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 .
Status of Claims
2. Claims 1-10 are pending and currently under consideration for patentability under 37 CFR 1.104.
Claim Interpretation
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.
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 1-10 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.
Claim 1, line 3 recites “a virtual plane enclosed by the mounting ports” which is confusing because a mathematical plane extends indefinitely. It is unclear what is meant by the plane being “enclosed” by the mounting ports.
Claim 7, recites “a movable gap” and it is unclear whether this means the gap is movable through space, or whether the magnitude of the gap changes. As the claim is currently written, the gap merely needs to be capable of being moved.
The remaining claims are rejected based on their 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 filing date of the claimed invention.
Claim(s) 1-2, 4-5, 8, and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Oh (2017/0312119).
Regarding claim 1, Oh discloses an adaptive massager (Fig. 1, contacts tissue to provide a cooling effect), comprising
a housing (container 102, rim 104, lid 106, cover 108, Fig. 1) and semiconductor refrigeration plates (thermoelectric cooling system(s) 128, 128, Fig. 5, which includes cooling plates 138 and utilizes the Peltier effect, see para. [0047]. Thermoelectric coolers use semiconductor materials to use the Peltier effect), wherein the housing (102, 104) is provided with mounting ports (first and second pods 124, 126, Fig. 4; “the container 102 having the base 120 with the first and second pods 124 and 126 protruding therefrom” see the first sentence of [0046]), a plurality of the semiconductor refrigeration plates (TEC system(s) 128 each include cooling plates 138, and the TEC are received by cutouts 132 and 134, Fig. 4; see the second sentence of [0046]) are provided on a virtual plane enclosed by the mounting ports (see Figures 4-5, the TEC system(s) 128, 128, are provided in the cutouts 132 and 134, and a line can be drawn to connect at least a portion of each TEC system 128, 128, such that at least a portion of the TEC system(s) extend on the same virtual plane. The claim language does not require the mounting ports to extend entirely along the same plane), the semiconductor refrigeration plates (plates 138 of each TEC system 128, Fig. 5) and the mounting ports (132, 134, Fig. 4) of the housing are movably connected (the mounting ports 132, 134, are ”adapted to receive a TEC (not shown) and a corresponding cooling plate” as stated in the second sentence of [0046], and thus they are connected to the semiconductor plates 138. They are “movably connected” because the mounting ports 132, 134, and cooling plates of the TEC 128, 128, are mounted on the flexible base 120 of container 102, see Figs. 4-5. Base 120 of container 102 “may be formed from a flexible non-porous material such as rubber or any other material known to one skilled in the art … flexible to contour the shape of the targeted area of the body” see lines 13-17 of [0044]; and “formed from a flexible material such that each pod may move independently with respect to the other to improve the thermal conductivity between the cooling plate and the targeted area of the skin” see second and third sentences of [0045]), and the adjacent semiconductor refrigeration plates (the pair of TEC systems 128, 128, are adjacent, see Fig. 5. Each TEC system has a cooling plate 138, see the second sentence of [0047]) are movably connected to each other (the adjacent TEC systems 128, 128, Fig. 5, are connected to each other via the flexible base 120 as seen in Fig. 5 which allows “each pod [to] move independently with respect to the other” see the second and third sentences of [0045]).
Regarding claim 2, Oh discloses further comprising elastic connecting members (base 120 with sidewalls 122, Figs. 4-5, which “may be formed from a flexible non-porous material such as rubber” see lines 13-17 of [0044]. Rubber is elastic), wherein the semiconductor refrigeration plates (cooling plates 138 of TEC systems 128, 128) and the mounting ports (cutouts 132, 134, Fig. 4) of the housing are connected by the elastic connecting members (base 120 and sidewalls 122 connect the TEC system(s) 128, 128, and the mounting ports 132, 134, see Figs. 4-5), and the adjacent semiconductor refrigeration plates (adjacent TEC systems 128, 128, which each include a cooling plate) are connected by the elastic connecting members (see Fig. 5, a U-shaped portion of base 120 connects between the two TEC systems 128, 128).
Regarding claim 4, Oh discloses further comprising rotating members (base 120 with sidewalls 122, Figs. 4-5, which “may be formed from a flexible non-porous material such as rubber … flexible to contour the shape of the targeted area of the body” see lines 13-17 of [0044]; and “formed from a flexible material such that each pod may move independently with respect to the other to improve the thermal conductivity between the cooling plate and the targeted area of the skin” see second and third sentences of [0045]; and “may bulge out when pressed on by the strap 172 to allow the cooling plates 128 to better conform to the outer body contour shape of the torso 170 of the user” see para. [0054]. Thus, the flexible rubber base 120 and sidewalls 122 permit the cooling plates to pivot i.e., rotate relatively to one another to conform to the shape of the body), wherein the semiconductor refrigeration plates (cooling plates 138 of TEC systems 128, 128) and the mounting ports (cutouts 132, 134, Fig. 4) of the housing are connected by the rotating members (base 120 and sidewalls 122 connect the TEC system(s) 128, 128, and the mounting ports 132, 134, see Figs. 4-5), and the adjacent semiconductor refrigeration plates (adjacent TEC systems 128, 128, which each include a cooling plate) are connected by the rotating members (see Fig. 5, a U-shaped portion of base 120 connects between the two TEC systems 128, 128).
Regarding claim 5, Oh discloses further comprising heat dissipation members (radiators 130, 130, with plurality of fins 158, 158, see Fig. 3, see Fig. 5; “to improve the efficiency of dissipating heat away from the TEC 136” see the second sentence of [0050]), wherein a plurality of the heat dissipation members are provided in the housing (each TEC system 128, 128, has a radiator 130 as seen in Fig. 3), and the heat dissipation members (130, 130) are connected to the semiconductor refrigeration plates (138) in one-to-one correspondence (see Fig. 3, Fig. 5, each TEC system 128, 128, has a radiator 130 to dissipate heat from an associated refrigeration plate 138).
Regarding claim 8, Oh discloses further comprising an elastic recovery member (base 120, Figs. 4-5, which “may be formed from a flexible non-porous material such as rubber” see lines 13-17 of [0044]. Rubber is elastic), wherein the elastic recovery member (120) is connected between the housing (102, 104, 106, 108, Figs. 1-5) and the semiconductor refrigeration plates (see Fig. 5, the base 120 extends between at least the side walls 122 and/or rim 104 of the housing, to the semiconductor plate(s) 138).
Regarding claim 10, Oh discloses wherein the housing (container 102, rim 104, lid 106, cover 108, Fig. 1) comprises an upper housing (cover 108, Fig. 1) and a lower housing (container 102, rim 104, lid 106, Fig. 1), and the upper housing and the lower housing are detachably connected (“The lid 106 may have a cover 108 adapted to release from the lid 106” see the third sentence of [0042]).
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 3 is rejected under 35 U.S.C. 103 as being obvious over Oh (2017/0312119).
Regarding claim 3, Oh discloses wherein the elastic connecting members (120, 122) “may be formed from a flexible non-porous material such as rubber or any other material known to one skilled in the art … flexible to contour the shape of the targeted area of the body” (see lines 13-17 of [0044]), but does not specifically state they are silicone members. However, silicone is a well known material and one of ordinary skill in the art would have recognized that silicone exhibits similar flexibility to rubber and thus would be a suitable alternative.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the flexible material of the elastic connecting members of Oh to be silicone, since this would be expected to perform substantially equally as well, and since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Claims 6-7 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Oh (2017/0312119) as applied to claims 1 and 5 above, in view of Zhu (2023/0086458).
Regarding claim 6, Oh discloses utilizing coolant within the container to help dissipate heat and thus is silent regarding a fan, wherein an opposite surface of a side of the housing and the heat dissipation members away from the semiconductor refrigeration plates is provided with heat dissipating holes, and the fan is provided between the heat dissipation holes and the heat dissipation members; the housing is provided with air outlets on a side surface. However, the use of a fan with heat dissipating holes is well known in the art and would merely be an alternative mechanism to the coolant.
For example, Zhu teaches a related adjustable semiconductor refrigeration plate (semiconductor chilling plate 4, Fig. 1) that includes a fan (fan body 21, Fig. 1), wherein an opposite surface of a side of the housing (the upper side of the housing 1, Fig. 1) and the heat dissipation member (heatsink body 31, Fig. 1) away from the semiconductor refrigeration plate (upper side of the housing 1 is away from the semiconductor chilling plate 4, Fig. 1) is provided with heat dissipating holes (“A top of the housing is provided with a heat dissipation hole” see the second sentence of [0060], and see Fig. 1, there are a plurality of holes), and the fan (21) is provided between the head dissipation holes (holes at the top of housing 1, Fig. 1) and the heat dissipation member (31, Fig. 1); the housing (1) is provided with air outlets on a side surface (“side walls of the housing corresponding to the opening of the housing are connected to the heatsink bracket” see the last sentence of [0060]; see the openings in the side wall(s) of housing 1 that expose the heat sink 3, Figs. 1-5). This fan assembly with heat dissipating holes provides an expected result of allowing the excess heat from the heat exchanger to be dissipated away from the user’s skin.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the housing of Oh to include a fan, wherein an opposite surface of a side of the housing and the heat dissipation members away from the semiconductor refrigeration plates is provided with heat dissipating holes, and the fan is provided between the heat dissipation holes and the heat dissipation members; the housing is provided with air outlets on a side surface as taught by Zhu because this heat dissipation mechanism would substitute for the use of the coolant and simplify operation of the device relative to the introduction of a coolant.
Regarding claim 7, Oh discloses wherein a plurality of the heat dissipation members (radiators 130, 130, with plurality of fins 158, 158, see Fig. 3, see Fig. 5) are combined to form a heat dissipation structure (the pair of adjacent radiators 130, 130, form a heat dissipation structure within the single housing. The claim does not specify in what manner they are “combined” and Oh’s radiators read on the claim language due to having multiple heat dissipation structures within the same housing). Oh utilizes coolant within the container to help dissipate heat and is silent regarding further comprising limiting brackets, and the limiting brackets are arranged around the heat dissipation structure; a movable gap is left between the limiting brackets and the heat dissipation structure. However, the use of a fan with heat dissipating holes is well known in the art and would merely be an alternative mechanism to the coolant.
For example, Zhu teaches a related adjustable semiconductor refrigeration plate (semiconductor chilling plate 4, Fig. 1) that includes a fan (fan body 21, Fig. 1) mounted over a heat dissipation member (heatsink body 31, Fig. 1) in a housing (housing 1, Fig. 1) having heat dissipating holes at the top (see the top surface of 1, Fig. 1). Zhu comprising limiting brackets (fan bracket 22 and heatsink bracket 32, Fig. 1), and the limiting brackets (22, 32, Fig. 1) are arranged around a heat dissipation structure (around the fan body 21 and heatsink body 31, Fig. 1). This fan assembly with heat dissipating holes provides an expected result of allowing the excess heat from the heat exchanger to be dissipated away from the user’s skin.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the heat dissipation members of Oh to each be mounted in a respective heatsink bracket, with an associated fan mounted in a respective fan bracket, such that these “limiting brackets” are arranged around a heat dissipation structure as taught by Zhu because the brackets help mount the heatsinks and fans within the housing, and this heat dissipation mechanism would substitute for the use of the coolant and simplify operation of the device relative to the introduction of a coolant.
The modified Oh/Zhu device as combined would thus have a movable gap left between the limiting brackets (22, 32) and the heat dissipation structure (the heat dissipation structure includes both sets of the heat dissipation members 130, 130, of Oh as modified by Zhu. As seen in Zhu, there is at least some gap between the bracket(s) 22, 32, and the associated heatsink body 31. If the device is moved, the gap will be moved and thus read on “movable.” Furthermore, it is noted that these heat dissipation members are independently movable relative to one another as stated in the second and third sentences of [0045] of Oh. Thus, when the heat dissipation members move relative to one another, there will necessarily be a change in the gap between the limiting brackets and at least a portion of the combined heat dissipation structure).
Regarding claim 9, the modified Oh/Zhu device discloses circuit boards (the Oh device was modified so each heat dissipation member includes the brackets 22, 32, and fan 21, which also includes a circuit assembly 6, see Fig. 1 of Zhu), wherein the circuit boards (each radiator 130, 130, of Oh would have an associated circuit assembly 6 of Zhu) are arranged between the limiting brackets (22, 32, Fig. 1 of Zhu) and side walls of the housing (122, Oh. In the modified device, the circuit board(s) 6 would be located on the outer side wall of the brackets 22 as seen in Zhu, and thus between the limiting brackets 22, 32, and the side walls of the housing of Oh).
For example, Zhu teaches a related adjustable semiconductor refrigeration plate (semiconductor chilling plate 4, Fig. 1) that includes a fan (fan body 21, Fig. 1) mounted over a heat dissipation member (heatsink body 31, Fig. 1) in a housing (housing 1, Fig. 1) having heat dissipating holes at the top (see the top surface of 1, Fig. 1). Zhu comprising limiting brackets (fan bracket 22 and heatsink bracket 32, Fig. 1), and the limiting brackets (22, 32, Fig. 1) are arranged around a heat dissipation structure (around the fan body 21 and heatsink body 31, Fig. 1). This fan assembly with heat dissipating holes provides an expected result of allowing the excess heat from the heat exchanger to be dissipated away from the user’s skin.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Aguiar et al. (2019/0350752) discloses a related wearable thermal therapy system with a heat dissipation member, a fan, and a plurality of openings in the housing. Abushakra et al. (2022/0378605) discloses a related wearable thermal therapy system with a heat dissipation member, fan, and plurality of openings in the housing. Wersland et al. (2023/0074407 and 2022/0192868) discloses a related wearable thermal therapy system with heat dissipation members, fans, and a plurality of openings in the housing. Ben Asher et al. (2015/0127077) discloses a related wearable thermal therapy system with a heat dissipation member, fan, and a plurality of openings in the housing. Thomas et al. (2018/0289531) discloses a related wearable thermal therapy system with a flexible substrate that allows the cooling plates to conform to the body. Levinson et al. (2008/0077211) discloses a related wearable thermal therapy system with rotatable connections between cooling plates to allow the device to conform to the body. Li et al. (2025/0177197) discloses a related wearable thermal therapy system with heat dissipation members and fans. Yang (2021/0236330) discloses a related wearable thermal therapy system with a flexible connection to conform to the body. Schwarz et al. (2023/0191111) discloses a related wearable thermal therapy system having a flexible layer to conform to the user. Myers et al. (2019/0099286) discloses a related wearable thermal system with heat dissipation members and fans. Schirm et al. (2020/0345971) discloses a related wearable thermal therapy system with hinged joints between cooling plates. Shapiro et al. (2017/0035602) discloses a related wearable thermal therapy system with a pivoting connection, heat dissipation members, fans, and openings in the housing. Nazarian et al. (11,940,163) discloses a related thermal therapy system with a heat dissipation member, fan, and plurality of openings in the housing.
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/CHRISTOPHER E MILLER/Examiner, Art Unit 3785
