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 preliminary amendment filed on 07/11/2023. As directed by the amendment, no claims were canceled, claims 1-15 were amended, and claims 16-19 were newly added. Thus, claims 1-19 are presently pending in this application.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “a roller arrangement” of claim 4 lines 1-2 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided. The legal phraseology in the Abstract includes “comprises” in line 1.
Claim Objections
Claims 1-19 are objected to because of the following informalities:
Regarding claim 1 line 2-3 and line 4-5, the term “the structural support element” should read --the extended structural support element-- for continuity in the naming of the structure from claim 1 line 2. The same applies for claim 1 line 7 with the term “the support structure”. These corrections should be applied through all claims naming the specific structure.
Regarding claim 2 line 3, the term “the at least two gripping members” should read --the two gripping members-- for continuity in the name of the structure from claim 1 line 4. The same applies for claim 2 line 4-5 with the term “the gripping members”. These corrections should be applied through all claims naming the specific structure.
Regarding claim 2 line 4, the term “the massage member” should read --the at least one massage member-- for continuity in the naming of the structure from claim 1 line 3. These corrections should be applied through all claims naming the specific structure.
Regarding claim 1 line 6, the term “their arms” should read --the user’s arms-- for clarity and specificity to the already claimed language. The same applies for claim 9 line 3 with the term “their back”. The same applies for claim 15 lines 3, 4-5, and 7 with the use of the term “their” and “they”. These corrections should be applied through all claims naming the specific structure.
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.
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:
“a roller arrangement” of claim 4 lines 1-2
Corresponding structure is “at least one roller ball-bearing arrangement may be disposed on the extended structural support about a back side of the plane and/or on a planar back surface” (specification page 5 lines 17-19).
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 1-19 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.
Regarding claim 1 line 4, the term “two gripping members” is unclear as to if the term is the same or different than earlier in line 4.
Regarding claim 2 line 2 and claim 6 line 2, the term “the positions” is indefinite because it lacks proper antecedent basis.
Regarding claim 7 line 1, claim 8 line 1-2, claim 12 line 2, claim 13 line 2, claim 18 line 1, and claim 19 line 1, the term “the distance” is indefinite because it lacks proper antecedent basis.
Regarding claim 9 line 2, the term “a user” is unclear as to if the term is the same or different than “a user” in claim 1 line 6.
Regarding claim 10 line 2-3, the term “which massage head” is unclear as to if the term is referring back to “a massage head” of line 2, or if there is a new massage head.
Regarding claim 15 line 3, the term “a user” is unclear as to if the term is the same or different than “a user” in claim 1 line 6. In line 5, the term “which apparatus” is unclear as to if the term is referring back to “An apparatus” of claim 1 line 1, or if there is a new apparatus. In line 7-8, the term “the position of contact” is indefinite because it lacks proper antecedent basis. In line 8-9, the term “a neutral spine position” is unclear as to fi the term is the same or different than line 4 “their spine… in a neutral position”.
Regarding claim 17 line 1, the term “the planar surface” is indefinite because it lacks proper antecedent basis.
Any remaining claims are rejected as being dependent upon 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.
Claims 1-7 and 9-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Spratt (US 5,730,708), as best understood.
Regarding claim 1, Spratt discloses an apparatus for use in massage (massager apparatus as shown in Fig. 1), the apparatus comprising
an extended structural support element (horizontal bar structure extending from pivot 14 through handlebars 20 on each side) and disposed at a first end portion of the structural support element at least one massage member (massage members 8 on end nearest pivot end 14) and at a second end portion distal to the first end portion two gripping members (handgrips 24 nearest distal ends of bar off of bars 20), which two gripping members are laterally disposed on the structural support element relative to one another (handgrips 24 are each on a lateral distal end),
the apparatus configured such that a user in a standing position with their arms at rest by their sides may grip the two gripping members (Figs. 7A-E show multiple ways to hold the apparatus, wherein handgrips 24 can be moveable to side positions), when the support structure is disposed behind the user (Figs. 7A-C and 7E), and manipulate the apparatus to massage a position on the back of the user (Col. 1 line 6-7 “specifically to such massage devises which are used for massaging the back portion of the human body”), and
wherein the extended structural support element is configured to be braced against a flat surface (Figs. 7A against wall; or Fig. 7C Col. 5 lines 4-5 “A wall is useful for effective and related operation of this form”).
Regarding claim 2, Spratt discloses a position at which the at least one massage member is disposed on the structural support element (massage members 8 secured to handlebar 20 next to pivot 14) and the positions at which the at least two gripping members are disposed on the structural support element together define a plane (see Fig. 1 handgrips 24 extending down) and wherein the massage member protrudes from, and the gripping members are configured to be gripped from, a front side of the plane (massage members 8 extends out the same direction as the handgrips 24).
Regarding claim 3, Spratt discloses he extended structural support element comprises a planar body having a planar back surface (Fig. 3 bumper pad 16, with back surface) configured to abut a planar surface (Fig. 7A bumper pad 16 on wall).
Regarding claim 4, Spratt discloses a roller arrangement is disposed on the extended structural support about a back side of the plane or on a planar back surface (rounded tube 16 attached onto planar body of pivot 14; Fig. 2).
Regarding claim 5, Spratt discloses the massage member is medially disposed on the structural support element (massage members 8 are in the middle).
Regarding claim 6, Spratt discloses the positions at which the two gripping members are disposed on the structural support element define a first axis (axis defined from distal tip to distal tip of handgrips 24, as in present application Fig. 1 orientation), and wherein the at least one massage member is disposed on a second axis perpendicular to and medially intersecting the first axis (massage members 8 as a unit are medially disposed to the first axis defined above; a second axis through the orientation of retaining knobs 18 or pivot 14 define a vertical second axis as in present application Fig. 1 orientation).
Regarding claim 7, Spratt discloses the distance between the at least one massage member and the first axis is adjustable (the distance between massage member 8 and first axis as defined is dependent on how much of retaining knob 18 is screwed in to the handgrip 20. Additionally, the bending of the apparatus moves the orientation of massage members to first axis such as in Fig. 3 or 6).
Regarding claim 9, Spratt discloses the apparatus comprises a singular massage member, such that a user can selectively massage a discrete area of their back (massage member 8 is removably attached via retaining knobs 18 in adjustment holes 10. One massage member 8 could be removed, leaving one to be a singular massage member 8).
Regarding claim 10, Spratt discloses the at least one massage member comprises a massage head, which massage head is interchangeable (massage member 8 is a massage head, and can be interchanged by retaining knob 18, such as to lobed massage members 8 as shown in Fig. 5; Col. 4 lines 11-12).
Regarding claim 11, Spratt discloses the at least one massage member comprises a mechanical massaging function (massage member 8 can be provide various massaging functions; Col. 4 lines 5-6 “Its size, shape, and texture can be modified for different massage techniques.” And Col. 4 lines 38-40 “The ability to attach two or more, as well as different styles of massage members, presents a diversity of massage techniques”).
Regarding claim 12, Spratt discloses the distance between the two gripping members is adjustable (handgrips 24 can be further apart or closer together as shown from Fig 1 to Fig 3 transition).
Regarding claim 13, Spratt discloses the distance between the two gripping members is at least 35cm (The distal ends of handlebars 20 is the handgrips 24, Col. 3 lines 13-14 “Handlebars 20 having such a length that when joined at all ends they encompass a human torso (approx. 1 meter)”; Meaning when the ends are joined, that is the distance between the two handgrips 24, where 100 cm is at least 35 cm).
Regarding claim 14, Spratt discloses the two gripping members comprise a cushioned gripping surface (Col. 3 lines 36-37 handgrips 24 provide a comfortable grip and are the same material as bumper pad 16. Claim 3 states bumper pad is a cushion material).
Regarding claim 15, Spratt discloses a method of massaging using the apparatus of claim 1, the method comprising:
a user positioning the apparatus to their rear (Figs. 7A-C and 7E) and gripping the two gripping members at their sides (Figs. 7A-E show multiple ways to hold the apparatus, wherein handgrips 24 can be moveable to side positions), such that their spine and arms are in a neutral position (At least Fig. 7A and 7C shows a neutral spine and resting arms whilst holding handgrips 24. Fig. 7B shows at least one arm at the side); the user leaning their middle to upper back against the massage member of the apparatus (Figs. 7A-C and 7E show various positioning of the apparatus along the back, including the middle to upper back), which apparatus is braced against a wall (Fig. 7A depicts the wall used, but other embodiments in 7B, 7C and 7E could make use of the wall);
the user adjusting the pressure they impart on their back by leaning and/or adjusting the position of contact with the massage member for optimal massaging while maintaining a neutral spine position (Col. 4 “Operation- Figs. 7A to 7E” Section- describes user operating the pressure imparted on their back according to movement on handgrips 24. Also, a wall can be useful for effective and related operation).
Regarding claim 16, Spratt discloses the flat surface is a wall (see rejection to claim 1 above and Fig. 7A for “wall” depiction).
Regarding claim 17, Spratt discloses the planar surface is a wall (Fig. 7A includes a planar surface in the form of a wall).
Regarding claim 18, Spratt discloses the distance between the two gripping members is at least 40cm (The distal ends of handlebars 20 is the handgrips 24, Col. 3 lines 13-14 “Handlebars 20 having such a length that when joined at all ends they encompass a human torso (approx. 1 meter)”; Meaning when the ends are joined, that is the distance between the two handgrips 24, where 100 cm is at least 40 cm).
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.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Spratt as applied to claim 6 above, and further in view of Spratt.
Regarding claim 8, Spratt discloses the claimed invention except for the distance between the at least one massage member and the first axis is at least 15cm. Spratt does disclose “said handlebars having pre-determined length and arched configuration as to form an oval completely around a human torso” (see Spratt Claim 9), meaning the distance between the massage member and first axis would at least have to encompass the human torso, meaning the distance is likely over 15 cm in order to reach around a human torso. Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have a distance of at least 15cm between the massage member and first axis, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Spratt as applied to claim 1 above, and further in view of Nathanson (US 3,297,871).
Regarding claim 19, Spratt disclose the claimed invention except for the distance between the two gripping members is from 40cm to 49cm. Spratt does disclose “said handlebars having pre-determined length and arched configuration as to form an oval completely around a human torso” (see Spratt Claim 9), meaning the distance between the two handgrips 24 will be able to encompass a human torso. However, Nathanson teaches the average width of an adult torso approximated sixteen inches (see Nathanson Col. 2 lines 12-13; wherein 16 inches is about 40.64 cm). Therefore, the distance between the two handgrips of Spratt is at least 40.64 cm according to encompassing an average human torso.
Nevertheless, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have a distance between 40cm to 49cm between the two gripping members, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Conclusion
The prior art made of record and not relied upon is considered pertinent to the applicant’s disclosure.
Clarke (US 2,168,975), Demerais (US 5,848,980), and Terashima (US 5,364,338) cited to show a back massaging device with support and massaging member.
Dagan (US 2013/0066245), Trevino Jr. (US 2020/0107988), and Ollie Jr. (US 2014/0276280) are cited to show a back massage device using the wall for support.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GWYNNETH L HOWELL whose telephone number is (703)756-4742. The examiner can normally be reached 8:30-4:30 M-F.
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/GWYNNETH L HOWELL/Examiner, Art Unit 3785
/RACHEL T SIPPEL/Primary Examiner, Art Unit 3785