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 Rejections - 35 USC § 102
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.
Claims 10, 12, 13, and 15-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Robins (US 20110257569 A1).
Regarding claim 10, Robins teaches a massage device comprising (Fig. 12, 240): a body defining a central longitudinal axis, the body defining a width in a direction transverse to the central longitudinal axis (Fig. 12, 240 wherein there is a central axis as shown in annotated 240 above, with a corresponding with in a transverse direction); a first end portion of the body, the first end portion of the body including a first plurality of massage textures that extend out from the first end portion of the body (the top portion of 240 would be a first end portion with a first plurality of the tips of 235 that extend from this first end portion) and a first plurality of lower surface elevations adjacent the first plurality of massage textures (the nubs 235 show a lower surface elevations below the tip of the nub), wherein the first end portion of the body defines a first end portion first width, in the direction transverse to the central longitudinal axis, at the first plurality of massage textures (wherein the width is defined from the central axis of 240 to the tip of the nubs 235) and a first end portion second width, in the direction transverse to the central longitudinal axis, at the first plurality of lower surface elevations (wherein the second width is defined from the central axis of 240 to the lower surface elevations below the tips of nubs 235), and wherein the first end portion first width is greater than the first end portion second width (Fig. 12, 240 shows the first width to the tip of the nub is greater than the second width to the lower surface elevation); a second end portion of the body (the bottom portion end of 240), the second end portion of the body including a second plurality of massage textures that extend out from the second end portion of the body (the tip of nubs 235 that are disposed on the bottom end portion of 240) and a second plurality of lower surface elevations adjacent the second plurality of massage textures (the nubs 235 show a lower surface elevations below the tip of the nub), wherein the second end portion of the body defines a second end portion first width, in the direction transverse to the central longitudinal axis, at the second plurality of massage textures (wherein the width is defined from the central axis of 240 to the tip of the nubs 235) and a second end portion second width, in the direction transverse to the central longitudinal axis, at the second plurality of lower surface elevations (wherein the second width is defined from the central axis of 240 to the lower surface elevations below the tips of nubs 235), and wherein the second end portion first width is greater than the second end portion second width (Fig. 12, 240 shows the first width to the tip of the nub is greater than the second width to the lower surface elevation); and an intermediate portion of the body located along the central longitudinal axis between the first end portion of the body and the second end portion of the body (the middle portion of 240, between the top end and bottom end), the intermediate portion of the body including a third plurality of massage textures that extend out from the intermediate portion of the body (the tip of nubs 235 that are disposed on the intermediate portion of 240) and a third plurality of lower surface elevations adjacent the third plurality of massage textures (the nubs 235 show a lower surface elevations below the tip of the nub), wherein the intermediate portion of the body defines an intermediate portion first width, in the direction transverse to the central longitudinal axis, at the third plurality of massage textures (wherein the width is defined from the central axis of 240 to the tip of the nubs 235) and an intermediate portion second width, in the direction transverse to the central longitudinal axis, at the third plurality of lower surface elevations (wherein the second width is defined from the central axis of 240 to the lower surface elevations below the tips of nubs 235), and wherein the intermediate portion first width is greater than the intermediate portion second width (Fig. 12, 240 shows the first width to the tip of the nub is greater than the second width to the lower surface elevation), wherein the intermediate portion first width is greater than each of the first end portion first width and the second end portion first width (Fig. 12 shows that 240 has a greater width at the intermediate portion than the first end portion or second end portion so one would expect that the intermediate portion first width is greater).
Regarding claim 12, Robins teaches the device of claim 10.
Robins further teaches wherein the body is oval shaped (paragraph 38 “barrel/oval shaped 240”).
Regarding claim 13, Robins teaches the device of claim 10.
Robins further teaches wherein each of the first plurality of massage textures define a first apex that defines the first end portion first width (Fig. 12, wherein each nub 235 on the top end of 240 has an apex at the top of the nub, wherein the top of the nub is used as the endpoint of the first width), each of the second plurality of massage textures define a second apex that defines the second end portion first width (Fig. 12, wherein each nub 235 on the bottom end of 240 has an apex at the top of the nub, wherein the top of the nub is used as the endpoint of the first width), and each of the third plurality of massage textures define a third apex that defines the intermediate portion first width (Fig. 12, wherein each nub 235 on the intermediate portion of 240 has an apex at the top of the nub, wherein the top of the nub is used as the endpoint of the first width).
Regarding claim 15, Robins teaches the device of claim 13.
Robins further teaches wherein the first apex of each of the first plurality of massage textures, the second apex of each of the second plurality of massage textures, and the third apex each of the third plurality of massage textures define an oval shaped profile interconnecting each of the first apex of each of the first plurality of massage textures, the second apex of each of the second plurality of massage textures, and the third apex each of the third plurality of massage textures (Fig. 12, wherein each of the apexes of the nub tips of 235 of each respective groups of plurality come together to define an oval shaped profile corresponding to the shape of body of 240).
Regarding claim 16, Robins teaches the device of claim 10.
Robins further teaches wherein the intermediate portion of the body includes a central location along the central longitudinal axis (Fig. 12 shows the intermediate portion of 240 on a central location of the central longitudinal axis going through 240).
Regarding claim 17, Robins teaches the device of claim 16.
Robins further teaches wherein the intermediate portion first width (the width to the top of the nubs 235 of the intermediate portion as described above) is included at the central location along the central longitudinal axis (this width in a central location of the axis running through 240).
Claim Rejections - 35 USC § 103
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 1-8, 11, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Robins (US 20110257569 A1) in view of Marianne (FR 2723844 A1).
Regarding claim 1, Robins teaches a massage device (Fig. 12, 240) comprising: a shape defining a central plane extending through its longest dimension (paragraph 38 “barrel/oval shaped 240”; Fig. 12 shows 240 with a central plane along its longest dimension): a first plurality of protuberances on an outside surface of the shape (Fig. 12, the upper half of protuberances of 240), the first plurality of protuberances extending in a direction normal to a first side of the central plane (the upper half of protuberances is in a direction normal to the upper side of the central plane), each of the first plurality of projections terminating in a curved surface (paragraph 36 “Each massaging component 230, 240 has an outer surface with a multitude of nubs 235. Nubs 235 may be frusto-conical in shape”); and a second plurality of protuberances on the outside surface of the shape (the plurality of protuberances located on the bottom half of 240), the second plurality of protuberances extending in a direction normal to a second side of the central plane (the protuberances on the bottom half of 240 extending normal to the bottom side of the central plane), the second side being opposite the first side (the bottom side of 240 is opposite to the top side), each of the second plurality of protuberances terminating in a curved surface (paragraph 36 “Each massaging component 230, 240 has an outer surface with a multitude of nubs 235. Nubs 235 may be frusto-conical in shape”).
Robins is silent wherein the shape is specifically ovoid.
However, Marianne teaches an analogous massage device (Fig. 1) with an ovoid shape (paragraph 3 “The present invention relates to an ovoid-shaped ball studded with small dimples (or spikes)”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing
date of the claimed invention to substitute the shape of Robins for the ovoid shape of Marianne for shared purpose of having a shape that conforms comfortably to a user’s joint or muscle.
Regarding claim 2, modified Robins teaches the device of claim 1.
Robins further teaches wherein each of the first plurality of protuberances terminate in a conical shape (paragraph 36 “Each massaging component 230, 240 has an outer surface with a multitude of nubs 235. Nubs 235 may be frusto-conical in shape”).
Regarding claim 3, modified Robins teaches the device of claim 1.
Robins further teaches wherein each of the second plurality of protuberances terminate in a conical shape (paragraph 36 “Each massaging component 230, 240 has an outer surface with a multitude of nubs 235. Nubs 235 may be frusto-conical in shape”).
Regarding claim 4, Robins teaches a massage device (fig. 12, 240) comprising: a shape defining a central axis extending through the longest dimension (paragraph 38 “barrel/oval shaped 240”; Fig. 12 shows 240 with a central plane along its longest dimension); a plurality of protuberances on an outside surface of the shape extending outward from the shape (Fig. 12, nubs 235 on the surface of 240), the plurality of protuberances arranged in a plurality of rows extending approximately perpendicular to the central longitudinal axis (Fig. 12, where 235 is arranged in horizontal rows that are perpendicular to the vertical central longitudinal axis), each of the plurality of protuberances terminating in a curved surface (paragraph 36 “Each massaging component 230, 240 has an outer surface with a multitude of nubs 235. Nubs 235 may be frusto-conical in shape”).
Robins is silent wherein the shape is specifically ovoid.
However, Marianne teaches an analogous massage device (Fig. 1) with an ovoid shape (paragraph 3 “The present invention relates to an ovoid-shaped ball studded with small dimples (or spikes)”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing
date of the claimed invention to substitute the shape of Robins for the ovoid shape of Marianne for shared purpose of having a shape that conforms comfortably to a user’s joint or muscle.
Regarding claim 5, modified Robins teaches the device of claim 4.
Robins further teaches wherein the plurality of rows are evenly spaced about the central axis (Fig. 12, where the rows of 235 on 240 are evenly spaced).
Regarding claim 6, modified Robins teaches the device of claim 4.
Robins further teaches wherein the plurality of protuberances are arranged in five or more rows (Fig. 12, where there are more than 5 rows of 235 on 240).
Regarding claim 7, modified Robins teaches the device of claim 4.
Robins further teaches wherein a first one or more of the plurality of rows are symmetrical to a second one or more of the plurality of rows about a plane defined perpendicular to the central axis (Fig. 12, wherein if you define a plane horizontally across the center of 240, this plane is perpendicular to the central axis, and the far half plurality of rows are symmetrical to the near half plurality of rows; see annotated 240 of Fig. 12 below).
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Annotated 240 of Fig. 12
Regarding claim 8, modified Robins teaches the device of claim 7.
Robins further teaches wherein the plane is defined at a widest portion of the ovoid shape (see annotated 240 of Fig. 12 above, where the plane is at the widest portion of the ovoid shape of the device).
Regarding claim 11, Robins teaches the device of claim 10.
Robins is silent wherein the body is ovoid shaped.
However, Marianne teaches an analogous massage device (Fig. 1) with an ovoid shape (paragraph 3 “The present invention relates to an ovoid-shaped ball studded with small dimples (or spikes)”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing
date of the claimed invention to substitute the shape of Robins for the ovoid shape of Marianne for shared purpose of having a shape that conforms comfortably to a user’s joint or muscle.
Regarding claim 14, Robins teaches the device of claim 13.
Robins further teaches wherein the first apex of each of the first plurality of massage textures, the second apex of each of the second plurality of massage textures, and the third apex each of the third plurality of massage textures define a shaped profile interconnecting each of the first apex of each of the first plurality of massage textures, the second apex of each of the second plurality of massage textures, and the third apex each of the third plurality of massage textures (Fig. 12, wherein each of the apexes of the nub tips of 235 of each respective groups of plurality come together to define a shaped profile corresponding to the shape of body of 240).
Robins is silent wherein the shaped profile is an ovoid shaped profile.
However, Marianne teaches an analogous massage device (Fig. 1) with an ovoid shaped profile (paragraph 3 “The present invention relates to an ovoid-shaped ball studded with small dimples (or spikes)”) wherein the apexes of the massage textures (Fig. 1, element 1) together define this profile.
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing
date of the claimed invention to substitute the shape of Robins for the ovoid shaped profile of Marianne for the shared purpose of having a shape that conforms comfortably to a user’s joint or muscle.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Robins (US 20110257569 A1) in view of Marianne (FR 2723844 A1) as applied above and in further view of Cohen (US 10441496 B1).
Regarding claim 9, modified Robins teaches the device of claim 4.
Robins further teaches wherein a first plurality of protuberances terminate in a first curved surface (paragraph 36 “Each massaging component 230, 240 has an outer surface with a multitude of nubs 235. Nubs 235 may be frusto-conical in shape”).
Modified Robins does not teach a second plurality of protuberances terminate in a second curved surface, different than the first curved surface.
However, Cohen teaches an analogous massage device (Fig. 9) with a second plurality of protuberances terminating in a second curved surface, different than a first curved surface (col. 8 ln 30-32 “A plurality of ribs having different sizes, shapes and configurations extends over substantially all of the upper surface 204 of the massage device 10”).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing
date of the claimed invention to have modified the protuberances of Robins to include a second plurality of protuberances terminating in a second curved surface, different than a first curved surface for the purpose of providing more optimal and deeper penetration into a user’s muscles for greater therapeutic benefits around the curvatures of the human body (see col. 9 ln 15-28).
Claims 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Robins (US 20110257569 A1).
Regarding claim 18, Robins teaches the device of claim 10.
Robins does not specifically teach wherein at least some of the first plurality of massage textures and the first plurality of lower surface elevations are aligned at a first common elevation along the central longitudinal axis.
However, one skilled in the art would reasonably expect that at least some of the first plurality of massage textures (the tips of the plurality of nubs 235 disposed the top portion of 240) and the first plurality of lower surface elevations (the base of the plurality of nubs 235 disposed on the top portion of 240) are aligned at a first common elevation along the central longitudinal axis due to the shape and curvature of 240 as shown in Fig. 12.
Regarding claim 19, modified Robins teaches the device of claim 18.
Robins does not specifically teach wherein at least some of the second plurality of massage textures and the second plurality of lower surface elevations are aligned at a second common elevation along the central longitudinal axis, wherein at least some of the third plurality of massage textures and the third plurality of lower surface elevations are aligned at a third common elevation along the central longitudinal axis, and wherein the first common elevation, the second common elevation, and the third common elevation are each at different locations along the central longitudinal axis.
However, one skilled in the art would reasonably expect that at least some of the second plurality of massage textures (the tips of 235 disposed on the bottom portion of 240) and the second plurality of lower surface elevations (the base of the plurality of 235 on the bottom portion of 240) are aligned at a second common elevation along the central longitudinal axis (the shape and curvature of 240 would reasonably cause alignment at a second common elevation near the bottom of 240), wherein at least some of the third plurality of massage textures (the tips of 235 disposed on the middle portion of 240) and the third plurality of lower surface elevations (the base of the plurality of 235 on the middle of 240) are aligned at a third common elevation along the central longitudinal axis (the shape and curvature of 240 would reasonably cause alignment at a third common elevation at the middle of 240), and wherein the first common elevation, the second common elevation, and the third common elevation are each at different locations along the central longitudinal axis (wherein the first elevation is at the top of 240, the second elevation is at the bottom of 240, and the third elevation is in the middle of 240).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Robins (US 20110257569 A1) in view of Cohen (US 10441496 B1).
Regarding claim 20, Robins teaches the device of claim 10.
Robins further teaches wherein the first plurality of massage textures include a first subgroup of the first plurality of massage textures having a first length in a direction transverse to each of the central longitudinal axis and the first end portion first width (Fig. 12, 240 where the first subgroup within the plurality of 235 at the top portion of 240 have a first length transverse from the width and longitudinal axis, see 2nd annotated 240 of Fig. 12 below).
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2nd annotated 240 of Fig. 12
Robins is silent on a second subgroup of the first plurality of massage textures having a second length in a direction transverse to each of the central longitudinal axis and the first end portion first width, and wherein the first length is greater than the second length.
However, Cohen teaches an analogous massive device (Fig. 1) with a first subgroup of the first plurality of massage textures having a first length (Fig. 1, ribs 30, wherein the first plurality of massage textures is the plurality of 30, 32, and 34 on the bottom end of Fig. 1) and a second subgroup of the first plurality of massage textures (Fig. 1, ribs 34) having a second length in a direction transverse to each of the central longitudinal axis and the first end portion first width (wherein the length is the length of each massage texture going horizontally across the figure), and wherein the first length is greater than the second length (col. 6 ln 16-23 “Adjacent the rows of larger ribs 30, there are a further two rows of ribs 32 of intermediate dimension, and adjacent the rows of ribs 32 of intermediate dimension, there are five rows of ribs 34 of smaller dimension. It must be appreciated that a particular massage roller 10 may have ribs formed thereon in any configuration or style, and of different sizes and contour, as may be selected” wherein Fig. 1 reasonably shows that ribs 30 have a greater length than ribs 34).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing
date of the claimed invention to have modified the first plurality of massage textures of Robins to include a second subgroup of the first plurality of massage textures having a second length in a direction transverse to each of the central longitudinal axis and the first end portion first width, and wherein the first length is greater than the second length for the purpose of providing a variety of textures to contact the body for greater therapeutic benefits.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AKHIL A JAYAN whose telephone number is (571)272-6099. The examiner can normally be reached Monday-Friday 8am-5pm.
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/AKHIL A JAYAN/Examiner, Art Unit 3785
/KENDRA D CARTER/Supervisory Patent Examiner, Art Unit 3785
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