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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims.
Claim 1 recites that the nose member extends “a nose length away from the trigger point member towards the distal end of the handle member.” Claim 16 recites that the “nose member is disposed proximal to the distal end [of the handle member].”
However, based on the figures, the nose member 116 forms the distal end of the handle member (see Fig. 1, 3, 5, 6 and 7). The Specification also describes “the handle member 102 also includes a nose member 116, which is a structure that may form part of the handle member 102 or be attached to the handle member 102” (see [0048]). In either of the disclosed configurations, it would seem that the nose member would form the distal end of the device and/or be attached to the distalmost end of the handle member. It is not apparent from any of the figures that the handle member extends beyond the nose member 116. There is an element 118 surrounding the nose member 116. However, element 118 is disclosed as the flexible and friction inducing material which is described as being a separate structure and made from a different material than the handle member (see [0044]). It is not clear from the figures how the nose member is proximal to the distal end of the handle member.
It is further noted that if Applicant considers the flexible and friction-inducing material to be a part of the handle member then there is a clarity issue in both claims 1 and 16 which both claim the flexible and friction-inducing material “disposed thereon” and it is unclear how something can be disposed on itself.
Therefore, “a nose member extending a nose length away from the trigger point member towards the distal end of the handle member” in claim 1 and “a nose member disposed proximal to the distal end” in claim 16 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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 Objections
Claim 9 is objected to because of the following informalities:
Claim 9 recites “a nose bottom surface” in line 3. This limitation should read “the nose bottom surface.”
Appropriate correction is required.
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 1-6, 8-11, 13-14, and 16-18 are rejected under 35 U.S.C. 103 as being unpatentable over Dekle(US 2022/0280371) in view of Burns (US 5,788,657) and further in view of Lambden (US 6,241,693).
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Regarding claims 1, 9, 16 and 17, Dekle discloses a trigger point massage tool (see Fig. 4A-4B) comprising: a handle member (405A, 410A, 430, 410B, 405B) formed in an arcuate shape forming a convex outer surface and a concave inner surface opposing the convex outer surface (see Fig. 4B), having a proximal end (405A), a distal end (405B) opposing the proximal end, a handle member length separating the proximal and distal ends of the handle member (see Fig, 5B); a trigger point member (425A, 425B) coupled to the concave inner surface along the handle member length, projecting in a direction away from the concave inner surface (see Fig. 4A), the trigger point member spaced apart from the distal end of the handle member (the massage heads 425A, 425B are spaced apart from the distal end of the handle member formed by 405B, see Fig. 4A); and a nose member (410B) extending a nose length away from the trigger point member towards the distal end of the handle member (see Fig. 4B), having a nose bottom surface, and defining a nose width (see annotated Fig. 4B above) separating two opposing sides of the nose member, the trigger point member (425A, 425B) interposed between the nose member (410B) and the proximal end of the handle member (405A), and the nose member (410B) is disposed proximal to the distal end of the handle (405B).
Dekle fails to teach the handle member having a flexible and friction-inducing material disposed thereon, wherein the flexible and friction-inducing material spans the nose width, spans from the distal end of the handle member toward the proximal end of the handle member, and spans under the nose bottom surface and wherein the trigger point member has an apex forming a terminal contact surface and defines a diameter tapering toward the terminal contact surface.
Burns, in the same field of art, teaches a related trigger point member (30, see Fig. 1-3) that has a pyramidal shape terminating in an apex (52) forming a terminal contact surface and the trigger point member defines a diameter that tapers towards the terminal contact surface (see Fig. 3) which enables the head to be pressed into flesh without meeting excessive resistance (see col. 3, lines 36-44).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the shape of the trigger point member of Dekle with the shape of the trigger point member taught by Burns since doing so would yield only predictable results, namely, the pyramidal shape of the trigger point member of Burns in the device of Dekle would have provided an alternative pressure application that would have enabled the device to be pushed into flesh without meeting excessive resistances (see Burns col. 3, lines 36-44). KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).
The combination of Dekle and Burns fails to teach a flexible and friction-inducing material disposed thereon, wherein the flexible and friction-inducing material spans the nose width, spans from the distal end of the handle member toward the proximal end of the handle member, and spans under the nose bottom surface, and wherein the flexible and friction-inducing material encloses the nose member along the nose length and is disposed on a nose top surface and a nose bottom surface opposing the nose top surface.
It is noted that the portions of the device of Dekle that form the handle and nose (410A, 405A, 410B, 405B, see Fig. 4B) are all configured to be gripped by a user and covering a handle with a flexible and friction-inducing material is known in the art.
Lambden, in the same field of art, teaches a related massage tool (see Fig. 1-3) with a flexible and friction-inducing material covering the handle (14) in order to provide additional comfort to a user (the handle can be covered by foam or rubber, see col. 4, lines 15-20).
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 tool of Dekle and Burns so that the handle and nose are covered by a flexible and friction-inducing material since doing so would provide additional comfort to the user when gripping the device.
The combination of Dekle, Burns and Lambden teaches the flexible and friction-inducing material covering (i.e., enclosing) any portion of the device that is configured to be gripped by a user for facilitating user comfort.
Regarding claims 2 and 8, the combination of Dekle, Burns and Lambden teaches the trigger point massage tool according to claim 1. Dekle fails to teach wherein the handle member and nose member are made of a substantially rigid material operably configured to flex.
Lambden teaches a related massage tool having a handle member (14, see Fig. 1) which is made of a substantially rigid material operably configured to flex (the shaft can be made of any firm material and can have some flexibility to prevent complete transfer of pressure to the pressure applicator which could cause pain for the user, see col. 3, lines 50-64).
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 handle member of Dekle so that it is made of a substantially rigid by flexible material, as taught by Lambden, since doing so would provide the device with enough rigidity to apply pressure but enough flexibility to prevent complete transfer of pressure to the pressure applicator which could cause pain for the user.
Regarding claim 3, Burns further teaches the trigger point member diameter continuously tapers to the terminal contact surface (the diameter of the trigger point member 30 continuously tapers to the terminal contact surface at 52, see Fig. 3)
Regarding claim 4, Burns further teaches the trigger point member (30) is formed in a pyramidal shape (see col. 3, lines 36-44).
Regarding claims 5 and 18, Burns further teaches the terminal contact surface is dull (the terminal contact surface at 52 is rounded and therefore dull, see Fig. 3).
Regarding claim 6, Dekle, Burns and Lambden teach the trigger point massage tool according to claim 1, wherein the apex of the trigger point member is a height less than approximately 20cm (it is noted that the claim does not provide a reference point from which the height of the apex is measured and therefore, a height dimension can be arbitrarily selected such that it is less than 20 cm).
The combination fails to expressly teach wherein the apex of the trigger point member is spaced apart from the distal end of the handle member a length ranging from 5-20cm.
It is further noted that Dekle discloses that the location of the apex of the trigger point member (massage heads 425A,425B) can be varied via movement of the dorsal projections 420A and 420B (see [0041] and [0042]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the apex of the trigger point member of Dekle, Burns and Lambden to be spaced apart from the distal end of the handle member a length ranging from 5-20cm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Dekle, Burns and Lambden would not operate differently with the claimed dimension and since the location of the trigger point member is designed to be variable, the device would function appropriately having the claimed dimension. Further, applicant places no criticality on the range claimed, indicating simply that the length is within the claimed ranges (see specification [0010]).
Regarding claim 10, Dekle, Burns and Lambden teach the trigger point massage tool according to claim 1. Dekle further teaches the handle member further comprising: a grasping portion spanning from the proximal end along the handle member length a grasping distance of at least 10cm (it is understood that the arc length of the proximal end of the handle formed by 405A and 410A is at least 10cm to accommodate a human body as disclosed by Dekle, see Fig. 3, and a grasping portion can be arbitrarily selected along the proximal end of the handle such that its length is at least 10 cm) and defining a grasping portion diameter spanning the grasping distance that is less than the nose width (the grasping portion would have a diameter as shown in annotated Fig. 4B above and the diameter of that section is less than the nose width, see annotated Fig. 4B).
Regarding claim 11, Dekle, Burns and Lambden teach the trigger point massage tool according to claim 1. Dekle fails to expressly teach wherein the nose width ranges from 5-16cm.
However, it is noted that Dekle discloses that the nose width (the width of arm 410B) can be adjusted to accommodate the body of the user (see [0039]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Dekle, Burns and Lambden to have a nose width between 5 and 16cm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Dekle, Burns and Lambden would not operate differently with the claimed width and would function appropriately. Further, applicant places no criticality on the range claimed, indicating simply that the width is within the claimed ranges (specification [0015] and [0048]).
Regarding claims 14, Dekle further teaches the trigger point member is selectively and freely uncouplable to the concave inner surface (massage heads 425A, 425B are removably attached to the concave inner surface via projections 420A and 420B, see [0042]).
Claims 15 is rejected under 35 U.S.C. 103 as being unpatentable over Dekle, Burns and Lambden, as applied to claim 1 above, and further in view of Dagan (US 9,168,196).
Regarding claims 15, the combination of Dekle, Burns and Lambden teaches the trigger point massage tool according to claim 1. Dekle further teaches the trigger point member is selectively and freely uncouplable to the concave inner surface (massage heads 425A, 425B are removably attached to the concave inner surface via projections 420A and 420B, see [0042]). Dekle is silent about the specific connection between the trigger point member and the projections.
Dagan, in the same field of art, teaches a related massage tool having removably attachable components connected by a male-female and friction-fit configuration (col. 5, lines 28-44).
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 tool of Dekle, Burns and Lambden so that the trigger point member is connected to the device by a male-female and friction-fit configuration, as taught by Dagan, since doing so would have provided a mechanism for removably attaching the trigger point member to the massage too.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
All of the cited documents in the attached PTO-892 teach related massage tools and trigger point members.
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/SERENITY A MILLER/Examiner, Art Unit 3771
/ELIZABETH HOUSTON/Supervisory Patent Examiner, Art Unit 3771