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 .
Claim Interpretation - 35 USC § 112
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.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action.
Claim Objection
Claim 20 is objected to because of an informality, which can be corrected as follows: “SMR” should be spelled out in the claim as –self-release myofascial--, or the acronym should be parenthetically inserted after “self-release myofascial” in line 1 of independent claim 11. Appropriate correction is required.
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.
Claim 17 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. In line 1, “the first fastener and the second fastener” lacks antecedent basis.
Claim Rejections - 35 USC § 102
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2, 5, 6, 8-12, 15, 16, 18, and 19 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Merrill et al. (10,898,408). Merrill et al. disclose, at least in figures 1-6 and 9 and col. 3 line 57 to col. 4, line 43 and col. 8, lines 1-17; an apparatus, comprising: a self-release myofascial tool (10), comprising: a single body (12) comprising (as shown in annotated figure 2 below): a rounded top surface (deemed to be 36, as shown in fig. 2); a rounded left side surface a rounded right side surface, wherein a radius of the rounded top surface (at 42) and a radius of the rounded left side surface (at 38, distal of 33) are greater than a radius of the rounded right surface (at 34), wherein a depth from a front surface of the single body tapers from the rounded left side surface to the rounded right side surface; and a rod (21) connected to the single body, wherein the rod is fixedly inserted into a dedicated opening (51, as shown in fig. 5) existing on an underside of the single body; wherein the underside of the single body is hollow and the rod is inserted into a portion of the single body integrated into the underside of the single body having the dedicated opening for receiving the rod; wherein the rod comprises one or more threads (at 51) extending longitudinally along the rod; wherein the apparatus further comprises, one or more removable fasteners (e.g., 25, 29, and 27, as shown in fig. 5); wherein the single body is molded from or includes nylon (according to col. 4, lines 31-33); wherein surfaces of the single body are smooth and are not textured; wherein a front surface (at 18, as shown in fig. 2 and 6) and a back surface (at 33) of the single body are generally flat .
Merrill et al. also disclose a system for a self-release myofascial tool, comprising: a rack (16, as shown in fig. 9 and also according to col. 7, lines 32-35) comprising: one or more posts, wherein the one or more posts comprises one or more holes in alignment on a surface of the one or more posts; and the self-release myofascial tool (10), comprising (as shown in annotated fig. 2 below): a single body (12) comprising: a rounded top surface (deemed to be 36, as shown in fig. 2); a rounded left side surface a rounded right side surface, wherein a radius of the rounded top surface (at 42) and a radius of the rounded left side surface (at 38, distal of 33) are greater than a radius of the rounded right surface, wherein a depth from a front surface of the single body tapers from the rounded left side surface to the rounded right side surface; a rod (21) connected to the single body, wherein the rod is fixedly inserted into a dedicated opening (51) existing on an underside of the single body; and one or more removable fasteners; wherein the rod is insertable into any one of the one or more holes of the one or more posts of the rack (as shown in fig. 9); wherein the underside of the single body is hollow and the rod is inserted into a portion of the single body integrated into the underside of the single body having the dedicated opening for receiving the rod; wherein the system further comprises a mounting post (27, as shown in fig. 9) mounted to a frontside of a post (16) of the one or more posts of the rack, wherein the self-release myofascial tool is removably connected to the mounting post mounted to the frontside of the post; wherein the one or more removable fasteners includes a first fastener (25) and a second fastener (29); wherein the single body is molded from or includes nylon (according to col. 4, lines 31-33); and wherein surfaces of the single body are smooth and are not textured.
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Claim Rejections - 35 USC § 103
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 3, 4, 13, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Merrill et al. (10,898,408). Merrill et al. disclose the invention substantially as claimed, but do not explicitly disclose the apparatus or system wherein the radius of the rounded top surface and the radius of the rounded left side surface each have at least a two inch radius, or wherein the radius of the rounded right side surface has at least a one inch radius. Nevertheless, Merrill et al. disclose, in figure 7 and col. 4 line 44 to col. 5, line 65; proportions, orientations, shapes, and dimensions of portions of the single body, which can vary according to “certain massage or treatment techniques and for engaging certain body tissue.” Moreover, Merrill et al. disclose, in col. 3, lines 52-57; that “structural and functional modifications may be made without departing from scope of the present invention.” Thus, it would have been a matter of obvious design choice to size the radius of the rounded left side surface and the radius of the rounded right side surface as desired, since such modifications would have involved mere changes in the sizes of components. Changes in size are generally recognized as being within the level of ordinary skill in the art. In re Rose.
Claims 7, 17, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Merrill et al. (10,898,408) in view of Yoon et al. (10,675,215). Merrill et al. disclose the invention substantially as claimed, wherein the apparatus and system may have one or more removable fasteners (e.g., 25) or first and second fasteners for mounting multiple single bodies to a “rack [e.g., 16] or other athletic equipment,” according to col. 8 lines 47-53. However, Merrill et al. do not explicitly disclose that the one or more removable fasteners is a wing nut type fastener, or that the first fastener and the second fastener are wing nut type fasteners. Yoon et al. teach, in col. 9, lines 52-58; fasteners for self-release myofascial tools (e.g., 102), wherein the fasteners include wing nut type fasteners. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention, in view of Yoon et al., to modify the fasteners of Merrill et al., so that they are wing nut type fasteners. Such modifications would allow easy grasping and/or tightening or removal of the fasteners after being coupled to the self-release myofascial tools.
Also, Merrill et al. do not explicitly disclose that the self-release myofascial tool is connectable to a post of a wall mounted system instead of to the one or more posts of the rack. Yoon et al. further teach, in col. 9, lines 62-65, a self-release myofascial tool that is connectable to a support base or wall. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention, in view of Yoon et al., to modify the system of Merrill et al., so that the self-release myofascial tool is connectable to a post of a wall-mounted system. Such a modification would allow self-release myofascial tools to be mounted to a post with additional stability for muscle relief therapy for various parts of the body.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Camacho (2020/0397648) teach a self-release myofascial tool.
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/JULIAN W WOO/Primary Examiner, Art Unit 3771