Ex Parte Goldfarb et al

Patent Trial and Appeal Board

Apr 10, 2017

13508175 (P.T.A.B. Apr. 10, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/508,175 05/04/2012 Michael Goldfarb 20004.0091 8383
78102 7590
Nixon Peabody LLP
799 9th Street, NW
Washington, DC 20001
EXAMINER
SNOW, BRUCE EDWARD
ART UNIT PAPER NUMBER
3738
NOTIFICATION DATE DELIVERY MODE
04/12/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
nppatent @ nixonpeabody. com
ipairlink @ nixonpeabody. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL GOLDFARB,
HUSEYIN ATAKAN VAROL,
BRIAN EDWARD LAWSON and
FRANK CHARLES SUP
Appeal 2015-007269
Application 13/508,175
Technology Center 3700
Before STEVEN D.A. McCARTHY, JILL D. HILL and
ERIC C. JESCHKE, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge.
DECISION ON APPEAL
1 The Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
2 decision finally rejecting claims 1, 4, 5, 9, 11 and 44 under pre-AIA 35
3 U.S.C. §112, second paragraph, as indefinite. Claims 2, 8, 10 and 12 are
4 withdrawn from consideration as being directed to non-elected subject
1 The Appellants identify the real party in interest as Vanderbilt
University.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Appeal 2015-007269
Application 13/508,175
matter.2 Claims 3,6,1 and 13—43 are cancelled. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
The claims on appeal relate to transfemoral leg prostheses, that is, to
prostheses designed for above-the-knee amputees. (See Spec., para. 3). The
Specification teaches that amputees fitted with conventional transfemoral
prostheses are subject to falling, or to fear of falling, due to the failure of
conventional prostheses to react appropriately when the amputee stumbles.
(See Spec., paras. 3 & 4). In particular, the Specification teaches that the
recovery mechanisms by which a natural leg responds to stumbling are
active and cannot be carried out by prostheses lacking powered joints. (See
Spec., para. 37; see also id., para. 23 (distinguishing between passive
prostheses and powered lower limb prostheses)).
The Appellants identify two typical, active responses when a human
trips or stumbles:
2 On page 2 of the Answer, and on page 2 the Final Office Action,
mailed August 4, 2014 (“Final Action”), the Examiner lists claim 12 among
those claims rejected as indefinite under the second paragraph of § 112. On
the other hand, the Examiner omits claim 12 from the list of rejected claims
on the cover sheets of the Advisory Action, mailed November 13, 2014, and
of the Final Action. Instead, the cover sheet of the Final Action, as well as
the cover sheet of an Office Action, mailed February 20, 2014, list claim 12
among the claims withdrawn from consideration as being directed to non-
elected subject matter. The Examiner provides no explanation why claim 12
might have been rejoined to the claims examined on the merits. In
particular, the Examiner has made no finding that independent claim 1
constitutes an allowable linking claim for claim 12. Therefore, we assume,
for purposes of this appeal, that claim 12 has been withdrawn from
consideration; and that the rejection of claim 12 was a typographical error in
the Final Action, which was then propagated into the Answer.
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
Appeal 2015-007269
Application 13/508,175
When the perturbation occurs in early swing, humans
typically demonstrate an elevating strategy, which consists of
two distinct motion objectives, characterized by two distinct
period of motion. In the first period of motion, the hip, knee, and
ankle joints exhibit active flexion, which effectively elevates the
foot above the obstacle, while also carrying the foot forward in
space. In the second period of motion, the hip continues to flex,
while the knee and ankle joints actively extend, which effectively
accelerates the foot forward and toward the ground. This can
alternatively be interpreted as arresting the forward angular
momentum imparted to the body by impact with the obstacle.
... The effect of the elevating strategy is thus to clear the obstacle
and place the swing foot at a point (in the sagittal plane) that will
arrest the forward angular momentum of the body.
When the swing leg experiences a perturbation later in the
swing phase, subjects generally demonstrate a lowering strategy.
This case essentially amounts to a premature heel (or in this case
foot) strike, induced by collision with the obstacle. As such, the
swing leg knee joints extends and stiffens in a manner consistent
with early stance phase, which initiates early triggering of swing
phase in the contralateral limb. In general, the limb that steps
forward to arrest forward angular momentum of the body is
referred to as the “recovery limb.” Using this terminology, the
swing leg serves as the recovery limb during the lowering
strategy.
(Spec., paras. 36 & 37). The Appellants seek to reproduce these recovery
responses in powered transfemoral prostheses.
The Specification teaches that the stumble recovery process for a
prosthesis begins when a stumble event is detected. (Spec., para. 38). The
Specification then teaches that:
After a stumble event is detected, the event may then be
classified as either a lowering or elevating event. In particular,
the recovery behavior in response to the stumble can be
determined. That is, the response above the powered joint or the
overall motion of the lower limb device can be determined in
order to [ascertain] how to adjust the powered joints during the
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
Appeal 2015-007269
Application 13/508,175
response. This determination can be made by monitoring the
acceleration or motion of one or more portions of the lower limbs
following the stumble event. For example, in some
embodiments, the acceleration or motion of the thigh portion of
the lower limb can be directly measured. In another
embodiment, the signals from sensors in the knee, shank, ankle,
and/or foot portions of the prosthesis can be used to infer or
estimate the acceleration or motion of the thigh portion.
Regardless of the type of measurement, the measurements can be
used to extract the type of motion being used to recover from the
stumble.
(Spec., para. 41).
The Examiner rejects claim 1, the sole independent claim on appeal,
as indefinite. Claim 1 is reproduced below, with the language held
indefinite reproduced in italics:
1. A method of controlling a prosthetic lower limb device
comprising a powered knee joint, the method comprising:
detecting a stumble event based on one or more
sensor signals associated with at least an overall motion of
the prosthetic lower limb device;
classifying a likely response strategy for the
stumble event as a lowering strategy or an elevating
strategy3 based on the sensor signals after the stumble
event, the classifying comprising:
estimating at least one measure of a
motion of a residual limb associated with the
prosthetic lower limb device based on the
sensor signals,
comparing the at least one measure to
a threshold amount, and
3 The Examiner concluded in the Final Action that the language
“classifying a likely response strategy for the stumble event as a lowering
strategy or an elevating strategy” was indefinite (see Final Act. 2—3), but
withdrew the conclusion in the Answer (see Ans. 2).
4
Appeal 2015-007269
Application 13/508,175
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
choosing one of the lowering strategy
or the elevating strategy as the likely
response strategy based on the comparing;
and
configuring the powered knee joint of the prosthetic
lower limb device to operate according to one of a
lowering response corresponding to the lowering strategy
or an elevating response corresponding to the elevating
strategy based on the classifying,
wherein the lowering response comprises extension
of the prosthetic lower limb device relative to the powered
knee joint, and wherein the elevating response comprises
an initial flexion of the prosthetic lower limb device
relative to the powered knee joint and a subsequent
extension of the prosthetic lower limb device relative to
the powered knee joint.
Dependent claim 4 recites:
4. The method of claim 1, wherein the estimating of the at
least one measure of the motion of the residual limb
comprises estimating an acceleration of the residual limb.
The Examiner’s statement of the rejection is brief: “Regarding claim
2, ‘at least one measure of a motion'' is indefinite as to the scope of the
measure. Please direct to the specification for a description. This [may be]
broader than what is supported in the specification.” (Ans. 3; Final Act. 2).
On the Continuation Sheet of an Advisory Action, mailed November 13,
2014, the Examiner phrases the rejection slightly differently: “The language
‘at least one measure of a motion’ is not defined by the specification and is
indefinite.” The Examiner expands on these statements in the “Response to
Argument” section of the Answer:
Nowhere in the specification can the language “at least one
measure of a motion” be found or defined. One has to assemble
the language drawing from the entire specification only to be left
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Appeal 2015-007269
Application 13/508,175
wondering about its scope. In the context of the claim,
“estimating at least one measure of a motion” is not a clear notice
to the public of the boundary.
(Ans. 3—4).
The Appellants correctly characterize the language “one measure of a
motion” as “necessarily constituting] measurements or measures that
describe or characterize the motion of an object in question, such as the
residual limb recited in the claims.” (App. Br. 8). The Appellants correctly
argue that “one of ordinary skill in the mechanical arts would [have]
recognize [d] that motion of the residual limb would be described or
characterized using measures or measurements of displacement, velocity,
and/or acceleration, alone or in combination with measures or measurements
of time and direction.” (App. Br. 8—9).
We conclude that the language “estimating at least one measure of a
motion of a residual limb associated with the prosthetic lower limb device
based on the sensor signals” is sufficiently definite in scope. More
specifically, the “sensor signals” recited in claim 1 are “one or more sensor
signals associated with at least an overall motion of the prosthetic lower
limb device.” Paragraph 41 of the Specification distinguishes between
embodiments directly measuring a motion of a residual limb and an
embodiment estimating at least one measure of a motion of the residual
limb:
For example, in some embodiments, the acceleration or motion
of the thigh portion of the lower limb can be directly measured.
In another embodiment, the signals from sensors in the knee,
shank, ankle, and/or foot portions of the prosthesis can be used
to infer or estimate the acceleration or motion of the thigh
portion.
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Appeal 2015-007269
Application 13/508,175
(Id.) The Appellants point out that paragraph 27 of the Specification
discloses the use of both potentiometers and accelerometers to directly
measure the motion of the knee, shank, ankle or foot portion. (See Reply Br.
7).
We further observe the relationship between displacement (or angular
displacement), velocity (or angular velocity) and acceleration (or angular
acceleration)—the latter two are first and second time differentials,
respectively, of the first. Hence, one of ordinary skill in the art likely would
recognize that any of the parameters might be estimated on the basis of
another, such that the term “estimating at least one measure of motion of a
residual limb” encompasses estimating the measure of motion from one or
more signals directly measuring either displacement, velocity or acceleration
associated with at least an overall motion of the prosthetic lower limb
device.
Therefore, we do not sustain the rejection of claims 1, 4, 5, 9, 11 and
44 under the second paragraph of § 112. Because our decision is based on
our analysis of claim 1, we need not reach the Appellants’ separate
arguments regarding dependent claim 4.
DECISION
We REVERSE the Examiner’s decision rejecting claims 1, 4, 5, 9, 11
and 44.
REVERSED
7