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 amendment filed on 12/11/2025. As directed by the amendment, no claims were canceled, claims 1-2 and 9 were amended, and no new claims were added. Thus, claims 1-9 are pending for this application.
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 1-9 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.
Regarding claim 1, the phrase “two upper walls” in lines 7, 10, 13 and 17 is unclear as it appears applicant is misdescribing the invention. While the invention shown in Fig. 1 includes an upper and lower wall of the inner core, it is unclear how the device includes two upper walls.
For the purpose of examination, examiner has interpreted “two upper walls” to mean “an upper and a lower wall”.
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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-2 and 4-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Montelli (US Pat. Pub. 2016/0287468) in view of Rocklin (US 2017/0020774), Owusu (US 2020/0375841) and Egan (US 20160279018).
Regarding claim 1, as best understood, Montelli discloses (Fig. 1) a vibratory pool noodle (aquatic stimulation system, see Fig. 1) comprising:
an outer core made from a buoyant material (a noodle-type aquatic recreation device, “the noodle is a long soft, deformable, tubular shaped object made of a material with positive buoyancy, such as polyethylene foam, commonly used as an aquatic recreation or flotation device,” para. [0013]), forming an elongated shape enclosing and defining an elongated hollow interior configured (elongated due to being a pool noodle and hollow as shown and described in Fig. 1 and paragraph [0013]), and having a proximal end (left end) and a distal end (right end) with the hollow interior spanning a length separating the proximal and distal ends (see Fig. 1);
an inner core disposed within the outer core and disposed within the hollow interior of the outer core (saddle form 2, configured to be placed within the hollow core of the pool noodle, see paragraph [0022]); the inner core made is made of a pliable material (“relatively soft, flexible”, paragraph [0018]) with two side walls (see left and right sidewalls in annotated Fig. 2 of Montelli below) and two upper walls (see bottom upper wall on side of Montelli in Annotated Fig. 2 and second upper wall in Annotated Fig. 3 of Montelli below) defining and enclosing a hollow interior (hollow interior of saddle that motor 8 is housed within, Fig. 1-2 and para [0022]);
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and a vibration motor (waterproof vibration element 8, paragraph [0013]) encased by the pliable two side walls and two upper walls of the inner core (see Annotated Fig. 2-3 above), and configured to impart vibrations to the vibratory pool noodle (vibrations created by element 8 transferred to pool noodle, paragraph [0022]), wherein the vibratory pool noodle is configured to transfer the vibrations generated inside of the inner core, through the pliable two sidewalls and two upper walls, by the vibration motor, and propagated structurally through the inner core and then through the outer core, to one or more body parts of a user in contact with the vibratory pool noodle for massaging the one or more body parts (vibrations generated by element 8 are passed to the user utilizing pool noodle, paragraph [0004]).
Montelli does not disclose the outer core includes a sidewall with an inner surface enclosing and defining an elongated hollow interior that is completely encased, the inner core of a monolithic structure and substantially spanning the length of the hollow interior such that the inner core corresponds to the elongated shape of the hollow interior and is adjacent to ends defining the encased hollow interior, the inner core completely encased in the outer core and disposed within the hollow interior of the outer core, inner core continuously spanning outwardly from the hollow interior of the inner core in each direction toward the ends defining the encased hollow interior of the outer core.
However, Rocklin teaches (Fig. 9) a massage device including an outer core (comfort layer 955) which includes a sidewall (see circular side surface in Fig. 9) with an inner surface enclosing and defining an elongated hollow interior that is completely encased (inner core is inserted into elongated hollow interior of outer core and retained via the side wall, causing the elongated hollow interior of the outer core to be completely encased, see Fig. 9), and the inner core (element 972) of a monolithic structure (see monolithic, i.e. singular piece, structure in Fig. 9) substantially spanning the length of the hollow interior (see Fig. 9) such that the inner core corresponds to the elongated shape of the hollow interior and is adjacent to ends defining the encased hollow interior (see Fig. 9), the inner core completely encased in the outer core (see 974 in Fig. 9) and disposed within the hollow interior of the outer core (see 974 in Fig. 9), the inner core continuously spanning outwardly from the hollow interior of the inner core in each direction toward the ends defining the encased hollow interior of the outer core (see 970-974 of Fig. 9).
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 vibratory pool noodle of Montelli such that the outer core includes a sidewall with an inner surface enclosing and defining an elongated hollow interior that is completely encased, the inner core substantially spanning the length of the hollow interior such that the inner core corresponds to the elongated shape of the hollow interior and is adjacent to ends defining the encased hollow interior, the inner core completely encased in the outer core and disposed within the hollow interior of the outer core, inner core continuously spanning outwardly from the hollow interior of the inner core in each direction toward the ends defining the encased hollow interior of the outer core., as taught by Rocklin, for the purpose of preventing the inner core from being dislodged by providing a barrier on the side of the device. 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 vibratory pool noodle of Montelli inner core being of a monolithic structure as taught by Rocklin for the purpose of allowing for easier insertion/removal due to the structure of the inner core being condensed into a singular structure. It has also been held that making a multi-component device into a singular structure is a matter of design choice and would have been obvious to one of ordinary skill, see In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965).
Modified Montelli does not disclose the vibration motor completely enclosed ny the pliable two side walls and two upper walls of the inner core, centrally located in the hollow interior of the inner core.
However, Owusu teaches (Fig. 3) a massage device comprising an outer core (foam exterior surface 10) and an inner core (supporting tube 74) substantially spanning the length of the hollow interior such that the inner core corresponds to the elongated shape of the hollow interior and is adjacent to ends defining the encased hollow interior (see Fig. 3 and paragraph [0066]), and a vibration motor (vibration motor 58) completely enclosed by the two side walls (two side walls on ends of core 74. Core 74 described as hollow so there must be at least a portion of a side wall on the ends of the core) and the two upper walls (upper and bottom walls of core 74 of Owusu) the inner core (see Fig. 3), centrally located in the hollow interior of the inner core (centrally located as shown in 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 vibration motor and inner core of modified Montelli such that the vibration motor completely enclosed in the inner core, centrally located in the hollow interior of the inner core, as taught by Owusu, for the purpose of ensuring the motor is fully secured so that vibrational transfer can be optimized.
Modified Montelli discloses an open proximal end (see Fig. 9 of Rocklin), but does not disclose a cap coupled to the outer core in watertight configuration to prevent entry of water into the hollow outer core.
However, Egan teaches (Fig. 10B) a cap (1010) that provides watertight sealing to prevent entry of water into hollow interior of the outer core (paragraph [0033]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the pool noodle of modified Montelli to include cap that is in a water-tight configuration, as taught by Egan, for the purpose of preventing water damage of the inner components (paragraph [0033] Egan).
Regarding claim 2, modified Montelli discloses wherein the cap sealably covers the open end (see Fig. 10B and paragraph [0033] Egan).
Regarding claim 4, modified Montelli discloses wherein the outer core is configured to support the user to remain afloat in water (“noodle is a long soft, deformable, tubular shaped object made of a material with positive buoyancy, such as polyethylene foam, commonly used as an aquatic recreation or flotation device,” para. [0013] Montelli).
Regarding claim 5, modified Montelli further discloses wherein the inner core permits the vibratory pool noodle to be bent under an external force (both the pool noodle and the saddle assembly are formed from soft, pliable, and bendable materials which are capable of being bent under an external force, Paras. 13 and 18 of Montelli).
Regarding claim 6, modified Montelli discloses wherein the outer core is made of expanded vinyl coated polyethylene (the pool noodle is formed of polyethylene foam, Para. [0013] Montelli).
Regarding claim 7, the modified Montelli does not disclose wherein the vibration motor further comprises a weight attached to a shaft projecting from a casing, wherein the vibration motor is operably configured to generate a vibration caused with improper balance of the weight.
However, Owusu teaches (Fig. 3) teaches a vibration motor (58) that includes a weight (66) attached to a shaft (144) projecting from a casing (casing of motor 58) wherein the vibration motor is operably configured to generate a vibration caused with improper balance of the weight (paragraph [0083]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the motor of modified Montelli to include a weight attached to a shaft projecting from a casing, wherein the vibration motor is operably configured to generate a vibration caused with improper balance of the weight, as taught by Owusu, for the purpose of providing a well-known vibration motor type with the expected result of generating vibrations that provide therapeutic effect to a user.
Regarding claim 8, modified Montelli discloses the outer core, including the distal end, is enclosed from all sides except for the proximal end for insertion of the inner core therethrough (Fig. 9 of Rocklin shows the outer core 955 is enclosed on all sides except the proximal end (end visible in first image of Fig. 9) for insertion of inner core (970 of Rocklin) therethrough).
Regarding claim 9, modified Montelli discloses the cap covered to the proximal end of the outer core in watertight configuration (see Fig. 10B and paragraph [0033] Egan).
Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over Montelli in view of Rocklin (US 2017/0020774) and Owusu (US 2020/0375841) and Egan (US 20160279018), and further in view of Hitzmann (US 2008/0070210) and Lin US 2017/0143583).
Regarding claim 2, modified Montelli discloses wherein the proximal end of the outer core has an open end (pool noodle is configured to have a hollow core extending end to end with an open end, Para. 13, Fig. 1 of Montelli), and a vibrator unit installed in the interior of a hollow core (Para. 22 of Montelli); but Montelli does not disclose wherein a cap sealably covers the open end.
However, Hitzmann teaches a vibrating roller (1, Fig. 49) including wherein a cap sealably covers the open end (control cap 20 seals the end of the inner cavity to prevent the internal electronic components such as the batteries from unintentionally falling out of the device, Para. 297, Fig. 49, the control cap 20 including power switches and vibration adjustment buttons on it, Para. 297).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the end of the pool noodle of Montelli to include a cap as taught by Hitzmann in order to prevent internal components from being unintentionally removed from the pool noodle.
The modified Montelli discloses a cap (cap of Egan) and a power button (power button of Montelli, paragraph [0020]) in electrical communication with the vibration motor and configured to turn the vibration motor on and off (Montelli buttons used to turn the Montelli vibrating element 8 on and off, Montelli Para. 20) and a rechargeably battery (paragraph [0020] Montelli), but does not disclose the cap comprises: a power button, wherein the power button in electrical communication with the vibration motor and configured to turn the vibration motor on and off; and one or more control buttons in electrical communication with the vibration motor for increasing or decreasing a vibration frequency of the vibration motor.
However, Hitzmann teaches (Fig. 49) a massage roller comprising a cap (control cap 20) that seals an end of the inner cavity to prevent damage to electrical components where the cap includes a power button (paragraph [0297]) in electrical communication with the vibration motor and configured to turn the vibration motor on and off (paragraph [0297]); and one or more control buttons in electrical communication with the vibration motor for increasing or decreasing a vibration frequency of the vibration motor (Hitzmann control cap 20 includes buttons to adjust the speed and/or power of the vibration, Hitzmann Para. 297).
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 roller of modified Montelli such that the cap includes the power button, as taught by Hitzmann, for the purpose of preventing the power switch to be accidentally pressed during use by placing is on a side of the device not in contact with a user when in use. Furthermore, it has been held that, outside evidence of criticality, that mere rearrangement of parts is a matter of design choice and thus would have been obvious and routine to one of ordinary skill, see In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950); and it would have been obvious to further modify the cap of modified Montelli include control buttons for adjusting vibration motor, as taught by Hitzmann, for the purpose of allowing for intensity of vibration therapy to be adjusted to user preference, thereby improving therapeutic outcome.
Modified Montelli does not disclose a charging port, the charging port in electrical communication with a charging circuitry, the charging circuitry configured to a charge a battery also enclosed within the outer core, the battery powers the vibration motor.
However, Lin teaches a massaging vibration device (1, Fig. 1) including a charging port (charging plug 113, Para. 21, Fig. 6), the charging port in electrical communication with a charging circuitry (wiring circuitry connecting the charging plug) encased within the outer core (positioned on end of cylinder 11, which is positioned within outer core, see Fig. 4), the charging circuitry configured to a charge a battery also enclosed within the outer core (“charging plug 113 can be mounted to one of the two ends of the cylinder for charging the rechargeable battery or the lithium battery,” Para. 21), the battery powers the vibration motor (battery 112 is connected to the vibratory motor 110 through switch 111 to power the motor, Para. 21).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the end cap of modified Montelli to include a charging port as taught by Lin in order to reduce the need to remove and replace batteries as the batteries become discharged.
Response to Arguments
Applicant’s arguments filed 12/11/2025 have been fully considered.
Regarding Montelli reference, applicant argued (page 7 paragraph 1 Remarks) that Montelli teaches away from modifying it to have the claimed features of being monolithic and being completely encased in the outer core.
The examiner respectfully disagrees.
In response to Applicant' s argument that “Montelli teaches away from modifying it to have the claimed features of being monolithic and being completely encased in the outer core”, it is noted that a teaching away requires a reference to actually criticize, discredit, or otherwise discourage investigation into the claimed solution. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). It has been further instructed that the Examiner will not read into a reference a teaching away from a process where no such language exists. See DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006).
In this case, nowhere in Montelli is it stated that making the inner core monolithic and completely encasing the inner core within the outer core actually criticized, discredited, or otherwise discouraged investigation into the claimed solution of Montelli.
Applicant further argued (page 9 paragraphs 1-2 page 10 paragraph 2) that examiner has not provided reasoning why the saddle of Montelli would be equated to an inner core that is monolithic and spans the entire hollow core and that while Montelli vaguely says the assembly “could” be “molded within” the hollow outer core, this does not provide requisite clear and particular underpinnings for any purported change to Montelli.
Examiner respectfully disagrees, and reminds applicant that claim 1 is rejected under 35 USC 103 as being obvious over Montelli in view of Rocklin (US 2017/0020774) and Owusu (US 2020/0375841) (and now Egan (US 20160279018) based on applicant’s amendments to claim 1), and applicant’s issues with the term “could” in specification of Montelli have already been ameliorated by the teachings as stated in the previous action and repeated in this action. See full rejection above. As stated above, there is no disclosure in Montelli that actively teaches away from the teachings of Rocklin, Owusu and Egan, and because each of these references are incorporated with clear and reasonable motivation statements, the rejection under 35 USC 103 is maintained.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Mangano (US 2004/0267173) discloses a device having an inner pliable core having upper, lower and side walls that enclose a motor.
Dalebout (US 2013/0178768) discloses a device having an inner pliable core having upper, lower and side walls that enclose a motor.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R MOON whose telephone number is (571)272-2554. The examiner can normally be reached Monday-Thursday 7:30am-5:30pm.
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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.
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/MATTHEW R MOON/Examiner, Art Unit 3785
/TIMOTHY A STANIS/Supervisory Patent Examiner, Art Unit 3785