DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
This Office Action is in response to a preliminary amendment filed on 4/8/2021. As directed by the preliminary amendment, claims 1-25 were canceled, no claims were amended, and claims 26-45 were added. Thus, claims 26-45 are pending for this application.
Specification
This application does not contain an abstract of the disclosure as required by 37 CFR 1.72(b). An abstract on a separate sheet is required.
Claim Objections
Claim 32 is objected to because of the following informalities:
In claim 32 lines 2-3, “a body portion, as a shoulder, of the person” should be changed to --a body portion, as a shoulder, of the person-- in order to correct the apparent typographical error.
Appropriate correction is required.
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 29-32, 34-39, and 42-45 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 29 recites the limitation "the pivot axis extending in the transverse direction" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Regarding claims 30 and 31, the phrase “the nozzle holder” in lines 3-4 of claim 30 and line 1 of claim is unclear whether applicant is referencing both nozzle holders or just one of the nozzle holders (a plurality is claimed in claim 30).
Regarding claim 32, the phrase "a body portion, [such] as a” renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 34, the phrase “wherein a first axis running in the transverse direction of the tub rigidly connects the first and second vertical side plates, and wherein a second axis being offset from and parallel to the first axis serves for guiding purposes and rigidly connects the vertical side plates together” in lines 4-7 how an axis can be “rigidly connected” to a structure, as an axis is not a tangible structure.
Claim 35 recites the limitation "the first pivot axis" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 36, the phrase “on a head side” and “on a foot side” in lines 7 and 8-9, respectively, are unclear what structure these sides are directed to.
Regarding claim 37, the phrase "optionally" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 42, the phrase “the at least two nozzles” in lines 10-11 is unclear as only “at least one nozzle” has been previously claimed, see line 6 of claim 42, so it is not clear how many nozzles are being claimed now by applicant. For the purpose of examination, examiner has interpreted “at least two nozzles” to read “at least one nozzle”, as the rest of the claim refers to this feature as “at least one nozzle”.
Regarding claims 38-39 and 44, the phrase "preferably" renders the claim(s) indefinite because the claim(s) include(s) elements not actually disclosed (those encompassed by "or the like"), thereby rendering the scope of the claim(s) unascertainable. See MPEP § 2173.05(d).
The remaining claims are rejected due to dependence on a rejected base claim.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 26-38 and 43 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Specifically, claim 26 recites in line 20 “the convex elevated portion is directed toward the person lying on the film material”, which positively claims a person; claim 32 recites in lines 1-4 “the at least one cavity comprises an outer surface defining a contact surface for a body portion, as a shoulder, of the person, wherein the contact surface is substantially inclined with respect to the back of the person”, which positively claims a shoulder and back of a person; claim 43 recites in line 5 “the water jet is transmitted to a part of a body of a person”, which positively claims a body of a person.
Applicant is suggested to amend the claims to use inferential language (e.g. “adapted to”, “configured to”) so that the human body part is not positively claimed.
The remaining claims are rejected due to dependence on a rejected base claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 26, 32-34 and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Unbescheiden (US 2018/0140507) in view of Lee (KR 20130111843) and Elliot (US 2009/0312679).
Regarding claim 26, Unbescheiden discloses (Fig. 1-2) a device for dry water-jet massage (paragraph [0002]), comprising
a tub (tub 1), which is to be filled with massage water (paragraph [0017]), the tub running from a head end to a foot end in a longitudinal direction (longitudinal direction shown in Fig. 1 and described in paragraph [0019]) and running from a left side to a right side in a transverse direction (transverse direction shown in Fig. 1 and described in paragraph [0019]), the tub comprising a film material (flexible support sheet/foil, paragraphs [0002] and [0017]) as a cover closing the tub water-tight from above, wherein the film material is configured as a lying surface for a person to be treated (paragraphs [0002] and [0017]), wherein the film material allows a transmission of pressure pulses (paragraphs [0002] and [0017]);
a nozzle cart (carriage 2), which can be moved in the longitudinal direction of the tub and bears a nozzle (nozzle 3), which nozzle can be fed via a flexible hose (“flexible hose”, paragraph [0017]) connection with massage water from the tub by means of a pump (“pump”, paragraph [0017]) in order to eject one water jet per nozzle against a bottom side of the film material facing the tub (paragraph [0017]);
a first drive (drive element 13) for forward and backward movement of the nozzle cart in the longitudinal direction of the tub (paragraph [0022]), the nozzle moving forward and backward in the longitudinal direction of the tub with the movement of the nozzle cart (paragraph [0021]); and
a second drive (drive element 15), which moves at least one of the at least two nozzles in the transverse direction of the tub (paragraph [0023]).
Unbescheiden does not disclose the nozzle cart bears at least two nozzles.
However, Lee teaches (Fig. 1) a dry water massage device comprising a nozzle cart (spray unit 30) bearing at least two nozzles (plurality of nozzles, paragraphs [0020] and [0031]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the nozzle cart of Unbescheiden to include at least two nozzles, as taught by Lee, for the purpose of increasing surface area of a user receiving the massage, thereby improving therapeutic outcome.
Unbescheiden does not disclose the film material comprises at least one cavity on the bottom side of the film, wherein the at least one cavity runs in the transverse direction, wherein the at least one cavity shapes the film into a convex elevated portion on a top side of the film, and wherein the convex elevated portion is directed toward the person lying on the film material.
However, Elliot teaches (Fig. 1-5) a device for dry water-jet massage (Abstract), comprising a tub (hollow housing shell 20 in the form of tub, paragraph [0023]), which is to be filled with massage water (paragraph [0026]), the tub running from a head end to a foot end in a longitudinal direction (head to foot direction as shown in Fig. 3) and running from a left side to a right side in a transverse direction (left to right direction shown in Fig. 1), the tub comprising a film material (sheet 34) as a cover closing the tub water-tight from above (paragraph [0028]), wherein the film material is configured as a lying surface for a person to be treated (paragraph [0028]), wherein the film material allows a transmission of pressure pulses (paragraph [0028]); a nozzle cart (fluid spray arrangement 16), which can be moved in the longitudinal direction of the tub (paragraph [0033]) and bears at least two nozzles (nozzles 56), which nozzles can be fed via a flexible hose (flexible tubing 102, paragraph [0036]) connection with massage water from the tub by means of a pump (pump 88) in order to eject one water jet per nozzle against a bottom side of the film material facing the tub (paragraphs [0037] and [0038]); a first drive (toothed timing belt 66) for forward and backward movement of the nozzle cart in the longitudinal direction of the tub (paragraph [0034] and [0037]-[0038]), the at least two nozzles moving forward and backward in the longitudinal direction of the tub with the movement of the nozzle cart (paragraph [0037]-[0038]); and wherein the film material comprises at least one cavity on the bottom side of the film (see cavity in Annotated Fig. 1), wherein the at least one cavity runs in the transverse direction (see transverse direction in Fig. 1), wherein the at least one cavity shapes the film into a convex elevated portion on a top side of the film, and wherein the convex elevated portion is directed toward the person lying on the film material (see Fig. 3).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the film of modified Unbescheiden to comprise at least one cavity on the bottom side of the film, wherein the at least one cavity runs in the transverse direction, wherein the at least one cavity shapes the film into a convex elevated portion on a top side of the film, and wherein the convex elevated portion is directed toward the person lying on the film material, as taught by Eliot, for the purpose of improving user comfort during massage by allowing to read a book or magazine, watch television, and remain otherwise occupied with other activities while receiving massage (paragraph [0005] Eliot).
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Regarding claim 32, modified Unbescheiden discloses the at least one cavity comprises an outer surface defining a contact surface for a body portion of the person (see top surface of cavity contacting user in Fig. 3 Eliot), wherein the contact surface is substantially inclined with respect to the back of the person (see incline of surface with respect to user’s back in Fig. 3), and wherein an inner surface of the at least one cavity opposite the outer surface is in communication with the tub such that the water jet can penetrate into the cavity and massage the body portion through the film material (see Fig. 3 Eliot and paragraph [0017] Unbescheiden).
Regarding claim 33, modified Unbescheiden discloses wherein a first rail and a second rail (left and right guide tracks 4) are fixed on a bottom of the tub (see Fig. 2), wherein the nozzle cart comprises wheels (“wheels”, paragraph [0011]) to be moved in the longitudinal direction of the tub on the first and second rails (paragraph [0022]) and wherein the nozzle cart can be operated by the first drive (motor 7) which acts on a bottom side of the nozzle cart by means of a motor (motor 7) which can be operated from outside the tub for the forward and backward movement of the nozzle cart on the wheels in the longitudinal direction of the tub.
Modified Unbescheiden does not disclose the motor is mounted inside the tub.
However, Elliot teaches (Fig. 1-3) a motor (70) for moving carriage (44) along longitudinal direction of the tub wherein the motor is mounted inside the tub (see Fig. 3 and paragraph [0034]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the motor of modified Unbescheiden to be mounted inside the tub instead of outside the tub, as taught by Elliot, for the purpose of preventing possible environmental damage to the motor by ensuring it is enclosed within the tub.
Regarding claim 34, as best understood, modified Unbescheiden discloses wherein the nozzle cart comprises, parallel to a bottom of the tub, a horizontal base plate (horizontal plate of nozzle carriage 2 shown in Fig. 2 Unbescheiden) which can be moved in the longitudinal direction of the tub on wheels (“wheels”, paragraph [0016]), wherein the nozzle cart comprises a first vertical side plate fixed to the bottom plate (side plate fixed to bottom of horizontal plate on left side) on a first end portion (left side of horizontal plate) and a second vertical side plate (side plate fixed to bottom of horizontal plate on right side) fixed to the bottom plate on a second end portion opposite the first end portion, wherein a first axis running in the transverse direction of the tub rigidly connects the first and second vertical side plates (see axis passing through first and second vertical plates in Annotated Fig. 2), and wherein a second axis being offset from and parallel to the first axis serves for guiding purposes and rigidly connects the vertical side plates together (see axis passing through first and second vertical plates in Annotated Fig. 2).
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Regarding claim 38, modified Unbescheiden discloses wherein the at least one cavity of the film material has a depth, with respect to the bottom side of the film material, but is silent regarding its specific value and thus fails to discloses it is in a range from 1 mm to 200 mm. However, absent evidence of criticality, it would have been obvious to try to make the depth with respect to bottom side of the film material in the range of 1 mm to 200 mm so that the film is strong enough to not collapse under weight of a user, since discovering the optimum value only involves routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claim 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Unbescheiden (US 2018/0140507) in view of Lee (KR 20130111843) and Elliot (US 2009/0312679), and further in view of Portales (US 2016/0143803).
Regarding claim 27, modified Unbescheiden does not disclose an arrangement for pivoting the at least two nozzles about a pivot axis, wherein the pivot axis extends perpendicular to the longitudinal direction of the tub, such that the water jet ejected by each of the at least two nozzles is directed against the at least one cavity of the film inclined relative to the plane of the film.
However, Portales teaches (Fig. 1-6) a pivot arrangement (bending assembly 42) for pivoting at least one massage element (rollers 3) about a pivot axis (axis of link 49a) with respect to the cart (cart 5); wherein the pivot axis extends perpendicular to the primary direction (perpendicular to longitudinal axis shown in Fig. 1), such that the at least one massager element approaches the plane of the film with increasing pivotal movement of the pivot arrangement while the angle of the water jet ejected by the least one nozzle with the plane of the film changes (while Portales does not include a nozzle, one of ordinary skill would recognize that when combined with the primary reference Unbescheiden, the nozzles of Unbescheiden (which are analogous to the rollers 3 of Portales) would approach the plane of the film with increasing pivotal movement of the pivot arrangement while the angle of the water jet ejected by the least one nozzle with the plane of the film changes, as shown by the pivoting transition in Fig. 4-5 of Portales).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the massager of Unbescheiden to include a pivot arrangement for pivoting the at least two nozzles about a pivot axis, wherein the pivot axis extends perpendicular to the longitudinal direction of the tub, such that the water jet ejected by each of the at least two nozzles is directed against the at least one cavity of the film inclined relative to the plane of the film, as taught by Portales, for the purpose of allowing for adjustment of massage intensity to a user based on how much pivoting occurs for the nozzle.
Claim 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Unbescheiden (US 2018/0140507) in view of Lee (KR 20130111843) and Elliot (US 2009/0312679), and further in view of Korenaga (US 6,210,351).
Regarding claim 28, modified Unbescheiden does not disclose wherein a part of the nozzle cart carrying the at least two nozzles is pivotable with respect to the nozzle cart about a horizontal pivot axis toward the film such that the water jet ejected by the at least two nozzles assumes an angle to the normal of the film by pivoting.
However, Korenaga teaches (Fig. 14-15) a dry hydrotherapy device comprising a nozzle cart (cart 7) wherein a part of the nozzle cart (gears 93) carrying the at least two nozzles (nozzles on gears 93) is pivotable with respect to the nozzle cart about a horizontal pivot axis toward the film (see axis of rotation through pin of support member 7e about which gears 93 rotate, which is horizontal, as shown in Fig. 14) such that the water jet ejected by the at least two nozzles assumes an angle to the normal of the film by pivoting (see angle with respect to normal of film in Fig. 14).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the nozzle carrying cart of modified Unbescheiden such that a part of the nozzle cart carrying the at least two nozzles is pivotable with respect to the nozzle cart about a horizontal pivot axis toward the film such that the water jet ejected by the at least two nozzles assumes an angle to the normal of the film by pivoting, as taught by Korenaga, for the purpose of allowing for adjustment of the water pressure delivered to user so that different body portions can have different intensity as desired by user.
Claims 30-31 are rejected under 35 U.S.C. 103 as being unpatentable over Unbescheiden (US 2018/0140507) in view of Lee (KR 20130111843) and Elliot (US 2009/0312679), and further in view of Korenaga (US 6,210,351) and Spears (US 5,020,518).
Regarding claim 30, as best understood, modified Unbescheiden does not disclose wherein the nozzles are each arranged on a nozzle holder.
However, Korenaga teaches (Fig. 14-15) a dry hydrotherapy device comprising a nozzle cart (cart 7) comprising a plurality of nozzles (nozzles on gears 93) each arranged on a nozzle holder (gears 93).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the nozzle carrying cart of modified Unbescheiden such the nozzles are each arranged on a nozzle holder, as taught by Korenaga, for the purpose of allowing for adjustment of the water pressure delivered to user so that different body portions can have different intensity as desired by user.
Modified Unbescheiden does not disclose wherein the nozzle holder is connected to a toothed rack which, as part of the second drive, allows the individual displacement of the nozzle holder in the transverse direction of the tub by means of a gear of the drive.
However, Spears teaches (Fig. 1-6) a holder is connected to a toothed rack (gear rack 50) which, as part of a drive, allows the individual displacement of the holder in a transverse direction of the support by means of a gear of the drive (see Fig. 4 and Col. 11 lines 44-60).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the second drive of modified Unbescheiden to include a toothed rack, as taught by Spears, as it has been held that simple substitution of one well-known conveying structure (pulleys of Unbescheiden) with another conveying structure (toothed rack of Spears) would provide the expected result of supporting and providing movement of the massage carriage along the direction desired (see rationale for obviousness of a simple substitution of a well-known structure in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007). See also MPEP 2143(I)(B)).
Regarding claim 31, modified Unbescheiden discloses wherein the nozzle holder can be pivoted relative to the toothed rack (via gears 93 of Korenaga), and wherein the toothed rack is movably connected to two axes of the nozzle cart (movably connected to the two axes through the gears 93 due to the gears 93 being rotatable relative to the toothed rack).
Claim(s) 37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Unbescheiden (US 2018/0140507) in view of Lee (KR 20130111843) and Elliot (US 2009/0312679), and further in view of Nanninga (EP 2327386).
Regarding claim 37, modified Unbescheiden discloses the film material allows a transmission of pressure pulse as the top cover of the device, but does not disclose the film material is also capable of a heat transmission, and wherein the film serving as the top cover of the tub comprises a natural rubber film, optionally with a carrier layer made of chlorosulfonated polyethylene.
However, Nanninga teaches (Fig. 1-4 and 6-8) film material for a dry water massager that is also capable of a heat transmission (paragraph [0018]), and wherein the film serving as the top cover of the tub comprises a natural rubber film (“natural rubber”, paragraph [0018]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the film material of modified Unbescheiden to be capable of a heat transmission, and wherein the film serving as the top cover of the tub comprises a natural rubber film, as taught by Nanninga, for the purpose of allowing for user to receive thermal massage in addition to pressure massage (paragraph [0018] Nanninga).
Claims 40-41 are rejected under 35 U.S.C. 103 as being unpatentable over Unbescheiden (US 2018/0140507) in view of Nanningba (EP 2327386).
Regarding claim 40, Unbescheiden discloses (Fig. 1-2) a device for dry water-jet massage, comprising
a tub (tub 1), which is to be filled with massage water (paragraph [0017]), the tub running from a head end to a foot end in a longitudinal direction (longitudinal direction shown in Fig. 1 and described in paragraph [0019]) and running from a left side to a right side in a transverse direction (transverse direction shown in Fig. 1 and described in paragraph [0019]), a film material (flexible support sheet/foil, paragraphs [0002] and [0017]) disposed as a cover closing the tub water-tight from above, wherein the film material is configured as a lying surface for a person to be treated (paragraphs [0002] and [0017]), wherein the film material allows a transmission of pressure pulses (paragraphs [0002] and [0017]);
a nozzle cart (carriage 2), which can be moved in the longitudinal direction of the tub by means of a primary drive (drive element 13);
wherein at least one nozzle is arranged on the nozzle cart (nozzle 3); and
wherein each nozzle is fed via a flexible hose (“flexible hose”, paragraph [0017]) connection with massage water from the tub by means of a pump (“pump”, paragraph [0017]) in order to eject one water jet per nozzle against a bottom side of the film material facing the tub (paragraph [0017]).
Unbescheiden does not disclose a first nozzle holder arranged on the nozzle cart and which can be cross moved with respect to the nozzle cart in the transverse direction of the tub by means of a secondary drive; and a second nozzle holder arranged on the nozzle cart and which can be cross moved with respect to the nozzle cart in the transverse direction of the tub by means of a secondary drive; wherein at least one nozzle is arranged each of the nozzle holders, wherein the first and second nozzle holders can be cross moved independently from each other along a shaft of the nozzle cart.
However, Nanninga teaches (Fig. 1-4 and 6-8) a first nozzle holder (bush G) arranged on the nozzle cart (cart 1) and which can be cross moved with respect to the nozzle cart in the transverse direction of the tub (see Fig. 3) by means of a secondary drive (motor 2); and a second nozzle holder (bush G’) arranged on the nozzle cart and which can be cross moved with respect to the nozzle cart in the transverse direction of the tub (see Fig. 3) by means of a secondary drive (motor 2); wherein each nozzle holder is connected to a toothed rack (toothed segment 17) which allows the individual displacement of the nozzle holder in the transverse direction of the tub by means of a gear of the secondary drive (paragraph [0038]-[0039]); wherein at least one nozzle (nozzle D,D’) is arranged each of the nozzle holders (see Fig. 3), wherein the first and second nozzle holders can be cross moved independently from each other along a shaft of the nozzle cart (move along shaft 17, independent as described in paragraph [0020]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the massager of Unbescheiden to include a first nozzle holder arranged on the nozzle cart and which can be cross moved with respect to the nozzle cart in the transverse direction of the tub by means of a secondary drive; and a second nozzle holder arranged on the nozzle cart and which can be cross moved with respect to the nozzle cart in the transverse direction of the tub by means of a secondary drive; wherein each nozzle holder is connected to a toothed rack which allows the individual displacement of the nozzle holder in the transverse direction of the tub by means of a gear of the secondary drive; wherein at least one nozzle is arranged each of the nozzle holders, wherein the first and second nozzle holders can be cross moved independently from each other along a shaft of the nozzle cart, as taught by Nanninga, for the purpose of allowing for a multiplicity of new massage forms for dry water jet massage to occur (paragraph [0020] Nanninga).
Regarding claim 41, modified Unbescheiden discloses wherein the nozzle holder can be pivoted relative to the toothed rack (paragraph [0039]-[0039] Nanninga), and wherein the toothed rack is movably connected to two axes of the nozzle cart (see Fig. 6C Nanninga).
Claims 42 and 44 are rejected under 35 U.S.C. 103 as being unpatentable over Unbescheiden (US 2018/0140507) in view of Portales (US 2016/0143803).
Regarding claim 42, Unbescheiden discloses (Fig. 1-2) a dry water-jet massage device, comprising
a tub (tub 1) configured to receive massage water, a film material (flexible sheet, paragraph [0002]) substantially water-tightly closing the tub from above (paragraph [0017]), wherein the film material is configured as a lying surface for a person to be treated (paragraphs [0002] and [0017]), wherein the film material allows a transmission of pressure pulses (paragraphs [0002] and [0017]);
a nozzle cart (cart 2) comprising at least one nozzle (nozzle 3), wherein the at least one nozzle is capable to be fed via a flexible hose connection (paragraph [0017]) with massage water from the tub by means of a pump (“pump” paragraph [0017]) in order to eject a water jet per nozzle against a bottom side of the film material facing the tub (paragraph [0017]);
a first drive (drive 13) for displacing the nozzle cart in a primary direction (longitudinal direction, paragraph [0022]), wherein the at least one nozzle is commonly displaced with the nozzle cart in the primary direction (paragraph [0021]);
a second drive (drive element 13) for displacing the at least one nozzle in a direction transverse to the primary direction (paragraph [0023]).
Unbescheiden does not disclose a pivot arrangement for pivoting the at least one nozzle about a pivot axis with respect to the nozzle cart; wherein the pivot axis extends perpendicular to the primary direction, such that the at least one nozzle approaches the plane of the film with increasing pivotal movement of the pivot arrangement while the angle of the water jet ejected by the least one nozzle with the plane of the film changes.
However, Portales teaches (Fig. 1-6) a pivot arrangement (bending assembly 42) for pivoting at least one massage element (rollers 3) about a pivot axis (axis of link 49a) with respect to the cart (cart 5); wherein the pivot axis extends perpendicular to the primary direction (perpendicular to longitudinal axis shown in Fig. 1), such that the at least one massager element approaches the plane of the film with increasing pivotal movement of the pivot arrangement while the angle of the water jet ejected by the least one nozzle with the plane of the film changes (while Portales does not include a nozzle, one of ordinary skill would recognize that when combined with the primary reference Unbescheiden, the nozzles of Unbescheiden (which are analogous to the rollers 3 of Portales) would approach the plane of the film with increasing pivotal movement of the pivot arrangement while the angle of the water jet ejected by the least one nozzle with the plane of the film changes, as shown by the pivoting transition in Fig. 4-5 of Portales).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the massager of Unbescheiden to include a pivot arrangement for pivoting the at least one nozzle about a pivot axis with respect to the nozzle cart; wherein the pivot axis extends perpendicular to the primary direction, such that the at least one nozzle approaches the plane of the film with increasing pivotal movement of the pivot arrangement while the angle of the water jet ejected by the least one nozzle with the plane of the film changes, as taught by Portales, for the purpose of allowing for adjustment of massage intensity to a user based on how much pivoting occurs for the nozzle.
Regarding claim 44, modified Unbescheiden discloses wherein the at least one nozzle can be simultaneously displaced in the primary direction by said first drive together with the nozzle cart, in a direction transverse to the primary direction parallel to said pivot axis by said second drive, such that the combination of said directions allows a formation of a plurality of water-jet massage pattern on the film material (the word “can” is interpreted to mean “capable of”, and in this case the nozzle is capable of having this displacements occur simultaneously).
Claim(s) 43 is/are rejected under 35 U.S.C. 103 as being unpatentable over Unbescheiden (US 2018/0140507) in view of Portales (US 2016/0143803), and further in view of Elliot (US 2009/0312679).
Regarding claim 43, modified Unbescheiden discloses a film material, but does not disclose wherein the film material is permanently deformed to configure a substantially convex protrusion protruding over the lying surface of the film, wherein the protrusion encompasses a cavity communicating with the tub such that the inner walls of the cavity that are made of film material can be exposed to the water jet of the at least one nozzle, such that the water jet is transmitted to a part of a body of a person adjacent to the protrusion and substantially inclined with respect to a plane of the lying surface.
However, Elliot teaches (Fig. 1-5) a device for dry water-jet massage (Abstract), comprising a tub (hollow housing shell 20 in the form of tub, paragraph [0023]), including a film material (sheet 34), wherein the film material is permanently deformed to configure a substantially convex protrusion (see convex portion in Annotated Fig. 1) protruding over the lying surface of the film (protrudes over at least one surface of the film), wherein the protrusion encompasses a cavity (bottom portion opposite protrusion in Annotated Fig. 1) communicating with the tub such that the inner walls of the cavity that are made of film material can be exposed to the water jet of the at least one nozzle (see Fig. 3), such that the water jet is transmitted to a part of a body of a person adjacent to the protrusion and substantially inclined with respect to a plane of the lying surface (inclined relative to at least one plane of the tub, see Fig. 1).
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Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the film of modified Unbescheiden such that the film material is permanently deformed to configure a substantially convex protrusion protruding over the lying surface of the film, wherein the protrusion encompasses a cavity communicating with the tub such that the inner walls of the cavity that are made of film material can be exposed to the water jet of the at least one nozzle, such that the water jet is transmitted to a part of a body of a person adjacent to the protrusion and substantially inclined with respect to a plane of the lying surface, as taught by Elliot, for the purpose of improving user comfort during massage by allowing to read a book or magazine, watch television, and remain otherwise occupied with other activities while receiving massage (paragraph [0005] Eliot).
Allowable Subject Matter
Claims 29, 35-36, 39 and 45 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Lunter (US 2009/0312680) discloses a dry hydro massage device having a plurality of moving nozzles.
Mahmoud (US 20080039750) discloses a dry hydro massage device having a film contoured to user’s body with concave and convex portions.
Henricks (US 2005/0132489) discloses a dry water jet massager with rotatable nozzles.
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/MATTHEW R MOON/Examiner, Art Unit 3785
/TIMOTHY A STANIS/Supervisory Patent Examiner, Art Unit 3785