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 claims filed 11/20/23. Claims 1-20 are pending in the instant application.
Drawings
The drawings are objected to because reference characters “1” in Fig. 1 and “2” in Fig. 2 lack lead line/arrow pointing to the feature indicated; underlined reference are for indicating a surface or cross-section on which they are placed. See MPEP 608.02 and C.F.R. 1.84 (p)-(r). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-8, 10-12, and 15-16 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.
Regarding claim 1, the language “the vacuum pump is configured to maintain a communicating with the open end” (line 11-12, emphasis added) is unclear as it is not known what is meant by ‘maintaining a communicating with’, what type of communication is being referred to with this language. In light of the disclosure, it appears Applicant may be referring to --the vacuum pump is configured to maintain fluid communication with the open end—and examiner suggests amending as such.
Regarding claim 2, the language “maintain the communicating with” (line 3) is unclear for the same reasons discussed above in claim 1. Examiner suggests amending to read –maintain the fluid communication with--.
Regarding claim 3, the language “maintain the communicating with” (line 3) is unclear for the same reasons discussed above in claim 1. Examiner suggests amending to read –maintain the fluid communication with--.
Regarding claim 4, the language “maintain the communicating with” (line 3) is unclear for the same reasons discussed above in claim 1. Examiner suggests amending to read –maintain the fluid communication with--.
Claim 6 recites the limitations "the first flow" in line 1 and “the second flow” in line 1-2. There is insufficient antecedent basis for these limitations in the claim.
Regarding claim 7, the language “maintain the communicating with” (line 7) is unclear for the same reasons discussed above in claim 1. Examiner suggests amending to read –maintain the fluid communication with--.
Claim 8 recites the limitations "the first flow" in line 1, “the second flow” in line 1-2, and “the third flow” in line 2. There is insufficient antecedent basis for these limitations in the claim.
Regarding claim 10, the language “maintain a communicating with” (line 3) is unclear for the same reasons discussed above in claim 1. Examiner suggests amending to read –maintain fluid communication with--.
Claim 11 recites the limitation "the communicating" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 11, the language “maintain the communicating with” (line 3) is unclear for the same reasons discussed above in claim 1. Examiner suggests amending to read –maintain fluid communication with--.
Claim 12 recites the limitation "the communicating" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 12, the language “maintain the communicating with” (line 3) is unclear for the same reasons discussed above in claim 1. Examiner suggests amending to read –maintain fluid communication with--.
Claim 15 recites the limitation "the communicating" in line 7. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 15, the language “maintain the communicating with” (line 7) is unclear for the same reasons discussed above in claim 1. Examiner suggests amending to read –maintain fluid communication with--.
Claim 16 recites the limitations "the first flow" in line 1, “the second flow” in line 1-2, and “the third flow” in line 2. There is insufficient antecedent basis for these limitations in the claim.
Claim 5 is rejected based on dependency on a rejected claim.
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) 1-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hsieh (2013/0035615) in view of Torii (4,428,368) and Eckhouse et al. (2013/0178764).
Regarding claim 1, Hsieh discloses a negative pressure massage device (see Fig. 1-2 and abstract for example) which includes a vacuum pump communicating to an open end (see Fig. 2, vacuum pump 14, para. 0021, communicating with open end located at cup 16 as shown); a first electromagnetic (EM) valve communicating to the vacuum pump and the open end (see Fig. 2, first valve being one of valves 28a or 28b in the middle or lower row of valves in Fig. 2, see para. 0021); a second EM valve communicating to the vacuum pump, the open end, and the first valve (see Fig. 2, second valve being another one of valves 28a or 28b in the middle or lower row of valves in Fig. 2, see para. 0021); a third EM valve communicating to the vacuum pump, the open end, the first valve, and the second valve (see Fig. 2, third valve being another one of valves 28a or 28b in the middle or lower row of valves in Fig. 2, see para. 0021, for example a lower one of valves 28a or 28b which communicates with vacuum pump, open end, first valve, and second valve as shown); wherein when any of the first, second, and third valves is turned on, the vacuum pump is configured to maintain a communicating with the open end (see Fig. 2, with the top row of valves 28a and 28b being on/open, vacuum pump is in fluid communication, via these top row of valves and accumulator 26, with the open end as can be seen, when any one of the first, second, or third valves, i.e. respective ones of the valves 28a, b on the middle and lower rows, is on/open fluid communication the vacuum pump will maintain fluid communication with the open end regardless of the position of these valves due to the top row of valves being on/open). The Hsieh device is silent as to explicitly including a control board electrically connected to the vacuum pump and the valves; however, Torii discloses a similar device which uses a control board in the control of valves/vacuum pump massage device (see Torii abstract, Fig. 1-2 and col. 6 ln. 62 through col. 7 ln. 13, control board 139). 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 Hsieh device to include a control board, as taught by Torii, in order to provide required components to control other electronic powered elements of the device (see Torii col. 6 ln. 62 through col. 7 ln. 13). The modified Hsieh device discloses the first, second, and third valves are electromagnetic valves (see Hsieh para. 0021), but is silent as to the valves explicitly being solenoid valves; however, Eckhouse disclose a similar vacuum therapy device which utilizes solenoid valves (see Eckhouse para. 0053 and Fig. 6, “valve 604 could be a solenoid valve”). 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 Hsieh device’s EM valves to be solenoid valves, as taught by Eckhouse, as this would have been obvious substitution of one known element for another and one would expect the modified Hsieh device to perform equally as well.
Regarding claim 2, the modified Hsieh device is such that when the first solenoid valve is turned on and the second and third solenoid valves are turned off, the vacuum pump is configured to maintain fluid communication with the open end (see Hsieh Fig. 2, with the first-third valves being respective ones of the 4 valves of the middle and lower rows of valves 28a and 28b, and the two valves on the top row being on/open, vacuum pump 14 maintains fluid communication with the open end at cup 16 regardless of whether first, second, and third valves are on/open or off/closed, including when a first valve is on/open and second and third valves are off/closed).
Regarding claim 3, the modified Hsieh device is such that when the first and second solenoid valves are turned on and the third solenoid valve is turned off, the vacuum pump is configured to maintain fluid communication with the open end (see Hsieh Fig. 2, with the first-third valves being respective ones of the 4 valves of the middle and lower rows of valves 28a and 28b, and the two valves on the top row being on/open, vacuum pump 14 maintains fluid communication with the open end at cup 16 regardless of whether first, second, and third valves are on/open or off/closed, including when a first and second valves are on/open and a third valve is off/closed).
Regarding claim 5, the modified Hsieh device is such that when a first solenoid valve and a second solenoid valve are turned on, first and second flows, respectively, are generated that are equal (see Hsieh Fig. 2, when the valves 28a and 28b are on/open and vacuum pump 14 is on, flow occurs therethrough; when valves 28a and 28b on the top two rows are off/closed, and valves 28a and 28b on the bottom row are one, this being the first and second valves respectively, a first flow through valve 28a for example, and a second flow through valve 28b for example occur and are equal).
Regarding claim 4, the modified Hsieh device is such that when the first, second, and third valves are turned on simultaneously, the vacuum pump is configured to maintain fluid communication with the open end (see Hsieh Fig. 2, with the first-third valves being respective ones of the 4 valves of the middle and lower rows of valves 28a and 28b, and the two valves on the top row being on/open, vacuum pump 14 maintains fluid communication with the open end at cup 16 regardless of whether first, second, and third valves are on/open or off/closed, including when all of the first, second, and third valves are on/open at the same time).
Regarding claim 6, the modified Hsieh device is such that when first, second, and third valves are on, first, second, and third flows, respectively, occur (see Hsieh Fig. 2, when the valves 28a and 28b are on/open and vacuum pump 14 is on, flow occurs therethrough; with the valves 28a and 28b all being on/open, flow occurs therethrough defining first, second, and third flows in the first, second, and third valves on the bottom two rows of valves 28a and 28b), but is silent as to all of these first, second, and third flows being equal; however, this would have been an obvious matter of design choice to one of ordinary skill in the art before the effective filing date of the claimed invention and would have been obvious flow values to try (equal flows).
Regarding claim 7, the modified Hsieh device is silent as to including a fourth solenoid valve as claimed which allows vacuum pump to maintain fluid communication with the open end when the first-fourth valves are turned on simultaneously; however, 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 Hsieh device to include another row of valves and vacuum tank, and thus including a fourth solenoid valve, as this would have been obvious duplication of parts and would provide another level of vacuum application. See MPEP 2144.04 VI B.
Regarding claim 8, the modified Hsieh device is such that when first, second, third, and fourth valves are on, first, second, third, and fourth flows, respectively, occur (see Hsieh Fig. 2, when the valves 28a and 28b are on/open and vacuum pump 14 is on, flow occurs therethrough; with the valves 28a and 28b all being on/open, flow occurs therethrough defining first, second, third, and fourth flows in the first, second, third, and fourth valves on the bottom three rows of valves 28a and 28b, modified to include an additional row as above in claim 7), but is silent as to all of these first, second, third, and fourth flows being equal; however, this would have been an obvious matter of design choice to one of ordinary skill in the art before the effective filing date of the claimed invention and would have been obvious flow values to try (equal flows).
Claim(s) 17-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hsieh in view of Eckhouse.
Regarding claim 17, the use of the Hsieh device includes a use method of a negative pressure massage device (see Fig. 1-2 and abstract for example) which includes turning on a vacuum pump of the negative pressure massage device (see Fig. 1-2, vacuum pump 14, para. 0021, when the device is in use, vacuum pump is turned on); generating by the vacuum pump a first negative pressure value at an open end (open end located at cup 16 as shown, see para. 0021-0024; when one of valves 28b is opened a vacuum pressure value is provided at the cup 16); turning on a first electromagnetic (EM) valve and generating a first flow and a second negative pressure value at the open end (see Fig. 2, with the valve 28b on the top row providing the ‘first negative pressure’, valve 28b on the middle row being a first valve and which provides a first flow therethrough and generates a second negative pressure value based on its vacuum tank 26 and provided by vacuum pump 14); turning on a second EM valve and generating a second flow and a third negative pressure value at the open end (see Fig. 2, with the valve 28b on the top row providing the ‘first negative pressure’, valve 28b on the middle row being a first valve and providing the ‘second negative pressure’, valve 28b on the bottom row is a second valve which provides a second flow therethrough and generates a third negative pressure value based on its vacuum tank 26 and provided by the vacuum pump 14). The Hsieh method discloses electromagnetic valves (see Hsieh para. 0021), but is silent as to the valves explicitly being solenoid valves; however, Eckhouse disclose a similar vacuum therapy device which utilizes solenoid valves (see Eckhouse para. 0053 and Fig. 6, “valve 604 could be a solenoid valve”). 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 Hsieh device’s EM valves to be solenoid valves, as taught by Eckhouse, as this would have been obvious substitution of one known element for another and one would expect the modified Hsieh device to perform equally as well. The modified Hsieh method is silent as to the first and second flows being equal; however, 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 Hsieh method’s flows to be equal by providing the valves to be of the same type (and thus same flow therethrough) in order to reduce the number of different parts for production of the device.
Regarding claim 18, the modified Hsieh method is such that when the first and second solenoid valves are turned on or off, the vacuum pump communicates with the open end and configured to maintain a turn-on state (see Hsieh Fig. 2, with valves 28a and 28b being on/open, and first and second solenoid valves being ones of the valves in the middle and lower row, pump 14 communicates with the open end at 16 regardless of on/open or off/closed state of the first and second valves; device includes each structural/functional limitation such that it is also ‘configured to maintain a turn-on state’).
Regarding claim 19, the modified Hsieh method is silent as to turning on a third solenoid valve and generating a third flow and a fourth negative pressure value at the open end with the third flow equal to the first and second; however, 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 Hsieh method’s device to include another row of valves and vacuum tank, and thus including a third solenoid valve with a third flow equal to the first and second flows (as noted above using the same type of valve with equal flow therethrough) and which generates a fourth negative pressure value, as this would have been obvious duplication of parts and would provide another level of vacuum application. See MPEP 2144.04 VI B.
Regarding claim 20, the modified Hsieh method is such that when the first, second, and third solenoid valves are turned on or off, the vacuum pump communicates with the open end and configured to maintain a turn-on state (see Hsieh Fig. 2, with valves 28a and 28b being on/open, and first, second, and third solenoid valves being ones of the valves in the middle and lower two rows, as added in the modification above with respect to claim 19, pump 14 communicates with the open end at 16 regardless of on/open or off/closed state of the first, second, and third valves; device includes each structural/functional limitation such that it is also ‘configured to maintain a turn-on state’).
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 7, and 9 of U.S. Patent No. 11,801,195 in view of Hsieh.
Regarding instant claims, the patent claim noted above include each structural and functional limitation as claimed (see patent claim 1 with vacuum pump generating negative pressure outside the apparatus, i.e. at an open end; first and second solenoid valves which communicate with the vacuum pump and each other and thus configured as claimed, i.e. in parallel or which allows vacuum pump to maintain communication with the open end), but is silent as to including a third solenoid valve as claimed; however, this would have been obvious duplication of parts to include a third solenoid valve (MPEP 2144.04 VI B) and which also 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 claims to include such an additional valve in order to provide another level of vacuum application.
Instant claims 1-4, 7-12, and 15 correspond to patent claim 1. Instant claims 5-6, 13-14, and 16 correspond to patent claim 2. Instant claims 17-18 correspond to patent claim 7. Instant claims 19-20 correspond to patent claim 9.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Greenburg (2008/0091126), Rosen et al. (2008/0287839), Slatkine (2006/0259102), Ella et al. (2004/0260209), and Stoughton (3,841,323).
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.
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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/COLIN W STUART/Primary Examiner, Art Unit 3785
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