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 remarks and amendments filed on November 12th, 2025. Claims have 6-9 have been canceled as such claims 1-5 are pending consideration in this Office Action.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, a mattress as claimed in newly amended claim 1 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Hitzmann (US 20080070210) in view of Wood (US 20090222994).
Regarding claim 1, Hitzmann discloses
a training device (Figs. 7-8 and 34-35; roller; Paragraph 0142, Lines 1-6; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5) in the form of a bar (see Figs. 7-8 and 34-35; roller is a cylindrical rod or bar shape) that has a length that corresponds to at least the length of the spinal column (see Figs. 7-8 and 34-35; user lays on roller which extends at least from head to tailbone and lays supine to truly feel one’s spine; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5) and the head of the user (see Figs. 7-8 and 34-35; “lay the length of the roller from head to tailbone”; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5) when the user lies down on the training device (Figs. 7-8 and 34-35; roller; Paragraph 0142, Lines 1-6; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5) lengthwise with his/her back (Figs. 7-8 and 34-35; “lay the length of the roller from head to tailbone”; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5),
wherein the user's spinal column and head (see Figs. 7-8 and 34-35; “a person is laying directly on the spinous processes” where they “lay the length of the roller from head to tailbone”; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5) come to lie on the bar (Figs. 7-8 and 34-35; roller; Paragraph 0142, Lines 1-6; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5),
Hitzmann does not disclose wherein the bar is a composite bar that has a rigid and substantially inflexible core composed of a hard material and a mantle composed of a soft material, wherein the mantle extends continuously over substantially an entire length of the bar; wherein the training device is configured to be positioned on a mattress, wherein the soft material of the mantle prevents the composite bar from being pressed and sinking into the mattress by a body weight of the user, wherein the hard material of the core prevents bending of the composite bar in use and ensures a rigidity of the composite bar required for an associated training or therapy, wherein a length of the composite bar amounts to 100 to 200 cm, wherein a diameter of the composite bar amounts to 50 to 90 mm, wherein a diameter of the core amounts to 15 to 30 mm, and wherein a wall thickness of the mantle amounts to 20 to 40 % of the diameter of the composite bar.
Wood discloses a therapeutic bolster for applying constant pressure or rolling massage to the body
wherein the bar (Figs. 1-3; bolster 10; Paragraph 0021, Lines 1-6) is a composite bar (Figs. 1-3; core 12 and cover 16; Paragraph 0022, Lines 1-8) that has a rigid and substantially inflexible core (Figs. 1-3; core 12; Paragraph 0022, Lines 1-8) composed of a hard material (Figs. 1-3; “the core 12 may be made of acrylonitrile butadiene styrene (ABS)”; Paragraph 0022, Lines 1-8) and a mantle (Figs. 1-3; cover 16; Paragraph 0022, Lines 1-8) composed of a soft material (Figs. 1-3; foam material with a durometer of 15A-30A is a soft material; Paragraph 0023, Lines 1-9 ),
wherein the mantle (Figs. 1-3; cover 16; Paragraph 0022, Lines 1-8) extends continuously (Paragraph 0024, Lines 1-7) over substantially an entire length of the bar (Figs. 1-3; bolster 10; Paragraph 0021, Lines 1-6; cover 16 extends over core 12).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the roller of Hitzmann with the core and foam cover of Wood to be able to provide a core that has the best therapeutic properties to the user while also having a cover that applies a constant pressure or a rolling massage to the body portion simulating contact with a person's hand or thumb (Wood: Paragraph 0022, Line 12 and Paragraph 0023, Lines 1-6; Paragraph 0026, Lines 1-6).
It directly follows that the resultant roller of Hitzmann combined with the cover and core of Wood would meet the claimed structural limitations since:
wherein the training device is configured to be positioned on a mattress (one could simply position the roller of Hitzmann onto a mattress; therefore, it is capable of being positioned on a mattress),
wherein the soft material of the mantle prevents the composite bar from being pressed and sinking into the mattress by a body weight of the user (Wood: Figs. 1-3; cover 16; Paragraph 0022, Lines 1-8; the cover is made of soft material, if placed on a firm mattress it would prevent the composite bar from sinking when pressed, see response to arguments for further explanation and other interpretations),
wherein the hard material of the core prevents bending of the composite bar in use and ensures a rigidity of the composite bar required for an associated training or therapy (Wood: “the therapeutic bolster includes a rigid, non-flexible core”; [0005] which is used to treat and relieve pain and discomfort associated with many types of injuries and ailments; [0003]).
wherein a length of the composite bar amounts to 100 to 200 cm, wherein a diameter of the composite bar amounts to 50 to 90 mm, wherein a diameter of the core amounts to 15 to 30 mm, and wherein a wall thickness of the mantle amounts to 20 to 40 % of the diameter of the composite bar.
Hitzmann modified to include the hard core and soft mantle of Wood discloses the invention essentially as claimed as discussed above.
However, the modified device of Hitzmann using Wood does not expressly disclose
a length of the composite bar amounts to 100 to 200 cm
a diameter of the composite bar amounts to 50 to 90 mm
a diameter of the core amounts to 15 to 30 mm
a wall thickness of the mantle amounts to 20 to 40 % of the diameter of the composite bar.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of the modified device of Hitzmann to have
a length of the composite bar amounts to 100 to 200 cm
a diameter of the composite bar amounts to 50 to 90 mm
a diameter of the core amounts to 15 to 30 mm
a wall thickness of the mantle amounts to 20 to 40 % of the diameter of the composite bar.
since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the roller of the modified device of Hitzmann would not operate differently with the claimed length/diameter/wall thickness listed above and since the roller with the hard core/soft mantle would function appropriately having the claimed length/diameter/wall thickness listed above. Further, applicant’s specification places no criticality on the range claimed (except for allowing a for a user’s head and tailbone to lie down upon it; which is disclosed by Hitzmann), indicating simply that the length of the bar, diameter of the bar, diameter of the core, and the wall thickness of the mantle “can be” or “is preferable” to be within the claimed ranges (page 5, paragraphs 2-5 and page 6, last paragraph).
Regarding claim 2, the modified device of Hitzmann further discloses
the training device (Hitzmann: user lays lengthwise on spine using roller; Wood: bolster with core and cover) according to claim 1,
wherein the core (Wood: Figs. 1-3; core 12; Paragraph 0022, Lines 1-8) comprises plastic (Wood: Figs. 1-3; Figs. 1-3; “the core 12 may be made of acrylonitrile butadiene styrene (ABS)”; Paragraph 0022, Lines 1-8; ABS is a type of plastic), wood or metal.
Regarding claim 3, the modified device of Hitzmann further discloses
the training device (Hitzmann: user lays lengthwise on spine using roller; Wood: bolster with core and cover) according to claim 1,
wherein the mantle (Wood: Figs. 1-3; Figs. 1-3; cover 16; Paragraph 0022, Lines 1-8) comprises foam material (Wood: Figs. 1-3; Figs. 1-3; foam material; Paragraph 0023, Lines 1-9).
Regarding claim 4, the modified device of Hitzmann further discloses
the training device (Hitzmann: user lays lengthwise on spine using roller; Wood: bolster with core and cover) according to claim 1,
wherein the core (Wood: Figs. 1-3; Figs. 1-3; core 12; Paragraph 0022, Lines 1-8) is configured to be inserted (Wood: Figs. 1-3; Paragraph 0024, Lines 1-7; cover wraps around core; therefore, core is inserted inside the cover) into the mantle (Wood: Figs. 1-3; Figs. 1-3; cover 16; Paragraph 0022, Lines 1-), so as to produce the composite bar (Wood: Figs. 1-3; Figs. 1-3; core 12 and cover 16; Paragraph 0022, Lines 1-8).
Regarding claim 5, the modified device of Hitzmann further discloses
the training device (Hitzmann: user lays lengthwise on spine using roller; Wood: bolster with core and cover) according to claim 1,
wherein the composite bar (Wood: Figs. 1-3; Figs. 1-3; core 12 and cover 16; Paragraph 0022, Lines 1-8) has an oval or a circular cross-section (Wood: Figs. 1-3; see Fig. 3; the core 12 and cover 16 form a circular cross-section).
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Hitzmann (US 20080070210) in view of Faussett (US 20080200851) and further in view of Smith (US 10806964).
Regarding claim 1, Hitzmann discloses
a training device (Figs. 7-8 and 34-35; roller; Paragraph 0142, Lines 1-6; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5) in the form of a bar (see Figs. 7-8 and 34-35; roller is a cylindrical rod or bar shape) that has a length that corresponds to at least the length of the spinal column (see Figs. 7-8 and 34-35; user lays on roller which extends at least from head to tailbone and lays supine to truly feel one’s spine; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5) and the head of the user (see Figs. 7-8 and 34-35; “lay the length of the roller from head to tailbone”; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5) when the user lies down on the training device (Figs. 7-8 and 34-35; roller; Paragraph 0142, Lines 1-6; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5) lengthwise with his/her back (Figs. 7-8 and 34-35; “lay the length of the roller from head to tailbone”; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5),
wherein the user's spinal column and head (see Figs. 7-8 and 34-35; “a person is laying directly on the spinous processes” where they “lay the length of the roller from head to tailbone”; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5) come to lie on the bar (Figs. 7-8 and 34-35; roller; Paragraph 0142, Lines 1-6; Paragraph 0190, Lines 1-7 and Paragraph 0191, Lines 1-5),
Hitzmann does not disclose wherein the bar is a composite bar that has a rigid and substantially inflexible core composed of a hard material and a mantle composed of a soft material, wherein the mantle extends continuously over substantially an entire length of the bar; wherein the training device is configured to be positioned on a mattress, wherein the soft material of the mantle prevents the composite bar from being pressed and sinking into the mattress by a body weight of the user, wherein the hard material of the core prevents bending of the composite bar in use and ensures a rigidity of the composite bar required for an associated training or therapy, wherein a length of the composite bar amounts to 100 to 200 cm, wherein a diameter of the composite bar amounts to 50 to 90 mm, wherein a diameter of the core amounts to 15 to 30 mm, and wherein a wall thickness of the mantle amounts to 20 to 40 % of the diameter of the composite bar.
Faussett discloses a rolling muscle massager
wherein the bar (Fig. 1; roller 14 and cover 16; Paragraph 0023, Lines 4-5) is a composite bar (Fig. 1; roller 14 and cover 16; Paragraph 0023, Lines 4-5) that has a rigid and substantially inflexible core (Fig. 1; roller 14; Paragraph 0027, Lines 1-5; Paragraph 0063, Lines 3-10) composed of a hard material (Paragraph 0025, Lines 6-10; Paragraph 0063, Lines 3-10) and a mantle (Fig. 1; cover 16; Paragraph 0031, Lines 10-14 and Paragraph 0063, Lines 3-10) composed of a soft material (Paragraph 0031, Lines 10-14 and Paragraph 0063, Lines 3-10),
wherein the mantle (Fig. 1; cover 16; Paragraph 0031, Lines 10-14 and Paragraph 0063, Lines 3-10) extends continuously over substantially an entire length (see Fig. 1; cover 16 fully covers the length of roller 14; Paragraph 0031, Lines 12-14) of the bar (Fig. 1; roller 14; Paragraph 0027, Lines 1-5; Paragraph 0063, Lines 3-10).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the roller of Hitzmann with the roller and cover as taught in Faussett to have a surface that is comfortable to the skin whilst still applying pressure and increase the surface area to help distribute pressure (Faussett: Paragraph 0016, Lines 2-3 and Paragraph 0063, Lines 3-7).
It directly follows that the resultant roller of Hitzmann combined with the hard roller and cover of Faussett would meet the claimed structural limitations since:
wherein the training device is configured to be positioned on a mattress (one could simply position the roller of Hitzmann onto a mattress; therefore, it is capable of being positioned on a mattress),
wherein the soft material of the mantle prevents the composite bar from being pressed and sinking into the mattress by a body weight of the user (Faussett: cover 16 is formed of a pliable, compliant, flexible material such as soft foam or fabric, [0031], [0063]; the cover is made of soft material, if placed on a firm mattress it would prevent the composite bar from sinking when pressed, see response to arguments for further explanation and other interpretations),
wherein the hard material of the core prevents bending of the composite bar in use and ensures a rigidity of the composite bar required for an associated training or therapy (Faussett: roller 14 is made of PVC pipe, wood, metal or other composite to provide an appropriate bearing surface; [0027] and [0027])).
Faussett further discloses the roller and cover
wherein a diameter of the composite bar (Faussett: Fig. 1; roller 12 and cover 16; Paragraph 0027, Lines 2-13 and Paragraph 0031, Lines 1-10) amounts to 50 to 90 mm (Faussett: Fig. 1; roller 12 has “an average outside diameter is approximately 26.6 mm and preferably ranges from 26.0-27.0 mm” and cover 16 can have a thickness in the range from 1-250mm; therefore, the diameter of the composite bar can span from 26.0-276mm).
wherein a diameter of the core (Faussett: Fig. 1; roller 12; Paragraph 0027, Lines 2-13) amounts to 15 to 30 mm (Faussett: Paragraph 0027, Lines 2-13; “average outside diameter is approximately 26.6 mm and preferably ranges from 26.0-27.0 mm although the range can be from 9.8 mm to 42.16 mm”; 26.0-27.0mm anticipates the range of 15 to 30mm ).
wherein a wall thickness of the mantle (Faussett: cover 16 can have a thickness in the range from 1-250mm; Paragraph 0031, Lines 1-10) amounts to 20 to 40 % (Faussett: see calculations below; with the roller/core of 26.6mm, the wall thickness of the cover is 6.65mm to 17.73mm which is 20 to 40% of the total diameter of the bar: 33.25mm to 44.33mm) of a diameter of the composite bar (Faussett: Fig. 1; roller 12 has “an average outside diameter is approximately 26.6 mm and preferably ranges from 26.0-27.0 mm” and cover 16 can have a thickness in the range from 1-250mm; therefore, the diameter of the composite bar can span from 26.0-276mm).
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have a wall thickness of 6.65 to 17.73mm which is in the range of 20 to 40% of the diameter of the composite bar since this fall within the workable wall thickness of 1-250mm (see MPEP 2144.05). Furthermore, there is no allegation of criticality or any evidence demonstrating any difference across the range.
Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the roller of the modified device of Hitzmann with the diameter of the roller and wall thickness of the cover of Faussett to have a wide variety of diameters and wall thicknesses (Paragraph 0027, Lines 2-13 and Paragraph 0031, Lines 1-10) for comfortability and prevent a narrow diameter that creates discomfort when applied with pressure (Faussett: Paragraph 0005, Lines 10-13).
The modified device of Faussett does not disclose wherein the length of the composite bar amounts to 100 to 200 cm.
Smith discloses a therapeutic stick with a member and padding
wherein the length of the composite bar (Smith: Fig. 1; member 101; Col. 4, Lines 59-67 and Col. 5, Line 1-6) amounts to 100 to 200 cm (Smith: Col. 4, Lines 59-67 and Col. 5, Line 1-6; 50% of the shortest length (52” – 80% of wingspan) is 82.55cm and 100% of the longest length (60” – 80% of wingspan) would be 190.5cm; the therapeutic stick has a range of 82.55cm-190.5cm there is sufficient specificity to anticipate 100 to 200cm)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the roller of the modified device of Hitzmann with the length of the therapeutic stick as taught in Smith to be able to customize the length to fit the proportions of the user (Smith: Col. 4, Lines 61-67 and Col. 5, Lines 1-6).
Response to Arguments
Applicant's arguments filed November 12th, 2025 have been fully considered but they are not persuasive.
On pages 5-6 of the remarks, Applicant argues that the newly amended limitation of the “training device is configured to be positioned on a mattress, wherein the soft material of the mantle prevents the composite bar from being pressed and sinking into the mattress by a body weight of the user and the hard material of the core prevents bending of the composite bar in use and ensures a rigidity of the composite bar required for an associated training or therapy” overcomes the prior art. Specifically, that the training device configured to be positioned on a mattress with the recited anti-sinking function is not disclosed or suggested by the cited references.
However, one could simply position the roller of Hitzmann onto a mattress, therefore, it is capable of being positioned on a mattress. Additionally, the limitation “wherein the soft material of the mantle prevents the composite bar from being pressed and sinking into the mattress by a body weight of the user” is very broad and can be interpreted in many ways. For illustrative purposes a few interpretations have been listed below:
The claim states a body weight of the user; however, that can mean any body weight, such as simply resting a hand on the roller and the bed/mattress. That amount of body weight is so small that training device would not sink the training device into the mattress. Further, the user may be a small child that has less body weight which could reduce/prevent sinking.
The claim does not state if the roller is in contact with the mattress, only that is positioned on the mattress. As such, the modified roller of Hitzmann could be placed on top of a piece of plywood that is on top of the mattress, therefore, preventing sinking into the mattress.
The claim further does not state the material or firmness of them mattress. Therefore, the modified roller of Hitzmann could be placed on top of an extremely firm mattress preventing sinking
As the modified device of Hitzmann (using either Wood or Faussett to modify the roller with a hard core and outer softer cover/mantle) has rigid hard core that prevents bending and provides training/therapy (Wood: “The bolster includes a rigid, non-flexible core”; [0005]; Faussett: roller 14 is made of PVC pipe, wood, metal or other composite to provide an appropriate bearing surface; [0027] and [0027]) and a soft outer mantle (Wood: resilient material/cover 16 is a closed cell foam material having hardness of about 15 A to about 35 A Durometer, [0023]; Faussett: cover 16 is formed of a pliable, compliant, flexible material such as soft foam or fabric, [0031], [0063]) when compressed it would be able to perform the function of preventing being pressed and sinking into the mattress from the user’s body weight depending on the firmness/material of the mattress it is placed on, the amount of weight being placed on the device/mattress, and if there is material in between the mattress and the device.
On page 6 of the remarks, Applicant argues that the technical focus of the arrangement according to Hitzmann is a vibrating rolling device with an inner bore to accommodate a vibration module which is not a passive, non-bendable composite bar for use on a mattress to prevent excessive sinking. However, the citations in the Non-final rejection filed on 08/12/2025 of Hitzmann are not referring to the embodiment which includes the vibrating rolling device but rather the idea of using a profoam roller to lie down on the spine of the user from head to tail bone and where such rollers have been used on the market for nearly 20 years (Hitzmann: see figs. 7-8 and 34-35; [0011], [0190]-[0191]). As described above, the modified foam roller of Hitzmann with the hard core and soft cover of Wood/Faussett would be capable of providing the anti-sinking function. It is further noted that the embodiment of the vibration rolling device of Hitzmann would still meet the claim limitation as it has a hard inner tube/bore 2 made of plastic extrusion and an outer core/bolster 1 made of foam (see fig. 48 and component table after [0289]) and “the vibration producing element 14 and the outer core 1 may be configured such that the vibration producing element 14 is removably installed with the bore” [0295]. Therefore, the embodiment of the vibration rolling device is capable of being used as just a roller. It is also noted, that the amended claim does not state that the training device needs to be a passive training device. For the reasons given above, these arguments are unpersuasive.
On page 6 of the remarks, Applicant argues that Wood discloses the coating as having a thickness of only 5-8mm and fails to disclose or suggest the mantle wall thickness of 20-40% of the composite rod diameter – which is effective to prevent effective sinking on a mattress, and does not disclose anywhere the relative dimension specified. However, Wood is not being used to claim those dimensional features, but rather that it would be advantageous to modify the foam roller seen in figs. 7-8 of Hitzmann to have a non-flexible rigid core and soft foam cover of Wood to be able to provide the best therapeutic properties to the user while also having a cover that applies a constant pressure or a rolling massage to the body portion simulating contact with a person's hand or thumb (Wood: [0022], [0023], [0026]; see rejection made in Non-Final rejection filed on 08/12/2025).
Moreover, it is noted that Applicant’s claims and specification also do not suggest that the specific wall thickness is the reason for preventing excess sinking on a mattress, but rather that it can be advantageous and it is preferable to have the specific dimensions which may allow the user to lie down from head to tailbone (the idea of the roller having dimensions to lie from head to tailbone is disclosed by Hitzmann, figs. 7-8 and [0090]-[0091]).
See Applicants specification filed on 08/31/2022:
page 3, paragraph 2 - discusses the soft material of the mantle prevents sinking
page 5, paragraph 1 - the shape (circular/oval) of the cross-section is able prevent sinking
page 5, paragraphs 2-5 - it would be advantageous for the device to have said dimension
page 6, last paragraph - it would be preferable for training device to have certain dimensions
page 7 – soft mantle (in other words the material) advantageously prevents the bar from sinking
On page 7 of the remarks, Applicant argues that Faussett fails to disclose or suggest a static longitudinal support of the spine on the mattress; or an outer-shell-to-wall thickness ratio of 20-40% to prevent sinking. However, in the Non-final rejection filed 08/12/2025, Hitzmann is being used to disclose the static longitudinal support of the spine not Faussett and the roller of Hitzmann is being modified to include a roller (hard core) and cover (soft mantle) as taught in Faussett to have a surface that is comfortable to the skin whilst still applying pressure and increase the surface area to help distribute pressure (Faussett: Paragraph 0016, Lines 2-3 and Paragraph 0063, Lines 3-7). As discussed above, there is no evidence in the claims, specification, or drawings that points to the wall thickness be able to prevent sinking.
Additionally, it is argued that because Faussett is shorter and has significantly smaller dimensions such a modification would not be obvious; however, it is noted that while Faussett is hand-held, it is still an analogous roller in the art used for therapy/training purposes. Therefore, it would have been obvious to modify the diameter/width of the roller of Hitzmann with the diameter of the roller and wall thickness of the cover of Faussett to have a wide variety of diameters and wall thicknesses (Paragraph 0027, Lines 2-13 and Paragraph 0031, Lines 1-10) for comfortability and to prevent a narrow diameter that creates discomfort when applied with pressure (Faussett: Paragraph 0005, Lines 10-13).
Applicant further argues that combining Faussett with Hitzmann and or Wood to achieve the claimed composite bar would only be possible with use of impermissible ex post facto hindsight. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
On page 7 of the remarks, Applicant argues that Smith teaches away from the rigid core as set forth in amended claim 1 because the arrangement of smith relies on pliability and flexibility and that there would be no reason to abandon Smith’s flexible approach in order to obtain a rigid/inflexible composite rod as set forth in claim 1. However, Smith is not being used as the main reference, but rather as a secondary reference to disclose that it would have been advantageous to modify the roller of the modified device of Hitzmann with the length of the therapeutic stick as taught in Smith to be able to customize the length to fit the proportions of the user (Smith: Col. 4, Lines 61-67 and Col. 5, Lines 1-6). This customization would yield the predictable results of having a customized length for the proportions of the user such as having a long enough roller where the user can lie from head to tailbone as disclosed above in Hitzmann (figs. 7-8 and [0090]-[0091]).
It is further noted that regarding newly amended claim 1, the modified device of Hitzmann which as initially modified to include the hard core and soft mantle of Wood (as seen in the rejection of claim 1 in Non-final Rejection filed on 08/12/2025) discloses the invention essentially as claimed as discussed above.
However, the modified device of Hitzmann using Wood does not expressly disclose
a length of the composite bar amounts to 100 to 200 cm
a diameter of the composite bar amounts to 50 to 90 mm
a diameter of the core amounts to 15 to 30 mm
a wall thickness of the mantle amounts to 20 to 40 % of the diameter of the composite bar.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of the modified device of Hitzmann to have
a length of the composite bar amounts to 100 to 200 cm
a diameter of the composite bar amounts to 50 to 90 mm
a diameter of the core amounts to 15 to 30 mm
a wall thickness of the mantle amounts to 20 to 40 % of the diameter of the composite bar.
since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the roller of the modified device of Hitzmann would not operate differently with the claimed length/diameter/wall thickness listed above and since the roller with the hard core/soft mantle would function appropriately having the claimed length/diameter/wall thickness listed above. Further, applicant’s specification places no criticality on the range claimed (except for allowing a for a user’s head and tailbone to lie down upon it; which is disclosed by Hitzmann), indicating simply that the length of the bar, diameter of the bar, diameter of the core, and the wall thickness of the mantle “can be” or “is preferable” to be within the claimed ranges (page 5, paragraphs 2-5 and page 6, last paragraph).
On pages 7-8 of the remarks, Applicant argues that the cited references fail to disclose or suggest a training device with mattress interaction in combination with the require stiffness and dimensional specifications where the vibration roller of Hitzmann with the cover of Wood would not without impermissible hindsight lead to the claimed passive composite bar of 20-40% wall thickness for use on a mattress. For reasons state above, this argument is unpersuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Nemeth (HU 199672) – A cylindrical physiotherapeutic apparatus for the spine with a PVC tube that is solid enough to hold the weight of the human body without significant deformation and a felt insert 2 with an elastic surface 3 made of leather to form a comfortable support surface. The device is sufficiently elastic to make the bed comfortable while not breaking the patient’s supported body surface.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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.
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/S.R.R./Examiner, Art Unit 3785
/VICTORIA MURPHY/Primary Patent Examiner, Art Unit 3785