DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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 1-14 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.
Claim 1 recites the limitation "the straps" in line 11. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the spine" in line 12. There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the limitation "the shoulder straps" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the limitation "the waist straps" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the limitation "the assembly" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites the limitation "the third thoracic vertebra" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites the limitation "the first sacral vertebra" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the assembly" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 9 recites the limitation "the assembly" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recite the limitation "the subject" in lines 2 and 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the shoulder straps" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the waist straps" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites the limitation "the subject" in line 11. There is insufficient antecedent basis for this limitation in the claim.
Claim 12 recites the limitation "the straps" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation "the assembly" in line 1. There is insufficient antecedent basis for this limitation in the claim.
The remaining claims are necessarily rejected as being dependent upon a rejected base claim and therefore includes the same unpatentable subject matter.
Double Patenting
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 1-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-29 of U.S. Patent No. 12447037. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of patent ‘037 recite the limitations of a spine force modulating assembly comprising: a frame of a “S” shape configured to support a human spine, the shape of the frame is configured to conform to thoracic and lumbar curvature of the human spine, wherein thoracic curvature of the frame corresponds to 30 -50 degrees of thoracic kyphosis and lumbar curvature of the frame corresponds to 30 -50 degrees of lumbar lordosis; an abdominal strap independently and circumferentially attached to a lower portion of the frame; and a pair of shoulder straps that extends between near the upper end of the frame and respective sides of the lower portion of the frame, wherein the spine force modulating assembly is configured for dispersing, transmitting, transmuting, and subsuming spine forces while supporting the human spine, the spine force modulating assembly improves an alignment of a person by enhancing the person's posture: standing erect (X-plane correction), standing taller (Y-plane correction), and opening the chest, embracing proper thoracic kyphosis, proper lumbar lordosis, tightening waist circumference and pelvic tilting (Z-plane corrections), the spine force modulating assembly increases efficiency of load carrying capability of the person while diminishing stresses seen by the spine, the spine force modulating assembly obviously reads on broader limitations of claim 1 of instant application.
With respect to claims 2-9 of the instant application, all of the broader limitations are found in claims 2-10 of patent ‘037.
With respect to claims 10-14 of the instant application, all of the broader limitations are found in claims 11-29 of patent ‘037.
Claims 1-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 11896510. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of patent ‘510 recite the limitations of a spine force modulating assembly comprising: a frame of a length proportional to a distance between a third thoracic spine bone and a first sacral spine bone of a spine of a wearer of the spine force modulating assembly, wherein the frame is of a "S" shape and configured to support a spine portion between the third thoracic spine bone and the first sacral spine bone, the shape of the frame conforms to thoracic and lumbar spine that matches natural reverse c-shape alignment of the thoracic spine with kyphosis and natural c-shape of the lumbar spine in lordosis, wherein said spine force modulating assembly is for dispersing, transmitting, transmuting, and subsuming spine forces while supporting a human spine, and wherein the spine force modulating assembly improves an alignment of a person by enhancing the person's posture, standing erect (X- plane correction), standing taller (Y-plane correction), and opening the chest, embracing proper thoracic kyphosis, proper lumbar lordosis, tightening waist circumference and pelvic tilting (Z-plane corrections), the spine force modulating assembly increases efficiency of load carrying capability of the person while diminishing stresses seen by the spine obviously reads on broader limitations of claim 1 of instant application.
With respect to claims 2-9 of the instant application, all of the broader limitations are found in claims 2-9 of patent ‘510.
With respect to claims 10-14 of the instant application, all of the broader limitations are found in claims 10-14 of patent ‘510.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TARLA R PATEL whose telephone number is (571)272-3143. The examiner can normally be reached M-Th 6-2:30PM.
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/TARLA R PATEL/Primary Examiner, Art Unit 3786
