Ex Parte BesendorferDownload PDFPatent Trial and Appeal BoardMay 30, 201411713331 (P.T.A.B. May. 30, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/713,331 03/02/2007 Jeffrey R. Besendorfer 40325-0004 7012 20480 7590 06/02/2014 STEVEN L. NICHOLS Van Cott, Bagley, Cornwall & McCarthy 36 South State Street SUITE 1900 SALT LAKE CITY, UT 84111 EXAMINER THANH, QUANG D ART UNIT PAPER NUMBER 3771 MAIL DATE DELIVERY MODE 06/02/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JEFFREY R. BESENDORFER ____________ Appeal 2012-006461 Application 11/713,331 Technology Center 3700 ____________ Before ERIC B. GRIMES, JEFFREY N. FREDMAN, and JAMES C. HOUSEL, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-7, 9-16, 22-26, and 28-37. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM.2 1 Appellant identifies the Real Party in Interest in this appeal as Therapease Management, LLC. App. Br. 2. 2 Our decision refers to Appellant’s Appeal Brief (App. Br.) filed November 16, 2011, the Examiner’s Answer (Ans.) mailed January 20, 2012, and Appellant’s Reply Brief (Reply Br.) filed March 15, 2012. Appeal 2012-006461 Application 11/713,331 2 STATEMENT OF THE CASE The invention relates to a joint rehabilitation method and apparatus allowing the user to dynamically control movement of a limb support mechanism during flexion, extension, and joint rotation excercises. Spec. [0017], [0019]. The apparatus includes a main frame, a limb support assembly, a drive train assembly, and a user-operated dynamic control system. Id. at [0018]. REJECTIONS The Examiner maintains, and Appellant appeals, the following rejections: 1) Claims 1-3, 5, 9, 26, 34, and 35 under 35 U.S.C. § 102(b) as anticipated by Hubbard3 or, in the alternative, under 35 U.S.C. § 103(a) as unpatentable over Hubbard in view of Wolan;4 2) Claims 1-5, 9-11, 34, and 36 under 35 U.S.C. § 102(b) as being clearly anticipated by Splane, Jr.;5 3) Claims 12 and 25 under 35 U.S.C. § 103(a) as being unpatentable over Splane, Jr.; 4) Claims 13 and 14 under 35 U.S.C. § 103(a) as being unpatentable over Splane, Jr. in view of Main6; 3 US 6,464,652 B1, issued October 15, 2002. 4 US 5,776,084, issued July 7, 1998. 5 US 6,692,451 B2, issued February 17, 2004. 6 US 2002/0193710 A1, published December 19, 2002. Appeal 2012-006461 Application 11/713,331 3 5) Claims 1, 6 and 7 under 35 U.S.C. § 103(a) as being unpatentable over Primic7 in view of Hubbard; 6) Claims 10, 15-16, 22, and 24 under 35 U.S.C. § 103(a) as being unpatentable over Sweeny8 in view of Splane, Jr.; 7) Claim 23 under 35 U.S.C. §103(a) as being unpatentable over Sweeny in view of Splane, Jr. and further in view of Garnies;9 8) Claims 1, 26, 28-30, 33, and 37 under 35 U.S.C. § 103(a) as being unpatentable over Sweeny in view of Hubbard; and 9) Claims 31 and 32 under 35 U.S.C. § 103(a) as being unpatentable over Sweeny and Hubbard, and further in view of Main. With regard to each of rejections 1, 2, 5, and 6, Appellant presents arguments addressing the included independent claims only (claim 1 in rejection 1; claims 1 and 10 in rejection 2, claim 1 in rejection 5; and claim 10 in rejection 6). The remaining claims in rejections 1, 2, 5, and 6 stand or fall with their respective independent claim. With regard to rejection 8, Appellant separately argues claims 1, 26 and 37 only. The remaining claims in rejection 8 stand or fall with their respective independent claim. 37 C.F.R. § 41.37(c)(1)(vii). Appellant has waived additional arguments with respect to rejections 3, 4, 7, and 9 (App. Br. 19, 21). Thus, our disposition of claim 10 in rejection 2 will determine the disposition of the claims in rejections 3 and 4; our disposition of claim 10 in rejection 6 will determine the disposition of 7 US 5,300,090, issued April 5, 1994. 8 US 5,207,216, issued May 4, 1993. 9 US 5,730,706, issued March 24, 1998. Appeal 2012-006461 Application 11/713,331 4 claim 23 in rejection 7; and our disposition of claim 26 in rejection 8 will determine the disposition of the claims in rejection 9. See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“In the event of such a waiver, the PTO may affirm the rejection of the group of claims that the examiner rejected on that ground without considering the merits of those rejections.”). Independent claims 1, 10, and 26, and dependent claim 37 are reproduced below: 1. A human joint rehabilitation apparatus, said apparatus comprising: a movable platform configured to support a portion of a patient's body including a joint; a motorized mechanical energy source configured to move at least a portion of said platform to apply motion to said joint; and a control with which said patient, at any and all times during use of said rehabilitation apparatus, dynamically controls said motorized mechanical energy source to control specifically whether and to what extent said joint moves. 10. A patient-controlled joint rehabilitation apparatus, comprising: a support table; a motor; a drive train assembly comprising an input mechanically coupled to said motor and an output mechanically coupled to a driveshaft; a limb support assembly configured to provide movement of a specified joint, said limb support assembly being attached to said support table and coupled to said driveshaft; and a patient-operated dynamic control system in communication with the motor and configured to adjust Appeal 2012-006461 Application 11/713,331 5 positioning of the limb support assembly by controlling said motor in response to input from said patient. 26. A method of exercising a joint, comprising: supporting a portion of a patient's body including a joint on a movable platform; receiving dynamic control input from a patient through a control unit; and dynamically controlling a motorized mechanical energy source to dictate whether and to what extent said joint moves according to said input received from said patient, such that said patient controls starting time, stop time, hold time and angle of flexion or extension during exercise of said joint. 37. The apparatus of claim 1, wherein said joint is a patient's knee, said movable platform being configured to separately support upper and lower potions of a patient's leg, said motorized mechanical energy source configured to cause movement of said patient's knee such that, with said control, patient input dictates when and to what extent said knee is bent or extended. App. Br. 23-25, 27-29, Claims App’x. ANALYSIS After careful consideration of the respective positions of the Examiner and Appellant, we find a preponderance of the evidence supports the Examiner’s decision rejecting claims 1-7, 9-16, 22-26, and 28-37. We will sustain the Examiner’s Section 102(b) and 103(a) rejections for the reasons expressed in the Answer with the comments below added for emphasis. Rejection 1: § 102(b) as anticipated by Hubbard The Examiner finds Hubbard discloses a human joint rehabilitation apparatus comprising a moveable platform 136 configured to support a portion of a patient’s body including a joint, a motorized mechanical energy source 90 configured to move at least a portion 135 of the platform 136 to Appeal 2012-006461 Application 11/713,331 6 apply motion to the joint, and a control 174 which allows the patient, at any and all times during use, to dynamically control the source to control specifically whether and to what extent the joint moves. Ans. 5. The Examiner notes Hubbard does not explicitly teach the hydraulic cylinder 90 is a motor or is motor driven, but finds such is inherent since the hydraulic cylinder converts energy from hydraulic fluid pressure to mechanical motion, and the hydraulic fluid pressure is conventionally generated by a motor-driven pump. Id. at 5-6. The Examiner acknowledges Hubbard’s apparatus is intended to stretch muscles, but nonetheless finds the user controls movement of the joint attached to the corresponding muscle via the hand controller 174. Ans. 14. Thus, the Examiner finds Hubbard teaches dynamic control to control specifically whether and to what extent the muscle moves and therefore to control specifically whether and to what extent the joint moves. Id. at 15. Appellant argues “[a]ny movement of a joint by Hubbard is incidental to the stretching of a muscle.” App. Br. 10. Appellant also asserts that Hubbard does not teach a control as required in claim 1, where the patient controls specifically whether and to what extent the joint moves. Id. Appellant contends the Examiner’s finding above is illogical. Reply Br. 6. Appellant urges that incidental movement of a joint while stretching muscles is not specifically controlling whether and to what extent the joint moves. Id. With regard to claim 26, Appellant argues Hubbard fails to teach or suggest a method in which “a joint moves according to said input received from said patient, such that said patient controls . . . angle of flexion or extension during exercise of said joint.” App. Br. 16. Appeal 2012-006461 Application 11/713,331 7 We do not find Appellant’s arguments persuasive of error in the Examiner’s findings. As the Examiner finds, joints and muscles are physically connected such that stretching muscles moves joints and vice versa. Appellant offers no rebuttal to this finding. Indeed, movement of joints in the human body is accomplished through the flexure and relaxation of muscle. We see no difference in whether one controls the degree of joint movement or the degree of muscle stretching in performing joint and/or muscle rehabilitation therapy. Therefore, stretching of a muscle requires movement of its associated joint such that specifically controlling the degree of stretching likewise specifically controls the degree of joint movement and vice versa. It follows that we will sustain the Examiner’s § 102(b) rejection based on Hubbard. Rejection 1: § 103(a) as unpatentable over Hubbard and Wolan Although the Examiner finds Hubbard anticipates the claim 1 apparatus, the Examiner alternatively looks to Wolan for teaching a motorized hydraulic system (Figure 8) having a motor 88 and hydraulic pump 90 for moving a seatback in a rehabilitation apparatus. Ans. 6. The Examiner concludes that use of a motorized hydraulic system having a motor for driving Hubbard’s hydraulic cylinder would have been obvious in order to operate Hubbard’s apparatus. Id. Appellant does not contest the basis of the Examiner’s obviousness rejection but instead relies on his arguments above as to Hubbard. Appellant then argues that Wolan fails to teach any patient control, but does not argue the basis of the Examiner’s proposed combination of Hubbard and Wolan. App. Br. 11. Appellant however directs our attention to the Declaration Appeal 2012-006461 Application 11/713,331 8 under 37 CFR § 1.132 of Steven L. Nichols, as evidence of commercial success, long-felt need in the art and unexpected, advantageous results. Id. at 13-15. Therein, declarant provides letters “from those skilled in this art regarding the claimed invention.” Id. at 13. Appellant notes in particular the letter of Steven Orrock, a physical therapist, which states in part, “patients LOVE being in control of the range of motion process,” and “[t]here is no substitute out there on the market, that I’m aware of.” Id. at 14. Moreover, Appellant asserts that these letters are from “experts [who] are presumed to understand and know the state of the art.” Id. at 15. Appellant contends the Examiner, by finding “that the claimed feature of continuous and dynamic control by the patient is old and well known” as taught by Hubbard, fails to accord appropriate weight to Appellant’s evidence. Id. Initially, we note Appellant has failed to establish the expert status of the letters’ authors. No credentials or other data have been provided as to the education, experience, and knowledge of those authors. Without such data, it is not possible to say that those authors are or are not experts in this technology. For our consideration, these letters will be taken as consumer reaction to the merits of the purchased apparatus. Appellant has failed to prove the claimed apparatus is commercially successful or that the allegedly increased sales result from the merits of the claimed invention. Appellant provides no evidence regarding the volume of sales of apparatus incorporating the features of claim 1, much less comparing such volume to that of competing apparatus. As such, we cannot say that Appellant’s invention is or is not commercially successful. Even if the letters Appellant submits were adequate to demonstrate commercial Appeal 2012-006461 Application 11/713,331 9 success, Appellant has not demonstrated that these sales were a direct result of the unique characteristics of the claimed invention as opposed to other economic and commercial factors unrelated to the quality of the claimed subject matter. In re Huang, 100 F.3d 135, 140 (Fed. Cir. 1996). In this regard, we note we have already sustained Hubbard as an anticipatory teaching for a dynamic patient control as recited in claim 1. Thus, this feature is not a unique characteristic of the claimed invention. The dynamic patient control which the Orrock letter indicates that patients love and of which he is not aware of any substitute in the market is not the basis of the Examiner’s proposed combination of Hubbard and Wolan. As such, Appellant has failed to prove a nexus between the sales and the merits of the claimed invention. See Cable Elec. Products, Inc. v. Genmark, Inc., 770 F.2d 1015, 1027 (Fed. Cir. 1985). Likewise, Appellant’s evidence fails to establish a long-felt but unsolved need in the art.10 Appellant fails to present any evidence of a long- standing problem or long-standing need in the art. In re Kahn, 441 F.3d 977, 985 (Fed. Cir. 2006). Further, the letters, while providing some indication of a need in the market for joint rehabilitative apparatus having dynamic patient control, fail to establish the art lacked a solution to that need. The Examiner presented evidence in Hubbard that continuous and dynamic patient control of joint movement was known in the art. It is this very feature that Appellant argues is the solution to an unsolved need. Geo. M. Martin Co. v. Alliance Machine Systems Intern. LLC, 618 F.3d 1294, 1305 (“Where the differences between the prior art and the claimed 10 See Monarch Knitting Machinery Corp. v. Sulzer Morat GmbH, 139 F.3d 877, 884 (Fed. Cir. 1998) (“The relevant secondary consideration is ‘long- felt but unsolved need,’ not long-felt need in isolation.”) Appeal 2012-006461 Application 11/713,331 10 invention are as minimal as they are here, however, it cannot be said that any long-felt need was unsolved.”) Finally, as to Appellant’s argument that the evidence shows unexpected, advantageous results, the Declaration fails to support this argument. The Examiner finds Appellant’s Declaration provides “numerous letters from health care professionals, which are merely opinions from those skilled in the field,” and therefore fails to set forth facts in support of this argument. Ans. 16. In this regard, the Examiner finds Hubbard establishes “that the claimed feature of continuous and dynamic control by the patient is old and well known.” Id. “[I]t is well settled that unexpected results must be established by factual evidence. ‘Mere argument or conclusory statements in the specification does not suffice.’” In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984)). Because we are neither persuaded by Appellant’s arguments as to Hubbard nor by Appellant’s declaration evidence, we find no error in the Examiner’s prima facie obviousness rejection over the proposed combination of Hubbard and Wolan. Rejection 2: § 102(b) as anticipated by Splane, Jr. The Examiner finds Splane, Jr. teaches a human joint rehabilitation apparatus comprising a moveable platform 10, a support table 14, a motorized mechanical energy source 64 configured to move at least a portion 26 of the platform, and a control allowing the patient, at any and all times during use, to dynamically control the motorized energy source. Ans. 7. In particular, the Examiner finds Splane, Jr.’s control may be a remote Appeal 2012-006461 Application 11/713,331 11 control, hand operated switch device 68 connected to a control unit 28 by a cable 70 so as to enable the operation of the apparatus to be controlled by the user during use. Id. The Examiner further finds Splane, Jr.’s device 68 is or may include a “kill” switch to enable the user to immediately stop operation of the apparatus, and may optionally include other functions such as motor speed. Id. As such, the Examiner finds Splane, Jr.’s apparatus provides the user with dynamic control of the extent of joint movement by killing operation at any point during use. Id. at 7-8. Moreover, the Examiner finds Splane, Jr.’s motorized mechanical energy source includes a motor and drive train assembly 56 coupled to a limb support assembly 26, wherein the device 68 is a patient-controlled dynamic control system configured to adjust positioning of the assembly 26 by adjusting the position from one side to the other. Id. at 8. Appellant argues that Splane, Jr. “merely teaches a kill switch and basic motor speed control.” App. Br. 11. Appellant also contends that the Examiner’s interpretation of the claim terms, allowing for a kill switch to read on a dynamic control, is unreasonable. Id. According to Appellant “killing a process is not the same thing as continuing the [sic, to] dynamically control that process.” Id. at 11-12. Appellant asserts that a kill switch can only be used to end operation at which time the motor cannot adjust the positioning of the limb support assembly. Id. at 12, 18; Reply Br. 6-7. As such, Appellant argues Splane, Jr.’s kill switch is distinguishable from the claimed dynamic control. Id. We do not find Appellant’s arguments persuasive. As the Examiner indicates, Splane, Jr.’s kill switch may be used at any and all points in the operation of the device to kill the operation. Ans. 15. By killing operation Appeal 2012-006461 Application 11/713,331 12 of the device when the support assembly is at a particular position, the user has controlled the support assembly’s position. Id. Further, although Appellant discounts Splane, Jr.’s optional motor speed control, this control defines the angular motion of the support assembly. With such motor speed control and a kill switch, we find the user has dynamic control of the device at any and all times during operation of the device to adjust the positioning of the support assembly. This is all that is required for dynamic control as defined in Appellant’s Specification, ¶ [0017]: When the patient manipulates a dynamic control system, angular motion of the limb support mechanism is precisely controlled so that the patient can easily move his/her own limb through a substantially full range of motion (full extension to substantially full flexion) and/or joint rotation, at a desired speed and hold a position of flexion or extension or at an angle of joint rotation for a desired duration, thereby managing the personal factors of pain and stiffness. Although Splane, Jr.’s control is not the same as that of Hubbard and Appellant’s specific disclosed embodiments, Appellant fails to identify how Splane, Jr.’s motor speed and kill switch control does not read on dynamic control as broadly defined in the Specification. We therefore will sustain the Examiner’s § 102(b) anticipation rejection based on Splane, Jr. Rejection 5: § 103(a) as unpatentable over Primic in view of Hubbard The Examiner finds Primic teaches a human joint rehabilitation apparatus comprising a moveable platform 1, 2, a motorized mechanical energy source (Figures 6 and 7), and a control 100 with which the patient controls the motorized mechanical energy source to control whether and to what extent the joint moves. Ans. 9. Further, the Examiner finds Primic’s control includes a keypad control panel to permit control of various elements Appeal 2012-006461 Application 11/713,331 13 of the apparatus in sequence and at the desired speed for a selected time period. Id. The Examiner concedes Primic appears silent with regard to whether the control allows the user to dynamically control the apparatus at any and all times during use. Id. Nevertheless, the Examiner finds such dynamic control is old and well known as taught by Hubbard. Id. Therefore, the Examiner concludes it would have been obvious to have provided Primic with dynamic control as taught by Hubbard in order to allow the user to change to what extent the joint moves due to pain or fatigue. Id. Appellant relies on previous arguments raised against Hubbard and does not otherwise contest the propriety of the Examiner’s proposed combination of Primic and Hubbard. As we have not found Appellant’s previous arguments regarding Hubbard persuasive, we will sustain the Examiner’s § 103(a) rejection over the combination of Primic and Hubbard. Rejection 6: § 103(a) as unpatentable over Sweeny in view of Splane, Jr. The Examiner finds Sweeny teaches a rehabilitation apparatus (Figure 1) comprising a support table 1, a motor 24, a drive train assembly 25, a limb support assembly 4-7, 28, 31, 33, 34, and a control 103 to adjust the positioning of the limb support assembly by controlling the speed and timer. Ans. 10. The Examiner concedes Sweeny appears silent with regard to whether the control allows the user to dynamically control the apparatus during use. Id. Nevertheless, the Examiner finds such dynamic control is well known as taught by Splane, Jr. in the controller 68. Id. Therefore, the Examiner concludes it would have been obvious to have provided Sweeny with dynamic control as taught by Splane, Jr. in order to allow the user to Appeal 2012-006461 Application 11/713,331 14 adjust the positioning of the limb and kill the operation if the movement is causing pain. Id. Appellant argues Sweeny teaches a machine for simulating walking with only the speed being controlled. App. Br. 11, 18; Reply Br. 11. Appellant contends Sweeny does not teach the claimed patient-operated dynamic control system configured to adjust positioning of the limb support assembly. Id. Appellant then relies on previous arguments raised against Splane, Jr. and does not otherwise contest the propriety of the Examiner’s proposed combination of Sweeny and Splane, Jr. Appellant’s arguments are not persuasive. Although the Examiner acknowledges that Sweeny fails to teach the claimed claimed patient- operated dynamic control system configured to adjust positioning of the limb support assembly, the Examiner finds Splane, Jr. suggests the use of such patient-operated control in order to allow the user to adjust the positioning of the limb and kill the operation if the movement is causing pain. Ans. 10. Further, as the Examiner finds, use of Splane, Jr.’s patient- operated control including a kill switch enables the patient to kill or end the operation at any and all times during use, thereby determining the position of the limb support assembly. Id. at 18. Appellant has not identified any reason why the Examiner’s proposed combination of Sweeny and Splane, Jr. would not result in the claimed invention with a reasonable expectation of success. As we have not found Appellant’s previous arguments regarding Splane, Jr. persuasive, we will sustain the Examiner’s § 103(a) rejection over the combination of Sweeny and Splane, Jr. Rejection 8: § 103(a) as unpatentable over Sweeny in view of Hubbard Appeal 2012-006461 Application 11/713,331 15 The Examiner finds Sweeny teaches a rehabilitation apparatus (Figure 1) comprising a support table 1, a motor 24, a drive train assembly 25, a limb support assembly 4-7, 28, 31, 33, 34, and a control 103 to adjust the positioning of the limb support assembly by controlling the speed and timer. Ans. 13. The Examiner concedes Sweeny appears silent with regard to whether the control allows the user to dynamically control the apparatus during use. Id. Nevertheless, the Examiner finds such dynamic control is well known as taught by Hubbard in the controller 174, which allows the patient, at any and all times during use, to dynamically control via the mechanized energy source specifically whether and to what extent the joint moves. Id. Therefore, the Examiner concludes it would have been obvious to have provided Sweeny with dynamic control as taught by Hubbard in order for the patient to control the movement of the joint so the patient can slow it down or even stop it if the movement is causing too much pain. Id. Appellant argues Sweeny teaches a machine for simulating walking with only the speed being controlled. App. Br. 11, 18; Reply Br. 11. Appellant contends Sweeny does not teach the claimed patient-operated dynamic control system configured to adjust positioning of the limb support assembly. Id. Appellant then relies on previous arguments raised against Hubbard and does not otherwise contest the propriety of the Examiner’s proposed combination of Sweeny and Hubbard as applied to claims 1 and 26. Appellant’s arguments are not persuasive. Although the Examiner acknowledges that Sweeny fails to teach the claimed claimed patient- operated dynamic control system configured to adjust positioning of the limb support assembly, the Examiner finds Hubbard suggests the use of such Appeal 2012-006461 Application 11/713,331 16 patient-operated control in order to allows the patient at any and all times during use to dynamically control the motorized mechanical energy source to control specifically whether and to what extent the joint moves. Ans. 13. Further, as the Examiner finds, use of Hubbard’s patient-operated control enables the patient to control the positioning of the limb in order for the patient to control the movement of the joint so the patient can slow it down or even stop it if the movement is causing too much pain. Id. Appellant has not identified any reason why the Examiner’s proposed combination of Sweeny and Hubbard would not result in the claimed invention with a reasonable expectation of success. As we have not found Appellant’s previous arguments regarding Hubbard persuasive, we will sustain the Examiner’s § 103(a) rejection over the combination of Sweeny and Hubbard. With regard to claim 37, the Examiner finds Sweeny teaches supporting at least one leg on a moveable platform such that a portion of the patient’s body is supported that includes a knee joint. Ans. 18. Further, although conceding Sweeny is silent regarding patient dynamic control during use, the Examiner finds Sweeny’s apparatus is capable of actuating a patient’s knee joint in a simulated walking motion. Id. at 19. Appellant contends the rejection provides no explanation of how the prior art teaches or suggests all the claimed features, and is therefore legally insufficient. App. Br. 20. Appellant also argues the only control Sweeny offers is speed. Id. According to Appellant, Sweeny’s device is physically incapable of allowing “patient input [that] dictates when and to what extent said knee is bent or extended.” Id. at 21. Therefore, Appellant urges that Sweeny does not teach or suggest a “motorized mechanical energy source configured to Appeal 2012-006461 Application 11/713,331 17 cause movement of said patient’s knee such that, with said control, patient input dictates when and to what extent said knee is bent or extended.” Id. at 20, quoting claim 37. Appellant further contends Hubbard has nothing to do with a device allowing such patient control of when and to what extent a knee is bent or extended. Id. Appellant argues it is only through impermissible hindsight that Hubbard’s patient control could be applied to Sweeny to arrive at the claim 37 structure. Id. at 21. Appellant asserts that “doing so would necessarily disrupt[ ] Sweeny’s stated purpose of providing a simulated walking motion,” which precludes a finding of obviousness. Id. We do not find Appellant’s arguments persuasive. Any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from applicant’s disclosure, such a reconstruction is proper. In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). In assessing whether a claim to a combination of prior art elements would have been obvious, the question to be asked is whether the improvement of the claim is more than the predictable use of prior art elements according to their established functions. KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). “[T]he analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. at 418. Appeal 2012-006461 Application 11/713,331 18 The Examiner finds that the basis for the combination of Sweeny and Hubbard takes into account only knowledge of one of ordinary skill in the art, and does not rely on Appellant’s disclosure. Id. at 20. Appellant has not identified error in this finding, nor does Appellant identify how the proposed combination would disrupt Sweeny’s simulated walking motion. Indeed, as the Examiner finds, the application of patient control as taught by Hubbard in Sweeny’s apparatus would enable the user to initiate movement, thereby dictating when the knee is bent or extended. Further, such patient control would also enable the user to terminate movement, thereby dictating to what extent the knee is bent or extended. ORDER Upon consideration of the record, and for the reasons given above and in the Answer, it is ORDERED that the decision of the Examiner rejecting claims 1-3, 5, 9, 26, 34, and 35 under 35 U.S.C. § 102(b) as anticipated by Hubbard or, in the alternative, under 35 U.S.C. § 103(a) as unpatentable over Hubbard in view of Wolan, is affirmed; ORDERED that the decision of the Examiner rejecting claims 1-5, 9- 11, 34, and 36 under 35 U.S.C. § 102(b) as being clearly anticipated by Splane, Jr., is affirmed; ORDERED that the decision of the Examiner rejecting claims 12 and 25 under 35 U.S.C. § 103(a) as being unpatentable over Splane, Jr., is affirmed; Appeal 2012-006461 Application 11/713,331 19 ORDERED that the decision of the Examiner rejecting claims 13 and 14 under 35 U.S.C. § 103(a) as being unpatentable over Splane, Jr. in view of Main, is affirmed; ORDERED that the decision of the Examiner rejecting claims 1, 6 and 7 under 35 U.S.C. § 103(a) as being unpatentable over Primic in view of Hubbard, is affirmed; ORDERED that the decision of the Examiner rejecting claims 10, 15- 16, 22, and 24 under 35 U.S.C. § 103(a) as being unpatentable over Sweeny in view of Splane, Jr., is affirmed; ORDERED that the decision of the Examiner rejecting claim 23 under 35 U.S.C. §103(a) as being unpatentable over Sweeny in view of Splane, Jr. and further in view of Garnies, is affirmed; ORDERED that the decision of the Examiner rejecting claims 1, 26, 28-30, 33, and 37 under 35 U.S.C. § 103(a) as being unpatentable over Sweeny in view of Hubbard, is affirmed; ORDERED that the decision of the Examiner rejecting claims 31 and 32 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Sweeny and Hubbard, and further in view of Main, is affirmed; and FURTHER ORDERED that no time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2010). 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