Notice of Pre-AIA or AIA Status
1. 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
2. This office action is in response to the filing of the application on 04/04/2023. Since the initial
filing, no claims have been amended, added, or canceled. Thus, claims 1-18 are pending in the
application.
Drawings
3. Drawings are objected to due to the use of photographs. Photographs are ordinarily not permitted in utility patent applications unless they are the only practicable medium for illustrating the claimed invention. See MPEP 608.02(V)(b); 37 CFR 1.84(b).
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: Reference character 19 ([0024]). 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. 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
4. The disclosure is objected to because of the following informalities: Reference character 19 ([0024]) does not show up in drawings.
Appropriate correction is required.
Claim Interpretation
5. 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:
“fastening device” (Claim 5 line 2; claim 14, line 2).
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.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation:
“A fastening device such as a zip fastener or a hook-and-loop fastener can selectively close it when the sleeve is fit onto the cylindrical beverage container” ([0009]).
However, claims 6 and 15 do not invoke 112(f) due to structure required for functional language being included in the claims.
Claims 6 and 15 include the limitation “zip fastener or a hook-and-loop fastener” (line 2 of both claims), which provides the required structure.
Claim Rejections - 35 USC § 102
6. 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)(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.
7. Claim(s) 1-2, 7, 9-11, 16 and 18 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Taylor (US 11969388 B2).
Regarding claim 1, Taylor discloses a massage roller sleeve comprising: a substrate material configured as a sleeve to hold and fit onto a cylindrical beverage container(Col. 2 line 65-66, The base layer 122 overlays the outer surface 116 of the body, Col. 4 line 18-19, the base layer 122 could be made from natural or synthetic rubber, Col. 5 line 41-42, the removable foam covering is a slip-over sleeve (slipped over the bottle 102)); and a layer of resilient material affixed to the substrate material and comprising a pattern of protuberances defining a therapeutic roller surface(Col. 4 line 5-6, plurality of nubs 124 protrudes from the base layer 122 in a direction radially away, Col. 4 line 13-14, Preferably, each nub is made of relatively dense synthetic foam., Fig. 8, nubs 124).
Regarding claim 2, Taylor discloses a massage roller sleeve as claimed in claim 1, wherein the sleeve is a collapsible sleeve (Col. 5 line 41-42, the removable foam covering is a slip-over sleeve (slipped over the bottle 102).
Regarding claim 7, Taylor discloses a massage roller sleeve as claimed in claim 1, wherein the substrate material comprises a stretchable material (Col. 4 line 18-19, the base layer 122 could be made from natural or synthetic rubber).
Regarding claim 9, Taylor discloses a massage roller sleeve as claimed in claim 1, wherein the protuberances comprise at least ridges and/or knobs(Col. 4 line 5-6, plurality of nubs 124 protrudes from the base layer 122 in a direction radially away, Fig. 8, nubs 124).
Regarding claim 10, Taylor discloses a method of making a therapeutic massage roller sleeve, the method comprising: forming a substrate material as a sleeve to hold and fit onto a cylindrical beverage container(Col. 2 line 65-66, The base layer 122 overlays the outer surface 116 of the body, Col. 4 line 18-19, the base layer 122 could be made from natural or synthetic rubber, Col. 5 line 41-42, the removable foam covering is a slip-over sleeve (slipped over the bottle 102)); and affixing a layer of resilient material to the substrate material, the layer of resilient material comprising a pattern of protuberances defining a therapeutic roller surface((Col. 4 line 5-6, plurality of nubs 124 protrudes from the base layer 122 in a direction radially away, Col. 4 line 13-14, Preferably, each nub is made of relatively dense synthetic foam., Fig. 8, nubs 124).
Regarding claim 11, discloses a method of making a massage roller sleeve as claimed in claim 10, wherein the sleeve is a collapsible sleeve(Col. 5 line 41-42, the removable foam covering is a slip-over sleeve (slipped over the bottle 102).
Regarding claim 16, discloses a method of making a massage roller sleeve as claimed in claim 10, wherein the substrate material comprises a stretchable material(Col. 4 line 18-19, the base layer 122 could be made from natural or synthetic rubber).
Regarding claim 18, discloses a method of making a massage roller sleeve as claimed in claim 10, wherein the protuberances comprise at least ridges and/or knobs(Col. 4 line 5-6, plurality of nubs 124 protrudes from the base layer 122 in a direction radially away, Fig. 8, nubs 124).
Claim Rejections - 35 USC § 103
8. 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.
9. Claim(s) 3 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Taylor (US 11969388 B2) in view of Bostian (US 20150290520 A1).
Regarding claim 3, Taylor discloses the massage roller sleeve according to claim 1, wherein the sleeve includes an open end (Col. 5 line 41-42, the removable foam covering is a slip-over sleeve (slipped over the bottle 102), but is silent on a closed end opposite the open end.
However, Bostian teaches a collapsible sleeve for holding a beverage container (para. 12) which includes a closed end (para. 24, base 108 may completely close off one end of the sleeve 106, Fig. 4, base 108).
Therefore, 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 sleeve of Taylor to have a closed base as taught by Bostian to create a massage sleeve which would better prevent a beverage holder (e.g., a can or bottle) from passing completely through the sleeve.
Regarding claim 12, Taylor discloses the massage roller sleeve according to claim 10, wherein the sleeve includes an open end (Col. 5 line 41-42, the removable foam covering is a slip-over sleeve (slipped over the bottle 102), but is silent on a closed end opposite the open end.
However, Bostian teaches a collapsible sleeve for holding a beverage container (para. 12) which includes a closed end (para. 24, base 108 may completely close off one end of the sleeve 106, Fig. 4, base 108).
Therefore, 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 sleeve of Taylor to have a closed base as taught by Bostian to create a massage sleeve which would better prevent a beverage holder (e.g., a can or bottle) from passing completely through the sleeve.
10. Claim(s) 4-6 and 12-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Taylor (US 11969388 B2), in view of Bostian (US 20150290520 A1), and in further view of Bertram et al. (US 20130090220 A1).
Regarding claim 4, the modified Taylor device discloses the therapeutic massage roller of claim 3, but is silent on the sleeve further including a longitudinal slit therein extending from the open end towards the closed end.
However, Bertram teaches a cover wrap for turning objects into massage roller (for the myofascial release of a predetermined body part, Bertram para. 18) which includes a longitudinal slit therein extending from the open end towards the closed end (Figure 1, see slit between Ends 28 & 30), as well as, a device for closing the slit (Bertram para. 23, The first end 28 can include a piece of fabric hook and loop fastener 32 extending along the length of the wall 14 in a direction parallel to the longitudinal axis "A" of the roller wrap 10. The second end 30 can also include a corresponding piece of the fabric hook and loop fastener. The roller wrap 10 can then be secured using the fabric hook and loop fasteners., Fig. 1, Ends 28 & 30).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the sleeve of Taylor to include the longitudinal slit and fastening device as taught by Taylor in order to make an easy to attach and de-tach device that offers effective fastening on the water bottle when in use.
Regarding claim 5, the modified Taylor device discloses the therapeutic massage roller of claim 4, wherein the sleeve further includes a fastening device to selectively close the longitudinal slit when the sleeve is fit onto the cylindrical beverage container (Bertram para. 23, The first end 28 can include a piece of fabric hook and loop fastener 32 extending along the length of the wall 14 in a direction parallel to the longitudinal axis "A" of the roller wrap 10. The second end 30 can also include a corresponding piece of the fabric hook and loop fastener. The roller wrap 10 can then be secured using the fabric hook and loop fasteners., Fig. 1, Ends 28 & 30).
Regarding claim 6, the modified Taylor device discloses the therapeutic massage roller of claim 5, wherein the fastening device comprises at least one of a zip fastener or a hook-and-loop fastener (Bertram para. 23, The first end 28 can include a piece of fabric hook and loop fastener 32 extending along the length of the wall 14 in a direction parallel to the longitudinal axis "A" of the roller wrap 10. The second end 30 can also include a corresponding piece of the fabric hook and loop fastener. The roller wrap 10 can then be secured using the fabric hook and loop fasteners., Fig. 1, Ends 28 & 30).
Regarding claim 13, the modified Taylor device discloses the therapeutic massage roller of claim 12, but is silent on the sleeve further including a longitudinal slit therein extending from the open end towards the closed end.
However, Bertram teaches a cover wrap for turning objects into massage roller (for the myofascial release of a predetermined body part, Bertram para. 18) which includes a longitudinal slit therein extending from the open end towards the closed end (Figure 1, see slit between Ends 28 & 30), as well as, a device for closing the slit (Bertram para. 23, The first end 28 can include a piece of fabric hook and loop fastener 32 extending along the length of the wall 14 in a direction parallel to the longitudinal axis "A" of the roller wrap 10. The second end 30 can also include a corresponding piece of the fabric hook and loop fastener. The roller wrap 10 can then be secured using the fabric hook and loop fasteners., Fig. 1, Ends 28 & 30).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the sleeve of Taylor to include the longitudinal slit and fastening device as taught by Taylor in order to make an easy to attach and de-tach device that offers effective fastening on the water bottle when in use.
Regarding claim 14, the modified sleeve of Taylor discloses a method of making a massage roller sleeve as claimed in claim 13, wherein forming the sleeve further includes providing a fastening device to selectively close the longitudinal slit when the sleeve is fit onto the cylindrical beverage container (Bertram para. 23, The first end 28 can include a piece of fabric hook and loop fastener 32 extending along the length of the wall 14 in a direction parallel to the longitudinal axis "A" of the roller wrap 10. The second end 30 can also include a corresponding piece of the fabric hook and loop fastener. The roller wrap 10 can then be secured using the fabric hook and loop fasteners., Fig. 1, Ends 28 & 30).
Regarding claim 15, the modified sleeve of Taylor discloses a method of making a massage roller sleeve as claimed in claim 14, wherein the fastening device comprises at least one of a zip fastener or a hook-and-loop fastener (Bertram para. 23, The first end 28 can include a piece of fabric hook and loop fastener 32 extending along the length of the wall 14 in a direction parallel to the longitudinal axis "A" of the roller wrap 10. The second end 30 can also include a corresponding piece of the fabric hook and loop fastener. The roller wrap 10 can then be secured using the fabric hook and loop fasteners., Fig. 1, Ends 28 & 30).
11. Claims 8 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Taylor (US 11969388 B2) in view of Nichols (US 20200146928 A1)
Regarding claim 8, Taylor discloses a massage roller sleeve as claimed in claim 7, but is silent on the stretchable material comprising neoprene.
However, Nichols teaches a slide on massage roller with a (hollow roller body, Nichols para. 12) made of neoprene (Nichols para. 53).
Therefore, 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 substrate material of Taylor to be Neoprene as taught by Nichols in order to offer a material which is firm enough to deliver deep tissue massage on a user, but not too firm so as to be capable of harming the user during massage (Nichols para. 53).
Regarding claim 17, Taylor discloses a massage roller sleeve as claimed in claim 16, but is silent on the stretchable material comprising neoprene.
However, Nichols teaches a slide on massage roller with a (hollow roller body, Nichols para. 12) made of neoprene (Nichols para. 53).
Therefore, 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 substrate material of Taylor to be Neoprene as taught by Nichols in order to offer a material which is firm enough to deliver deep tissue massage on a user, but not too firm so as to be capable of harming the user during massage (Nichols para. 53).
Conclusion
12. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure Balasi (US 20190053973 A1), Hsu et al. (US 20120277077 A1), and Powell (US 6129687 A). These references are various detachable foam rollers and water bottle foam rollers.
13. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEC ROBERT WAHL whose telephone number is (571)272-9880. The examiner can normally be reached Monday - Friday 8:30 a.m. to 6:00 p.m..
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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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/A.R.W./ Examiner, Art Unit 3785
/TIMOTHY A STANIS/ Supervisory Patent Examiner, Art Unit 3785