DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election without traverse of claims 1-6, 9 and 10 in the reply filed on 28 October 2025 is acknowledged.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-6, 9 and 10 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "the opening" at the end of the claim. There is insufficient antecedent basis for this limitation in the claim. The examiner suspects the intent of the applicant was to recite this portion of the claim as “the central opening” which does have proper antecedent basis in the claim, and will be examined on the merits as such.
Claim 3 recites the limitation "the frame walls" in line 1. There is insufficient antecedent basis for this limitation in the claim. The examiner suspects the intent of the applicant was to recite this portion of the claim as “the plurality of walls” which does have proper antecedent basis in claim 2, and will be examined on the merits as such.
Claim 10 recites the limitation "the grip" in line 1. There is insufficient antecedent basis for this limitation in the claim. The examiner suspects the intent of the applicant was to recite this portion of the claim as “the handgrip” which does have proper antecedent basis in claim 1, and will be examined on the merits as such.
Claims 2, 4-6, and 9 are included in this rejection based on their ultimate dependency from claim 1.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by United States Patent Application Publication No. US 2019/0322423 (hereinafter “Baschnagel”).Regarding claim 1 Baschnagel teaches a thermal pack (positioning device) 30 comprising handles (extension arm) 36, 40, 42 having a first end and a second end, a handgrip that is positioned along the first end of the handle (extension arm) 36, 40, 42, and bendable rods (frame member) 14, 38 that provide a support frame and are positioned along the second end of the handle (extension arm) 36, 40, 42, the bendable rods (frame member) 14, 38 including a central opening, wherein the bendable rods (frame member) 38 are configured to engage a thermal source (thermal therapy pack) 32 integrated into a pouch 34 and to position the thermal source (thermal therapy pack) 32 within the central opening (Figures 2-9, including Annotated Figure 8, shown below; and paragraphs [0040] – [0043]).
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Regarding claim 9 In addition, Baschnagel teaches the bendable rods (frame) may be made of foam or silicon material and are removeable from the handles (extension arm) (paragraphs [0042] – [0044]), which corresponds to each of the extension arm and the frame are manufactured as a unitary device. Baschnagel also teaches the thermal source is placed within a pack, where one side is open and may be temporarily sealed using Velcro® (paragraph [0040]), which corresponds to the thermal pack is removably secured within the central opening.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 2-6 are rejected under 35 U.S.C. 103 as being unpatentable over Baschnagel as applied to claim 1, and further in view of United States Patent Application Publication No. US 2021/0186750 (hereinafter “Miller”).Regarding claim 2 The limitations for claim 1 have been set forth above. In addition, Baschnagel does not explicitly teach the frame includes a plurality of walls that define the central opening. Miller teaches a therapeutic device combines both hot and cold therapy to work simultaneously together, where the therapeutic device has a first portion being made of a material capable of being heated to a first temperature and a second portion having a fastener capable of connecting to a cold pack having a second temperature (abstract). Miller also teaches the application of both hot and cold to the site of an injury of a user stimulates blood circulation to an injured muscle with heat and reduces inflammation with cold to facilitate a faster and more efficient recovery process of the afflicted area (Id). Miller teaches the therapeutic device (frame member) 1 has a hot pack 2 located on an outer perimeter edge 15, and the therapeutic device 1 has a central portion (central opening) 16 forming a chamber or recess capable of receiving a removable cold pack (thermal therapy pack) 3 (paragraphs [0041] – [0042], and Figure 1). Miller illustrates an embodiment where the central portion (central opening) 16 has a plurality of walls that define the central portion (central opening) 16 (Figures 1 and 8, including Annotated Figure 1, shown below).
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Baschnagel and Miller are analogous inventions in the field of thermal therapeutic devices. It would have been obvious to one skilled in the art at the time of the invention to modify the thermal source (thermal therapy pack) 32 and pouch 34 of Baschnagel with the therapeutic device 1 of Miller to yield a thermal therapeutic device which is capable of applying both hot and cold therapy at the same time to stimulate both: (1) blood circulation to an injured muscle with heat; and (2) reduction of inflammation with cold to facilitate a faster and more efficient recovery process of the afflicted area.Regarding claim 3 In addition, Miller teaches the plurality of walls and the central portion (central opening) 16 include a shape and size that is complementary to a shape and size of the removable cold pack (thermal therapy pack) 3 (Figures 1-8, including Annotated Figure 1, shown above, and paragraphs [0040] – [0043]).Regarding claim 4 In addition, Miller teaches the hot and cold packs can be combined together with a fastener, including, but not limited to, hook and loop attachments, a slit of fabric, a plastic pocket, or a magnet (paragraph [0011]). Miller teaches the central portion 16 has first portion fastener 4 connected to at least one inner wall surface (disposed along the plurality of walls) or bottom surface of central portion 16. The first portion of fastener 4 featured in Figure 1 are the loops of a hook and loop fastening mechanism including second portion of fastener (plurality of connectors) 5 (paragraphs [0041] – [0042], and Figure 1), which corresponds to a plurality of connectors that are disposed along the plurality of walls.Regarding claim 5 In addition, Miller teaches the cold pack (thermal therapy pack) 3 is removeable and is secured using fasteners, such as hook and loop fasteners (plurality of connectors) (paragraphs [0041] – [0042]), which corresponds to the plurality of connectors are configured to removably engage the thermal therapy pack.Regarding claim 6 In addition, Miller teaches an embodiment where a length of material (plurality of clamps) 10, 10A, 10B comprising an elastic material capable of stretching to retain cold packs when inserted under the length of material (paragraphs [0023], [0031] – [0034], [0044] and [0045], and Figures 4-7), which corresponds to a plurality of connectors each comprising a clamp.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Baschnagel as applied to claim 1 above, and further in view of United States Patent Application Publication No. US 2012/0209363 (hereinafter “Williams”).Regarding claim 10 The limitations for claim 1 have been set forth above. In addition, Baschnagel does not explicitly teach the handgrip is constructed from at least one of rubber or foam. Williams teaches a thermal therapy device 100 comprising a handle 101, a frame 102, and a roller 104 (abstract and paragraph [0036]). Williams teaches the handle is an ergonomically shaped handle designed for fitting comfortably in a user’s hand and is preferably formed of a durable, lightweight, but comfortable to hold material, including, but not limited to, rubber, among others (paragraph [0036]). Therefore, it would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the handgrip of the handles (extension arm) 36, 40, 42 of Baschnagel with the rubber material of Williams to improve the comfort of the handle when handled by a user.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 2020/0276052 teaches a sleep mask comprising a thermal mask component having a fastening mechanism for securing the thermal mask component (abstract), where the fastening mechanism includes zippers, hook and loop fasteners, snap fasteners, buttons, clamps, and the like (paragraph [0019]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN HANDVILLE whose telephone number is (571)272-5074. The examiner can normally be reached Monday through Thursday, from 9 am to 4 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Veronica Ewald can be reached at (571) 272-8519. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRIAN HANDVILLE/Primary Examiner, Art Unit 1783