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 .
Election/Restrictions
Applicant’s election without traverse of Group 1 in the reply filed on 9/21/2026 is acknowledged.
Claims 13-22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 9/21/2026.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 3/28/2025 was filed in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Interpretation
Applicant is put on notice that all instances of “and/or” can be treated as “or” such that limitations are optional as only one limitation OR another is required by the claims.
Claim Interpretation – 112(f)
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: “measuring device configured to” in claim 1.
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 (see structures disclosed in claim 2, for example) as performing the claimed function, and equivalents thereof.
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 § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1-4, 6-10 and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schauer (Applicant-cited NPL: “Sensing motion an muscle activity for feedback control of functional electrical stimulation: Ten years of experience in Berlin”).
Regarding claims 1-4, 6 and 12, Schauer discloses a limb muscle rehabilitation system with a controller, a stimulating electrode, and an EMG electrode that, in response to an applied stimulation to a muscle, receives data indicative of muscle movement and determined movement related to volitional muscle force and stimulated muscle force (See section 2.2-2.2.3 and 3.3 and figures 17-19). After the user is instructed to raise their arm, user effort is estimated to correct the expended effort to maximize volitional force while reducing fatigue and achieving a movement goal by altering the stimulation applied, as needed (Section 1.4, 2.4, 3.3 and 4 and figures 17-19).
Regarding claim 7, the instructions on how to perform the exercise must be given by some sort of device, including a human speaker, a display, etc.
Regarding claims 8-9, stimulation intensity is decreased in order to obtain the desired corrected effort expended by a user which maximizes volitional force relative to stimulated force to reduce slacking.
Regarding claim 10, see section 1.3 which discloses modulation of pulse width and/or amplitude.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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 5 is rejected under 35 U.S.C. 103 as being obvious over Schauer in view of Xie et al. (Applicant-cited NPL: “Mean frequency derived via Hilber-Huan transform with application to fatigue EMG signal analysis” hereinafter Xie).
Schauer discloses the applicant’s basic invention, but is silent as to the fatigue be estimated using median frequency of the data. Xie discloses that the mean frequency of EMG signal can be used to indicate muscle fatigue (see abstract) and the mean and median are conventional spectral variables (see introduction). Therefore, it would have been obvious to one of ordinary skill in the art before the applicant’s effective filing date to modify Schauer to determine fatigue using median frequency as Xie teaches this to be a known methodology in the art.
Claim 11 is rejected under 35 U.S.C. 103 as being obvious over Schauer in view of Abraham et al. (US 2026/0054059, hereinafter Abraham).
Schauer discloses the applicant’s basic invention, but is silent as to how the stimulation parameters are modulated and activated. Abraham discloses an FES system, and thus is analogous art with Schauer. Abraham discloses that the parameters of FES stimulation can be activated/modulated by using the magnetic fields of a magnet (par. 0015, 0070, 0077). Therefore, it would have been obvious to one of ordinary skill in the art before the applicant’s effective filing date to modify Schauer to utilize a magnet to activate/modulate stimulation as Abraham shows this to be a known methodology in the art that would not have affected to the overall operation or purpose of Schauer.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See applicant-cited NPL and attached PTO-892, especially:
“Contributions to muscle force and EMG by combines neural excitation and electrical stimulation” by Crago et al.
“Functional Neuromuscular Stimulation Controlled by Surface Elctromyographic Signals Produced by Volitional Activation of the Same Muscle: Adaptive Removal of the Muscle Response from the Recorded EMG-Signal” by Sennels et al.
“M-wave elimination from surface electromyogram of electrically stimulated muscles using singular value decomposition: Preliminary results” by Tabernig et al.
“Interaction of post-stroke voluntary effort and functional neuromuscular electrical stimulation” by Makowski et al.
“Evaluation of methods for extraction of the volitional EMG in dynamic hybrid muscle activation” by Langzam et al.
All of the NPL disclose systems and methods for isolating volitional EMG from stimulated EMG and/or using that information for feedback-controlled stimulation.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Eric D Bertram whose telephone number is (571)272-3446. The examiner can normally be reached Monday-Friday 8am-6pm Central Time.
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, Jennifer McDonald can be reached at 571-270-3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Eric D. Bertram/Primary Examiner, Art Unit 3796
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