DETAILED ACTION
This office action is in response to the amendment filed 9/02/2025. As directed by the amendment, claims 1, 5, and 9 have been amended, claims 3, 7, and 10 have been cancelled, and no claims have been newly added. Thus, claims 1-2, 4-6, 8-9, and 11 are presenting pending in this application.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 of this title, 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.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claim(s) 1, 4-5, and 8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by McDermott, Sr (D177,529), or in the alternative, under 35 U.S.C. 103 as obvious over McDermott in view of Mount (1,345,096).
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Regarding claim 1, McDermott in the annotated fig 1 above discloses a weighted massage roller (massage device discloses above is made of a material having a weight, and therefore is a weighted massage roller), wherein the roller comprises: a plurality of end rounds, wherein each of the plurality of end rounds has an end round diameter (as shown above, two end round disposed at distal ends have an end round diameter D1, and end rounds are shown in fig 2 to have a circular cross-sectional area); and wherein each of the plurality of end rounds further includes a flat surface located on one side of each of the plurality of end rounds (as shown above, each end round has a flat surface on a corresponding end surface of each of the plurality of end rounds), and as fig 2 does not disclose and surface features, each end round has a flat surface), wherein the flat surface is configured to be used to stand the weighted massage roller (as shown above, each end round has a flat surface and therefore has a shape that is capable of allowing the flat surface be used to stand the weighted massage roller), and wherein the flat surface is also configured to be used to apply a pressure to trigger points on the area to be massaged (as shown above, each end round has a flat surface and therefore has a shape that is capable of being used to apply a pressure to trigger points on the area to be massaged); a plurality of middle rounds, wherein one of the plurality of middle rounds is located adjacent to a first one of the plurality of end rounds and a second one of the plurality of middle rounds is located adjacent to a second one of the plurality of end rounds (as shown above rightmost middle round is shown to be adjacent to the right end round and leftmost middle round is shown to be adjacent to the left end round), and wherein each of the plurality of middle rounds has a middle round diameter (middle rounds each have a diameter, and largest middle rounds adjacent to center round has a diameter D3); and a center round located adjacent to another of the plurality of middle rounds (as shown above, center round is located adjacent to the proximal middle rounds having a diameter D3), wherein the center round has a center round diameter (as shown above, center round has a center round diameter D2), wherein the center round diameter is larger than the middle round diameter of each of the plurality of middle rounds (as shown above, the center round has a diameter D2 that is larger than a diameter D3 of the largest middle round) and the end round diameter of each of the end rounds is larger than the center round diameter (as shown above, the end rounds has a diameter D1 that is larger than a diameter D2 of the center round).
The segmented portions identified as the middle rounds and center round in the annotated fig 1 of McDermott are considered to be “rounds” because it is known in the art that a foot massage roller, such as McDermott, has round portions to allow a user to roll his foot against the round portions, and therefore the annotated portions of McDermott are considered to have a round cross-sectional area.
In the alternative, Mount teaches a foot massager device including a plurality of segmented portions (10) for massaging a foot of a person, wherein the plurality of segmented portions (10) are massage rollers and shown to have a circular cross-sectional area in fig 3 (lines 38-49).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the segments portions shown in McDermott to have a circular cross-sectional area as taught by Mount, as the feature of a foot massager with a circular cross-sectional area is known in the art, and it appears that the modified McDermott’s device would perform equally well to massage a user’s foot if the device had rounds with a circular cross-sectional area. See MPEP 2143(I)(A).
Regarding claim 4, modified McDermott discloses the weighted massage roller further comprises: a smooth surface located on each of the plurality of end rounds (as shown in fig 2 of McDermott, end rounds are shown to have a smooth circular surface), each of the plurality of middle rounds, and the center round (as shown in the annotated fig 1 above, each of the plurality of middle rounds, and the center round appear to have a smooth surface).
In the alternative, although modified McDermott does not explicitly disclose that the each of the plurality of middle rounds and the center round have a smooth surface, in the alternative, Mount teaches a foot massager including a plurality of rounds (10) (rollers), wherein the rounds have a smooth surface (rollers are rounded substantially to a half circle in cross section) (lines 54-46).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the device of modified McDermott so that the plurality of middle rounds and the center round have a smooth surface as taught by Mount, as the feature of a foot massager with a smooth surface is known in the art, and it appears that the modified McDermott’s device would perform equally well to provide a massage if the plurality of middle rounds and the center round has a smooth surface. See MPEP 2143(I)(A).
Regarding claim 5, McDermott in the annotated fig 1 above discloses a weighted massage roller (massage device discloses above is made of a material having a weight, and therefore is a weighted massage roller) whose structure provides a method of making a weighted massage roller, comprising the steps of: providing a plurality of end rounds, wherein each of the plurality of end rounds has an end round diameter (as shown above, two end round are provided at distal ends of the massage device and having an end round diameter D1, and are shown in fig 2 to have a circular cross-sectional area), and wherein each of the plurality of end rounds further includes a flat surface located on one side of each of the plurality of end rounds (as shown above, each end round has a flat surface on a corresponding end surface of each of the plurality of end rounds), and as fig 2 does not disclose and surface features, each end round has a flat surface), wherein the flat surface is configured to be used to stand the weighted massage roller (as shown above, each end round has a flat surface and therefore has a shape that is capable of allowing the flat surface be used to stand the weighted massage roller), and wherein the flat surface is also configured to be used to apply a pressure to trigger points on the area to be massaged (as shown above, each end round has a flat surface and therefore has a shape that is capable of being used to apply a pressure to trigger points on the area to be massaged); providing a plurality of middle rounds (as shown above, a plurality of middle rounds is provided to the massage device), wherein one of the plurality of middle rounds is located adjacent to a first one of the plurality of end rounds and a second one of the plurality of middle rounds is located adjacent to a second one of the plurality of end rounds (as shown above rightmost middle round is shown to be adjacent to the right end round and leftmost middle round is shown to be adjacent to the left end round), and wherein each of the plurality of middle rounds has a middle round diameter (middle rounds each have a diameter, and largest middle rounds adjacent to center round has a diameter D3); and locating a center round adjacent to another of the plurality of middle rounds (as shown above, center round is located adjacent to the proximal middle rounds), wherein the center round has a center round diameter (as shown above, center round has a center round diameter D2), wherein the center round diameter is larger than the middle round diameter of each of the plurality of middle rounds (as shown above, the center round has a diameter D2 that is larger than a diameter D3 of the largest middle round) and the end round diameter of each of the end rounds is larger than the center round diameter (as shown above, the end rounds has a diameter D1 that is larger than a diameter D2 of the center round).
The segmented portions identified as the middle rounds and center round in the annotated fig 1 of McDermott are considered to be “rounds” because it is known in the art that a foot massage roller, such as McDermott, has round portions to allow a user to roll his foot against the round portions, and therefore the annotated portions of McDermott are considered to have a round cross-sectional area.
In the alternative, Mount teaches a foot massager device including a plurality of segmented portions (10) for massaging a foot of a person, wherein the plurality of segmented portions (10) are massage rollers and shown to have a circular cross-sectional area in fig 3 (lines 38-49).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the segments portions shown in McDermott to have a circular cross-sectional area as taught by Mount, as the feature of a foot massager with a circular cross-sectional area is known in the art, and it appears that the modified McDermott’s device would perform equally well to massage a user’s foot if the device had rounds with a circular cross-sectional area. See MPEP 2143(I)(A).
Regarding claim 8, modified McDermott discloses the weighted massage roller further comprises: a smooth surface located on each of the plurality of end rounds (as shown in fig 2 of McDermott, end rounds are shown to have a smooth circular surface), each of the plurality of middle rounds, and the center round (as shown in the annotated fig 1 above, each of the plurality of middle rounds, and the center round appear to have a smooth surface).
In the alternative, although modified McDermott does not explicitly disclose that the each of the plurality of middle rounds and the center round have a smooth surface, in the alternative, Mount teaches a foot massager including a plurality of rounds (10) (rollers), wherein the rounds have a smooth surface (rollers are rounded substantially to a half circle in cross section) (lines 54-46).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the device of modified McDermott so that the plurality of middle rounds and the center round have a smooth surface as taught by Mount, as the feature of a foot massager with a smooth surface is known in the art, and it appears that the modified McDermott’s device would perform equally well to provide a massage if the plurality of middle rounds and the center round has a smooth surface. See MPEP 2143(I)(A).
Claims 2 and 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDermott and Mount as applied to claims 1 and 5, and further in view of Stein (2005/0015032).
Regarding claims 2 and 6, modified McDermott discloses a weighted massage roller.
Modified McDermott does not disclose the weighted massage roller is further comprised of stainless steel.
However, Stein teaches a massage device including a massage device (1) (massage ball) (para [0041]), wherein the massage device (1) is made of a material with size and weight characteristics to allow the massage device (1) to be heated and cooled without a loss of integrity and to provide a lack of deformity in the massage device (1) for an effective massage) (para [0046]), wherein the material can be stainless steel (para [0047]).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the device of modified McDermott so that the device is made of stainless steel as taught by Stein in order to allow the device to be made of a material so that it can be easily heated and cooled and will that heat or cold for a time sufficient to administer a massage (Stein, para [0011]).
Claims 9 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDermott in view of Mount and Nicholson (2011/0313333).
Regarding claim 9, McDermott in the annotated fig 1 above discloses a weighted massage roller (massage device discloses above is made of a material having a weight, and therefore is a weighted massage roller) whose structure provides a method of using a weighted massage roller, comprising the steps of: providing a plurality of end rounds, wherein each of the plurality of end rounds has an end round diameter (as shown above, two end round are provided at distal ends of the massage device and having an end round diameter D1, and as shown in fig 2, is shown to have a circular cross-sectional area), and wherein each of the plurality of end rounds further includes a flat surface located on one side of each of the plurality of end rounds (as shown above, each end round has a flat surface on a corresponding end surface of each of the plurality of end rounds), and as fig 2 does not disclose and surface features, each end round has a flat surface), wherein the flat surface is configured to be used to stand the weighted massage roller (as shown above, each end round has a flat surface and therefore has a shape that is capable of allowing the flat surface be used to stand the weighted massage roller), and wherein the flat surface is also configured to be used to apply a pressure to trigger points on the area to be massaged (as shown above, each end round has a flat surface and therefore has a shape that is capable of being used to apply a pressure to trigger points on the area to be massaged); providing a plurality of middle rounds (as shown above, a plurality of middle rounds is provided to the massage device), wherein one of the plurality of middle rounds is located adjacent to a first one of the plurality of end rounds and a second one of the plurality of middle rounds is located adjacent to a second one of the plurality of end rounds (as shown above rightmost middle round is shown to be adjacent to the right end round and leftmost middle round is shown to be adjacent to the left end round), and wherein each of the plurality of middle rounds has a middle round diameter (middle rounds each have a diameter, and largest middle rounds adjacent to center round has a diameter D3); and locating a center round adjacent to another of the plurality of middle rounds (as shown above, center round is located adjacent to the proximal middle rounds), wherein the center round has a center round diameter (as shown above, center round has a center round diameter D2), wherein the center round diameter is larger than the middle round diameter of each of the plurality of middle rounds (as shown above, the center round has a diameter D2 that is larger than a diameter D3 of the largest middle round) and the end round diameter of each of the end rounds is larger than the center round diameter (as shown above, the end rounds has a diameter D1 that is larger than a diameter D2 of the center round).
The segmented portions identified as the middle rounds and center round in the annotated fig 1 of McDermott are considered to be “rounds” because it is known in the art that a foot massage roller, such as McDermott, has round portions to allow a user to roll his foot against the round portions, and therefore the annotated portions of McDermott are considered to have a round cross-sectional area.
In the alternative, Mount teaches a foot massager device including a plurality of segmented portions (10) for massaging a foot of a person, wherein the plurality of segmented portions (10) are massage rollers and shown to have a circular cross-sectional area in fig 3 (lines 38-49).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the method of McDermott so that the segmented portions shown in McDermott to have a circular cross-sectional area as taught by Mount, as the feature of a foot massager with a circular cross-sectional area is known in the art, and it appears that the modified McDermott’s device would perform equally well to provide a massage if the device had rounds with a circular cross-sectional area. See MPEP 2143(I)(A).
The now-modified McDermott’s method does not disclose the method steps of placing the weighted massage roller on an area of a user that is to be massaged, wherein each of the plurality of end rounds, each of the plurality of middle rounds and the center round contacts the area to be massaged and the plurality of middle rounds create a concave area that provides a lesser pressure on the area to be massaged; and moving the weighted massage roller back and forth over the area to be massaged.
However, Nicholson teaches a massage roller device including a center round (30c) (center roller) (para [0055]), a plurality of middle rounds (30b) (rollers), and a plurality of end rounds (30a) (rollers) (para [0052]) whose ordinary use discloses a method comprising placing the massage roller device on an area of a user that is to be massaged, wherein each of the plurality of end rounds, each of the plurality of middle rounds and the center round contacts the area to be massaged (positioning the rollers on a body area to be treated, and applying pressure to the at least one handle while moving the rollers over the body area to be treated, (para [0007]), and because the rollers (30a-e) can have a diameter as small as 0.5 inches (para [0054]), the rollers (30a-e) can have a size such that each of the rollers contact an area to be massaged) (para [0054]), and the plurality of middle rounds (30b) create a concave area that provides a lesser pressure on the area to be massaged (as shown in fig 3, middle rollers (30b) are smaller than center roller (30c) to form a concave area, and as center roller (30c) is larger than the other rollers such that the user can concentrate pressure on a centralized area, and therefore a lesser pressure is applied by the middle rollers (30b)) (para [0055]); and moving the massage roller back and forth over the area to be massaged (moving the rollers over the body part to be treated) (para [0007]).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the method of modified McDermott by placing the weighted massage roller on an area of a user that is to be massaged, wherein each of the plurality of end rounds, each of the plurality of middle rounds and the center round contacts the area to be massaged and the plurality of middle rounds create a concave area that provides a lesser pressure on the area to be massaged; and moving the weighted massage roller back and forth over the area to be massaged as taught by Nicholson in order to allow a user to use the massage device dig into muscle tissue to help lengthen the muscle fibers, remove scar tissue, alleviate trigger points, increase blood flow to the area, and increase muscle flexibility (Nicholson, para [0007]).
Regarding claim 11, McDermott discloses providing a smooth surface located on each of the plurality of end rounds, each of the plurality of middle rounds, and the center round (as shown above, each of the plurality of end rounds, each of the plurality of middle rounds, and the center round are shown to have a smooth surface) in order to allow the weighted massage roller can be placed directly on the skin of the user (smooth surfaces shown above are capable of being placed directly on the skin of the user) and allows the weighted massage roller to be heated or cooled in order to provide a desired therapeutic effect during the usage of the weighted massage roller (massage roller shown above is capable of being heated or cooled if the device is placed in a cold environment such as a refrigerator or freezer or a warm environment such as an oven, which would allow the massage roller to provide a warm or cold therapeutic effect to a user).
Response to Arguments
Applicant's arguments filed 9/2/2025 have been fully considered but they are not persuasive.
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Applicant argues on page 7, third full paragraph-page 9, first paragraph of applicant’s remarks, that McDermott does not disclose each of the plurality of end rounds further includes a flat surface located on one side of each of the plurality of end rounds, wherein the flat surface is configured to be used to stand the weighted massage roller, and wherein the flat surface is also configured to be used to apply a pressure to trigger points on the area to be massaged, as McDermott is speculating as to what McDermott discloses without providing prima facie evidence that McDermott teaches. However, figure 1 of McDermott is used as evidence to show that McDermott’s massage roller has flat end rounds, because, as shown the annotated fig 1 above, the identified end rollers are shown to have flat surfaces. Furthermore, figure 2 of McDermott, depicting an end view of the massage roller, also shows that the end surfaces of the rounds are flat, as there is no shading or hatching to indicate that the surface has features such as protrusions or depressions. Because figs 1-2 of McDermott disclose the flat end rounds, improper hindsight is not used because the feature of the flat end rounds is found in the primary reference McDermott therefore an anticipation analysis, rather than an obviousness analysis, is used to teach the limitation. Therefore, the rejection is maintained. Although not relied upon in the current rejection, Evans (2019/0046392) teaches a massage device including a flat surface which allows a user to use an opposite end to massage a user, and Parker, Jr (5,044,626) teaches a massage roller device including a flat end round portion that is used to massage a user.
Applicant argues on page 9, first full paragraph-third full paragraph of applicant’s remarks, that independent claims 5 and 9 and the dependent claims are allowable for the same reasons presented with respect to claim 1. However, as discussed above, because McDermott teaches the limitation of the end rounds having flat sides, the rejection is maintained.
Conclusion
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 DOUGLAS YOUNG SUL whose telephone number is (571)270-5260. The examiner can normally be reached on Monday-Friday 8:30 am-5 pm EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Justine Yu can be reached on 571-272-48354835. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DOUGLAS Y SUL/Examiner, Art Unit 3785
/COLIN W STUART/Primary Examiner, Art Unit 3785