DETAILED ACTION
This office action is in response to the claims filed 9/3/2025. As directed by the amendment, claim 4 has been amended, claims 7-8 and 19 have been cancelled, and no claims have been newly added. Thus, claims 1-6 and 9-15 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 § 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.
Claims 1, 5, and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDaniel (2023/0329959) in view of von Soiron et al (4,159,020).
Regarding claim 1, McDaniel discloses a neck treatment system for a user (massage device is configured to target specific areas of the body (abstract), and therefore is operable to massage a neck of a user) comprising: an elongated strap (112) (strap) (para [0045]) at least 8 inches long (pouch (100) can have a length of 8 to 10 inches (para [0042]), and as the strap (112) is shown to be longer in length than pouch (100), the strap is considered to have a length at least 8 inches long and furthermore, fig 6 shows a user massaging a foot, and it is considered that the strap (112) would be required to be at least 8 inches long to allow a user to massage a foot as shown in fig 6) having opposed end portions (end portions formed at slidable fastener (138)) (para [0045]); at least one handle (130, 132) on each end portion (139) for gripping by the user (para [0045]); a hollow sleeve (100) (pouch has loop portions (140) through which the strap (112) extends and therefore is sleeved onto the strap (112)) with the handles (130, 132) not being covered by the sleeve (100) (as shown in fig 1, strap (112) is of a length such that the sleeve (100) does not cover the handles (130, 132)), the sleeve (100) having an outer surface (outer surface of the pouch).
McDaniel does not disclose two projections projecting from the outer surface of the sleeve, the projections being laterally spaced apart from each other by about .2 to about 2 inches and projecting from the outer surface by about .5 to about 1.5 inches.
However, von Soiron in figs 1-5 teaches a massage system for a user comprising: a. an elongated strap (2) (belt member) having opposed end portions (opposed end portions of belt member (2)) (col 2, ln 38-41); a hollow sleeve (3) (carrier member (3) includes a hollow portion comprising slots (14) through which strap (10) is guided and therefore the carrier member (3) is sleeved on the strap (10)) (col 5, ln 48-55), the sleeve (3) having an outer surface (upper surface of carrier (3)); and d. two projections (4, 5) (supporting elements) projecting from the outer surface of the sleeve (2) (col 2, ln 42-45), the projections (4, 5) being laterally spaced apart from each other by about .2 to about 2 inches (projections (4, 5) can be provided at a distance of 5-7 cm apart (1.96 in-2.75 in), which overlaps with the claimed range) (col 5, ln 27-32) and projecting from the outer surface by about .5 to about 1.5 inches (support elements (4, 5 of von Soiron) can have a depth of 20 mm (0.79 in) (col 5, ln 22-26).
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 McDaniel by substituting the pouch sleeve member with a sleeve member comprising a carrier portion having slots through which strap is guided and having two projections projecting from the outer surface of the sleeve, the projections being laterally spaced apart from each other by about .2 to about 2 inches and projecting from the outer surface by about .5 to about 1.5 inches as taught by von Soiron in order to provide a sleeve that is suitable for massaging a back of a user to provide an optimum massage for loosening and relaxing and reducing pain (von Soiron, col 2, ln 57-64).
Regarding claim 5, the modified McDaniel’s reference discloses the projections (4, 5 of von Soiron) are removable from the sleeve (3 of von Soiron) (support elements (4, 5 of von Soiron) can include a mechanical locking mechanism to releasably fix the support elements (4, 5 of von Soiron) to the sleeve (3 of von Soiron) (col 3, ln 61-64).
Regarding claim 13, the modified McDaniel’s reference discloses the projections (4, 5 of von Soiron) project from the outer surface of the carrier (3 of von Soiron) by about 0.5 to about 1.25 inches (support elements (4, 5 of von Soiron) can have a depth of 20 mm (0.79 in) (col 5, ln 22-26).
Claim 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDaniel and von Soiron et al as applied to claim 1 above, and further in view of Bowling (2019/0070066).
Regarding claim 2, modified McDaniel discloses a plurality of projections.
Modified McDaniel does not disclose that the projections are hemispherical.
However, Bowling teaches a massage device including a strap (100) (flexible band, and wherein a plurality of projections having a hemispherical shape (200) (hemispherical components) are attached to the strap (100) (para [0031]).
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 McDaniel so that the projections have a hemispherical shape as taught by Bowling so that the projections have a shape capable of providing general compression force and trigger point compression force while simultaneously providing a user with muscle tension and resistance in movement exercises (Bowling, para [0012]).
Claim 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDaniel and von Soiron et al as applied to claim 1 above, and further in view of Wisniewski et al (2019/0297966).
Regarding claim 3, modified McDaniel discloses the sleeve (3 of von Soiron) comprises carrier portions (6, 7 of von Soiron) that is made of torsionally elastic, inherently resilient material (von Soiron, col 4, ln 50-56).
Modified McDaniel does not disclose the sleeve is made of silicone.
However, Wisniewski in figs 28-29 teaches a device to apply pressure to a user, including a strap (340) (collar) and a sleeve (345) (pressure pad module) (as shown in fig 28, pressure pad module (345) includes a protuberance (346) and a U-shaped sleeve configured to be positioned along the strap (340)), and wherein the sleeve (345) is made of silicone (soft, silicon type material) (para [0151]).
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 McDaniel so that the sleeve is made of silicone as taught by Wisniewski, as silicone is known in the art to be used to form a sleeve having a protrusion for applying pressure to a user, and it appears that the device of modified McDaniel would perform equally well with a material such as silicone as a torsionally elastic, inherently resilient material to support a protrusion to apply pressure to a patient. See MPEP 2143(I)(A).
Claim 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDaniel and von Soiron et al, or in the alternative, is/are rejected under 35 U.S.C. 103 as being unpatentable over McDaniel and von Soiron et al as applied to claim 1 above, and further in view of Reynolds et al (2012/0059405).
Regarding claim 4, The modified McDaniel’s reference discloses the sleeve (3 of von Soiron) and projections (4, 5 of von Soiron) are of unitary monocoque construction (projections (4, 5 of von Soiron) can be fixed to the sleeve (3 of von Soiron) by an adhesive material, and therefore can form a unitary component, which is a form that is a unitary monocoque construction) (von Soiron, col 5, ln 37-40). The limitation “by injection molding the sleeve and projections together” is considered to be a product by process claim. Product by process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. See MPEP 2113(I). In this case, the sleeve and projections of modified McDaniel which are joined together by an adhesive are considered to be substantially identical to a sleeve and projections that are formed together from an injection molding process because both would be joined together to formed as an integral unit.
In the alternative, although the process by which the sleeve and projections are joined differ, Reynolds in figs 33-37 teaches a massage device including a sleeve (160) (attachment ring) and a projection (104) (rounded tip) (para [0076]), wherein the sleeve (160) and projection (104) are shown to be formed of the same piece of material and therefore is of a unitary construction, with the sleeve (160) having a monocoque construction by including slots (166) through which the straps are threaded (para [0076]), and wherein the attachment can be made of a rubber material formed by an injection molding process (para [0086]).
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 McDaniel so that the sleeve and projection are formed of a single piece of material in a unitary monocoque construction and formed using an injection molding process as taught by Reynolds, as the use of a sleeve and projection formed of a single piece of material and formed using an injection molding process is known in the art, and it appears that the modified McDaniel’s device would perform equally well to join the sleeve and projections if the sleeve and projections were formed of a single piece of material formed in an injection molding process. See MPEP 2143(I)(A).
Claims 6 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDaniel and von Soiron et al as applied to claim 1 above, and further in view of Carpenter (9,968,474).
Regarding claim 6, McDaniel discloses a handle on each end portion.
Modified McDaniel does not disclose two handles on each end portion.
However, Carpenter in fig 1 teaches a stretching device including a strap (12) (col 4, ln 34-37), wherein a center portion of the strap (12) includes a flexible tube (16) (col 4, ln 59-63), and as shown in fig 6, the flexible tube (16) is used to apply pressure to a neck of a patient (col 6, ln 24-32), and wherein the strap (12) is shown in fig 1 to have two end portions, and wherein three handles (24a, 24b, 24c) (loops) are disposed on each end portion (col 5, ln 57-60).
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 McDaniel by providing at least two handles on each end portion as taught by Carpenter in order provide multiple handles to accommodate persons of differing heights and arm lengths (Carpenter, col 5, ln 57-60).
Regarding claim 15, modified McDaniel discloses the strap has a longitudinal axis and end portions.
Modified McDaniel does not disclose each end portion of the strap has two handles spaced apart longitudinally from each other.
However, Carpenter in fig 1 teaches a stretching device including a strap (12) (col 4, ln 34-37), wherein a center portion of the strap (12) includes a flexible tube (16) (col 4, ln 59-63), and as shown in fig 6, the flexible tube (16) is used to apply pressure to a neck of a patient (col 6, ln 24-32), and wherein the strap (12) is shown in fig 1 to have two end portions, and wherein three handles (24a, 24b, 24c) (loops) are disposed on each end portion and shown in fig 6 to be spaced apart longitudinally from each other (col 5, ln 57-60).
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 McDaniel by providing each end portion with at least two handles spaced apart longitudinally from each other on each end portion as taught by Carpenter in order to provide multiple handles to accommodate persons of differing heights and arm lengths (Carpenter, col 5, ln 57-60).
Claim 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDaniel and von Soiron et al as applied to claim 1 above, and further in view of Oller, Jr (2014/0276280).
Regarding claim 11, modified McDaniel discloses a device whose ordinary use discloses a method of treatment comprising the steps of: selecting the system of claim 1 (as discussed above, modified McDaniel discloses the limitations of claim 1); placing the system on a user’s body part with each projection projecting onto the user's neck (sleeve containing projections (corresponding to the pouch containing a massage ball) is positioned on a specific part of the body (para [0019]), gripping the handles (placing the user’s limbs into the straps) (para [0018]); and pulling on the handles for pressing the projections onto the specific part of the body (user applies pressure to the target area by pulling on the straps) (para [0019]).
Modified McDaniel does not disclose the body part corresponding to a target area of the user’s body is a neck of a user.
However, Oller in figs 1-2 teaches a massage device including a strap (14) a pair of projections (21a, b) (resilient bodies) contained within a pouch (11) (para [0013]), wherein the device can be used to apply pressure to a target area corresponding to a neck of a user (para [0021]).
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 McDaniel so that the body part massaged is a neck of a patient as taught by Oller in order to allow the device to target surrounding muscle and soft tissue area in a neck of the user (Oller, para [0021]).
Claim 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDaniel and von Soiron et al as applied to claim 1 above, and further in view of Tielve (2008/0200853).
Regarding claim 12, modified McDaniel discloses a plurality of projections.
Modified McDaniel does not disclose the projections are spaced apart from each other by about .25 to about 1.75 inches.
However, Tielve teaches a massage device including a pair of projections (38a, b) (protuberances), wherein the projections (38a, b) are spaced apart from each other by about 0.25 to about 1.75 inches (projections (38a, b) are spaced from one another by a longitudinal distance of approximately 1 to 5 cm (0.39 to 1.96 inches, which overlaps with the claimed range)).
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 McDaniel so that the projections are spaced apart from each other by about .25 to about 1.75 inches as taught by Tielve to permit placement of the contact surfaces of the projections against soft-tissues on immediately adjacent sides of the spine of a user (Tielve, para [0053])
Claim 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDaniel in view of von Soiron et al and Bowling.
Regarding claim 9, McDaniel discloses a neck treatment system for a user (massage device is configured to target specific areas of the body (abstract), and therefore is operable to massage a neck of a user) comprising: an elongated strap (112) (strap) (para [0045]) at least 8 inches long (pouch (100) can have a length of 8 to 10 inches (para [0042]), and as the strap (112) is shown to be longer in length than pouch (100), the strap is considered to have a length at least 8 inches long and furthermore, fig 6 shows a user massaging a foot, and it is considered that the strap (112) would be required to be at least 8 inches long to allow a user to massage a foot as shown in fig 6) having opposed end portions (end portions formed at slidable fastener (138)) (para [0045]) with at least one handle (130, 132) on each end portion (139) for gripping by the user (para [0045]); a hollow sleeve (100) (pouch has loop portions (140) through which the strap (112) extends and therefore is sleeved onto the strap (112)) through which the strap (112) extends with the handles (130, 132) not being covered by the sleeve (100) (as shown in fig 1, strap (112) is of a length such that the sleeve (100) does not cover the handles (130, 132)), the sleeve (100) having an outer surface (outer surface of the pouch).
McDaniel does not disclose the sleeve having two projections projecting from the outer surface and sized for pressing on the user's spinal processes.
However, von Soiron in figs 1-5 teaches a massage system for a user comprising: an elongated strap (2) (belt member) having opposed end portions (opposed end portions of belt member (2)) (col 2, ln 38-41); a hollow sleeve (3) (carrier member (3) includes a hollow portion comprising slots (14) through which strap (10) is guided and therefore the carrier member (3) is sleeved on the strap (10)) (col 5, ln 48-55), the sleeve (3) having an outer surface (upper surface of carrier (3)); and two projections (4, 5) (supporting elements) projecting from the outer surface of the sleeve (2) (col 2, ln 42-45), and having a distance between the support elements (4, 5) sized for pressing on the user's spinal processes (for massaging the sides of the vertebral column) (col 3, ln 23-34).
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 McDaniel by substituting the pouch sleeve member with a sleeve member comprising a carrier portion having slots through which strap is guided and having two projections projecting from the outer surface of the sleeve, the projections being laterally spaced apart from each other by about .2 to about 2 inches as taught by von Soiron in order to provide a sleeve that is suitable for massaging a back of a user to provide an optimum massage for loosening and relaxing and reducing pain (von Soiron, col 2, ln 57-64).
The now-modified McDaniel’s device discloses that the projections (4, 5 of von Soiron) can be removed from the sleeve (3 of von Soiron) by a mechanical locking mechanism (von Soiron, col 3, ln 58-68).
Modified McDaniel does not disclose the mechanical locking mechanism including openings through the sleeve each projection being placeable for projecting through one of the openings.
However, Bowling in figs 1-10 teaches a massage device including a strap (100) (flexible band) and a plurality of projections (200) (hemispherical components) including a bolt receiver (600) and a bolt (400) (fig [0033]), and as fig 4 shows the bolt (400) extending through the strap (100) to connect to bolt receiver (600), the strap includes a hole to allow the bolt to extend therethrough as shown in fig 4.
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 McDaniel by substituting the mechanical locking mechanism for attaching the projections to the sleeve with a mechanical locking mechanism wherein the projections include a bolt receiver and a bolt, and wherein the sleeve includes holes to allow the bolt to extend therethrough, and the bolt of the projection projecting through the opening as taught by Bowling, as it would be simple substitution of one known mechanical locking mechanism for securing a projection to an elongated portion, and it appears that the modified McDaniel’s sleeve would work equally well to secure the projections to sleeve using a mechanical locking mechanism including a bolt receiver and a bolt, and wherein the sleeve includes holes to allow the bolt to extend therethrough, and the bolt of the projection projecting through the opening. See MPEP 2141(I)(B). The now-modified McDaniel’s device discloses the openings laterally spaced apart from each other by about .2 to about 2 inches, as von Soiron discloses that the projections are laterally spaced apart from each other by about .2 to about 2 inches (apex of projections (4, 5) can be provided at a distance of 5-7 cm apart (1.96 in-2.75 in), which overlaps with the claimed range) (col 5, ln 27-32), and as shown in fig 4 of Bowling, the apex of the projection (200) is in the middle of projection (200) at the same location where the bolt (400) extends to the bolt receiving structure (corresponding to the hole in the sleeve), and therefore, the openings would also be provided at a distance of (1.96 in-2.75 in), and in the case where the ranges overlap, a prima facie case of obviousness exists. See MPEP 2144.05(I).
The now-modified McDaniel’s device does not disclose that the projections are hemispherical.
However, Bowling teaches a massage device including a strap (100) (flexible band, and wherein a plurality of projections having a hemispherical shape (200) (hemispherical components) are attached to the strap (100) (para [0031]).
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 McDaniel so that the projections have a hemispherical shape as taught by Bowling so that the projections have a shape capable of providing general compression force and trigger point compression force while simultaneously providing a user with muscle tension and resistance in movement exercises (Bowling, para [0012]).
Claim 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDaniel, von Soiron et al, and Bowling as applied to claim 9 above, and further in view of Cooper (2022/0313536).
Regarding claim 10, modified McDaniel discloses the strap, sleeve, and projections.
Modified McDaniel does not disclose packaging containing the strap, sleeve, and projections.
However, Cooper in fig 6 teaches a kit for a massage device, wherein the kit includes a massage device (630) and accessories for the massage device (620, 650, 660) (massage heads, covers, projections), and wherein the kit (600) includes packaging (610) (a suitable container) containing the massage device (630) and accessories for the massage device (620, 650, 660) (para [0033]).
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 kit of modified McDaniel by providing packaging containing the strap, sleeve, and projections as taught by Cooper in order to provide a suitable container for the kit for retail display or for shipping (Cooper, para [0033]).
Claim 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDaniel in view of von Soiron et al, Wisniewski et al, Tielve, Bowling, and Tambakis (2014/0155794).
Regarding claim 14, McDaniel discloses a neck treatment system for a user (massage device is configured to target specific areas of the body (abstract), and therefore is operable to massage a neck of a user) comprising: an elongated strap (112) (strap) (para [0045]) at least 8 inches long (pouch (100) can have a length of 8 to 10 inches (para [0042]), and as the strap (112) is shown to be longer in length than pouch (100), the strap is considered to have a length at least 8 inches long and furthermore, fig 6 shows a user massaging a foot, and it is considered that the strap (112) would be required to be at least 8 inches long to allow a user to massage a foot as shown in fig 6) having opposed end portions (end portions formed at slidable fastener (138)) (para [0045]); b. at least one handle (130, 132) on each end portion (139) for gripping by the user (para [0045]); a hollow sleeve (100) (pouch has loop portions (140) through which the strap (112) extends and therefore is sleeved onto the strap (112)) through which the strap (112) extends and therefore is sleeved onto the strap (112)) through which the strap (112) extends with the handles (130, 132) not being covered by the sleeve (100) (as shown in fig 1, strap (112) is of a length such that the sleeve (100) does not cover the handles (130, 132)), the sleeve (100) having an outer surface (outer surface of the pouch).
McDaniel does not disclose the sleeve having an outer surface and a wall, and two solid projections projecting from the outer surface of the sleeves and sized for pressing on or proximate to the user's spinous processes, and projecting from the outer surface by about .5 to about 1.5 inches.
However, von Soiron in figs 1-5 teaches a massage system for a user comprising: an elongated strap (2) (belt member) having opposed end portions (opposed end portions of belt member (2)) (col 2, ln 38-41); a hollow sleeve (3) (carrier member (3) includes a hollow portion comprising slots (14) through which strap (10) is guided and therefore the carrier member (3) is sleeved on the strap (10)) (col 5, ln 48-55), the sleeve (3) having an outer surface (upper surface of carrier (3)) and a wall (carrier (3) forms a flat wall portion); and two solid projections (4, 5) (supporting elements) (as shown in fig 1, projections (4, 5) are shown to be solid) projecting from the outer surface of the sleeve (2) (col 2, ln 42-45), sized for pressing on the user's spinal processes (for massaging the sides of the vertebral column) (col 3, ln 23-34) and projecting from the outer surface by about .5 to about 1.5 inches (support elements (4, 5 of von Soiron) can have a depth of 20 mm (0.79 in) (col 5, ln 22-26).
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 McDaniel by substituting the pouch sleeve member with a sleeve member comprising a carrier portion having slots through which strap is guided and having two solid projections projecting from the outer surface of the sleeve sized for pressing on or proximate to the user's spinous processes, and projecting from the outer surface by about .5 to about 1.5 inches as taught by von Soiron in order to provide a sleeve that is suitable for massaging a back of a user to provide an optimum massage for loosening and relaxing and reducing pain (von Soiron, col 2, ln 57-64).
The now-modified McDaniel’s device discloses the sleeve (3 of von Soiron) having a wall that having a thickness in the range of about 0.5 to 1.5 mm (0.019 to 0.059 inches) (von Soiron, col 5, ln 54-55). Although this range does not overlap with the claimed range of the wall being about 1/16 to about 2/16 inches (0.0625 to 0.125 inches) thick, a prima case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close, as the disclosed thickness of about 0.059 inches in von Soiron is so close to the claimed lower range of about 0.0625 inches that prima facie one of ordinary skill in the art would expect them to have the same properties absent any showing of unexpected results or criticality. See MPEP 2144.05(I).
The now-modified McDaniel’s device does not disclose the hollow sleeve is made of silicone.
However, Wisniewski in figs 28-29 teaches a device to apply pressure to a user, including a strap (340) (collar) and a sleeve (345) (pressure pad module) (as shown in fig 28, pressure pad module (345) includes a protuberance (346) and a U-shaped sleeve configured to be positioned along the strap (340)), and wherein the sleeve (345) is made of silicone (soft, silicon type material) (para [0151]).
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 McDaniel so that the sleeve is made of silicone as taught by Wisniewski, as silicone is known in the art to be used to form a sleeve having a protrusion for applying pressure to a user, and it appears that the device of modified McDaniel would perform equally well with a material such as silicone as a torsionally elastic, inherently resilient material to support a protrusion to apply pressure to a patient. See MPEP 2143(I)(A).
The now-modified McDaniel’s device does not disclose the projections are spaced apart from each other by about .25 to about 1.75 inches.
However, Tielve teaches a massage device including a pair of projections (38a, b) (protuberances), wherein the projections (38a, b) are spaced apart from each other by about 0.25 to about 1.75 inches (projections (38a, b) are spaced from one another by a longitudinal distance of approximately 1 to 5 cm (0.39 to 1.96 inches, which overlaps with the claimed range)).
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 McDaniel so that the projections are spaced apart from each other by about .25 to about 1.75 inches as taught by Tielve to permit placement of the contact surfaces of the projections against soft-tissues on immediately adjacent sides of the spine of a user (Tielve, para [0053])
The now-modified McDaniel’s device does not disclose the two solid projections are hemispherical.
However, Bowling teaches a massage device including a strap (100) (flexible band, and wherein a plurality of projections having a hemispherical shape (200) (hemispherical components) are attached to the strap (100) (para [0031]).
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 McDaniel so that the projections have a hemispherical shape as taught by Bowling so that the projections have a shape capable of providing general compression force and trigger point compression force while simultaneously providing a user with muscle tension and resistance in movement exercises (Bowling, para [0012]).
The now-modified McDaniel’s device discloses the projections may be made of an elastic material (von Soiron, col 3, ln 52-57).
Modified McDaniel does not disclose the projections are made of silicone.
However, Tambakis teaches a massage device including a massage projection (220) (para [0064), and wherein the massage elements can be made of silicone (para [0037]).
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 McDaniel so that the projections are made of silicone, as the use of an elastic material such as silicone to be used in a massage projection is known in the art, and it appears that the device of modified McDaniel would perform equally well to provide a massage if the projections were made of silicone. See MPEP 2143(I)(A).
Response to Arguments
Applicant's arguments filed 9/3/2025 have been fully considered but they are not persuasive.
Applicant argues on page 5, second full paragraph of applicant’s remarks, that it is not possible to modify McDaniel to have two projections spaced apart by 0.2 to 2 inches because there is no suggestion in McDaniel to have two mobility balls, and that it would take hindsight to replace a mobility ball with two non-mobile projections. However, McDaniel discloses that more than one massage implement can be used with the invention (McDaniel, para [0041]). Furthermore, the proposed modification of McDaniel’s device by substituting the pouch sleeve member with von Soiron’s sleeve member is not considered to be hindsight, as von Soiron teaches the benefit of its sleeve is that it is suitable for massaging a back of a user to provide an optimum massage for loosening and relaxing and reducing pain (von Soiron, col 2, ln 57-64). Therefore, the rejection is maintained.
Applicant argues on page 5, third full paragraph of applicant’s remarks, that von Soiron is not analogous art because it is directed to a belt and would not be pertinent to a neck treatment system. In response to applicant's argument that von Soiron is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, von Soiron is considered to be analogous art because McDaniel, von Soiron, and applicant’s invention are all in the same field of endeavor of massage devices. Furthermore, it is considered to be relevant to McDaniel’s device, because McDaniel discloses that the device can be used to massage a user’s back (McDaniel, para [0051]), and von Soiron teaches a massage configuration for massaging a back of a user (von Soiron, col 2, ln 57-64). Therefore, the rejection is maintained.
Applicant argues on page 5, fourth full paragraph of applicant’s remarks, that a monocoque configuration is taught by von Soiron using adhesive and not by an injection molding process to provide a unitary structure. However, the limitation “by injection molding the sleeve and projections together” is considered to be a product by process claim, which is not limited to the manipulations of the recited steps, only the structure implied by the steps. See MPEP 2113(I). In this case, the sleeve and projections of modified McDaniel which are joined together by an adhesive are considered to be substantially identical to a sleeve and projections that are formed together from an injection molding process because both would be joined together to formed as an integral unit. In the alternative, Reynolds in figs 33-37 teaches a massage device including a sleeve (160) (attachment ring) and a projection (104) (rounded tip) (para [0076]), wherein the sleeve (160) and projection (104) are shown to be formed of the same piece of material and therefore is of a unitary construction, with the sleeve (160) having a monocoque construction by including slots (166) through which the straps are threaded (para [0076]), and wherein the attachment can be made of a rubber material formed by an injection molding process (para [0086]), and therefore, it would have been obvious to the skilled artisan, upon seeing Reynold’s disclosure, to modify the device of modified McDaniel so that the sleeve and projection are formed of a single piece of material in a unitary monocoque construction and formed using an injection molding process, as the use of a sleeve and projection formed of a single piece of material and formed using an injection molding process is known in the art, and it appears that the modified McDaniel’s device would perform equally well to join the sleeve and projections if the sleeve and projections were formed of a single piece of material formed in an injection molding process. See MPEP 2143(I)(A). Therefore, the rejection is maintained.
Applicant argues on page 6, first full paragraph of applicant’s remarks, that Bowling does not teach projections extending through openings in a sleeve, as Bowling’s hemispherical components are on the surface of the sleeve. However, Bowling’s bolt is considered to be a component of the projection, and as the bolt extends through the sleeve, Bowling’s projection comprising a hemispherical component and a bolt is considered to read on the broadest reasonable interpretation of the projection being placeable for projection through one of the openings. Therefore, the rejection is maintained. Applicant argues on page 6, second full paragraph of applicant’s remarks, that the rejection of claim 14 took six separate references, and that such hindsight reconstruction is impermissible. However, in response to applicant's argument that the examiner has combined an excessive number of references, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991). In this case, a motivation is provided for each modification, as von Soiron discloses a benefit of its massage configuration is suitable for massaging a back of a user to provide an optimum massage for loosening and relaxing and reducing pain (von Soiron, col 2, ln 57-64), Wisniewski teaches that the use of silicone for a sleeve is known in the art to provide a torsionally elastic, inherently resilient material to support a protrusion to apply pressure to a patient. See MPEP 2143(I)(A), Tielve teaches the benefit of providing projections spaced apart from each other by about .25 to about 1.75 inches to permit placement of the contact surfaces of the projections against soft-tissues on immediately adjacent sides of the spine of a user (Tielve, para [0053]), Bowling teaches the benefit of providing hemispherical projections to provide a shape capable of providing general compression force and trigger point compression force while simultaneously providing a user with muscle tension and resistance in movement exercises (Bowling, para [0012]), and Tambakis teaches that the use of an elastic material such as silicone for forming massage projections is known in the art, and therefore would be a suitable material for forming a massage projection. See MPEP 2143(I)(A). Therefore, 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.
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/DOUGLAS Y SUL/Examiner, Art Unit 3785
/COLIN W STUART/Primary Examiner, Art Unit 3785