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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-10, in the reply filed on 4/14/26 is acknowledged. The traversal is on the ground(s) that the method claims recite steps specifically performed by the claimed device and rely upon its structure and capabilities, that the restriction requirement has not demonstrated that there is sufficient burden on the Examiner, that the claims are directed to a single inventive concept, that the Examiner has not established a prima facie case supporting the restriction requirement, and that classification alone does not justify restriction. This is not found persuasive because the product as claimed is capable of being used in a materially different process of using that product, such as the method of claim 11, where the device is provided along a different part of the body, such as the leg. Further, sufficient burden has been shown due to the differing classification and varying search queries (such as text searches for specific steps in the method, etc.). Further, whether the claims are directed to a single inventive concept is part of the process for a restriction under PCT. Finally the Examiner has provided these justifications to establish the case for supporting the restriction requirement, and classification alone has not been provided to justify restriction (the inventions have been shown to be independent and distinct, and varying search queries would be required).
The requirement is still deemed proper and is therefore made FINAL.
Claims 11-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Group, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 1/16/26.
Claim Objections
Claims 2, 4-6, and 10 are objected to because of the following informalities:
“the massage nodes” in claim 2, lines 2 and 4; claim 4, line 2; claim 8, line 2 should be amended to recite --the plurality of massage nodes--
“the firmness” in claim 2, line 4 should be amended to recite --a firmness--
“material conforms” in claim 5, line 2 should be amended to recite --material is configured to conform--
“one or more massage nodes” in claim 6, line 3 should be amended to recite --one or more of the plurality of massage nodes--
“the full” in claim 10, line 2 should be amended to recite --a full--
“the cervical” in claim 10, line 3 should be amended to recite --a cervical--
“the lumbar” in claim 10, line 3 should be amended to recite --a lumbar--
Appropriate correction is required.
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) 1-3, 5, and 7-10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Burns US 2009/0069729 A1.
Regarding claim 1, Burns discloses a therapeutic device 10 for back relief (fig. 1 and [0002], device for acupressure and massage therapy, which would be capable of being used over the back), comprising: a flexible core structure 12 (fig. 1 and [0033], tubular structure 12 is constructed from soft and flexible web-like material 26); a plurality of massage nodes 20a/b/c disposed along the flexible core structure 12 (fig. 1 and [0032], resilient objects 20a/b/c are located in pockets along the device; [0035], these objects 20 provide massage); wherein each massage node 20a/b/c is individually encased in a flexible, durable material 26 (fig. 1 and [0033]-[0035], the web-like material 26 is folded and sewn to produce internal pockets 14 that hold the objects 20; the material 26 is strong but flexible material); and wherein the device 10 is configurable between a flat configuration, a stacked configuration, and a draped configuration for therapeutic use (due to its flexibility, the device is capable of being used flat as in fig. 1, or folded to produce a stacked configuration, or draped over the body, depending on the way the user manipulates its configuration).
Regarding claim 2, Burns discloses the massage nodes 20a/b/c being modular in structure, permitting selective removal or addition of nodes to customize therapeutic coverage ([0039], the objects 20 may be removed and exchanged; thus, they are modular and can be removed or added from each pocket 12 to customize therapeutic coverage (for example, using only two objects and omitting one would reduce coverage); and the firmness of the massage nodes 20a/b/c is adjustable via material selection of materials having varying durometer elastomers (since the objects 20 can be removed and exchanged, they would be capable of being exchanged for an elastomeric object with a different durometer; please note the claim recites “the firmness of the massage nodes is adjustable via material selection…”, rather than positively claiming multiple massage nodes of varying durometers as part of the system; thus, as long as the prior art is capable of being used in the claimed manner, it meets the claim language), structural layering including foam or textile overlays, or geometric design selecting node wall thickness and void ratios.
Regarding claim 3, Burns discloses the flexible core structure 12 comprising a pliable connective substrate 26 that enables the device 10 to roll and bend while maintaining node alignment ([0033], material 26 is soft and flexible; thus, it would enable the device to roll and bend while maintaining alignment of the objects 20 within the pockets 14 due to its flexibility).
Regarding claim 5, Burns discloses the encasing material 26 conforming to a user’s spinal curvature during use to provide targeted relief and support ([0033], material 26 is soft and flexible; thus, it is capable of conforming to the user’s spine during use to provide targeted relief and support, depending on the specific user and manner of use).
Regarding claim 7, Burns discloses the device 10 being configured to be draped over a chair back to provide massage and posture support during seated use (since the device is flexible, it would be capable of being draped over a chair back to provide massage and posture support, depending on the specific user and manner of use/seated position).
Regarding claim 8, Burns discloses the massage nodes 20a/b/c being geometrically shaped to match spinal anatomy and are selected from the group consisting of spherical (fig. 1 shows objects 20a/b/c being spherical; due to the rounded nature of the objects, they can be considered geometrically shaped to match spinal anatomy, as they can fit between vertebrae).
Regarding claim 9, Burns discloses the flexible core 12 including stitching 32 between adjacent massage nodes 20a/b/c to define compartments 14 that maintain their relative position during flexion (fig. 1 and [0034], stitching 32 is used to form the pockets 14, which hold the various objects 20).
Regarding claim 10, Burns discloses the flexible core 12 and massage node arrangement 20a/b/c being adapted to span the full length of a user’s back, from the cervical region to the lumbar region (fig. 1, the device 10 capable of spanning the full length of the user’s back depending on the height of the user and the length of their back).
Claim(s) 1 and 4 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Augustine et al. US 6,168,612 B1.
Regarding claim 1, Augustine discloses a therapeutic device 100 for back relief (fig. 1 and col. 3, lines 45-51, inflatable thermal blanket 100 provides pressurized thermally-controlled air, which would be capable of providing therapy depending on the needs of the user), comprising: a flexible core structure 106 (fig. 1 and col. 3, lines 41-45, multilayer sheet 104 made of layers 106; col. 6, lines 16-20, layers 106 may be polyester or polypropylene/polyethylene film, which are flexible); a plurality of massage nodes disposed along the flexible core structure 106; wherein each massage node is individually encased in a flexible, durable material 102 (fig. 1 and col. 3, line 52-col. 4, line 9, inflatable structure 102 comprises locations 118 at which sheets 110 and 112 are joined together to form various chambers (i.e. the plurality of massage nodes)); and wherein the device 100 is configurable between a flat configuration, a stacked configuration, and a draped configuration for therapeutic use (the blanket 100 being capable of being used in any of these configurations depending on the specific manner in which the user positions it).
Regarding claim 4, Augustine discloses at least one of the massage nodes including an air-filled chamber configured to be inflated or deflated to adjust firmness (col. 5, lines 45-51, inflation port 108 is used to pressurize the blanket and introduce air into the inflatable structure 102; thus, the firmness would be capable of being adjusted, depending on when the user stops the filling of air).
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) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burns US 2009/0069729 A1 in view of Lin US 5,568,664.
Regarding claim 6, Burns discloses the claimed invention as discussed above.
Burns is silent on modular segments connectable to one another, wherein each segment comprises a portion of the flexible core and one or more massage nodes.
However, Lin teaches a massaging apparatus 301 (fig. 8 and col. 5, lines 15-17) comprising modular segments 302 connectable to one another (col. 5, lines 15-20, massaging apparatus 301 can be used with the elongated plate member 210 of the modular pad assembly 100 and comprises a plurality of blocks 302; fig. 1 and col. 3, lines 1-5, the modular pad assembly 100 comprises at least two elongated plate members 10 with coupling members A; thus, it is understood that the blocks 302 of the embodiment of fig. 8 are modular in the same way as the plate members 10 of fig. 1), wherein each segment 302 comprises a portion of an analogous core and one or more massage nodes 302 (fig. 8 and col. 5, lines 17-19, blocks 302 have protrusions 302 for massaging purposes; the analogous core can be considered the structure/material of the blocks 302, which form the substrate for the massage nodes, similar to Burns’ device).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have provided the therapeutic device of Burns with modular segments connectable to one another, wherein each segment comprises a portion of the flexible core and one or more massage nodes, as taught by Lin, to suit the design needs of ergonomics and any body shape, maximizing comfort (col. 1, lines 40-46).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Meier US 5,736,213 discloses a strap 42 with massaging balls 72 (fig. 5 and col. 5, lines 16-63)
Ellis US 2012/0089058 A1 discloses an exercise garment 11 with massaging balls 11 (fig. 3 and [0014]-[0015])
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHELLE J LEE whose telephone number is (571)270-7303. The examiner can normally be reached 9 AM - 5 PM.
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/MICHELLE J LEE/ Primary Examiner, Art Unit 3786
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