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 .
This action is in response to the filing on 10/15/2025. Since the previous filing, claims 2, 4, 18 and 91 have been amended an no claims have been added or cancelled. Thus, claims 1-19 are pending in the application.
In regards to the previous 112 Rejections, Applicant has amended to overcome these rejections and they are therefore withdrawn and new rejections have been entered below.
In regards to the previous 103 Rejections, Applicant has amended to in part overcome the previous rejections and they are therefore maintained or withdrawn with new rejections entered as needed below.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 18 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 18 recites the limitation "the decrease" in line 6. There is insufficient antecedent basis for this limitation in the claim. Examiner suggests changing to “a decrease” to overcome this rejection.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491).
In regards to claim 1, Hanson discloses a device (instrument 700) for treating fibrotic tissue (paragraph 2-3), comprising: a base formed from a solid material (body engaging section 702); a plurality of first teeth formed in the base (parabolic humps 716), each of the plurality of first teeth separated from at least one other first tooth by a first groove (Fig 12); a handle disposed on the base opposite the plurality of teeth, the handle having a first gripping surface (central gripping panel 706).
While Henson teaches a plurality of second teeth (humps 718), each of the plurality of second teeth separated from at least one other second tooth by a second groove (Fig 12), it does not teach a second gripping surface disposed adjacent to the first gripping surface, a plurality of second teeth formed in the base and opposite from the second gripping surface.
However, Marshall teaches a massage device having a second gripping surface disposed adjacent to the first gripping surface and a second plurality of teeth wherein the second teeth are formed in the base and opposite from the second gripping surface (see Annotated Fig 3).
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Annotated Fig 3
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson to have a second gripping surface disposed adjacent to the first gripping surface and a second plurality of teeth wherein the second teeth are formed in the base and opposite from the second gripping surface as taught by Marshall as this would provide multiple angles at which to hold the device and by which to apply therapeutic treatment to the user.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491) and in further view of Maroney (WO 2018089466) and as evidenced by Liburd (US 2018/0168918).
In regards to claim 2, Hanson in view of Marshall teaches the device of claim 1.
Hanson does not disclose wherein at least one first tooth includes at least one right angle to apply force in two or more axes.
However, Maroney teaches wherein at least one first tooth includes at least one right angle (nubs 209 are square, Fig 5).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one first tooth includes at least one right angle as taught by Maroney as this would provide a pressure to the user’s skin without scratching the user (Maroney: page 6 line 30-31).
While the combination does not explicitly teach wherein the shape of the tooth applies force in two or more axes, it does teach the structure which provides said function. As it has been held that where applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection (MPEP 2112 III). Therefore, 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 combination to apply force in two or more axes as applying treatment in multiple axes is a known procedure to address fascia which may harden in various axes (Liburd: paragraph 62).
Claim(s) 3 and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491) and in further view of Maroney (WO 2018089466).
In regards to claim 3, Hanson in view of Marshall teaches the device of claim 1.
Hanson does not disclose wherein at least one first groove includes at least one right angle.
However, Maroney teaches wherein at least one first groove includes at least one right angle (space between nubs 209, Fig 5).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one first groove includes at least one right angle as taught by Maroney as these teeth and groove shapes would reasonably provide the same function and may be considered a matter of design choice.
In regards to claim 8, Hanson in view of Marshall teaches the device of claim 1.
Hanson does not disclose further comprising a plurality of third teeth formed in the base and separate from the plurality of first teeth and the plurality of second teeth.
However, Maroney teaches comprising a plurality of third teeth formed in the base and separate from the plurality of first teeth and the plurality of second teeth (massage surface 214 separate from massage surfaces 211 and 213, page 9 line 29-31).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson further comprising a plurality of third teeth formed in the base and separate from the plurality of first teeth and the plurality of second teeth as taught by Maroney as this would provide multiple massage sites to suit differing user needs.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491) and in further view of Braden (US D908905) and as evidenced by Liburd (US 2018/0168918).
In regards to claim 4, Hanson in view of Marshall teaches the device of claim 1.
Hanson does not disclose wherein at least one second tooth includes at least one acute angle to apply force in two or more axes.
However, Braden teaches wherein at least one second tooth includes at least one acute angle (Fig 2).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one second tooth includes at least one acute angle as taught by Braden as this is a known shape for the teeth of such devices to provide a treatment pressure to a user’s skin to suit their needs.
While the combination does not explicitly teach wherein the shape of the tooth applies force in two or more axes, it does teach the structure which provides said function. As it has been held that where applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection (MPEP 2112 III). Therefore, 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 combination to apply force in two or more axes as applying treatment in multiple axes is a known procedure to address fascia which may harden in various axes (Liburd: paragraph 62).
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491) and in further view of Braden (US D908905).
In regards to claim 5, Hanson in view of Marshall teaches the device of claim 1.
Hanson does not disclose wherein at least one second groove includes at least one acute angle.
However, Braden teaches wherein at least one second groove includes at least one acute angle (Fig 3).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one second groove includes at least one acute angle as taught by Braden as this shape of the grooves of such devices to provide a treatment pressure to the user’s skin to suit the user’s need.
Claim(s) 6 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491) and in view of Maroney (WO 2018089466), Braden (US D908905) and Dye (US 2012/0035029).
In regards to claim 6, the device of claim 1.
Hanson does not disclose wherein at least one first tooth includes at least one right angle and at least one first tooth includes at least one acute angle.
However, Maroney teaches wherein at least one first tooth includes at least one right angle (nubs 209, Fig 5).
Further, Braden teaches wherein at least one first tooth includes at least one acute angle (Fig 3).
Additionally, Dye teaches wherein projections may be of multiple shapes (projections may be square or triangle, paragraph 25, claim 6, Fig 4 and 7, each feature may be combined with any other feature, paragraph 68).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one first tooth includes at least one right angle and at least one first tooth includes at least one acute angle as taught by Maroney, Braden and Dye as this would allow the arrangement of the teeth to be optimized for best treatment (Dye: paragraph 25).
In regards to claim 7, Hanson in view of Marshall teaches the device of claim 1.
Hanson does not disclose wherein at least one first groove includes at least one right angle and at least one first groove includes at least one acute angle.
However, Maroney teaches wherein at least one first groove includes at least one right angle (space between nubs 209, Fig 5).
Further, Braden teaches wherein at least one second groove includes at least one acute angle (Fig 3).
Additionally, Dye teaches wherein projections and therefore the spaces between them may be of multiple shapes (projections may be square or triangle, paragraph 25, claim 6, Fig 4 and 7, each feature may be combined with any other feature, paragraph 68).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one first groove includes at least one right angle and at least one first groove includes at least one acute angle as taught by Maroney, Braden and Dye as this would allow the arrangement of the teeth to be optimized for best treatment (Dye: paragraph 25).
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491) and in further view of Maroney (WO 2018089466) and Braden (US D908905).
In regards to claim 9, Hanson in view of Marshall and the device of claim 1.
Hanson does not disclose wherein at least one third tooth includes at least one acute angle.
However, Maroney teaches at least one third tooth (massage surface 214 separate from massage surfaces 211 and 213, page 9 line 29-31) and Braden teaches at least one tooth includes at least one acute angle (Fig 3).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one third tooth includes at least one acute angle as taught by Maroney and Braden as this would provide multiple massage sites and shapes to suit differing user needs.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491) and Kojima (US 2014/0213944).
In regards to claim 10, Hanson discloses a method for treating fibrotic tissue, comprising: applying a force to fibrotic tissue through a base of a handheld device formed from a solid material (instrument 700, paragraph 11 and 30); moving a plurality of first teeth formed in the base (parabolic humps 716) over the fibrotic tissue, each of the plurality of first teeth separated from at least one other first tooth by a first groove (Fig 12).
Hanson does not disclose the handle having a first gripping surface and a second gripping surface disposed adjacent to the first gripping surface; a plurality of second teeth formed in the base and opposite from the second gripping surface over the fibrotic tissue, each of the plurality of second teeth separated from at least one other second tooth by a second groove; relocating the position of the handheld device on the fibrotic tissue in relation to a handle disposed on the base opposite the plurality of teeth, and moving a plurality of second teeth over the fibrotic tissue.
However, Marshall teaches the handle having a first gripping surface and a second gripping surface disposed adjacent to the first gripping surface; a plurality of second teeth formed in the base and opposite from the second gripping surface, each of the plurality of second teeth separated from at least one other second tooth by a second groove (see Annotated Fig 3).
Further, Kojima teaches relocating the position of the handheld device on the fibrotic tissue in relation to a handle disposed on the base opposite the plurality of teeth, and moving a plurality of second teeth over the fibrotic tissue (device 10 may be used in multiple orientations depending on the desired treatment, Fig 8a-11c).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson to have the handle having a first gripping surface and a second gripping surface disposed adjacent to the first gripping surface; a plurality of second teeth formed in the base and opposite from the second gripping surface over the fibrotic tissue, each of the plurality of second teeth separated from at least one other second tooth by a second groove; relocating the position of the handheld device on the fibrotic tissue in relation to a handle disposed on the base opposite the plurality of teeth, and moving a plurality of second teeth over the fibrotic tissue as taught by Marshall and Kojima as this would provide multiple treatment surfaces and means of treatment to suit the needs of the user.
Claim(s) 11, 12 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491) and Kojima (US 2014/0213944) and in further view of Maroney (WO 2018089466).
In regards to claim 11, Hanson in view of Marshall and Kojima teaches the method of claim 10.
Hanson does not disclose wherein at least one first tooth includes at least one right angle.
However, Maroney teaches wherein at least one first tooth includes at least one right angle (nubs 209 are square, Fig 5).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one first tooth includes at least one right angle as taught by Maroney as this would provide a pressure to the skin of the user without scratching the user (Maroney: page 6 line 30-31).
In regards to claim 12, Hanson in view of Marshall and Kojima teaches the method of claim 10.
Hanson does not disclose wherein at least one first groove includes at least one right angle.
However, Maroney teaches wherein at least one first groove includes at least one right angle (space between nubs 209, Fig 5).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one first groove includes at least one right angle as taught by Maroney as these teeth and groove shapes would reasonably provide the same function and may be considered a matter of design choice.
In regards to claim 17, Hanson in view of Marshall and Kojima teaches the method of claim 10 and Kojima further teaches moving a third surface formed in the base and separate from the first and second over the fibrotic tissue (Fig 8a-11c).
Hanson does not disclose a plurality of third teeth formed in the base and separate from the plurality of first teeth and the plurality of second teeth.
However, Maroney teaches comprising a plurality of third teeth formed in the base and separate from the plurality of first teeth and the plurality of second teeth (massage surface 214 separate from massage surfaces 211 and 213, page 9 line 29-31).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson further comprising a plurality of third teeth formed in the base and separate from the plurality of first teeth and the plurality of second teeth as taught by Maroney as this would provide multiple massage sites to suit differing user needs.
Claim(s) 13 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491) and Kojima (US 2014/0213944) and in further view of Maroney (WO 2018089466).
In regards to claim 13, Hanson in view of Marshall and Kojima teaches the method of claim 10.
Hanson does not disclose wherein at least one second tooth includes at least one acute angle.
However, Braden teaches wherein at least one second tooth includes at least one acute angle (Fig 2).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one second tooth includes at least one acute angle as taught by Braden as this would provide a pressure to the user’s skin without scratching the user (Maroney: page 6 line 30-31).
In regards to claim 14, Hanson in view of Marshall and Kojima teaches the method of claim 10.
Hanson does not disclose wherein at least one second groove includes at least one acute angle.
However, Braden teaches wherein at least one second groove includes at least one acute angle (Fig 3).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one second groove includes at least one acute angle as taught by Braden as these teeth and groove shapes would reasonably provide the same function and may be considered a matter of design choice.
Claim(s) 15 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491) and Kojima (US 2014/0213944) and in further view of Maroney (WO 2018089466), Braden (US D908905) and Dye (US 2012/0035029).
In regards to claim 15, Hanson in view of Marshall and Kojima teaches the method of claim 10.
Hanson does not disclose wherein at least one first tooth includes at least one right angle and at least one first tooth includes at least one acute angle.
However, Maroney teaches wherein at least one first tooth includes at least one right angle (nubs 209, Fig 5).
Further, Braden teaches wherein at least one first tooth includes at least one acute angle (Fig 3).
Additionally, Dye teaches wherein projections may be of multiple shapes (projections may be square or triangle, paragraph 25, claim 6, Fig 4 and 7, each feature may be combined with any other feature, paragraph 68).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one first tooth includes at least one right angle and at least one first tooth includes at least one acute angle as taught by Maroney, Braden and Dye as this would allow the arrangement of the teeth to be optimized for best treatment (Dye: paragraph 25).
In regards to claim 16, Hanson in view of Marshall and Kojima teaches the method of claim 10.
Hanson does not disclose wherein at least one first groove includes at least one right angle and at least one first groove includes at least one acute angle.
However, Maroney teaches wherein at least one first groove includes at least one right angle (space between nubs 209, Fig 5).
Further, Braden teaches wherein at least one second groove includes at least one acute angle (Fig 3).
Additionally, Dye teaches wherein projections and therefore the spaces between them may be of multiple shapes (projections may be square or triangle, paragraph 25, claim 6, Fig 4 and 7, each feature may be combined with any other feature, paragraph 68).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one first groove includes at least one right angle and at least one first groove includes at least one acute angle as taught by Maroney, Braden and Dye as this would allow the arrangement of the teeth to be optimized for best treatment (Dye: paragraph 25).
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491) and Kojima (US 2014/0213944) and in further view of Maroney (WO 2018089466), Braden (US D908905) and Tull (US 2010/0139671).
In regards to claim 18, Hanson in view of Marshall and Kojima teaches the method of claim 10.
Hanson does not disclose wherein at least one third tooth includes at least one acute angle and further comprising: performing a durometer measurement prior to treatment using a level of force in two or more axes; performing the durometer measurement after treatment; and increasing the level of force in two or more axes if the decrease in the durometer is less than a predetermined amount.
However, Maroney teaches at least one third tooth (massage surface 214 separate from massage surfaces 211 and 213, page 9 line 29-31) and Braden teaches at least one tooth includes at least one acute angle (Fig 3).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one third tooth includes at least one acute angle as taught by Maroney and Braden as this would provide multiple massage sites and shapes to suit differing user needs.
Further, Tull teaches performing a durometer measurement prior to treatment using a level of force (wherein tissue in need of treatment may be hard, paragraph 25, muscles may be checked to determine need of treatment, paragraph 45); performing the durometer measurement after treatment (body may be rechecked, paragraph 55); and increasing the level of force if the decrease in the durometer is less than a predetermined amount (body may be retreated after rechecking, paragraph 55).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson performing a durometer measurement prior to treatment using a level of force in two or more axes; performing the durometer measurement after treatment; and increasing the level of force in two or more axes if the decrease in the durometer is less than a predetermined amount as taught by Tull as this would allow for identification of areas in need of therapy and insurance that such areas receive thorough and proper treatment.
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hanson (US 2020/0138664) in view of Marshall (US D931491), Maroney (WO 2018089466), Kojima (US 2014/0213944) and Baxter (US 2021/0077343) as evidenced by Tull (US 2010/0139671) and Liburd (US 2018/0168918).
In regards to claim 19, Hanson discloses a method comprising: applying a force to fibrotic tissue through a base of a handheld device formed from a solid material (instrument 700, paragraph 11 and 30), having a plurality of first teeth formed in the base (parabolic humps 716), each of the plurality of first teeth separated from at least one other first tooth by a first groove (Fig 12).
Hanson does not disclose moving a plurality of first teeth formed in the base over the fibrotic tissue, relocating the position of the handheld device on the fibrotic tissue in relation to a handle disposed on the base opposite the plurality of teeth, moving a plurality of second teeth formed in the base and opposite from the second gripping surface over the fibrotic tissue, moving a plurality of third teeth formed in the base and separate from the plurality of first teeth and the plurality of second teeth over the fibrotic tissue; performing an ultrasound measurement prior to treatment using a level of force in two or more axes; performing the ultrasound measurement after treatment; and increasing the level of force in two or more axes if separation in fibrotic tissue as determine from the ultrasound measurement has not changed.
However, Marshall teaches a handle disposed on the base opposite the plurality of teeth, the handle having a first gripping surface and a second gripping surface disposed adjacent to the first gripping surface, a plurality of second teeth formed in the base and opposite from the second gripping surface, each of the plurality of second teeth separated from at least one other second tooth by a second groove (see Annotated Fig 3).
Further, Maroney teaches wherein at least one first tooth includes at least one right angle, wherein at least one first groove includes at least one right angle (nubs 209 and space between them, Fig 5) and further comprising a plurality of third teeth formed in the base and separate from the plurality of first teeth and the plurality of second teeth (massage surface 214 separate from massage surfaces 211 and 213, page 9 line 29-31).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson wherein at least one first tooth includes at least one right angle, wherein at least one first groove includes at least one right angle and further comprising a plurality of third teeth formed in the base and separate from the plurality of first teeth and the plurality of second teeth as taught Maroney as this would provide multiple massage sites and shapes to suit different user needs.
Further still, Kojima teaches moving a plurality of first teeth formed in the base over the fibrotic tissue, relocating the position of the handheld device on the fibrotic tissue in relation to a handle disposed on the base opposite the plurality of teeth, moving a plurality of second teeth over the fibrotic tissue, moving a plurality of third teeth formed in the base and separate from the plurality of first teeth and the plurality of second teeth over the fibrotic tissue (Fig 8a-11c).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson moving a plurality of first teeth formed in the base over the fibrotic tissue, relocating the position of the handheld device on the fibrotic tissue in relation to a handle disposed on the base opposite the plurality of teeth, moving a plurality of second teeth over the fibrotic tissue, moving a plurality of third teeth formed in the base and separate from the plurality of first teeth and the plurality of second teeth over the fibrotic tissue as taught by Kojima as this would provide multiple treatment surfaces and means of treatment to suit the needs of the user.
Additionally, Baxter teaches performing an ultrasound measurement prior to applying force to a user (paragraph 14).
While Baxter does not explicitly teach performing an ultrasound measurement after treatment and increasing the level of force if separation in fibrotic tissue as determined from the ultrasound measurement has not changed, Tull evidences that it is known to recheck areas of the body and apply further treatment (body may be retreated after rechecking, paragraph 55).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hanson performing an ultrasound measurement prior to treatment using a level of force in two or more axes; performing the ultrasound measurement after treatment; and increasing the level of force in two or more axes if separation in fibrotic tissue as determine from the ultrasound measurement has not changed as taught by Baxter and evidenced by Tull as this would allow for identification of areas in need of therapy and insurance that such areas receive thorough and proper treatment.
While the combination does not explicitly teach wherein the shape of the tooth applies force in two or more axes, it does teach the structure which provides said function. As it has been held that where applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection (MPEP 2112 III). Therefore, 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 combination to apply force in two or more axes as applying treatment in multiple axes is a known procedure to address fascia which may harden in various axes (Liburd: paragraph 62).
Response to Arguments
In regards to the arguments concerning claim 1, these arguments are not persuasive. Applicant argues the definition of “tooth” in regards to the description of a specific shape or set of shapes, specifically excluding certain shapes. Examiner disagrees. The word “tooth” may be used to describe a variety of protrusions, the shape therein nonspecific unless and until further defined, and may thereafter be reasonably modified.
In regards to the arguments concerning commercial success of the instant invention, Applicant has failed to provide compelling evidence which would supersede the above entered rejections.
Arguments in regards to the amendments made to the claims are addressed in the new ground of rejection entered above.
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 Arielle Wolff whose telephone number is (571)272-8727. The examiner can normally be reached Mon-Fri 8:00-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kendra Carter can be reached at (571) 272-9034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ARIELLE WOLFF/ Examiner, Art Unit 3785
/KENDRA D CARTER/ Supervisory Patent Examiner, Art Unit 3785