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 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 18-19 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.
Claim 18 recites the limitation "the base" in lines 1 and throughout the rest of the claim. There is insufficient antecedent basis for this limitation in this claim. For examination purposes, examiner interprets claims 18 to be dependent on claim 17 which introduces “the base”.
Claim 19 recites the limitation “the base” in lines 2 and throughout the rest of the claim. There is insufficient antecedent basis for this limitation in this claim. For examination purposes, examiner interprets claims 19 to be dependent on claim 17 which introduces “the base”.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shannon (US 20170020771 A1).
Regarding claim 1, Shannon teaches a back treatment assembly comprising: a frame comprising a rear wall (Fig. 2 support base 6), a first lateral wall (Fig. 2 the left wall), and a second lateral wall (Fig. 2 the right wall), the rear wall being coupled to and extending between the first and second lateral walls (Fig. 2), each of the first and second lateral walls extending forwardly from the rear wall (Fig. 2 shows both the left and right lateral walls extending forwardly) and a back engagement member being mounted to the frame (Fig. 1 shows massage body assembly 2 mounted to the frame of Fig. 2 ), the back engagement member being positioned such that the back engagement member is configured to abut a back of a user (Fig. 7 shows the engagement member abutting a back of a user), the back engagement member extending between the first and second lateral walls (Fig. 1 shows assembly 2 extended between the two lateral walls of Fig. 2).
Regarding claim 2, Shannon teaches the assembly of claim 1.
Shannon further teaches wherein the back engagement member is one of a plurality of back engagement members (Fig. 9 shows a plurality of back engagement members), the plurality of back engagement members being interchangeably mounted to the frame (paragraph 0238 “The user 20 may interchange the parts of the roller massage system as often as necessary according to the body part being treated”), each back engagement member of the plurality of back engagement members being positioned when mounted to the frame configured to abut the back of the user (Fig. 7 where any of the plurality of engagement members of Fig. 9 can be used in the assembly of Fig. 7 which abuts a user’s back), each back engagement member of the plurality of back engagement members extending between the first and second lateral walls when mounted to the frame (the engagement members of Fig. 9 maintain the same position of the massage body assembly 2 of Fig. 1).
Claim Rejections - 35 USC § 103
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 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.
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Shannon (US 20170020771 A1) in view of Ryan (US 6419650 B1).
Regarding claim 3, Shannon teaches the assembly of claim 2.
Shannon further teaches wherein the first lateral wall has a first slot extending into a front edge of the first lateral wall (Fig. 2, bolt head recess 8), the second lateral wall having a second slot extending into a front edge of the second lateral wall (Fig. 2, bolt shank support 10), each first slot being horizontally aligned with an associated second slot (Fig. 2 shows the two slots being aligned).
Shannon is silent wherein the first and second lateral walls have a plurality of slots, each first slot of the plurality of slots being horizontally aligned with an associated second slot of the plurality of second slots.
However, Ryan teaches a plurality of slots (Fig. 1 where there are a plurality of slots 6) on a first and second wall (column 5, lines 34-36 “The rollers 7, 11 and 12 are individually positioned and held in the frame 1 by the spindles 9 of each roller which fit into opposing slots or grooves 6 in the side rails 2 and 3”), each first slot of the plurality of slots being horizontally aligned with an associated second slot of the plurality of second slots (the slots are opposing each other as shown in Fig. 1).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing
date of the claimed invention to have modified the product of Shannon to include a plurality of slots that are horizontally aligned. The plurality of slots allows the device to accommodate multiple engagement members simultaneously or provided areas for added support for additional attachment points for the engagement member.
Regarding claim 4, modified Shannon teaches the assembly of claim 3.
Ryan further teaches wherein each first slot of the plurality of first slots has an L-shape (column 5 lines 52-56 “Capture grooves 6' comprise an L-shaped groove 20 extending downward from the upper surface 21 of the side rail with the horizontal portion of the L-shaped groove 20 being located along the longitudinal axis of the rail”), a first portion of the first slot extending rearwardly from the front edge of the first lateral wall (Fig. 5 where the groove 20 first extends rearwardly from the surface 21), a second portion of the first slot extending downwardly from the first portion of the first slot (Fig. 5 where groove 20 extends downwardly after extending away from the surface 21), each second slot of the plurality of second slots having an L-shape, a first portion of the second slot extending rearwardly from the front edge of the second lateral wall, a second portion of the second slot extending downwardly from the first portion of the second slot (column 5, lines 50-51 teach that both rails 2 and 3 of Fig. 1 are provided with the L-shaped groove and therefore both the first and second slots maintain this L-shaped slot).
Regarding claim 5, modified Shannon teaches the assembly of claim 3.
Shannon further teaches wherein each back engagement member of the plurality of engagement members comprises at least one rod (Fig. 4; paragraph 0211 “massage body assembly 2 which is suspended across the span of the support base 6 by bolt shanks 7c which act as axles”) which engages the selected first slot and the selected second slot when the back engagement member is mounted to the frame (Fig. 1 shows shanks 7c engaged with the slots of the frame 6; paragraph 0218 “This figure shows a loose-fitting connection type that functions without any fastener and is designed to receive the massage body axles (bolt shanks 7c) and hold them in place using fit and gravity alone”).
Claims 6 is rejected under 35 U.S.C. 103 as being unpatentable over Shannon (US 20170020771 A1) in view of Ryan (US 6419650 B1) as applied to claim 5 and in further view of DiVecchio (US 20220031558 A1).
Regarding claim 6, modified Shannon teaches the assembly of claim 5.
Shannon further teaches wherein the at least one rod has a first end (Fig. 4, 7a) and a second end (Fig. 4, 7c), the first end engaging the selected first slot and the second end engaging the associated second slot when the back engagement member is mounted to the frame (Fig. 1 shows 7a and 7c engaging with the slots of the frame).
Modified Shannon is silent wherein the first end and second end are hooked.
However, DiVecchio teaches a first hooked end (Fig. 1, 100A) and a second hooked end (Fig. 1, 100B) that engages with a frame to mount the back engagement member (paragraph 0013 “In order to mount the device, the user extends the first extension tube 112A and second extension tube 112B sufficiently far for first brace 100A and second brace 100B to mate with a frame, such as the sides of a door frame, or other appropriate structure”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing
date of the claimed invention to have modified the product of Shannon to include a hooked first end and hooked second end to engage with the slots when the back engagement member is mounted to the frame. The hooked shape allows the rod to better engage with the L-shaped slots taught in Ryan when combined with Shannon for a more secure fit to the frame.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Shannon (US 20170020771 A1) in view of Ryan (US 6419650 B1) as applied to claim 5 and in further view of Kuo (US 6135972 A).
Regarding claim 7, modified Shannon teaches the assembly of claim 5.
Shannon further teaches wherein the at least one rod has a rear side faces the rear wall when the back engagement member is mounted to the frame (Fig. 1 where rod 7c has a rear side that faces the rear wall of the frame 6).
Modified Shannon is silent wherein the rod has a rear side being concavely arcuate.
However, Kuo teaches a rod with a rear side that can be concavely arcuate (column 1 lines 33-36 “the round rod is flexible, so that the massager bar can be curved to fit the part of the body under massaging”; Figs. 5-6 show the concavely arcuate rod).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing
date of the claimed invention to have modified the product of Shannon to include a rod that is concavely arcuate. This shape can allow the back engagement member to better fit the back of the user and increase the area that the engagement member contacts a user’s back (column 1 lines 33-36 “the round rod is flexible, so that the massager bar can be curved to fit the part of the body under massaging”).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Shannon (US 20170020771 A1) in view of Ryan (US 6419650 B1) as applied to claim 5 and in further view of Yu (US 20240315914 A1).
Regarding claim 8, modified Shannon teaches the assembly of claim 5.
Modified Shannon is silent wherein the plurality of back engagement members includes a sponge engagement member comprising a sponge rotatably mounted around the at least one rod of the sponge engagement member.
However, Yu teaches a sponge engagement member (Fig. 1 roller 110) comprising a sponge (paragraph 0040 “The main body portion 111 is formed of a material such as sponge or polyurethane foam”) rotatably mounted around the at least one rod of the sponge engagement member (Fig. 1; paragraph 0040 “main body portion 111 is coupled to one shaft portion 113 is shown”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of Shannon to include a sponge engagement member. This provides an interchangeable engagement member for the product of Shannon that can feel soft and comfortable when the user leans against it (paragraph 0040 “The main body portion 111 is preferably made of a material that the user can feel soft and comfortable when leaning against the same”) and can provide shock absorption (paragraph 0002 “The main body portion 111 is preferably made of a material that the user can feel soft and comfortable when leaning against the same”).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Shannon (US 20170020771 A1) in view of Ryan (US 6419650 B1) as applied to claim 5 and in further view of Jones (US 20150133271 A1).
Regarding claim 10, modified Shannon teaches the assembly of claim 5.
Modified Shannon is silent wherein the plurality of back engagement members includes a ribbed roller engagement member comprising an elongated roller and a plurality of ribs, the elongated roller being rotatably mounted around and extending along the at least one rod of the ribbed roller engagement member, the plurality of ribs being dispersed along a length of the elongated roller.
However, Jones teaches a ribbed roller engagement member (Fig. 4) comprising an elongated roller (Fig. 4; paragraph 0055 “roller 326”) and a plurality of ribs (paragraph 0055 “transverse peripheral grooves 328a”), the elongated roller being rotatably mounted around and extending along the at least one rod of the ribbed roller engagement member (paragraph 0055 “A roller 326 is rotatably disposed on the axle 320”), the plurality of ribs being dispersed along a length of the elongated roller (paragraph 0055 “The resulting assembled roller 326 comprises a grooved cylindrical roller surface 328 comprising a plurality of transverse peripheral grooves 328a spaced apart along a length of the roller 326”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of Shannon to include a ribbed roller engagement member. This provides an interchangeable engagement member for the product of Shannon that can provide a varied pressure due to the texture which can increase circulation and loosen joints (paragraph 0060 “applies pressure and movement to the skin, flesh, and underlying muscle and tendons of that body portion increasing circulation of blood into this body portion. Further, this exercise also limbers up and loosens the user's joints in this body area”).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Shannon (US 20170020771 A1) in view of Ryan (US 6419650 B1) as applied to claim 5 and in further view of Nagy (US 20220096314 A1).
Regarding claim 11, modified Shannon teaches the assembly of claim 5.
Modified Shannon is silent wherein the plurality of back engagement members includes a spaced roller engagement member comprising a pair of spaced rollers being rotatably mounted around the at least one rod of the spaced roller engagement member.
However, Nagy teaches a spaced roller engagement member (Fig. 17A) comprising a pair of spaced rollers (Fig. 17A shows spaced cylindrical roller 1704 which create a pair of spaced rollers) being rotatably mounted around the at least one rod of the spaced roller engagement member (paragraph 0106 “The foam roller accessory 1700 may include a sleeve 1702, which may fit around and slide onto the support member 814”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of Shannon to include a spaced roller engagement member. This provides an interchangeable engagement member for the product of Shannon that can provide a focused pressure at specific points on a user’s back via only two rollers.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Shannon (US 20170020771 A1) in view of Ryan (US 6419650 B1) as applied to claim 5 and in further view of Lindquist (US 5772614 A).
Regarding claim 13, modified Shannon teaches the assembly of claim 5.
Modified Shannon is silent wherein the plurality of back engagement members includes a spiked wheel engagement member comprising a pair of spaced wheels being rotatably mounted around the at least one rod of the spiked wheel engagement member, a plurality of pointed protrusions being coupled to and extending radially outwardly from each one of the pair of spaced wheels.
However, Lindquist teaches a spiked wheel engagement member (Fig. 11a) comprising a pair of spaced wheels (Fig. 11a shows two rollers spaced by a recessed portion in the center; see column 6 lines 37-42) being rotatably mounted around the at least one rod of the spiked wheel engagement member (Fig. 11a shows the rollers being a mounted on a rod that runs through the rollers), a plurality of pointed protrusions being coupled to and extending radially outwardly from each one of the pair of spaced wheels (column 6 lines 37-40 “FIG. 11a is a perspective view of a novel roller in accordance with this invention in which an elastic band contains a row of uniformly-shaped protrusions 138 and stretched along each side of the recessed mid portion of the roller”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of Shannon to include a spiked wheel engagement member. This provides an interchangeable engagement member for the product of Shannon that can stimulate specific pressure points along a user’s back via the protrusions (column 6, lines 38-42 “an elastic band contains a row of uniformly-shaped protrusions 138 and stretched along each side of the recessed mid portion of the roller, are protrusions serving to stimulate trigger points located along each side of the user's spine”).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Shannon (US 20170020771 A1) in view of Ryan (US 6419650 B1) as applied to claim 5 and in further view of Scott (US 20220183921 A1) and Brawley (US 11013658 B1).
Regarding claim 14, modified Shannon teaches the assembly of claim 5.
Modified Shannon is silent wherein the plurality of back engagement members includes an exfoliating pad engagement member, the at least one rod of the exfoliating pad engagement member comprising a plurality of vertically spaced rods, the exfoliating pad engagement member comprising a pad being mounted around each one of the plurality of vertically spaced rods of the exfoliating pad engagement member, the pad having an engagement surface facing away from the rear wall of the frame when the exfoliating pad engagement member is mounted to the frame, the engagement surface being textured such that the engagement surface is configured for abrading the back of the user.
However, Scott teaches an exfoliating pad engagement member, (Fig. 1, where cover 54 is a pad), the exfoliating pad engagement member comprising a pad (Fig. 2, cover 54) being mounted around a rod (Figs. 3 and 6 where cover 54 is mounted around rod 28) of the exfoliating pad engagement member, the pad having an engagement surface facing away from the rear wall of the frame when the exfoliating pad engagement member is mounted to the frame (Fig. 2 where cover 54 faces away from the backboard 34, which is a frame), the engagement surface being textured such that the engagement surface is configured for abrading the back of the user (paragraph 0023 “The cover 54 may have an elastic perimeter portion 56 extending on to the convex rear face 38 of the backboard to secure the cover 54. The cover 54 is configured to exfoliate skin, apply soap or lotion, or scratch an itch”; Fig. 6 shows use of the device on a user’s back).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of Shannon to include an exfoliating pad engagement member. This provides an interchangeable engagement member for the product of Shannon that can provide care for a user’s back in a hands-free manner (paragraph 0006 “The disclosure relates to back care devices and more particularly pertains to a new back care device for handsfree washing, lotion application, and scratching”).
Modified Shannon is further silent on the at least one rod of the exfoliating pad engagement member comprising a plurality of vertically spaced rods.
However, Brawley teaches a pad comprising a plurality of vertically spaced rods (Fig. 4; column 5 lines 6-8 “Referring to FIG. 4 is a top view of the inner facing of the flexible covering with rods 110 showing the permanently affixed rods and rod ends 108”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of Shannon to include a pad with a plurality of vertically spaced rods. This provides more structure and support to a flexible pad and ensures that the device maintains its structure when pressed against a user’s back.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Shannon (US 20170020771 A1) in view of Ryan (US 6419650 B1) as applied to claim 5 and in further view of Lowe (US 20230346630 A1).
Regarding claim 15, modified Shannon teaches the assembly of claim 5.
Modified Shannon is silent wherein the plurality of back engagement members includes a heat transfer engagement member, the at least one rod of the heat transfer engagement member comprising a plurality of vertically spaced rods, the heat transfer engagement member comprising a body being mounted around each one of the plurality of vertically spaced rods of the heat transfer engagement member, the body comprising a heat transfer medium material configured for alternately heating and cooling the back of the user.
However, Lowe teaches a heat transfer engagement member (Fig. 3, wrap 30), the at least one rod of the heat transfer engagement member comprising a plurality of vertically spaced rods (paragraph 0197 “The exemplary reinforcement members 101 are substantially planar to facilitate attaching to the fluid bladder and maintain a lower profile of the wrap. The thin shape may also reduce wrinkling in the wrap. However, one will appreciate that the reinforcement members may have a three-dimensional shape with a thickness such as a rod, a bar, a box, and more”), the heat transfer engagement member comprising a body (Fig. 3, fluid bladder 37) being mounted around each one of the plurality of vertically spaced rods of the heat transfer engagement member (paragraph 0197 “The exemplary reinforcement members 101 are substantially planar to facilitate attaching to the fluid bladder and maintain a lower profile of the wrap”), the body comprising a heat transfer medium material configured for alternately heating and cooling the back of the user (paragraph 0116 “The wrap includes a pair of layers 33, 35 defining a flexible fluid bladder 37 through which a heated or cooled liquid is circulated”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of Shannon to include a heat transfer engagement member. The teachings of Lowe can be combined with the interchangeable rollers of Shannon to provide an engagement member that can provide thermal therapy to a patient’s back, adding to their recovery (paragraph 0042 “Various aspects of the invention are directed to a therapy wrap for providing treatment to an anatomical body part”).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Shannon (US 20170020771 A1) in view of Wagner (US 8726445 B1).
Regarding claim 16, Simmons teaches the assembly of claim 1.
Simmons is silent on further comprising a mount assembly being selectively engageable with the frame and being configured for mounting the frame to one of an external wall and a column.
However, Wagner teaches a mount assembly (Fig. 2 mounting bracket 20) being selectively engageable with the frame (column 3 lines 41-42 “A brush base 21 is removably coupled to the mounting bracket 20”) and being configured for mounting the frame to one of an external wall and a column (column 3 lines 39-41 “the device 10 generally includes at least one mounting bracket 20 generally installed or attached to a shower wall 100”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of Shannon to include a wall mount assembly. This provides a way to secure the device to a wall when the user intends to use the device for their back (as suggested by Fig. 7 of Shannon) and allows the user fixedly attach the device instead of propping the device against the wall.
Allowable Subject Matter
Claims 9, 12, and 17 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claims 18-19 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Claim 20 is allowed over the prior art.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claims 9 and 20, Alba (US 8640277 B1) teaches a bath pouf engagement member (Fig. 1, roller 20) comprising a bath pouf mounted (column 2 lines 36-40 “Positioned within the open front face are a plurality of tiered, horizontal cleansing rollers 20 each formed of a hollow, perforated tube 4 encapsulated by a sleeve 3. Preferably, each sleeve is constructed with an absorbent, loofah sponge or similar material”) around the at least one rod (Fig. 3 where tube 4 is a rod) of the bath pouf engagement member, the bath pouf comprising a mesh net (One skilled in the art would reasonably expect that a loofah sponge is a mesh net). However, the device of Alba functions to assist elderly people in the shower while bathing, which is a different scope and classification area than the device of Shannon. Therefore, it would not have obvious to modify or combine a bath pouf engagement member with the teachings of Shannon.
Regarding claims 12 and 20, DiVecchio (US 20220031558 A1) teaches a C-shaped accesory (Fig. 1, massage accessory 108) mounted to the at least one rod of the massage gun engagement member (Fig. 1 shows clip 108 mounted to the rod) but the accessory is not a clip designed for a massage gun. The accessory also does not have a size configured for grasping a handle of a percussion massage gun. It would not have obvious to modify or combine a massage gun engagement member with the teachings of Shannon.
Regarding claims 17 and 20, Kozlevcar (US 9849065 B1) teaches wherein a rear wall of the frame has a plurality of mounting holes extending therethrough (Fig. 4 where pins 108 must be in a hole in order for the pins to be mounted to the frame), the plurality of mounting holes being vertically spaced from each other (Fig. 5 shows pins 108 being vertically spaced from each other), and the mount assembly comprises: a base (Fig. 5 where board 101 is a base), a plurality of pegs (Fig. 5, pins 108), each peg of the plurality of pegs having a head and a neck, (Fig. 5 shows a clear pin head on 108 with a corresponding neck).
However, Kozlevcar does not teach the pegs being coupled to and extending away from a front surface of the base, each peg of the plurality of pegs being engageable with an associated one of the plurality of mounting holes of the rear wall of the frame to mount the frame to the mount assembly, the plurality of pegs being aligned along the central vertical plane of the base, the neck being coupled to and extending between the head and the base. Instead, Kozlevcar moreso teaches where the pegs are on the frame and extend towards the base and the neck being coupled to the frame and extending between the head and the frame. Based on the teachings of Shannon, it would not have been obvious nor simple to make the necessary modifications of Shannon when combined with Kozlevcar.
Regarding claims 18 and 20, Wagner teaches a base (Fig. 4, mounting plate 23) of a mount assembly has a pair of openings extending therethrough (Fig. 4 openings 38), each opening of the pair of openings having a size such that the opening is configured for facilitating mounting the base to the external wall (column 5 lines 11-16 “A rear surface 37 of the mounting plate 23 also includes at least one suction cup aperture 38 for removably receiving an insertable end of a suction cup 39. Once the one (1) or more suction cups 39 are attached to the mounting bracket 20, the suction cup 39 can be attached to the surface of the shower wall 100”), the base having a plurality of first apertures and a plurality of second apertures extending therethrough (Fig. 4 where apertures 36 create a first plurality on the left edge and a second plurality on the right edge), the plurality of first apertures being vertically spaced from each other and being positioned adjacent to a first lateral edge of the base (Fig. 4 the left side apertures 36), the plurality of second apertures being vertically spaced from each other and being positioned adjacent to a second lateral edge of the base (Fig. 4 the right side apertures 36), each one of the plurality of first apertures and each one of the plurality of second apertures having a size such that the first and second apertures are configured to facilitate mounting the base to the column (column 5 lines 6-11 “A plurality of fastener apertures 36 is disposed through the mounting plate 23, preferably at corner locations. The mounting brackets 20 can be fastened to the shower wall 100 by a plurality of fasteners”). The apertures of the prior art have the same function to facilitate mounting to the base and the difference in size is not patentably distinguishable. See In re Rose, 220 F.2d 459, 105 USPQ 237 and n Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777. See also MPEP § 2144. However, since the examiner interprets claim 18 to depend from claim 17 as mentioned above, it would not have been obvious to modify Shannon with the teachings of Wagner given the limitations claims in claim 17.
Regarding claims 19 and 20, Wagner (US 8726445 B1) teaches a mount assembly further comprises a plurality of suction cups (Fig. 4, suction cups 39), each one of the plurality of suction cups being removably couplable to a rear surface of the base (column 5 lines 11-13 “A rear surface 37 of the mounting plate 23 also includes at least one suction cup aperture 38 for removably receiving an insertable end of a suction cup 39”), the plurality of suction cups being configured for applying a suction force to mount the base to the external wall (column 5 lines 14-16 “Once the one (1) or more suction cups 39 are attached to the mounting bracket 20, the suction cup 39 can be attached to the surface of the shower wall 100”). Cheong (US 20180103808 A1) teaches each suction cup of the plurality of suction cups having a threaded connection with the base (paragraph 0013 “Each suction device 131 has a suction disc 1311 which is connected via a threaded rod 1312 to a rotary knob 1313 on the other surface of the plate 13, with the threaded rod 1312 penetrating and extending through the plate 13”). Vigiletti (US 7011639 B1) teaches wherein the base is arcuately curved about a vertical axis positioned rearwardly of the base, the base being symmetrically shaped about a central vertical plane of the base (Fig. 2 shows the bowed base 12 that is curved and symmetric about a central vertical axis). However, since the examiner interprets claim 19 to depend from claim 17 as mentioned above, it would not have been obvious to modify Shannon with the teachings of Wagner, Cheong, and Vigiletti given the limitations claims in claim 17.
Conclusion
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/AKHIL A JAYAN/Examiner, Art Unit 3785
/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785