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 .
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: fastener in claim 1.
Claim limitation “fastener” has been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses a generic placeholder “fastener” as a substitute for means coupled with functional language “securing” without reciting sufficient structure to achieve the function. Furthermore, the generic place holder is not preceded by a structural modifier.
A review of the specification shows that the corresponding structure of the 35 U.S.C. 112(f) or pre-AIA U.S.C. 112, sixth paragraph limitation “fastener” described in the specification includes straps and hook and loop (Applicant’s specification, page 4, lines 24-29 ) and a magnetic fastener, a snap fastener, or a button-and-loop assembly (Applicant’s specification, page 6, lined 26-27).
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.
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 § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-10 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Claim 1, lines 5-7 recites “the upper fastener positioned to be above the knee and the lower fastener positioned to be below the knee” which positively claims the human body. Language such as “configured to “ or “adapted for” is recommend to positively avoid claiming human body parts. For example, the claim could be amended to recite “the upper fastener configured to be positioned above the knee and the lower fastener configured to be positioned below the knee”.
Claim 1, lines 10-11 recites “thereby securing the at least one looping resistance band around the legs of the user” which positively claims the human body. Language such as “configured to “ or “adapted for” is recommend to positively avoid claiming human body parts. For example, the claim could be amended to recite “thereby being configured to secure the at least one looping resistance band around the legs of the user”.
As claims 2-10 depend from claim 1, they are rejected for at least the same reasons as claim 1.
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.
Claim(s) 1, 3-6 and 8-9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Walker (US 2019/0351278) and as evidenced by SmartLoom (See attached NPL article entitled, Elastodiene Fibers: Manufacturing, Key Properties, and Their Versatile Applications) with regard to claim 4.
Regarding claim 1, Walker discloses a knee compression sleeve system (Fig. 4) ([0036], [0037], moisture wicking leggings 12 include pant legs which are sleeves which include a portion covering the knee and are made from compression fabrics and are thus a knee compression sleeve system) for resistance training and physical exercise ([0001], [0035], capable of intended use), the knee compression sleeve system comprising: a pair of knee compression sleeves (see annotated Fig. 4 below, [0036], [0037],
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moisture wicking leggings 12 include pant legs which are sleeves which include a portion covering the knee and are made from compression fabrics and are thus a knee compression sleeves), each comprising a stretchable fabric body configured to fit over a knee of a user ([0036], compression fabrics such as spandex are a stretchable fabric body and are configured to fit over a knee of a user as seen in Fig. 4) and surrounding leg region (Fig. 4 shows the leggings fitting over the knee and surrounding leg region); an upper fastener (14) (annotated Fig. 2 below; per 112f analysis above straps are fasteners and here the engaging loops are equivalent to straps)
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and a lower fastener (14) (loops 14 are equivalent to straps per 112f analysis discussed above) on each knee compression sleeve (annotated Fig. 2 above), the upper fastener positioned to be above the knee and the lower fastener positioned to be below the knee (annotated Fig. 2); and at least one looping resistance band (22) ([0041]), wherein the at least one looping resistance band is removably attachable to the upper fastener of each knee compression sleeve or the lower fastener of each knee compression sleeve ([0036], at least one resistance band is positioned through a legging loop [fastener] and is thus attachable to the upper fastener of each knee compression sleeve; [0041], the bands are unwrapped by unzipping the zipper and are thus removably attached to the fastener), thereby securing the at least one looping resistance band around legs of the user ([0041], resistance bands are wrapped around both legs) in a configuration that provides resistance to movement of the legs during exercise ([0035], capable of intended use).
Regarding claim 3, Walker discloses the invention as described above with regard to claim 1.
Walker further discloses wherein the stretchable fabric body of each knee compression sleeve comprises neoprene, a nylon blend, or a synthetic elastic material suitable for compression wear ([0036], compression fabrics such as spandex [which is a synthetic elastic material]).
Regarding claim 4, Walker discloses the invention as described above with regard to claim 1.
Walker further discloses wherein the at least one looping resistance band comprises latex, synthetic rubber, or another elastic material configured for resistance training ([0038], elastodien is an elastic material [as evidenced by SmartLoom, page 2] configured for resistance training as it is disclosed as being a suitable resistance type fabric).
Regarding claim 5, Walker discloses the invention as described above with regard to claim 1.
Walker further discloses wherein the at least one looping resistance band is configured to be removably attached to the upper fastener of each knee compression sleeve and the lower fastener of each knee compression sleeve simultaneously ([0041]; Fig. 4 shows two looping resistance bands attached; [0041], the resistance bands are unwrapped by unzipping the zipper and are thus one band is removably attached to the upper fastener and one band is removably attached to the lower fastener of each knee sleeve).
Regarding claim 6, Walker discloses the invention as described above with regard to claim 1.
Walker further discloses wherein the upper fastener and the lower fastener of each knee compression sleeve are positioned on lateral sides of the stretchable fabric body (As seen in Fig. 4, each upper and lower fastener 14 of each leg is positioned on a side portion of the leggings and are therefore positioned on lateral sides).
Regarding claim 8, Walker discloses the invention as described above with regard to claim 1.
Walker further discloses wherein the at least one looping resistance band is configured to maintain a secured position during lateral movements (capable of intended use; [0035], allow for a larger variety of exercise options), without slipping or rolling along the legs of the user ([0041], the user utilizes resistance bands without worry of the bands rolling up or down).
Regarding claim 9, Walker discloses the invention as described above with regard to claim 1.
Walker further discloses wherein the at least one looping resistance band is adapted for use during physical therapy, sprinting, walking, or sports training (capable of intended use; [0033], walking; [0035], large variety of exercises).
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.
Claim(s) 2 and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Walker (US 2019/0351278) in view of Torres (US 10874898).
Regarding claim 2, Walker discloses the invention as described above with regard to claim 1.
Walker further discloses that any number of fasteners can be added or taken away (Walker, [0051]).
Walker does not disclose wherein each of the upper fastener and the lower fastener comprises a hook and loop fastening mechanism.
Torres teaches an analogous system for resistance training (col. 4, lines 46-56) comprising an analogous fabric body (200) (col. 4, lines 53-63, an upper garment is analogous to a fabric body) and at least one analogous looping resistance band (400) (col. 5, lines 17-45), wherein the at least one looping resistance band is removably attached to an analogous fastener (208) (col. 5, lines 4-16, each retainer is for example cylindrical in shape and appears as a loop) (Fig. 2, col. 5, lines 4-26, each retainer 208 is fastened to itself or the interior of the garment via VELCRO, thus it follows that the band would be removably attached where the fastener is removably attached to the garment), wherein the analogous fastener comprises a hook and loop fastening mechanism (col. 5, lines 4-26, VELCRO).
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to provide that each of the upper and lower fastener of the knee compression sleeve system of Walker comprises a hook and loop fastening mechanism as taught by Torres in order to provide an improved knee compression sleeve system that facilitates removable coupling of the fastener to the looping resistance band or to the sleeve (col. 5, lines 4-26) and that facilitates adding or taking away fasteners (Walker, [0051]).
Regarding claim 10, Walker discloses the invention as described above with regard to claim 1.
Walker further discloses that any number of fasteners can be added or taken away (Walker, [0051]).
Walker does not discloses wherein at least at least one of the upper fastener and the lower fastener comprises a magnetic fastener, a snap fastener, or a button-and-loop assembly.
Torres teaches an analogous system for resistance training (col. 4, lines 46-56) comprising an analogous fabric body (200) (col. 4, lines 53-63, an upper garment is analogous to a fabric body) and at least one analogous looping resistance band (400) (col. 5, lines 17-45), wherein the at least one looping resistance band is removably attached to an analogous fastener (208) (col. 5, lines 4-16, each retainer is for example cylindrical in shape and appears as a loop; col. 5, lines 4-26, each retainer 208 is fastened to itself or the interior of the garment via VELCRO, thus it follows that the band would be removably attached where the fastener is removably attached to the garment), wherein the analogous fastener comprises a magnetic fastener, a snap fastener, or a button-and-loop assembly (col. 5, lines 4-26, buttons snaps is a snap fastener).
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to provide that at least one of the upper fastener and the lower fastener of the knee compression sleeve system of Walker comprises a magnetic fastener, a snap fastener, or a button-and-loop assembly, as taught by Torres in order to provide an improved knee compression sleeve system that facilitates removable coupling of the fastener to the looping resistance band or to the sleeve (col. 5, lines 4-26) and that facilitate adding or taking away fasteners (Walker, [0051]).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Walker (US 2019/0351278) in view of Weinberg (US 2008/0183118).
Regarding claim 7, Walker discloses the invention as described above with regard to claim 1.
Walker does not disclose each knee compression sleeve further comprises a thermal-retentive inner lining configured to provide warmth and support to a knee joint during exercise.
Weinberg teaches apparel ([0041]) comprising a thermal-retentive inner lining ([0021], the invention is a support device that comprises a flexible thermal capacitive elastomer configured to provide compression, padding and/or insulation [0039], the invention is fitted to surround a part of a leg in one example, [0041], the invention is used in lining of apparel and the material has a joint support such as those used for sore knees to provide compression, thermal treatment or comfort) configured to provide warmth and support to a knee joint during exercise ([0041]; capable of intended use of retaining heat [thermal-retentive] ).
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to provide that each compression sleeve of the knee-compression sleeve system of Walker further comprises a thermal-retentive inner lining configured to provide warmth and support to a knee joint during exercise, as taught by Weinberg, in order to provide an improved knee-compression sleeve system that provides compression, thermal treatment or comfort (Weinberg, [0041]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GINA MCCARTHY whose telephone number is (408)918-7594. The examiner can normally be reached Monday - Friday, 7:00-3:30 PT.
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/G.M./Examiner, Art Unit 3786
/ALIREZA NIA/Supervisory Patent Examiner, Art Unit 3786