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 .
DETAILED ACTION
Status of Claims
1. This office action is responsive to the amendment filed on 04/06/26. As directed by the amendment: claim 21 has been amended, claim 25 has been cancelled, and no claims have been added. Thus, claims 21-24 and 26-29 are presently pending in this application.
Specification
2. The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required:
The term “handle portion” (claim 21, ln. 9 (twice) and 15; claim 25, ln. 2) lack an antecedent basis for the term in the specification. The specification refers to “first handle 106” ([0026]) and “second optional handle 108” ([0026]), but never recites the term “handle portion.”
Claim Interpretation- 35 USC § 112 – Sixth Paragraph/35 USC § 112(f)
3. The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
At present, no claims are interpreted under 35 USC 112(f).
Claim Rejections - 35 USC § 103
4. The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
5. This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
6. Claims 21-24 and 26-29 are rejected under 35 U.S.C. 103 as being unpatentable over Wang (TW M343481, published on 11/1/2008. See translation document accompanying the Final Rejection issued 3/19/2025, which was also submitted by applicant on 2/12/25) in view of Andis (3,626,934), Pivaroff (6,682,496), and Harris et al (6,432,072).
Regarding claim 21, Wang discloses a percussive massager (Figs. 1 and 4, reciprocating motion mechanism 10) comprising: a housing comprising a cavity (Fig. 4 depicts the massager as comprising a housing having a cavity inside; see annotated Fig. 4 below for convenience); a piston having a proximal end, a distal end, and an elongated cutout (Fig. 4, shaft rod 31 is a piston having a proximal end and a distal end. Furthermore, shaft rod 31 has a clamping slot 322 that serves as an “elongated cutout”), wherein the proximal end of the piston is within the cavity during reciprocation of the piston (Fig. 4, proximal end of shaft rod 31 remains in the housing cavity throughout operation of the massager); a bearing within the cavity, wherein the bearing assists in constraining the piston to reciprocate along a longitudinal axis (Fig. 4, shaft sleeve 22 is a bearing that constrains shaft rod 31 to reciprocate along an axis); a motor operatively connected to the proximal end of the piston (Fig. 4, motor 41), wherein the motor has an output shaft configured to rotate about a rotation axis (Fig. 4, output shaft 411 rotates about its rotation axis); a handle portion on the housing (Annotated Fig. 4 below highlights the handle portion of the housing); and a drive mechanism that drives the piston (Fig. 4, connecting block 43 and eccentric rotating shaft 42 form a “drive mechanism”), wherein the drive mechanism has a flywheel operatively connected to the output shaft of the motor to rotate about a flywheel axis (Fig. 4, connecting block 43 is a “flywheel” that rotates about an axis via its connection to output shaft 411), the output shaft extending into the flywheel along the flywheel axis (Fig. 4, output shaft 411 extends into flywheel 43), and a crank pin extending from the flywheel (Fig. 4, eccentric rotating shaft 42 is a “crank pin” that extends from connecting block 43), the crank pin being operatively connected to the piston (Fig. 4, eccentric rotating shaft 42 is connected to shaft rod 31), wherein the handle portion and the motor are on a same side of a plane on which the flywheel rotates (Fig. 4, motor 41 and the handle portion or on a same side of the rotation plane of connecting block 43), and wherein the elongated cutout receives at least part of the drive mechanism (Fig. 4, clamping slot 322 receives the eccentric rotating shaft 42).
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Wang does not disclose the motor outside of the handle portion.
However, Andis teaches a percussive massager comprising a housing (See annotated Fig. 1 below), a motor (Fig. 1 motor “M”) and a handle portion on the housing (Fig. 1, handle portion 5), wherein the motor is outside of the handle portion (Fig. 1, motor “M” is located within the housing, but outside of the handle portion 5). The handle portion and the motor are on a same side of a plane on which a gear of the drive mechanism rotates (Fig. 1, handle portion 5 and motor “M” and located on the same side of a plane (represented by a dotted line in the annotated Fig. 1 in which the drive gear 7 rotates).
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Therefore, 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 housing of Wang to have a handle portion that is separate from a motor containing portion as taught by Andis. Having the handle portion in a different location from the motor compartment would reduce the force of vibrations transferred to the hand of the user by the motor. Additionally, such a handle portion location (i.e. opposite from the applicator end of the massager) would be more ergonomical for the user, allowing the user to more comfortably hold the massager and more easily direct the force of the massager. The resultant device would maintain having the handle portion and the motor on a same side of the plane on which the connecting block 43 rotates.
The modified massager of Wang does not expressly disclose wherein the motor is configured to cause the piston to reciprocate along a longitudinal axis at a first speed and a second speed, wherein the first speed and the second speed are each greater than or equal to 600 strokes per minute, and wherein the first speed and the second speed are each less than or equal to 3600 strokes per minute.
However, Pivaroff teaches of a deep muscle stimulation device (fig. 2, 10) that uses an electric motor (fig. 6, 24) that is capable of operating of speeds between 2000 and 3600 RPM (col. 3, lines 41-50).
Therefore, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have the motor of the modified device of Wang operate at the speeds of the motor as taught by Pivaroff for the purpose of providing speeds capable of reaching deep muscle tissues (Pivaroff col. 1, lines 14-16) thereby improving circulation among other factors (Pivaroff col. 1, lines 39-49).
The further modified massager of Wang reads on the motor is configured to cause the piston to reciprocate along a longitudinal axis at a first speed which is greater than or equal to 600 strokes per minute and less than or equal to 3600 strokes per minute (Pivaroff col. 3, lines 41-50 states that the motor operates between speeds of 2000-3600 RPM), but does not expressly disclose the motor operating at a second speed.
However, Harris teaches of a hand-held massager (fig. 1, massager 50) that includes a control panel (fig. 1, 5) comprising a speed setting control button (fig. 1, 5b) that allows the user to set the frequency of the vibrations (col. 2, lines 49-57).
Therefore, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to provide the modified massager of Wang with a control panel with a speed control button and other control settings as taught by Harris to allow the user to select their desired massage settings when using the device (Harris col. 2, lines 49-57).
The further modified massager of Wang reads on the motor is configured to cause the piston to operate at a second speed which is greater than or equal to 600 strokes per minute and less than or equal to 3600 strokes per minute (Pivaroff col. 3, lines 41-50 states that the motor operates between speeds of 2000-3600 RPM, and Harris col. 2, lines 49-57 state the speed control button allows changing of the speed which constitutes a second speed).
Regarding claim 22, the modified massager of Wang has the distal end of the piston allowing a first massaging head to be connected to the percussive massager (Wang, Fig. 4, depicts a massaging head connected to the distal end of the shaft rod 31. P. 7, last paragraph, of the translation states that the end of the shaft rod 31 can be used to be connected to various models of massage heads).
Regarding claim 23, the modified massager of Wang has a control panel on an exterior of the housing (see annotated Harris fig. 1, control panel 5; see col. 2, ln. 50-55).
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Regarding claim 24, the modified device of Wang has the control panel configured to display on or more visual indicators (Harris fig. 1, LED speed indicator 5C is a visual indicator).
Regarding claim 26, the modified massager of Wang has an offset between the flywheel axis and an axis of the crank pin determines a predetermined stroke length of the piston (Wang, Fig. 4, rotating shaft 42 is “eccentric,” which means its axis is offset to the flywheel axis. It is the amount of this offset that determines the stroke length of shaft rod 31).
Regarding claim 27, the modified massager of Wang has the motor directly connected to the flywheel, and wherein the crank pin is directly connected to the flywheel (Wang, Fig. 4, motor 41 is directly connected to connecting block 43 via output shaft 411. Fig. 4 additionally depicts the eccentric rotating shaft 42 as directly connected to connecting block 43).
Regarding claim 28, the modified massager of Wang does not have the piston comprising a bore configured to receive a proximal end of a first massaging head.
However, Pivaroff additionally teaches a percussive massager (Fig. 2, stimulation device 10) comprising a piston (Fig. 3, connecting rod 38) that is configured to removably attach to massager heads via a bore in the distal head of the piston (Fig. 3, hollow head 44 removably attaches to the connecting rod 38 via threaded pin 42 that engages with threaded opening 40 within the connecting rod 38. Threaded opening 40 is considered a “bore”).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to design the piston of the modified massager of Wang to have a bore in its distal end that allows for removable connection of a massage head as taught by Pivaroff. Having the threaded bore at the distal end of the piston allows for a secure connection between the piston and the massage head while also allowing for easily switching the type of massage head used with the massager.
Regarding claim 29, the modified massager of Wang has the distal end of the piston configured to releasably connect to a proximal end of a first massaging head having a pocket (Wang, Fig. 4, depicts the massage head with a pocket for connecting to shaft rod 31. P. 7, last paragraph, of the translation states that the end of the shaft rod 31 can be used to be connected to various models of massage heads, implying a releasable connection between the massage heads and the shaft rod 31).
Response to Arguments
7. Applicant’s arguments with respect to claim(s) 21-24 and 26-29 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant’s argument on page 4 paragraph 3 with respect to the objection to the specification have been considered but are not persuasive. Regarding the objection to the specification, the term “handle portion” as claimed does not comply with the requirements of 37 CFR 1.75(d)(1) because the term is not present in the specification. It is suggested to either amend the claim language or specification to provide antecedent basis for the claim language.
Applicant’s arguments on page 5 paragraphs 2-3 with respect to claim 21 regarding Wang in view of Andis do not teach or suggest the elements recited regarding the motor is configured to cause the piston to reciprocate at a first and second speed have been considered, but are moot in view of the new grounds of rejection presented in this office action. The references of Pivaroff and Harris are newly applied to claim 21 resulting in a massager that can adjust the massaging speed to a first and second speed both of which are within a range of 2000-3600 RPM (see the rejection to claim 21 above).
Conclusion
8. 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.
9. Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS Z CHANG whose telephone number is (571)272-0432. The examiner can normally be reached Monday-Friday 9:00 am-5:00 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Stanis can be reached at (571)272-5139. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THOMAS Z CHANG/Examiner, Art Unit 3785
/TIMOTHY A STANIS/Supervisory Patent Examiner, Art Unit 3785
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