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 § 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 and 4-6 are rejected under 35 U.S.C. 103 as being unpatentable over John US 2022/0032024 in view of Haslauer EP 0943308 (reliance on machine English translation).
Regarding claim 1, John discloses a container 18, comprising an opening in a top portion 22 sized and adapted to receive (via opening A, see annotated figure 1 below) one or more units of a substance 16 and to receive water from a water source 12 [0053-0071], one or more side walls 26,28 (container is cylindrical and includes one round wall with an internal surface) and a bottom wall 38 below the opening, said one or more side walls 26,28 and the bottom wall 38 forming at least one interior compartment 30,42 (chamber, [0058,0063]), a plurality of apertures 40 on the bottom wall 38, and one or more fasteners 50,53 in the top portion 22 above the opening (positioning member 50 is a strap with fasteners 52 thereon, [0068-0071], used to attach/hang from a shower head 12, see figs. 3,6), wherein the one or more side walls 26,28 incorporate an insulating material (silicone or plastic polymer are known to have excellent insulators) and the at least one interior compartment 30,42 is thereby adapted to contain the one or more units of the substance 16 received via the opening and allow the water to exit the at least one interior compartment 30,42 through the plurality of apertures 40 on the bottom wall 38.
John does not disclose the one or more units of substance is one or more units of a cooling substance received via the opening for cooling the water received from the water source to allow cooled water to exit the at least one interior compartment.
Haslauer teaches an analogous container 45 having an on analogous opening in a top portion sized and adapted to receive one or more units of a cooling substance 19 to receive water 37 from an analogous water source 39’, wherein an analogous at least one interior compartment is thereby adapted to contain the one or more units of the cooling substance 19 received via the opening for cooling the water 37 from the analogous water source 39’ and to allow cooled water 24 to exit the analogous at least one interior compartment through analogous plurality of apertures 47 on an analogous bottom wall (see figs. 5-6, page 5, paragraph 6), for the purpose of providing a compartment that includes cooling medium such as ice cubes to create an cooling/freezing shower that is ideal for use in a home in order to stimulate the user’s body to provide therapy (page 2, paragraphs 6-7).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have provided the interior compartment 30,42 of John with the cooling medium 19 as taught by Haslauer in order to have provided an improved container that allows for controlled and dispensing of therapeutic salts together with water that is cooled by cooling medium in the compartment to create a cooling stream of acquiesce salt solution that is ideal for use in a home for stimulating the user’s body to provide therapy (Haslauer, page 2, paragraph 6-7).
Regarding claim 4, John in view of Haslauer discloses the invention as discussed above. John further discloses the plurality of apertures 40 are arranged in a radially symmetrical pattern (see annotated fig. 1 below where equal number of apertures 40 are on each side of the central axis B.)
Regarding claim 5, John in view of Haslauer discloses the invention as discussed above. John further discloses wherein the plurality of apertures 40 arranged in a radially aligned pattern (the apertures 40 are aligned along a radius R of the circular structure 38, see annotated fig. 1 below).
Regarding claim 6, John in view of Haslauer discloses the invention as discussed above. John further discloses the bottom wall 38 is circular in shape (see fig. 1).
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Claims 2-3 are rejected under 35 U.S.C. 103 as being unpatentable over John US 2022/0032024 in view of Haslauer EP 0943308 (reliance on machine English translation) further in view of Moreau US 2019/0255695.
Regarding claim 2, John in view of Haslauer discloses the invention as discussed above. Although John discloses a handle 50 having the one or more fasteners 52 thereon, John in view of Haslauer does not disclose a plurality of handles wherein the one or more fasteners comprise a plurality of hook and loop fastener areas incorporated on respective ones of the plurality of handles of the container.
Moreau teaches an analogous container 100 (bucket 100, [0029] comprising a plurality of handles 126,140 (strap 126 is one handle and strap 140 comprises at least three handles 142 which are loops that can be held by a hand therefore 140 is interpreted to be handles since it includes three handles 142), wherein analogous one or more fasteners 152,154 (150 are hook and loop fasteners comprising either of the hook portion 152 and loop portion 154) comprise a plurality of hook 152 and loop 154 fastener areas incorporated on respective ones of the plurality of handles 126,140 of the container 100 (figs. 1-3, [0029-0042]), for the purpose of providing a plurality of handles part of which enables a user to use it for carrying while another part of which defines an adjustable suspension handle for suspending the container while adjustable hook-and-loop fasteners allow adjustability allowing the handles to come together and facilitate stowage thereof [0033, 0034, 0036, 0037-0040].
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified the container of John to include a plurality of handles wherein the one or more fasteners comprise a plurality of hook and loop fastener areas incorporated on respective ones of the plurality of handles of the container as taught by Moreau in order to have provided an improved container that has versatile and optimized handles that enable a user to use one of the handles for carrying the container while another of the handles defines an adjustable suspension handle for suspending the container while adjustable hook-and-loop fasteners allow adjustability of the handles and allowing the handles to come together and facilitate stowage parts or all thereof as needed (Moreau, [0033, 0034, 0036, 0037-0040]).
Regarding claim 3, John in view of Haslauer in view of Moreau discloses the invention as discussed above. John in view of Haslauer in view of Moreau further discloses a first hook and loop fastener area 154 is disposed on an inner side of a first one 140 of the plurality of handles 126,140 and a second hook and loop fastener area 152 is disposed on an outer side of a second one 126 of the plurality of handles 126,140 (figs. 1-3).
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over John US 2022/0032024 in view of Haslauer EP 0943308 (reliance on machine English translation) further in view of Panzella US 2013/0341216.
John in view of Haslauer discloses the invention as discussed above. John in view of Haslauer does not disclose one or more additional fasteners adapted to fasten to a structure proximate to the water source, wherein the one or more additional fasteners comprise one or more suction cups adapted to fasten to a wall proximate to the water source.
Panzella teaches one or more additional fasteners 80,81 (fig. 9, [0097-0098]) of an analogous container 10 (having plurality of fasteners 51,52,55,56 for hanging from a shower head [0086] such that 80,81 are additional fasteners) adapted to fasten to a structure (e.g. back wall 24, [0097]) proximate to an analogous water source [0072,0075], for the purpose of securing the container to a shower wall or other flat vertical surface using waterproof materials [0097], wherein the one or more additional fasteners 80,81 comprise one or more suction cups 80,81 to fasten to a wall proximate to the water source.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have provided the one or more side wall of the container of John in view of Haslauer with the one or more fasteners that comprise one or more suction cups 80,81 as taught by Panzella in order to have provided an improved container that could be suspended from a shower head while having waterproof suction cups that allow for secure and robust fastening to a wall proximate the shower head so the container does not slide (Panzella, [0097].
Claims 9-14 are rejected under 35 U.S.C. 103 as being unpatentable over Haslauer EP 0943308 (reliance on machine English translation) in view of John US 2022/0032024.
Regarding claim 9, Haslauer discloses a method of initiating a cold therapy shower (see figs. 5-6, page 5, paragraph 6) using a container 45, wherein said container 45 comprises an opening in a top portion sized and adapted to receive one or more units of a cooling substance 19 and to receive water 37 from a water source 39’ (figs. 5-6), one or more size walls (defined by 45 where 45 is cylindrical and defines at least a cylindrical wall) and a bottom wall (the sieve like bottom surface that includes apertures 47) below the opening, said one or more side walls and the bottom wall forming at least one interior compartment, a plurality of apertures 47 on the bottom wall, wherein the at least one interior compartment is adapted to contain the one or more units of the cooling substance 19 received via the opening for cooling the water 37 received from the water source and to allow cooled water 24 to exit the at least one interior compartment through the plurality of apertures 47 on the bottom wall, said method comprising placing the one or more units of cooling substance 19 into the at least one interior compartment through the opening, initiating a water flow 37 from the water source 39’ int the opening (figs. 5-6).
Haslauer does not explicitly disclose one or more fasteners in the top portion above the opening, the one or more fasteners being adapted to attach the container to the water source, wherein the one or more side wall incorporate an insulating material, attaching the container to the water source using the one or more fasteners while aligning the opening to the water source.
John teaches an analogous method using an analogous container 18, wherein said container 18 comprises an analogous opening in a top portion 22 sized and adapted to receive an analogous substance 16 and to receive water from an analogous water source 12 (fig. 6), one or more analogous side walls 26,28,30 (analogous cylindrical wall) and an analogous bottom wall 38 below the opening, said one or more analogous side walls and the bottom wall 38 forming at least one analogous interior compartment 30,42, analogous plurality of apertures 40 on the analogous bottom wall 38, and one or more fasteners 50,52,54 (fig. 3) in the top portion 22 above the opening, the one or more fasteners 50,52 being adapted to attach the container 18 to the water source 12 (fig. 6), wherein the analogous one or more side walls incorporate an insulating material (e.g. silicone or plastic polymer, which are know excellent insulating materials), said method further comprising attaching the analogous container 18 to the water source 12 using the one or more fasteners 50,52,54 while aligning the analogous opening A to the water source 12 (fig. 6), for the purpose of releasably hanging an analogous container on a shower head 12 above a user 14 using one or more adjustable fasteners that allow differing heights from the shower [0068].
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have provided the method of initiating a cold therapy shower using the container 45 of Haslauer by modifying the container of Haslauer to include one or more fasteners in the top portion above the opening, the one or more fasteners being adapted to attach the container to the water source, wherein the one or more side wall of the container incorporate an insulating material, attaching the container to the water source using the one or more fasteners while aligning the opening to the water source as taught by John in order to have provided an improved method of initiating a cold therapy shower that has an improved insulated container that releasably can hang on a shower head above a user using one or more adjustable fasteners that allow differing heights from the shower head as desired by the user while the insulating material keeps retains the coldness of the ice cubes for longer to enhance the cold therapy shower experience (John, [0068]).
Regarding claim 10, Haslauer in view of John discloses the invention as discussed above. Haslauer discloses production of one or more units of the colling substance 19 in container 45 which inherently have a weight. Although, Haslauer in view of John does not explicitly disclose 5 to 12 pounds of ice in the container 45, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have provided the container with the desired 5 to 12 pounds of ice in order to maintain a level of safety such that the container does not become too heavy to keep the user safe. It also has been held that In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package "of appreciable size and weight requiring handling by a lift truck" were held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) ("mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled." 531 F.2d at 1053, 189 USPQ at 148.). Furthermore, it appears Applicant did not impart any criticality to the 5 to 12 pounds of ice in the written specification.
Regarding claim 11, Haslauer in view of John discloses the invention as discussed above. Haslauer discloses the water 39 has a warmer temperature than the ice 19 (page 5, paragraph 6), however Haslauer in view of John do not explicitly disclose the water flow from the water source is approximately 70 degrees. It would have been obvious to one of ordinary skill in the art at the time of the invention was made to have recognized that the water flow from the water source had a temperature of about 70 degree Fahrenheit, since 70 degrees Fahrenheit is the desired safe temperature of shower water. It also appears the Applicant did not impart any criticality to the 70 degree Fahrenheit temperature. Therefore, applicant is reminded that it has been held generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.). Also, Claimed ratios were obvious as being reached by routine procedures and producing predictable results); In re Kulling, 897 F.2d 1147, 1149, 14 USPQ2d 1056, 1058 (Fed. Cir. 1990)(Claimed amount of wash solution was found to be unpatentable as a matter of routine optimization in the pertinent art, further supported by the prior art disclosure of the need to avoid undue amounts of wash solution); and In re Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362, 1366 (Fed. Cir. 1997)(Claims were unpatentable because appellants failed to submit evidence of criticality to demonstrate that that the wear resistance of the protective layer in the claimed thickness range of 50-100 Angstroms was "unexpectedly good"); Smith v. Nichols, 88 U.S. 112, 118-19 (1874) (a change in form, proportions, or degree "will not sustain a patent"); In re Williams, 36 F.2d 436, 438, 4 USPQ 237 (CCPA 1929) ("It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416, 82 USPQ2d 1385, 1395 (2007).
Regarding claims 12-14, Haslauer in view of John discloses the invention as discussed above. Haslauer discloses the water 39 has a warmer temperature than the ice 19 such that an exit temperature of cooled water 24 flowing from at least one of the plurality of apertures 40 of the container 45 is at a cooler temperature than the water 39’ (page 5, paragraph 6), however Haslauer in view of John do not explicitly disclose the cooled water temperature is approximately 50 degrees Fahrenheit, wherein the exit temperature is maintained for about 3-5 minutes, wherein the exit temperature is maintained for about 4 minutes.
It would have been obvious to one of ordinary skill in the art at the time of the invention was made to have synchronized the temperature of the water flow 39’ out of the shower head, the amount of ice 19 in the container such that the cooled water temperature 24 is maintained at approximately 50 degrees Fahrenheit and to have maintained such temperature for about 3-5 minutes, for about 4 minutes as desired to maintain comfort to impart the cold therapy. It also appears the Applicant did not impart any criticality to the 50 degrees Fahrenheit temperature and the duration thereof. Therefore, applicant is reminded that differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382. Claimed ratios were obvious as being reached by routine procedures and producing predictable results); In re Kulling, 897 F.2d 1147, 1149, 14 USPQ2d 1056, 1058 (Fed. Cir. 1990)(Claimed amount of wash solution was found to be unpatentable as a matter of routine optimization in the pertinent art, further supported by the prior art disclosure of the need to avoid undue amounts of wash solution); and In re Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362, 1366 (Fed. Cir. 1997)(Claims were unpatentable because appellants failed to submit evidence of criticality to demonstrate that that the wear resistance of the protective layer in the claimed thickness range of 50-100 Angstroms was "unexpectedly good"); Smith v. Nichols, 88 U.S. 112, 118-19 (1874) (a change in form, proportions, or degree "will not sustain a patent"); In re Williams, 36 F.2d 436, 438, 4 USPQ 237 (CCPA 1929) ("It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416, 82 USPQ2d 1385, 1395 (2007).
Conclusion
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/ALIREZA NIA/Supervisory Patent Examiner, Art Unit 3786
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