DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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.
Claims 1-7 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.
With regard to claim 1, the limitation “the improvement” is recited. There is a lack of antecedent basis for the claim term as “an improvement” has not been previously recited. Furthermore, there is a degree of subjectivity/relative terminology as to what “an improvement” would encompass within its scope, would such mean any and all features those claimed and those disclosed? Just a foot pedal? An arbitrary term? It’s respectfully recommended to cancel “the improvement” or otherwise claim the physical bodies claim scope is sought for, otherwise the term reads as perhaps narrative and would not be afforded patentable weight.
Further regarding claim 1, the limitation “the first cross-support arm” is recited. There is a lack of antecedent basis for the claim term as “a first cross-support arm” has not been previously recited. For the purposes of examination, the limitation “the first cross-support arm” is construed as “a first cross-support arm”.
Regarding claims 1 and 4, the limitations “a downward force applied” “causes an opposite end of the pedal tube and an opposite end of the lift tube to lift…” “to raise the rear end of the base frame…” are recited. There is confusion as to the scope and definiteness of the claims as the claims appear to invoke both apparatus and method of using the apparatus in the same claim. A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. See In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303, 1318, 97 USPQ2d 1737, 1748-49 (Fed. Cir. 2011). (MPEP 2173.05(p) is relevant). And a question arises when the apparatus is actively being used (such that claimed in claim 7), or when the device is so configured to facilitate such features. Of the invention. Furthermore, It has been held that the recitation with respect to the matter in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex part Masham, 2 USPQ2d 1647 (1987). For the purposes of examination, the limitations are treated in light of the preamble reciting an apparatus (e.g. “An adjustable lifting device”) and are construed as configured to claims and only necessitate the structures necessary to facilitate the features of the apparatus claim.
Regarding claim 7, the limitations “releasing the foot pedal to raise the foot pedal” and “the foot pedal retracts into the pedal tube and folded” is recited. There is confusion as to the scope of the previously cited limitations as the claim is to a method and appears to be a contingent limitation, wherein it has previously been considered that "[t]he broadest reasonable interpretation of a system claim having structure that performs a function, which only needs to occur if a condition precedent is met, still requires structure for performing the function should the condition occur." Schulhauser at 14 (MPEP 2111.04 is relevant). Wherein it is unclear what the structure is that facilitates ‘the release’ of the foot pedal to functionally facilitate raising the foot pedal. Applicant’s specification does not further clarify what “releasing the foot pedal” entails (paragraphs [0007] and [0034]). It’s unclear what the mechanism of this feature would be and it draws a question of if applicant’s even have possession of the claimed invention (but at present is considered an indefiniteness). However, it’s unclear if the claim is merely reciting “cease holding down, and the hinge is free to move again” or whether the releasing is actively facilitating the lifting/raising in the manner the claim is presently. Further clarity and explanation are respectfully requested and otherwise amendment is necessary, and for the purposes of examination, the limitation is construed as that the foot pedal may have the downward force relented/ceased and the foot pedal can hinge in the opposite direction, and the system to reverse.
Additionally, the limitation “retracts into the pedal tube and folded” appears to perhaps be a typographical error or an incomplete sentence/limitation such as necessitating “is folded” or similar, or perhaps folded should be construed as cancelled, As the pedal tube does not fold, neither does the foot pedal on its own as the claim appears to state (e.g. “the foot pedal retracts into the pedal tube and is folded, such would respectfully not appear to be shown in the depictions and may necessitate a drawing objection thereto, as the same typographical error is observed for FIG. 7 as well, leaving the limitation unclear. The nearest explanation is that the foot pedal is folded relative some other structure, per paragraph [0028]. Further clarity and explanation are respectfully requested and otherwise amendment is necessary, and for the purposes of examination, the limitation is construed as the foot pedal can be folded relative another body.
Claims 2-3, and 5-6 are additionally rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112 second paragraph as being dependent on an indefinite antecedent claim (at least claims 1 and 4).
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-7 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Chen (Chinese Pub. No. CN209203804U).
Regarding claim 1, Chen discloses (FIGS. 1-4) an adjustable lifting device (As illustrated between FIGS. 1-4) having: a base frame (correspondent at least 1; FIGS. 1-4) comprising a rear end (about 12; FIGS. 1-4); at least one actuating rod mechanically coupled to the rear end (8; FIGS. 1-4); and a lift tube (5; FIGS. 1-4) mechanically coupled to the at least one rod; wherein the improvement comprises: in an open position (as illustrated in FIG. 1), a foot pedal (13; FIGS. 1-4) that is extended upward and outward from a pedal tube (correspondent the tubing correspondent “telescopic pedal” and the eminent tube 13 may slide into and out of to collapse; as illustrated between FIGS. 1-4) such that the foot pedal is positioned in front of the base frame (As illustrated in FIG. 1 and 3), such that a downward force applied to the foot pedal causes an opposite end of the pedal tube and an opposite end of the lift tube to lift via the first cross-support arm (as conveyed in FIGS. 1-3), to raise the rear end of the base frame via the at least one {actuating} rod (as conveyed in FIGS. 1-3), and in a closed position, the foot pedal is retracted into the pedal tube and folded such that the foot pedal can be stowed under the base frame (as conveyed in FIGS. 1-3, wherein the tube 13 being “telescopic” will avail the foot pedal to be retracted into the pedal tube).
Regarding claim 2, Chen discloses (FIGS. 1-4) the apparatus of claim 1, wherein the foot pedal is a telescoping foot pedal. Where Chen is observed to refer to 13 as a “telescoping pedal” and is clearly by its location used by the feet and is remarked as such in [0042] “a telescopic pedal 13 one end is connected between the two first mobile wheels 4, telescopic foot pedal 13 of the other end extends to the seat 1 the front side, such that the feet of the user can be placed on the telescopic pedal 13”.
Regarding claim 3, Chen discloses (FIGS. 1-4) the apparatus of claim 1, wherein the rear end of the base frame can be raised (As illustrated in FIG. 2) and the foot pedal retracted within the pedal tube (As previously set forth with consideration that 13 is a telescopic tube) such that the adjustable chair is nestable with other adjustable chairs for easier storage. It has been held that the recitation that an element is “capable of” performing a function is not a positive limitation but only requires the ability to so perform. It does not constitute a limitation in any patentable sense. In re Hutchinson, 69 USPQ 138. Where “nestable” is understood as ‘capable of nesting’. And further It has been held that the recitation with respect to the matter in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex part Masham, 2 USPQ2d 1647 (1987). Where “for easier storage” is construed as narrative and intended use and does not possess patentable weight for an apparatus.
Regarding claim 4, Chen discloses (FIGS. 1-4) an apparatus, comprising: a base frame (correspondent at least 1; FIGS. 1-4) comprising a rear end (about 12; FIGS. 1-4); a back frame (2; FIGS. 1-4) mechanically coupled to the base frame via a first pivot point (about pivot point 12 ; FIGS. 1-4), the back frame comprising a first cross-arm support (correspondent connection/circle beneath 12; FIGS. 1-4); a support frame (correspondent the whole frame including 8 and framework thereof; FIGS. 1-4) mechanically coupled to the back frame via a second pivot point (about hinge/axle beneath 12, and hinge 12; FIGS. 1-4), the support frame comprising a second cross-support arm (at least cross bar correspondent the circle/axle beneath 9; FIGS. 1-4); at least one hydraulic piston (claim 3: “wherein the first telescopic rod and the second telescopic rod are hydraulic telescopic rod or an electric telescopic rod”) mechanically coupled to the second cross-support arm and the rear end (as illustrated in FIGS. 1-4); at least one actuating rod mechanically coupled to the rear end (8; FIGS. 1-4); a lift tube (5; FIGS. 1-4) mechanically coupled to the at least one rod and rotatably coupled to the first-cross support arm (as illustrated in FIGS. 1-4); a pedal tube (correspondent the tubing correspondent “telescopic pedal” and the eminent tube 13 may slide into and out of to collapse; as illustrated between FIGS. 1-4) mechanically coupled to the lift tube and rotatably coupled to the first cross-support arm (As illustrated in FIGS. 1-4); and a foot pedal (13; FIGS. 1-4) mechanically coupled to the pedal tube (As illustrated in FIGS. 1-4), wherein: in an open position (as illustrated in FIG. 1), the foot pedal is extended upward and outward from the pedal tube such that the foot pedal is positioned in front of the base frame, a downward force applied to the foot pedal causes an opposite end of the pedal tube and an opposite end of the lift tube to lift via the first cross-support arm (As illustrated in FIGS. 1-3), to raise the rear end of the base frame via the at least one actuating rod (as illustrated between FIGS. 1-3), and in a closed position, the foot pedal is retracted into the pedal tube and folded such that the foot pedal can be stowed under the base frame (as conveyed in FIGS. 1-4, wherein the tube 13 being “telescopic” will avail the foot pedal to be retracted into the pedal tube).
Regarding claim 5, Chen discloses (FIGS. 1-4) the apparatus of claim 4, wherein the rear end of the base frame can be raised (As illustrated in FIG. 2) and the foot pedal retracted within the pedal tube (As previously set forth with consideration that 13 is a telescopic tube) such that the adjustable chair is nestable with other adjustable chairs for easier storage. It has been held that the recitation that an element is “capable of” performing a function is not a positive limitation but only requires the ability to so perform. It does not constitute a limitation in any patentable sense. In re Hutchinson, 69 USPQ 138. Where “nestable” is understood as ‘capable of nesting’. And further It has been held that the recitation with respect to the matter in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex part Masham, 2 USPQ2d 1647 (1987). Where “for easier storage” is construed as narrative and intended use and does not possess patentable weight for an apparatus.
Regarding claim 6, Chen discloses (FIGS. 1-4) the apparatus of claim 1, wherein the foot pedal is a telescoping foot pedal. Where Chen is observed to refer to 13 as a “telescoping pedal” and is clearly by its location used by the feet and is remarked as such in [0042] “a telescopic pedal 13 one end is connected between the two first mobile wheels 4, telescopic foot pedal 13 of the other end extends to the seat 1 the front side, such that the feet of the user can be placed on the telescopic pedal 13”.
Regarding claim 7, Chen discloses (FIGS. 1-4) a method comprising: extending the foot pedal outward and upward from the pedal tube of the apparatus of claim 1 (as conveyed in FIG. 1 and 4, such that the foot pedal is positioned in front of the base frame (As illustrated in FIG. 1 and 4); applying a downward force to the foot pedal to cause the opposite end of the pedal tube and the opposite end of the lift tube to lift via the first cross-support arm (as conveyed in FIG. 2), to raise the rear end of the base frame via the at least one actuating rod (as illustrated in FIG. 2);releasing the foot pedal to raise the foot pedal and cause the rear end of the base frame to descend (as conveyed in FIGS. 1 and 4); and applying an inward force to the foot pedal such that the foot pedal retracts into the pedal tube and folded, such that the foot pedal can be stowed under the base frame (as conveyed in FIGS. 1-4, wherein the tube 13 being “telescopic” will avail the foot pedal to be retracted into the pedal tube). Where it is additionally considered Under the principles of inherency, if a prior art device, in its normal and usual operation, would necessarily perform the method claimed, then the method claimed will be considered to be anticipated by the prior art device. When the prior art device is the same as a device described in the specification for carrying out the claimed method, it can be assumed the device will inherently perform the claimed process. In re King, 801 F.2d 1324, 231 USPQ 136 (Fed. Cir. 1986). Where Chen clearly and operably facilitates the requisite features of applicant’s claimed method by availing the requisite structure and provides the same as the device described and claimed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additional references cited on the Notice of References Cited (PTO-892) were considered pertinent because they address the state of the art concerning articulated seating assemblies, foot pedals of such, and configurations of framework.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Luke F Hall whose telephone number is (571)272-5996. The examiner can normally be reached M-F 8am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Justin Mikowski can be reached at 571-272-8525. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LUKE HALL/Examiner, Art Unit 3673
/JUSTIN C MIKOWSKI/Supervisory Patent Examiner, Art Unit 3673