of the current application is anticipated by claim 1 of U.S. Patent No. (12,161,224 B2) it is not patentably distinct from claim 1 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 2 can be found in claim 7 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 3 can be found in claim 8 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 4 can be found in claim 9 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 5 can be found in claim 12 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 6 can be found in claim 13 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 7 can be found in claim 14 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 8 can be found in claim 15 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 9 can be found in claim 16 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 10 can be found in claim 2 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 11 can be found in claim 3 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 12 can be found in claim 4 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 13 can be found in claim 5 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 14 can be found in claim 6 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 15 can be found in claim 10 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 16 can be found in claim 11 of U.S Patent No. (12,161,224 B2).
All of the limitations of claim 17 can be found in claim 17 of U.S Patent No. (12,161,224 B2).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OPHELIA ALTHEA HAWTHORNE whose telephone number is (571)270-3860. The examiner can normally be reached M-F 8:00 AM-5:00 PM, EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alireza Nia can be reached at 5712703076. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/OPHELIA A HAWTHORNE/ Primary Examiner, Art Unit 3786