Heiko Drewitz

Patent Trials and Appeals BoardDec 3, 2019

13695137 - (D) (P.T.A.B. Dec. 3, 2019)

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. 13/695,137 10/29/2012 Heiko Drewitz 76156.0246 2794 57600 7590 12/03/2019 HOLLAND & HART 222 South Main Street, Suite 2200 P.O. Box 11583 Salt Lake City, UT 84110 EXAMINER HICKS, VICTORIA J ART UNIT PAPER NUMBER 3786 NOTIFICATION DATE DELIVERY MODE 12/03/2019 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): PATENTDOCKET@HOLLANDHART.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte HEIKO DREWITZ __________ Appeal 2018-002273 Application 13/695,137 Technology Center 3700 ____________ Before FREDERICK C. LANEY, PAUL J. KORNICZKY, and BRENT M. DOUGAL, Administrative Patent Judges. LANEY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision (mailed Feb. 14, 2017 hereinafter “Final Act.”) rejecting claims 1–4 and 15 under 35 U.S.C. § 103(a) as unpatentable over Shlomovitz (US 2008/0300525 A1, pub. Dec. 4, 2008) and Klopf (US 5,830,166, iss. Nov. 3, 1998). We have jurisdiction under 35 U.S.C. § 6(b). Appellant’s counsel appeared for an oral hearing on May 28, 2019. We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Otto Bock Healthcare GmbH as the real party in interest. Appeal Br. 1. Appellant has withdrawn claims 5–14. Id. at 22–24 (Claims App.). Appeal 2018-002273 Application 13/695,137 2 THE CLAIMED SUBJECT MATTER The Specification describes the invention as relating to “an orthosis for correcting a leg misalignment of a person.” Spec. 1. The Specification states, “[t]he leg malalignments considered here are genu valgum or genu varum, which are expressed by a medial or lateral displacement of the frontal central axis of the knee.” Id. Prior devices for correcting these misalignments were known, according to the Specification, but the previous devices exerted a torque on the knee joint with a rotary joint located at the knee joint. Id. at 1–3. The Specification characterizes the invention as a brace embodied as a resilient element that exerts a torque from a preset pretension of the resilient element relative to the lower leg and includes a rotary joint level the ankle joint. Id. at 3. Claim 1 is independent and reproduced below. It is the only independent claim and representative of the claimed subject matter. 1. An orthosis for correcting a leg malalignment of a person, comprising: a support apparatus, formed in an L-shaped fashion in the frontal plane, the support apparatus including a support limb, which is configured to engage below a foot of the person, a contact limb extending vertically from the support limb, and a bracket, which is rigid under stress and is formed at a transition from the support limb to the contact limb; a brace configured to be arranged in contact with a side of the lower leg and configured to exert a torque on the lower leg just below the knee to correct knee malalignment, wherein the brace is embodied as a resilient element, the brace is bent at an angle in a lateral direction relative to the contact limb, and the torque results from a preset pretension of the resilient element relative to the lower leg; Appeal 2018-002273 Application 13/695,137 3 an attachment apparatus configured to connect an upper end of the brace to the lower leg of the person just below the knee; a rotary joint connected between the brace and the support apparatus and configured to be arranged approximately level with an ankle joint of the person and in lateral contact on the foot to allow movement of the person's ankle joint; wherein the preset pretension of the resilient element is configured to exert a corrective force acting only on the lower leg at a location just below the knee. Appeal Br. 20 (Claims App.) (emphasis added). ANALYSIS The Examiner’s determination that independent claim 1 would have been obvious in view of Shlomovitz and Klopf depends on a finding that Shlomovitz discloses the following recited claim element: a brace configured to be arranged in contact with a side of the lower leg and configured to exert a torque on the lower leg just below the knee to correct knee malalignment, wherein the brace is embodied as a resilient element, the brace is bent at an angle in a lateral direction relative to the contact limb, and the torque results from a preset pretension of the resilient element relative to the lower leg. Final Act. 3–4. Appellant argues that Shlomovitz does not support this finding by the Examiner because the brace disclosed is not configured to be arranged in contact with a side of the lower leg and configured to exert a torque on the lower leg just below the knee to correct knee malalignment. Appeal Br. 13. For the following reasons, we agree. In the Final Action, the Examiner finds Shlomovitz discloses, a brace (130) configured to be arranged in contact with a side of the lower leg and configured to exert a torque on the lower leg just below the knee (taught in [0095] to be connected and therefore, exert a torque via elongate member 130, at the lower Appeal 2018-002273 Application 13/695,137 4 leg, which is defined in [0012] to extend between the knee and foot and therefore, is just below the knee) to correct knee malalignment (taught in [0014] to correct knee crouch, which is a knee malalignment). Final Act. 3. In the Answer, the Examiner explains further, Shlomovitz teaches in [0095] that the orthosis (100), which includes the brace (130), is connected at the lower leg (“the patient may secure the AFO device 100 to his/her lower leg 210”), which is defined by Shlomovitz in [0011] to extend between the knee and foot. Since Shlomovitz teaches the brace (130) being attached to the lower leg and explicitly teaches the “lower leg” extending between the knee and the foot (and therefore, directly below the knee), one can reasonably understand that Shlomovitz teaches the brace (130) being connected “just below the knee,” as claimed. Ans. 8. However, the Examiner’s cited support is deficient to support a finding that the brace of Shlomovitz is configured to be arranged in contact with a side of the lower leg. Shlomovitz describes brace 130 as being an “[e]longate[d] member” that “may be bent and may comprise of a lower portion 131 prolonging to an upper portion 132, wherein lower portion 131 may extend rearwardly from heel portion 111 towards calf 212 and wherein upper portion 132 may extend anteriorly towards a corresponding shin 211.” Shlomovitz ¶ 97, Figs. 1, 3 (emphasis omitted). At one end, the elongated member 130 is secured to a support apparatus (foot-support 110) with the “elongated-member- fastener 120,” or it may be integrally formed with the heel portion of the support apparatus. Id. ¶¶ 95–96, Figs. 1, 3. At the other end, the elongated member 130 is mechanically coupled to an attachment apparatus (lower-leg- holder 140) “via its outer front part 146.” Id. ¶¶ 95, 100. This configuration causes the brace of Shlomovitz “to bend forward in a direction Appeal 2018-002273 Application 13/695,137 5 corresponding to the patient’s gait, wherein the forward bending causes the development of potential energy in the ankle foot orthosis device.” Id. ¶ 28, Figs. 5–8. “At least some of the potential energy may be released during the toe-off phase of the gait cycle, thereby at least partially compensating for the energy lost due to the drop foot condition.” Id. In view of the foregoing, it is clear that the only portion of brace 130 that is in contact with the lower leg is at the “front part.” This is consistent with the teachings of Shlomovitz because it describes providing a torque that creates an upward force on the foot to combat the drop foot condition. And Shlomovitz’s reference to “knee crouch” does not suggest otherwise because knee crouch “is the over-flexion of the knee during the mid-stance phase, causing the knee to collapse forward” (Shlomovitz ¶ 14) and, thus, the upward force created would likewise counter-balance the collapse of the knee forward. In view of this design, we agree with Appellant that “Shlomovitz can only apply a force to the shin in an anterior/posterior direction.” Appeal Br. 14. As a result, we find the Examiner has not provided sufficient evidence to show Shlomovitz discloses a brace configured to be arranged in contact with a side of the lower leg, as recited in independent claim 1. The Examiner does not rely on Klopf to disclose this element. Therefore, a preponderance of the evidence fails to support the Examiner’s determination that Shlomovitz and Klopf disclose each and every element of the sole independent claim 1 and we do not sustain the Examiner’s rejection of claim 1, as well as the reaming claims 2–4 and 15 depending therefrom. Appeal 2018-002273 Application 13/695,137 6 DECISION The rejection of claims 1–4 and 15 under 35 U.S.C. § 103(a) is reversed. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–20 103 Shlomovitz, Klopf 1–4, 15 REVERSED