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 .
This office action is in response to the preliminary amendment filed 8/16/23. As directed by the amendment, claim 6 has been amended and no claims have been added nor cancelled. As such, claims 1-10 are pending in the instant application.
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: “thermal therapy assembly” in claim 1. The disclosure provides for structure of the thermal therapy system in Fig. 2 (heating sheet and pad for example).
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 § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 5, and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ren (CN 209075413) in view of Chen (CN 107595603) (see provided machine translations).
Regarding claim 1, Ren discloses a multi-functional massager (see Fig. 1-4, abstract), comprising a foot massage mechanism configured for foot massage (lower element 1 including roller massage elements, Fig. 3, which massage the feet, see pg. 3 of the translation), and a leg massage mechanism configured for calf massage (upper element 2 including airbags for calf massage, see pg. 3 of the translation); wherein the foot massage mechanism comprises a foot massage assembly provided within a first housing of the massager to provide foot massage (see Fig. 4 the foot massage mechanism is an assembly, see pg. 3, first housing defined by 1 and 3); the leg massage mechanism comprises two adjacent slots configured to accommodate legs of a user (see Fig. 1, slots 9, pg. 3 of the translation), and the two slots are formed within a second housing of the massager (see Fig. 1, second housing defined by 2 and 6); massage airbags are provided in the slots (see pg. 3 of the translation, slot 9 provided with massage air bag); wherein two sides of the second housing are rotatably connected to two sides of the first housing (see Fig. 1-2); the second housing, when rotated upward, stands vertically at a rear end of the first housing and being positioned perpendicularly with respect to the first housing (see Fig. 1 showing the position with second housing rotated upward and vertical and perpendicular with respect to the first housing); the second housing, when rotated downward, is horizontally positioned and closed against a top side of the first housing (see Fig. 2). Ren is silent as to including a thermal therapy assembly is provided on an outer side of the second housing; however, Chen teaches a similar massage therapy device which includes first and second housings with a second housing having a thermal therapy assembly on its outer side (see Chen abstract and pg. 3 and 4 of the translation; heating device including heating plate and sheet 35 with covering cloth 36, Fig. 8). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the Ren device’s second housing to have a thermal therapy assembly on its outer side, as taught by Chen, in order to provide an additional therapeutic modality to enhance therapy provided to a user.
Regarding claim 5, the modified Ren device’s first housing comprises an upper shell, a lower shell, and a middle shell placed above the lower shell; two pockets configured for user's feet to enter are formed on a top surface of the upper shell; two openings are provided on a surface of the middle shell corresponding to the pockets; the foot massage assembly is positioned within the lower shell, and two massage head sets are provided in the foot massage assembly and are positioned under the two openings respectively (see Chen Fig. 5, upper shell 20 with pockets for the user’s feet, middle shell being portion of 21 which includes openings corresponding to the pockets and which receives the user’s feet; lower shell 22; Chen having feet massage assembly therein, see abstract for example, Ren Fig. 1-4, foot massage assembly 12).
Regarding claim 10, the modified Ren device’s thermal therapy assembly comprises a heating sheet and a soft pad provided on the outer side of the second housing, where the heating sheet is positioned on the soft pad (see Chen abstract and pg. 3 and 4 of the translation; heating device including heating plate and sheet 35 with covering cloth 36, Fig. 8).
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ren and Chen as applied to claim 1 above, and further in view of Chi (5,728,051).
Regarding claim 2, the modified Ren device appears to show a support frame (see Ren Fig. 1 showing a U-shaped support frame), but is silent as to explicitly including a support frame is rotatably connected to a bottom surface of the first housing; the support frame, when rotated outward away from the bottom surface of the first housing, supports the bottom surface of the first housing with a tilted position with respect to the bottom surface of the first housing, so that the first housing and the second housing tilt backward with respect to a level ground; the support frame, when rotated inward towards the bottom surface of the first housing, is stored within the bottom surface of the first housing; however, Chi discloses a similar massage device which includes this feature (see Chi Fig. 7A-B, col. 2 ln. 66 through col. 3 ln. 6; support frame 13). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Ren device to explicitly include a support frame, as taught by Chi, in order to provide angle adjustment to the massage device (see Chi col. 2 ln. 66 through col. 3 ln. 6).
Claim(s) 3-4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ren, Chen, and Chi as applied to claim 2 above, and further in view of Zhang (CN 107007446), Lin et al. (6,390,107), and Han (CN 102178594) (see attached copies of foreign references and translations).
Regarding claim 3, the modified Ren device includes a receiving recess to accommodate the support frame (see Chi Fig. 7A-B and col. 2 ln. 66 through col. 3 ln. 6, recess 14 receives support frame 13), but is silent as to including connection shaft sleeves, rotational axles, limiting protrusions, and stopping protrusions as claimed such that the limiting protrusions of each of the connection shaft sleeves engage with an inner side surface or an outer side surface of a corresponding stopping protrusion when the connection shaft sleeves are rotated away from the bottom surface of the first housing to achieve an inclined supporting position of the support frame or rotated towards the bottom surface of the first housing to achieve a storage position of the support frame respectively, thereby achieving position limitation of the support frame in the inclined supporting position and the storage position. However, Zhang discloses a similar massage device which includes rotationally connected parts including a rotational axle and connection shaft sleeves (see Zhang Fig. 7, rotational axle 1806 and showing interfacing with shaft sleeves on part 1803 and 1805, Fig. 8 showing the connected device), Lin disclosing limiting and stopping protrusions between two rotation pieces (see Lin Fig. 9-11, limiting protrusion 63 and stopping protrusions 64, col. 4 ln. 12-43) and Han discloses a similar massage device with rotatably connected parts utilize dual connection axle/locations (see Fig. 1, rotatable parts 1 and 2 at two separate hinges as shown). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Ren device to include the rotational connection shaft sleeves, rotational axles, plural, limiting and stopping protrusions, as taught by Zhang, Lin, and Han, in order to provide a controllable angular adjustment means (see Lin col. 4 ln. 12-43).
Regarding claim 4, the modified Ren device support frame comprises a U-shaped handle part, and the connection shaft sleeves are provided at two ends of the handle part respectively; the limiting protrusions and the stopping protrusions have arc-shaped contours (see Lin Fig. 9-11 disclosing arc-shaped contoured protrusions; Ren Fig. 1 showing a U-shaped handle part of a support frame, modified in view of Chi to explicitly provide the rotational ability and tilt ability to the overall massage device).
Claim(s) 7-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ren and Chen as applied to claim 5 above, and further in view of Wang et al. (CN 105919781) (see attached copies of foreign reference and translation).
Regarding claim 7, the modified Ren device includes an operating shell provided in a middle of the second housing with the slots on the two sides thereof (see Ren Fig. 1, middle structure of 2 which separates slots 9 being an operating shell as claimed), but is silent as to a receiving groove is formed in a middle of the upper shell of the first housing between the two pockets; the operating shell of the second housing fits into the receiving groove when the second housing is closed against the top side of the first housing; however, Wang discloses a similar massage device which includes this feature (see Wang Fig.1-3, operating shell 11 which fits into receiving groove of 2 as shown). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Ren device to have a receiving groove for receiving an operating shell, as taught by Wang, in order to provide a more compact overall massage device.
Regarding claim 8, the modified Ren device second housing comprises a back shell, and side shells extending perpendicularly from two ends of the back shell; inner walls of the side shells of the second housing are rotatably connected to two side walls of the upper shell of the first housing; the back shell of the second housing is positioned on a rear side of the upper shell when the second housing is rotated upright; the back shell of the second housing is positioned above the upper shell and closes against the upper shell when the second housing is rotated downward and closes against the top side of the first housing (see Fig. 1-2 of Ren showing upper/second housing defined by 2 and 6, which has side shells and back shell to define the upper/second housing and slots for receiving the user’s legs as claimed; see also Wang Fig. 1-3 which similarly shows an upper/second housing which has side shells and back shell to define the upper/second housing and slots for receiving the user’s legs).
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ren, Chen, and Wang as applied to claim 8 above, and further in view of JP (5892884) (see attached copy of reference and translation) (hereinafter the ‘884 reference.
Regarding claim 9, the modified Ren device discloses providing airbags for the slots of the upper/second housing (pg. 3 of the translation of Ren), but is silent as to providing a back airbag on a front wall surface of the back shell and side airbags on inner walls of a corresponding side shell and sidewall of the operating shell; however, the ‘884 reference teaches a similar massage device which includes back and plural side airbags as claimed (see ‘884 reference Fig. 5-6, back airbag 21, side airbags 20). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Ren device to include back and side airbags, as taught by the ’884 reference, in order to provide enhanced massage action to the user’s legs (via multiple massage airbags).
Allowable Subject Matter
Claim 6 is 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.
When read in light of the limitations of the claimed multi-functional massager, the prior art of record noted above and in the pertinent art section below, does not disclose, either alone or suggest in combination, a massager including foot massage mechanism and leg massage mechanism with first housing and second housing, massage airbags, housings being rotatably connected with a thermal therapy assembly on the outer side of the second housing as claimed (see claim 1), upper, lower, and middle shells with openings and pockets as claimed (see claim 5), the foot massage assembly including a driving unit and two massage head sets, including a motor and a gear set driving a rotating shaft to rotate, rotating wheels installed on the two ends of the shaft and rotatable along with the shaft, eccentric cam on each of the rotating wheels, front massage head and rear massage head on the rotating shaft with massage arms thereof respectively sleeved onto the eccentric cam, sliding grooves at lower edges of the front and rear massage heads and limiting shafts on the lower shell to pass through the sliding grooves respectively, the front massage head driven to perform back-and-forth movement under constraint of the corresponding limiting shaft, rear massage head driven to perform a compound motion of back-and-forth and up-and-down motion under constraint of the corresponding limiting shafts as set forth in claim 6.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Fung (2008/0167589), Ishiguro et al. (2012/0095375), Huynh (2012/0246820), Humphrey (2018/0344000), and Calafato (6,572,514) disclose massage devices similar to the claimed/disclosed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to COLIN W STUART whose telephone number is (571)270-7490. The examiner can normally be reached M-F: 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Stanis can be reached at 571-272-5139. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/COLIN W STUART/Primary Examiner, Art Unit 3785