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 claims filed 7/3/23. Claims 1-22 are pending in the instant application.
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.
Note: the language “comprising” (line 1) is improper language for an abstract; Examiner suggests amending to read –including--.
The disclosure is objected to because of the following informalities: the language “the massager 2 may damping sleeve” (para. 0250) is objected to for a typographical error; Examiner suggests amending to read –the massager 2 may include a damping sleeve--.
Appropriate correction is required.
Claim Objections
Claims 1, 6, 16, and 19-20 are objected to because of the following informalities:
Regarding claim 1, the language “a PCBA” (line 9) is objected to as the acronym has not been previously spelled out however one of ordinary skill in the art would recognize this common term/acronym; Examiner suggests amending to read –a printed circuit board assembly (PCBA)--.
Regarding claim 1, the language “and an output shaft” (line 18) is objected to as the output shaft has already been set forth in line 16; Examiner suggests amending to read –and the output shaft--.
Regarding claim 6, the language “The massager of claim 1,” (line 1) is objected to for not maintaining consistency in claim terminology; Examiner suggests amending to read –The compact massager of claim 1,--.
Regarding claim 16, the language “the massager” (line 4) is objected to for not maintaining consistency in claim terminology; Examiner suggests amending to read –the compact massager--.
Regarding claim 19, the language “the massager” (line 1 and 3) is objected to for not maintaining consistency in claim terminology; Examiner suggests amending to read –the compact massager--.
Regarding claim 20, the language “scrips” (line 2) is objected to for a typographical/spelling error; Examiner suggests amending to read –scripts--.
Appropriate correction is required.
Claim Interpretation
The claim limitation “configured to matingly and optionally magnetically attach” (claim 21) is being interpreted to set forth that the extension handle either simply attaches to the bottom body end or magnetically attaches to the bottom body end and is thus clear with regards to 35 U.S.C. 112(b).
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 19 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 19, the limitation that the compact massager is configured to vary the massage amplitude during use appears to lack adequate written description in the disclosure. The disclosure does not appear to support, via any written or structural support in the figures, a massager which is configured to vary its massage amplitude (stroke length of reciprocating element).
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 16 and 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 16, the language “the damping sleeves” (line 3) is unclear as line 3 sets forth the possibility of plural damping sleeves with the language “one or more damping sleeves” and it is thus unclear if the language in line 3 is referring back to each of, or a particular subset, of the potential plural damping sleeves. Examiner suggests amending to read –the one or more damping sleeves--.
Claim 19 recites the limitation "the massage frequency and amplitude" in line 4-5. There is insufficient antecedent basis for this limitation in the claim.
The term “rapidly varies” in claim 19 line 4 (emphasis added) is a relative term which renders the claim indefinite. The term “rapidly” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is not known as to what qualifies, or does not qualify, as being ‘rapidly varied’.
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) 1-6, 15, and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zang (CN 110960412) (see attached copy and machine translation) in view of Marton et al. (10,993,874).
Regarding claim 1, Zang discloses a compact massager (see Fig. 1-7 and abstract), which includes one or more massage head attachment portions (see Fig. 1-2, massage head attachment portion 13, pg. 4 of the translation, i.e. the portion of the compact massager shown other than head attachment portion 13); and a massager body having a top body end, opposing bottom body end defining a length therebetween (see Fig. 1, top body end being upper end in the figure, bottom end being lower end in the figure, length therebetween as shown), and a front body side and a rear body side defining a cross-section therewithin (see Fig. 1-2, front body side being the right side in Fig. 1, left side in Fig. 2; rear body side being the left side in Fig. 1, right side in Fig. 2), wherein the massager body is configured to connect with the one or more massage head attachment portions at the front body side (see Fig. 1-2), the massager body including a motor disposed proximate to the top body end (see Fig. 2, motor 172 shown disposed proximate top/upper end, see translation pg. 4-5); a control device disposed proximate to the bottom body end (see Fig. 2, control device 182 shown disposed proximate bottom/lower end, see translation pg. 6); a display disposed at the rear body side (see Fig. 2, display 141 shown disposed rear body side, i.e. right side of this figure, see translation pg. 6); a power source disposed proximate to the bottom body end (see Fig. 2, power source 171 disposed proximate the bottom/lower end of this figure, see translation pg. 4-5); wherein the power source is configured to electrically connect with the motor, control device, and the display (see translation pg. 4-6); a Z-shaped, transmission crank configured to translate rotary motion from the motor to reciprocating motion of the one or more massage head attachment portions (see Fig. 2 and 4, Z-shaped transmission crank 152; see translation pg. 5); and a counterweight having an eccentric cam and an output shaft, wherein the input is disposed at one side of the cam and is operatively connected to the motor and the output shaft disposed at an opposing side of the cam and operatively connected to the transmission crank (see Fig. 2 and 4-5, counterweight 151 with eccentric cam 1511 and output shaft 1513 and input 1515; see translation pg. 5).
The Zang device is silent as to the counterweight being a dual shaft type device (i.e. having an input shaft and an output shaft) and the control device explicitly being a PCBA; however, Marton discloses a similar percussive massager including a dual shaft type eccentric counterweight and whose control device is a PCBA; (see Marton Fig. 8, counterweight cam 360 with input shaft 362 and output shaft 364; PCBA controller col. 5 ln. 49-58). 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 Zang device to include a PCBA and a dual shaft type eccentric counterweight, as taught by Marton, as this would have been obvious substitution of one known element for another and one would expect the modified Zang device to perform equally as well.
Regarding claim 2, the modified Zang device’s transmission crank further includes a first annual portion, a second annular portion and a z-shaped crank shaft portion, the first annual portion configured to operatively connect with the output shaft and has an inner annular diameter larger than an outer diameter of the output shaft, the second annular portion configured to connect with the one or more massage head attachment portions (see Zang Fig. 4, first annular portion 1521, second annular portion 1522, z-shaped crank portion being the connecting elements therebetween, i.e. three linear portions defining a z-shape).
Regarding claim 3, the modified Zang device’s crank shaft portion includes a first linear portion, a second linear portion, and a third linear portion, the first linear portion connects with the second and the third linear portion connects with the second annular portion, the first linear portion and the third linear portion are parallel with each other (see Zang Fig. 4, first linear portion being linear portion which includes first annular portion 1521, third linear portion being the linear portion which includes second annular portion 1522, second linear portion being the angled linear portion therebetween). The modified Zang device is silent as to the angle between the first and second linear portion explicitly being at an angle of 70-105 degrees; however, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose an angle of between 70 and 105 degrees as it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involve only routine skill in the art. In re Aller, 200 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding claim 4, the modified Zang device’s cam is in a truncated circular shape and both the input shaft and the output shaft are disposed proximate to a truncated side of the cam (see Zang Fig. 4 and Marton Fig. 8).
Regarding claim 5, the modified Zang device is such that an axial axis of the output shaft is closer to the truncated side than that of the input shaft (see Marton Fig. 8).
Regarding claim 6, the modified Zang device further includes a housing for receiving the massager body and which has a substantially uniform overall cross-section along the length (see Zang Fig. 1-2, housing defined by parts 11 and 12 which have a substantially uniform overall cross-section, i.e. circular, along the length as shown).
Regarding claim 15, the modified Zang device is silent as to the power source explicitly being a rechargeable battery; however, Marton discloses a similar device which includes a power source in the form of a rechargeable battery (see Maron col. 6 ln. 3-21). 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 Zang device’s power source to be a rechargeable battery, as taught by Marton, as this would have been obvious substitution of one known element for another and one would expect the modified Zang device to perform equally as well.
Regarding claim 17, the modified Zang device’s display is a touch screen display and/or a light emitting diode display (see Zang translation abstract and pg. 6).
Claim(s) 7-12 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zang and Marton as applied to claim 1 above, and further in view of Huang (2001/0027280).
Regarding claim 7, the modified Zang device is silent as to the housing being formed by a front cover and a rear cover, the two covers configured to connect along the length; however, Huang teaches a similar percussive massager device which includes this feature (see Huang Fig. 4, front cover 20, rear cover 18 connected along their length). 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 Zang device to be configured such that the housing includes front and rear covers connected together along their length, as taught by Huang, as this is a well-known shape/configuration for such a device and would have been obvious substitution of one known shape/configuration for another and one would expect the modified Zang device to perform equally as well. See also MPEP 2144.04 IV B and VI C.
Regarding claim 8, the modified Zang device’s front cover is configured to receive the one or more massage head attachment portions (see Zang Fig. 1-2 in view of Huang Fig. 4).
Regarding claim 9, the modified Zang device is silent as to including a frame having top frame end, an opposing bottom frame end, a front frame side, and a rear frame side and configured to receive the motor proximate to the top frame and at the front frame side, receive the power source proximate to the bottom frame end at the front frame side (see Zang Fig. 1-2 showing motor proximate top end, power source proximate bottom end). However, Huang discloses a similar percussive massage device which includes a frame as claimed (see Huang Fig. 4, frame 18 which receives component from a front frame side, i.e. side which is proximate reciprocating massage attachment portion 66 and top and opposing bottom ends). 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 Zang device to be configured such that the housing includes front and rear covers connected together along their length, as taught by Huang, as this is a well-known shape/configuration for such a device and would have been obvious substitution of one known shape/configuration for another and one would expect the modified Zang device to perform equally as well. See also MPEP 2144.04 IV B and VI C.
Regarding claim 10, the modified Zang device’s frame is further configured to receive the PCBA at the front frame side (see Zang Fig. 2, Marton Fig. 2, 4-5, and in view of Huang Fig. 4).
Regarding claim 11, the modified Zang device’s frame is further configured to receive the display at the rear frame side (see Zang Fig. 1-2 which shows display 141 at the rear side, i.e. opposite side of percussive massage attachment portion, see in view of Huang Fig. 4).
Regarding claim 12, the modified Zang device further includes a motor rack connected with the frame and at least a bottom portion of the motor (see Zang Fig. 4, motor rack 174, in view of Huang Fig. 4).
Regarding claim 14, the modified Zang device’s motor rack further includes a plurality of damping pads (see Zang Fig. 4, damping pads 175, translation pg. 5-6).
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zang, Marton, and Huang as applied to claim 12 above, and further in view of Waizenegger (2012/0183348).
Regarding claim 13, the modified Zang device discloses the motor rack being fixedly connected with the bottom portion of the motor via rubber gaskets (see Zang Fig. 4, rings 175, translation pg. 5-6), but is silent as to explicitly connecting the motor via screws and the rings being silicone; however, Waizenegger discloses connection of a motor with plural screws and silicone gasket/rings (see Waizenegger Fig. 2-3 and para. 0021-0023). 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 Zang device’s motor to explicitly be connected via plural screws and for the connecting gasket/rings to be of a silicone material, as taught by Waizenegger, as this would have been obvious substitution of one known element/material for another and one would expect the modified Zang device to perform equally as well.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zang and Marton as applied to claim 1 above, and further in view of Li et al. (CN 110538062) (see attached copy and machine translation).
Regarding claim 16, the modified Zang device discloses a piston operatively connected with the transmission crank and the one or more massage head attachment portions and further including a sleeve (see Zang Fig. 2 and 4, piston 153, sleeves 161 and 162), but is silent as to the sleeve being a damping sleeve which substantially reduces noise level made by the massager when in use; however, Li teaches a similar percussive massager which includes a damping sleeve configured to substantially reduce noise when in use (see Li Fig. 6 and 10, translation pg. 4). 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 Zang device’s sleeves to explicitly be damping sleeves configured to substantially reduce noise generated by the device, as taught by Li, in order to reduce noise (Li translation pg. 4).
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zang and Marton as applied to claim 1 above, and further in view of Marton et al. (2019/0015295) (hereinafter Marton ‘295).
Regarding claim 18, the modified Zang device is silent as to the display being configured to automatically darken when not in use; however, Marton ‘295 discloses a similar therapeutic device including a display which auto-darkens (see Marton ‘295 para. 0091). 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 Zang device’s display to auto-darken, as taught by Marton ‘295, in order to conserve battery power.
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zang and Marton as applied to claim 1 above, and further in view of Wersland et al. (2021/0022955).
Regarding claim 19, the modified Zang device the massager being provided with a recovery metric for a user and plurality of user biometric data and to use the recovery metric and biometric data to calculate a massage modulation to rapidly vary the massage frequency and amplitude during use; however, Wersland teaches a similar percussive massage device which includes this feature (see Wersland Fig. 31, para. 0004-0007, 0103 for example). 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 Zang device to include a recovery metric and biometric user data to adjust the massage, as taught by Wersland, in order to tailor the massage to the user’s needs (see Wersland para. 0004-0007, 0103).
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zang and Marton as applied to claim 1 above, and further in view of Danby et al. (9,889,066).
Regarding claim 20, the modified Zang device is silent as to being configured to play one or more massage therapy scripts; however, Danby discloses this feature (see Danby col. 9 ln. 1-7). 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 Zang device to be configured to play one or more massage therapy scripts, as taught by Danby, in order to provide massage programs tailored for the individual’s needs (see Danby col. 9 ln. 1-7).
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zang and Marton as applied to claim 1 above, and further in view of Lee et al. (2020/0085675) and Cockley (2014/0012165).
Regarding claim 21, the modified Zang device is silent as to including one or more extension handles configured to matingly and optionally magnetically attach to the bottom body end; however, Lee discloses a similar percussive massage device which includes a removable extension handle connected to a bottom end and Cockley discloses a therapeutic device handle which is connected magnetically (see Lee Fig. 1 and 3, extension handle 15, para. 0007-0008, 0037-0039; Cockley Fig. 1-2 and para. 0018-0020). 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 Zang device to include an extension handle magnetically attachable to the device, as taught by Lee and Cockley, in order to provide for the user to effectively apply the massage to places on the body otherwise not possible (see Lee para. 0008 and 0039) and which connection means would have been obvious substitution of one know means for another/would have been obvious to try and one would expect the modified Zang device to perform equally as well.
Claim(s) 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zang in view of Marton et al. (10,993,874) and Li.
Regarding claim 22, Zang discloses a compact massager (see Fig. 1-7 and abstract), which includes a top end, opposing bottom body end defining a length therebetween (see Fig. 1, top body end being upper end in the figure, bottom end being lower end in the figure, length therebetween as shown), and a front body side and a rear body side defining a cross-section therewithin (see Fig. 1-2, front body side being the right side in Fig. 1, left side in Fig. 2; rear body side being the left side in Fig. 1, right side in Fig. 2), the massager including a battery disposed proximate to the bottom body end (see Fig. 2, power source 171 disposed proximate the bottom/lower end of this figure, see translation pg. 4-5); a motor disposed proximate to the top body end (see Fig. 2, motor 172 shown disposed proximate top/upper end, see translation pg. 4-5); a counterweight (see Fig. 2 and 4-5, counterweight 151 with eccentric cam 1511 and output shaft 1513 and input 1515; see translation pg. 5); a Z-shaped, transmission crank configured to translate rotary motion from the motor to reciprocating motion of the one or more massage head attachment portions (see Fig. 2 and 4, Z-shaped transmission crank 152; see translation pg. 5); a housing for receiving the massager body that has substantially uniform overall cross-section along the length (see Fig. 1-2 housing defined by elements 11 and 12, substantially uniform, i.e. circular, cross-section as shown); a piston (see Zang Fig. 2 and 4, piston 153); operations button (see Fig. 2 and 6-7, operations buttons 1811, 1812; translation pg. 6); one or more massage head attachment portions (see Fig. 1-2, massage head attachment portion 13, pg. 4 of the translation); and a display (see Fig. 2, display 141 shown disposed rear body side, i.e. right side of this figure, see translation pg. 6); wherein the battery is configured to electrically connect with the motor, operations button and the display (see translation pg. 4-6); wherein the motor is operatively connected to the counterweight which is operatively connected to the transmission crank which is operatively connected to the piston which is operatively connected to one of the one or more massage head attachment portions (see Fig. 2 and 4-5, counterweight 151 with eccentric cam 1511 and output shaft 1513 and input 1515 providing for the operative connections between parts; see translation pg. 5). The Zang device is silent as to the power source explicitly being a rechargeable battery; however, Marton discloses a similar device which includes a power source in the form of a rechargeable battery (see Maron col. 6 ln. 3-21). 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 Zang device’s power source to be a rechargeable battery, as taught by Marton, as this would have been obvious substitution of one known element for another and one would expect the modified Zang device to perform equally as well. The modified Zang device discloses a piston operatively connected with the transmission crank and the one or more massage head attachment portions and further including a sleeve (see Zang Fig. 2 and 4, piston 153, sleeves 161 and 162), but is silent as to the sleeve being a damping pads which substantially reduces noise level made by the massager when in use; however, Li teaches a similar percussive massager which includes a damping sleeve configured to substantially reduce noise when in use (see Li Fig. 6 and 10, translation pg. 4). 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 Zang device to include damping pads configured to substantially reduce noise generated by the device, as taught by Li, in order to reduce noise (Li translation pg. 4).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Pivaroff (6,682,496), Rix (7,927,259), Cheng (20200276079), Imboden et al. (2008/0306417), and Hu (CN 209996743) 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