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 01/26/26. Claim(s) 1, 4-7, 10, 16-15, and 17 have been amended, no new claims have been added, and no claims have been cancelled. Thus, claims 1-20 are 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) 1-3, 15-16, 18 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hart (2022/0362097) and Wersland (2022/0211575).
With respect to claim 1, 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); 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]), 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.
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 of the reciprocal motion at or below about 5mm (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 of the modified Hart to be at or below 5mm as taught by Wersland so as to provide a small amplitude of reciprocation for vibrating movement (see [0022] of Wersland).
With respect to claim 2, the modified Hart shows a fan (910, fig 9 of Hart), adapted to direct motion of the air flow pathway (note the fan creates an airflow to remove heat from the thermoelectric surface; see [0077] of Hart).
With respect to claim 3, the modified Hart shows the thermoelectric surface is a Peltier module (see [0076] of Hart).
With respect to claim 15, Hart discloses a method for providing percussive tissue therapy (the device 700 of Hart is capable of performing the function) comprising providing an adjustable percussive therapy device (700, fig 7) comprising an applied surface (908, fig 12); providing a motor (1004, fig 10); providing a controller (PCB or controller; 1008, fig 10); providing a thermoelectric surface (906, fig 9), positioned adjacent to the applied surface (see fig 9 and 12) and in thermal communication therewith (see [0081]); providing an air flow pathway (airflow is created by the fan and heat dissipating device; [0077]); configuring the motor to cause to cause reciprocal motion at the applied surface (see [0082] note the massage node 702 includes applied surface 908); configuring the thermoelectric surface to receive an electric current (see [0106]), and configuring the thermoelectric surface to regulate temperature of the applied surface based on received electric current (see [0106-107]); and, adapting the controller to regulate current directed to the thermoelectric surface (see [0107]) and configuring the air flow pathway to transfer heat away from a heatsink (904, fig 9 and see [0077] where the dissipation device is configured as a heatsink) in thermal communication with the thermoelectric surface (see [0076]), 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]), but is silent regarding the amplitude of the reciprocal motion at or below about 5mm.
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 of the reciprocal motion at or below about 5mm (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 of the modified Hart to be at or below 5mm as taught by Wersland so as to provide a small amplitude of reciprocation for vibrating movement (see [0022] of Wersland).
With respect to claim 16, the modified Hart shows providing a fan (910, fig 9 of Hart), adapted to direct motion of the air flow pathway (note the fan creates an airflow to remove heat from the thermoelectric surface; see [0077] of Hart).
With respect to claim 18, the modified Hart shows configuring the controller (1012/1014; fig 10 of Hart) to regulate temperature of the applied surface between a plurality of hot and cold temperatures as relative to a living human body (see [0084] of Hart).
With respect to claim 20, the modified Hart shows all the elements as claimed above but lacks the motor is adapted to cause reciprocal motion at the applied surface in variable ppm, over one distinct massage treatment, without stopping the motor.
However, Wersland teaches an adjustable percussive reciprocating device (10, fig 1) comprising a motor (brushless motor drive train system; 17, fig 3) and a controller (control center; 108, figs 17A-17C) wherein the motor is adapted to cause reciprocal motion in variable ppm (see [0022]), over one distinct massage treatment, without stopping the motor (see various frequencies in [0022] and ability to toggle through frequencies in [0102]).
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 motor and controller of the modified Hart to include variable ppm as taught by Wersland so as to provide different modes to allow for choosing therapy best suited for the user’s needs.
Claim(s) 10-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hart (2022/0362097).
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); 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), the amplitude of the reciprocal motion restricted to micro percussions (see [0048]); 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 received electric current (see [0106-107]); and, wherein the controller is adapted to regulate current directed to the thermoelectric surface (see [0107]), 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.
With respect to claim 11, the modified Hart shows the applied surface is configured to vibrate while the device is active (see [0083] of Hart).
Claim(s) 4, 7, and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hart and Wersland as applied to claims 1 and 15 above, and further in view of Wersland (2020/0069510).
With respect to claims 4 and 17, the modified Hart shows the controller is adapted to regulate action of a drive train (1000, 1002, 1003 in fig 10 of Hart) (see [0082-83] of Hart), but lacks regulate reciprocal motion between a plurality of different amplitudes.
However, Wersland (‘510) teaches a percussive device (100, fig 1) comprising a controller (see [0074-78]) to regulate a reciprocal motion between a plurality of different amplitudes (see [0080]).
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 include a plurality of different amplitudes as taught by Wersland (‘510) so as to be configurable to have an amplitude deemed therapeutically beneficial (see [0079] of Wersland (‘510)).
With respect to claim 7, the modified Hart shows the motor is adapted to cause reciprocal motion at the applied surface (see [0082] of Hart), but lacks a frequency of the reciprocal motion substantially between about 1000 ppm and about 4000 ppm.
However, Wersland (‘575) 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 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 frequency of the modified Hart to be between 1000ppm and 4000ppm as taught by Wersland so as to provide optimized therapy specifications (see [0022] of Wersland (‘575)).
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hart, Wersland, and Wersland as applied to claim 4 above, and further in view of Williams (2023/0355464).
With respect to claim 5, the modified Hart shows the controller includes the user interface (see claim 1 above) positioned on a body of the device (see fig 10 where the LCD is on housing 704 of Hart) but is silent regarding the interface is a touchscreen interface.
However, Williams teaches a percussive device (1, fig 1a) with a touchscreen display (2, fig 1b) for control (see [0012-13]).
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 LCD interface of the modified Hart to be a touchscreen interface as taught by Williams so as to provide a well-known screen interface for easy control and toggling of the parameters to be adjusted during use.
Claim(s) 6, 8, and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hart, Wersland, and Wersland as applied to claims 1 and 15 above, and further in view of Reinstein (2008/0300529).
With respect to claims 6 and 14, the modified Hart shows the applied surface is adapted for temperature adjustment between high and low temperatures (see [0084] adjusting heating and cooling effects) but lacks the temperatures at least as low as about 10°F and a temperature at least as high as about 140°F.
However, Reinstein teaches a device (fig 2) comprising an applied surface (13, fig 2 and [0068]) adapted for temperature adjustment (via thermoelectric module 14, fig 2) between a temperature at least as low as about 10°F and a temperature at least as high as about 140°F (see [0069]).
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 the modified Hart to include the temperature range as taught by Reinstein so as to provide a wide range of temperatures to allow the user to choose a therapy best suited to him/her.
With respect to claim 8, the modified Hart shows all the elements as claimed above but lacks the applied surface comprises ceramic material.
However, Reinstein teaches a device (fig 2) comprising an applied surface (13, fig 2 and [0068]) comprising a ceramic material (see [0068]).
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 applied surface of the modified Hart to include a ceramic material as taught by Reinstein so as to provide a well-known thermally conductive material (see [0068] of Reinstein).
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hart and Wersland as applied to claim 1 above, and further in view of Edwards (2018/0264245).
With respect to claim 9, the modified Hart shows all the elements as claimed above but lacks the applied surface exhibits a thermal conductivity greater than 50W/mK.
However, Edwards teaches a therapy device (200, fig 1C) with an applied surface (202, fig 1C) exhibiting a thermal conductivity greater than 50W/mK (see [0065]).
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 applied surface of the modified Hart to have a thermal conductivity greater than 50W/mK as taught by Edwards so as to provide a surface that cools the skin on which it is applied (see [0065] of Edwards).
Claim(s) 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hart as applied to claim 10 above, and further in view of Wersland (2022/0211575).
With respect to claim 12, the modified Hart shows all the elements as claimed above but lacks a counterweight adapted to promote motor generated vibration.
However, Wersland teaches an adjustable percussive reciprocating device (10, fig 1) comprising a motor (brushless motor drivetrain system; 17, fig 3) wherein the drivetrain includes a counterweight (28, fig 3) adapted to promote motor generated vibration (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 motor and drivetrain of the modified Hart to include a counterweight as taught by Wersland so as to provide a well-known drive train for providing reciprocating and vibrating therapy to the user.
With respect to claim 13, the modified Hart shows the motor is adapted to cause reciprocal motion at the applied surface (see [0082] of Hart), but lacks the 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 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 frequency of the modified Hart to be between 1000ppm and 4000ppm as taught by Wersland so as to provide optimized therapy specifications (see [0022] of Wersland (‘575)).
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hart, Wersland, and Wersland as applied to claim 17 above, and further in view of Wersland (10,857,064).
With respect to claim 19, the modified Hart discloses all the elements as claimed above but lacks the plurality of different amplitudes are invoked automatically during a distinct pre-programmed massage.
However, Wersland (‘064) teaches a reciprocating device (212, fig 1) comprises a program (protocol or preprogrammed routine) invoking a plurality of different amplitudes (see col. 30, lines 41-61).
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 include preprogrammed routines as taught by Wersland (‘064) so as to provide routines for different ailments, certain activities, and benefits as needed by the user (see col. 30, lines 48-58 of Wersland (‘064)).
Response to Arguments
Applicant's arguments filed 01/26/26 have been fully considered but they are not persuasive. Applicant argues on pg. 9 that "none of the cited references, when viewed alone or in combination, teach or suggest wherein the controller includes a user interface permitting, during a treatment session, real-time adjustment of the temperature applied surface and the amplitude of the reciprocal motion of the applied surface, as required by amended". This is not persuasive since the device of Hart discloses an interface for adjusting the temperature and controlling the device during use (see claims 1, 10, and 15 rejection above). Thus, the rejection stands.
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