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 .
Status of Claims
Claims 1-19 are presently pending and under examination.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it is 175 words. Correction is required. See MPEP 608.01(b).
The disclosure is objected to because of the following informalities:
In [0064], line 4 “(ie the peak voltage 44)” should read “(i.e. the peak voltage 44)”
Appropriate correction is required.
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.
(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, 3-5, 7-14, and 16-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Matsushita (WO 2019/151136 A1, citations from NPL Translation), hereinafter Matsushita.
Regarding claim 1, Matsushita discloses a device for electrical stimulation of a subject (exercise equipment control system 100) comprising:
electrical stimulation means (muscle electrical stimulators 10a to 10g) that is adapted to apply an electrical stimulation voltage to muscles of a user, in use, to generate the motion of a body part ([0016] “The muscle electrical stimulator 10 provides electrical stimulation to the user’s muscles using a weak electric current”, [0029] “muscle electrical stimulators 10 designed to be attached to other body parts, the base material is formed in a shape suitable for attachment to that body part, and a number of electrodes suitable for conducting electricity to that body part are provided”, [0068] “electrical stimulation is applied to the muscles in the front of the shins, calves, and soles of the feet, promoting movement involving contraction and relaxation of these muscles. In other words, it encourages the movement of the muscles below the knee and in the legs.”);
apparatus for detecting motion of the electrical stimulation means ([0059] acceleration sensor), the apparatus comprising:
(i) a motion detector to detect the motion of the device and generating a motion output signal in response to the detected motion, the motion output signal being indicative of the amount of detected motion ([0069] “a pressure sensor and an acceleration sensor are attached to the muscle electrical stimulator 10g to detect the oscillation of the muscle electrical stimulator 10g”);
(ii) a processor (control unit 70: setting processing unit 63) coupled to the motion detector, the processor receiving the motion output signal from the motion detector and generating a first processor output signal in response to the received motion output signal ([0058]-[0059] “The setting processing unit 63 adjusts the operating time, period, waveform, etc., according to these measurements, their changes, or differences in the speed of movement of different body parts”);
(iii) an output device (display unit 72) coupled to the processor, the output device receiving the first processor output signal from the processor and generating a first output signal in response to the received first processor output signal; and wherein the processor generates the first processor output signal if either: (i) the received motion output signal is greater than a threshold; or (ii) the received motion output signal is less than a threshold ([0069] “Therefore, a pressure sensor and an acceleration sensor are attached to the muscle electrical stimulator 10g to detect the oscillation of the muscle electrical stimulator 10g. If the detected oscillation value of the 10g muscle electrical stimulator falls below a predetermined level, indicating insufficient oscillation, the system may notify the user that the voltage value is insufficient or to increase it to an appropriate level, or it may automatically perform control to increase the voltage to an appropriate level”).
Regarding claim 3, Matsushita discloses the device according to claim 1 (as shown above), wherein the motion detector comprises an accelerometer ([0059], [0050] “Sensors used to detect a user’s movement state and activity level include Doppler sensors, electromyography sensors, pressure sensors, accelerometers, and cameras”).
Regarding claim 4, Matsushita discloses the device according to claim 1 (as shown above), wherein the output device comprises at least one of: a visual display device ([0038] “The display unit 72 is a touch panel display device such as a liquid crystal panel or an organic EL panel, which displays information on the screen and accepts user input.”).
Regarding claim 5, Matsushita discloses the device according to claim 1, wherein the motion output signal is proportional to the detected motion ([0059] “By providing an acceleration sensor to a type of device on which the user places both feet (muscle electrical stimulator 10g), the oscillation of the muscle electrical stimulator 10g, as described later, may be detected.”).
Regarding claim 7, Matsushita discloses the device according to claim 1 (as shown above), wherein the motion detected is a repetitive motion of the device ([0059] “By providing an acceleration sensor to a type of device on which the user places both feet (muscle electrical stimulator 10g), the oscillation of the muscle electrical stimulator 10g, as described later, may be detected.”, Examiner notes that oscillation is defined as the action or state of swinging backward and forward or move/travel back and forth between two points. https://www.merriam-webster.com/dictionary/oscillate)
Regarding claim 8, Matsushita discloses the device according to claim 1 (as shown above), wherein the processor has an output that is coupled to the electrical stimulation means to enable the processor to control the electrical stimulation voltage (electrical stimulation control unit 54, [0011] “a muscle electrical stimulator that applies electrical stimulation to muscles, and comprises a sensor that detects information about the user's body, and a control unit that controls the voltage applied between electrodes and processes the information detected by the sensor”, [0035] “The electrical stimulation control unit 54 increases or decreases the operating time, period, set voltage value, etc., based on the value detected by the sensor 40.”).
Regarding claim 9, Matsushita discloses the device according to claim 1 (as shown above), wherein the processor increases the electrical stimulation voltage if the received motion output signal is less than the threshold ([0069] “If the detected oscillation value of the 10g muscle electrical stimulator falls below a predetermined level, indicating insufficient oscillation, the system may notify the user that the voltage value is insufficient or to increase it to an appropriate level, or it may automatically perform control to increase the voltage to an appropriate level”).
Regarding claim 10, Matsushita discloses the device according to claim 1 (as shown above), wherein the processor is adapted to be coupled to a user input device (Figure 3b: button 20a and 20b), and the processor is configured to control the electrical stimulation voltage in response to a user input signal received from the user input device, in use ([0035] “The setting unit 56 receives input from the plus button 20a and minus button 20b, which are positioned vertically, and increases or decreases the set voltage value applied by the electrical stimulation control unit 54”).
Regarding claim 11, Matsushita discloses the device according to claim 1 (as shown above), wherein the electrical stimulation means are adapted to stimulate the muscles of a limb of a user ([0068] “A stimulating current flows through a pair of electrodes in both legs to deliver electrical stimulation. This stimulating current is delivered through the user's left leg, right leg, and a 10g muscle electrical stimulator as the electrical pathways. When an electrical current is passed through both legs, electrical stimulation is applied to the muscles in the front of the shins, calves, and soles of the feet, promoting movement involving contraction and relaxation of these muscles.”).
Regarding claim 12, Matsushita discloses the device according to claim 11 (as shown above), wherein the electrical stimulation means are adapted to stimulate the muscles of a lower limb of a user ([0068] “A stimulating current flows through a pair of electrodes in both legs to deliver electrical stimulation. This stimulating current is delivered through the user's left leg, right leg, and a 10g muscle electrical stimulator as the electrical pathways. When an electrical current is passed through both legs, electrical stimulation is applied to the muscles in the front of the shins, calves, and soles of the feet, promoting movement involving contraction and relaxation of these muscles.”).
Regarding claim 13, Matsushita discloses the device according to claim 1 (as shown above), wherein the electrical stimulation means comprises a first electrical contact surface and a second electrical contact surface; wherein the first and second electrical contact surfaces are adapted to contact a first and a second limb, respectively of a user, in use ([0068] “using the muscle electrical stimulator 10g, the user sits in a seated position and places both feet on the pair of footrests 92L and 92R of the muscle electrical stimulator 10g. A seated position refers to a posture in which both feet (FL and FR) are lowered while sitting on a chair or other seat, or on the floor. A stimulating current flows through a pair of electrodes in both legs to deliver electrical stimulation.”, view Figure 7).
Regarding claim 14, Matsushita discloses the device according to claim 13 (as shown above), wherein the first and second electrical contact surfaces are adapted to contact a first foot and a second foot, respectively of a user, in use ([0068] “using the muscle electrical stimulator 10g, the user sits in a seated position and places both feet on the pair of footrests 92L and 92R of the muscle electrical stimulator 10g. A seated position refers to a posture in which both feet (FL and FR) are lowered while sitting on a chair or other seat, or on the floor. A stimulating current flows through a pair of electrodes in both legs to deliver electrical stimulation.”, view Figure 7).
Regarding claim 16, Matsushita discloses the device according to claim 1 (as shown above), wherein the device further comprises a pivot member (view Examiner modified Figure 7), the pivot member being adapted to permit the device to pivot around the pivot member in response to motion of the body part ([0068] “The main body 16 of the muscle electrical stimulator 10g is provided so as to be able to swing back and forth with vertical movement at both the front and rear ends, while a part of it is in contact with the ground”).
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Regarding claim 17, Matsushita discloses a system comprising a device according to claim 1 (as shown above); and a remote device (exercise equipment control device 12), wherein the first output signal comprises a wireless data signal and the remote device is adapted to receive the wireless data signal from the apparatus and to generate a remote user output signal in response to the received wireless data signal ([0016] “Each of the muscle electrical stimulators 10a to 10g communicates with the exercise equipment control device 12 via short-range wireless communication such as Bluetooth® to send and receive information”, [0017] “The exercise equipment control device 12 sets the correspondence between muscle electrical stimulators 10a to g and the body parts on which they are used, and controls the intensity setting and operation of each muscle electrical stimulator 10.”).
Regarding claim 18, Matsushita discloses the system according to claim 17 (as shown above), wherein the remote device is a mobile device ([0017] “The exercise equipment control device 12 is a type of information terminal operated by the user, such as a mobile phone terminal like a smartphone, a tablet terminal, or a personal computer”) and the remote user output signal generated by the mobile device comprises is generated on a user interface of the mobile device by application software on the mobile device ([0016] “The exercise equipment control program executed in the exercise equipment control device 12 communicates with the muscle electrical stimulators 10a to g to control the settings and operation of each of the muscle electrical stimulators 10a to g.”)
Regarding claim 19, Matsushita discloses the system according to claim 17 (as shown above), wherein the remote device comprises a user input device which is adapted to receive an input from a user; in response to a received input, the remote device being adapted to transmit a remote user input signal to the apparatus, the processor being adapted to receive the remote user input signal and to control the electrical stimulation voltage in response to the received remote user input signal, in use ([0017] “The exercise equipment control device 12 is a type of information terminal operated by the user, such as a mobile phone terminal like a smartphone, a tablet terminal, or a personal computer… The muscle electrical stimulator 10 can be set to intensity and operated independently, and the user may operate the muscle electrical stimulator 10 directly or via the exercise equipment control device 12…it is more efficient for the user to control multiple muscle electrical stimulators 10a to g collectively by operating the exercise equipment control device 12 rather than setting and operating each of the multiple muscle electrical stimulators 10a to g individually.”)
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.
Claim(s) 2 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matsushita.
Regarding claim 2, Matsushita discloses the device according to claim 1 (as shown above), wherein: (ii) if the first processor output signal is generated when the received motion output signal is less than the threshold ([0069] “If the detected oscillation value of the 10g muscle electrical stimulator falls below a predetermine level, indicating insufficient oscillation, the system may notify the user that the voltage value is insufficient or to increase it to an appropriate level, or it may automatically perform control to increase the voltage to an appropriate level”).
Matsushita fails to explicitly disclose the processor generates a second processor output signal if the received motion output signal is greater than the threshold; and the output device generates a second output signal in response to the second processor output signal.
However, Matsushita does disclose “When the setting processing unit 63 monitors the user's heart rate using these sensors, it may promote blood flow during single contractions by applying electrical stimulation with a waveform timed to match the heart rate. The setting processing unit 63 reduces training by lowering the set voltage value if the heart rate rises too high and exceeds a predetermined value, and conversely, increases the intensity by raising the set voltage value if the heart rate is low enough to fall below the predetermined value. As a result, the muscle electrical stimulation device 10 can be used more effectively” ([0065]).
It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to have also generated a second processor output signal if the received motion output signal is greater than the threshold, and the output device generates a second output signal in response to the second processor output signal similar to the signals generated in response to the heart rate being above or below a threshold. One would be motivated to do this to apply and use electrical stimulation more effectively ([0065]).
Regarding claim 15, Matsushita discloses the device according to claim 1 (as shown above). Although Matsushita does not explicitly teach wherein the processor only generates the first processor output signal when the electrical stimulation means applies the electrical stimulation voltage; or wherein the processor only generates the second processor output signal when the electrical stimulation means applies the electrical stimulation voltage.
Examiner notes that Matsushita teaches “however, in the case of users unfamiliar with using the 10g muscle electrical stimulator, it is possible that some may hesitate to increase the voltage and not properly raise the voltage until the 10g muscle electrical stimulator starts to vibrate. Therefore, a pressure sensor and an acceleration sensor are attached to the muscle electrical stimulator 10g to detect the oscillation of the muscle electrical stimulator 10g. If the detected oscillation value of the 10g muscle electrical stimulator falls below a predetermined level, indicating insufficient oscillation, the system may notify the user that the voltage value is insufficient or to increase it to an appropriate level, or it may automatically perform control to increase the voltage to an appropriate level.”, it would be obvious to one skilled in the art that the output signal of “insufficient oscillation” or “voltage value or insufficient” is a result of the stimulation being applied but determining that it is insufficient, thus one skilled in the art would find it obvious that this notification is generated after a stimulation has been applied.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matsushita as applied to claim 1 above, and further in view of Matsushita (JP 2020010960 A, citations from NPL translation), hereinafter JP’960.
Regarding claim 6, Matsushita discloses the device according to claim 1 (as shown above), wherein the motion detected is a rotational motion (view Figure 3 and 4 of JP’960, [0038] “The stand 34 is rotatably supported by a bearing portion (not shown) of the main body 16 via a support shaft portion 34d provided on each of a pair of arm portions”, [0015] “Figure 3 shows the main body 16 in a stationary position Pb1 (first position), and Figure 4 shows the main body 16 in an operating position Pb2 (second position). The electrical stimulation device 10 includes a main body 16 that serves as a footrest. As will be described later, the main body 16 can assume a stationary position Pb1 and an operating position Pb2 by swinging back and forth with a part of it touching the ground.”)
Examiner notes that JP’960 is discussing a similar foot electrical stimulation device that is disclosed in Matsushita and both prior art references are from the same inventor.
Double Patenting
Claims 1 and 16 of this application are patentably indistinct from claim 8 of Application No. 18/002,857. Pursuant to 37 CFR 1.78(f), when two or more applications filed by the same applicant or assignee contain patentably indistinct claims, elimination of such claims from all but one application may be required in the absence of good and sufficient reason for their retention during pendency in more than one application. Applicant is required to either cancel the patentably indistinct claims from all but one application or maintain a clear line of demarcation between the applications. See MPEP § 822.
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 and 16 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 8 of U.S. Patent No. 12,440,674 B2, hereinafter Koetje. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of Koetje recite the entire scope of the respective claims of the instant application (as shown in detail below). Since the instant application’s claims are fully encompassed by Koetje, the difference between the application claims and Koetje’s claim lies in the fact that Koetje’s claims include more elements and is thus more specific. Accordingly, the invention of Koetje is a “species” of the “generic” invention of the application claims. In has been held that the generic invention is “anticipated” by the “species”. Since the application claims are anticipated by Koetje’s claims, it is not patentably distinct from the patent claim (view Table below).
INSTANT APPLICATION CLAIMS
APPLICATION NO. 18/002857 – US PATENT 12,440,674 B2
1. A device for electrical stimulation of a subject comprising: electrical stimulation means that is adapted to apply an electrical stimulation voltage to muscles of a user, in use, to generate the motion of a body part; apparatus for detecting motion of the electrical stimulation means, the apparatus comprising:(I) a motion detector to detect the motion of the device and generating a motion output signal in response to the detected motion, the motion output signal being indicative of the amount of detected motion;(ii) a processor coupled to the motion detector, the processor receiving the motion output signal from the motion detector and generating a first processor output signal in response to the received motion output signal;(iii) an output device coupled to the processor, the output device receiving the first processor output signal from the processor and generating a first output signal in response to the received first processor output signal; and wherein the processor generates the first processor output signal if either: (I) the received motion output signal is greater than a threshold; or (ii) the received motion output signal is less than a threshold.
16. according to claim 1, wherein the device further comprises a pivot member, the pivot member being adapted to permit the device to pivot around the pivot member in response to motion of the body part.
1. (Currently Amended) Apparatus for detecting motion of a device for electrical stimulation of a subject, the apparatus comprising:(I) a motion detector to detect the motion of the device and generating a motion output signal in response to the detected motion, the motion output signal being indicative of the amount of detected motion;(ii) a processor coupled to the motion detector, the processor receiving the motion output signal from the motion detector and generating a first processor output signal in response to the received motion output signal;(iii) an output device coupled to the processor, the output device receiving the first processor output signal from the processor and generating a first output signal in response to the received first processor output signal; and wherein the processor generates the first processor output signal if either: (I) the received motion output signal is greater than a threshold; or (ii) the received motion output signal is less than a threshold; and wherein the device further comprises a pivot member, the pivot member being adapted to permit the device to pivot around the pivot member in response to motion of a body part in contact with the device.
8. (Previously Amended) An apparatus according to claim 1, wherein the device comprises electrical stimulation means that is adapted to apply an electrical stimulation voltage to muscles of a user, in use, to generate the motion of the body part.
Conclusion
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/ATTIYA SAYYADA HUSSAINI/Examiner, Art Unit 3792
/NIKETA PATEL/Supervisory Patent Examiner, Art Unit 3792
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