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 .
Response to Amendment
This Office Action is in response to an amendment filed on 11/21/2025. As directed by the amendment, no claims were canceled, claims 1, 8, 16 and 18 were amended, and no new claims were added. Thus, claims 1-20 are pending for this application.
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 9 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 9, the term “a bend portion” (ln 2) is unclear if it is referring to the “bend portion” introduced in claim 8 (ln. 4) or a new, separate “bend portion.” For the purposes of examination, the phrase “a bend portion” will be interpreted as referring to the same bend portion recited in claim 8.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 16 and 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Metzger (US 11,357,688) in view of Burham (US 5,725,484) and Dakides (US 2016/0136032).
Regarding claim 16, Metzger discloses (Fig. 1C-1E) a therapeutic device for use in bimanual therapy (“for use” interpreted as intended use. Device of Metzger would be capable of being used for bimanual therapy), comprising:
a knob portion (knob 110) having an attachment point (edge 112 that attaches to proximal portion 108);
a paddle portion having a first paddle portion (see Annotated Fig. 1D below) and a second paddle portion (see Annotated Fig. 1D below), the first paddle portion and the second paddle portion being angled relative to one another such that the first paddle portion extends in a first direction (see first direction in Annotated Fig. 1D below), and the second paddle portion extends in a second direction (see second direction in Annotated Fig. 1D below) and is separated from the first paddle portion by a bend portion (see bend portion in Annotated Fig. 1D below) such that an angle is defined between the first direction and the second direction (see angle of bend portion in Annotated Fig. 1D below), wherein the first paddle portion defines a first paddle portion center axis parallel to the first direction (see first axis parallel to first direction in Annotated Fig. 1D below), and the second paddle portion defines a second paddle portion center axis parallel to the second direction (see second axis parallel to second direction in Annotated Fig. 1D below), and the second paddle portion center axis intersects the first paddle portion center axis at a location within the bend portion (see intersection in Annotated Fig. 1D below), and extends through a second paddle portion terminal tip (see terminal tip in Annotated Fig. 1D below) that is spaced radially outward of the first paddle portion center axis (see Annotated Fig. 1D below).
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Metzger does not disclose the knob portion is specifically a dodecahedron.
However, Burham teaches (Fig. 6) a method of therapy comprising a second portion (handle 26) and a first portion (massage member 72) where the first portion is a dodecahedron solid (see Fig. 6 and Col. 3 lines 65-68).
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 the shape of the pressure member of Metzger to be a dodecahedron, as taught by Burham, for the purpose of providing a complex working surface for a user having a plurality of massage points, as opposed to a smooth one, so that therapy can be improved. Furthermore, it has been held that, outside evidence of criticality, that changes in shape are a matter of design choice. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Modified Metzger does not disclose the first paddle portion further including an attachment point that is removably attachable to the attachment point of the dodecahedron portion.
However, Dakides teaches (Fig. 1-2) a paddle portion (trunk member 46) further including an attachment point (attachment point 81) that is removably attachable to the attachment point of the knob portion (attachment point of knob 80, see Fig. 1 and paragraph [0058]).
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 dodecahedron portion and paddle portion of modified Metzger such that the first paddle portion further including an attachment point that is removably attachable to the attachment point of the dodecahedron portion, as taught by Dakides, for the purpose of allowing for different sized and/or shaped portions to be attachable to the paddle portion so that user therapy can be customized and adjusted according to diagnosis and user need (paragraph [0058] Dakides).
Regarding claim 19, modified Metzger discloses the second paddle portion is longer than the first paddle portion, and thus does not disclose wherein first paddle portion is longer than the second paddle portion. However, absent evidence of criticality, it has been held that reversal of parts is a matter of design choice and thus would have been obvious to one of ordinary skill to make the first paddle portion of modified Metzger longer than the second paddle portion. In re Gazda, 219 F.2d 449, 104 USPQ 400 (CCPA 1955).
Regarding claim 20, modified Metzger discloses the bend portion forms an angle between the first and second paddle portions, but is silent regarding the specific angle and thus does not disclose the bend portion disposes the second paddle portion at a 30 degree angle from the first paddle portion. However, absent evidence of criticality, one of ordinary skill in the art before the effective filing date of the claimed invention would find it obvious to try to a bend angle of 30 degrees for the purpose of providing a comfortable gripping position for a user, since discovering the optimum value only involves routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claim 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Metzger (US 11,357,688) in view of Burham (US 5,725,484) and Dakides (US 2016/0136032), and further in view of Bystrom (US 2007/0167298).
Regarding claim 17, modified Metzger discloses the second portion is a paddle has a cross-sectional area, but does not disclose an eight-sided cross-sectional area.
However, Bystrom teaches (Fig. 1) an exercise device comprising a handle (elongated body 2) having an eight-sided cross-sectional area (see paragraph [0024] and Fig. 1).
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 paddle of modified Metzger to be eight-sided, as taught by Bystrom, for the purpose of improving a user’s grip during use of device. Furthermore, it has been held that, outside evidence of criticality, that changes in shape are a matter of design choice. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Claim 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Metzger (US 11,357,688) in view of Burham (US 5,725,484) and Dakides (US 2016/0136032), and further in view of Pullaro (US 2002/0165070).
Regarding claim 18, modified Wilkinson discloses the second portion is a paddle having circular cross-sectional area (see Fig. 2 Wilkinson), and therefore does not disclose an four sided cross sectional area.
However, Pullaro teaches (Fig. 8) an exercise device comprising a paddle (handle 202) having a four-sided cross-sectional area (see Fig. 8).
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 paddle of modified Wilkinson to be four-sided, as taught by Pullaro, for the purpose of improving a user’s grip during use of device. Furthermore, it has been held that, outside evidence of criticality, that changes in shape are a matter of design choice. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966)
Allowable Subject Matter
Claims 1-8 and 10-15 are allowed over the prior art. Claim 9 would also be allowable if the 35 USC 112(b) rejection above in this office action is overcome.
Response to Arguments
Applicant’s arguments filed 11/21/2025 have been fully considered.
Claims 1-8 and 10-15 are allowed over the prior art. Claim 9 would also be allowable if the 35 USC 112(b) rejection above in this office action is overcome.
Applicant’s arguments with respect to claim(s) 16 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R MOON whose telephone number is (571)272-2554. The examiner can normally be reached Monday-Thursday 7:30am-5:30pm.
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/MATTHEW R MOON/Examiner, Art Unit 3785
/TIMOTHY A STANIS/Supervisory Patent Examiner, Art Unit 3785