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
Applicant’s Amendments, filed 11/17/2025, has been entered, claims 1, 3, 5-20 remain pending.
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.
Claim(s) 1, 3, 5, 6, 8-14, 16-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wu (US20090139354), hereafter Wu, in view of Trandafir (US8491509), hereafter Trandafir, in view of Jaquish et al. (US10744363), hereafter Jaquish.
Regarding Claim 1, Wu discloses an apparatus for treating neuropathy symptoms and improving balance in a patient (Abstract, vibration exerciser) (Examiner Notes: The applicant claims a device for treating neuropathy and improving balance, which are merely the intended use, the prior arts comprises the claimed structural features and also performs the same oscillation treatment), comprising: a platform (See Fig. A; platform as shown in Fig. 1) comprising a base (See Fig. A) and a top plate supported by the base (See Fig. A, par. 0028, a platform 80A) and configured to allow a patient to place their feet thereon (par. 0005, “A conventional vibration exerciser has a vibrating assembly to provide a vibrating effect to a person who steps, sits or lies on…”);
Wu is silent on the base having side walls with upper edges.
However, Trandafir teaches an oscillating platform device (Abstract), comprising of a platform (Fig. 2, platform 100), comprising a base (Fig. 2, housing 102) having side walls with upper edges (Fig. 2, side walls 108) and a top plate supported by the base (Fig. 2, upper plate 104). Wu further teaches side walls attached to the top plate (See Fig. A below). Therefore, it would have been obvious for one of ordinary skilled in the art to modify the known device of Wu, with the side wall position of Trandafir, as the side wall configuration is merely a rearrangement of known parts, relocating the side walls to the base does not change the function of the structure. Such modification is considered as an obvious design choice, see In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
The modified Wu further discloses a vibrational actuator (see Fig. A) mounted to the underside of the top plate (Wu, par. 0042, “The platform (80A)… is connected to the stanchions (90) via the guide rods (94) and the positioning discs (93)… The inner surface of the platform (80A) is connected securely to the stationary ends of the platform levers (70A)”) and configured to vibrate the top plate (Wu, par. 0043, “the person stands on the platform (80A)… the platform (80A) is moved up and down steadily”); isolators carried by the base (Wu, Fig. 2, stanchions (90)), wherein the isolators engage the underside of the top plate and support the top plate in spaced relation to the upper edges of the side walls and dampen vibrational movement of the top plate (Wu, par. 0042, “The platform (80A) is mounted above the base (80B)… is connected to the stanchions (90)”; See Trandafir, Fig. 2, after the modification, the top place will be in spaced relation to the upper edges of the side walls).
PNG
media_image1.png
799
862
media_image1.png
Greyscale
Fig. A, Adapted from Wu Fig. 2
Wu is silent on a controller connected to the vibrational actuator and configured to cycle on and off the vibrational actuator in 20 to 40 second timed intervals and impart a vibrating force to the top plate such that the top plate vibrates at 80 Hz to 350 Hz during the 20 to 40 second timed intervals when a patient has their feet thereon while seated in a chair and stimulate the Pacini corpuscles to impart a neurological feedback response in the feet.
However, Jaquish teaches a vibrational exercise device (Abstract, an exercise device), comprising of a top plate (Fig. 1, cover 150) a power mechanism (col. 3, line 16, power mechanism) supplying power to a vibrational actuator (col. 11, line 12-14, “the vibration mechanism 620 includes a mass attached to an oscillating spring (e.g., a linear resonant actuator”), the power mechanism further comprises a controller (col. 3, line 16, control mechanism) connected to the vibrational actuator (col. 3, line 61-63, “the control mechanism operates the power mechanism between a first state in which the vibration mechanism provides vibrations…”) and configured to operate cycle on and off the vibrational actuator in 20 to 40 second timed intervals (col. 21, line 13-18, “In some embodiments, the vibration mechanism 620 is active for a predetermined period of time… about 30 seconds”; the range in the prior art is within the claimed range) and impart a vibrating force to the top plate (col. 13, line 50-51, “an instantaneous acceleration provided by the vibration mechanism 620 to the cover 150”). Therefore, it would have been obvious for one of ordinary skilled in the art to modify the known apparatus of Wu, with the power and control mechanism of Jaquish, to provide precise control of the vibration as taught by Jaquish (Jaquish, col. 14, line 27-29).
The modified Wu further discloses the top plate vibrates when a patient has their feet thereon while seated in a chair and stimulate the Pacini corpuscles to impart a neurological feedback response in the feet. (Wu, par. 0005, “…to provide a vibrating effect to a person who steps, sits or lies on or abuts the vibrating assembly for training or exercising muscles”; the prior art only requires the person abuts the device, therefore, it is capable of being used while the person is seated in a chair) (Examiner Notes: The claim recites functional languages that do not patentably distinguish over the prior art, the modified Wu has the claimed structure; therefore, the examiner takes the position that it is capable of performing the claimed function). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
The modified Wu does not specifically disclose that the top plate vibrates at 80 Hz to 350 Hz during the 20 to 40 second timed intervals.
However, Jaquish teaches the vibration actuator vibrates with a frequency of about 70 Hz (col. 13, line 30-31). Therefore, it would have been obvious for one of ordinary skilled in the art to further modify the known apparatus of Wu, with the frequency of vibration of Jaquish, for contraction/relaxation in the muscle of the exercise at a corresponding rate (Jaquish, col. 14, line 27-29)
The courts have held a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985), MPEP 2144.05. It is noted that par. 0031 of applicant’s disclosure discloses, without evidentiary support, that the results are unexpected. however, this appears to be contrary to the teachings of Jaquish in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), examiners notes that a proper showing of unexpected results to rebut this prima facie showing of obviousness may be made via affidavit or declaration, see MPEP 716.02-716.02g.
Regarding Claim 3, the modified Wu discloses the apparatus of claim 1, wherein the controller is configured to operate the vibrational actuator to cycle on and off in about 25 to 35 second intervals (Jaquish, “col. 21, line 13-18, “In some embodiments, the vibration mechanism 620 is active for a predetermined period of time… about 30 seconds”; the range in the prior art is within the claimed range”).
Regarding Claim 5, the modified Wu discloses the apparatus of Claim 4 wherein the isolators comprise four circular isolators mounted on the base that support the top plate for vibrational movement (See Wu Fig. 2, 4 isolators (90) are shown).
Regarding Claim 6, the modified Wu discloses the apparatus of Claim 4 wherein the base comprises a housing (Trandafir, Fig. 2) having an interior compartment in which said vibrational actuator, controller and isolators are contained (Fig. A; inner space of the housing, see Wu Fig. 4 for cross-sectional view), and a power supply (Jaquish, col. 3, line 16, power mechanism) contained in the interior compartment and connected to said vibrational actuator and controller (Examiner Notes: Jaquish discloses the power supply connected to the vibration actuator and controller, see rejection for claim 1, Jaquish further discloses the power supply being contained in a base, see Jaquish, col. 4 line 15-20; therefore, after the modification, the power supply will be stored in the interior compartment).
Regarding Claim 8, the modified Wu discloses the apparatus of Claim 1 wherein said platform defined by the base and the top plate is substantially rectangular (See Fig. A, the shape is substantially rectangular) but is silent on the platform is about 12 by 12 inches and four inches high.
However, Jaquish teaches a platform (exercise device 100, the device shown in Fig. 1), where the platform is about 12 by 12 inches (col. 8, line 43-44, line 67, “the base 120 is about 12.5 ins wide/long”; the word about renders the prior art within the claimed range) and from 3 to 10 inches high (col. 16, line 40-41). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to further modify the known apparatus of Wu with the dimension of the top plate of Jaquish, to accommodate a user’s foot in a standing position as taught by Jaquish (Jaquish col. 8, line 64-65; col. 9, line 24).
The modified Wu discloses the platform is from 3 to 10 inches high (Jaquish, col. 16, line 40-41) but does not explicitly disclose that the platform is about four inches high. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the height of the modified Wu from between about 3 to 10 inches high to be about four inches high, as applicant appears to have placed no criticality on the claimed range (See applicant’s disclosure, par. 0010, “the top plate may be… about 12 by 12 inches and four inches high”) and since it has been held that “in the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art' a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding Claim 9, the modified Wu discloses the apparatus of Claim 1, but is silent on wherein the controller includes a frequency adjustment circuit to allow adjustment of the frequency of the vibrating force imparted to the top plate.
However, Jaquish further teaches the controller includes a frequency adjustment circuit to allow adjustment of the frequency of the vibrating force imparted to the top plate (col. 21, line 6-9, “a mechanism to control an amplitude and/or a frequency of a vibration provided by the vibration mechanism”). Therefore, it would have been obvious for one of ordinary skilled in the art to further modify the known apparatus of Wu, with frequency adjustment circuit of Jaquish, for specific frequency to induce contraction/relaxation in the muscle of the exercise at a corresponding rate (Jaquish, col. 14, line 27-29).
Regarding Claim 10, the modified Wu discloses the apparatus of Claim 9 wherein the frequency adjustment circuit is configured to adjust automatically the frequency of the vibrating force imparted to the top plate (Jaquish, col. 20, line 53-55, “automated power control to the vibration mechanism 320, allowing synchronous vibrations to be provided through the device 100”).
Regarding Claim 11, the modified Wu discloses the apparatus of Claim 9, but is silent on wherein the frequency adjustment circuit includes a manual adjustment to allow a patient to adjust manually the frequency of the vibrating force imparted to the top plate.
However, Jaquish further teaches a manual adjustment to allow a patient to adjust manually the frequency of the vibrating force imparted to the top plate (col. 14, line 10-16, “the frequency and/or amplitude of the vibrations provided by the vibration mechanism 620 is controlled by an end user (e.g., via a control mechanism)… controlled by a first controller (e.g., a mechanism operated by an end user of the device)”). Therefore, it would have been obvious for one of ordinary skilled in the art to further modify the known apparatus of Wu, with the manual control of Jaquish, for specific frequency to induce contraction/relaxation in the muscle of the exercise at a corresponding rate (Jaquish, col. 14, line 27-29).
Regarding Claim 12, the modified Wu discloses the apparatus of Claim 1 wherein the vibrational force imparts a neurological feedback response that aids to alleviate pain associated with neuropathy symptoms in the patient and aid to restore balance (Examiner Notes: Examiner Notes: The claim recites functional languages that do not patentably distinguish over the prior art, the modified prior art operate the vibrational actuator to impart a vibrating force to the top plate when a patient has their feet thereon as claimed in claim 1, therefore, the examiner takes the position that it is capable of performing the claimed function). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
Regarding Claim 13, Wu discloses an apparatus for treating neuropathy symptoms and improve balance in a patient (Abstract, vibration exerciser) (Examiner Notes: The applicant claims a device for treating neuropathy, which is merely an intended use, the prior arts comprises the claimed structural features and also performs the same oscillation treatment), comprising: a platform (See Fig. A; platform as shown in Fig. 1) comprising a base (See Fig. A) and a top plate supported by the base (See Fig. A, par. 0028, a platform 80A) and configured to allow a patient to place their feet thereon (par. 0005, “A conventional vibration exerciser has a vibrating assembly to provide a vibrating effect to a person who steps, sits or lies on…”);
Wu does not specifically disclose that the base forming a housing having an interior compartment and side walls with upper edges.
However, Trandafir teaches an oscillating platform device (Abstract), comprising of a platform (Fig. 2, platform 100), comprising a base (Fig. 2, housing 102) forming a housing having an interior compartment and side walls with upper edges (Fig. 2, the base forms a housing having an interior compartment and having side walls 108) and a top plate supported by the base (Fig. 2, upper plate 104). Wu further teaches side walls attached to the top plate (See Fig. A above). Therefore, it would have been obvious for one of ordinary skilled in the art to modify the known device of Wu, with the side wall position of Trandafir, as the side wall configuration is merely a rearrangement of known parts, relocating the side walls to the base does not change the function of the structure. Such modification is considered as an obvious design choice, see In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
The modified Wu further discloses a vibrational actuator mounted to the underside of the top plate within the interior compartment (Fig. A, Wu, par. 0042, “The platform (80A)… is connected to the stanchions (90) via the guide rods (94) and the positioning discs (93)… The inner surface of the platform (80A) is connected securely to the stationary ends of the platform levers (70A)”; Trandafir Fig. 2) and configured to vibrate the top plate (Wu, par. 0043, “the person stands on the platform (80A)… the platform (80A) is moved up and down steadily”); isolators carried by the base (Wu, Fig. 2, stanchions (90)), wherein the isolators engage the underside of the top plate and support the top plate in spaced relation to the upper edges of the side walls and dampen vibrational movement of the top plate (Wu, par. 0042, “The platform (80A) is mounted above the base (80B)… is connected to the stanchions (90)”; See Trandafir, Fig. 2, after the modification, the top place will be in spaced relation to the upper edges of the side walls).
Wu is silent on a controller contained in the interior compartment of the housing and connected to the vibrational actuator, said controller configured to cycle on and off the vibrational actuator in 20 to 40 second timed intervals and impart a vibrating force to the top plate such that the top plate vibrates at 80 Hz to 350 Hz during the 20 to 40 second timed intervals when a patient has their feet thereon while seated in a chair and stimulate the Pacini corpuscles to impart a neurological feedback response in the feet and leg.
However, Jaquish teaches a vibrational exercise device (Abstract, an exercise device), comprising of a top plate (Fig. 1, cover 150) a power mechanism (col. 3, line 16, power mechanism) supplying power to a vibrational actuator (col. 11, line 12-14, “the vibration mechanism 620 includes a mass attached to an oscillating spring (e.g., a linear resonant actuator”), the power mechanism further comprises a controller (col. 3, line 16, control mechanism) contained in the interior compartment of the housing and connected to the vibrational actuator (col. 3, line 61-63, “the control mechanism operates the power mechanism between a first state in which the vibration mechanism provides vibrations…”) and configured to operate cycle on and off the vibrational actuator in 20 to 40 second timed intervals (col. 21, line 13-18, “In some embodiments, the vibration mechanism 620 is active for a predetermined period of time… about 30 seconds”; the range in the prior art is within the claimed range) and impart a vibrating force to the top plate (col. 13, line 50-51, “an instantaneous acceleration provided by the vibration mechanism 620 to the cover 150”). Therefore, it would have been obvious for one of ordinary skilled in the art to modify the known apparatus of Wu, with the power and control mechanism of Jaquish, to provide precise control of the vibration as taught by Jaquish (Jaquish, col. 14, line 27-29).
The modified Wu further discloses the top plate vibrates when a patient has their feet thereon while seated in a chair and stimulate the Pacini corpuscles to impart a neurological feedback response in the feet. (Wu, par. 0005, “…to provide a vibrating effect to a person who steps, sits or lies on or abuts the vibrating assembly for training or exercising muscles”; the prior art only requires the person abuts the device, therefore, it is capable of being used while the person is seated in a chair) (Examiner Notes: The claim recites functional languages that do not patentably distinguish over the prior art, the modified Wu has the claimed structure; therefore, the examiner takes the position that it is capable of performing the claimed function). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
The modified Wu does not specifically disclose that the top plate vibrates at 80 Hz to 350 Hz during the 20 to 40 second timed intervals.
However, Jaquish teaches the vibration actuator vibrates with a frequency of about 70 Hz (col. 13, line 30-31). Therefore, it would have been obvious for one of ordinary skilled in the art to further modify the known apparatus of Wu, with the frequency of vibration of Jaquish, for contraction/relaxation in the muscle of the exercise at a corresponding rate (Jaquish, col. 14, line 27-29)
The courts have held a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985), MPEP 2144.05. It is noted that par. 0031 of applicant’s disclosure discloses, without evidentiary support, that the results are unexpected. however, this appears to be contrary to the teachings of Jaquish in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), examiners notes that a proper showing of unexpected results to rebut this prima facie showing of obviousness may be made via affidavit or declaration, see MPEP 716.02-716.02g.
Regarding Claim 14, the modified Wu discloses the apparatus of claim 13, comprising a power supply (Jaquish, col. 3, line 16, power mechanism) contained in the interior compartment and connected to said vibrational actuator and controller (Examiner Notes: Jaquish discloses the power supply connected to the vibration actuator and controller, see rejection for claim 1, Jaquish further discloses the power supply being contained in a base, see Jaquish, col. 4 line 15-20; it would have been obvious that after the modification, the power supply will be stored in the interior compartment), and the isolators comprise four circular isolators mounted on the base at corners thereof that support the top plate for vibrational movement (See Wu Fig. 2, 4 isolators are shown).
Regarding Claim 16, the modified Wu discloses the apparatus of claim 13, wherein said platform defined by the base and the top plate is substantially rectangular (See Fig. A, the shape is substantially rectangular) but is silent on the platform is about 12 by 12 inches and four inches high.
However, Jaquish teaches a platform (exercise device 100, the device shown in Fig. 1), where the platform is about 12 by 12 inches (col. 8, line 43-44, line 67, “the base 120 is about 12.5 ins wide/long”; the word about renders the prior art within the claimed range) and from 3 to 10 inches high (col. 16, line 40-41). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to further modify the known apparatus of Wu with the dimension of the top plate of Jaquish, to accommodate a user’s foot in a standing position as taught by Jaquish (Jaquish col. 8, line 64-65; col. 9, line 24)
The modified Wu discloses the plat form is from 3 to 10 inches high (Jaquish, col. 16, line 40-41) but does not explicitly disclose that the platform is about four inches high. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the height of the modified Wu from between about 3 to 10 inches high to be about four inches high, as applicant appears to have placed no criticality on the claimed range (See applicant’s disclosure, par. 0010, “the top plate may be… about 12 by 12 inches and four inches high”) and since it has been held that “in the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art' a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding Claim 17, the modified Wu discloses the apparatus of claim 13, but is silent on wherein the controller includes a frequency adjustment circuit to allow adjustment of the frequency of the vibrating force imparted to the top plate.
However, Jaquish further teaches the controller includes a frequency adjustment circuit to allow adjustment of the frequency of the vibrating force imparted to the top plate (col. 21, line 6-9, “a mechanism to control an amplitude and/or a frequency of a vibration provided by the vibration mechanism”). Therefore, it would have been obvious for one of ordinary skilled in the art to further modify the known apparatus of Wu, with frequency adjustment circuit of Jaquish, for specific frequency to induce contraction/relaxation in the muscle of the exercise at a corresponding rate (Jaquish, col. 14, line 27-29).
Regarding Claim 18, the modified Wu discloses the apparatus of Claim 17 wherein the frequency adjustment circuit is configured to adjust automatically the frequency of the vibrating force imparted to the top plate (Jaquish, col. 20, line 53-55, “automated power control to the vibration mechanism 320, allowing synchronous vibrations to be provided through the device 100”).
Regarding Claim 19, the modified Wu discloses the apparatus of Claim 17, but is silent on wherein the frequency adjustment circuit includes a manual adjustment to allow a patient to adjust manually the frequency of the vibrating force imparted to the top plate.
However, Jaquish further teaches a manual adjustment to allow a patient to adjust manually the frequency of the vibrating force imparted to the top plate (col. 14, line 10-16, “the frequency and/or amplitude of the vibrations provided by the vibration mechanism 620 is controlled by an end user (e.g., via a control mechanism)… controlled by a first controller (e.g., a mechanism operated by an end user of the device)”). Therefore, it would have been obvious for one of ordinary skilled in the art to further modify the known apparatus of Wu, with the manual control of Jaquish, for specific frequency to induce contraction/relaxation in the muscle of the exercise at a corresponding rate (Jaquish, col. 14, line 27-29).
Regarding Claim 20, the modified Wu discloses the apparatus of Claim 13 wherein the vibrational force imparts a neurological feedback response that aids to alleviate pain associated with neuropathy symptoms in the patient and aid to restore balance (Examiner Notes: The claim recites functional languages that do not patentably distinguish over the prior art, the modified prior art operate the vibrational actuator to impart a vibrating force to the top plate when a patient has their feet thereon as claimed in claim 1, therefore, the examiner takes the position that it is capable of performing the claimed function). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
Claim(s) 7, 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wu in view of Trandafir, in view of Jaquish, further in view of Wang et al. (US11731004), hereafter Wang.
Regarding Claim 7, the modified Wu discloses the apparatus of Claim 6, wherein the housing is substantially rectangular configured (See Fig A, housing is rectangular) and said top plate is substantially rectangular configured (See Fig. A, top plate is rectangular)
The sole difference between Wu and the claimed subject matter is that Wu does not explicitly disclose the top plate is dimensioned larger than the base such that the edges of the top plate overly the upper edge of the side walls of the base.
However, Wang teaches a vibration apparatus (Abstract, a vertical oscillation auxiliary platform; device shown in Fig. 1), comprising of a base (Fig. 1, pedestal 1), a top plate (Fig. 1, upper cover tread board 2), and side walls (horizontal transmission rod 10). Where the top plate is dimensioned larger than the base such that the edges of the top plate overly the upper edge of the side walls of the base (See Fig. 1).
Wang shows that the use of a top plate dimensioned larger than the base to deliver oscillation motion (Wang, col. 3, line 9-11) was known in the prior art at the time of the invention. Since each individual element and its function are shown in the prior art, albeit shown in separate references, the difference between the claimed subject matter and the prior art rests not on any individual element or function but in the very combination itself- that is in the substitution of the larger dimensioned top plate of Wang for the top plate of Wu.
Thus, the simple substitution of one known element for another producing a predicable result renders the claim obvious before the effective filing date of the claimed invention see KSR International Co. v. Teleflex Inc., 550 U.S.398 (2007).
Regarding Claim 15, the modified Wu discloses the apparatus of claim 14, wherein the housing is substantially rectangular configured (See Fig A, housing is rectangular) and said top plate is substantially rectangular configured (See Fig. A, top plate is rectangular)
The sole difference between Wu and the claimed subject matter is that Wu does not explicitly disclose the top plate is dimensioned larger than the base such that the edges of the top plate overly the upper edge of the side walls of the base.
However, Wang teaches a vibration apparatus (Abstract, a vertical oscillation auxiliary platform; device shown in Fig. 1), comprising of a base (Fig. 1, pedestal 1), a top plate (Fig. 1, upper cover tread board 2), and side walls (horizontal transmission rod 10). Where the top plate is dimensioned larger than the base such that the edges of the top plate overly the upper edge of the side walls of the base (See Fig. 1).
Wang shows that the use of a top plate dimensioned larger than the base to deliver oscillation motion (Wang, col. 3, line 9-11) was known in the prior art at the time of the invention. Since each individual element and its function are shown in the prior art, albeit shown in separate references, the difference between the claimed subject matter and the prior art rests not on any individual element or function but in the very combination itself- that is in the substitution of the larger dimensioned top plate of Wang for the top plate of Wu.
Thus, the simple substitution of one known element for another producing a predicable result renders the claim obvious before the effective filing date of the claimed invention, see KSR International Co. v. Teleflex Inc., 550 U.S.398 (2007).
In the alternative to the rejects set forth above for claims 1 and 13, Claim(s) 1, 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wu in view of Trandafir, in view of Jaquish, further in view of Borras et al. (US20160058658), hereafter Borras.
Regarding Claim 1, Regarding Claim 1, Wu discloses an apparatus for treating neuropathy symptoms and improving balance in a patient (Abstract, vibration exerciser) (Examiner Notes: The applicant claims a device for treating neuropathy and improving balance, which are merely the intended use, the prior arts comprises the claimed structural features and also performs the same oscillation treatment), comprising: a platform (See Fig. A; platform as shown in Fig. 1) comprising a base (See Fig. A) and a top plate supported by the base (See Fig. A, par. 0028, a platform 80A) and configured to allow a patient to place their feet thereon (par. 0005, “A conventional vibration exerciser has a vibrating assembly to provide a vibrating effect to a person who steps, sits or lies on…”);
Wu is silent on the base having side walls with upper edges.
However, Trandafir teaches an oscillating platform device (Abstract), comprising of a platform (Fig. 2, platform 100), comprising a base (Fig. 2, housing 102) having side walls with upper edges (Fig. 2, side walls 108) and a top plate supported by the base (Fig. 2, upper plate 104). Wu further teaches side walls attached to the top plate (See Fig. A below). Therefore, it would have been obvious for one of ordinary skilled in the art to modify the known device of Wu, with the side wall position of Trandafir, as the side wall configuration is merely a rearrangement of known parts, relocating the side walls to the base does not change the function of the structure. Such modification is considered as an obvious design choice, see In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
The modified Wu further discloses a vibrational actuator (see Fig. A) mounted to the underside of the top plate (Wu, par. 0042, “The platform (80A)… is connected to the stanchions (90) via the guide rods (94) and the positioning discs (93)… The inner surface of the platform (80A) is connected securely to the stationary ends of the platform levers (70A)”) and configured to vibrate the top plate (Wu, par. 0043, “the person stands on the platform (80A)… the platform (80A) is moved up and down steadily”); isolators carried by the base (Wu, Fig. 2, stanchions (90)), wherein the isolators engage the underside of the top plate and support the top plate in spaced relation to the upper edges of the side walls and dampen vibrational movement of the top plate (Wu, par. 0042, “The platform (80A) is mounted above the base (80B)… is connected to the stanchions (90)”; See Trandafir, Fig. 2, after the modification, the top place will be in spaced relation to the upper edges of the side walls).
Wu is silent on a controller connected to the vibrational actuator and configured to cycle on and off the vibrational actuator in 20 to 40 second timed intervals and impart a vibrating force to the top plate such that the top plate vibrates at 80 Hz to 350 Hz during the 20 to 40 second timed intervals when a patient has their feet thereon while seated in a chair and stimulate the Pacini corpuscles to impart a neurological feedback response in the feet.
However, Jaquish teaches a vibrational exercise device (Abstract, an exercise device), comprising of a top plate (Fig. 1, cover 150) a power mechanism (col. 3, line 16, power mechanism) supplying power to a vibrational actuator (col. 11, line 12-14, “the vibration mechanism 620 includes a mass attached to an oscillating spring (e.g., a linear resonant actuator”), the power mechanism further comprises a controller (col. 3, line 16, control mechanism) connected to the vibrational actuator (col. 3, line 61-63, “the control mechanism operates the power mechanism between a first state in which the vibration mechanism provides vibrations…”) and configured to operate cycle on and off the vibrational actuator in 20 to 40 second timed intervals (col. 21, line 13-18, “In some embodiments, the vibration mechanism 620 is active for a predetermined period of time… about 30 seconds”; the range in the prior art is within the claimed range) and impart a vibrating force to the top plate (col. 13, line 50-51, “an instantaneous acceleration provided by the vibration mechanism 620 to the cover 150”). Therefore, it would have been obvious for one of ordinary skilled in the art to modify the known apparatus of Wu, with the power and control mechanism of Jaquish, to provide precise control of the vibration as taught by Jaquish (Jaquish, col. 14, line 27-29).
The modified Wu further discloses the top plate vibrates when a patient has their feet thereon while seated in a chair and stimulate the Pacini corpuscles to impart a neurological feedback response in the feet. (Wu, par. 0005, “…to provide a vibrating effect to a person who steps, sits or lies on or abuts the vibrating assembly for training or exercising muscles”; the prior art only requires the person abuts the device, therefore, it is capable of being used while the person is seated in a chair) (Examiner Notes: The claim recites functional languages that do not patentably distinguish over the prior art, the modified Wu has the claimed structure; therefore, the examiner takes the position that it is capable of performing the claimed function). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
The modified Wu does not specifically disclose that the top plate vibrates at 80 Hz to 350 Hz during the 20 to 40 second timed intervals.
However, Borras teaches a vibration physiotherapy method, comprising of delivering vibration at a frequency of about 200-300 Hz (par. 0048, “By varying vibrational magnitude over time, however, the adaptation effect is avoided. There are four types of receptors in hairless skin: Pacinian corpuscles, Meissner's corpuscles, Merkel's discs and Ruffini endings. The Pacinian corpuscles in the skin and fascia detect rapid vibrations (of about 200-300 Hz)”). Therefore, it would have been obvious for one of ordinary skilled in the art to further modify the known apparatus of Wu, with the vibration frequency of Borras, to stimulate different receptors in skin (Borras, par. 0048).
Regarding Claim 13, Wu discloses an apparatus for treating neuropathy symptoms and improve balance in a patient (Abstract, vibration exerciser) (Examiner Notes: The applicant claims a device for treating neuropathy, which is merely an intended use, the prior arts comprises the claimed structural features and also performs the same oscillation treatment), comprising: a platform (See Fig. A; platform as shown in Fig. 1) comprising a base (See Fig. A) and a top plate supported by the base (See Fig. A, par. 0028, a platform 80A) and configured to allow a patient to place their feet thereon (par. 0005, “A conventional vibration exerciser has a vibrating assembly to provide a vibrating effect to a person who steps, sits or lies on…”);
Wu does not specifically disclose that the base forming a housing having an interior compartment and side walls with upper edges.
However, Trandafir teaches an oscillating platform device (Abstract), comprising of a platform (Fig. 2, platform 100), comprising a base (Fig. 2, housing 102) forming a housing having an interior compartment and side walls with upper edges (Fig. 2, the base forms a housing having an interior compartment and having side walls 108) and a top plate supported by the base (Fig. 2, upper plate 104). Wu further teaches side walls attached to the top plate (See Fig. A above). Therefore, it would have been obvious for one of ordinary skilled in the art to modify the known device of Wu, with the side wall position of Trandafir, as the side wall configuration is merely a rearrangement of known parts, relocating the side walls to the base does not change the function of the structure. Such modification is considered as an obvious design choice, see In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
The modified Wu further discloses a vibrational actuator mounted to the underside of the top plate within the interior compartment (Fig. A, Wu, par. 0042, “The platform (80A)… is connected to the stanchions (90) via the guide rods (94) and the positioning discs (93)… The inner surface of the platform (80A) is connected securely to the stationary ends of the platform levers (70A)”; Trandafir Fig. 2) and configured to vibrate the top plate (Wu, par. 0043, “the person stands on the platform (80A)… the platform (80A) is moved up and down steadily”); isolators carried by the base (Wu, Fig. 2, stanchions (90)), wherein the isolators engage the underside of the top plate and support the top plate in spaced relation to the upper edges of the side walls and dampen vibrational movement of the top plate (Wu, par. 0042, “The platform (80A) is mounted above the base (80B)… is connected to the stanchions (90)”; See Trandafir, Fig. 2, after the modification, the top place will be in spaced relation to the upper edges of the side walls).
Wu is silent on a controller contained in the interior compartment of the housing and connected to the vibrational actuator, said controller configured to cycle on and off the vibrational actuator in 20 to 40 second timed intervals and impart a vibrating force to the top plate such that the top plate vibrates at 80 Hz to 350 Hz during the 20 to 40 second timed intervals when a patient has their feet thereon while seated in a chair and stimulate the Pacini corpuscles to impart a neurological feedback response in the feet and leg.
However, Jaquish teaches a vibrational exercise device (Abstract, an exercise device), comprising of a top plate (Fig. 1, cover 150) a power mechanism (col. 3, line 16, power mechanism) supplying power to a vibrational actuator (col. 11, line 12-14, “the vibration mechanism 620 includes a mass attached to an oscillating spring (e.g., a linear resonant actuator”), the power mechanism further comprises a controller (col. 3, line 16, control mechanism) contained in the interior compartment of the housing and connected to the vibrational actuator (col. 3, line 61-63, “the control mechanism operates the power mechanism between a first state in which the vibration mechanism provides vibrations…”) and configured to operate cycle on and off the vibrational actuator in 20 to 40 second timed intervals (col. 21, line 13-18, “In some embodiments, the vibration mechanism 620 is active for a predetermined period of time… about 30 seconds”; the range in the prior art is within the claimed range) and impart a vibrating force to the top plate (col. 13, line 50-51, “an instantaneous acceleration provided by the vibration mechanism 620 to the cover 150”). Therefore, it would have been obvious for one of ordinary skilled in the art to modify the known apparatus of Wu, with the power and control mechanism of Jaquish, to provide precise control of the vibration as taught by Jaquish (Jaquish, col. 14, line 27-29).
The modified Wu further discloses the top plate vibrates when a patient has their feet thereon while seated in a chair and stimulate the Pacini corpuscles to impart a neurological feedback response in the feet. (Wu, par. 0005, “…to provide a vibrating effect to a person who steps, sits or lies on or abuts the vibrating assembly for training or exercising muscles”; the prior art only requires the person abuts the device, therefore, it is capable of being used while the person is seated in a chair) (Examiner Notes: The claim recites functional languages that do not patentably distinguish over the prior art, the modified Wu has the claimed structure; therefore, the examiner takes the position that it is capable of performing the claimed function). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
The modified Wu does not specifically disclose that the top plate vibrates at 80 Hz to 350 Hz during the 20 to 40 second timed intervals.
However, Borras teaches a vibration physiotherapy method, comprising of delivering vibration at a frequency of about 200-300 Hz (par. 0048, “By varying vibrational magnitude over time, however, the adaptation effect is avoided. There are four types of receptors in hairless skin: Pacinian corpuscles, Meissner's corpuscles, Merkel's discs and Ruffini endings. The Pacinian corpuscles in the skin and fascia detect rapid vibrations (of about 200-300 Hz)”). Therefore, it would have been obvious for one of ordinary skilled in the art to further modify the known apparatus of Wu, with the vibration frequency of Borras, to stimulate different receptors in skin (Borras, par. 0048).
Response to Arguments
Applicant's arguments filed 11/17/2025 have been fully considered but they are not persuasive. Specifically, the applicant explained in the declaration to establish unexpected results and criticality from the range of vibration frequency, as well as established commercial success. However, there are insufficient evidences to show that there exist a statistically significant difference between the frequency range of the invention and the prior art, and there is a lack of nexus established between the commercial success and the claimed features.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Rubin (US20130165824) discloses a method of applying physical signal to tissues, where in the signal is delivered by a vibrational platform at a frequency of 90 hz.
THIS ACTION IS MADE FINAL. 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 KRIS HANYU GONG whose telephone number is (703)756-5898. The examiner can normally be reached M-F 8:30-4:30.
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, Brandy Lee can be reached at 571-270-7410. 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.
/KRIS HANYU GONG/Examiner, Art Unit 3785
/VICTORIA MURPHY/Primary Patent Examiner, Art Unit 3785