Matthew Aaron. Holgate

Patent Trials and Appeals Board

Jul 29, 2019

13767945 - (D) (P.T.A.B. Jul. 29, 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.
13/767,945 02/15/2013 Matthew Aaron Holgate OSSUR.208A 3637
20995 7590 07/29/2019
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
EXAMINER
WOZNICKI, JACQUELINE
ART UNIT PAPER NUMBER
3774
NOTIFICATION DATE DELIVERY MODE
07/29/2019 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):
efiling@knobbe.com
jayna.cartee@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MATTHEW AARON HOLGATE
____________________

Appeal 2018-008413
Application 13/767,945
Technology Center 3700
____________________

Before ANNETTE R. REIMERS, JEREMY M. PLENZLER, and
ARTHUR M. PESLAK, Administrative Patent Judges.

PLENZLER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
Final Decision rejecting claims 1–7, 10–16, 18–22, and 27–31.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Although the cover page of the Final Action does not reference claim 31,
the rejections include that claim. See Final Act. 1, 5, 9.
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CLAIMED SUBJECT MATTER
Claims 1, 10, 18, and 27 are independent. Claims 2–7, 11–17, 19–26,
and 28–31 depend from claim 1, 10, 18, or 27. Claim 1 is illustrative of the
claims on appeal, and is reproduced below:
1. A method of controlling a gait device using a
control system within the gait device, comprising:
disposing a sensor on a mobile body, the mobile body
including a limb segment or a robot segment;
measuring a physical state of the mobile body in response
to a gait activity using the sensor to obtain a physical state
measurement of the gait activity including an angle or an
angular velocity of the mobile body;
conditioning the physical state measurement to provide a
conditioned physical state measurement including the angle or
angular velocity of the mobile body;
transforming the conditioned physical state measurement
by changing coordinate systems to provide a transformed
physical state measurement, wherein the transformed physical
state measurement has a different number of dimensions than
the physical state measurement;
implementing a reference function within the control
system based on a recorded able-bodied gait activity, wherein
the reference function is a continuous function of attributes of
the recorded able-bodied gait activity;
applying the transformed physical state measurement of
the mobile body into the reference function to generate a
reference command by determining a position on the
continuous function corresponding to the transformed physical
state measurement, wherein the reference command maintains a
continuous output from the continuous function corresponding
to the transformed physical state measurement; and
controlling the gait device with the reference command.

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REJECTIONS
1. Claims 1–7, 10–16, 18–22, and 27–31 are rejected under 35
U.S.C. § 112(a), as failing to comply with the written description
requirement.
2. Claims 2, 4, 11, 13, 15, 19, 29, and 30 rejected under 35 U.S.C.
§ 112(b), as being indefinite.2
3. Claims 1–7, 10–16, 18–22, and 27–31 are rejected under 35
U.S.C. § 103 as being unpatentable over Jónsson (US 2006/0135883 A1,
published June 22, 2006), Takenaka (US 7,112,938 B2, issued Sept. 26,
2006), and Arabian (US 2013/0173022 A1, published July 4, 2013).

OPINION
Written Description
“The test for the sufficiency of the written description ‘is whether the
disclosure of the application relied upon reasonably conveys to those skilled
in the art that the inventor had possession of the claimed subject matter as of
the filing date.’” Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d
671, 682 (Fed. Cir. 2015) (quoting Ariad Pharm., Inc. v. Eli Lilly & Co., 598
F.3d 1336, 1351 (Fed. Cir. 2010) (en banc)). The Examiner has the initial
burden of presenting evidence of reasons why persons skilled in the art
would not recognize in the disclosure a description of the invention defined
by the claims. In re Wertheim, 541 F.2d 257, 263 (CCPA 1976). Although
that burden is met when the Examiner points out that the claim reads on
embodiments outside the scope of the original written description (id.), when

2 The rejection of claims 27 and 28 on this basis was withdrawn in the
Answer. Ans. 21–22.
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the original written description describes something within the scope of the
claim, the Examiner must do more than point out the difference in scope (see
In re Rasmussen, 650 F.2d 1212, 1215 (CCPA 1981)).
The Examiner must consider the specific facts of the case and provide
supporting reasoning. In re Smythe, 480 F.2d 1376, 1382 (CCPA
1973). The Examiner can meet his burden by analyzing factors such as the
knowledge of one skilled in the art and the level of predictability in the field
(see Bilstad v. Wakalopulos, 386 F.3d 1116, 1124–26 (Fed. Cir. 2004)), or
by demonstrating that the specification reflects that the invention is no
broader than what is disclosed in the specification, such as distinguishing
over the broader disclosure (see Tronzo v. Biomet, Inc., 156 F.3d 1154, 1159
(Fed. Cir. 1998)).
The Examiner rejects claims 1, 10, 18, and 27 as failing to comply
with the written description requirement because “[t]he originally filed
specification does not appear to have support for a ‘continuous output’” or
“the reference function being ‘based on a recorded able-bodied gait
activity,’” as recited in those claims. Final Act. 5.
With respect to the “continuous output,” claim 1 recites that “the
reference function is a continuous function” that “generate[s] a reference
command by determining a position on the continuous function
corresponding to the transformed physical state measurement” and
“maintains a continuous output from the continuous function.” Claims 10,
18, and 27 are similar.
In the Final Action, the “Examiner notes that a continuous function is
different from a continuous output, since the output signal might be a lack of
signal, which indicates to the actuator that no movement should be made.”
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Final Act. 5. Appellant responds that “[a] continuous function would not
have a discontinuous output,” and “[i]n the present case, the reference
command 32 is a continuous function.” Appeal Br. 10 (citing Spec. 7:16–
24). Appellant contends that “[t]he continuous nature of the reference
command calculation would necessarily involve a continuous output because
the method continuously measures a limb or robot segment directly and
computes a reference command from a continuous differentiable function.”
Id. at 10–11 (citing Wheeler Declaration ¶ 8).3 The Examiner responds that
“if the reference command is calculated, for example, via a derivative, it is
mathematically possible for the derivative of a continuous reference function
to have a discontinuous output.” Ans. 23.
Here, the Examiner does not assert that a continuous function would
not produce a continuous output, at least in some circumstances. Rather, the
Examiner appears to acknowledge, as seen in the portion of the Answer
quoted above, that the more likely result of the reference command
calculation based on the continuous function is a continuous output. See
Ans. 23 (simply explaining that “it is mathematically possible . . . to have a
discontinuous output”). Based on the record before us, the Examiner has
failed to establish sufficiently that Appellant did not have possession of the
“continuous output” feature at the time the application was filed.
As for the “reference function” being “based on a recorded able-
bodied gait activity,” in the Final Action, the Examiner simply states,
without further explanation, that there is no support for this feature. Final
Act. 5. That explanation is deficient, as it provides no meaningful basis for

3 Although not submitted with the instant appeal, the Wheeler Declaration
was entered into the record on July 24, 2017.
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evaluating the rejection. Nevertheless, Appellant responds by pointing to
page 5, line 24 to page 6 line 2 of the Specification, for example. Appeal Br.
11. The cited portion of the Specification explains:
The reference function 30 is determined by recording data from
sensors 36 and then by using the aforementioned method(s) to
obtain the transformed state measurements 26 combined with
either a recording or calculation of a desired reference
command. The reference function 30 is also made to match
data from one or more gait activities. Such activities include []
walking, running, traversing slopes or stairs, avoiding obstacles,
and other similar activities.
Spec. 5:24–6:2. That is, as seen above, “[t]he reference function . . .
match[es] data from . . . gait activities.” Id. at 5:27–6:1.
After reproducing the portion of the Specification cited by Appellant,
“the Examiner maintains that there is no discussion of the reference function
being based on a ‘recorded able-bodied gait activity’” and “cannot find any
discussion of the ability or health of a body or individual from which the
reference function is based on.” Ans. 24–25. There is no explanation
accompanying this conclusion addressing the disclosure from Appellant’s
Specification noted above. Accordingly, the Examiner provides no basis for
the rejection related to the “reference function” being “based on a recorded
able-bodied gait activity” lacking written description support.
For at least these reasons, we do not sustain the Examiner’s decision
to reject claims 1, 10, 18, and 27 as failing to comply with the written
description requirement.
The Examiner rejects claims 2 and 11, which depend from claims 1
and 10, respectively, as failing to comply with the written description
requirement because “there is no support for the physical state measurement
to be the ‘angle or angular velocity’ of the mobile body as well as ‘an
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angular position, linear position, linear velocity, angular velocity, linear
acceleration, or angular acceleration.’” Final Act. 6. The Examiner explains
that “[i]t appears the claim is indicating two physical state measurements
being present within the one measurement.” Id. In the Answer, the
Examiner explains that “there is no support for taking two physical state
measurements, being selected from the 12 alternatives the claim presents as
possibilities.” Ans. 26.
Appellant presents arguments for claim 2 (Appeal Br. 12), and relies
on those arguments to rebut the rejection of claim 11 (id. at 13). Claim 1
recites “measuring a physical state of the mobile body in response to a gait
activity using the sensor to obtain a physical state measurement of the gait
activity including an angle or an angular velocity of the mobile body.”
Claim 2 recites that “measuring the physical state further includes measuring
an angular position, linear position, linear velocity, angular velocity, linear
acceleration, or angular acceleration.” Claims 10 and 11 include similar
limitations.
Appellant contends that “[m]easuring the physical state requires
on[ly] one of the above attributes” (i.e., only one of “an angle or an angular
velocity of the mobile body” (claim 1) or “an angular position, linear
position, linear velocity, angular velocity, linear acceleration, or angular
acceleration” (claim 2)). Appeal Br. 12 (citing Spec. 3:3–22, 4:6–9, 6:24–
7:15).
The dispute over the rejection of claims 2 and 11 is based on claim
construction. As seen above, claim 1 requires “measuring . . . an angle or an
angular velocity of the mobile body” and claim 2 additionally requires
“measuring an angular position, linear position, linear velocity, angular
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velocity, linear acceleration, or angular acceleration.” That is, consistent
with the Examiner’s interpretation, claim 1 requires a first measurement
(angle or angular velocity) and claim 2 requires a second measurement
(angular position, linear position, linear velocity, angular velocity, linear
acceleration, or angular acceleration).
Nevertheless, the Examiner has failed to establish sufficiently that one
skilled in the art would not have appreciated that Appellant had possession
of “measuring a physical state of the mobile body . . . including an angle or
an angular velocity of the mobile body” (claim 1) and also “measuring an
angular position, linear position, linear velocity, angular velocity, linear
acceleration, or angular acceleration” (claim 2). The portions of the
Specification pointed to by Appellant explains, for example, that “[t]he
sensors 36 are configured to measure velocities, accelerations, angular
positions and/or linear positions.” Spec. 3:13–14.
Accordingly, we do not sustain the Examiner’s decision to reject
claims 2 and 11 as failing to comply with the written description
requirement.
The Examiner rejects claims 4, 13, and 30, which depend from claims
1, 10, and 27, respectively, as failing to comply with the written description
requirement because “the measuring of the physical state now is claimed as
measuring a kinematic state or a loading state, [and] claim 1 (10, 18, 27) has
already indicated that the measuring of the physical state is actually a
kinematic state (i.e. angle or angular velocity).” Final Act. 6. The Examiner
explains that “[t]here does not appear to be support for the angle being a
‘loading state.’” Id. The Examiner explains that “the claim states that the
‘physical state measurement of the gait activity including an angle or an
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angular velocity of the mobile body,’” and, “[t]hus, the claim very clearly
sets forth the scope of the ‘angle’ or ‘angular velocity’ to be a measurement
of the mobile body and not of a force acting thereupon.” Ans. 26.
Claim 4 recites that “measuring the physical state further includes
measuring a kinematic state or loading state.” Claims 13 and 30 include
similar limitations. The following discussion is with reference to claim 4 for
simplicity, with the understanding that the discussion applies equally to
claims 13 and 30.
Appellant contends that “Block 10 in FIG. 1 senses kinematic states
12 and/or loading states 14 generated by mobile bodies 16.” Appeal Br. 12
(citing Spec. 2:20–21). Appellant further contends that “[a] person skilled in
the art would understand that a moment or force experienced by a mobile
body, i.e., loading state, could be angular in nature. Angular force is still a
force. Kinematic state can also be angular.” Appeal Br. 13. Appellant
contends that “[a]ccordingly, kinematic state and loading state are somewhat
interchangeable in the subject application, with kinematic state being a type
of loading state.” Id.
We disagree with Appellant that “kinematic state and loading state are
somewhat interchangeable in the subject application.” Id. The Specification
makes clear that these states are different, providing an express definition for
each. See Spec. 3:4–7 (“As used herein, the term ‘kinematic state’ used in
connection with a mobile body, is defined as an angular position, linear
position, linear velocity, angular velocity, linear acceleration, or angular
acceleration associated with a mobile body with reference to a fixed world
frame or a frame fixed to any other mobile body.”), 3:23–24 (“As used
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herein, the term ‘loading state’ used in connection with a mobile body, is
defined as a moment or force experienced by a mobile body.”).
Nevertheless, the Examiner’s rejection is based on an incorrect claim
interpretation. The Examiner’s rejection is based on claim 4 (and similarly
claims 13 and 30) defining the “physical state of the mobile body . . .
including an angle or an angular velocity of the mobile body” (claim 1) as “a
kinematic state or loading state” (claim 4). Similar to claim 2, discussed
above, claim 4 requires that two separate measurements are made (i.e., “an
angle or an angular velocity” (claim 1) and another measurement associated
with “a kinematic state or loading state” (claim 4)).4 Accordingly, the angle
and angular velocity measurements recited in claim 1 are not further defined
in claim 4, as the Examiner’s rejection requires.
For at least these reasons, we do not sustain the Examiner’s decision
to reject claims 4, 13, and 30 as failing to comply with the written
description requirement.
The Examiner rejects claims 15, 19, and 29, which depend from
claims 10, 18, and 27, respectively, as failing to comply with the written
description requirement because “there is no support for the physical state
measurement having a different number of dimensions than the conditioned
physical state measurements.” Final Act. 6. The Examiner explains that
“the number of dimensions of the physical state measurement must be more
than 2 for them to have a different number of dimensions than the
conditioned physical state measurement, and it does not appear the
specification is enabled for this.” Id. at 6–7.

4 This decision takes no position as to whether written description support
exists for this proper interpretation of the claim.
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Claim 15 recites that “the conditioned transformed physical state
measurement has a different number of dimensions than the physical state
measurement.”
Appellant contends that “[t]ransforming 22 of conditioned state
measurements 24 changes coordinate systems (from the angle or angular
velocity of the conditioned state measurement) to yield transformed state
measurements 26.” Appeal Br. 13 (citing Spec. 4:22–5:7). Appellant
explains that “[p]ossible transformations include rotations, dilations, identity
transformations, projections, changes to other coordinate systems (polar
coordinates), and changes of scale.” Id. The Examiner responds by
“agree[ing] with Appellant’s summary of their brief support in the
specification, but maintains that support for the specific ‘physical state
measurements’ comprising ‘an angle or an angular velocity’ does not have
any support for being transformed to have a different number of dimensions
than they already have.” Ans. 26–27.
Both in the Final Action and in the Answer, the Examiner bases the
rejection on a conclusion that no support exists for the claims. There is no
reasoned explanation as to why one skilled in the art would not have
appreciated the disclosure identified by Appellant as providing the asserted
support. The Examiner cannot meet the initial burden by simply alleging
lack of written description support without more.
For at least these reasons, we do not sustain the Examiner’s decision
to reject claims 15, 19, and 29 as failing to comply with the written
description requirement.
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Indefiniteness
The Examiner rejects claims 2 and 11 as “indefinite because they state
that measuring the physical state further includes measuring an angular
position, linear position, linear velocity, angular velocity, linear acceleration,
or angular acceleration but claim 1 (10) from which this depends has already
indicated that the measuring comprises measuring an ‘angle or angular
velocity.’” Final Act. 7. Appellant responds that “[a] person skilled in the
art would understand that a measurement can have multiple components or
dimensions including at least, according to claim 1, angle or angular
velocity” and “[c]laim 2 then narrows claim 1 by further requiring the
physical state to include at least one of angular position, linear position,
linear velocity, angular velocity, linear acceleration, or angular
acceleration.” Appeal Br. 16.
Although we do not agree with Appellant’s interpretation of the
claims, we do not see sufficient basis for the Examiner’s rejection. Contrary
to Appellant’s contention, claims 2 and 11 do not further define the
“physical state.” Rather, those claims further define what is being measured.
Claims 10 and 11 are similar to claims 1 and 2. For simplicity, we discuss
claims 1 and 2, with the understanding that the discussion applies to claims
10 and 11 as well.
Claim 1 recites “measuring a physical state of the mobile body . . .
including an angle or an angular velocity of the mobile body” and claim 2
recites that “measuring the physical state further includes measuring an
angular position, linear position, linear velocity, angular velocity, linear
acceleration, or angular acceleration.” That is, claim 2 requires a second
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measurement of a “physical state.” That requirement is clear based on the
plain language of the claim.
For at least these reasons, we do not sustain the Examiner’s decision
to reject claims 2 and 11 as being indefinite.
The Examiner rejects claims 4, 13, and 30 as “indefinite because it
states that the measuring of the physical state ‘further includes measuring a
kinematic state or loading state’ when the independent claims from which
they depend have indicated that the ‘measuring a physical state’ includes ‘an
angle or an angular velocity of the mobile body.’” Final Act. 8. Appellant
responds that “an angle or an angular velocity of the mobile body does not
necessarily imply kinematic state” and “[a]n angle or an angular velocity can
apply to either kinematic state or loading state.” Appeal Br. 16.
Again, although we do not agree with Appellant’s interpretation of the
claims, we do not see sufficient basis for the Examiner’s rejection. Contrary
to Appellant’s contention, claims 4, 13, and 30 do not further define the
specific measurement (i.e., angle or angular velocity) recited in claims 1, 10,
and 27, respectively. Rather, and as explained above relative to the written
description rejection, those claims recite an additional measurement. The
Examiner’s rejection is based on an incorrect interpretation of the claim.
For at least these reasons, we do not sustain the Examiner’s decision
to reject claims 4, 13, and 30 as being indefinite.
The Examiner rejects claims 15, 19, and 29 as “indefinite because it
indicates that the transformed physical state measurement has a different
number of dimensions than the physical state measurement.” Final Act. 8.
The Examiner explains that “it is not clear how the transformed
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measurement has more or less ‘dimensions’ than the measurement.” Id.
Appellant disputes the rejection. Appeal Br. 17.
The Examiner’s issue with the claims is not whether one skilled in the
art would understand what the claims require. There is no dispute that the
claims require that the physical state measurement has a certain number of
dimensions and the transformed physical state measurement has a different
number of dimensions (more or less).
For at least these reasons, we do not sustain the Examiner’s decision
to reject claims 15, 19, and 29 as being indefinite.
Obviousness
Appellant argues claims 1–7 as a group. Appeal Br. 20–24. We
select claim 1 as representative. Claims 2–7 stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(1)(iv). Although presented under separate headings,
Appellant’s contentions with respect to claims 10–16 (Appeal Br. 24–28),
claims 18–22 (id. at 28–30), and claims 27–31 (id. at 30–33) are essentially
the same as those presented with respect to claim 1. Accordingly, our
analysis addresses only claim 1 in detail, with the understanding that the
analysis applies equally to the other claims as well.
Although Appellant disputes the Examiner’s obviousness rejection,
Appellant does not address the actual findings and rationale relied on in that
rejection. For example, with respect to claim 1, the rejection acknowledges
that Jónsson “is silent with regards to the order of the conditioning and
transforming the transformed physical state measurement having a different
number of dimensions than the conditioned physical state measurements,
and the reference function relating to an able-bodied gait activity steps.”
Final Act. 10–11; Ans. 28–30. Yet, Appellant’s response is that Jónsson
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does not teach the very features the Examiner acknowledges are missing
from that reference. See, e.g., Appeal Br. 20–22. Although making general
allegations, Appellant does not address the rationale provided by the
Examiner. Compare Final Act. 11 with Appeal Br. 23–24.
The Examiner makes clear in the Answer that Appellant’s arguments
do not address the rejection. Ans. 28–31. Appellant did not file a Reply
Brief. Because Appellant fails to apprise us of Examiner error by failing to
address the merits of the Examiner’s rejection, we are not apprised of
Examiner error.
Accordingly, we sustain the Examiner’s decision to reject claims 1–7,
10–16, 18–22, and 27–31 under 35 U.S.C. § 103.

DECISION
We REVERSE the Examiner’s decision to reject claims 1, 2–7, 10–
16, 18–22, and 27–31 under 35 U.S.C. § 112(a), as failing to comply with
the written description requirement.
We REVERSE the Examiner’s decision to reject claims 2, 4, 11, 13,
15, 19, 29, 30 under 35 U.S.C. § 112(b), as indefinite.
We AFFIRM the Examiner’s decision to reject claims 1–7, 10–16,
18–22, and 27–31 under 35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).

AFFIRMED