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 05-16-2022. As directed, claims 1-21 are currently pending examination.
Claim Objections
Claims 1, 4, 8-9, 12, 16, and 19 are objected to because of the following informalities:
At claim 1, line 10, it is suggested that “the” be added before “column” for clarity.
At claim 4, lines 1-2, it is suggested that “a infrasound wave transducer” be replaced with “an infrasound wave transducer” for clarity.
At claim 4, line 2, it is suggested that “a infrasound wave” be replaced with “an infrasound wave” for clarity.
At claim 8, line 3, it is suggested that “passes” be replaced with “is configured to pass” to avoid recitation of method steps in an apparatus claim.
At claim 9, line 3, it is suggested that “forward to” be replaced with “forward of” for clarity.
At claim 12, line 2, it is suggested that “a infrasound wave transducer” be replaced with “an infrasound wave transducer” for clarity.
At claim 12, line 2, it is suggested that “a infrasound wave” be replaced with “an infrasound wave” for clarity.
At claim 16, lines 2-3, it is suggested that “forward to” be replaced with “forward of” for clarity.
At claim 16, line 15, it is suggested that “the” be added before “column” for clarity.
At claim 19, line 2, it is suggested that “a infrasound wave transducer” be replaced with “an infrasound wave transducer” for clarity.
At claim 19, line 2, it is suggested that “a infrasound wave” be replaced with “an infrasound wave” for clarity.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 4-8, 12-15, and 19-21 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Each of claims 4, 12, and 19 depend from a respective preceding dependent claim which outlines that the low-frequency wave is 1.45 Hz. As this frequency value is in the infrasonic range (i.e. is below 20 Hz), the frequency of 1.45 Hz is inherently an infrasonic wave. Thus, each of claims 4, 12, and 19, which include the intervening limitation that the low-frequency wave is 1.45 Hz, fail to further limit the subject matter of the respective claims from which they depend (claims 3, 11, and 18 respectively). Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claims 5-8, 13-15, and 20-21 are rejected by virtue of their dependency on claims 4, 12, and 19 respectively.
Claim Rejections - 35 USC § 102
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 9 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhang (US 2020/0390650).
Regarding claim 9, Zhang discloses a health care method (100) (paragraph 9, lines 1-12; Fig. 6), comprising:
using a low-frequency wave emitter (105+106) to emit a low-frequency wave of a predetermined frequency forward to an umbilicus of a user (paragraph 16, lines 1-10; paragraph 28, lines 1-12, note “infrasonic” and that the output are waves that are chosen before application of the device to the treated area; see also paragraph 149; paragraphs 181-183, and paragraph 224, lines 7-12, where a portion of the body of the device is understood to extend in front of the belly button when the projection 102 is placed proximal the navel, and the placement of the device in “close proximity to the navel” is understood to be predetermined in order to treat the underlying acupoint detailed in paragraphs 35 and 213), wherein the low-frequency wave is emitted at a predetermined position (i.e., emission of wave at the tapered, projected part of the device), and the predetermined position is located in front of the umbilicus of the user with a predetermined distance (paragraph 16, lines 1-10; paragraphs 181-183, and paragraph 224, lines 7-12, where a portion of the body of the device is understood to extend in front of the belly button when the projection 102 is placed proximal the navel, and the placement of the device in “close proximity to the navel” is understood to be predetermined, in both positioning and distance, in order to treat the underlying acupoint detailed in paragraphs 35 and 213).
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.
Claims 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang (US 2020/0390650), as applied to Zhang (US 2020/0390650) above.
Regarding claim 10, Zhang discloses the health care method of claim 9, as discussed above.
At present, Zhang fails to disclose wherein the predetermined frequency is within a range between 1.27 Hz and 1.8 Hz.
However, Zhang does disclose wherein the predetermined frequency is in the infrasonic range below 20 Hz (paragraph 28, lines 1-12).
In the case where the instantly claimed range falls within the range disclosed in the prior art, a prima facie case of obviousness exists (see MPEP 2144.05 I, where the claimed range lies inside a prior art range).
Further, Zhang also teaches that the energy transmission of the disclosed device aims to vibrate internal body structures at their resonance frequency, and indicates that different parts of the body have different resonances (see paragraph 28, final 14 lines).
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 selected the range from 1.27-1.8 Hz within the overlapping range of 0-20 Hz disclosed by Zhang, in order to create resonance at particular, desired body structures, as further taught and evidenced by Zhang.
Regarding claim 11, Zhang discloses the health care method of claim 10, as discussed above.
As noted above, Zhang discloses wherein the predetermined frequency is in the infrasonic range below 20 Hz (paragraph 28, lines 1-12).
Further, Zhang also teaches that the energy transmission of the disclosed device aims to vibrate internal body structures at their resonance frequency, and indicates that different parts of the body have different resonances (see paragraph 28, final 14 lines).
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 selected the value of 1.45 Hz within the overlapping range of 0-20 Hz disclosed by Zhang, in order to create resonance at particular, desired body structures, as further taught and evidenced by Zhang.
Regarding claim 12, Zhang discloses the health care method of claim 11, as discussed above.
Zhang further discloses wherein the low-frequency wave emitter (105+106) is an infrasonic transducer, and the low-frequency wave is an infrasonic wave (paragraph 28, lines 1-12).
Claims 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang (US 2020/0390650), as applied to claim 12 above, in view of Tsai (US 2023/0123064).
Regarding claim 13, Zhang discloses the health care method of claim 12, as discussed above.
Zhang fails to disclose wherein the predetermined position is located on a virtual bottom surface of a virtual cone, a virtual vertex of the virtual cone is the umbilicus, and the predetermined distance is within a range between 5 cm and 8 cm.
However, Tsai teaches a health care device including an acupoint work piece for treating the body of an individual with waves (abstract, lines 1-5; Fig. 1; paragraph 21, lines 1-5), wherein it is recommended that the work piece be positioned 5 centimeters away from areas of the body including the face, brain, eyes, ovaries, and testicles to avoid excessive radiation.
Given that Zhang positions the device relative to the umbilicus, which is near the ovaries and/or testicles depending on the biological sex of the individual using 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 have modified the health care method of Zhang to move the device to a predetermined distance 5 centimeters from the umbilicus, as taught by Tsai, in order to avoid excessive radiation to the ovaries and/or testicles.
As modified, modified Zhang also contemplates wherein the predetermined position is located on a virtual bottom surface of a virtual cone, a virtual vertex of the virtual cone is the umbilicus, because, per Tsai’s teaching, the device of Zhang is now positioned so as to place the vertex of the device (100) 5 centimeters away from the umbilicus. Given that the claimed cone is virtual (read “imaginary”), and the disclosure outlines no criticality to the virtual cone, nor outlines any steps as to how the virtual cone is derived, by moving the Zhang device away from the user’s body, there exists a virtual cone with a height of 5 centimeters (coinciding with the predetermined distance), where the predetermined position (i.e. the vertex of the device where the wave from emitter 105+106 extends out of the device and towards the user’s body) is located at a virtual bottom surface of the virtual cone (i.e., the vertex is placed at the center of the circular base of the cone), and a virtual vertex of the virtual cone is at the umbilicus.
Regarding claim 14, Zhang in view of Tsai disclose the health care method of claim 13, as discussed above.
Modified Zhang further discloses wherein the predetermined position is located on a center of the virtual bottom surface (note the rejection of claim 13 above, where by modifying the method of Zhang, the Zhang device vertex is placed 5 centimeters away from the umbilicus, which gives rise to the ability to draw/envision a virtual cone between the device vertex and the umbilicus, where the virtual vertex of the virtual cone is aligned with and contacts the umbilicus, the virtual cone height is 5 centimeters, and the vertex of the device is positioned at a center of the circular virtual bottom surface of the cone, such that the device vertex and the umbilicus are aligned).
Regarding claim 15, Zhang in view of Tsai disclose the health care method of claim 14, as discussed above.
Modified Zhang further discloses wherein the virtual cone is a circular cone, and the predetermined position is located on a circle center of the virtual bottom surface being a circle, and the predetermined distance is a distance between the circle center and the umbilicus (note the rejection of claim 13 above, where by modifying the method of Zhang, the Zhang device vertex is placed 5 centimeters away from the umbilicus, which gives rise to the ability to draw/envision a virtual cone between the device vertex and the umbilicus, where the virtual vertex of the virtual cone is aligned with and contacts the umbilicus, the virtual cone height is 5 centimeters, and the vertex of the device is positioned at a center of the circular virtual bottom surface of the cone, such that the device vertex and the umbilicus are aligned).
Claims 1-8 and 16-19 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang (US 2020/0390650) in view of Sun (KR 2003/76020).
Regarding claim 1, Zhang discloses a health care device (100) (paragraph 9, lines 1-3; Fig. 2), comprising:
a low-frequency wave emitter (105+106) configured to emit a low-frequency wave with a predetermined frequency (paragraph 16, lines 1-10; paragraph 28, lines 1-12, note “infrasonic” and that the output are waves that are chosen before application of the device to the treated area; see also paragraph 149);
a projecting part (portion of housing 101 contained between 102 and the area underneath 102 above base 105) (paragraph 12, lines 1-4; Fig. 1), having a vertex (102) (paragraph 12, lines 1-4; Fig. 1), a bottom surface and a body (see annotated Fig. 5 below, note that the body is the portion of the projecting part between the vertex and bottom surface), which has two ends respectively connected to the vertex and the bottom surface of the projecting part (portion of housing 101 contained between 102 and the area underneath 102 above base 105) (see annotated Fig. 5 below, note that the body is the portion of the projecting part between the vertex and bottom surface).
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Zhang fails to disclose a column, having a top surface, a bottom surface and a column body what has two ends respectively connected to the top surface of the column and the bottom surface of the column; and
wherein the top surface of the column is correspondingly jointed to the bottom surface of the cone, and the low-frequency wave emitter is connected to the bottom surface of the column.
However, Sun teaches a health care device for applying acupressure to a body area (abstract, lines 1-4; Figs. 4-6), which includes a projecting part (14) chosen to be a cone (14 in Fig. 6) (page 7, lines 1-4), and attached to a column, having a top surface, a bottom surface and a column body what has two ends respectively connected to the top surface of the column and the bottom surface of the column (see Fig. 6, where the bottom of the cone and the top surface of the column are integrally connected, where “jointed” is taken to mean a place where two things are joined), wherein the top surface of the column is correspondingly jointed to the bottom surface of the cone, and wherein the shape of the projecting part is configured to treat the body surface via acupressure differently based on its shape (page 7, lines 5-7), and the column portion houses a magnet for additional treatment methodology (page 4, lines 12-13).
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Given that Zhang discloses using the health care device for acupressure (abstract, lines 6-9, see acupoints), it would have been obvious to one of ordinary skill in the art to have modified the shape of Zhang’s projecting part and underlying area to be a cone with an attached column for housing additional treatment components at a bottom surface thereof, with the top surface of the column correspondingly jointed to the bottom surface of the cone, as taught by Sun, in order to treat the acupoint underlaying the body surface with a differently-shaped projection as desired while still maintaining the ability to house an additional treatment component, such a modification amounting to mere design choice.
As modified, the low-frequency wave transmitter of Zhang (105+106) remains positioned at the bottom portion of the area of the Zhang device jointed to and underneath the projecting part (now respectively configured as a column and a cone), and the topmost part of the modified column is jointed with the bottommost portion of the modified cone.
Regarding claim 2, Zhang in view of Sun disclose the heath care device of claim 1, as discussed above.
Zhang further discloses wherein the predetermined frequency is in the infrasonic range below 20 Hz (paragraph 28, lines 1-12).
In the case where the instantly claimed range falls within the range disclosed in the prior art, a prima facie case of obviousness exists (see MPEP 2144.05 I, where the claimed range lies inside a prior art range).
Further, Zhang also teaches that the energy transmission of the disclosed device aims to vibrate internal body structures at their resonance frequency, and indicates that different parts of the body have different resonances (see paragraph 28, final 14 lines).
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 selected the range from 1.27-1.8 Hz within the overlapping range of 0-20 Hz disclosed by Zhang, in order to create resonance at particular, desired body structures, as further taught and evidenced by Zhang.
Regarding claim 3, Zhang in view of Sun disclose the heath care device of claim 2, as discussed above.
Zhang further discloses wherein the predetermined frequency is in the infrasonic range below 20 Hz (paragraph 28, lines 1-12).
Further, Zhang also teaches that the energy transmission of the disclosed device aims to vibrate internal body structures at their resonance frequency, and indicates that different parts of the body have different resonances (see paragraph 28, final 14 lines).
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 selected the value of 1.45 Hz within the overlapping range of 0-20 Hz disclosed by Zhang, in order to create resonance at particular, desired body structures, as further taught and evidenced by Zhang.
Regarding claim 4, Zhang in view of Sun disclose the heath care device of claim 3, as discussed above.
Zhang further discloses wherein the low-frequency wave emitter (105+106) is an infrasonic transducer, and the low-frequency wave is an infrasonic wave (paragraph 28, lines 1-12).
Regarding claim 5, Zhang in view of Sun disclose the heath care device of claim 4, as discussed above.
Modified Zhang further discloses wherein the column is a cylinder, and the column and the cone are formed integrally (see Fig. 6 of Sun, where the column is shaped as a cylinder, and the cone and column are integral, and note further that the Zhang device of Fig. 2 is also given as an integral assembly).
In the case that neither Zhang or Sun are deemed to disclose or teach the integral nature of the modified column and cone:
The courts have held “that the use of a one piece construction instead of the structure disclosed in [the prior art] would be merely a matter of obvious engineering choice” (In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965); MPEP 2144.05(V)B). Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have constructed the column and cone of modified Zhang from a one-piece, unitary object as a matter of obvious engineering design choice aiding in simplicity of manufacturing the cone and column as one piece rather than several separate pieces.
Regarding claim 6, Zhang in view of Sun disclose the heath care device of claim 5, as discussed above.
Modified Zhang further discloses wherein the low-frequency wave transmitter (Zhang: 105+106) is connected to the bottom surface of the column via a tube (104) (note Fig. 6 of Sun, where the Zhang device is modified to be a cone connected to an underlying column; see Zhang at Fig. 6 and paragraph 16, lines 1-15, where energy ring 104 connects to 105 and 106, and given that 104 is stated to be a ring, and includes a vertical dimension, 104 is taken to be tubular).
Regarding claim 7, Zhang in view of Sun disclose the heath care device of claim 6, as discussed above.
Modified Zhang further discloses wherein the vertex further has a stick (103) being vertically standing and having a longitudinal direction away from the bottom surface of the cone (note that the projecting part of Zhang’s Fig. 6 is modified to be conical per Sun; paragraph 16, lines 1-8 and Fig. 6 of Zhang show a “stick” 103 vertically oriented, and where the longitudinal axis thereof extends towards the vertex which is away from the bottom surface of the cone as annotated in Fig. 6 above).
Regarding claim 8, Zhang in view of Sun disclose the heath care device of claim 7, as discussed above.
Modified Zhang further discloses wherein the longitudinal direction of the stick (Zhang: 103) is coincided with a specific normal line of the bottom surface of the cone, and the specific normal line of the bottom surface of the cone passes through a bottom surface center of the cone (see Sun’s Fig. 6, where the specific normal line is taken to be a line that extends between the vertex of the cone, and the center of the bottom surface of the cone, and where Zhang’s projecting part is modified to be conical as in Sun’s Fig. 6; further, note Zhang at paragraph 16, lines 1-8 and Fig. 6, where stick 103 is positioned to coincide with this specific normal line as it extends centrally in the projecting part between the vertex and the bottom surface of the projecting part).
Regarding claim 16, Zhang discloses a health care method (paragraph 9, lines 1-15; Fig. 6), comprising:
using a health care device (100) to emit a low-frequency wave of a predetermined frequency forward to an umbilicus of a user (paragraph 16, lines 1-10; paragraph 28, lines 1-12, note “infrasonic” and that the output are waves that are chosen before application of the device to the treated area; see also paragraph 149; paragraphs 181-183, and paragraph 224, lines 7-12, where a portion of the body of the device is understood to extend in front of the belly button when the projection 102 is placed proximal the navel, and the placement of the device in “close proximity to the navel” is understood to be predetermined in order to treat the underlying acupoint detailed in paragraphs 35 and 213), wherein the low-frequency wave is emitted at a predetermined position (i.e., wave emission at the tapered, projected portion of device 100), and the predetermined position is located in front of the umbilicus of the user with a predetermined distance (paragraph 16, lines 1-10; paragraphs 181-183, and paragraph 224, lines 7-12, where a portion of the body of the device is understood to extend in front of the belly button when the projection 102 is placed proximal the navel, and the placement of the device in “close proximity to the navel” is understood to be predetermined, in both positioning and distance, in order to treat the underlying acupoint detailed in paragraphs 35 and 213);
wherein the health care device (100) comprises:
a low-frequency wave emitter (105+106) configured to emit a low-frequency wave with a predetermined frequency (paragraph 16, lines 1-10; paragraph 28, lines 1-12, note “infrasonic” and that the output are waves that are chosen before application of the device to the treated area; see also paragraph 149);
a projecting part (portion of housing 101 contained between 102 and the area underneath 102 above base 105) (paragraph 12, lines 1-4; Fig. 1), having a vertex (102) (paragraph 12, lines 1-4; Fig. 1), a bottom surface and a body (see annotated Fig. 5 below, note that the body is the portion of the projecting part between the vertex and bottom surface), which has two ends respectively connected to the vertex and the bottom surface of the projecting part (portion of housing 101 contained between 102 and the area underneath 102 above base 105) (see annotated Fig. 5 below, note that the body is the portion of the projecting part between the vertex and bottom surface).
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Zhang fails to disclose a column, having a top surface, a bottom surface and a column body what has two ends respectively connected to the top surface of the column and the bottom surface of the column; and
wherein the top surface of the column is correspondingly jointed to the bottom surface of the cone, and the low-frequency wave emitter is connected to the bottom surface of the column.
However, Sun teaches a health care device for applying acupressure to a body area (abstract, lines 1-4; Figs. 4-6), which includes a projecting part (14) chosen to be a cone (14 in Fig. 6) (page 7, lines 1-4), and attached to a column, having a top surface, a bottom surface and a column body what has two ends respectively connected to the top surface of the column and the bottom surface of the column (see Fig. 6, where the bottom of the cone and the top surface of the column are integrally connected, where “jointed” is taken to mean a place where two things are joined), wherein the top surface of the column is correspondingly jointed to the bottom surface of the cone, and wherein the shape of the projecting part is configured to treat the body surface via acupressure differently based on its shape (page 7, lines 5-7), and the column portion houses a magnet for additional treatment methodology (page 4, lines 12-13).
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Given that Zhang discloses using the health care device for acupressure (abstract, lines 6-9, see acupoints), it would have been obvious to one of ordinary skill in the art to have modified the shape of Zhang’s projecting part and underlying area to be a cone with an attached column for housing additional treatment components at a bottom surface thereof, with the top surface of the column correspondingly jointed to the bottom surface of the cone, as taught by Sun, in order to treat the acupoint underlaying the body surface with a differently-shaped projection as desired while still maintaining the ability to house an additional treatment component, such a modification amounting to mere design choice.
As modified, the low-frequency wave transmitter of Zhang (105+106) remains positioned at the bottom portion of the area of the Zhang device jointed to and underneath the projecting part (now respectively configured as a column and a cone), and the topmost part of the modified column is jointed with the bottommost portion of the modified cone.
Regarding claim 17, Zhang in view of Sun disclose the heath care method of claim 18, as discussed above.
Zhang further discloses wherein the predetermined frequency is in the infrasonic range below 20 Hz (paragraph 28, lines 1-12).
In the case where the instantly claimed range falls within the range disclosed in the prior art, a prima facie case of obviousness exists (see MPEP 2144.05 I, where the claimed range lies inside a prior art range).
Further, Zhang also teaches that the energy transmission of the disclosed device aims to vibrate internal body structures at their resonance frequency, and indicates that different parts of the body have different resonances (see paragraph 28, final 14 lines).
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 selected the range from 1.27-1.8 Hz within the overlapping range of 0-20 Hz disclosed by Zhang, in order to create resonance at particular, desired body structures, as further taught and evidenced by Zhang.
Regarding claim 18, Zhang in view of Sun disclose the heath care method of claim 17, as discussed above.
Zhang further discloses wherein the predetermined frequency is in the infrasonic range below 20 Hz (paragraph 28, lines 1-12).
Further, Zhang also teaches that the energy transmission of the disclosed device aims to vibrate internal body structures at their resonance frequency, and indicates that different parts of the body have different resonances (see paragraph 28, final 14 lines).
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 selected the value of 1.45 Hz within the overlapping range of 0-20 Hz disclosed by Zhang, in order to create resonance at particular, desired body structures, as further taught and evidenced by Zhang.
Regarding claim 19, Zhang in view of Sun disclose the heath care method of claim 18, as discussed above.
Zhang further discloses wherein the low-frequency wave emitter (105+106) is an infrasonic transducer, and the low-frequency wave is an infrasonic wave (paragraph 28, lines 1-12).
Claims 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang (US 2020/0390650) in view of Sun (KR 2003/76020), as applied to claim 19 above, in further view of Tsai (US 2023/0123064).
Regarding claim 20, Zhang in view of Sun disclose the health care method of claim 19, as discussed above.
Modified Zhang fails to disclose wherein the predetermined position is located on a virtual bottom surface of a virtual cone, a virtual vertex of the virtual cone is the umbilicus, and the predetermined distance is within a range between 5 cm and 8 cm; the predetermined position is located on a center of the virtual bottom surface, the virtual cone is a circular cone, and the predetermined position is located on a circle center of the virtual bottom surface being a circle, the predetermined distance is a distance between the circle center and the umbilicus, and the vertex is located at the predetermined position.
However, Tsai teaches a health care device including an acupoint work piece for treating the body of an individual with waves (abstract, lines 1-5; Fig. 1; paragraph 21, lines 1-5), wherein it is recommended that the work piece be positioned 5 centimeters away from areas of the body including the face, brain, eyes, ovaries, and testicles to avoid excessive radiation.
Given that Zhang positions the device relative to the umbilicus, which is near the ovaries and/or testicles depending on the biological sex of the individual using 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 have modified the health care method of Zhang to move the device to a predetermined distance 5 centimeters from the umbilicus, as taught by Tsai, in order to avoid excessive radiation to the ovaries and/or testicles.
As modified, modified Zhang also contemplates wherein the predetermined position is located on a virtual bottom surface of a virtual cone, a virtual vertex of the virtual cone is the umbilicus, because, per Tsai’s teaching, the device of Zhang is now positioned so as to place the vertex of the device (100) 5 centimeters away from the umbilicus. Given that the claimed cone is virtual (read “imaginary”), and the disclosure outlines no criticality to the virtual cone, nor outlines any steps as to how the virtual cone is derived, by moving the Zhang device away from the user’s body, there exists a virtual cone with a height of 5 centimeters (coinciding with the predetermined distance), where the predetermined position (i.e. the vertex of the device where the wave from emitter 105+106 extends out of the device and towards the user’s body) is located at a virtual bottom surface of the virtual cone on a center of the virtual bottom surface where the base of the cone is circular to give a circular cone (i.e., the vertex is placed at the center of the circular base of the cone), and a virtual vertex of the virtual cone is at the umbilicus.
Regarding claim 21, Zhang in view of Sun and Tsai disclose the health care method of claim 20, as discussed above.
Modified Zhang further discloses wherein the vertex further has a stick (103) being vertically standing and having a longitudinal direction away from the bottom surface of the cone (note that the projecting part of Zhang’s Fig. 6 is modified to be conical per Sun; paragraph 16, lines 1-8 and Fig. 6 of Zhang show a “stick” 103 vertically oriented, and where the longitudinal axis thereof extends towards the vertex which is away from the bottom surface of the cone as annotated in Fig. 6 above), wherein the longitudinal direction of the stick (Zhang: 103) is coincided with a specific normal line of the bottom surface of the cone and extending towards the umbilicus, the specific normal line of the bottom surface of the cone passes through a bottom surface center of the cone, and a stick tip (tip of 103 at device vertex) is located at the predetermined position (see Sun’s Fig. 6, where the specific normal line is taken to be a line that extends between the vertex of the cone, and the center of the bottom surface of the cone, and where Zhang’s projecting part is modified to be conical as in Sun’s Fig. 6; further, note Zhang at paragraph 16, lines 1-8 and Fig. 6, where stick 103 is positioned to coincide with this specific normal line as it extends centrally in the projecting part between the vertex and the bottom surface of the projecting part, and the stick tip coincides with the device vertex which is the predetermined position).
Double Patenting
The non-statutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on non-statutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
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Claims 9-15 are provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 7 and 9 of co-pending Application No. 18/058,399 to Lee (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other as shown in the following claim mapping.
This is a provisional non-statutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Regarding claim 9, Lee ‘399 discloses a health care method (claim 7, line 1), comprising:
using a low-frequency wave emitter to emit a low-frequency wave of a predetermined frequency forward to an umbilicus of a user, wherein the low-frequency wave is emitted at a predetermined position, and the predetermined position is located in front of the umbilicus of the user with a predetermined distance (claim 7, lines 2-5, and 15-16).
Regarding claim 10, Lee ‘399 discloses the health care method of claim 9, as discussed above.
Lee ‘399 further discloses wherein the predetermined frequency is within a range between 1.27 Hz and 1.8 Hz (claim 7, line 12).
Regarding claim 11, Lee ‘399 discloses the health care method of claim 10, as discussed above.
Lee ‘399 further discloses wherein the predetermined frequency is 1.45 Hz (claim 9, lines 1-2).
Regarding claim 12, Lee ‘399 discloses the health care method of claim 11, as discussed above.
Lee ‘399 further discloses wherein the low-frequency wave emitter is a infrasound wave transducer, and the low-frequency wave is a infrasound wave (claim 7, lines 10-14).
Regarding claim 13, Lee ‘399 discloses the health care method of claim 12, as discussed above.
Lee ‘399 further discloses wherein the predetermined position is located on a virtual bottom surface of a virtual cone, a virtual vertex of the virtual cone is the umbilicus, and the predetermined distance is within a range between 5 cm and 8 cm (claim 7, lines 15-19).
Regarding claim 14, Lee ‘399 discloses the health care method of claim 13, as discussed above.
Lee ‘399 further discloses wherein the predetermined position is located on a center of the virtual bottom surface (claim 7, lines 15-19).
Regarding claim 15, Lee ‘399 discloses the health care method of claim 14, as discussed above.
Lee ‘399 further discloses wherein the virtual cone is a circular cone, and the predetermined position is located on a circle center of the virtual bottom surface being a circle, and the predetermined distance is a distance between the circle center and the umbilicus (claim 7, lines 15-19).
Claims 1-5 and 16-20 are provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 7 and 9 of co-pending Application No. 18/058,399 to Lee in view of Sun (KR 2003/76020).
This is a provisional non-statutory double patenting rejection.
Regarding claim 1, Lee ‘399 discloses a health care device (claim 7, lines 1-3), comprising:
a low-frequency wave emitter, configured to emit a low-frequency wave of a predetermined frequency (claim 7, lines 10-11); and
a cone, having a vertex, a bottom surface and a cone body which has two ends respectively connected to the vertex and the bottom surface of the cone (claim 7, lines 7-9).
Lee ‘399 fails to disclose a column, having a top surface, a bottom surface and a column body which has two ends respectively connected to the top surface of the column and the bottom surface of the column; and
wherein the top surface of the column is correspondingly jointed to the bottom surface of the cone, and the low-frequency wave emitter is connected to the bottom surface of column.
However, Sun teaches a health care device for applying acupressure to a body area (abstract, lines 1-4; Figs. 4-6), which includes a cone (14 in Fig. 6) (page 7, lines 1-4), and attached column, having a top surface, a bottom surface and a column body what has two ends respectively connected to the top surface of the column and the bottom surface of the column (see Fig. 6, where the bottom of the cone and the top surface of the column are integrally connected, where “jointed” is taken to mean a place where two things are joined), wherein the top surface of the column is correspondingly jointed to the bottom surface of the cone, and wherein the cone is configured to treat the body surface via acupressure differently based on its shape (page 7, lines 5-7), and the column portion houses a magnet for additional treatment methodology (page 4, lines 12-13).
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Therefore, it would have been obvious to one of ordinary skill in the art to have modified the shape of Lee’s device to be the claimed cone with an attached column for housing the low-frequency wave transmitter, with the top surface of the column correspondingly jointed to the bottom surface of the cone, as taught by Sun, in order to treat the acupoint underlaying the body surface with a differently-shaped projection as desired while still maintaining the ability to house the transmitter, such a modification amounting to mere design choice.
Regarding claim 2, Lee ‘399 in view of Sun disclose the health care device according to claim 1, as discussed above.
Lee ‘399 further discloses wherein the predetermined frequency is within a range between 1.27 Hz and 1.8 Hz (claim 7, line 12).
Regarding claim 3, Lee ‘399 in view of Sun disclose the health care device according to claim 2, as discussed above.
Lee ‘399 further discloses wherein the predetermined frequency is 1.45 Hz (claim 9, lines 1-2).
Regarding claim 4, Lee ‘399 in view of Sun disclose the health care device according to claim 3, as discussed above.
Lee ‘399 further discloses wherein the low-frequency wave emitter is a infrasound wave transducer, and the low-frequency wave is a infrasound wave (claim 7, lines 10-11).
Regarding claim 5, Lee ‘399 in view of Sun disclose the health care device according to claim 4, as discussed above.
Modified Lee ‘399 further discloses wherein the column is a cylinder, and the column and the cone are formed integrally (see Fig. 6 of Sun, where the column is shaped as a cylinder, and the cone and column are integral, and note further that the Zhang device of Fig. 2 is also given as an integral assembly).
In the case that Sun is deemed not to disclose or teach the integral nature of the modified column and cone:
The courts have held “that the use of a one piece construction instead of the structure disclosed in [the prior art] would be merely a matter of obvious engineering choice” (In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965); MPEP 2144.05(V)B). Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have constructed the column and cone of modified Lee ‘399 from a one-piece, unitary object as a matter of obvious engineering design choice aiding in simplicity of manufacturing the cone and column as one piece rather than several separate pieces.
Regarding claim 16, Lee ‘399 discloses a health care method (claim 7, line 1), comprising:
using a low-frequency wave emitter to emit a low-frequency wave of a predetermined frequency forward to an umbilicus of a user, wherein the low-frequency wave is emitted at a predetermined position, and the predetermined position is located in front of the umbilicus of the user with a predetermined distance (claim 7, lines 2-5, and 15-16);
wherein the health care device comprises:
a low-frequency wave emitter, configured to emit a low-frequency wave of a predetermined frequency (claim 7, lines 10-11); and
a cone, having a vertex, a bottom surface and a cone body which has two ends respectively connected to the vertex and the bottom surface of the cone (claim 7, lines 7-9).
Lee ‘399 fails to disclose a column, having a top surface, a bottom surface and a column body which has two ends respectively connected to the top surface of the column and the bottom surface of the column; and
wherein the top surface of the column is correspondingly jointed to the bottom surface of the cone, and the low-frequency wave emitter is connected to the bottom surface of column.
However, Sun teaches a health care device for applying acupressure to a body area (abstract, lines 1-4; Figs. 4-6), which includes a cone (14 in Fig. 6) (page 7, lines 1-4), and attached column, having a top surface, a bottom surface and a column body what has two ends respectively connected to the top surface of the column and the bottom surface of the column (see Fig. 6, where the bottom of the cone and the top surface of the column are integrally connected, where “jointed” is taken to mean a place where two things are joined), wherein the top surface of the column is correspondingly jointed to the bottom surface of the cone, and wherein the cone is configured to treat the body surface via acupressure differently based on its shape (page 7, lines 5-7), and the column portion houses a magnet for additional treatment methodology (page 4, lines 12-13).
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Therefore, it would have been obvious to one of ordinary skill in the art to have modified the shape of Lee’s device to be the claimed cone with an attached column for housing the low-frequency wave transmitter, with the top surface of the column correspondingly jointed to the bottom surface of the cone, as taught by Sun, in order to treat the acupoint underlaying the body surface with a differently-shaped projection as desired while still maintaining the ability to house the transmitter, such a modification amounting to mere design choice.
Regarding claim 17, Lee ‘399 in view of Sun disclose the health care method according to claim 16, as discussed above.
Lee ‘399 further discloses wherein the predetermined frequency is within a range between 1.27 Hz and 1.8 Hz (claim 7, line 12).
Regarding claim 18, Lee ‘399 in view of Sun disclose the health care method according to claim 17, as discussed above.
Lee ‘399 further discloses wherein the predetermined frequency is 1.45 Hz (claim 9, lines 1-2).
Regarding claim 19, Lee ‘399 in view of Sun disclose the health care method according to claim 18, as discussed above.
Lee ‘399 further discloses wherein the low-frequency wave emitter is a infrasound wave transducer, and the low-frequency wave is a infrasound wave (claim 7, lines 10-11).
Regarding claim 20, Lee ‘399 in view of Sun disclose the health care method according to claim 19, as discussed above.
Lee ‘399 further discloses wherein the predetermined position is located on a virtual bottom surface of a virtual cone, a virtual vertex of the virtual cone is the umbilicus, and the predetermined distance is within a range between 5 cm and 8 cm; the predetermined position is located on a center of the virtual bottom surface, the virtual cone is a circular cone, and the predetermined position is located on a circle center of the virtual bottom surface being a circle, the predetermined distance is a distance between the circle center and the umbilicus, and the vertex is located at the predetermined position (claim 7, lines 15-19).
Claims 6-8 and 21 are provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 7 and 9 of co-pending Application No. 18/058,399 to Lee in view of Sun (KR 2003/76020), as applied to claims 5 and 20 above, in further view of Zhang (US 2020/0390650).
Regarding claim 6, Lee ‘399 in view of Sun disclose the health care device of claim 5, as discussed above.
Modified Lee ‘399 fails to disclose wherein the low-frequency wave emitter is connected to the bottom surface of the column via a tube.
However, Zhang teaches a health care device (100) (paragraph 9, lines 1-3; Fig. 2) wherein a low-frequency wave transmitter (Zhang: 105+106) is connected to the device (100) via a tube (104) (paragraph 16, lines 1-15, where energy ring 104 connects to 105 and 106, and given that 104 is stated to be a ring, and includes a vertical dimension, 104 is taken to be tubular; Fig. 6), where the tube (104) augments the energy waves delivered to the user (paragraph 9, lines 1-12).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device of Lee ‘399 to connect the low-frequency wave emitter to the bottom surface of the column via a tube, as taught by Zhang, in order to augment the energy waves delivered to the user.
Regarding claim 7, Lee ‘399 in view of Sun and Zhang disclose the health care device of claim 6, as discussed above.
Modified Lee ‘399 fails to disclose wherein the vertex further has a stick being vertically standing and having a longitudinal direction away from the bottom surface of the cone.
However, Zhang teaches a health care device (100) (paragraph 9, lines 1-3; Fig. 2) wherein a vertex of the device has a stick (103) being vertically standing and having a longitudinal direction away from the bottom surface of the cone (paragraph 16, lines 1-8 and Fig. 6 of Zhang show a “stick” 103 vertically oriented, and where the longitudinal axis thereof extends towards the vertex which is away from the bottom surface of the device) in order to help direct energy into the body during treatment (paragraph 9, lines 1-7).
Therefore, it would have been obvious to one of ordinary skill in the art before thee effective filing date of the claimed invention to have modified the device of modified Lee ‘399 such that the vertex further has a stick being vertically standing and having a longitudinal direction away from the bottom surface of the cone, as taught by Zhang, in order to help direct energy into the body during treatment.
Regarding claim 8, Lee ‘399 in view of Sun and Zhang disclose the health care device of claim 7, as discussed above.
Modified Lee ‘399 further discloses wherein the longitudinal direction of the stick (Zhang: 103) is coincided with a specific normal line of the bottom surface of the cone, and the specific normal line of the bottom surface of the cone passes through a bottom surface center of the cone (see Sun’s Fig. 6, where the specific normal line is taken to be a line that extends between the vertex of the cone, and the center of the bottom surface of the cone; further, note Zhang at paragraph 16, lines 1-8 and Fig. 6, where stick 103 is positioned to coincide with this specific normal line as it extends centrally in the projecting part between the vertex and the bottom surface of the projecting part).
Regarding claim 21, Lee ‘399 in view of Sun disclose the health care method of claim 20, as discussed above.
Modified Lee ‘399 fails to disclose wherein the vertex further has a stick being vertically standing and having a longitudinal direction away from the bottom surface of the cone, the longitudinal direction of the stick is coincided with a specific normal line of the bottom surface of the cone and extending towards the umbilicus, the specific normal line of the bottom surface of the cone passes through a bottom surface center of the cone, and a stick tip of the stick is located at the predetermined position.
However, Zhang teaches a health care device (100) (paragraph 9, lines 1-3; Fig. 2) wherein a vertex of the device has a stick (103) being vertically standing and having a longitudinal direction away from the bottom surface of the cone (paragraph 16, lines 1-8 and Fig. 6 of Zhang show a “stick” 103 vertically oriented, and where the longitudinal axis thereof extends towards the vertex which is away from the bottom surface of the device) in order to help direct energy into the body during treatment (paragraph 9, lines 1-7).
Therefore, it would have been obvious to one of ordinary skill in the art before thee effective filing date of the claimed invention to have modified the device of modified Lee ‘399 such that the vertex further has a stick being vertically standing and having a longitudinal direction away from the bottom surface of the cone, as taught by Zhang, in order to help direct energy into the body during treatment.
Modified Lee ‘399 now discloses wherein the longitudinal direction of the stick (Zhang: 103) is coincided with a specific normal line of the bottom surface of the cone, and the specific normal line of the bottom surface of the cone passes through a bottom surface center of the cone (see Sun’s Fig. 6, where the specific normal line is taken to be a line that extends between the vertex of the cone, and the center of the bottom surface of the cone; further, note Zhang at paragraph 16, lines 1-8 and Fig. 6, where stick 103 is positioned to coincide with this specific normal line as it extends centrally in the projecting part between the vertex and the bottom surface of the projecting part).
Conclusion
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/PAIGE KATHLEEN BUGG/Primary Examiner, Art Unit 3785