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 the amendment filed 09/09/26. Claim 10 has been amended, no new claims have been added, and claims 1-9 and 11-20 have been cancelled. Thus, claim 10 is presently pending in this application.
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.
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(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hart (2022/0362097) in view of Wersland (2022/0211575) and Rosen (2017/0348143).
With respect to claim 10, Hart discloses an adjustable percussive therapy device (700, fig 7) comprising an applied surface (908, fig 12); a motor (1004, fig 10); a controller (PCB or controller; 1008, fig 10); a thermoelectric surface (906, fig 9), positioned adjacent to the applied surface (see fig 9 and 12) and in thermal communication therewith (see [0081]); an air flow pathway (airflow is created by the fan and heat dissipating device; [0077]); a drivetrain (1000, 1002, 1003 in fig 10 and [0082]); a fan (910, figs 9 and 12); a counterweight (crankshaft; 1003, fig 10; note a crankshaft inherently includes a counterweight) adapted to promote motor generated vibration (see [0059]) wherein the motor is adapted to cause the drivetrain to oscillate to cause reciprocal motion at the applied surface (see [0082] note the massage node 702 includes applied surface 908); wherein the thermoelectric surface is adapted to receive an electric current (see [0106]), and is further adapted to regulate temperature of the applied surface based on the electric current received by the thermoelectric surface (see [0106-107]); and, wherein the controller is adapted to regulate current directed to the thermoelectric surface (see [0107]); and wherein the controller includes a user interface (controls 1012/1014 on LCD in fig 10 and [0084]) permitting, during a treatment session, real-time adjustment of the temperature of the applied surface (control the hot and cold effects; [0084]) and the amplitude of the reciprocal motion of the applied surface (control the various speeds of the motor; see [0084] note the motor controls the shaft 1002 to move back and forth which changed the stroke length (amplitude)), but the current embodiment is silent regarding a vent.
However, Hart teaches an adjustable percussive therapy device (100, fig 1) comprising an applied surface (408, fig 5A); a motor (202, fig 5A); a controller (PCB or controller; 205, fig 5A); a thermoelectric surface (406, fig 5A), positioned adjacent to the applied surface (see fig 5A-5B) and in thermal communication therewith (see [0062]); and a vent (perforations; see [0063]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device of Hart to include a vent as taught by Hart (different embodiment) so as to assist in dissipating heat from the device and avoid overheating and injury to the user.
Further, the modified Hart is silent regarding the amplitude of the reciprocal motion at or below about 5mm and a frequency of the reciprocal motion substantially between about 1000 ppm and about 4000 ppm.
However, Wersland teaches an adjustable percussive reciprocating device (10, fig 1) comprising a motor (brushless motor drivetrain system; 17, fig 3) and a controller (control center; 108, figs 17A-17C); wherein the motor is adapted to cause reciprocal motion at an applied surface (19, fig 4 and see [0085]), the amplitude (strokes, see [0104]) of the reciprocal motion at or below about 5mm (see [0022]) and a frequency of the reciprocal motion substantially between about 1000 ppm and about 4000 ppm (see [0022]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the amplitude and frequency of the modified Hart to be at or below 5mm and between 1000ppm and 4000ppm, respectively, as taught by Wersland so as to provide a small amplitude of reciprocation for vibrating movement (see [0022] of Wersland) and provide optimized therapy specifications (see [0022] of Wersland (‘575)).
Note after the modification by Wersland the amplitude (stroke) is adjusted through different amplitudes and therefore would have two different amplitudes controlled to be at or below 5mm.
Lastly, the modified Hart lacks permitting timer-based alternation of the temperature of the applied surface between a lower and an upper temperature.
However, Rosen teaches a skin treatment device (10, fig 2) comprising a control unit (15, fig 2) permitting timer-based alternation of the temperature of a surface between a lower and an upper temperature (see fig 1 and [0025]) and wherein the surface is adapted for temperature adjustment substantially between about 10 F to about 140 F (see [0025]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the controller of the modified Hart to control surface temperature based on time as taught by Rosen so as to provide control over the occurrence of freezing and may limit supercooling of the skin during a cooling treatment and provide skin treatment while limiting adverse side effects, such as hyperpigmentation. (see [0007] of Rosen).
Response to Arguments
Applicant’s arguments, see pgs. 4-5, filed 09/09/26, with respect to the rejection(s) of claim(s) 10 under 35 USC 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of new prior art Rosen (2017/0348143).
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 KELSEY E BALLER whose telephone number is (571)272-8153. The examiner can normally be reached Monday - Friday 8 AM - 4 PM.
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/KELSEY E BALLER/ Examiner, Art Unit 3785
/TU A VO/ Primary Examiner, Art Unit 3785
