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
1. This office action is in response to the Request for Continued Examination (RCE) and amendment filed on 9/19/2025. As directed by the amendment, claims 1-20 and 30-31 have been canceled and no claim have been added or canceled. Thus, claims 21-29 are pending in the application.
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 9/19/25 has been entered.
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 § 112
4. 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.
5. Claim 25 is 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.
Regarding claim 25, the limitation “wherein the motor is positioned within the housing opposite the handle portion” (ln. 1-2) appears to contradict the limitation “wherein the handle portion and the motor are on a same side of a plane on which the flywheel rotates” recited in claim 21 (ln. 15-16). Accordingly, a broad interpretation of the term “opposite” will be taken to reconcile the tension between these two limitations. For the purposes of examination, the motor being positioned “opposite” the handle portion will be interpreted as the motor and the handle portion are not found at the same location of the housing.
Claim Rejections - 35 USC § 103
6. 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.
7. 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).
8. Claims 21-22, 25-27, and 29 are rejected under 35 U.S.C. 103 as being anticipated by 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).
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.
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 25, the modified massager of Wang has the motor positioned within the housing opposite the handle portion (Andis, Fig. 1, moto “M” is positioned within the housing “opposite” the handle portion 5. See 35 USC 112(b) rejection above for the current construction of the term “opposite”).
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 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).
9. Claims 23-24 are rejected under 35 U.S.C. 103(a) as being unpatentable over Wang in view of Andis, as applied to claim 21 above, in view of Harris et al (6,432,072).
Regarding claim 23, the modified massager of Wang does not have a control panel positioned on an exterior of the housing.
However, Harris teaches a handheld percussive massage device comprising a control panel located on the housing of the device for changing the speed, intensity, and frequency of the massage therapy (Fig. 1, control panel 5; see col. 2, ln. 50-55).
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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 design the housing of the modified massage of Wang to have a control panel that allows the user to adjust the speed of the massage therapy as taught by Harris. This modification would provide the user with greater control over the type and/or intensity of the massage treatment.
Regarding claim 24, the modified device of Wang has the control panel configured to display on or more visual indicators (Fig. 1, LED speed indicator 5C is a visual indicator).
10. Claim 28 is rejected under 35 U.S.C. 103(a) as being unpatentable over Wang in view of Andis, as applied to claim 21 above, in view of Pivaroff (6,682,496).
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 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.
Response to Arguments
11. Applicant’s “Notice of AIA Status” on Pages 4-5 of the response of 9/19/2025 is acknowledged. The examiner agrees that the application is being examined under the first inventor to filed provisions of the AIA .
12. Applicant’s arguments on Pages 5-6 with respect to claim 21 and regarding Wang disclosing the motor power piece 41 housed within the handle portion of the massage tool have been considered, but are moot in view of the new grounds of rejection presented in this office action. The newly applied reference of Andis results in the motor of Wang being located in its own compartment within the massager housing that is separate from the handle portion (See annotated Fig. 1 of Andis above in the rejection of claim 21).
Conclusion
13. Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIMOTHY A STANIS whose telephone number is (571)272-5139. The examiner can normally be reached on Mon - Fri 8:30-5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Justine Yu can be reached on 571-272-4835. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TIMOTHY A STANIS/Primary Examiner, Art Unit 3785