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 .
Drawings
The drawings are objected to because “100” in Fig. 4A should read --400--, see para. [0078] of the specification; “825” is missing from Fig. 8, see para. [0090]; and in Fig. 15, “1400” appears to be directed to the hinge assembly, however, “1400” was used to designate the first cuff in Figs. 14A, and 14B, see para. [0120]. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “400” has been used to designate both the sleeve-based orthosis and an additional feature in Fig. 4B. Also, “825” in Fig. 9A has been used to designate two different feature. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities: “(angular” in line 7 of para. [0103] should read --angular--. 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.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(A)(1) as being anticipated by U.S. Patent No. 4,532,921 (“von Torklus et al.”).
Regarding claim 1, von Torklus et al. discloses a knee joint bandage that anticipates Applicant’s claimed invention. More specifically, von Torklus et al. discloses an orthopedic sleeve (shown in Fig. 1) comprising: a sleeve body (knee hose 1 and holder/guide 2, see col. 2, lines 25-26 and line 31); and one or more tunnel segments (the portion of the sleeve body through which strap 3 is positioned) formed within the sleeve body (see Fig. 1 and col. 2, line 28-30), wherein each of the one or more tunnel segments is configured to encapsulate a portion of a strap (a middle portion of the strap is encapsulated by the tunnel segment (see col. 2, lines 28-31) that is adapted to apply an unloading effect on a body part stabilized by the orthopedic sleeve (see col. 2, lines 53-55, which recite during a movement, the knee disk 10 is retained by the supporting strap 3 in the lifted position; thereby an unloading is continuously attained).
Claim(s) 1 (alternate rejection) and 8 is/are rejected under 35 U.S.C. 102(A)(1) as being anticipated by von Torklus et al.
Regarding claim 1, von Torklus et al. discloses a knee joint bandage that anticipates Applicants’ claimed invention. More specifically, von Torklus et al. discloses an orthopedic sleeve (shown in Fig. 1) comprising: a sleeve body (knee hose 1, see col. 1, lines 17-18); and one or more tunnel segments (holder/guide 2, see col. 2, lines 25-26 and line 31) formed within the sleeve body (see Fig. 1 and col. 2, line 28-30), wherein each of the one or more tunnel segments is configured to encapsulate a portion of a strap (a middle portion of the strap 3 is encapsulated by the tunnel segment (see col. 2, lines 28-31) that is adapted to apply an unloading effect on a body part stabilized by the orthopedic sleeve (see col. 2, lines 53-55, which recite during a movement, the knee disk 10 is retained by the supporting strap 3 in the lifted position; thereby an unloading is continuously attained).
Regarding claim 8, von Torklus et al. discloses the orthopedic sleeve of claim 1, wherein the one or more tunnel segments are knitted to be formed within the sleeve body or the one or more tunnel segments are formed by a layer of material, separate from the sleeve body, attached to a surface of the sleeve body to form the one or more tunnel segments (von Torklus et al. discloses a holder formed as a tubular guide is sewn on the knee hose 1, see col. 2, line 25-26).
Claim(s) 1-3, 10 and 11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent No. 1,388,722 (“Sheehan”).
Regarding claim 1, Sheehan discloses a knee supporter that anticipates Applicants’ claimed invention. More specifically, Sheehan discloses an orthopedic sleeve (shown in Figs. 1-4) comprising: a sleeve body (10, see page 3, lines 50-53); and one or more tunnel segments (loops 17, 18, 19, 23, see Figs 1-3 and page 3, lines 68 and 77) and formed within the sleeve body (see Figs. 1-3), wherein each of the one or more tunnel segments is configured to encapsulate a portion of a strap (see Figs. 1-3) that is adapted to apply an unloading effect on a body part stabilized by the orthopedic sleeve (the sleeve 10, stays 11 and straps 11, 12 assist in bracing, thereby stabilizing and offloading the knee, see page 3, line 100-page 4, line 12).
Regarding claim 2, Sheehan discloses the orthopedic sleeve of claim 1, wherein the one or more tunnel segments are positioned to concentrate at a desired side area of the body part being a knee to unload forces against the knee (as can be seen in Figs. 1 and 2, the tunnel segments, constituted by loops 17, 18 and 19 which comprise straps, are concentrated on the sides of the knee joint and help unload forces against the knee along with the strays 11, by bracing the knee joint).
Regarding claim 3, Sheehan discloses the orthopedic sleeve of claim 1 further comprising: a plurality of pockets (16, see page 3, lines 64-67 and Fig. 4) formed on the sleeve body (retaining pockets for stays 11 are provided by sewing leather portions upon the sleeve 10 for receiving the stays and felt 15), the plurality of pockets include a first pocket and a second pocket (see Fig. 4, which show pockets 16 on the left and right sides), wherein the one or more tunnel segments are formed in the sleeve body between the first pocket and the second pocket (tunnel segment, i.e. loop 23 is positioned between the first and second pockets, see Figs. 1 and 2).
Regarding claim 10, Sheehan discloses a knee supporter that anticipates Applicants’ claimed invention. More specifically, Sheehan discloses an orthopedic sleeve (shown in Figs. 1-4) operating for positioning to surround a knee of a patient (see page 3, lines 48-50) comprising: a sleeve body (10, see page 3, lines 50-53); and a plurality of tunnel segments (loops 17, 18, 19, 23, 26, see Figs 1-4 and page 3, lines 68 and 77) formed within the sleeve body (see Figs. 1-3), wherein each of the plurality of tunnel segments is configured to encapsulate a portion of a strap (see Figs. 1-3) to which a prescribed amount of tension can be initiated to apply an unloading effect on the knee stabilized by the orthopedic knee sleeve (the sleeve 10, stays 11 and straps 11, 12 assist in bracing, thereby stabilizing and offloading the knee, see page 3, line 100-page 4, line 12).
Regarding claim 11, Sheehan discloses the orthopedic sleeve of claim 1, wherein the plurality segments are positioned to concentrate at a desired side area of the body part being a knee to unload lateral or medial forces against the knee (as can be seen in Figs. 1 and 2, the tunnel segments, constituted by loops 17, 18 and 19 which comprise straps, are concentrated on both the lateral and medical the sides of the knee joint and help unload forces against the knee along with the strays 11, by bracing the knee joint).
Regarding claim 12, Sheehan discloses the orthopedic sleeve of claim 1 further comprising: a plurality of pockets (16, see page 3, lines 64-67 and Fig. 4) formed on the sleeve body (retaining pockets for stays 11 are provided by sewing leather portions 16 upon the sleeve 10 for receiving the stays and felt 15), the plurality of pockets include a first pocket and a second pocket (see Fig. 4, which show pockets 16 on the left and right sides), wherein the plurality of tunnel segments are formed in the sleeve body between the first pocket and the second pocket (tunnel segments, i.e. loops 23 and 26 are positioned between the first and second pockets, see Figs. 1, 2 and 4).
Regarding claim 17, Sheehan discloses the orthopedic sleeve of claim 10, wherein the plurality of tunnel segments are knitted to be formed within the sleeve body or the plurality of tunnel segments are formed by a layer of material, separate from the sleeve body, sewn to a surface of the sleeve body to form the plurality of tunnel segments (page 3, lines 75 recites the three loops 17, 18, and 19 are provided upon each stay 11, with securing means such as rivets 20 firmly connected through the said loops, the leather portion 16, stays 11 and cushions 15, the inner heads of the rivets 20 being protected by the webbing 10 to which the leather portions 16 are marginally secured by stitching 21).
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent No. 2013/0110023 (“Scheuermann et al.”).
Regarding claim 1, Scheuermann et al. discloses a knee bandage having a corrective strap that anticipates Applicants’ presently claimed invention. More specifically, Scheuermann et al. discloses an orthopedic sleeve (see Figs. 1-4) comprising: a sleeve body (constitute by textile stocking 10, see para. [0023]) and one or more tunnel segments (channels 40, see Figs. 1-4, which show a channel formed within the textile stocking 10), wherein each of the one or more tunnel segments is configured to encapsulate a portion of a strap (strap 30, see para. [0023]) that is adapted to apply an unloading effect on a body part stabilized by the orthopedic sleeve (see para. [0023] which recites the tensile strap 30 passes through the penetration 15 from the inside of the textile web to the outside in order to be fastened via the upper end 31 or the lower end 32 at variable anchoring points 11, 12; in a particular embodiment, the textile stocking additionally comprises a flat spring element 50; the anchoring points 11, 12 may be connected to the flat spring element 50 in a force-fitting fashion in order to mechanically stabilize the anchoring points; further disclosed in in para. [0020] is that at least one stabilizing flat spring element at or in the textile stocking at the side of the bandage extending in the longitudinal extension of the bandage, in order to stabilize the knee joint bandage per se in a mechanical fashion; in a particular embodiment of such an embodiment, it is now provided that at least one of the anchoring points at the end of the tensile strap is directly connected to the flat spring element in a force-fitting fashion; this way a better local fixation of the tensile strap can be achieved, which improves the application of force upon the tensile strap by bending the knee and thus also the mechanic effect upon the patella; thus; strap 30 and sleeve 10 assists in stabilizing and unloading forces on the patella).
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent Application No. 2013/0110023 (“Scheuermann et al.”) .
Regarding claim 1, Scheurmann et al. discloses a knee brace having a corrective strap that anticipates Applicants’ presently claimed invention. More specifically, Scheurmann et al. discloses an orthopedic sleeve (see Figs. 1-4) comprising: a sleeve body (textile stocking 10); and one or more tunnel segments (channel 40, see Figs, 1-4 and para. [0023]) formed within the sleeve body, wherein each of the one or more tunnel segments is configured to encapsulate a portion of a strap (tensile strap 30, see para. [0023] and Figs. 1-4) that is adapted to apply an unloading effect on a body part stabilized by the orthopedic sleeve (see para. [0023]).
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(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scheuermann et al. in view of U.S. Patent No. 2002/0190451 (“Sancaktar et al.”)
Regarding claim 9, Scheuermann et al. discloses the orthopedic sleeve of claim 1, wherein the sleeve further comprises a band (constituted by spring 50) material positioned longitudinally along the sleeve body to provide additional support to the after the thermoplastic material is heated above its thermal melting threshold and subsequent cooled to assume a semi-rigid form on the orthopedic sleeve being of a flexible form.
However, Sancaktar et al. in the disclosure of an analogous spring teaches it is known to construct a spring (10) from a thermoplastic material to mechanically stabilize the anchor points (11, 12) of strap (30, see para. [0023]). Applicants should know that it has been held that selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). See also In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960)
In view of Sancaktar et al., it would have been obvious to one having ordinary skill in the art before the effective filing date of the presently claimed invention to have modified Scheuermann et al., by constructing spring (50) from a thermoplastic material in order to shape the spring to the body part of the user as an obvious matter of engineering choice.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scheuermann et al.
Regarding claim 10, Scheuermann et al. discloses an orthopedic sleeve (see Figs. 1-4) operating for positioning to surround a knee of a patient, the orthopedic sleeve comprising: a sleeve body (constituted by textile stocking 10) and a tunnel segment (channel 40) formed within the sleeve body (see Figs. 1-4), wherein the tunnel segment is configured to encapsulate a portion of a strap (tensile strap 30) to which a prescribed amount of tension can be initiated to apply an unloading effect on the knee stabilized by the orthopedic sleeve (see para. [0023]).
Scheuermann et al. fails to teach a plurality of tunnel segments. However, the court held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). Therefore, it would have been obvious to one having ordinary skill in the art to have added additional tunnel segments to the knee bandage of 35. Scheuermann et al. in order to stabilize the entire patella.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scheuermann et al. in view of Sancaktar et al.
Regarding claim 18, modified Scheuermann et al. discloses the orthopedic sleeve of claim 10, except wherein the sleeve further comprises a band of thermoplastic material positioned longitudinally along the sleeve body to provide additional support after the thermoplastic material is heated above its thermal melting threshold and subsequent cooled to assume a semi-rigid form on the orthopedic sleeve being of a flexible form.
However, Scheuermann et al. discloses the orthopedic sleeve of claim 10, wherein the sleeve further comprises a band (constituted by spring 50) of material positioned longitudinally along the sleeve body to provide additional support to the after
However, Sancaktar et al. in the disclosure of an analogous spring teaches it is known to construct a spring (10) from a thermoplastic material to mechanically stabilize the anchor points (11, 12) of strap (30, see para. [0023]). Applicants should know that it has been held that selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). See also In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960).
In view of Sancaktar et al., it would have been obvious to one having ordinary skill in the art before the effective filing date of the presently claimed invention to have modified Scheuermann et al., by constructing spring (50) from a thermoplastic material in order to shape the spring to the body part of the user as an obvious matter of engineering choice.
However, Sancaktar et al. in the disclosure of an analogous spring teaches it is known to construct a spring (10) from a thermoplastic material to mechanically stabilize the anchor points (11, 12) of strap (30, see para. [0023]). Applicants should know that it has been held that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). See also In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960)
In view of Sancaktar et al., it would have been obvious to one having ordinary skill in the art before the effective filing date of the presently claimed invention to have modified Scheuermann et al., by constructing spring (50) from a thermoplastic material in order to shape the spring to the body part of the user as an obvious matter of engineering choice.
Allowable Subject Matter
Claims 4-7 and 13-16 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The closest prior art is that of U.S. Patent No. 1,388,772 to Sheehan. Sheehan discloses an orthopedic sleeve comprising: a sleeve body; and one or more tunnel segments formed within the sleeve body, wherein each of the one or more tunnel segments (or a plurality of segments, see claim 10) is configured to encapsulate a portion of a strap that is adapted to apply an unloading effect on a body part stabilized by the orthopedic sleeve; a plurality of pockets formed on the sleeve body, the plurality of pockets include a first pocket and a second pocket, wherein the one or more tunnel segments (or a plurality of segments see claim 12) are formed in the sleeve body between the first pocket and the second pocket (see the rejections of claims 1, 3, 10 and 12 above). Sheehan further discloses, the one or more tunnel segments (or plurality of segments, see claim 12) includes a first tunnel segment (17) extending downwardly in a first direction from the first pocket (see Fig. 2), a second tunnel segment (18) extending downwardly in a second direction, being different from the first direction, from the first pocket (see Fig. 2).
Sheehan and the other cited prior art reference neither teach nor suggest to one alone, or in combination, a third tunnel segment extending upwardly to become aligned with the first tunnel segment, and a fourth tunnel segment extending upwardly to become aligned with the second tunnel segment, as recited in claims 4 and 13. Accordingly, neither an anticipation or obviousness rejection can be established with respect to the claimed subject matter as set forth in claims 4 and 13 and claims 5-7 and 14-16, which depend therefrom, respectively.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure in that they disclose knee braces or splints to stabilixe the knee joint.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KIM M LEWIS whose telephone number is (571)272-4796. The examiner can normally be reached Monday -Friday 5:30 am -11:30 am.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alireza Nia can be reached at (571)270-3076. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KIM M LEWIS/Primary Examiner, Art Unit 3786
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