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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114 was filed in this application after a decision by the Patent Trial and Appeal Board, but before the filing of a Notice of Appeal to the Court of Appeals for the Federal Circuit or the commencement of a civil action. Since this application is eligible for continued examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant’s submission filed on 02/19/26 has been entered.
Response to Amendment
This office action is in response to the amendment filed on 02/19/26. As directed by the amendment, claims 1, 8, 10, 13 and 20-12 have been amended and no claims have been added or canceled. Thus, claims 1-21 are pending in the application.
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.
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 of this title, 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.
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.
Claims 1-2, 5-9, 11-13, 15, 18, and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Fried et al (7,238,163) in view of Garcia (3,884,224) and Carr (2021/0236371).
Regarding claim 1, Fried discloses a therapeutic apparatus (Figs. 11-15, treatment device 20F), comprising: (a) a driven endless belt (Fig. 15, conveyor 66) having a machine direction (Fig. 15, the left-right direction of the figure is the “machine direction”), a cross direction (Fig. 14, the left-right direction is the “cross direction”) and a transverse direction (Figs, 14-15, the up-down direction is the “transverse direction) for movement along a path in a first machine direction (left to right direction of fig 15 how the belt moves) which includes an interaction segment (Fig. 12, membrane 100 represents the “interaction segment” of the endless belt); (b) a plurality of elements attached to, transversely projecting from and spaced along the machine direction of the endless belt operable for effecting parallel mobilization of a muscle or a tendon (Fig. 15, protuberances 24 project transversely from the conveyor 66 and spaced along the machine direction. Col. 2, ln. 39-46, discloses that the protuberances on the conveyor create a massaging effect for the user’s hand and/or wrist. This “massaging effect” is considered to effect “parallel mobilization” of the muscles or tendons of the hand and/or wrist) each element having (i) a leading end (end on the right side of protuberance 24 in fig 15) and a trailing end (end on the left side of protuberance 24 in fig 15), (ii) an upper surface facing away from the driven endless belt (top of 24 in fig 15), and (c) a housing enclosing the endless belt with a machine direction slot through the housing through which the elements project as they travel along the interaction segment of the path (Fig. 12, housing 42 has an aperture slot 114 through which the protuberances 24 project).
Fried does not disclose the elements projecting external to the housing.
However, Garcia teaches a therapeutic apparatus comprising a driven endless belt with projections, wherein these projections project external to the housing (Figs. 1 and 3, teeth 26 are located on belt 24 and project external to the housing defined by walls 8, 10, and 12).
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 protuberances of Fried to project external to the housing (i.e. remove the membrane of Fried) as taught by Garcia to provide the user with a stronger stimulation via direct contact between the protuberances and the tissue of the user.
The modified apparatus of Fried does not have the upper surface configured with an apex proximate the leading end of the element, and a projection forming a rounded edge blade projecting in a forward machine direction from the leading end of the element proximate the upper surface of the element, the rounded edge blade extending in a cross direction along the leading end of the element.
However, Carr teaches a massage protuberance in the shape of a “shark fin” that has two or more ridges comprising an apex (Fig. 5, depicts a massage blade 102 with an apex 116-1 that projects from the arched shape) and a projection (116-2, fig 5) forming a rounded edge blade (2nd ridge as depicted in fig 5) projecting in a forward machine direction from the leading end of the element proximate the upper surface of the element, the rounded edge blade extending in a cross direction along the leading end of the element (see fig 5 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 design the arched shape protuberances of the modified apparatus of Fried to have a rounded edge blade as taught by Carr to provide a more defined projection that helps to apply pressure to the target tissue and enhance the massaging effect.
Regarding claim 2, the modified apparatus of Fried has a band for temporarily securing the apparatus to a human limb (Fried, Fig. 11, any of bands 96) with the slot longitudinally extending along the limb for allowing the elements to contact a surface of the limb and effect parallel mobilization of a muscle or a tendon under the contacted surface as the elements travel along the interaction segment of the path (Fried, Figs. 11-12, aperture 114 extends along the limb of the user to mobilize muscle or tendon during operation).
Regarding claim 5, the modified apparatus of Fried does not have the machine direction length of the endless belt.
However, a machine direction length of the belt being “about 8 to 20 inches” is considered obvious routine optimization. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05. Fried targets the same type of condition and body location as the applicant (e.g. tendonitis in the wrist of a user), wherein it would be obvious to one of ordinary skill in the art before the effective filing date to dimension the components of the device to match the anatomy of the user through routine experimentation (e.g. size the belt in a manner that corresponds to the body area targeted).
Regarding claim 6, the modified apparat of Fried does not have the interaction segment length of the endless belt.
However, an interaction segment length of the belt being “about 2 to 10 inches” is considered obvious routine optimization. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05. Fried targets the same type of condition and body location as the applicant (e.g. tendonitis in the wrist of a user), wherein it would be obvious to one of ordinary skill in the art before the effective filing date to dimension the components of the device to match the anatomy of the user through routine experimentation (e.g. size the belt in a manner that corresponds to the body area targeted).
Regarding claim 7, the modified apparatus of Fried has the elements as uniformly spaced along the machine direction of the endless belt (Fried, Fig. 12, protuberances 24 are uniformly spaced along the belt as visibly by the corresponding outward deformations 118).
Regarding claim 8, the modified apparatus of Fried does not have the distance between the projecting elements. It is noted that Fried does disclose that the protuberances can be of varying shapes and sizes (Fried, col. 6, ln. 64-67), and that they can be organized in any pattern (Fried, col. 9, ln. 7-8).
However, the distance between the projecting elements is considered obvious routine optimization. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05. Fried teaches that a variety of protuberance size, shapes, and patterns is possible (Col. 6, ln. 64-67; col. 9, ln. 7-8). Fried thus recognizes that different patterns (which includes protuberance spacing) influence the effectiveness of the treatment massage. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to space out the protruding elements between 1 and 5 inches through routine experimentation (e.g. adjust protrusion spacing to determine what spacing is most effective for treating the patient’s condition).
Regarding claim 9, the modified apparatus of Fried has the elements spaced such that at least two elements extend through the slot in the housing at all times as the endless belt is driven along the path (Fried, Fig. 12, depicts at least two deformations 118 protruding through the aperture 114 at a time).
Regarding claim 10, the modified apparatus of Fried shoes the leading edge and rounded edge blade of each element is arched in the cross direction (Fig. 5 of Carr, depicts a massage blade 102 with an arched shape and ridges 116-1/116-2 that projects from the arched shape).
Regarding claim 11, the modified apparatus of Fried does not disclose the projection angle of the elements.
However, the angle of the projecting elements is considered obvious routine optimization. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05. Fried teaches that a variety of protuberance sizes and shapes are possible (Col. 6, ln. 64-67; col. 9, ln. 7-8). Fried thus recognizes that different protuberance shapes (which includes protuberance angles) influence the effectiveness of the treatment massage. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have the protuberances angled between 20-40 degrees through routine experimentation (e.g. adjust protrusion angles to determine what angle is most effective for treating the patient’s condition).
Regarding claim 12, the modified apparatus of Fried has (i) the housing having a bottom, (ii) the slot extending through the bottom of the housing (Fried, Fig. 12, while pictured facing upward in the drawing, the “bottom” of the housing may be labeled as the top surface in the picture), (ii) the bottom of the housing curved to conform to a human limb with the slot configured to extend along the length of the limb for allowing the elements to contact and effect parallel mobilization of a muscle or a tendon in the limb as the elements travel in the machine direction along the interaction segment of the path (Fried, Fig. 11, the aperture 114 allows the membrane 100 and protrusions 118 to travel the length of the human’s limb to mobilize a muscle or a tendon of the limb).
Regarding claim 13, the modified apparatus of Fried is a method for providing parallel mobilization treatment of a muscle or a tendon in a limb (Fried, Fig. 11 depicts a method of mobilizing a muscle or a tendon of a user’s arm), comprising: (a) identifying a tender location on a limb in need of parallel mobilization treatment (Fried, Fig. 11 depicts identifying a hand and forearm that is need of mobilization treatment), (b) obtaining a therapeutic apparatus in accordance with claim 1 having a plurality of elements which travel in a first machine direction along a path which includes an interaction segment (Fried, Fig. 12, apparatus 20F has a plurality of elements 118 that travel in a machine direction along the membrane 100 segment. See the rejection of claim 1 for its full rejection), (c) releasably securing the therapeutic apparatus to the limb whereby the interaction segment overlays the tender location (Fried, Fig. 11 depicts the device 20F as secured via the releasable bands 96), and (d) activating the therapeutic apparatus to drive the elements along the path in the first machine direction for a defined therapeutic duration during which the rounded edge blade on each element initiates contact with the limb as each element enters the interaction segment with subsequent pivoting of the rounded edge blade away from the limb and substitution of the apex of the element into contact with the limb as each element continues to travel along the path in the first machine direction within the interaction segment (as the belt moves the leading end with the rounded blade first contacts the limb and as the belt continues to move the apex then contacts the limb as they are next to one another), to effect parallel mobilization of a muscle or a tendon at the tender location (Fig. 15, motor 38 drives the conveyor 66 to drive the protuberances 24. The amount of time the user decides to operate the device is considered the “defined therapeutic duration” during which the protuberances 24 mobilize a muscle or a tendon of the user’s arm/hand).
Regarding claim 15, Fried does not disclose the speed of the conveyor.
However, a belt speed of less than 10 ft/min is considered obvious routine optimization. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05. Applicant discloses that a speed of less than 10 ft/min is desirable because a speed higher than that can irritate the skin ([0115]). Fried does not disclose a belt speed, but presumably Fried also does not intend to irritate the skin of the user. Since skin irritation correlates to the speed of the belt, one of ordinary skill in the art would find it obvious to use routine experimentation to find a belt speed that does not irritate the skin of the user (i.e. determine that a speed of less than 10 ft/min is appropriate).
Regarding claim 18, the modified apparatus of Fried has the tender location suffering tendonitis (Fried, Col. 1, ln. 15-19, discloses the method as treating tendinitis).
Regarding claim 20, the modified apparatus of Fried is a method for providing parallel mobilization treatment of a muscle or a tendon in a limb (Fried, Fig. 11 depicts a method of mobilizing a muscle or a tendon of a user’s arm), comprising: (a) identifying a tender location on a limb in need of parallel mobilization treatment (Fried, Fig. 11 depicts identifying a hand and forearm that is need of mobilization treatment), (b) obtaining a therapeutic apparatus in accordance with claim 10 having a plurality of elements which travel in a first machine direction along a path which includes an interaction segment (Fried, Fig. 12, apparatus 20F has a plurality of elements 118 that travel in a machine direction along the membrane 100 segment. See the rejection of claim 10 for its full rejection), (c) releasably securing the therapeutic apparatus to the limb whereby the interaction segment overlays the tender location (Fried, Fig. 11 depicts the device 20F as secured via the releasable bands 96), and (d) activating the therapeutic apparatus to drive the elements along the path in the first machine direction for a defined therapeutic duration during which the rounded edge blade on each element initiates contact with the limb as each element enters the interaction segment with subsequent pivoting of the rounded edge blade away from the limb and substitution of the apex of the element into contact with the limb as each element continues to travel along the path in the first machine direction within the interaction segment (as the belt moves the leading end with the rounded blade first contacts the limb and as the belt continues to move the apex then contacts the limb as they are next to one another), to effect parallel mobilization of a muscle or a tendon at the tender location (Fig. 15, motor 38 drives the conveyor 66 to drive the protuberances 24. The amount of time the user decides to operate the device is considered the “defined therapeutic duration” during which the protuberances 24 mobilize a muscle or a tendon of the user’s arm/hand).
Regarding claim 21, the modified apparatus of Fried is a method for providing parallel mobilization treatment of a muscle or a tendon in a limb (Fried, Fig. 11 depicts a method of mobilizing a muscle or a tendon of a user’s arm), comprising: (a) identifying a tender location on a limb in need of parallel mobilization treatment (Fried, Fig. 11 depicts identifying a hand and forearm that is need of mobilization treatment), (b) obtaining a therapeutic apparatus in accordance with claim 11 having a plurality of elements which travel in a first machine direction along a path which includes an interaction segment (Fried, Fig. 12, apparatus 20F has a plurality of elements 118 that travel in a machine direction along the membrane 100 segment. See the rejection of claim 11 for its full rejection), (c) releasably securing the therapeutic apparatus to the limb whereby the interaction segment overlays the tender location (Fried, Fig. 11 depicts the device 20F as secured via the releasable bands 96), and (d) activating the therapeutic apparatus to drive the elements along the path in the first machine direction for a defined therapeutic duration during which the rounded edge blade on each element initiates contact with the limb as each element enters the interaction segment with subsequent pivoting of the rounded edge blade away from the limb and substitution of the apex of the element into contact with the limb as each element continues to travel along the path in the first machine direction within the interaction segment (as the belt moves the leading end with the rounded blade first contacts the limb and as the belt continues to move the apex then contacts the limb as they are next to one another), to effect parallel mobilization of a muscle or a tendon at the tender location (Fried, Fig. 15, motor 38 drives the conveyor 66 to drive the protuberances 24. The amount of time the user decides to operate the device is considered the “defined therapeutic duration” during which the protuberances 24 mobilize a muscle or a tendon of the user’s arm/hand).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Fried in view of Garcia and Carr, as applied to claim 1, and further in view of Wada (2002/0019601).
Regarding claim 3, the modified apparatus of Fried has a motor for driving the endless belt in a first machine direction (Fried, Fig. 15, motor 38) and a controller for controlling travel speed of the endless belt in the first machine direction along the path (Fried, Col. 7, ln. 10-11, discloses that the user can adjust the speed of the conveyor, indicating some type of control mechanism for regulating the speed of the device).
The modified apparatus of Fried does not have the controller as a microcontroller.
However, Wada teaches a massage device for massaging the limbs of a user (Figs. 1 and 14, device 1 can sandwich and massage the arm of the user) comprising a drive mechanism that is controlled by a microcontroller ([0065] discloses a microcontroller controlling the drive mechanisms of the massage device).
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 apparatus of Fried to include a microcontroller as taught by Wada to provide a mechanism for controlling the speed of the conveyor that is small and easily fits within the housing of the device.
The modified device of Fried does not disclose the speed of the conveyor.
However, a belt speed of less than 10 ft/min is considered obvious routine optimization. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05. Applicant discloses that a speed of less than 10 ft/min is desirable because a speed higher than that can irritate the skin ([0115]). Fried does not disclose a belt speed, but presumably Fried also does not intend to irritate the skin of the user. Since skin irritation correlates to the speed of the belt, one of ordinary skill in the art would find it obvious to use routine experimentation to find a belt speed that does not irritate the skin of the user (i.e. determine that a speed of less than 10 ft/min is appropriate).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Fried in view of Garcia, Carr, and Wada, as applied to claim 3, and further in view of Tsai (2005/0203445).
Regarding claim 4, the modified device of Fried has an onboard battery (Fried, col. 9, ln. 21-24, discloses an “onboard fuel source,” which is considered a “battery”), an onboard user interface for setting the value of the at least one operational parameter (Fried, col. 7, ln. 10-11, discloses that the use can adjust the speed and direction of the conveyor. User adjustment of these parameters would require some type of user interface).
The modified device of Fried does not have an onboard display for displaying the set value of the at least one operational parameter.
However, Tsai discloses a massager (Fig. 1) comprising a display panel that allows the user to control and view the speed of vibration of the massager (Fig. 1, control panel 121 and display panel 122. [0022] discloses the control panel 121 and display panel 122 allow the user to select the speed of vibration and view the control status).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to design the modified device of Fried to have a control panel and display panel as taught by Tsai to allow the user to easily select and view the speed at which the apparatus is operating.
Claims 14 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Fried in view of Garcia and Carr, as applied to claim 13, and further in view of Deming (2010/0324611).
Regarding claim 14, the modified apparatus of Fried does not have periodically repeating steps (a)-(d).
However, Deming teaches a method for treating limb conditions (including tendonitis) comprising massaging the limb via vibratory devices or other massage devices ([0163]; [0219] discloses treating tendonitis). Deming additionally teaches that the treatment may be repeated over various time periods ([0196]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to perform the massaging treatment of the modified apparatus of Fried repeatedly as taught by Deming to help effectively treat the limb ailment (such as tendonitis).
Regarding claim 16, the modified apparatus of Fried does not have the therapeutic duration of the treatment.
However, Deming additionally teaches that a treatment session can last 30 minutes ([0196]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to perform the massaging treatment of Fried for 30 minutes as taught by Deming to help effectively treat the limb ailment (such as tendonitis).
Regarding claim 17, the modified apparatus of does not have that the treatment frequency is between once and four times every two days and the treatment period is at least 7 days.
However, Deming additionally teaches treatment being repeated once every other day, and contemplates treatment lasting multiple weeks ([0196]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to perform the massaging treatment of Fried between once and four times every two days and have the treatment period last at least seven days as taught by Deming to help effectively treat the limb ailment (such as tendonitis).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Fried in view of Garcia, Carr, and Wada, as applied to claim 3, and further in view of Cohen (2006/0090255).
Regarding claim 19, the modified device of Fried does not have the microcontroller further operable for periodically monitoring values of an electrical parameter of the motor and stopping drive of the endless belt in the first machine direction when a value of the monitored electrical parameter suggests an adverse condition inhibiting continued movement of the endless belt in the first machine direction.
However, Cohen teaches load-sensing systems that monitor the operation of an electric motor by detecting overload and shutting off the motor in response to detecting overload. Such systems protect against damage to the motor (See [0013]).
Therefore, it would have been obvious to one of ordinary skill the art before the effective filing date of the claimed invention to design the modified apparatus of Fried to have an overload detecting system that shuts off the motor in response to detecting an overload as taught by Cohen to protect against damage to the motor of the device.
Response to Arguments
The arguments to the newly added claim limitations in claims 1-21 have been addressed in the above rejections.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELSEY E BALLER whose telephone number is (571)272-8153. The examiner can normally be reached Monday - Friday 8 AM - 4 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Stanis can be reached at 571-272-5139. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KELSEY E BALLER/Examiner, Art Unit 3785
/TU A VO/Primary Examiner, Art Unit 3785
Prosecution Insights