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 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 2-9 and 14-15 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 2, the phrase “a final gear of the corresponding driving gear group” in Line 4 is unclear and appears to misdescribe the invention. Specifically, there appears to be multiple final gears (labeled 160e in Fig. 9 in the original drawings and paragraph [0055] of original specification) for each driving gear group, with each final gear having a massage head directly attached. The claim appears to be describing a single final gear of each driving gear group which does not appear to be the base.
For the purpose of examination, examiner has interpreted the claim limitation to read “at least one final gear” based on applicant’s disclosure.
Regarding claim 2, the phrase “a total reduction ratio of the driving gear group of the first massage unit and a total reduction ratio of the driving gear group of the second massage unit are in the range of 150-300, respectively” in Lines 4-6 is unclear because applicant claims the value is a range but then uses “respectively” (respectively suggests the first and second elements have the respective first and second values, but the values are provided as a range which includes more than two values and thus the values of the first and second massage units are unclear).
Regarding claim 4, the phrase “at least one pair of the gears in a same level” in Line 5 is unclear which “gears” applicant is referencing.
Claim 14 recites the limitation "the inner side" in Line 2. There is insufficient antecedent basis for this limitation in the claim.
The remaining claims are rejected due to dependence on a rejected base claim.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claim 12 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Specifically, claim 12 recites in Line “the massage heads penetrate out of the inner shell and face the neck”, which positively claims a neck.
Applicant is suggested to amend the claims to use functional language (e.g. “adapted to”, “configured to”) so that the human body part is not positively claimed.
The remaining claims are rejected due to dependence on a rejected base claim.
Claim Rejections - 35 USC § 102
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 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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective fiLingg date of the claimed invention.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ling (CN 115363924).
Regarding claim 1, Ling discloses (Figs. 1-6) a neck massager, comprising:
a main body (body 60) for wrapping around the neck (page 1 paragraph 3);
a first massage unit (massage group comprising gearing and massage heads on left side of motor 30) and a second massage unit (massage group comprising gearing and massage heads on right side of motor 30) both arranged on the main body, each of the first and second massage units comprising
a driving gear group (gearing on left and right sides of motor 30, see Fig. 2-3) driven in meshing transmission (meshing between the gears shown in Figs. 2-3 and described on page 4 paragraphs 2-4), and
multiple inclined massage heads (massage heads 53 of massage assemblies 50, inclined as shown in Figs. 3 and 5) driven by the driving gear group,
the main body being provided with a driving worm (worm 31), the driving gear group of the first massage unit and the driving gear group of the second massage unit being respectively set on the left and right sides of the driving worm (see Figs. 2-3), and being driven by the driving worm (page 4 paragraph 2).
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 fiLingg 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) 2 and 5-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ling (CN 115363924) in view of Liu (CN 112089587).
Regarding claim 2, as best understood, Ling discloses the driving gear group of the first massage unit and the driving gear group of the second massage unit each include a first gear (gear 32, see Fig. 4) closest to the driving worm (closest to worm 31, see Fig. 4), which is sequentially meshed and transmitted until to a final gear of the corresponding driving gear group (gear directly attached to each massage head 53 shown in Fig. 3), but is silent regarding the reduction ratio and thus does not disclose a total reduction ratio of the driving gear group of the first massage unit and a total reduction ratio of the driving gear group of the second massage unit are in the range of 150-300, respectively.
However, Liu teaches (Figs. 1) a massage device having gearing and massage elements wherein the reduction ratio of the massage members is between 100-300 (page 5 paragraph 2).
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 total reduction ratios of Ling to be in the range of 150-300, as taught by Liu, for the purpose of improving massage effect by reducing the rotation frequency of the massagers (page 5 paragraph 2 Liu). Furthermore, outside evidence of criticality, one of ordinary skill in the art before the effective filing date of the claimed invention would find it obvious to try to a reduction ratio of the driving gear groups to be in the range of 150-300 for the purpose of improving massage of user, since discovering the optimum value only involves routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding claim 5, modified Ling discloses wherein each of the multiple massage heads of the first massage unit and the second massage unit is connected to the corresponding final gear (each massage head connected to a respective final gear, see Fig. 3), with the output speed of multiple massage heads of the first massage unit being the same and the output speed of multiple massage heads of the second massage unit being the same (speed of the two furthest left and two furthest right massage heads are same due to having identical number of gear (two gears) between each).
Regarding claim 6, modified Ling discloses wherein each of the multiple massage heads of the first massage unit and the second massage unit is directly connected to the corresponding final gear (directly connected as shown in Fig. 3).
Regarding claim 7, modified Ling discloses wherein each of the first and second massage units includes three massage heads (see three massage heads in Fig. 3 Ling), with two of the massage heads positioned closer to a center of the main body (see Fig. 3 Ling), and the other massage head positioned relatively away from the center of the main body (see Fig. 3 Ling), when the driving gear group is not working, the three massage heads of each of the first and second massage units are inclined respectively (see angling of heads in Fig. 3); when the driving gear group is working, the two of the massage heads positioned closer to the center of the main body move towards up and down, while the other massage head positioned relatively away from the center of the main body moves towards an end of the main body (see angling of heads in Fig. 3).
Claim(s) 3-4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ling (CN 115363924) in view of Liu (CN 112089587), and further in view of Huang (CN 108420691).
Regarding claim 3, modified Ling discloses a total reduction ratio of the driving gear group of the first massage unit and total reduction ratio of the driving gear group of the second massage unit (page 5 paragraph 2 Liu), but does not disclose these ratios are different.
However, Huang teaches (Figs. 1-3) a massage device having a first and second driving gear group (two groups of gear sets 220) that have different total reduction ratios (“at least two groups of gear set 220 of the reduction ratio are different”, page 4 paragraph 6).
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 driving gear groups of the first and second massage units of modified Ling such ghat that the total reduction ratios are different, as taught by Huang, for the purpose of facilitating diversification of the massage technique (page 4 paragraph 6 Huang).
Regarding claim 4, as best understood, modified Ling discloses wherein the first gears of the driving gear group of the first massage unit and the driving gear group of the second massage unit are both in a first level (gears 32 are both in first level, meaning both in a first plane of each massage unit, see Fig. 3 Ling), and the final gears of the driving gear group of the first massage unit and the driving gear group of the second massage unit are both in a final level (final gears, being gears directly attached to each massage head 53,are in final level meaning same plane, for each unit, see Fig. 3 Ling), and a module, number of teeth, and/or position of at least one pair of the gears in a same level of the first massage unit and the second massage unit are different (at least a pair of gears within final level have different number of teeth, see Fig. 3 Ling).
Claim(s) 8-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ling (CN 115363924) in view of Liu (CN 112089587), and further in view of Zhou (US 2021/0307995).
Regarding claim 8, modified Ling discloses wherein each of the massage heads includes a massage base (transmission rod) obliquely extending from the main body (see Fig. 3), and a massage cap (dome shaped cap) installed on the massage base, but does not disclose deformable part, the massage base extending from the deformable part, wherein the deformable part allows the massage base and the massage head to swing in desired directions.
However, Liu further teaches (Figs. 1-6) a massage head (massage head 200) comprising a deformable part (spring 30), the massage base extending from the deformable part (see Fig. 3), wherein the deformable part allows the massage base and the massage head to swing in desired directions (does not prevent swinging and thus allows for swinging, per applicant’s claim).
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 massage head of modified Ling to include a deformable part, the massage base extending from the deformable part, wherein the deformable part allows the massage base and the massage head to swing in desired directions, as taught by Liu, for the purpose of allowing the massage head to generate both axial and rotary motion thus improving massage to user (Abstract Liu)
Modified Ling does not disclose the massage cap detachably installed on the massage base.
However, Zhou teaches (Fig. 1) a massage cap (massage head 7) that is detachably installed on massage base (detachably mounted to base 3, paragraph [0023]).
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 massage cap of modified Ling to be detachably installed on the massage base, as taught by Zhou, for the purpose of allowing different massage effects can be achieved by replacing different massage heads according to actual needs of a user.
Regarding claim 9, modified Ling discloses wherein a lengthwise direction of the massage base together with the massage head is inclined at an angle relative to a centerline of the deformable part (see Fig. 3 Ling), but does not disclose the angle is 3-30 degrees. However, outside evidence of criticality, one of ordinary skill in the art before the effective filing date of the claimed invention would find it obvious to try to an angle between 3-30 degrees for the purpose of providing a sufficient kneading massage effect tot user, since discovering the optimum value only involves routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ling (CN 115363924).
Regarding claim 10, Ling discloses a length of a massage head and diameter of a massage head (see length and diameter of massage head 53 in Fig. 3 Ling), but does not disclose the specific dimensions and thus does not disclose wherein a length of the massage head is 10-25mm, and a diameter of the massage head is 10-18mm.
However, outside evidence of criticality, one of ordinary skill in the art before the effective filing date of the claimed invention would find it obvious to try a length of the massage head is 10-25mm, and a diameter of the massage head is 10-18mm for the purpose of providing a sufficient surface area of massager to massage a user effectively, since discovering the optimum value only involves routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claim(s) 11-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ling (CN 115363924) in view of Xiang (CN 212973488).
Regarding claim 11, Ling discloses a main body but does not disclose a fixing bracket and two clamping arms, wherein the fixing bracket supports the main body, and the clamping arms are connected to two ends of the fixing bracket respectively, the fixing bracket extends from the main body, and has an empty space between the main body and the clamping arm, with the length of the empty space being within the range of 45-50mm, so that the clamping arms are suspended at the ends of the fixing bracket.
However, Xiang teaches (Fig. 1-5) a neck massager comprising a fixing bracket (bracket 11) and two clamping arms (clamping arms 2), wherein the fixing bracket supports the main body (supports main body 12, see Fig. 2), and the clamping arms are connected to two ends of the fixing bracket respectively (see Fig. 1), the fixing bracket extends from the main body (see Fig. 1), and has an empty space between the main body and the clamping arm (see empty space in Fig. 1 between main body 12 and clamping arm 2), so that the clamping arms are suspended at the ends of the fixing bracket (see suspension in Fig. 1). Xiang does not disclose the length of the empty space being within the range of 45-50mm, however, outside evidence of criticality, one of ordinary skill in the art before the effective filing date of the claimed invention would find it obvious to try a length within the range of 45-50mm for the purpose of providing room for adjustment of the clamping arm to adjust to neck of a user, since discovering the optimum value only involves routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
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 device of Ling to include a fixing bracket and two clamping arms, wherein the fixing bracket supports the main body, and the clamping arms are connected to two ends of the fixing bracket respectively, the fixing bracket extends from the main body, and has an empty space between the main body and the clamping arm, with the length of the empty space being within the range of 45-50mm, so that the clamping arms are suspended at the ends of the fixing bracket, as taught and suggested by Xiang, for the purpose of improving comfort of user when device is attached to neck (Abstract Xiang).
Regarding claim 12, modified Ling discloses wherein the fixing bracket is curved in a range of 160-180 degrees (see curvature in range of 160-180 degrees in Fig. 2 Xiang), and the main body includes an inner shell (inner shell 61 Ling) and an outer shell (outer shell 62 Ling), the fixing bracket is fixed on the outer surface of the outer shell (see Fig. 2 Xiang), and there is a hollow space between the inner shell and the outer shell to accommodate the driving gear groups of the first and second massage units (see hollow space in Fig. 6 Ling), and the massage heads penetrate out of the inner shell and face the neck (see Fig. 5 Ling).
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ling (CN 115363924) in view of Xiang (CN 212973488), and further in view of Liu (CN 212941012, hereinafter Liu ‘012).
Regarding claim 13, modified Ling discloses clamping arms, but does not disclose the clamping arms are rotatably connected to the two ends of the fixing bracket respectively.
However, Liu ‘012 teaches (Figs. 1-4) clamping arms (arms 120a,120b) that are rotatably connected to two ends of a fixing bracket (top bracket of main body 110 having connecting portions 114a,114b), respectively (“rotatably mounted”, see Abstract Liu ‘012).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective fiLingg date of the claimed invention to modify the clamping arms of modified Ling to be rotatably mounted to two ends of the fixing bracket respectively, as taught by Liu ‘012, for the purpose of allowing for improved storability of the device by shrinking the size when not in user.
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ling (CN 115363924) in view of Xiang (CN 212973488), and Liu (CN 212941012, hereinafter Liu ‘012), and further in view of Lin (CN 217645517U).
Regarding claim 14, modified Ling discloses each of the clamping arms comprises a neck rest (neck rest 22 Xiang) and a clamping arm bracket (bracket 21 Xiang), the neck rest is located on the inner side of the clamping arm bracket (see Fig. 1 Xiang), but does not disclose a sliding mechanism is provided between the neck rest and the clamping arm bracket to allow the neck rest to slide relative to the clamping arm bracket.
However, Lin teaches (Fig. 3) a sliding mechanism (slider 50) that is provided between a neck rest (neck rest 43) and the clamping arm bracket (sliding structure 51) to allow the neck rest to slide relative to the clamping arm bracket (Abstract Lin).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective fiLingg date of the claimed invention to modify the device of modified Ling to include a sliding mechanism is provided between the neck rest and the clamping arm bracket to allow the neck rest to slide relative to the clamping arm bracket, as taught by Ling,. for the purpose of allowing for the position of the clamping arm to be adjustable to fit a variety of sizes for different users, thereby improving customization of device.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ling (CN 115363924) in view of Xiang (CN 212973488), Liu (CN 212941012, hereinafter Liu ‘012), and Lin (CN217645517U), and further in view of Hunt (US 2020/0054517) and Suzuki (US 2024/0216677).
Regarding claim 15, modified Ling does not disclose a center of the main body is provided with a heating unit.
However, Hunt teaches (Fig. 1) a main body (envelope 13) wherein a center of the main body is provided with a heating unit (center of envelope 13 provided with heater 24).
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 center of the main body of modified Ling to include a heater, as taught by Hunt, for the purpose of improving massage to a user by additionally providing heat therapy (paragraph [0019] Hunt).
Modified Ling does not disclose and an outer side of the clamping arm bracket is provided with an indicator light source for external illumination.
However, Suzuki teaches (Fig. 1A-1D) an outer side of the clamping arm bracket (outer bracket of handle portion 114) is provided with an indicator light source for external illumination (LEDs of user interface 150, which provides illumination and feedback to user, paragraph [0051]).
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 clamping arm bracket of modified Ling to include an indicator light source for external illumination, as taught by Suzuki, for the purpose of providing visual indications to the user, for example indicating an operating mode of the device (paragraph [0051]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Ma (US 2013/0184621) discloses a neck massager having clamping portions and massage elements.
Chen (US 8,105,253) discloses a massage apparatus with angled massage elements.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R MOON whose telephone number is (571)272-2554. The examiner can normally be reached Monday-Thursday 7:30am-5:30pm.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about fiLingg in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MATTHEW R MOON/Examiner, Art Unit 3785
/TIMOTHY A STANIS/Supervisory Patent Examiner, Art Unit 3785
