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 .
Status of Claims
The present Office action is responsive to the Request for Continued Examination filed on 08-11-2026. As directed, claim 1 has been amended, no claims were newly canceled or added. Thus, claims 1-7 and 10-12 are presently pending examination.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 08-11-2026 has been entered.
Response to Amendment
Applicant has amended claim 1 to overcome minor informalities. The previously held objection to claim 1 is hereby withdrawn.
Response to Arguments
Applicant's arguments filed 08-11-2026 have been fully considered but they are not persuasive.
Applicant argues that the instant specification does not support the claim interpretation of “securing mechanism” to be limited to straps and functional equivalents thereof. Examiner has explicitly provided citations to the instant specification to support the interpretation. Applicant is encouraged to outline additional areas in the specification which would indicate that the securing mechanism is more broadly construed. Given such evidence, Examiner would update the claim interpretation to encompass the broader interpretation offered by Applicant, if supported by the instant specification.
Next, Applicant argues that Burnett only describes measurement of a resultant acceleration into the subject body as opposed to direct measurement of the acceleration attributed to the actuator, and thus the amendments to claim 1 overcome reliance on Burnett.
Examiner respectfully disagrees with such an assertion. At paragraph 55, Burnett proffers “These accelerometers (which are in communication with a processor, not shown) may be between the vibrating element 12 and user's skin”, clearly contemplating a direct measurement of the actuator by virtue of its placement between the actuator and the skin, in direct contact with the actuator. The rejection will therefore be maintained hereinbelow. Applicant is encouraged to differentiate, using structural limitations, how one accelerometer measures the recited resultant acceleration verses the direct measurement of the other claimed accelerometer to overcome reliance on Burnett.
Regarding the additional arguments that none of Naumann, Simonson, nor Turo cure Burnett’s deficiencies, these arguments are also found unpersuasive given that Burnett is not found to be deficient with respect to the claimed limitations.
Claim Objections
Claims 1-7 and 10-12 are objected to because of the following informalities:
At claim 1, line 11, “an acceleration” should be replaced with “the acceleration” as the limitation was introduced at line 2.
At line 1 of each of claims 2-7 and 10-12, it is suggested that a comma be added following the recitation of the claim that each individual claim depends from (e.g. for claim 2, line 1 would recite “claim 1,”) for clarity.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
The “securing mechanism” in claims 1, 12-14, and 26 which is interpreted relative to the instant specification at paragraphs 33, 38, and 40 to be straps and functional equivalents thereof.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-2, 10, and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Burnett (US 2015/0272805).
Regarding claim 1, Burnett discloses a vibration apparatus (10) for treating a subject (paragraph 41, lines 1-9; paragraph 50, lines 1-4; Fig. 3), comprising:
an actuator (12) configured to generate an acceleration (paragraph 46, lines 1-6; paragraph 50, lines 3-4; Fig. 3);
a securing mechanism (14) for positioning the actuator (12) upon a body of the subject while maintaining portability such that the acceleration generated by the actuator (12) is configured to be directed into an area of the body of the subject to be treated (paragraph 41, lines 9-14; paragraph 42, lines 1-16; paragraph 50, lines 1-3; Fig. 3; see also paragraph 63, lines 1-2);
a first accelerometer (a first of 17’ placed within pockets 17 in Fig. 3) positioned in proximity to the area of the body of the subject and configured to detect a resultant acceleration transmitted into the area of the body of the subject, wherein the resultant acceleration is within, above, or below a predetermined acceleration range (paragraph 55, lines 1-20; paragraph 56, lines 1-6 for analogous “pre-determined” level, i.e. see “desired”; Fig. 3 for accelerometers; see Fig. 6 and paragraphs 37 and 57 for an explanation of increasing, decreasing, and maintaining acceleration values, i.e., the acceleration may be within, above, or below the desired level and then altered);
a second accelerometer (second of 17’ placed within pockets 17 in Fig. 3) in communication with the actuator (12) and configured to detect the acceleration of the actuator (12) directly (paragraph 55, lines 1-20 describe the use of accelerometers to determine the acceleration delivered by actuators 12, and note that the accelerometers are in communication with a “processor”, see the placement of the accelerometers between the actuator 12 and the skin, understood to generate a direct acceleration value from the actuator; see also paragraph 46, lines 1-11 which outline that actuators output vibration with an acceleration; see paragraph 21, lines 1-3 which outline closed-loop feedback control of the actuators based on feedback from the accelerometers, and paragraph 56, lines 1-9 which echoes the notion of feedback control as well as “self-correction”); and
a controller (see paragraph 59: “computer chip with control software H”) in communication with the actuator (12), the first accelerometer (a first of 17’ placed within pockets 17 in Fig. 3), and the second accelerometer (a second of 17’ placed within pockets 17 in Fig. 3) (see paragraph 50, lines 1-3 which outlines the use of the Fig. 3 embodiment on the waist, and note that the preferred embodiment shown in Fig. 7 and discussed at paragraph 59 outlines the attachment of the preferred embodiment to the waist; paragraph 55, lines 1-20 describe the use of accelerometers to determine the acceleration delivered by actuators 12, and note that the accelerometers are in communication with a “processor”; see also paragraph 46, lines 1-11 which outline that actuators output vibration with an acceleration; see paragraph 21, lines 1-3 which outline closed-loop feedback control of the actuators based on feedback from the accelerometers, and paragraph 56, lines 1-9 which echoes the notion of feedback control as well as “self-correction”), wherein the controller (see paragraph 59: “computer chip with control software H”) is programmed to determine a first signal indicative of the resultant acceleration from the first accelerometer (a first of 17’ placed within pockets 17 in Fig. 3) and a second signal indicative of the acceleration of the actuator (12) from the second accelerometer (a second of 17’ placed within pockets 17 in Fig. 3) (see paragraph 50, lines 1-3 which outlines the use of the Fig. 3 embodiment on the waist, and note that the preferred embodiment shown in Fig. 7 and discussed at paragraph 59 outlines the attachment of the preferred embodiment to the waist; paragraph 55, lines 1-20 describe the use of accelerometers to determine the acceleration delivered by actuators 12, and note that the accelerometers are in communication with a “processor”; see also paragraph 46, lines 1-11 which outline that actuators output vibration with an acceleration; see paragraph 21, lines 1-3 which outline closed-loop feedback control of the actuators based on feedback from the accelerometers, and paragraph 56, lines 1-9 which echoes the notion of feedback control as well as “self-correction”).
Regarding claim 2, Burnett discloses the apparatus of claim 1, as discussed above.
Burnett further discloses wherein the actuator (12) comprises a motor configured to generate mechanical vibrational energy (paragraph 44, lines 1-5 and 16-18).
Regarding claim 10, Burnett discloses the apparatus of claim 1, as discussed above.
Burnett further discloses the apparatus (10) comprising a pressure sensor (see “force or tension sensor” in paragraph 58) in communication with the controller (see paragraph 59: “computer chip with control software H”) and configured to be in contact with the area of the body of the subject to be treated (see paragraph 50, lines 1-3 which outlines the use of the Fig. 3 embodiment on the waist, and note that the preferred embodiment shown in Fig. 7 and discussed at paragraph 59 outlines the attachment of the preferred embodiment to the waist; paragraph 58, lines 1-7, where securing mechanism contain the sensors and contacts the patient, and outlines use of the sensor in a feedback loop).
Regarding claim 12, Burnett discloses the apparatus of claim 1, as discussed above.
Burnett further discloses wherein the securing mechanism (14) is configured to position the actuator (12) upon the body such that the acceleration is directed into at least one bone of the subject to be treated (paragraph 41, lines 9-14; paragraph 50, lines 1-3, see “hips”; paragraph 46, lines 1-6; Fig. 3; abstract, lines 1-3).
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, 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or non-obviousness.
Claims 3 and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Burnett (US 2015/0272805), as applied to claim 1 above, in view of Naumann (US 2014/0316311).
Regarding claim 3, Burnett discloses the apparatus of claim 1, as discussed above.
While Burnett indicates that the actuator (12) is comfortable enough for use of 10 minutes or longer (paragraph 47, lines 10-13), Burnett does not explicitly disclose wherein a maximum exposure level comprises a treatment time of 30 minutes within a 24-hour predetermined period of time.
However, Nauman teaches a device (10) employing vibration to treat osteoporosis (paragraph 55, lines 1-12 and Fig. 1; paragraph 97, lines 1-5; paragraph 98, lines 1-5), wherein an identified beneficial treatment time is 30 minutes per day for preservation of bone density (paragraph 30, lines 1-7 and 18-20).
Given that both Burnett and Nauman are directed towards vibrational devices which treat osteoporosis (Burnett: abstract, lines 1-5, Nauman: abstract, lines 1-5), and that Burnett discusses the use of an exposure level and its comparison to a maximum exposure level in order to automatically turn the device off when maximum exposure is reached (paragraph 25, lines 1-5, where the exposure level is the instantaneous length that vibrational treatment has been delivered, maximum exposure is regarded as the acceptable length of time that the vibrational treatment is delivered at its frequency/amplitude etc., the predetermined period of time is regarded as the time at which the device is automatically turned off, and the device is “automatically” turned off when a time of treatment completion is reached, such a function understood to require the control software and computer chip), 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 maximum exposure level of Burnett to be a treatment time of 30 minutes within a 24-hour predetermined period of time, as taught by Nauman, given that Nauman indicates that the prescribed range of time is beneficial in preserving a patient’s bone density.
Regarding claim 5, Burnett discloses the apparatus of claim 1, as discussed above.
While Burnett indicates that the actuator (12) is comfortable enough for use of 10 minutes or longer (paragraph 47, lines 10-13), Burnett does not explicitly disclose wherein a maximum exposure level comprises a treatment time of between 20 and 30 minutes within a 24-hour predetermined period of time.
However, Nauman teaches a device (10) employing vibration to treat osteoporosis (paragraph 55, lines 1-12 and Fig. 1; paragraph 97, lines 1-5; paragraph 98, lines 1-5), wherein an identified beneficial treatment time is 30 minutes per day for preservation of bone density (paragraph 30, lines 1-7 and 18-20).
In the case where a specific example in the prior art is within a claimed range, the exemplary value anticipates the range (MPEP 2131.03 I). Given that Nauman teaches a treatment time of 30 minutes within a 24-hour period, that the range claimed is 20-30 minutes, and that the value 30 minutes taught by Nauman is within the claimed range, Nauman’s example anticipates the claimed range.
Further, given that both Burnett and Nauman are directed towards vibrational devices which treat osteoporosis (Burnett: abstract, lines 1-5, Nauman: abstract, lines 1-5), and that Burnett discusses the use of an exposure level and its comparison to a maximum exposure level in order to automatically turn the device off when maximum exposure is reached (paragraph 25, lines 1-5, where the exposure level is the instantaneous length that vibrational treatment has been delivered, maximum exposure is regarded as the acceptable length of time that the vibrational treatment is delivered at its frequency/amplitude etc., the predetermined period of time is regarded as the time at which the device is automatically turned off, and the device is “automatically” turned off when a time of treatment completion is reached, such a function understood to require the control software and computer chip), 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 maximum exposure level of Burnett to be a treatment time of 30 minutes within a 24-hour predetermined period of time, as taught by Nauman, given that Nauman indicates that the prescribed range of time is beneficial in preserving a patient’s bone density.
Regarding claim 6, Burnett discloses the apparatus of claim 1, as discussed above.
While Burnett indicates that the actuator (12) is comfortable enough for use of 10 minutes or longer (paragraph 47, lines 10-13), Burnett does not explicitly disclose wherein a maximum exposure level comprises a treatment time of between 30 and 40 minutes within a 24-hour predetermined period of time.
However, Nauman teaches a device (10) employing vibration to treat osteoporosis (paragraph 55, lines 1-12 and Fig. 1; paragraph 97, lines 1-5; paragraph 98, lines 1-5), wherein an identified beneficial treatment time is 30 minutes per day for preservation of bone density (paragraph 30, lines 1-7 and 18-20).
In the case where a specific example in the prior art is within a claimed range, the exemplary value anticipates the range (MPEP 2131.03 I). Given that Nauman teaches a treatment time of 30 minutes within a 24-hour period, that the range claimed is 30-40 minutes, and that the value 30 minutes taught by Nauman is within the claimed range, Nauman’s example anticipates the claimed range.
Further, given that both Burnett and Nauman are directed towards vibrational devices which treat osteoporosis (Burnett: abstract, lines 1-5, Nauman: abstract, lines 1-5), and that Burnett discusses the use of an exposure level and its comparison to a maximum exposure level in order to automatically turn the device off when maximum exposure is reached (paragraph 25, lines 1-5, where the exposure level is the instantaneous length that vibrational treatment has been delivered, maximum exposure is regarded as the acceptable length of time that the vibrational treatment is delivered at its frequency/amplitude etc., the predetermined period of time is regarded as the time at which the device is automatically turned off, and the device is “automatically” turned off when a time of treatment completion is reached, such a function understood to require the control software and computer chip), 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 maximum exposure level of Burnett to be a treatment time of 30 minutes within a 24-hour predetermined period of time, as taught by Nauman, given that Nauman indicates that the prescribed range of time is beneficial in preserving a patient’s bone density.
Regarding claim 7, Burnett discloses the apparatus of claim 1, as discussed above.
Burnett further discloses wherein the controller (see paragraph 59: “computer chip with control software H”) is configured to obtain a frequency of the actuator (12) (see paragraph 50, lines 1-3 which outlines the use of the Fig. 3 embodiment on the waist, and note that the preferred embodiment shown in Fig. 7 and discussed at paragraph 59 outlines the attachment of the preferred embodiment to the waist; paragraph 55, lines 1-20 describe the use of accelerometers to determine the acceleration delivered by actuators 12, and note that the accelerometers are in communication with a “processor”; see also paragraph 46, lines 1-11 which outline that actuators output vibration with an acceleration; see paragraph 21, lines 1-3 which outline closed-loop feedback control of the actuators based on feedback from the accelerometers, and paragraph 56, lines 1-9 which echoes the notion of feedback control as well as “self-correction”; claim 17, lines 1-8 and claim 18, lines 1-3, where element 12 is described as a vibrating element in the specification).
Burnett fails to disclose wherein the controller specifically obtains a frequency of the actuator in determining a treatment time.
However, Naumann further teaches that in delivering vibratory treatment to the body, specific frequencies should be targeted in order to eliminate the risk of encountering natural body frequencies (paragraph 47, lines 1-5), and further indicates that the particularly delivered vibratory frequency is safe over a particular treatment time such that loss of bone density is prevented (paragraph 30, lines 1-7).
Therefore, given that Burnett’s controller is capable of receiving signals from the accelerometer (see at least claim 18, lines 1-2), that the accelerometer is configured to measure a frequency of the actuator as modified (see at least claim 18, lines 1-2), and that the sensor data can be utilized in a control/feedback loop (paragraph 55, lines 1-8), and further since Naumann teaches the skilled artisan that vibrational treatment is safely delivered over a treatment time at particular frequencies, 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 controller of Burnett to utilize the accelerometer data in determining a treatment time for the delivered vibration, as taught by Naumann, given that Naumann indicates that vibration therapy is safely delivered at particular doses that account for both frequency and length (time).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Burnett (US 2015/0272805), as applied to claim 1 above, in view of Simonson (US 2015/0342824).
Regarding claim 4, Burnett discloses the apparatus of claim 1, as discussed above.
While Burnett indicates that the actuator (12) is comfortable enough for use of 10 minutes or longer (paragraph 47, lines 10-13), Burnett does not explicitly disclose wherein a maximum exposure level comprises a treatment time of between 20 minutes within a 24-hour predetermined period of time.
However, Simonson teaches that it is known to employ vibration to treat osteoporosis (paragraph 7, lines 1-15), and further wherein an identified beneficial treatment time is between 10 and 20 minutes per day for promotion of bone growth (paragraph 7, lines 11-15, where the range of 10-20 minutes encapsulates the claimed value of 20 minutes).
Further, given that both Burnett and Simonson are directed towards vibrational devices which treat osteoporosis (Burnett: abstract, lines 1-5, Simonson: abstract, lines 1-5), and that Burnett discusses the use of an exposure level and its comparison to a maximum exposure level in order to automatically turn the device off when maximum exposure is reached (paragraph 25, lines 1-5, where the exposure level is the instantaneous length that vibrational treatment has been delivered, maximum exposure is regarded as the acceptable length of time that the vibrational treatment is delivered at its frequency/amplitude etc., the predetermined period of time is regarded as the time at which the device is automatically turned off, and the device is “automatically” turned off when a time of treatment completion is reached, such a function understood to require the control software and computer chip), 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 maximum exposure level of Burnett to be a treatment time of 10-20 minutes within a 24-hour predetermined period of time, as taught by Simonson, given that Simonson indicates that the prescribed range of time is beneficial in promoting bone growth.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Burnett (US 2015/0272805), as applied to claim 10 above, in view of Turo (US 2011/0239370).
Regarding claim 11, Burnett discloses the apparatus of claim 10, as discussed above.
While Burnett discloses the apparatus (10) comprising a pressure sensor (see “force or tension sensor” in paragraph 58) in communication with the controller (see paragraph 59: “computer chip with control software H”) (see paragraph 50, lines 1-3 which outlines the use of the Fig. 3 embodiment on the waist, and note that the preferred embodiment shown in Fig. 7 and discussed at paragraph 59 outlines the attachment of the preferred embodiment to the waist; paragraph 58, lines 1-7, where securing mechanism contain the sensors and contact the patient), Burnett fails to disclose wherein the controller is configured to determine a treatment time based on a pressure signal.
However, Turo teaches vibrational actuators and sensors capable of determining pressure, wherein the treatment time (“duration of the vibrating forces”) is based on a pressure signal (“pressure levels detected”) from the sensors (paragraph 14, lines 1-12, see in particular “the duration of the vibrating forces generated by the actuators is responsive to the pressure levels detected by the sensors”; paragraph 16, lines 7-9).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the controller of Burnett to include the capability of basing the treatment time on the pressure signal derived from the Burnett pressure sensor, as taught by Turo, as a known control feedback loop capable of being used in vibrational therapy delivery.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Song (US 2012/0184883) is cited for its description of a direct acceleration measurement by an accelerometer based on direct mounting to a motor (paragraph 28, lines 1-12).
Lazarides (US 2019/0290534) is cited for its description of mounting an accelerometer and a vibration motor together (paragraph 65, lines 11-12).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAIGE BUGG whose telephone number is (571)272-8053. The examiner can normally be reached Monday-Friday 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kendra Carter can be reached at (571) 272-9034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAIGE KATHLEEN BUGG/Primary Examiner, Art Unit 3785
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