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 .
DETAILED ACTION
This office action is in response to the filing of the application on 08/16/2023. Since the initial filing, claims 7-8, 13, and 26-27 have been canceled. Thus, claims 1-6, 9-12, and 14-25 are pending in the 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.
At present, no claims are interpreted under 35 USC 112(f).
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 2 and 12 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 2 recites the element “and/or” (claim 2, ln. 2), it is unclear whether this is meant to separate the elements “the first end and the second end are disposed on two opposite sides of the clamping part” (claim 2 lin. 1-2) and “an outer circumference of the clamping part is covered with a first flexible sheath, and an outer circumference of the main body is covered with a second flexible sheath” (claim 2 lin. 2-4) through use of “or”. For purposes of examination, this is being interpreted to mean either quoted limitation can be covered to fulfill the claim.
Claim 12 recites the element “and/or” (claim 12, ln. 4), it is unclear whether this is meant to separate the elements “the second rotating member comprises a first circular arc wall, and the limit part comprises a second circular arc wall facing the second rotating hole; the first circular arc wall is matched with the second circular arc wall, and the block part is disposed on the second circular arcwall” and “the limit part is disposed on one side of the second rotating hole away from the clamping part” through use of “or.” For purposes of examination, this is being interpreted to mean either quoted limitation can be covered to fulfill the 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 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ou (CN 111467211 A).
Regarding claim 1, Ou discloses a neck massager (para. 11), comprising: a main body (para. 63, main support 1); two clamping arms, the two clamping arms being connected to two ends of the main body, respectively (para. 43, handle 3 includes two that are respectively connected to the free end of the main support 1); and two clamping parts corresponding to the two clamping arms, respectively (para. 43, massage component 4 is connected to the inside of the handle 3); wherein: the two clamping parts are rotatably disposed on the two clamping arms, respectively (para. 52, massage component 4 can be twisted and rotated and connected to the handle 3); the two clamping parts are disposed opposite to each other to clamp a user's neck (Fig. 4, massage components 4, para. 54, One of the functions of the counterweight is to press the massage component 4 tightly, so that the massage component 4 is in close contact with the human skin, thereby improving the tightness of the contact between the massage component 4 and the human skin and enhancing the massage effect); each clamping arm comprises a first rotating axis, and each clamping part is rotatable around the first rotating axis (para. 52, massage component 4 can be twisted and rotated and connected to the handle 3); each clamping part comprises at least a first end and a second end that are different in distance from the first rotating axis (See annotated Fig.2 below); each clamping part comprises a circumferential side surrounding the first rotating axis (See annotated Fig. 2 below); and the first end and the second end are respectively disposed at two ends of the circumferential side of each clamping part. (See annotated Fig.2 below).
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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(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ou (CN 111467211) in view of Liu et al. (CN 216091348 U).
Regarding claim 2, Ou discloses a neck massager (para. 11), wherein an outer circumference of the main body is covered with a second flexible sheath (para. 67, main support 1 includes a silicone jacket), but is silent on an outer circumference of the clamping part is covered with a first flexible sheath.
However, Liu et al teaches a teaches a neck massager (para. 1) with clamping arms (para. 51, handle 30) that includes a buffer 31 provided on the side of the handle 30 facing
the human torso (para. 61, the buffer 31 is composed of at least one of the following materials with elastic deformation function: silicone, latex, and sponge).
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the handle of Ou with the buffer taught by Liu to reduce the pressure of the handle on the human torso (Liu, para 61).
Regarding claim 3, Ou discloses a neck massager (para. 11), wherein each clamping arm comprises a connecting arm (para. 40, handle 3, Fig. 1, handle 3); the connecting arm is connected to one end of the main body (para. 43, handle 3 includes two that are respectively connected to the free end of the main support 1), Ou includes the connecting arm facing the other clamping arm (Fig. 1, handle 3), and the clamping part is rotatably disposed on the connecting arm and is spaced with the connecting arm (para. 52, adjustable floating massage component 4 means that the massage component 4 can be twisted and rotated and connected to the handle 3); but is silent on a first rotating shaft; the first rotating shaft is disposed on an inner side of one the connecting arm facing the other clamping arm, and the clamping part is rotatably disposed at one end of the first rotating shaft away from the connecting arm and is spaced with the connecting arm.
However, Liu et al. teaches a neck massager (para. 1) with clamping arms (para. 51, handle 30) that includes (para. 71, a rotating shaft 361 and a rotating hole 362, one of the rotating shaft 361 and the rotating hole 362 is set on the end 11 of the main body part 10, and the other one is set on the handle 30, connected with the rotating hole 362 through the rotating shaft 361).
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the connection between the handles and massage components of Ou with the rotating shaft taught by Liu in order to create an easier to adjust device for users of different neck sizes.
Claim(s) 9-10, 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ou (CN 111467211) in view of Liu et al. (CN 215689547 U) referred to as Liu 2.
Regarding claim 9, Ou discloses a neck massager, but is silent on the two clamping arms are rotatably disposed on the two ends of the main body, respectively.
However, Liu 2 teaches a neck massager with a main body and clamping arms (para. 47, middle support 10 and clamping arm 20), whose clamping arms rotate relative to the middle support (para. 47).
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the connection between the main support and handles of Ou with the rotating connection taught by Liu 2 in order to create a device which can better accommodate different neck sizes (Liu 2 para. 33).
Regarding claim 10, the modified neck massager of Ou has the main body comprising an inner side facing a wearing area of the neck massager and an outer side away from the wearing area (See annotated Fig. 3 below); the two ends of the main body comprises: a second rotating axis extending from the inner side to the outer side of the main body (Liu 2 Fig. 2, rotating shaft), and each clamping arm rotates relative to the main body around the second rotating axis (Liu 2 para. 033, the clamping arm rotates between a first position and a second position relative to the central support.)
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Regarding claim 18, Ou discloses a neck massager, but is silent on each of the two clamping arms is swingable at one end of the main body towards or away from the other clamping arm.
However, Liu 2 teaches a neck massager with a main body and clamping arms (para. 47, middle support 10 and clamping arm 20), whose clamping arms rotate relative to the middle support (para. 47, fig. 2, clamping arms 20a and 20b).
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the connection between the main support and handles of Ou with the rotating connection taught by Liu 2 in order to create a device which can better (Liu 2 para. 33, accommodate different neck sizes).
Allowable Subject Matter
Claims 4-6, 11-12, 14-17, and 19-25 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure are Liu et al.(CN 21294102 U) and Lin et al.(CN 114053117 A). These prior art references are various neck massagers.
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/A.R.W./ Examiner, Art Unit 3785
/TIMOTHY A STANIS/ Supervisory Patent Examiner, Art Unit 3785