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
This office action is in response to the amendment filed 6/06/2025. Claim 1-3 and 6 have been amended. Claims 8-11 and 13-20 have been cancelled. Claims 21-22 have been added. Claims 1-7, 12, 21 and 22 are presently pending in this application.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55
Drawings
The examiner acknowledges corrections made to the drawings filed 6/06/2025. Drawing objections are withdrawn.
Specification
The examiner acknowledges corrections made to the specification filed 6/06/2025. Objections to the specification are withdrawn.
However, Applicant is further reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
Legal phrases “comprising” and “means” are found in lines 1 and 7 of the abstract, respectively.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier.
Such claim limitations are:
The limitation of "a plurality of receiving units" having the generic placeholder of "units" and functional language of "configured to receive", as recited in line 5 of claim 1.
The limitation of "a plurality of attachment units" having the generic placeholder of "units" and functional language of "for attaching", as recited in line 13 of claim 1.
The limitation of "a holding means" having the generic placeholder of "means" and functional language of "for enabling", as recited in line 15 of claim 1.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 22 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 22, line 2 recites “wherein the one or more holding means are sewn at an interval of 200 millimeter on the strap”. This limitation is unclear since with only one holding means there is no interval and thus the claim limitation has been interpreted to only require a holding means that is sewn on the strap (at any location).
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.
Claims 1-7, 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over O'Keefe (2017/0340511) in view of Raines (2020/0093683), Gordon (2017/0216136) and Lewen (US 2014/0274569 A1).
Regarding claim 1, O’Keefe discloses a muscular tension releasing system (defined by massage device 10, see fig. 1; as the definition of massage is generally understood to mean “the rubbing and kneading of muscles and joints of the body with the hands, especially to relieve tension or pain” and, as the massage device 10 is for rotating a massage roller 12 along the body of the user for providing a massage, see para. [0001], the O’Keefe massage device 10 is a muscular tension releasing system) comprising:
a therapy device (defined by massage roller 12, grip 14, groove 22 and rod 50, see fig. 1) comprising a first end (defined by an end, of the therapy device 12/14/22/50, adjacent to the groove 22, see fig. 1), a second end (defined by an end, of the therapy device 12/14/22/50, adjacent to the handle 14, see fig. 1), and an elongate rod 50 (see fig. 1) extending from the first end to the second end (the elongate rod 50 is shown to extend from the first end to the second end, see figs. 1 and 5),
wherein the elongate rod 50 comprises: a receiving unit (defined by massage roller 12, see fig. 1, figure 5) comprising a plurality of knobbly bits (defined by rounded projections of the receiving unit 12, see figs. 1 and 6B and paras. [0040]-[0041]; as the term knobbly is generally understood to mean “having lumps which give a misshapen appearance”, the rounded projections are lumps which give the receiving unit 12 a misshapen appearance, see fig. 6B, such that the rounded projections are considered to be knobbly bits);
a bearing surface (defined by groove 22, see fig. 1) present on the first end (the bearing surface 22 is shown to be at the first end of the therapy device 12/14/22/50, see fig. 1); and
a strap (defined by flexible sling 16, o-shaped fabric 18, handle 20, loop 26 see fig. 1), which in use connects to at least one of the first end and the second end of the therapy device (see figure 1, attached via 26 to the first end at 22) and extends in a lateral direction away from the therapy device (see figure 2), the strap comprising:
a plurality of units (defined by sling 16 and fabric 18, see fig. 1) configured to be connected to each other to form a length of the strap (the units 16/18 are shown to be connected to each other to form a length of the strap, see figs. 1-3), the strap 16/18/20 is configured to compress and expand (the strap 16/18/20 includes flexible sling 16, see para. [0023]-[0025], such that a length of the strap 16/18/20 is able to increase or decrease when the strap 16/18/20 is collapsed or stretched; the strap 16/18/20 is compressed when the user collapses the strap 16/18/20 when the therapy device 12/14/22/50 is not in use, see fig. 1, and such that the strap 16/18/20 is expanded when the sling 16 is stretched during use, see figs. 2-3);
one or more attachment units (defined by loop 26, see figs. 1-3) for attaching to at least one of the first end of the therapy device (the strap 16/18/20/26 includes the attachment unit 26 for engaging the groove 22 on the first end of the therapy device 12/14/22/50, see figs. 1-3) and the second end of the therapy device; and
at least one holding means (defined by handle 20, see fig. 1) for enabling a user to hold the strap 16/18/20/26 for positioning the therapy device 12/14/22/50 according to a body part where the user wants to put pressure on (the user is able to grip the handle 20 allow the plurality of knobbly bits to apply pressure for massaging the body of the user, see figs. 2-3 and para. [0026]),
wherein the strap 16/18/20/26 enables the user to control an amount of pressure exerted by the therapy device 12/14/22/50 on muscles of the body part (the user is able to apply pressure, with the strap 16/18/20/26, by using the holding means 20 and fabric 18 to urge the plurality of knobbly bits toward different muscles on body parts of the user, see para. [0028]).
O’Keefe discloses everything as claimed including the elongate rod 50 and the receiving unit 12 comprising the plurality of knobbly bits, see figs. 1 and 6B, but is silent with regard to the elongate rod comprising: a plurality of treads comprising a plurality of knobbly bits and a plurality of receiving units configured to receive at least one tread of the plurality of treads.
However, Raines teaches that a similar massage device (defined by therapeutic device 201, see fig. 14 and the abstract) includes an elongate rod (defined by shaft 203, see fig. 14) and receiving units (defined by bases 321, see figs. 14 and 16B),
wherein each receiving unit 321 is configured to receive a respective tread (defined by bands 323d, see fig. 17D; where fig. 16B shows the engagement of the tread 323d on the receiving unit 321, see para. [0039]) comprising a plurality of knobbly bits (defined by ridges which are shown to extend from the tread 323D, see fig. 17D and para. [0041]).
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 O’Keefe’s receiving unit to be a plurality of receiving units which each receive a respective tread of a plurality of treads, as taught by Raines, for the purpose of allowing the plurality of treads to be removable, see para. [0043] of Raines, for replacement in case of damage.
The modified O’Keefe system discloses everything as claimed including the elongate rod, see fig. 1 of O’Keefe, but is silent with regard to the elongate rod comprising a coating of a durable coating material.
However, Gordon teaches that an elongate rod (defined by treatment section 14, see figs. 1-3 and the abstract) comprises a coating (defined by plastic material 48, see fig. 16) made of durable coating material (the coating 48 is a plastic having nano-silver particles for preventing the adhesion of pathogens, see para. [0107], where plastic and nano-silver coating considered to confer durability by providing an additional protective layer surrounding the elongate rod, see fig. 16).
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 provided a coating of durable coating material to the modified O’Keefe elongate rod, as taught by Gordon, for the purpose of preventing the adhesion of pathogens, see para. [0107] of Gordon, when the therapy device is in contact with the user.
The modified O’Keefe system discloses everything as claimed including the strap and the plurality of units, see fig. 1 of O’Keefe, but is silent with regard to the plurality of units being a plurality of interlocking units configured to be connected to each other to form a length of the strap, the length of the strap being adjustable by either (i) connecting additional interlocking units to the plurality of interlocking units, or (ii) disconnecting at least one interlocking unit from the plurality of interlocking units.
However, Lewen teaches a strap (left strap as set forth in [0013]) including a plurality of interlocking units (106a, 106b, 106e, 112a and 124a interlock via 122a, 110a, 126a) which are configured to be connected to each other to form a length of the strap, the length of the strap being adjustable by either (i) connecting additional interlocking units to the plurality of interlocking units, or (ii) disconnecting at least one interlocking unit from the plurality of interlocking units (as set forth in [0013] 122a 110a and 126a are removable, thus making the strap modular allowing the length to be adjusted).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified O’Keefe such that the plurality of units being a plurality of interlocking units configured to be connected to each other to form a length of the strap, the length of the strap being adjustable by either (i) connecting additional interlocking units to the plurality of interlocking units, or (ii) disconnecting at least one interlocking unit from the plurality of interlocking units as taught by Lewen for the benefit of modularity/adjustability [0013] to allow the user to adjust the length as appropriate for them.
Regarding claim 2, the modified O’Keefe system discloses everything as claimed including the elongate rod, see figs. 1 and 5 of O’Keefe, but is silent with regard to the rod being formed using a rod material comprising one or more of steel, iron, aluminum, wood, and carbon fiber.
However, Raines teaches that the elongate rod 203 is made of aluminum, see para. [0066].
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 elongate rod of the modified O’Keefe system to be made of aluminum, as taught by Raines, for the purpose of providing a rigid material for the elongate rod, see para. [0066] of Raines, to increase the durability of the elongate rod. Further, the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). See also In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)
Regarding claim 3, the modified O’Keefe system discloses that a material of the plurality of treads comprises rubber (the plurality of treads are made of foamed rubber, see para. [0042] of Raines).
Regarding claim 4, the modified O’Keefe system discloses that the plurality of treads are configured to be removed from the plurality of receiving units (each of the plurality of treads 323d include a complementary shape for being seated in a depression 335 of a receiving unit 321, see fig. 16B and paras. [0039] and [0043] of Raines, such that each of the plurality of reads 323d is able to be removed from each respective receiving unit 321).
Regarding claim 5, the modified O’Keefe system discloses that a shape of the plurality of treads comprises a spiky design (as the definition of spikey is generally understood to mean “having many spikes or sharp projecting points.”, each tread 323d of the plurality of threads 323d includes the plurality of knobbly bits, shown as the ridges, see para. [0041] of Raines, such that the plurality of knobbly bits form a spikey design).
Regarding claim 6, the modified O’Keefe system discloses that the plurality of treads remain in a fixed position (each of the plurality of treads 323d include a complementary shape for being seated in a depression 335 of a receiving unit 321, see fig. 16B and paras. [0039] and [0043] of Raines, so that the plurality of treads 323d is restricted from moving along the depression 335, see fig. 16B of Raines, such that each of the plurality of reads 323d is in a fixed position with its respective receiving unit, see fig. 16B of Raines; the modified O’Keefe system discloses all the structure and function of the elongate member, plurality of receiving units and plurality of treads such that the fixed position, of the plurality of treads in the receiving units, is able to provide the user with greater pressure and control when the therapy device is pressed against the body part of the user).
Regarding claim 7, the modified O’Keefe system discloses that the plurality of treads are configured to rotate for massaging the body part (the plurality of receiving units 321, including the plurality of threads 323d, are rotated along the elongate member, see fig. 1 and para. [0028] of O’Keefe and para. [0039] of Raines, such that the plurality of treads 323d are rotated when the plurality of receiving units 321 are rotated).
Regarding claim 21, the modified O’Keefe system discloses wherein the one or more holding means (O’Keefe: 20) includes at least one of: a hand-hold (see figure 2 of O’Keefe), and a foot hold.
Regarding claim 22, the modified O’Keefe system discloses wherein the one or more holding means (O’Keefe: 20) is placed at an interval of 200 millimeter on the strap (see figure 1 where 18 meets 20) (As set forth above in the 112b section, the claim limitation has been interpreted to only require a holding means that is on the strap (at any location).
O’Keefe is silent as to how the holding means 20 is placed on the strap as the element that connects 18 to 20 is not labeled. However, the recitation that the strap is sewn, is considered to be a product by process limitation. In product-by-process claims, "once a product appearing to be substantially identical is found and a 35 U.S.C. 102/103 rejection [is] made, the burden shifts to the applicant to show an unobvious difference." MPEP 2113. MPEP 2113 clearly states "Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process."
In this instance, the product taught by O’Keefe is the same as or makes the product claimed obvious, meeting the limitation of the claims. This rejection under 35 U.S.C. 102/103 is proper because the "patentability of a product does not depend on its method of production." In re Thorpe, 227 USPQ 964,966 (Fed. Cir.1985).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over O'Keefe, Raines, Gordon and Lewen as applied to claim 1 above, and further in view of Williamson (5,277,699) and Bountourakis (6,398,694).
Regarding claim 12, the modified O’Keefe system discloses everything as claimed including that the strap is formed with a flexible fabric material (the o-shaped fabric 18 of the strap 16/18 is formed of a polymer fabric, see para. [0025] of O’Keefe), and discloses the flexible sling of the strap, see fig. 1 of O’Keefe, but is silent with regard to the strap being formed using a flexible and durable material comprising nylon, cloth, rubber, and plastic.
However, Williamson discloses that a therapy device (defined by corrective appliance 10, see fig. 1 and the abstract) comprises a strap 20 (see fig. 1) which includes a thin layer 94 (see fig. 1) of foam rubber and nylon cloth and includes a plastic sleeve 20 on a second end of the strap 20, see lines 3-7 of col. 6.
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 sling of the modified O’Keefe strap to be made with a thin layer having foam rubber and nylon cloth and to be made with a plastic sleeve at a second end of the sling, as taught by Williamson, for the purpose of preventing the strap from injuring people and damaging furniture, see lines 3-7 of col. 6 of Williamson.
The modified O’Keefe system discloses everything as claimed including that the strap, see fig. 1 of O’Keefe, and discloses the therapy device having the second end adjacent to the handle, see fig. 1 of O’Keefe, but is silent with regard to at least one end of the strap comprising an anchor for fixing to one of the first end and the second end of the therapy device.
However, Bountourakis teaches that a therapy device (defined by main device A, see fig. 1) comprises an elongate rod (defined by main shaft 1, see fig. 6) having a receiving ring 14 at an end adjacent to a handle 15, see fig. 1; and
a strap (defined by elastic band B, see fig. 3) comprising an anchor (defined by hook 22, see fig. 3) for fixing to the end of the therapy device A (the anchor is positioned along the strap B, see fig. 3, and engages the receiving ring 14 at the end of the elongate rod 1 adjacent to the handle, see fig. 6 and lines 13-18 of col. 9).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the second end of the modified O’Keefe therapy device with the addition of a receiving ring and to have modified the strap of the modified O’Keefe system with the addition of an anchor for engaging the receiving ring, as taught by Bountourakis, for the purpose of allowing the strap to be securely fastened to the therapy device, see lines 13-18 of col. 9 of Bountourakis, when the system is put in storage.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-7, 12 and 21-22 have been considered but are not persuasive.
Applicant asserts that none of the cited references teach the strap “which in use connects to at least one of the first end and the second end of the therapy device and extends in a lateral direction away from the therapy device”. Applicant does not provide a specific argument regarding this limitation. As set forth in the rejection above, O’Keefe in figure 2 shows this arrangement.
Applicant further asserts that the prior art does not teach nor disclose “a plurality of interlocking units configured to be connected to each other to form a length of the strap, the length of the strap being adjustable by either (i) connecting additional interlocking units to the plurality of interlocking units, or (ii) disconnecting at least one interlocking unit from the plurality of interlocking units”. This argument is moot because the new ground of rejection (prior art of Lewen) does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in this argument.
Regarding claim 12, the examiner maintains that the rejection of claim 1 is proper and that the prior art discloses/teaches all the of claimed limitations.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Hall (2010/0173760), Brooks (2007/0129656), Crowe (6,878,124), Karlson (5,411,460), Newth (4,944,747), Iwahashi (4,493,315) and Charles (0,718,594) are cited to show therapy devices having a strap.
Henre (2015/0320637), Shannon (2015/0257969) and Dagan (2015/0374576) are cited to show receiving units having threads.
Yih-Jong (5,143,056) is cited to show a stand..
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUSTINE YU whose telephone number is 571-272-4835. The examiner can normally be reached M-F 9:30am-5:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kiesha Bryant can be reached on 571-272-3606. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JUSTINE R YU/Supervisory Patent Examiner, Art Unit 3785