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 Objections
Claim 15 is objected to because of the following informalities:
Claim 15, line 1 recites “apparatus of claim 14, the massage therapy” but should read --apparatus of claim 14, wherein the massage therapy--.
Appropriate correction is required.
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.
Claim 1 recites the limitation "the base" in line 8 There is insufficient antecedent basis for this limitation in the claim.
Claims 2-19 inherit the same deficiencies.
Claim 20 recites the limitations "the first or second massage therapy implement" in lines 12-13 and “the first massage therapy implement and the second massage therapy implement” in lines 20-21. There is insufficient antecedent basis for the limitations in 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.
(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.
Claim(s) 1, 2, 6-9, 11 and 17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zamorano (US 20210236380 A1).
Regarding claim 1, Zamorano discloses a reciprocating massage therapy apparatus (Paragraph [0014]), comprising: a base unit operable to rest on or mount to a surface that is external to the apparatus (Figure 1, apparatus “1”); a reciprocal drive unit mounted to the base unit (Figure 1, motor “4” and links “5”), the reciprocal drive unit comprising a reciprocally-driven member (Paragraph [0037]); a massage therapy implement disposed on the reciprocally-driven member and arranged to stroke back and forth to apply cyclic therapeutic touching to a user’s body part during use of the apparatus (Figure 1, sex toy “15”); and the base comprising an adjustable ballast operable to apply a stabilizing force that enhances stability of the apparatus (Paragraph [0042]).
Regarding claim 2, Zamorano discloses the ballast is attached to a base frame portion of the base unit (Figure 1, structure “13”).
Regarding claims 6 to 9, Zamorano discloses the ballast comprises a ballast container having a hollow interior configured to hold a ballast material (Figure 1, “2.1”), an opening for introducing the ballast material into the hollow interior (Figure 1 “2.2”), and a removable closure on the opening operable to close and seal the opening (Paragraph [0042]), wherein the ballast material comprises water, sand or a water/sand mixture (Paragraph [0042]).
Regarding claim 11, Zamorano discloses the reciprocal drive unit comprises a wireless remote control interface operable to control the reciprocal drive unit to vary the back and forth stroke of the massage therapy implement based on control inputs from a wireless remote control device (Paragraphs [0028], [0045]).
Regarding claim 17, Zamorano discloses the reciprocal drive unit is mounted to the base by a drive unit support frame (Figure 1, structure “13”).
Claim 20 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rossi (US 20170239134 A1).
Regarding claim 20, Rossi discloses a reciprocating massage therapy apparatus (Abstract), comprising: a base unit operable to rest on or mount to a surface that is external to the apparatus (Figure 11, base “410”); a reciprocal drive unit mounted to the base unit (Figure 11, sex toy “100”), the reciprocal drive unit comprising a reciprocally-driven member (Paragraph [0066], Figure 9); a massage therapy implement disposed on the reciprocally-driven member for stroking back and forth to apply cyclic therapeutic touching to a user’s body part during use of the apparatus (Paragraph [0068], Figure 9 “164”); the massage therapy implement comprising one or more motorized components operable to deliver one or more associated massage therapy functions that are native to the massage therapy implement (Paragraph [0068], Figure 9 “164”); the reciprocal drive unit comprising a wireless remote control interface operable to control the reciprocally-driven member to vary the back and forth stroke of the massage therapy implement based on control inputs from a wireless remote control device (Paragraphs [0086], [0087]); the massage therapy implement comprising a wireless remote control interface operable to control the one or more motorized components based on control inputs from the wireless remote control device in order to vary delivery of the one or more massage therapy functions of the massage therapy implement; and a multi-function wireless remote control device (Paragraphs [0086], [0087]) operable to wirelessly communicate with the reciprocal drive unit wireless remote control interface and the massage therapy implement wireless remote control interface of the first massage therapy implement and the second massage therapy implement in order to selectively control (1) the reciprocally-driven member of the reciprocal drive unit to vary the back and forth stroke of the massage therapy implement (Paragraphs [0086], [0087]), and (2) the one or more motorized components to vary delivery of the one or more massage therapy functions of the massage therapy implement (Paragraphs [0086], [0087]).
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.
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 Zamorano (US 20210236380 A1) in view of Stevens (US 9808694 B2).
Regarding claims 3-5, Zamorano fails to disclose the ballast is removably attached to the base frame in a manner that allows the ballast to be attached to the base frame by thumb screws. Stevens discloses an apparatus that utilizes a ballast to ensure the apparatus can upright during use (Abstract). Stevens further discloses the ballast is removably attached to the base frame (Figures 11 and 12) and the ballast is attached to the base frame via fasteners (Figures 11 and 12, “22”). It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the apparatus as taught by Zamorano, with the ballast being removably attached to the base frame in a manner that allows the ballast to be attached to the base frame by thumb screws as taught by Stevens, since such a modification would provide the predictable results of allowing the apparatus to be taken apart and stored.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Zamorano (US 20210236380 A1) in view of Harker (US 20110251025 A1).
Regarding claim 10, Zamorano fails to disclose the ballast comprises plural ballast containers configured to hold a ballast material. Harker discloses an apparatus that utilizes a ballast to ensure the apparatus can upright while supporting a user’s weight during use (Abstract). Harker further discloses the ballast comprises plural ballast containers configured to hold a ballast material (Figure 2, plate weights “5”). The use of a plurality of ballast containers that can be separated allow for easier removal of the ballast for storage (Paragraph [0002]). It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the apparatus as taught by Zamorano, with the ballast comprising plural ballast containers configured to hold ballast materials as taught by Harker, since such a modification would provide the predictable results of allowing for easier removal of the ballast for storage (Paragraph [0002]).
Claims 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Zamorano (US 20210236380 A1) in view of Rossi (US 20170239134 A1).
Regarding claim 12, Zamorano does not disclose the massage therapy implement comprises one or more motorized components operable to deliver one or more associated massage therapy functions that are native to the massage therapy implement. Rossi discloses a reciprocating sex toy (Abstract), where in the massage therapy implement comprises one or more motorized components operable to deliver one or more associated massage therapy functions that are native to the massage therapy implement (Figure 9, massaging member “140”, vibrator “164”). It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the apparatus as taught by Zamorano, with the massage therapy implement comprising one or more motorized components operable to deliver one or more associated massage therapy functions as taught by Rossi, since such a modification would provide a thrusting or reciprocating vibrator, which is well known in the art (Paragraphs [0002]-[0005]).
Regarding claims 13 and 14, Zamorano as modified by Rossi in claim 12, discloses the apparatus and reciprocating function can be controlled remotely (Zamorano, Paragraphs [0028], [0045]), but does not disclose a wireless remote control interface operable to control the massage therapy implement, nor a multi-function wireless remote control device to control both the reciprocating member and the massage therapy implement. Rossi discloses that the reciprocating sex toy further comprises a communications device coupled to the controller to enable wireless control of the sex toy and/or vibrational unit (Paragraph [0044]), wherein the communications device enables control of the reciprocating and vibration function from remote devices (Paragraph [0086]). As Zamorano previously disclosed the apparatus could be controlled remotely, it would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the apparatus as taught by modified Zamorano, with enabling the remote control to control both the reciprocating function and vibrational function as taught by Rossi, since such a modification would provide the predictable results of reducing the number of devices required to control the apparatus to a single device.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Zamorano (US 20210236380 A1) in view of Rossi (US 20170239134 A1), as applied to claim 14 above, and further in view of Sexlovey, ("Automatic Sex Machine Thrusting Love Machine with 7pcs Attachments", 2023), cited by Applicant.
Regarding claim 15, Examiner will note that the limitation “and replaceable with additional wirelessly controllable massage therapy implements that can be selectively mounted to the reciprocally-driven member and controlled by the multi-function wireless remote control device,” is not positively recited in a manner that further limits the apparatus. The limitation is not directed to the configuration of the apparatus and the configuration of the massage therapy implement does not play a role in the apparatus being able to receive additional implements. Examiner will address the massage therapy implement being detachable from the reciprocally-driven member and wherein the apparatus comprises a set of one or more of the additional massage therapy implements provided as part of a massage therapy apparatus kit.
Further regarding claim 15, Zamorano, as modified by Rossi in claim 14, discloses the massage therapy implement is attached to the reciprocating mechanism via fast connector so that the massage therapy implement can be removed (Zamorano, Paragraph [0019]). Modified Zamorano does not disclose the apparatus comprises a set of one or more of the additional massage therapy implements. Sexlovey discloses on the open market, an adult thrusting machine with a plurality of interchangeable the massage therapy implements (Page 1). It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the apparatus as taught by modified Zamorano, with to include a plurality of interchangeable the massage therapy implements as taught by SexLovey, since Sex Lovey has demonstrated a consumer market for a variety of massage therapy implement designs.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Zamorano (US 20210236380 A1) in view of Rossi (US 20170239134 A1) and Sexlovey ("Automatic Sex Machine Thrusting Love Machine with 7pcs Attachments", 2023), as applied to claim 15 above, and further in view of Fontenot (US 7513868 B1).
Regarding claim 16, the limitation “the apparatus includes the massage therapy implement handle provided as part of a massage therapy apparatus kit” does not further limit the claim. The claims are directed to an apparatus that does not function with the massage therapy implement handle. While claiming the massage therapy implement is configured to function with the handle does limit the massage therapy implement as a component of the apparatus, if Applicant wish to claim a massage therapy apparatus kit, the claims should be directed to a kit with the apparatus a component of the kit, similar to claim 21.
Further regarding claim 16, Zamorano, as modified in claim 15, previously disclosed the massage therapy implement is detachable in claim 15. Modified Zamorano does not disclose the implement is attachable to a massage therapy implement handle in order to use the massage therapy implement as a stand-alone, handheld massage therapy implement. Fontenot discloses a sex aid apparatus intended to be used a handle for sexual aid appliances (Col 2, lines 39-41). Fontenot discloses the appliances are connected to the handle via quick connect connections (Col 3, lines 11-28) in a manner similar to Zamorano. As the connections between the implement of modified Zamorano and the handle of Fontenot would be compatible, it would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the apparatus as taught by modified Zamorano, with a massage therapy implement handle configured to attach to the handle as taught by Fontenot, since such a modification would provide alternative stimulation for a user should they find the reciprocating device insufficient (Col 1, lines 30-55).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Zamorano (US 20210236380 A1) in view of Tucker (US 20220323294 A1).
Regarding claim 18, Zamorano does not disclose a mounting connection assembly that detachably connects to the drive unit support frame, and wherein the apparatus further comprises a reciprocal drive unit handle, the reciprocal drive unit handle being attachable to the reciprocal drive unit when the mounting connection assembly is detached from the drive unit support frame in order to use the reciprocal drive unit as a stand-alone, handheld reciprocating massage therapy device. Tucker discloses a reciprocating thrusting device that removably attached to a base (Figure 3, “304”, “110”) and includes a removeable reciprocal drive unit handle (Figure 3, “102”, Paragraph [0020]). It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the apparatus as taught by Zamorano, with a mounting connection assembly that detachably connects to the drive unit support frame and an attachable reciprocal drive unit handle as taught by Tucker, since such a modification would provide the predictable results of allowing the apparatus to be easily manipulated to provide maximum satisfaction to the user (Tucker, Paragraph [0004])
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Zamorano (US 20210236380 A1) in view of Padgett (US 6142929 A).
Regarding claim 19, Zamorano does not disclose the base comprises non-suction gripping foot
members positioned to grip the external surface. Padgett discloses a sexual stimulation apparatus comprising a vertical reciprocating motion (Abstract) similar to Zamorano. Padgett further discloses the base comprises rubber pads to function as gripping foot members and vibration isolation (Figure 2, “28”, “133”, Claim 7). It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the apparatus as taught by Zamorano, with the base comprising non-suction gripping foot members positioned to grip the external surface as taught by Padgett, since such a modification would provide the predictable results of traction and vibration isolation (Claim 7).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Sexlovey ("Automatic Sex Machine Thrusting Love Machine with 7pcs Attachments", 2023), cited by Applicant, in view of Kink Store, ("Pro-Bang Remote Control Handheld or Floor Mounted Sex Machine", 2023), cited by Applicant, and further in view of Rossi (US 20170239134 A1) and Fontenot (US 7513868 B1).
Regarding claim 21, Sexlovey discloses a reciprocating massage therapy kit (Page 1, Reciprocating apparatus and assorted attachments), comprising: a massage therapy apparatus (Pages 1 and 3), comprising: a base unit operable to rest on or mount to a surface that is external to the apparatus (Pages 1 and 3); a reciprocal drive unit mounted to the base unit (Pages 1 and 3), the reciprocal drive unit comprising a reciprocally-driven member that strokes back and forth (Pages 1 and 3); a first massage therapy implement detachably mountable on the reciprocally-driven member for stroking back and forth to apply cyclic therapeutic touching to a user’s body part during use of the massage therapy apparatus (Pages 1 and 5); and a second massage therapy implement detachably mountable on the reciprocally-driven member for stroking back and forth to apply cyclic therapeutic touching to a user’s body part during use of the massage therapy apparatus (Pages 1 and 5).
Sexlovey does not disclose the reciprocal drive unit is detachably mounted to the base unit and a reciprocal drive unit handle that is attachable to the reciprocal drive unit when it is detached from the base in order to form a stand-alone, handheld reciprocating massage therapy device. Kink Store discloses a similar apparatus (Kink Store, Page 1) to Sexlovey, but further discloses the reciprocal drive unit is detachably mounted to the base unit (Kink Store, Page 1) and a reciprocal drive unit handle that is attachable to the reciprocal drive unit when it is detached from the base (Kink Store, Page 1, The handle disclosed by Kink Store is permanently attached and therefore is attachable to the reciprocal drive unit when it is detached from the base) in order to form a stand-alone, handheld reciprocating massage therapy device (Kink Store, Page 1). It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the kit as taught by Sexlovey, with the reciprocal drive unit being detachably mounted to the base unit and a reciprocal drive unit handle that is attached to the reciprocal drive unit as taught by Kink Store, since such a modification would provide the predictable results of allowing a user to use the device a floor mounted device or as a handheld device (Kink Store, Page 1).
Modified Sexlovey does not disclose the first massage therapy implement and the second massage therapy implement each comprising one or more motorized components operable to deliver one or more associated massage therapy functions. Rossi discloses a reciprocating sex toy (Abstract), where in the massage therapy implement comprises one or more motorized components operable to deliver one or more associated massage therapy functions that are native to the massage therapy implement (Figure 9, massaging member “140”, vibrator “164”). As vibratory functions in massage therapy implements are common in the art, it would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the kit as taught by modified Sexlovey, with the first and second massage therapy implements comprising one or more motorized components operable to deliver one or more associated massage therapy functions as taught by Rossi, since such a modification would provide a thrusting or reciprocating vibrator, which is well known in the art (Paragraphs [0002]-[0005]).
Modified Sexlovey further does not disclose the reciprocal drive unit comprising a wireless remote control interface operable to control the reciprocally-driven member to vary the back and forth stroke thereof based on control inputs from a wireless remote control device; the first massage therapy implement and the second massage therapy implement each comprising wireless remote control interface operable to control the one or more motorized components of that massage therapy implement based on control inputs from a wireless remote control device in order to vary delivery of the one or more massage therapy functions; and a multi-function wireless remote control device operable to wirelessly communicate with the reciprocal drive unit wireless remote control interface and the massage therapy implement wireless remote control interface of the first massage therapy implement and the second massage therapy implement in order to selectively control (1) the reciprocally-driven member of the reciprocal drive unit to vary the back and forth stroke thereof, and (2) the one or more motorized components of the first massage therapy implement and the second massage therapy implement to vary delivery of the one or more massage therapy functions of that massage therapy implement. Rossi discloses that the reciprocating device and massage therapy implement are wirelessly controllable (Paragraphs [0044], [0044]) by a remote device (Paragraph [0086]). It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the kit as taught by modified Sexlovey, with a remote control to control both the reciprocating function and vibrational function of both massage therapy implements as taught by Rossi, since such a modification would provide the predictable results of reducing the number of devices required to control the plurality of devices in the kit to a single device.
Modified Sexlovey does not disclose a massage therapy implement handle that is selectively attachable to the first massage therapy implement and the second massage therapy implement so that they can function as stand-alone, handheld massage therapy implements. Fontenot discloses that some users find electro-mechanical reciprocating devices insufficient for their needs (Col 1, lines 20-55) and further discloses a handle that is selectively attachable to a variety of a massage therapy implements via a quick connect connection (Col 2, lines 39-41, and Col 3. Lines 11-28). It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the kit as taught by modified Sexlovey, with a massage therapy implement handle as taught by Fontenot, since such a modification would provide the predictable results of alternative stimulation mechanism should the user find the electro-mechanical reciprocating devices insufficient for their needs (Col 1, lines 20-55).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Tucker (US 20230039709 A1) discloses a vibrating phallic device attachment that can be used with prior art thrusting machines. Fort Troff (“Gunner System”, 2023) is the claimed apparatus/kit of the instant application available on the open market, but was not publicly disclosed prior to the filing date of the instant application.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Marc D Honrath whose telephone number is (571)272-6219. The examiner can normally be reached M-F 7:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles A Marmor II can be reached at (571) 272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHARLES A MARMOR II/Supervisory Patent Examiner
Art Unit 3791
/M.D.H./Examiner, Art Unit 3791