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 amendment filed 8/24/26. As directed by the amendment, claims 1-2, 4-5, 14, 18, 20, and 23 have been amended and no claims have been added nor cancelled. As such, claims 1-6, 8-12, 14-20, and 23-24 are pending in the instant application.
Claim Interpretation
The newly amended limitation of “at least three vibration motors circumferentially spaced from one another” (claim 5) is interpreted in light of the disclosure, which although there is not literally support for this language, can be found in various figures, in particular Fig. 5 which shows vibration motors 22a-c located circumferentially shown by the arrows/angles A1 in this figure.
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 23 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 23, the claim sets forth subject matter not found in the disclosure as originally filed. Claim 1 sets forth first and second sections with first and second compression values, the first being greater than the second. This is shown in Fig. 2 for example which shows first section 44a and second section 44b separated by a dividing line C1 such that the sections are located relative to each other along an axis/longitudinal direction of the sleeve member and does not disclose sections which are located symmetrically circumferentially around the sleeve member. The addition of a third vibration assembly in a third section also symmetrically arranged around the sleeve member is also not supported in the disclosure as originally filed for the same reasons.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1 and 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sifferlin (2019/0183724) in view of Farrow (2007/0179421), Knott (10,470,509), Kwon et al. (KR 20210098251), Clowney et al. (2020/0214927) and Avni (2009/0112134).
Regarding claim 1, Sifferlin discloses a washable garment assembly (see Fig. 1-6, abstract, para. 0044 for example, a sleeve is able to be washed and thus is washable) which includes a sleeve member including an inner surface, an outer surface and a tunnel defined between the inner and outer surfaces (see Fig. 1, sleeve member 110 with inner and outer surfaces as shown, the outer surface being visible in Fig. 4 showing the sleeve member being worn on the user’s elbow, inner surface contacting the user, see para. 0065 and 0070; para. 0066 discloses that the sleeve encases mechanical and electrical parts including vibration motors 160, 165 and thus a tunnel is formed which encloses the mechanical and electrical parts); a plurality of vibration assemblies associated with the sleeve member and sealed between the inner and outer surfaces (see Fig. 1 and 4, para. 0066, vibration assemblies 160, 165), wherein each vibration assembly includes at least one vibration motor (see Fig. 1 and 4, para. 0066 vibration motors 160, 165); a control module associated with the sleeve member and configured to control functions of the vibration assembly (see para. 0033, “device is operated by a controller”, see also para. 0059-0060 which discloses a controller, i.e. a control module), the control module including a battery and control electronics (see para. 0033 “controller” see para. 0061 and 0063 which disclose the vibration assembly is electrically activated, thus control module includes control electronics; see Fig. 1 and para. 0066 “battery housing 170”, see para. 0051 “battery-powered vibration mechanisms”). The modified Sifferlin device is silent as to the sleeve member including first and second sections with first and second compression values, respectively, the second greater than the first, such that a first vibration assembly is disposed on the first section and a second vibration assembly is disposed on the second section; however, Farrow teaches a similar therapy garment which includes at least first and second sections with varying levels of compression values (see Farrow para. 0034-0040, 0124, 0130-0138 and accompanying figures). 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 Sifferlin device’s garment to include first and second compression sections with varying compression values, as taught by Farrow, in order to enhanced therapeutic effect. The now modified Sifferlin device includes vibration assemblies disposed on the first and second sections of varying compression values (see Sifferlin Fig. 4 for example showing plural vibration assemblies 160 and 165, Sifferlin discloses sleeve can be used on various limbs, para. 0030, 0044, and whole limb, para. 0071; Farrow disclosing plural compression zones with different compression values for various limbs of a user, see above noted recitations of Farrow, thus providing differing compression value zones with the vibration assemblies of Sifferlin). The modified Sifferlin device is silent as to the sleeve member being comprised of a knit material infused with a germanium alloy configured to emit far infrared; however, Knott teaches a similar compression garment which is made of a knit material infused with an alloy which emits far infrared (see Knott col. 11 ln. 31 through col. 12 ln. 7) and Kwon teaches a compression garment infused with germanium (see Kwon translation pg. 3, 4th full paragraph, pg. 6). 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 Sifferlin device’s sleeve member to be made of a knit material infused with germanium alloy configured to emit far infrared, as taught by Knott and Kwon, in order to provide additional therapeutic effect (Knott col. 11 ln. 31-36) and which would have been obvious substitution of one known element/material for another. The modified Sifferlin device is silent as to the vibration assemblies each including at least three vibration motors arranged radially to one another; however, Clowney discloses a similar vibrational garment which includes a vibration assembly including at least three vibration motors arranged radially to one another (see Clowney Fig. 1-4, vibrational motors 130 arranged radially as shown, see para. 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 Sifferlin device’s vibrational assemblies to each include at least three vibration motors arranged radially to one another, as taught by Clowney, as this would have been obvious substitution of one known element for another (plural vibration motors defining a vibration assembly) and one would expect the modified Sifferlin device to perform equally as well. The modified Sifferlin device discloses a sensor used for feedback for the vibrational garment (see Sifferlin para. 0077) is silent as to the sensor being configured to monitor biometric data of the user and to allow for the control module to switch on or off one or more of the vibration motors for a predetermined period of time based on the biometric data from the sensor; however, Avni teaches a similar vibrational garment which includes a biometric sensor which allows control of vibration motors to be switched on or off for a predetermined period of time based on the sensor readings (see Avni para. 0013 last 3 sentences in particular which disclose body parameter sensor, including ECG, EEG, blood pressure, temperature, heart rate, SpO2 etc. used to control vibrations such as stopping or starting them). 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 Sifferlin device to include a biometric sensor and to control the vibration motors to turn them on/off for predetermined times, as taught by Avni, in order to adjust the vibration delivered to the user based on user sensed body parameters (Avni para. 0013).
Regarding claim 3, the modified Sifferlin device’s sensor is configured to monitor at least one of a heart rate, heart rate variability, a blood oxygen level, or a body temperature (see Avni para. 0013 last 3 sentences in particular which disclose body parameter sensor, including ECG, EEG, blood pressure, temperature, heart rate, SpO2 etc.).
Claim(s) 2 and 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sifferlin, Farrow, Knott, Kwon, Clowney, and Avni as applied to claim 1 above, and further in view of Wersland et al. (2021/0022955).
Regarding claim 2, the modified Sifferlin device is silent as to the control module being configured to communicate with a remote device via a wireless communication module; however, Wersland discloses a therapy device (percussive massager) which includes a controller configured to communicate with a remote device (see Wersland Fig. 29 showing remote device being a smart phone, para. 0106, see also Fig. 30-31; para. 0153-0177 disclosing using various manual capture data, real-time tracking data and biometric data to generate recommendation data used to control operation of the therapy device, see para. 0153-0160 in particular which discloses providing optimized therapeutic benefits via artificial intelligence driven recommendation data for a particular therapeutic routine including optimizing area of application of therapy, duration, force, frequency of therapy). 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 Sifferlin device’s control module to be configured to communicate with a remote device and generate recommendation data based on the biometric data and control/direct use the vibration assembly based on the recommendation data, as taught by Wersland, in order to provide connectivity with a user’s phone/watch/tablet for control (Fig. 29 and para. 0106) and a bespoke routine for the washable garment assembly (Wersland para. 0161 as applied to the garment assembly of Sifferlin) and which would be use of a known technique to improve similar devices in the same way (i.e. use of the intelligence engine system of the percussive massager of Wersland applied to the vibrational garment/sleeve device of Sifferlin).
Regarding claim 4, the modified Sifferlin device, as modified above in rejection of claim 2, includes the biometric data (from Avni para. 0013) being transmitted to a remote device for generating recommendation data to the user which includes user notification of at least one of a recommended protocol to be performed by the washable garment assembly, a change to the protocol, or a behavior modification (see Wersland Fig. 29 showing remote device being a smart phone, para. 0106, see also Fig. 30-31; para. 0153-0177 disclosing using various manual capture data, real-time tracking data and biometric data to generate recommendation data used to control operation of the therapy device, see para. 0153-0160 in particular which discloses providing optimized therapeutic benefits via artificial intelligence driven recommendation data for a particular therapeutic routine including optimizing area of application of therapy, duration, force, frequency of therapy).
Claim(s) 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sifferlin, Farrow, Knott, Kwon, Clowney, and Avni as applied to claim 1 above, and further in view of Samoodi (2013/0253397) and Maalouf (2004/0260211).
Regarding claim 23, the modified Sifferlin device is silent as to the first section and second section being located symmetrically circumferentially around the sleeve member; however, Samoodi teaches a compression garment which includes differing compression sections located along the same circumferential location on the device (see Samoodi Fig. 6 and para. 0054). 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 Sifferlin device’s first and second sections of differing compression values to be located along the same circumferential location on the device, as taught by Samoodi, and to further modify such sections to be symmetrical in order to provide a desired level and location of compression to the user’s body part. The modified Sifferlin is silent as to including a third vibration assembly disposed in a third section circumferentially around the sleeve; however, Maalouf discloses a similar vibrational garment which includes at least three vibrational assemblies arranged circumferentially around the sleeve (see Maalouf Fig. 1-3, vibration assemblies 22, see para. 0028 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 Sifferlin device to include an additional vibration assembly, as taught by Maalouf, in order to provide additional therapeutic effect to the user (via additional vibration assembly).
Claim(s) 5-6, 8-12, and 14-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sifferlin in view of Northen, Wersland, Waldon, Sr. (8,523,793), Longinotti-Buitoni et al. (2018/0199635), Hill, Jr. (5,586,341), Knott, Kwon, Clowney, and Avni.
Regarding claim 5, Sifferlin discloses a garment therapy system (see Fig. 1-6, abstract, para. 0044 for example) including a washable garment assembly (see Fig. 1-6, abstract, para. 0044 for example, a sleeve 110 is able to be washed and thus is washable) including vibration therapy for a user (see Fig. 1 and 4, para. 0066, vibration assembly 160, 165) which includes a sleeve member (see Fig. 1, sleeve member 110 with inner and outer surfaces as shown, the outer surface being visible in Fig. 4 showing the sleeve member being worn on the user’s elbow, inner surface contacting the user, see para. 0065 and 0070; para. 0066 discloses that the sleeve encases mechanical and electrical parts including vibration motors 160, 165 and thus a tunnel is formed which encloses the mechanical and electrical parts), a vibration assembly associated with the sleeve member (see Fig. 1 and 4, para. 0066, vibration assembly 160, 165). While Sifferlin discloses a sensor (see para. 0077), Sifferlin is silent as to including a second sensor for measuring biometric information and the assembly including a network interface and a first sensor configured to monitor real-time tracking data of a user; a data source configured to receive and store aggregated biometric data, a remote device comprising application programs, wherein the remote device is configured to receive manual capture data input by the user; and an intelligence engine configured to generate recommendation data including a recommended protocol to be performed by the washable garment assembly to operate the vibration assembly based thereon. However, Northen discloses a garment assembly including vibration delivery to a user and which includes biometric sensor (see Northen para. 0011 discloses vibration garment, para. 0014, 0056-0057 disclosing use with sensor measuring biometric data of the user, see also para. 0224, 0261-0262) and Wersland discloses a therapy device (percussive massager) which includes a network interface and sensor configured to monitor real-time tracking data of a user (Wersland Fig. 29-30, para. 0106, 0157, 0168), a data source configured to receive and store aggregated biometric data (see Fig. 30, data sources 103, para. 0163), a remote device comprising application programs, wherein the remote device is configured to receive manual capture data input by the user (see Fig. 29 showing remote device in the form of a smartphone, see para. 0106; para. 0157, 0167, 0171-0172 disclosing use/receipt of manual capture data by the user), and an intelligence engine configured to receive and aggregate the real-time tracking data from the therapy device, the biometric data from the data source, and the manual capture data from the remote device, wherein the intelligence engine is configured to generate recommendation data comprising a recommended protocol to be performed by the therapy device (see Wersland Fig. 29 showing remote device being a smart phone, para. 0106, see also Fig. 30-31; para. 0153-0177 disclosing using various manual capture data, real-time tracking data and biometric data to generate recommendation data used to control operation of the therapy device, see para. 0153-0160 in particular which discloses providing optimized therapeutic benefits via artificial intelligence driven intelligence engine recommendation data for a particular therapeutic routine including optimizing area of application of therapy, duration, force, frequency of therapy). 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 Sifferlin device to include a biometric sensor and the control module to be configured to communicate with a remote device and generate recommendation data based on the biometric data and control/direct use the vibration assembly based on the recommendation data, including network interface, data source, remote device, and intelligence engine, as taught by Northen and Wersland, in order to achieve a predefined biometric state of the user (Northen para. 0014) and to provide a bespoke routine for the washable garment assembly (Wersland para. 0161 as applied to the garment assembly of Sifferlin) and which would be use of a known technique to improve similar devices in the same way (i.e. use of the intelligence engine system of the percussive massager of Wersland applied to the vibrational garment/sleeve device of Sifferlin). The modified Sifferlin device is silent as to the sleeve member including a centering mark with the vibration assembly spaced apart therefrom by a therapy distance such that the centering mark is adjacent to a bone of the user with the vibration assembly aligned toa muscle of the user; however, Waldon teaches a similar sleeve member with vibration assembly which includes a centering mark with the vibration assembly spaced apart therefrom by a therapy distance such that the centering mark is adjacent to a bone of the user with the vibration assembly aligned toa muscle of the user (see Waldon Fig. 1-3, cutout 50 being a centering mark which is adjacent to a bone of the user, kneecap/patella, with vibration assemblies 52 spaced apart therefrom by a therapy distance and aligned with muscles of the leg above and below the kneecap/patella, see col. 3 ln. 4-17). 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 Sifferlin device to include a centering mark/cutout with the vibration assemblies spaced apart therefrom, as taught by Waldon, in order to provide a guide to the user to wear the device properly, i.e. locating the patella at the centering mark, to align the vibration assemblies in the correct location for desired therapy. The modified Sifferlin device discloses wires which coupled to and extending away from the vibration assemblies (see Fig. 1, wiring 163, see para. 0066), but is silent as to an electrical communication strip including a stretchable fabric member and at least a wire stitched therein which is configured to straighten in a longitudinal direction when the fabric member is stretched in the longitudinal direction. However, Longinotti-Buitoni discloses a garment assembly which includes this feature (see Longinotti-Buitoni Fig. 1B, 3-5, abstract, para. 0021, 0102, 0144, para. 0102: “fabric substrate”, “stretchable fabric”, wires may be attached to the substrate by sewing or stitching”). 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 Sifferlin device’s wiring to be the electrical communication strip including fabric member with at least one wire stitched therein, as taught by Longinotti-Buitoni, as this would have been obvious substitution of one known element for another (types of wires/electrical communication means) and one would expect the modified Sifferlin device to perform equally as well and would allow stretching of the garment without breaking of electrical connections (see Longinotti-Buitoni para. 0021). The modified Sifferlin device includes a centering mark (see above citations of Waldon), but is silent as to the centering mark being disposed on an outer surface of the sleeve member and spaced apart from an edge of the sleeve member; however, Hill teaches a similar garment which includes a centering mark being disposed on an outer surface of the sleeve member and spaced apart from an edge of the garment (see Hill Fig. 1-6, abstract, col. 1 ln. 32-40, col. 2 ln. 12-16 for example, centering mark 20). 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 Sifferlin device to include a centering mark, as taught by Hill, in order to provide an orientation marker to provide the user guidance on proper wearing of the garment (Hill col. 1 ln. 32-40, col. 2 ln. 12-16). The modified Sifferlin device is silent as to the sleeve member being comprised of a knit material infused with a germanium alloy configured to emit far infrared; however, Knott teaches a similar compression garment which is made of a knit material infused with an alloy which emits far infrared (see Knott col. 11 ln. 31 through col. 12 ln. 7) and Kwon teaches a compression garment infused with germanium (see Kwon translation pg. 3, 4th full paragraph, pg. 6). 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 Sifferlin device’s sleeve member to be made of a knit material infused with germanium alloy configured to emit far infrared, as taught by Knott and Kwon, in order to provide additional therapeutic effect (Knott col. 11 ln. 31-36) and which would have been obvious substitution of one known element/material for another. The modified Sifferlin device is silent as to the vibration assemblies each including at least three vibration motors arranged circumferentially to one another; however, Clowney discloses a similar vibrational garment which includes a vibration assembly including at least three vibration motors arranged circumferentially to one another (see Clowney Fig. 1-4, vibrational motors 130 arranged circumferentially as shown, see para. 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 Sifferlin device’s vibrational assemblies to each include at least three vibration motors arranged radially to one another, as taught by Clowney, as this would have been obvious substitution of one known element for another (plural vibration motors defining a vibration assembly) and one would expect the modified Sifferlin device to perform equally as well. The modified Sifferlin device discloses a sensor used for feedback for the vibrational garment (see Sifferlin para. 0077) is silent as to the sensor being configured to monitor biometric data of the user and to allow for the control module to switch on or off one or more of the vibration motors for a predetermined period of time based on the biometric data from the sensor; however, Avni teaches a similar vibrational garment which includes a biometric sensor which allows control of vibration motors to be switched on or off for a predetermined period of time based on the sensor readings (see Avni para. 0013 last 3 sentences in particular which disclose body parameter sensor, including ECG, EEG, blood pressure, temperature, heart rate, SpO2 etc. used to control vibrations such as stopping or starting them, heart rate indicative of strain). 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 Sifferlin device to include a biometric sensor and to control the vibration motors to turn them on/off for predetermined times, as taught by Avni, in order to adjust the vibration delivered to the user based on user sensed body parameters (Avni para. 0013).
Regarding claim 6, the modified Sifferlin system’s biometric data comprises at least one of a heart rate, a heart rate variability, a blood oxygen letter, a skin temperature, or a muscle temperature (see Northen para. 0014, 0261-0262; Wersland para. 0158).
Regarding claim 8, Regarding claim 8, the modified Sifferlin system’s recommendation data is generated from at least one of demographic data, activity data of the washable garment assembly, temporal data comprising timing of use of the washable garment assembly, analytics data corresponding to use of the washable garment assembly, or the biometric data (see Wersland para. 0158), and wherein the recommendation data is provided to the washable garment assembly (see Wersland para. 0160).
Regarding claim 9, the modified Sifferlin system’s demographic data comprises at least one of a biological parameter of the user, an age of the user, a height of the user, or a weight of the user (see Wersland para. 0158).
Regarding claim 10, the modified Sifferlin system’s activity data comprises at least one of a type of exercise activity, a volume of the exercise activity, an intensity of the exercise activity, or a trend in activity parameters over time (see Wersland para. 0158).
Regarding claim 11, the modified Sifferlin system’s temporal data comprises at least one of an absolute time of an exercise routine of the user or a relative time of the exercise routine to a predetermined event (see Wersland para. 0158).
Regarding claim 12, the modified Sifferlin system’s recommendation data comprises a user notification of at least one of the recommended protocol, a change to the recommended protocol, or a behavior recommendation (see Wersland para. 0154-0156, 0161, 0176).
Regarding claim 14, the modified Sifferlin system is such that the recommendation data is generated from a weighted scoring determination comprising at least one of a recovery determination score, a wellness determination score, or a behavior determination score (see Wersland para. 0172), and based on the weighted scoring determination, the recommended protocol is modified to improve the recovery determination score, the wellness determination score, and the behavior determination score (see Wersland para. 0158 and 0172).
Regarding claim 15, the modified Sifferlin system’s recovery determination score includes a determination of how long a heart rate of the user returned to a restorative state (see Northen para. 0014, 0260-0262; Wersland para. 0158).
Regarding claim 16, the modified Sifferlin system’s recovery determination score includes a determination of dietary intake and trends to determine an overall wellness score (see Wersland para. 0172, 0175).
Regarding claim 17, the modified Sifferlin system’s behavior determination score includes a determination of sleep metrics and trends to determine an overall behavior determination score (see Wersland para. 0158, 0172).
Regarding claim 18, the modified Sifferlin system’s recommendation protocol comprises a routine for the garment assembly, the routine including a series of steps configured to be performed in a predetermined order (see Wersland para. 0106-0108, 0155-0156).
Regarding claim 19, the modified Sifferlin system’s recommendation data comprises at least one of the recommended protocol, a behavior modification recommendation, or a wellness insight (see Wersland para. 0155-0156, 0161, 0176, 0175).
Claim(s) 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sifferlin, Northen, Wersland, Waldon, Longinotti-Buitoni, Hill, Knott, Kwon, Clowney, and Avni as applied to claim 5 above, and further in view of Burbank et al. (2009/0221943).
Regarding claim 24, the modified Sifferlin device is silent as to including first and second sections located symmetrically circumferentially around the sleeve member with a first vibration assembly disposed on the first section and a second vibration assembly disposed at the second section (Sifferlin discloses plural vibration assemblies shown in Fig. 1 and 4, vibration assemblies 160 and 165, para. 0066); however, Burbank teaches a similar wearable garment which includes first and second symmetrically circumferentially located sections having vibration assemblies located thereon (see Burbank Fig. 62-65, para. 0197-0200, vibration assemblies 442 located on the front and rear sides of the garment and which are symmetrically circumferentially located). 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 Sifferlin device to have plural vibration assemblies located on first and second sections which are located symmetrically circumferentially around the sleeve member, as taught by Burbank, in order to provide vibration to both front and rear portions of the body part.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sifferlin in view of Northen, Wersland, Waldon, Longinotti-Buitoni, Leftly et al. (2014/0364778), Knott, Kwon, Clowney, and Avni.
Regarding claim 20, Sifferlin discloses a washable garment assembly (see Fig. 1-6, abstract, para. 0044 for example, a sleeve is able to be washed and thus is washable) whose use includes a method of providing therapeutic effect including providing vibration therapy to a user (see Fig. 1 and 4, para. 0066, vibration assembly 160, 165) and which includes a sleeve member (see Fig. 1, sleeve member 110 with inner and outer surfaces as shown, the outer surface being visible in Fig. 4 showing the sleeve member being worn on the user’s elbow, inner surface contacting the user, see para. 0065 and 0070; para. 0066 discloses that the sleeve encases mechanical and electrical parts including vibration motors 160, 165 and thus a tunnel is formed which encloses the mechanical and electrical parts), a vibration assembly associated with the sleeve member (see Fig. 1 and 4, para. 0066, vibration assembly 160, 165), and a sensor (see para. 0077), a control module with a battery removably coupled to the control module (see para. 0033, “device is operated by a controller”, see also para. 0059-0060 which discloses a controller, i.e. a control module; para. 0066 “battery housing 170”, see para. 0051 “battery-powered vibration mechanisms”, removable batteries per para. 0051). While Sifferlin discloses a sensor (see para. 0077), Sifferlin is silent as to including receiving biometric data of the user and silent as to the steps of receiving manual capture data, real-time tracking data, application-based biometric data, and online health data; aggregating the manual capture data, the real-time tracking data, the biometric data, and the health data, each comprising at least one of demographic data, activity data of the garment assembly, temporal data comprising timing of use of the garment assembly, analytics data corresponding to use of the garment assembly, and biometric data; generating a weighted score based on at least one of the manual capture data, the real-time tracking data, the biometric data, or the health data, wherein the weighted score includes a recovery determination score, a wellness determination score, and a behavior determination score; generating recommendation data based on the aggregated data comprising a recommended protocol to be performed by the garment assembly; modifying the recommended protocol to improve the recovery determination score, the wellness determination score, and the behavior determination score; providing the protocol to the washable garment assembly, controlling the vibration assembly based thereon, and notifying the recommendation data to a user of the garment assembly. However, Northen discloses a garment assembly including vibration delivery to a user and which includes biometric sensor (see Northen para. 0011 discloses vibration garment, para. 0014, 0056-0057 disclosing use with sensor measuring biometric data of the user, see also para. 0224, 0261-0262) and Wersland discloses a therapy device (percussive massager) whose use includes the steps of receiving manual capture data, real-time tracking data, application-based biometric data, and online health data (see Wersland para. 0158, 0167, 0168, 0163, 0169); aggregating the manual capture data, the real-time tracking data, the biometric data, and the health data, each comprising at least one of demographic data, activity data of the therapy device, temporal data comprising timing of use of the therapy device, analytics data corresponding to use of the therapy device, and biometric data (see Wersland para. 0159, 0158); generating a weighted score based on at least one of the manual capture data, the real-time tracking data, the biometric data, or the health data, wherein the weighted score includes a recovery determination score, a wellness determination score, and a behavior determination score (see Wersland para. 0172); generating recommendation data based on the aggregated data comprising a recommended protocol to be performed by the garment assembly (see Wersland para. 0155-0156); modifying the recommended protocol to improve the recovery determination score, the wellness determination score, and the behavior determination score (see Wersland para. 0155-0156, 0161, 0181); controlling and notifying the recommendation data to a user of the therapy device (see Wersland para. 0161, 0176-0177, 0153-0177). 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 Sifferlin device/use method to include a biometric sensor obtaining biometric data of the user and the control module to perform the claimed steps, as taught by Northen and Wersland, in order to achieve a predefined biometric state of the user (Northen para. 0014) and to provide a bespoke routine for the washable garment assembly (Wersland para. 0161 as applied to the garment assembly of Sifferlin) and which would be use of a known technique to improve similar devices/use methods in the same way (i.e. use of the intelligence engine system of the percussive massager of Wersland applied to the vibrational garment/sleeve device of Sifferlin). The modified Sifferlin device is silent as to the sleeve member including a centering mark with the vibration assembly spaced apart therefrom by a therapy distance such that the centering mark is adjacent to a bone of the user with the vibration assembly aligned toa muscle of the user; however, Waldon teaches a similar sleeve member with vibration assembly which includes a centering mark with the vibration assembly spaced apart therefrom by a therapy distance such that the centering mark is adjacent to a bone of the user with the vibration assembly aligned toa muscle of the user (see Waldon Fig. 1-3, cutout 50 being a centering mark which is adjacent to a bone of the user, kneecap/patella, with vibration assemblies 52 spaced apart therefrom by a therapy distance and aligned with muscles of the leg above and below the kneecap/patella, see col. 3 ln. 4-17). 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 Sifferlin device to include a centering mark/cutout with the vibration assemblies spaced apart therefrom, as taught by Waldon, in order to provide a guide to the user to wear the device properly, i.e. locating the patella at the centering mark, to align the vibration assemblies in the correct location for desired therapy. The modified Sifferlin device discloses wires which coupled to and extending away from the vibration assemblies (see Fig. 1, wiring 163, see para. 0066), but is silent as to an electrical communication strip including a stretchable fabric member and at least a wire stitched therein which is configured to straighten in a longitudinal direction when the fabric member is stretched in the longitudinal direction. However, Longinotti-Buitoni discloses a garment assembly which includes this feature (see Longinotti-Buitoni Fig. 1B, 3-5, abstract, para. 0021, 0102, 0144, para. 0102: “fabric substrate”, “stretchable fabric”, wires may be attached to the substrate by sewing or stitching”). 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 Sifferlin device’s wiring to be the electrical communication strip including fabric member with at least one wire stitched therein, as taught by Longinotti-Buitoni, as this would have been obvious substitution of one known element for another (types of wires/electrical communication means) and one would expect the modified Sifferlin device to perform equally as well and would allow stretching of the garment without breaking of electrical connections (see Longinotti-Buitoni para. 0021). The modified Sifferlin device is silent as to the vibration assembly being waterproof enclosed within the sleeve member; however, Leftly teaches a similar device which includes this feature (see Leftly para. 0025). 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 Sifferlin device’s vibration assembly to be waterproof enclosed within the sleeve, as taught by Leftly, in order to provide protection to electrical components from water damage. The modified Sifferlin discloses the batteries being removable (see Sifferlin para. 0051), and is thus a sleeve that able to be washed, i.e. washable, after the batteries have been removed. The modified Sifferlin is silent as to the sleeve member being comprised of a knit material infused with a germanium alloy configured to emit far infrared; however, Knott teaches a similar compression garment which is made of a knit material infused with an alloy which emits far infrared (see Knott col. 11 ln. 31 through col. 12 ln. 7) and Kwon teaches a compression garment infused with germanium (see Kwon translation pg. 3, 4th full paragraph, pg. 6). 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 Sifferlin’s sleeve member to be made of a knit material infused with germanium alloy configured to emit far infrared, as taught by Knott and Kwon, in order to provide additional therapeutic effect (Knott col. 11 ln. 31-36) and which would have been obvious substitution of one known element/material for another. The modified Sifferlin device is silent as to the vibration assemblies each including at least three vibration motors; however, Clowney discloses a similar vibrational garment which includes a vibration assembly including at least three vibration motors arranged circumferentially to one another (see Clowney Fig. 1-4, vibrational motors 130 arranged radially as shown, see para. 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 Sifferlin device’s vibrational assemblies to each include at least three vibration motors arranged radially to one another, as taught by Clowney, as this would have been obvious substitution of one known element for another (plural vibration motors defining a vibration assembly) and one would expect the modified Sifferlin device to perform equally as well. The modified Sifferlin device discloses a sensor used for feedback for the vibrational garment (see Sifferlin para. 0077) is silent as to the sensor being configured to monitor biometric data of the user and to allow for the control module to switch on or off one or more of the vibration motors for a predetermined period of time based on the biometric data from the sensor; however, Avni teaches a similar vibrational garment which includes a biometric sensor which allows control of vibration motors to be switched on or off for a predetermined period of time based on the sensor readings (see Avni para. 0013 last 3 sentences in particular which disclose body parameter sensor, including ECG, EEG, blood pressure, temperature, heart rate, SpO2 etc. used to control vibrations such as stopping or starting them). 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 Sifferlin device to include a biometric sensor and to control the vibration motors to turn them on/off for predetermined times, as taught by Avni, in order to adjust the vibration delivered to the user based on user sensed body parameters (Avni para. 0013).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 and 3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 10 of U.S. Patent No. 11,896,545 in view of Sifferlin, Knott, Kwon, Clowney, and Avni.
Regarding claim 1, patent claim 10 discloses a wearable garment assembly/system/method of providing therapeutic effect therewith, which includes each structural and functional limitation as claimed (see claim 1 which discloses sleeve member having inner and outer surfaces, vibration assembly, control module including battery, claim 10 setting forth the varying compression value sections), but is silent as to including the control electronics configured to communicate with a remote device; however, Sifferlin discloses a similar device including control electronics (see para. 0033 “controller” see para. 0061 and 0063 which disclose the vibration assembly is electrically activated, thus control module includes control electronics, plural vibration assemblies 160 & 165). 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 patent claim 10 device/system/method’s control module to have control electronics, to include control electronics and plural vibration assemblies, taught by Sifferlin, to provide control of the assembly. The modified patent claim 10 is silent as to the sleeve member being comprised of a knit material infused with a germanium alloy configured to emit far infrared; however, Knott teaches a similar compression garment which is made of a knit material infused with an alloy which emits far infrared (see Knott col. 11 ln. 31 through col. 12 ln. 7) and Kwon teaches a compression garment infused with germanium (see Kwon translation pg. 3, 4th full paragraph, pg. 6). 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 patent claim 10’s sleeve member to be made of a knit material infused with germanium alloy configured to emit far infrared, as taught by Knott and Kwon, in order to provide additional therapeutic effect (Knott col. 11 ln. 31-36) and which would have been obvious substitution of one known element/material for another. The modified patent claim device is silent as to the vibration assemblies each including at least three vibration motors arranged radially to one another; however, Clowney discloses a similar vibrational garment which includes a vibration assembly including at least three vibration motors arranged radially to one another (see Clowney Fig. 1-4, vibrational motors 130 arranged radially as shown, see para. 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 patent claim 10 device’s vibrational assemblies to each include at least three vibration motors arranged radially to one another, as taught by Clowney, as this would have been obvious substitution of one known element for another (plural vibration motors defining a vibration assembly) and one would expect the modified patent device to perform equally as well. The modified patent device discloses a sensor used for feedback for the vibrational garment (see Sifferlin para. 0077) is silent as to the sensor being configured to monitor biometric data of the user and to allow for the control module to switch on or off one or more of the vibration motors for a predetermined period of time based on the biometric data from the sensor; however, Avni teaches a similar vibrational garment which includes a biometric sensor which allows control of vibration motors to be switched on or off for a predetermined period of time based on the sensor readings (see Avni para. 0013 last 3 sentences in particular which disclose body parameter sensor, including ECG, EEG, blood pressure, temperature, heart rate, SpO2 etc. used to control vibrations such as stopping or starting them). 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 patent claim 10 device to include a biometric sensor and to control the vibration motors to turn them on/off for predetermined times, as taught by Avni, in order to adjust the vibration delivered to the user based on user sensed body parameters (Avni para. 0013).
Instant claim 3 corresponds to patent claim 10 as modified by the references above.
Claims 2 and 4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 10 of U.S. Patent No. 11,896,545 in view of Sifferlin, Knott, Kwon, Clowney, Avni, and Wersland.
Regarding instant claim 2, the modified patent claim is silent as to the control module being configured to communicate with a remote device via a wireless communication module; however, Wersland discloses a therapy device (percussive massager) which includes a controller configured to communicate with a remote device (see Wersland Fig. 29 showing remote device being a smart phone, para. 0106, see also Fig. 30-31; para. 0153-0177 disclosing using various manual capture data, real-time tracking data and biometric data to generate recommendation data used to control operation of the therapy device, see para. 0153-0160 in particular which discloses providing optimized therapeutic benefits via artificial intelligence driven recommendation data for a particular therapeutic routine including optimizing area of application of therapy, duration, force, frequency of therapy). 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 patent claim 10 device’s control module to be configured to communicate with a remote device and generate recommendation data based on the biometric data and control/direct use the vibration assembly based on the recommendation data, as taught by Wersland, in order to provide connectivity with a user’s phone/watch/tablet for control (Fig. 29 and para. 0106) and a bespoke routine for the washable garment assembly (Wersland para. 0161 as applied to the garment assembly of the patent claim) and which would be use of a known technique to improve similar devices in the same way (i.e. use of the intelligence engine system of the percussive massager of Wersland applied to the vibrational garment/sleeve device of the patent claim).
Instant claim 4 corresponds to modified patent claim 10 as modified above in view of Wersland (see above citations of Wersland).
Claim 23 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 10 of U.S. Patent No. 11,896,545 in view of Sifferlin, Knott, Kwon, Clowney, Avni, Samoodi and Maalouf.
Regarding instant claim 23, the modified patent claim 10 device is silent as to the first section and second section being located symmetrically circumferentially around the sleeve member; however, Samoodi teaches a compression garment which includes differing compression sections located along the same circumferential location on the device (see Samoodi Fig. 6 and para. 0054). 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 patent claim device’s first and second sections of differing compression values to be located along the same circumferential location on the device, as taught by Samoodi, and to further modify such sections to be symmetrical in order to provide a desired level and location of compression to the user’s body part. The modified patent claim 10 is silent as to including a third vibration assembly disposed in a third section circumferentially around the sleeve; however, Maalouf discloses a similar vibrational garment which includes at least three vibrational assemblies arranged circumferentially around the sleeve (see Maalouf Fig. 1-3, vibration assemblies 22, see para. 0028 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 patent claim 10 device to include an additional vibration assembly, as taught by Maalouf, in order to provide additional therapeutic effect to the user (via additional vibration assembly).
Claims 5-6, 8-12, and 14-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 3 of U.S. Patent No. 11,896,545 in view of Sifferlin, Northen, Wersland, Waldon, Hill, Knott, Kwon, Clowney, and Avni.
Regarding instant claim 5, patent claim 3 discloses a wearable garment assembly/system/method of providing therapeutic effect therewith, which includes each structural and functional limitation as claimed (see claim 1 which discloses sleeve member having inner and outer surfaces, vibration assembly, control module including battery, claim 3 setting forth the electrical communication strip as claimed), but is silent as to including the control electronics, the sensing and generation of recommendation data to provide for control of the vibration assembly and the centering mark as claimed; however, Sifferlin discloses a similar device including control electronics (see para. 0033 “controller” see para. 0061 and 0063 which disclose the vibration assembly is electrically activated, thus control module includes control electronics), Northen discloses a garment assembly including vibration delivery to a user and which includes biometric sensor (see Northen para. 0011 discloses vibration garment, para. 0014, 0056-0057 disclosing use with sensor measuring biometric data of the user, see also para. 0224, 0261-0262) and Wersland discloses a therapy device (percussive massager) which includes a controller configured to communicate with a remote device and generate recommendation data based on the biometric data from sensors and control/direct use the therapy device based on the recommendation data (see Wersland Fig. 29 showing remote device being a smart phone, para. 0106, see also Fig. 30-31; para. 0153-0177 disclosing using various manual capture data, real-time tracking data and biometric data to generate recommendation data used to control operation of the therapy device, see para. 0153-0160 in particular which discloses providing optimized therapeutic benefits via artificial intelligence driven recommendation data for a particular therapeutic routine including optimizing area of application of therapy, duration, force, frequency of therapy), and Waldron teaches a compression sleeve including a centering mark (see Waldon Fig. 1-3, cutout 50 being a centering mark which is adjacent to a bone of the user, kneecap/patella, with vibration assemblies 52 spaced apart therefrom by a therapy distance and aligned with muscles of the leg above and below the kneecap/patella, see col. 3 ln. 4-17). 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 patent claim 3 device/system/method to include a biometric sensor and the control module to be configured to communicate with a remote device and generate recommendation data based on the biometric data and control/direct use the vibration assembly based on the recommendation data, as taught by Northen and Wersland, in order to achieve a predefined biometric state of the user (Northen para. 0014) and to provide a bespoke routine for the washable garment assembly (Wersland para. 0161 as applied to the garment assembly of Sifferlin) and which would be use of a known technique to improve similar devices in the same way (i.e. use of the intelligence engine system of the percussive massager of Wersland applied to the vibrational garment/sleeve device of the patent claim), to include control electronics, taught by Sifferlin, to provide control of the assembly, and a centering mark, taught by Waldron, in order to provide a guide to the user to wear the device properly, i.e. locating the patella at the centering mark, to align the vibration assemblies in the correct location for desired therapy. The modified patent claim 3 is silent as to the centering mark being disposed on an outer surface of the sleeve member and spaced apart from an edge of the sleeve member; however, Hill teaches a similar garment which includes a centering mark being disposed on an outer surface of the sleeve member and spaced apart from an edge of the garment (see Hill Fig. 1-6, abstract, col. 1 ln. 32-40, col. 2 ln. 12-16 for example, centering mark 20). 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 patent claim 3 device to include a centering mark, as taught by Hill, in order to provide an orientation marker to provide the user guidance on proper wearing of the garment (Hill col. 1 ln. 32-40, col. 2 ln. 12-16). The modified patent claim 3 is silent as to the sleeve member being comprised of a knit material infused with a germanium alloy configured to emit far infrared; however, Knott teaches a similar compression garment which is made of a knit material infused with an alloy which emits far infrared (see Knott col. 11 ln. 31 through col. 12 ln. 7) and Kwon teaches a compression garment infused with germanium (see Kwon translation pg. 3, 4th full paragraph, pg. 6). 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 patent claim 3’s sleeve member to be made of a knit material infused with germanium alloy configured to emit far infrared, as taught by Knott and Kwon, in order to provide additional therapeutic effect (Knott col. 11 ln. 31-36) and which would have been obvious substitution of one known element/material for another. The modified patent claim device is silent as to the vibration assemblies each including at least three vibration motors arranged circumferentially to one another; however, Clowney discloses a similar vibrational garment which includes a vibration assembly including at least three vibration motors arranged radially to one another (see Clowney Fig. 1-4, vibrational motors 130 arranged circumferentially as shown, see para. 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 patent claim 3 device’s vibrational assemblies to each include at least three vibration motors arranged radially to one another, as taught by Clowney, as this would have been obvious substitution of one known element for another (plural vibration motors defining a vibration assembly) and one would expect the modified patent device to perform equally as well. The modified patent device discloses a sensor used for feedback for the vibrational garment (see Sifferlin para. 0077) is silent as to the sensor being configured to monitor biometric data of the user and to allow for the control module to switch on or off one or more of the vibration motors for a predetermined period of time based on the biometric data from the sensor; however, Avni teaches a similar vibrational garment which includes a biometric sensor which allows control of vibration motors to be switched on or off for a predetermined period of time based on the sensor readings (see Avni para. 0013 last 3 sentences in particular which disclose body parameter sensor, including ECG, EEG, blood pressure, temperature, heart rate, SpO2 etc. used to control vibrations such as stopping or starting them). 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 patent claim 3 device to include a biometric sensor and to control the vibration motors to turn them on/off for predetermined times, as taught by Avni, in order to adjust the vibration delivered to the user based on user sensed body parameters (Avni para. 0013).
Instant claims 6, 8-12, and 14-19 correspond to patent claim 3 as modified by the references above.
Claim 24 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 3 of U.S. Patent No. 11,896,545 in view of Sifferlin, Northen, Wersland, Waldon, Hill, Knott, Kwon, Clowney, Avni, and Burbank.
Regarding instant claim 24, the modified patent claim 3 device is silent as to including first and second sections located symmetrically circumferentially around the sleeve member with a first vibration assembly disposed on the first section and a second vibration assembly disposed at the second section (Sifferlin discloses plural vibration assemblies shown in Fig. 1 and 4, vibration assemblies 160 and 165, para. 0066); however, Burbank teaches a similar wearable garment which includes first and second symmetrically circumferentially located sections having vibration assemblies located thereon (see Burbank Fig. 62-65, para. 0197-0200, vibration assemblies 442 located on the front and rear sides of the garment and which are symmetrically circumferentially located). 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 patent claim 3 device to have plural vibration assemblies located on first and second sections which are located symmetrically circumferentially around the sleeve member, as taught by Burbank, in order to provide vibration to both front and rear portions of the body part.
Claim 20 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 3 of U.S. Patent No. 11,896,545 in view of Sifferlin, Northen, Wersland, Waldon, Knott, Kwon, Clowney, and Avni.
Regarding instant claim 20, patent claim 3 discloses a wearable garment assembly/system/method of providing therapeutic effect therewith, which includes each structural and functional limitation as claimed (see claim 1 which discloses sleeve member having inner and outer surfaces, vibration assembly, control module including battery, claim 3 disclosing electrical communication strip as claimed), but is silent as to including the control electronics, the sensing and generation of recommendation data to provide for control of the vibration assembly and the centering mark as claimed; however, Sifferlin discloses a similar device including control electronics and removable batteries (see para. 0033 “controller” see para. 0061 and 0063 which disclose the vibration assembly is electrically activated, thus control module includes control electronics, removable batteries per para. 0051), Northen discloses a garment assembly including vibration delivery to a user and which includes biometric sensor (see Northen para. 0011 discloses vibration garment, para. 0014, 0056-0057 disclosing use with sensor measuring biometric data of the user, see also para. 0224, 0261-0262) and Wersland discloses a therapy device (percussive massager) which includes a controller configured to communicate with a remote device and generate recommendation data based on the biometric data from sensors and control/direct use the therapy device based on the recommendation data (see Wersland Fig. 29 showing remote device being a smart phone, para. 0106, see also Fig. 30-31; para. 0153-0177 disclosing using various manual capture data, real-time tracking data and biometric data to generate recommendation data used to control operation of the therapy device, see para. 0153-0160 in particular which discloses providing optimized therapeutic benefits via artificial intelligence driven recommendation data for a particular therapeutic routine including optimizing area of application of therapy, duration, force, frequency of therapy), and Waldron teaches a compression sleeve including a centering mark (see Waldon Fig. 1-3, cutout 50 being a centering mark which is adjacent to a bone of the user, kneecap/patella, with vibration assemblies 52 spaced apart therefrom by a therapy distance and aligned with muscles of the leg above and below the kneecap/patella, see col. 3 ln. 4-17). 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 patent claim 3 device/system/method to include a biometric sensor and the control module to be configured to communicate with a remote device and generate recommendation data based on the biometric data and control/direct use the vibration assembly based on the recommendation data, as taught by Northen and Wersland, in order to achieve a predefined biometric state of the user (Northen para. 0014) and to provide a bespoke routine for the washable garment assembly (Wersland para. 0161 as applied to the garment assembly of the patent claim 3) and which would be use of a known technique to improve similar devices in the same way (i.e. use of the intelligence engine system of the percussive massager of Wersland applied to the vibrational garment/sleeve device of the patent claim), to include control electronics and removable batteries, taught by Sifferlin, to provide control of the assembly, and a centering mark, taught by Waldron, in order to provide a guide to the user to wear the device properly, i.e. locating the patella at the centering mark, to align the vibration assemblies in the correct location for desired therapy. The modified patent claim 3 discloses the batteries being removable (see Sifferlin para. 0051), and is thus a sleeve that able to be washed, i.e. washable, after the batteries have been removed. The modified patent claim 3 is silent as to the sleeve member being comprised of a knit material infused with a germanium alloy configured to emit far infrared; however, Knott teaches a similar compression garment which is made of a knit material infused with an alloy which emits far infrared (see Knott col. 11 ln. 31 through col. 12 ln. 7) and Kwon teaches a compression garment infused with germanium (see Kwon translation pg. 3, 4th full paragraph, pg. 6). 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 patent claim 3’s sleeve member to be made of a knit material infused with germanium alloy configured to emit far infrared, as taught by Knott and Kwon, in order to provide additional therapeutic effect (Knott col. 11 ln. 31-36) and which would have been obvious substitution of one known element/material for another. The modified patent claim device is silent as to the vibration assemblies each including at least three vibration motors arranged circumferentially to one another; however, Clowney discloses a similar vibrational garment which includes a vibration assembly including at least three vibration motors arranged radially to one another (see Clowney Fig. 1-4, vibrational motors 130 arranged circumferentially as shown, see para. 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 patent claim 3 device’s vibrational assemblies to each include at least three vibration motors arranged radially to one another, as taught by Clowney, as this would have been obvious substitution of one known element for another (plural vibration motors defining a vibration assembly) and one would expect the modified patent device to perform equally as well. The modified patent device discloses a sensor used for feedback for the vibrational garment (see Sifferlin para. 0077) is silent as to the sensor being configured to monitor biometric data of the user and to allow for the control module to switch on or off one or more of the vibration motors for a predetermined period of time based on the biometric data from the sensor; however, Avni teaches a similar vibrational garment which includes a biometric sensor which allows control of vibration motors to be switched on or off for a predetermined period of time based on the sensor readings (see Avni para. 0013 last 3 sentences in particular which disclose body parameter sensor, including ECG, EEG, blood pressure, temperature, heart rate, SpO2 etc. used to control vibrations such as stopping or starting them). 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 patent claim 3 device to include a biometric sensor and to control the vibration motors to turn them on/off for predetermined times, as taught by Avni, in order to adjust the vibration delivered to the user based on user sensed body parameters (Avni para. 0013).
Claims 1 and 3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 11,547,627 in view of Sifferlin, Knott, Kwon, Clowney, and Avni.
Regarding instant claim 1, patent claim 12 discloses a wearable garment assembly/system/method of providing therapeutic effect therewith, which includes each structural and functional limitation as claimed (see claim 1 which discloses sleeve member having inner and outer surfaces, vibration assembly, control module including battery, claim 12 setting forth the varying compression value sections), but is silent as to including the control electronics configured to communicate with a remote device; however, Sifferlin discloses a similar device including control electronics (see para. 0033 “controller” see para. 0061 and 0063 which disclose the vibration assembly is electrically activated, thus control module includes control electronics, plural vibration assemblies 160 & 165). 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 patent claim 12 device/system/method control module to include control electronics and to be configured to communicate with a remote, taught by Sifferlin, to provide control of the assembly. The modified patent claim 12 is silent as to the sleeve member being comprised of a knit material infused with a germanium alloy configured to emit far infrared; however, Knott teaches a similar compression garment which is made of a knit material infused with an alloy which emits far infrared (see Knott col. 11 ln. 31 through col. 12 ln. 7) and Kwon teaches a compression garment infused with germanium (see Kwon translation pg. 3, 4th full paragraph, pg. 6). 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 patent claim 12’s sleeve member to be made of a knit material infused with germanium alloy configured to emit far infrared, as taught by Knott and Kwon, in order to provide additional therapeutic effect (Knott col. 11 ln. 31-36) and which would have been obvious substitution of one known element/material for another. The modified patent claim device is silent as to the vibration assemblies each including at least three vibration motors arranged radially to one another; however, Clowney discloses a similar vibrational garment which includes a vibration assembly including at least three vibration motors arranged radially to one another (see Clowney Fig. 1-4, vibrational motors 130 arranged radially as shown, see para. 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 patent claim 12 device’s vibrational assemblies to each include at least three vibration motors arranged radially to one another, as taught by Clowney, as this would have been obvious substitution of one known element for another (plural vibration motors defining a vibration assembly) and one would expect the modified patent device to perform equally as well. The modified patent device discloses a sensor used for feedback for the vibrational garment (see Sifferlin para. 0077) is silent as to the sensor being configured to monitor biometric data of the user and to allow for the control module to switch on or off one or more of the vibration motors for a predetermined period of time based on the biometric data from the sensor; however, Avni teaches a similar vibrational garment which includes a biometric sensor which allows control of vibration motors to be switched on or off for a predetermined period of time based on the sensor readings (see Avni para. 0013 last 3 sentences in particular which disclose body parameter sensor, including ECG, EEG, blood pressure, temperature, heart rate, SpO2 etc. used to control vibrations such as stopping or starting them). 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 patent claim 12 device to include a biometric sensor and to control the vibration motors to turn them on/off for predetermined times, as taught by Avni, in order to adjust the vibration delivered to the user based on user sensed body parameters (Avni para. 0013).
Instant claim 3 corresponds to patent claim 12 as modified by the references above.
Claims 2 and 4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 11,547,627 in view of Sifferlin, Knott, Kwon, Clowney, Avni, and Wersland.
Regarding instant claim 2, the modified patent claim is silent as to the control module being configured to communicate with a remote device via a wireless communication module; however, Wersland discloses a therapy device (percussive massager) which includes a controller configured to communicate with a remote device (see Wersland Fig. 29 showing remote device being a smart phone, para. 0106, see also Fig. 30-31; para. 0153-0177 disclosing using various manual capture data, real-time tracking data and biometric data to generate recommendation data used to control operation of the therapy device, see para. 0153-0160 in particular which discloses providing optimized therapeutic benefits via artificial intelligence driven recommendation data for a particular therapeutic routine including optimizing area of application of therapy, duration, force, frequency of therapy). 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 patent claim 12 device’s control module to be configured to communicate with a remote device and generate recommendation data based on the biometric data and control/direct use the vibration assembly based on the recommendation data, as taught by Wersland, in order to provide connectivity with a user’s phone/watch/tablet for control (Fig. 29 and para. 0106) and a bespoke routine for the washable garment assembly (Wersland para. 0161 as applied to the garment assembly of the patent claim) and which would be use of a known technique to improve similar devices in the same way (i.e. use of the intelligence engine system of the percussive massager of Wersland applied to the vibrational garment/sleeve device of the patent claim).
Instant claim 4 corresponds to modified patent claim 12 as modified above in view of Wersland (see above citations of Wersland).
Claim 23 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 11,547,627 in view of Sifferlin, Knott, Kwon, Clowney, Avni, Samoodi, and Maalouf.
Regarding instant claim 23, the modified patent claim 12 device is silent as to the first section and second section being located symmetrically circumferentially around the sleeve member; however, Samoodi teaches a compression garment which includes differing compression sections located along the same circumferential location on the device (see Samoodi Fig. 6 and para. 0054). 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 patent claim device’s first and second sections of differing compression values to be located along the same circumferential location on the device, as taught by Samoodi, and to further modify such sections to be symmetrical in order to provide a desired level and location of compression to the user’s body part. The modified patent claim 12 is silent as to including a third vibration assembly disposed in a third section circumferentially around the sleeve; however, Maalouf discloses a similar vibrational garment which includes at least three vibrational assemblies arranged circumferentially around the sleeve (see Maalouf Fig. 1-3, vibration assemblies 22, see para. 0028 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 patent claim 12 device to include an additional vibration assembly, as taught by Maalouf, in order to provide additional therapeutic effect to the user (via additional vibration assembly).
Claims 5-6, 8-12, and 14-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 6 of U.S. Patent No. 11,547,627 in view of Sifferlin, Northen, Wersland, Waldon, Hill, Knott, Kwon, Clowney, and Avni.
Regarding instant claim 5, patent claim 6 discloses a wearable garment assembly/system/method of providing therapeutic effect therewith, which includes each structural and functional limitation as claimed (see claim 1 which discloses sleeve member having inner and outer surfaces, vibration assembly, control module including battery, claim 6 setting forth the electrical communication strip as claimed), but is silent as to including the control electronics, the sensing and generation of recommendation data to provide for control of the vibration assembly and the centering mark as claimed; however, Sifferlin discloses a similar device including control electronics (see para. 0033 “controller” see para. 0061 and 0063 which disclose the vibration assembly is electrically activated, thus control module includes control electronics), Northen discloses a garment assembly including vibration delivery to a user and which includes biometric sensor (see Northen para. 0011 discloses vibration garment, para. 0014, 0056-0057 disclosing use with sensor measuring biometric data of the user, see also para. 0224, 0261-0262) and Wersland discloses a therapy device (percussive massager) which includes a controller configured to communicate with a remote device and generate recommendation data based on the biometric data from sensors and control/direct use the therapy device based on the recommendation data (see Wersland Fig. 29 showing remote device being a smart phone, para. 0106, see also Fig. 30-31; para. 0153-0177 disclosing using various manual capture data, real-time tracking data and biometric data to generate recommendation data used to control operation of the therapy device, see para. 0153-0160 in particular which discloses providing optimized therapeutic benefits via artificial intelligence driven recommendation data for a particular therapeutic routine including optimizing area of application of therapy, duration, force, frequency of therapy), and Waldron teaches a compression sleeve including a centering mark (see Waldon Fig. 1-3, cutout 50 being a centering mark which is adjacent to a bone of the user, kneecap/patella, with vibration assemblies 52 spaced apart therefrom by a therapy distance and aligned with muscles of the leg above and below the kneecap/patella, see col. 3 ln. 4-17). 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 patent claim 6 device/system/method to include a biometric sensor and the control module to be configured to communicate with a remote device and generate recommendation data based on the biometric data and control/direct use the vibration assembly based on the recommendation data, as taught by Northen and Wersland, in order to achieve a predefined biometric state of the user (Northen para. 0014) and to provide a bespoke routine for the washable garment assembly (Wersland para. 0161 as applied to the garment assembly of Sifferlin) and which would be use of a known technique to improve similar devices in the same way (i.e. use of the intelligence engine system of the percussive massager of Wersland applied to the vibrational garment/sleeve device of the patent claim), to include control electronics, taught by Sifferlin, to provide control of the assembly, and a centering mark, taught by Waldron, in order to provide a guide to the user to wear the device properly, i.e. locating the patella at the centering mark, to align the vibration assemblies in the correct location for desired therapy. The modified patent claim 6 is silent as to the centering mark being disposed on an outer surface of the sleeve member and spaced apart from an edge of the sleeve member; however, Hill teaches a similar garment which includes a centering mark being disposed on an outer surface of the sleeve member and spaced apart from an edge of the garment (see Hill Fig. 1-6, abstract, col. 1 ln. 32-40, col. 2 ln. 12-16 for example, centering mark 20). 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 patent claim 6 device to include a centering mark, as taught by Hill, in order to provide an orientation marker to provide the user guidance on proper wearing of the garment (Hill col. 1 ln. 32-40, col. 2 ln. 12-16). The modified patent claim 6 is silent as to the sleeve member being comprised of a knit material infused with a germanium alloy configured to emit far infrared; however, Knott teaches a similar compression garment which is made of a knit material infused with an alloy which emits far infrared (see Knott col. 11 ln. 31 through col. 12 ln. 7) and Kwon teaches a compression garment infused with germanium (see Kwon translation pg. 3, 4th full paragraph, pg. 6). 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 patent claim 6’s sleeve member to be made of a knit material infused with germanium alloy configured to emit far infrared, as taught by Knott and Kwon, in order to provide additional therapeutic effect (Knott col. 11 ln. 31-36) and which would have been obvious substitution of one known element/material for another. The modified patent claim device is silent as to the vibration assemblies each including at least three vibration motors arranged circumferentially to one another; however, Clowney discloses a similar vibrational garment which includes a vibration assembly including at least three vibration motors arranged radially to one another (see Clowney Fig. 1-4, vibrational motors 130 arranged circumferentially as shown, see para. 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 patent claim 6 device’s vibrational assemblies to each include at least three vibration motors arranged radially to one another, as taught by Clowney, as this would have been obvious substitution of one known element for another (plural vibration motors defining a vibration assembly) and one would expect the modified patent device to perform equally as well. The modified patent device discloses a sensor used for feedback for the vibrational garment (see Sifferlin para. 0077) is silent as to the sensor being configured to monitor biometric data of the user and to allow for the control module to switch on or off one or more of the vibration motors for a predetermined period of time based on the biometric data from the sensor; however, Avni teaches a similar vibrational garment which includes a biometric sensor which allows control of vibration motors to be switched on or off for a predetermined period of time based on the sensor readings (see Avni para. 0013 last 3 sentences in particular which disclose body parameter sensor, including ECG, EEG, blood pressure, temperature, heart rate, SpO2 etc. used to control vibrations such as stopping or starting them). 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 patent claim 6 device to include a biometric sensor and to control the vibration motors to turn them on/off for predetermined times, as taught by Avni, in order to adjust the vibration delivered to the user based on user sensed body parameters (Avni para. 0013).
Instant claims 6, 8-12, and 14-19 correspond to patent claim 6 as modified by the references above.
Claim 24 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 6 of U.S. Patent No. 11,547,627 in view of Sifferlin, Northen, Wersland, Waldon, Hill, Knott, Kwon, Clowney, Avni, and Burbank.
Regarding instant claim 24, the modified patent claim 6 device is silent as to including first and second sections located symmetrically circumferentially around the sleeve member with a first vibration assembly disposed on the first section and a second vibration assembly disposed at the second section (Sifferlin discloses plural vibration assemblies shown in Fig. 1 and 4, vibration assemblies 160 and 165, para. 0066); however, Burbank teaches a similar wearable garment which includes first and second symmetrically circumferentially located sections having vibration assemblies located thereon (see Burbank Fig. 62-65, para. 0197-0200, vibration assemblies 442 located on the front and rear sides of the garment and which are symmetrically circumferentially located). 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 patent claim 6 device to have plural vibration assemblies located on first and second sections which are located symmetrically circumferentially around the sleeve member, as taught by Burbank, in order to provide vibration to both front and rear portions of the body part.
Claim 20 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 6 of U.S. Patent No. 11,547,627 in view of Sifferlin, Northen, Wersland, Waldon, Knott, Kwon, Clowney, and Avni.
Regarding instant claim 20, patent claim 6 discloses a wearable garment assembly/system/method of providing therapeutic effect therewith, which includes each structural and functional limitation as claimed (see claim 1 which discloses sleeve member having inner and outer surfaces, vibration assembly, control module including battery, claim 6 disclosing electrical communication strip as claimed), but is silent as to including the control electronics, the sensing and generation of recommendation data to provide for control of the vibration assembly and the centering mark as claimed; however, Sifferlin discloses a similar device including control electronics and removable batteries (see para. 0033 “controller” see para. 0061 and 0063 which disclose the vibration assembly is electrically activated, thus control module includes control electronics, removable batteries per para. 0051), Northen discloses a garment assembly including vibration delivery to a user and which includes biometric sensor (see Northen para. 0011 discloses vibration garment, para. 0014, 0056-0057 disclosing use with sensor measuring biometric data of the user, see also para. 0224, 0261-0262) and Wersland discloses a therapy device (percussive massager) which includes a controller configured to communicate with a remote device and generate recommendation data based on the biometric data from sensors and control/direct use the therapy device based on the recommendation data (see Wersland Fig. 29 showing remote device being a smart phone, para. 0106, see also Fig. 30-31; para. 0153-0177 disclosing using various manual capture data, real-time tracking data and biometric data to generate recommendation data used to control operation of the therapy device, see para. 0153-0160 in particular which discloses providing optimized therapeutic benefits via artificial intelligence driven recommendation data for a particular therapeutic routine including optimizing area of application of therapy, duration, force, frequency of therapy), and Waldron teaches a compression sleeve including a centering mark (see Waldon Fig. 1-3, cutout 50 being a centering mark which is adjacent to a bone of the user, kneecap/patella, with vibration assemblies 52 spaced apart therefrom by a therapy distance and aligned with muscles of the leg above and below the kneecap/patella, see col. 3 ln. 4-17). 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 patent claim 6 device/system/method to include a biometric sensor and the control module to be configured to communicate with a remote device and generate recommendation data based on the biometric data and control/direct use the vibration assembly based on the recommendation data, as taught by Northen and Wersland, in order to achieve a predefined biometric state of the user (Northen para. 0014) and to provide a bespoke routine for the washable garment assembly (Wersland para. 0161 as applied to the garment assembly of the patent claim 6) and which would be use of a known technique to improve similar devices in the same way (i.e. use of the intelligence engine system of the percussive massager of Wersland applied to the vibrational garment/sleeve device of the patent claim), to include control electronics and removable batteries, taught by Sifferlin, to provide control of the assembly, and a centering mark, taught by Waldron, in order to provide a guide to the user to wear the device properly, i.e. locating the patella at the centering mark, to align the vibration assemblies in the correct location for desired therapy. The modified patent claim 6 discloses the batteries being removable (see Sifferlin para. 0051), and is thus a sleeve that able to be washed, i.e. washable, after the batteries have been removed. The modified patent claim 6 is silent as to the sleeve member being comprised of a knit material infused with a germanium alloy configured to emit far infrared; however, Knott teaches a similar compression garment which is made of a knit material infused with an alloy which emits far infrared (see Knott col. 11 ln. 31 through col. 12 ln. 7) and Kwon teaches a compression garment infused with germanium (see Kwon translation pg. 3, 4th full paragraph, pg. 6). 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 patent claim 6’s sleeve member to be made of a knit material infused with germanium alloy configured to emit far infrared, as taught by Knott and Kwon, in order to provide additional therapeutic effect (Knott col. 11 ln. 31-36) and which would have been obvious substitution of one known element/material for another. The modified patent claim device is silent as to the vibration assemblies each including at least three vibration motors arranged circumferentially to one another; however, Clowney discloses a similar vibrational garment which includes a vibration assembly including at least three vibration motors arranged radially to one another (see Clowney Fig. 1-4, vibrational motors 130 arranged circumferentially as shown, see para. 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 patent claim 6 device’s vibrational assemblies to each include at least three vibration motors arranged radially to one another, as taught by Clowney, as this would have been obvious substitution of one known element for another (plural vibration motors defining a vibration assembly) and one would expect the modified patent device to perform equally as well. The modified patent device discloses a sensor used for feedback for the vibrational garment (see Sifferlin para. 0077) is silent as to the sensor being configured to monitor biometric data of the user and to allow for the control module to switch on or off one or more of the vibration motors for a predetermined period of time based on the biometric data from the sensor; however, Avni teaches a similar vibrational garment which includes a biometric sensor which allows control of vibration motors to be switched on or off for a predetermined period of time based on the sensor readings (see Avni para. 0013 last 3 sentences in particular which disclose body parameter sensor, including ECG, EEG, blood pressure, temperature, heart rate, SpO2 etc. used to control vibrations such as stopping or starting them). 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 patent claim 6 device to include a biometric sensor and to control the vibration motors to turn them on/off for predetermined times, as taught by Avni, in order to adjust the vibration delivered to the user based on user sensed body parameters (Avni para. 0013).
Response to Arguments
Applicant’s arguments with respect to the claims have been considered but are moot because the new ground of rejection does not rely on the same combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant's arguments filed 8/24/26 have been fully considered but they are not persuasive.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Applicant’s argument that Sifferlin and Farrow do not disclose plural sections with different compression values, with vibration assemblies located therein (see pg. 11-12 of the response) is not well-taken. Sifferlin discloses vibration assemblies located in various sections of the garment (above and below a joint for example) and Farrow discloses plural compression zones with different values for a limb and thus the combined/modified Sifferlin in view of Farrow results in a modified device which includes plural compression zones with differing values and vibration assemblies therein.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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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/COLIN W STUART/Primary Examiner, Art Unit 3785
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