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 .
Claim Objections
Claim 5 is objected to because of the following informalities:
Claim 5 line 2 reads “a handle extension portion to the removable handle portion”, should instead read –the handle extension portion to a removable handle portion--, as there is no removable handle portion in claim 1.
Claim 13 line states “and the extension extending from the disk to extend from a circumference of the flat circular surface”, should instead read and ---an extension extending from the disk that’s extends from a circumference of the flat circular surface--, as claims 6, 2, or 1 do not mention an extension.
Claim 20 line 2 states “the adaptor to repeatedly to move”, should instead read --- the adaptor to repeatedly move--.
Appropriate correction is required.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Schwarz et al. 2019/0262222 in view of Wu et al. 2010/0160841
Regarding claim 1, Schwarz discloses a massager comprising: a housing (Oscillating multitool 102) forming a massage head portion (Portion containing output shaft 126) and a handle extension portion extending from the massage head portion (Figure 2 depicts elongated housing 112 extending from the massage head portion); and a removable massager attachments that include a first oscillating massager attachment (Figure 7 depicts an attachment 104a with massage head 110c which provides a sweeping side to side motion, 0047) and a percussion attachment (Figure 2 depicts attachment 104 with massage element 110, that goes through percussive motion, as stated in 0037). that are removably connectable to the massage head portion (0018, removably coupled), the percussion attachment having an extension that extends in a radially outward direction beyond an outer circumferential surface of said percussion attachment (Figure 3 depicts attachment shaft 134 extending beyond base plate 132, base plate 132 contains a circumferential surface on the bottom as depicted in figure 5. Figure 9 depicts a better view of this.), and the first oscillating massager attachment and the percussion attachment both being rotatable on the massage head portion (0047 states that “These respective ranges of motion will vary as different rotational mounting orientations are selected using the attachment plate depicted in FIG. 5.”).
Schwarz fails to teach wherein the first oscillating massager attachment having a plurality of protrusions extending from a first surface. Wu discloses an analogous massaging device that does teach wherein the first oscillating massager attachment having a plurality of protrusions extending from a first surface (Figure 6 depicts an oscillating attachment of 30, which contains a plurality of protrusions extending from the surface.). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Schwarz with the teachings of Wu and include wherein the first oscillating massager attachment having a plurality of protrusions extending from a first surface as this would aid in providing a soft massaging effect to the user (0035).
Claims 2-6, 13-16, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over modified Schwarz, in view of Marton et al. 2019/0254922
Regarding claim 2, modified Schwarz teaches the massage of claim 1, but fails to teach wherein the massage head portion is a cylindrical shape that forms a first surface opposite a second surface having a sidewall between the first surface and the second surface. Marton discloses an analogous massage device that does teach wherein the massage head portion is a cylindrical shape (Upper body portion 112 is in a cylindrical shape) that forms a first surface (Front end of upper body portion 112 that contains sleeve 400 is the first surface ) opposite a second surface (main body endcap 140) having a sidewall between the first surface and the second surface (Figure 2 depicts a sidewall between the two surfaces of the cylinder). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to further modify modified Schwarz with the teachings of Marton and include wherein the massage head portion is a cylindrical shape that forms a first surface opposite a second surface having a sidewall between the first surface and the second surface as this allows for the inclusion of a motor housing (0041-0042).
Regarding claim 3, modified Schwarz teaches the massager of claim 1, but fails to teach wherein the handle extension portion extends from the sidewall of the massage head portion. Marton does teach wherein the handle extension portion extends from the sidewall of the massage head portion (Figure 2 depicts outer receiving enclosure 130 extending from the sidewall and the body of the cylindrical body). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to further modify modified Schwarz with the teachings of Marton and include wherein the handle extension portion extends from the sidewall of the massage head portion as this allows for the inclusion of a battery perpendicular to the motor housing (0041-0042).
Regarding claim 4, modified Schwarz teaches the massager of claim 1, but fails to teach wherein the handle extension portion is removably connectable to a removable handle portion. Marton further teaches wherein the handle extension portion (130) is removably connectable to a removable handle portion (Battery assembly 132 is removable as shown in figure 9). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to further modify modified Schwarz with the teachings of Marton and include wherein the handle extension portion is removably connectable to a removable handle portion as this would allow for the battery assembly to be charged while it is removed from the device (0074).
Regarding claim 5, modified Schwarz teaches the massager of claim 1, but fails to teach further comprising a lock ring that removably connects the handle extension portion to the removable handle portion. Marton further teaches further comprising a lock ring that removably connects a handle extension portion to the removable handle portion (As shown in Figure 6, engagement tabs 220 and 222 acting as a lock ring as it performs the same function of keeping the handle extension portion removably connected to the removable handle portion in battery assembly 132, furthermore the device itself does disclose a ring as a locking mechanism for an additional handle extension in plastic ring 264, therefore if necessary one of ordinary skill in the art could simply replace the engagement tabs with a locking ring structure.). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to further modify modified Schwarz with the teachings of Marton and include a lock ring that removably connects a handle extension portion to the removable handle portion as this would allow for the securement of the battery assembly to the device (0047).
Regarding claim 6, modified Schwarz in view of Marton teaches the massager of claim 2, wherein the massage head portion has an adaptor that extends outward from the first surface of the massage head portion (output shaft 126 of Schwarz extends outward from the first surface of tool 102 as seen in figure 2.).
Regarding claim 13, modified Schwarz in view of Marton teaches the massager of claim 6, wherein the percussion attachment has a flat circular surface of a disk (Base plate 132 has individual slots 150 that make up a circular like disk) and an extension extending from the disk to extend from a circumference of the flat circular surface (remainder of base plate 232 and shaft 234 as depicted in figure 9).
Regarding claim 14, modified Schwarz in view of Marton teaches the massager of claim 13, further comprising a spherical member that is connected to a free end of the extension (Figure 3 of Schwarz depicts element 110 in a hemispherically shaped manner, 0034).
Regarding claim 15, modified Schwarz in view of Marton teaches the massager of claim 13, further comprising a half-cylinder that is continuous with the extension that protrudes from a first side of disk (Figure 10 of Schwarz depicts a half-cylinder extending from shaft 234 and behind massage element head 210.).
Regrading claim 16, modified Schwarz in view of Marton teaches the massager of claim 15,wherein the disk (bottom portion of base plate 132) has a depression that is complementary to the shape of the adaptor on a side of the disk that is opposite the half-cylinder (semi-circular opening 148 is complimentary to the shape of the attachment chunk assembly 124 which includes drive shaft 126, and is located opposite shaft 134, as it is on the bottom of base plate 132.).
Regarding claim 18, modified Schwarz in view of Marton teaches the massager of claim 5, but fails to teach wherein the removable handle portion has a casing that forms an interior volume that allows for storage of a USB cable. Marton further discloses wherein the removable handle portion has a casing that forms an interior volume that allows for storage of a USB cable (Figure 9 depicts a casing of 210 and 212 that forms an interior volume). Although the interior is not explicitly claimed as being for the storage of a USB cable, the structure as claimed would be able to hold a USB cable. It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to further modify modified Schwarz and include wherein the removable handle portion has a casing that forms an interior volume that allows for storage of a USB cable as this would allow for a convenient location to store the charging cable of the device.
Claims 7, 9, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over modified Schwarz in view of Marton and further in view of Nichols et al. (US 2013/0060176)
Regarding claim 7, modified Schwarz in view of Marton teaches the massager of claim 6, but fails to teach wherein the adaptor is an octagon shape. However, Nichols discloses an analogous handheld motorized facial massager which does teach wherein the adaptor is an octagon shape (Figure 8 depicts a polygon shaped drive spindle 76 that receives the head 14a). It would have been prima facie obvious for one of ordinary skill in the art to modify modified Schwarz and include the teaching of Nichols as this adaptor shape allows for the massage head to be moved in multiple different directions relative to the body of the massager, allowing for rotation and oscillation (0043).
Although not explicitly disclosing an octagon shape, the courts have held that a change in shape alone, without demonstration of the criticality of a specific limitation, may be considered obvious to a person of ordinary skill in the art to include wherein the adaptor is an octagon shape as any type of polygon shape would provide the massaging head with sufficient degrees of movement.
Regarding claim 9, modified Schwarz in view of Marton teaches the massager of claim 6, but fails to disclose wherein the adaptor is rotatable. Nichols does disclose wherein the adaptor is rotatable (The adaptor is classified as a drive spindle meaning it will have to rotate, in order for the massage head to also rotate). It would have been prima facie obvious for one of ordinary skill in the art to further modify modified Schwarz and include wherein the adaptor is rotatable, as this allows for the massage head to be moved in multiple different directions relative to the body of the massager, allowing for rotation and oscillation (0043).
Regarding claim 17, modified Schwarz in view of Marton and Nichols teaches the massager of claim 7, wherein the percussion attachment can be oriented in different ways to enable different angles of massage (Paragraph 0038 of Schwarz discusses the use of different connection orientations, which allows for different massaging angles to occur.). wherein the shape of the adaptor (Figure 8 of Nichols depicts a polygon shaped drive spindle 76 that receives the head 14a) and the depression that is complementary to the shape of the adaptor (tip 74) on the disk allow connection of the percussion attachment to the massage head portion in different orientations (the hexagonal shape of the connection would allow for any attachment to be attached at six different angles due to the nature of the adaptor structure.).
It would have been prima facie obvious for one of ordinary skill in the art to modify modified Schwarz and include wherein the shape of the adaptor and the depression that is complementary to the shape of the adaptor on the disk allow connection of the percussion attachment to the massage head portion in different orientations as this adaptor shape allows for the massage head to be moved in multiple different directions relative to the body of the massager, allowing for rotation and oscillation (0043).
Although not explicitly disclosing an octagon shape, the courts have held that a change in shape alone, without demonstration of the criticality of a specific limitation, may be considered obvious to a person of ordinary skill in the art to include wherein the adaptor is an octagon shape as any type of polygon shape would provide the massaging head with sufficient degrees of movement.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable modified Schwarz in view of Marton, further in view of Wersland et al. 2021/0401663.
Regarding claim 8, modified Schwarz in view of Marton teaches the massager of claim 6, but fails to teach wherein the adaptor is made of magnetic materials. Wersland discloses an analogous therapy device that does disclose wherein the adaptor is made of magnetic materials (Figure 2 illustrates magnet 27 within the attachment member 26). It would have bene prima facie obvious for one of ordinary skill in the art to further modify modified Brunson with the teachings of Wersland and include wherein the adaptor is made of magnetic materials as the use of a magnet allows for the attachment of the attachment member through magnetic attraction (0062).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over modified Schwarz in view of Marton, further in view of Chen et al. JP 3177147
Regarding claim 11, modified Schwarz in view of Marton teaches the massager of claim 6 and a first oscillating massager, but fails to teach four protrusions in a square pattern that extend from a flat circular surface of a disk and the disk has a depression that is complementary to the shape of the adaptor on a side of the disk that is opposite the four protrusions. Chen discloses an analogous hand-held massager that does disclose wherein the plurality of protrusions are four protrusions in a square pattern that extend from a flat circular surface of the first surface of a disk (Massage head 80 is an oscillating massage head that has four protrusions in a square pattern that extend from a plate as seen in figure 6) and the disk has a depression that is complementary to the shape of the adaptor on a side of the disk that is opposite the four protrusions (Figure 4 depicts the back of massage head 80 having a connecting portion 82 that is complementary to adaptor 60). It would have been prima facie obvious to one of ordinary skill in the art to further modify modified Schwarz with the teachings of Chen include four protrusions in a square pattern that extend from a flat circular surface of a disk and the disk has a depression that is complementary to the shape of the adaptor on a side of the disk that is opposite the four protrusions as this allows for rotation of the massage head in different directions, enhancing the massage experience for the user.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over modified Schwarz in view of Marton, further in view of Nazarian et al. 2019/0015294
Regarding claim 12, modified Schwarz in view of Marton teaches the massager of claim 6, but fails to teach further comprising a second oscillating massager attachment that has two protrusions that extend on opposite sides of a flat circular surface of a disk and the disk has a depression that is complementary to the shape of the adaptor on a side of the disk that is opposite the two protrusions. Nazarian discloses an analogous attachment system for a massager that does disclose further comprising a second oscillating massager attachment that has two protrusions that extend on opposite sides of a flat circular surface of a disk and the disk has a depression that is complementary to the shape of the adaptor on a side of the disk that is opposite the two protrusions (Figure 15 depicts two protrusions extending upwards from a main body portion 112, that contains a flat circular surface at the very bottom. This attachment contains shaft recess 24 which compliments the adaptor seen on top of shaft 102 on figure 13). It would have been prima facie obvious for one of ordinary skill in the art to modify modified Schwarz with the teachings of Nazarian and include further comprising a second oscillating massager attachment that has two protrusions that extend on opposite sides of a flat circular surface of a disk and the disk has a depression that is complementary to the shape of the adaptor on a side of the disk that is opposite the two protrusions as this allows for a connection of the massaging attachment to the massage gun.
Claim 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over modified Schwarz in view of Marton and further in view of Brunson et al. 10,463,531
Regarding claim 19, modified Schwarz in view of Marton teaches the massager of claim 6, but fails to disclose wherein the first oscillating massager attachment is repeatedly rotated by the adaptor clockwise and then counterclockwise to apply oscillating massage when the first oscillating massager attachment is connected to the massage head portion. Brunson discloses an analogous massager that does teach wherein the first oscillating massager attachment (end effector 120) is repeatedly rotated by the adaptor (Column 6 line 44 states that “the end effector includes a drive assembly that engages a drive hub of the appliance when the end effector is releasably coupled to the appliance, and the motor is operatively coupled to the drive hub such that operation of the motor causes movement of the drive hub that is transferred to the drive assembly to move the end effector”) clockwise and then counterclockwise to apply oscillating massage when the first oscillating massager attachment is connected to the massage head portion (Column 10 line 57 states that “Motion that is a regular periodic motion bi-directionally about a neutral position in a plane largely perpendicular to the skin surface” Furthermore, figure 9b depicts this movement of the massage head in this manner.). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to further modify modified Schwarz in view of Brunson to include wherein the first oscillating massager attachment is repeatedly rotated by the adaptor clockwise and then counterclockwise to apply oscillating massage when the first oscillating massager attachment is connected to the massage head portion as this type of movement allows for the stimulation of a portion of the skin (abstract).
Regarding claim 20, modified Schwarz in view of Marton teaches the massager of claim 14 and the spherical member (massage head 110 of Schwarz), but fails to teach wherein the spherical member is rotated by the adaptor to repeatedly to move the spherical member clockwise and then move the spherical member counterclockwise to apply pulses of pressure to a body of a user for percussion massage when the percussion attachment is connected to the massage head portion. Brunson further discloses wherein the massage member is rotated by the adaptor to repeatedly to move the member clockwise and then move the member counterclockwise to apply pulses of pressure to a body of a user (Column 10 line 57 states that “Motion that is a regular periodic motion bi-directionally about a neutral position in a plane largely perpendicular to the skin surface”). It would have been prima facie obvious for one of ordinary skill in the art to further modify modified Schwarz to include wherein the member is rotated by the adaptor to repeatedly to move the spherical member clockwise and then move the spherical member counterclockwise to apply pulses of pressure to a body of a user for percussion massage when the percussion attachment is connected to the massage head portion as this type of movement allows for the stimulation of a portion of the skin (abstract).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over modified Schwarz in view of Marton and Nichols, further in view of Brunson
Regarding claim 21, modified Schwarz in view of Marton and Nichols teaches the massager of claim 9, but fails to teach wherein the adaptor oscillates by repeatedly rotating clockwise and then counterclockwise. Brunson discloses wherein the adaptor oscillates by repeatedly rotating clockwise and then counterclockwise (Column 10 line 57 states that “Motion that is a regular periodic motion bi-directionally about a neutral position in a plane largely perpendicular to the skin surface”). It would have been prima facie obvious for one of ordinary skill in the art to further modify modified Schwarz in view of Brunson to include wherein the adaptor oscillates by repeatedly rotating clockwise and then counterclockwise as this type of movement allows for the stimulation of a portion of the skin (abstract).
Response to Arguments
Applicant’s arguments with respect to claim 1 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
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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/ROHAN PATEL/Examiner, Art Unit 3785
/BRANDY S LEE/Supervisory Patent Examiner, Art Unit 3785