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 06/21/24. No claims have been amended, new claims 20-38 have been added, and claims 1-19 have been cancelled. Thus, claims 20-38 are presently pending in this application.
Claim Objections
Claims 21-22 are objected to because of the following informalities: In claims 21-22, line 1 "the pistons" is suggested to be changed to --the plurality of pistons--. Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function. Such claim limitation(s) is/are: mounting means in claim 25
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: first recording facility in claim 34; second recording facility in claim 35; first stop facility in claim 36; and second stop facility in claim 37.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 23-24 and 32-37 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
In claim
In claim
In claim 33, the limitation "learning means" in line 1 lacks adequate written description in Applicant's specification. Applicant's disclosure merely describes the learning means as a learning arm (pg. 5) which is a generic term that provides no other structure to arrive at the function as claimed to learn manual manipulating movements. Applicant's specification does not provide enough description of the learning means to determine the structure or how the structure is capable to realize manual manipulating movements of a practitioner. The specification does not adequately describe the limitation and therefore does not have possession of the claimed invention.
In claims 34 and 35, the limitations "a first recording facility" and "a second recording facility" in line 1, in each instance, lacks adequate written description in Applicant's specification. Applicant's disclosure merely describes the recoding facility as --may be in a single memory means-- which provides no other structure to arrive at the function as claimed. Applicant's specification does not provide enough description of the recording facility to determine the structure or how the structure is capable to realize a movement of the apparatus. The specification does not adequately describe the limitation and therefore does not have possession of the claimed invention.
In claims 36-37, the limitations "a first stop facility" and "a second stop facility" in line 1, in each instance, lacks adequate written description in Applicant's specification. Applicant's disclosure merely describes the stop facility function as stopping operation of the apparatus which provides no structure to arrive at the function as claimed. Applicant's specification does not provide enough description of the stop facility to determine the structure or how the structure is capable to realize stopping operation. The specification does not adequately describe the limitation and therefore does not have possession of the claimed invention.
All remaining claims are rejected based on their dependency of a rejected base claim.
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.
Claims 23-24 and 32-37 are 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 pre-AIA the applicant regards as the invention.
Claim limitations “control means" (claim 23); “securing means” (claim 32); “learning means" (claim 33); "first recording facility" (claim 34); "second recording facility" (claim 35); "first stop facility" (claim 36); and " second stop facility” (claim 37) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. Applicant's disclosure is devoid of any structure that performs the function as claimed Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
In claim 35, line 1 the limitation “a second recording facility” is unclear if there is a first recording facility and the second facility is in addition to or if the second is only one facility.
In claim 37, line 1 the limitation “a second stop facility” is unclear if there is a first stop facility and the second facility is in addition to or if the second is only one facility.
All remaining claims are rejected based on their dependency of a rejected base claim.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 20-21, 25, 28-32, and 38 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hu (CN108056904).
With respect to claim 20, Hu discloses an apparatus for giving automated manipulation of soft tissue parts of a person's body (back massage device, [0002] of translation), wherein the apparatus comprises at least one manipulating device (4/5, fig 2) for manipulating the soft tissue parts (back massage device; [0002] of translation); and at least one frame (3, fig 1) on which the manipulating device is mounted ([0030] of translation), and wherein the frame is configured such that the manipulation device is movable in use along the person's body when the person is lying on a treatment table (bedside; [0030] of translation); and the manipulation device comprises a plurality of pistons (304, fig 7) for performing the manipulation of the soft tissue parts (see [0027] of translation).
With respect to claim 21, Hu discloses the pistons are hydraulically operated pistons (see [0027] of translation).
With respect to claim 25, Hu discloses mounting means (303, fig 7) for mounting the manipulating device (see [0024] of translation) with respect to the frame such that the manipulating device is able to follow contours of the soft tissue parts requiring the manipulation (see [0027] of translation where the manipulating device is slidably mounted allowing following the contours of the user’s back).
With respect to claim 29, Hu discloses a connector means (clamp; 1, fig 3) for connecting the frame to the treatment table (bedside; see [0030] of translation).
With respect to claim 30, Hu discloses the connector means comprises a support rail (102, fig 4).
With respect to claim 31, Hu discloses there are two of the frames (305/306, fig 7).
With respect to claim 32, Hu discloses securing means (fixedly mounted) for securing the two frames together (see [0027] of translation).
With respect to claim 38, Hu discloses the treatment table (bedside; see [0030] of translation).
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) 22-24 and 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hu in view of Kahn (2003/0212353).
With respect to claim 22, Hu discloses the hydraulic pistons (see claim 21 above) but is silent regarding the pistons are sprung loaded pistons.
However, Kahn teaches a massage device (10, fig 5) with spring loaded pistons (see [0042]).
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 hydraulic pistons of Hu to be spring loaded pistons as taught by Kahn so as to replace one known piston with another to provide massaging to the user.
With respect to claim 23, Hu discloses all the elements as claimed above but is silent regarding control means for controlling the operation of the manipulating device.
However, Kahn teaches a massage device (10, fig 5) with a controller (28, fig 5) for controlling the operation of a manipulating device (12, fig 5; and see [0035]) and pistons (26, 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 have modified the apparatus of Hu to include a controller as taught by Kahn so as to allow for a programmable control over the apparatus (see [0035] of Kahn).
With respect to claim 24, the modified Hu shows the control means is configured to control all the pistons together (see [0035] of Kahn), whereby all the pistons exert substantially the same pressure on the soft tissue parts (see [0008] of Kahn).
With respect to claim 28, Hu discloses there are two of the manipulating devices (two massage parts 4/5 in fig 2), but is silent regarding each manipulating device producing the same pressure.
However, Kahn teaches a massage device (10, fig 5) with a controller (28, fig 5) for controlling the operation of a manipulating device (12, fig 5; and see [0035]) and each manipulation device producing the same pressure (see [0008]).
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 manipulating device of Hu to provide the same pressure as taught by Kahn so as to provide equal pressure for constant and safe therapeutic massage.
Claim(s) 26-27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hu in view of Nissim (2001/0014781).
With respect to claim 26, Hu discloses mounting means (as seen in claim 25 above) but lacks the mounting means is a pivot mounting means.
However, Nissim teaches a massage apparatus (1, fig 1A) with mounting means (see fig 1A and [0053] mounting means not drawn) is a pivot mounting means (rotational motion clockwise and counterclockwise; [0053]).
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 mounting means of Hu to include pivot mounting means as taught by Nissim so as to allow for clockwise and counterclockwise motion for moving the massage apparatus different directions along the user’s body.
With respect to claim 27, the modified Hu shows all the elements as claimed above but lacks the pivot mounting means comprises a ball joint.
However, Nissim teaches a massage apparatus (1, fig 1A) with mounting means (see fig 1A and [0053] mounting means not drawn) is a pivot mounting means (rotational motion clockwise and counterclockwise; [0053]) of a ball joint (see [0056]).
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 pivot mounting means of modified Hu to include a ball joint as taught by Nissim so as to enable rotation about more than one axis (see [0056] of Nissim).
Claim(s) 33-35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hu in view of Einav (8,545,420).
With respect to claim 33, Hu discloses all the elements as claimed above but lacks learning means for enabling the apparatus to learn manual manipulating movements of a practitioner manually manipulating the soft tissue parts of the person's body, and in which the apparatus is configured to operate in an automated mode but with the learnt manual manipulating movements.
However, Einav teaches a massage device (100, fig 1) with learning means (see col. 25, lines for enabling the apparatus to learn manual manipulating movements of a practitioner manually manipulating the soft tissue parts of the person's body, and in which the apparatus is configured to operate in an automated mode but with the learnt manual manipulating movements (see Abstract and col. 2, lines 31-41).
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 apparatus of Hu to include learning means as taught by Einav so as to provide robotic massage therapy similar to that of a human for an accurate and thorough massage.
With respect to claim 34, the modified Hu shows a first recording facility for recording the manual manipulating movements, and control means for enabling the apparatus to operate in the automated mode but with the learnt manual manipulating movements (see col. 25, lines 7-16 of Einav).
With respect to claim 35, Hu discloses all the elements as claimed above but lacks a second recording facility for recording details of the person for use when the person is being treated on a subsequent occasion.
However, Einav teaches a massage device (100, fig 1) with a recording facility (recorded/prerecorded) for recording details of the person for use when the person is being treated on a subsequent occasion (see col. 24, lines 31-37).
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 apparatus of Hu to include recording facility as taught by Einav so as to provide movement playback for future therapies.
Claim(s) 36-37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hu in view of Tan (WO2021/208385).
With respect to claim 36, Hu discloses all the elements as claimed above, but lacks a first stop facility for stopping operation of the apparatus on a temporary basis for allowing examination of the person by a practitioner during a treatment session.
However, as best understood Tan teaches a massage device (100/200/300, fig 1) with a first stop facility (emergency stop button; 10, fig 1) for stopping operation of the device (see [0033] of translation) on a temporary basis for allowing examination of the person by a practitioner during a treatment session (note once stopped the practitioner is capable of performing an exam and then restarting the device).
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 apparatus of Hu to include a stop facility as taught by Tan so as to improve the safety of the massage apparatus (see [0033] of Tan translation).
With respect to claim 37, Hu discloses all the elements as claimed above, but lacks a second stop facility for enabling a person to stop the apparatus.
However, as best understood Tan teaches a massage device (100/200/300, fig 1) with a stop facility (emergency stop button; 10, fig 1) for enabling a person to stop the apparatus (see [0033] of translation).
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 apparatus of Hu to include a stop facility as taught by Tan so as to improve the safety of the massage apparatus (see [0033] of Tan translation).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Silver (11819296), Hill (2019/0365597), Yang (7998098), Nagano (2010/0286569), and Ray (2002/0091341) are cited to show additional massage apparatuses.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Justine Yu can be reached at 571-272-4835. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KELSEY E BALLER/ Examiner, Art Unit 3785
/TU A VO/ Primary Examiner, Art Unit 3785