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 .
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details. The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it contains legal phraseology (said). A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
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.
Claim(s) 21, 22, 29-31, 34, 35, and 38-40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Marton et al (20190254921) in view of Goldstein (20180008512).
In regards to Claim 21, Marton teaches a percussive massage device (Detail 100) comprising:
a main enclosure extending along a longitudinal direction (Claim 1: enclosure);
a reciprocation assembly at least partially within the main enclosure, the reciprocation assembly comprising:
a piston that moves in the longitudinal direction (Claim 1: piston);
a motor having a rotatable shaft (Claim 1: motor);
a crank coupled to the shaft and having a post offset from the shaft (Claim 1: crank, pivot); and
a reciprocation linkage having a first linkage end and a second linkage end, the first linkage end operatively connected to the post of the crank, the second linkage end operatively connected to the piston (Claim 1: flexible transfer linkage).
While Marton essentially teaches the invention as detailed, including a battery that arranged downward from the main enclosure, it fails to specifically teach a handle and gripping sleeve. Goldstein, however, teaches that when dealing with a massage device, it is well known to provide a handle extending from a main enclosure and a gripping sleeve disposed around at least a portion of the handle formed over an extended battery (Figure 9, Details 130, 22). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have covered the battery of Marton with the handle and griping sleeve of Goldstein, so as to better protect the battery from damage.
In regards to Claim 22, Marton teaches the main enclosure comprises a first enclosure portion (Detail 112) coupled to a second enclosure portion (Detail 114), the main enclosure defining a cavity extending along the longitudinal direction and including a front opening (Figure 3).
In regards to Claim 29, Marton teaches the piston receives a removably attachable applicator head (Claim 1: applicator head).
In regards to Claim 30, Marton teaches the rotatable shaft has a central axis oriented perpendicular to the longitudinal direction (Claim 1: motor).
In regards to Claim 31, Marton teaches the post of the crank is parallel to the central axis of the shaft (Figures 11A, 11B).
In regards to Claim 34, Goldstein teaches the gripping sleeve includes a rubber material (Paragraph 49; neoprene).
In regards to Claim 35, Goldstein teaches the rubber material is neoprene (Paragraph 49; neoprene).
In regards to Claim 38, Marton teaches the end of the battery has an end cap and a light ring (Paragraph 48), which would be below the handle and sleeve when included from Goldstein.
In regards to Claim 39, the light ring would be disposed between the gripping sleeve and the end cap since the gripping sleeve would not go all the way to the end.
In regards to Claim 40, Goldstein teaches the battery would be at least partially within the handle (Figure 9).
Claim(s) 32 and 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Marton et al in view of Goldstein as applied to claim 21 above, and further in view of Hu (D895829).
In regards to Claims 32 and 33, while the combination of Marton and Goldstein essentially teaches the invention as detailed above, including a handle that extends from the main enclosure along a handle axis, it fails to specifically each the handle axis is oriented at a slant angle of approximately 12 degrees. Hu, however, teaches that when dealing with similar massage devices, it is well known to provide the handle with a slant angle of approximately 12 degrees (Figure 1). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have slanted the handle as taught, so as to make the massage device more ergonomic. In regards to the angle being approximately 12 degrees, the figure does not label the angle specifically, but it is approximately 12 degrees. Examiner also notes, Applicant provides no criticality or unexpected results arising from an angle of 12 degrees.
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 21-31, 34, 35, and 40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 12 and 18 of U.S. Patent No. 10,993,874 in view of Goldstein.
While the ‘874 patent essentially teaches the invention as detailed below, it fails to specifically teach a handle and gripping sleeve. Goldstein, however, teaches that these are well known in the massage device art. It would have been obvious to have included the handle and gripping sleeve of Goldstein in the device of the ‘874 patent, so as to be able to hold the device. The device must have a handle, and a gripping sleeve would make it easier to hold. With regards to the claims, they are aligned as follows:
Claims 21-24 and 26-31 of the instant application are found in Claim 12 of the ‘874 patent.
Claim 25 of the instant application is found in Claim 18 of the ‘874 patent.
Claims 34 and 35 are obvious as Goldstein teaches the gripping sleeve is neoprene.
Claim 40 of the instant application is obvious, as the ‘874 patent teaches in Claim 12 that the device is battery powered, and Goldstein teaches the battery is located in the handle.
Claims 21-31, 34, 35, and 40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 12 and 18 of U.S. Patent No. 11,766,381 in view of Goldstein.
While the ‘381 patent essentially teaches the invention as detailed below, it fails to specifically teach a handle and gripping sleeve. Goldstein, however, teaches that these are well known in the massage device art. It would have been obvious to have included the handle and gripping sleeve of Goldstein in the device of the ‘381 patent, so as to be able to hold the device. The device must have a handle, and a gripping sleeve would make it easier to hold. With regards to the claims, they are aligned as follows:
Claims 21-24 and 26-31 of the instant application are found in Claim 12 of the ‘381 patent.
Claim 25 of the instant application is found in Claim 18 of the ‘381 patent.
Claims 34 and 35 are obvious as Goldstein teaches the gripping sleeve is neoprene.
Claim 40 of the instant application is obvious, as the ‘381 patent teaches in Claim 12 that the device is battery powered, and Goldstein teaches the battery is located in the handle.
Claims 21, 29, 34, 35, and 40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,723,830 in view of Goldstein.
While the ‘830 patent essentially teaches the invention as detailed below, it fails to specifically teach a handle and gripping sleeve. Goldstein, however, teaches that these are well known in the massage device art. It would have been obvious to have included the handle and gripping sleeve of Goldstein in the device of the ‘830 patent, so as to be able to hold the device. The device must have a handle, and a gripping sleeve would make it easier to hold. With regards to the claims, they are aligned as follows:
Claims 21 and 29 of the instant application a found in Claim 1 of the ‘830 patent.
Claims 34 and 35 are obvious as Goldstein teaches the gripping sleeve is neoprene.
Claim 40 of the instant application is obvious, as the ‘830 patent teaches a device that must require power to operate, and Goldstein teaches a battery is located in the handle.
Claims 21, 29, 34, 35, and 40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,478,400 in view of Goldstein.
While the ‘400 patent essentially teaches the invention as detailed below, it fails to specifically teach a handle and gripping sleeve. Goldstein, however, teaches that these are well known in the massage device art. It would have been obvious to have included the handle and gripping sleeve of Goldstein in the device of the ‘400 patent, so as to be able to hold the device. The device must have a handle, and a gripping sleeve would make it easier to hold. With regards to the claims, they are aligned as follows:
Claims 21 and 29 of the instant application a found in Claim 1 of the ‘400 patent.
Claims 34 and 35 are obvious as Goldstein teaches the gripping sleeve is neoprene.
Claim 40 of the instant application is obvious, as the ‘400 patent teaches in Claim 1 that the device is battery powered, and Goldstein teaches the battery is located in the handle.
Allowable Subject Matter
Claims 36 and 37 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See of Record.
Specifically, at least Marton et al (10314762) Figures and Pivaroff (6682496) Figures teach elements similar to those as currently claimed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Shaun R Hurley whose telephone number is (571)272-4986. The examiner can normally be reached Monday thru Friday, 8:00am - 3:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton T Ostrup can be reached at (571) 272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHAUN R HURLEY/Primary Examiner, Art Unit 3732