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 application as filed on 02-19-2022, and the Response to Election/Restriction without traverse filed on 03-05-2025. As directed, claims 9-11 were elected for examination, meaning claims 1-8 and 12-17 are withdrawn from consideration. Thus, claims 9-11 are currently pending examination.
Examiner’s Note
In the Response to Election/Restriction filed on 03-05-2025, Applicant did not include a marked-up version of the claims indicating the elected verses non-elected claims. Applicant is reminded of 37 CFR 1.121, which mandates that a claim set with mark-ups as to withdrawn, canceled, amended, and newly added claims should be provided. Pursuant to this rule, Applicant is asked to provide the status of the claims in the following response.
Election/Restrictions
Applicant’s election without traverse of Group V, claim 9-11 in the reply filed on 03-05-2025 is acknowledged. Claims 1-8 and 12-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 03-05-2025.
Priority
Examiner notes that the device of the present application was first presented in the PCT application with the earliest effective filing date of 08-10-2018, and further notes that the method steps involving use of the device within a user’s mouth to massage the masseter, as presented in claims 9-11, were first presented in the instant application which has an earliest effective filing date of 02-19-2022. Thus, claim limitations directed to the device are given the earliest effective filing date of 08-10-2018, while claim limitations directed to the outlined method steps of using the device are given the earliest effective filing date of 02-19-2022.
Claim Objections
Claims 9-11 are objected to because of the following informalities:
-In claim 9, line 4, it is suggested that “first and second pivotable arms” be replaced with “a first pivotable arm and a second pivotable arm” for explicit antecedent basis of each claim term.
-In claim 9, lines 8, 10, and 12, it is suggested that “the pain management device treatment attachment” be replaced with “the treatment attachment” for consistency with line 3.
-In claim 9, lines 12-13, it is suggested that “the first and second pivotable arms” be replaced with “the first pivotable arm and the second pivotable arm” for clarity.
-In claim 9, line 14, it is suggested that “the pivotable arms” be replaced with “the first pivotable arm and the second pivotable arm” for consistency.
-In claim 9, line 15, it is suggested that “the masseter muscle” be replaced with “the person’s masseter muscle” for clarity and consistency.
-In claim 10, line 2, it is suggested that “the pivotable arms” be replaced with “the first pivotable arm and the second pivotable arm” for consistency.
-In claim 10, lines 2-3, “the pain management device treatment attachment” be replaced with “the treatment attachment” for consistency.
-In claim 11, line 2, it is suggested “the first and second pivotable arm” be replaced with “the first pivotable arm and the second pivotable arm” for clarity.
-In claim 11, lines 2-3, “the pain management device treatment attachment” be replaced with “the treatment attachment” for consistency.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
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.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Hoon (KR 2004/49028) in view of Hunter (US 2008/0269028).
Regarding claim 9, Hoon discloses a method of treating pain (paragraph 1, lines 1-4, where vibratory massage is understood and known to relieve pain; note alos that paragraph 28, lines 1-7 provide for acupressure protrusions) comprising the steps of:
providing a pain management device (“gum massaging device”) (paragraph 17, lines 1-2 and paragraph 20, lines 1-2: Figs. 1-2) comprising:
a body portion (see annotated Fig. 3 below) with an elongate handle (200) connected to a treatment attachment (100) with first and second pivotable arms (comprisal of 120, 140, and 160) that extend generally perpendicular to the elongate handle (200) (paragraph 17, lines 1-2; paragraph 20, lines 1-2; see Figs. 1 and 3, where Fig. 1 shows an additional mouthpiece 100 attached to the body and generally perpendicular to it); and
a motor (220) inside the body portion (see annotated Fig. 3 below), the motor (220) configured to impart vibration to the body portion (see annotated Fig. 3 below) (paragraph 5, lines 1-4; paragraph 18, lines 1-2; Fig. 1);
placing a first pivotable arm portion (120) of the pain management device treatment attachment (100) inside a person’s mouth to the left outside teeth (see Fig. 3, where arm 120 is on the left; paragraph 20, lines 1-2 and paragraph 21, line 1);
placing a second pivotable arm portion (140) of the pain management device treatment attachment (100) inside a person’s mouth to the right outside teeth (see Fig. 3, where arm 140 is on the right; paragraph 20, lines 1-2 and paragraph 21, line 1);
engaging the motor of the pain management device (“gum massaging device”) while the first and second pivotable arm portions (120, 140) are inside the person’s mouth (paragraph 5, lines 1-4 and paragraph 6, lines 7-9).
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Hoon fails to explicitly disclose wherein the pivotable arms are moved one or more of up and down and side to side inside the person’s mouth to massage the masseter muscle.
Hunter teaches a massage implement (100) (paragraph 27, lines 1-8; Figs. 1 and 3A) configured to be applied externally to the masseter (paragraph 30, lines 1-8) as well as moved up and down external to the treated muscle (paragraph 24, lines 3-11, see “rubbing” and “grinding”; see also the up and down movement in Figs. 4A-B to illustrate the “rubbing” and “grinding”) in order to affect a massage to the user that will reduce pain (paragraph 24, lines 3-11).
Given that Hoon’s device is capable of intraorally impacting the masseter muscle (i.e. through placement of the pivotable arms at the lower gums of the jaw where the masseter attaches to the mandible), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have moved the pivotable arms of the Hoon device in the up and down motion taught by Hunter to massage the masseter muscle while the device is applied intraorally, in order to provide an additional treatment modality, i.e. rubbing/grinding the area of the masseter in addition to the vibratory treatment, to treat and manage muscle pain.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Hoon (KR 2004/49028) in view of Hunter (US 2008/0269028), as applied to claim 9 above, in further view of Gloyd (US 2020/0383868).
Regarding claim 10, Hoon in view of Hunter disclose the method of treating pain of claim 9, as discussed above.
Presently modified Hoon fails to disclose the step of the person opening and closing their mouth while the motor is engaged and the pivotable arms od the pain management treatment attachment are inside the person’s mouth.
However, Gloyd teaches a massage implement (see massage tool applied to the person in Fig. 32) wherein the implement is applied in the area of the temporomandibular joint, and the person is instructed to open and close their mouth as the vibration is applied extra orally for the purpose of lengthening the targeted jaw muscles (paragraph 93, lines 1-7; Figs. 31-32; Examiner notes that the jaw muscles are understood to encompass the masseter which works to close the jaw).
Given that the device and method of modified Hoon includes the steps of engaging the motor and treating the masseter muscle with the pivotable arms in their mouth (see rejection of claim 9 above), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included the step of the person opening and closing their mouth while vibratory treatment is applied, as taught by Gloyd, in order to lengthen the targeted jaw muscles as the treatment is applied to further alleviate pain.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Hoon (KR 2004/49028) in view of Hunter (US 2008/0269028), as applied to claim 9 above, in further view of Cohen (US 2020/0246579).
Regarding claim 11, Hoon in view of Hunter disclose the method of treating pain of claim 9, as discussed above.
Presently modified Hoon fails to disclose the step of the person humming while the first and second pivotable arm portions of the pain management device treatment attachment are placed inside the person’s mouth and the motor of the pain management device is engaged.
However, Cohen teaches that sound therapy is a procedure that can promote relaxation and/or meditation, and further that patients can directly provide themselves sound therapy by humming (paragraph 4, lines 1-2 and 4-9).
Given that the device and method of modified Hoon includes the steps of engaging the motor and treating the masseter muscle with the pivotable arms in their mouth (see rejection of claim 9 above), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included the step of the person humming, as taught by Cohen, in order to induce sound therapy directly by the user and promote relaxation while the pain management device is in use.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAIGE K. BUGG whose telephone number is (571)272-8053. The examiner can normally be reached Monday-Friday 9-5.
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/PAIGE KATHLEEN BUGG/Examiner, Art Unit 3785