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 .
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.
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: massage assembly in claim 1.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation:
“massage assembly”: plurality of massage heads “11” (paragraph [0034] of the specification).
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 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 1-13 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In claim 1, lines 6-7 the limitation “the first end portion can be moved” is unclear since the term “can” renders the limitation indefinite whether the first end portion does or does not move.
In claim 1, line 9 the limitation “support can be moved” is unclear since the term “can” renders the limitation indefinite whether the support does or does not move.
In claim 3, line 6 the limitation “the second casing can be moved” is unclear since the term “can” renders the limitation indefinite whether the second casing does or does not move.
In claim 12, lines 5-6 the limitation “the angle of the support relative to the clamp arm can be fine-tuned” is unclear since the term “can” renders the limitation indefinite whether the angle is or is not fine-tuned.
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) 1-4 and 8-9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lin (CN217645517).
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Annotated fig 3 of Lin.
With respect to claim 1, Lin discloses a massage device (100, fig 1), comprising a main body (10, fig 1) having a massage assembly (20 and 40, fig 1); a clamp arm (see annotated fig 3 of Lin) connected to the main body (see fig 1); a slider (slide assembly; 50, fig 3) comprising a first end portion (see annotated fig 3 of Lin) and a second end portion (see annotated fig 3 of Lin) spaced apart from the first end portion, the first end portion is movably connected to the clamp arm (see annotated fig 3 of Lin and [0041]), such that the first end portion can be moved relative to the clamp arm (see [0041]); and a support (see annotated fig 3 of Lin) connected to the second end portion of the slider, such that the support can be moved relative to the clamp arm (see connection of 50 to 41 and [0041]).
With respect to claim 2, Lin discloses the clamp arm comprises a first casing (bracket; 32, fig 7), the first casing having a passage (sliding cavity; 514, fig 8) formed along a first direction (cavity extends in the left and right direction (x-axis) in fig 7), and a positioning structure (slide bar; 512, fig 8) extending a second direction (in the vertical (y-axis) direction in fig 7); the slider further comprises a connection portion (522, fig 9) movably received in the passage (see [0044]), the first end portion and the second end portion are connected to two opposite sides of the connection portion (see connections in fig 3 and 4), the first end portion is movably connected to the positioning structure during movement of the slider along the second direction (see fig 3 and [0044]).
With respect to claim 3, Lin discloses the support comprises a second casing (casing/housing of 52, fig 7), the second casing having a fixing hole (522d, fig 10) formed along the first direction, the connection portion extending through the fixing hole (see connection portion in 522d of fig 10), and the second end portion of the slider are arranged on the second casing (see fig 4), the connection portion is engaged in the fixing hole, such that the slider and the second casing can be moved together relative to the first casing (see [0044] and fig 3).
With respect to claim 4, Lin discloses the first end portion comprises a positioning portion (523, fig 10) protruding along a third direction (protruding outward from the page), the positioning structure comprises a locking strip (512a/b, fig 8) and a guide strip (512c, fig 8), and the first end portion is arranged between the locking strip and the guide strip (see first portion as annotated in fig 3 where the first portion extends beneath the locking strip and guide strip (the guide and locking are on the first portion), the locking strip comprises a plurality of profiling grooves (513, fig 8) each matching the shape of the positioning portion (see 513 matching 523; [0045]), the profiling grooves are arranged along the second direction, the positioning portion is movably received in one of the profiling grooves (see [0045]).
With respect to claim 8, Lin discloses the clamp arm further comprises an outer shell (43, fig 3), a supporting piece (41a, fig 11) and a connecting piece (41d, fig 11), the outer shell is fastened with the first casing to form a first accommodating cavity (see annotated fig 3 of Lin), and the supporting piece, the connecting piece and the first end portion are accommodated in the first accommodating cavity (see annotated fig 3 of Lin), the connecting piece is arranged between the supporting piece and the first casing (see figs 3 and 11), the supporting piece is detachably connected with the first casing (note the pieces are modular and capable of being detached), and the outer shell is arranged on a side of the supporting piece away from the connecting piece (see fig 11 where the outer shell is on the right of the supporting piece and the connecting piece is on the left side), and the first end portion is arranged on a side of the connecting piece away from the supporting piece (see fig 3 where the end portion is on the left side of the connecting piece and the supporting piece is on the right side of the connecting piece).
With respect to claim 9, Lin discloses the clamp arm further comprises a control board (500, fig 11), the control board is arranged between the connecting piece and the first casing, the control board is provided with a button contact (501, fig 11) on the side close to the connecting piece (see figs 11 and 3), and the connecting piece is provided with a pressing block (see annotated fig 3 of Lin) capable of moving along the first direction (in x-axis direction when using function buttons), and the pressing block is arranged correspondingly to the button contact (see annotated fig 3 of Lin).
Allowable Subject Matter
Claims 5-7 and 10-13 are allowed.
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. CN109350476, CN109954226, CN110339034, KR20200020377, CN110882481, CN111228100, WO2021103567 are cited to show additional neck massagers.
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