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
Claims 10, 14, and 17-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 10/22/25.
Applicant’s election without traverse of Species I in the reply filed on 10/22/25 is acknowledged.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: a drive mechanism in claim 1 and a drive assembly; a first transmission assembly; a second transmission assembly in claim 4.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claim 2 is 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.
In claim 2, line 3 “a face of the mounting portion” is unclear if the limitation is referring to the face as claimed in claim 1 or a new face.
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 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Peng (12,127,993).
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Annotated fig 3 of Peng.
With respect to claim 1, Peng discloses a massager (fig 3), comprising a main body (100, fig 2), defining an accommodation cavity (assembling space; 223, fig 3); a mounting portion (see annotated fig 3 of Peng), extending outward from a side of the main body (see annotated fig 3 of Peng); a first massage assembly (see annotated fig 3 of Peng), comprising a first massage member (700, fig 3) and a second massage member (300, fig 3) spaced apart from the first massage member, wherein the first massage member is mounted on the mounting portion (see annotated fig 3 of Peng) and protrudes outward from the mounting portion (see annotated fig 3 of Peng), and the second massage member is mounted on the mounting portion and protrudes outward from the mounting portion (see annotated fig 3 of Peng); and a drive mechanism (210,224; fig 3), at least partially mounted in the accommodation cavity of the main body (see annotated fig 3 of Peng), wherein the drive mechanism is drivingly connected to the second massage member (see connection of 210 to 300 via 222 in fig 3) and is configured to drive the second massage member to swing toward or away from the other of the first massage member and the second massage member (see col. 8, lines 1-9).
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Annotated fig 1 of Peng.
With respect to claim 2, Peng discloses a maximum distance between the first massage member and a face of the mounting portion (see annotated fig 1 of Peng) is greater than a maximum distance between the second massage member and the face of the mounting portion (see annotated fig 1 of Peng).
With respect to claim 3, Peng discloses a mounting cavity (see cavity which rod 224 and 222 are inserted and “The second assembling portion 222 defines an assembling space 223.” Col. 7, lines 59-60) is formed in the mounting portion, and the mounting cavity is communicated to the accommodation cavity (see communication between 223 and 222 in fig 3); the first massage assembly comprises a massage connecting rod (222/224, fig 3), the massage connecting rod is fixedly connected to the second massage member (see fig 3 and col. 8, lines 32-58), and the massage connecting rod is arranged in the mounting cavity and is drivingly connected to the drive mechanism (see connection of 222 to motor 210, fig 3).
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) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Peng in view of Zhou (2024/0252384).
With respect to claim 4, Peng discloses the drive mechanism comprises a drive assembly (210, fig 3 of Peng) and a second transmission assembly (222, 224,225, fig 3 of Peng); the second transmission assembly is movably mounted in the mounting cavity (see fig 3 and col. 8, lines 29-47 of Peng) and is configured to drive the massage connecting rod and the second massage member (see col. 7, lines 54-67 and col. 8, lines 1-9 of Peng) and at least a portion of the drive assembly is fixed in the accommodation cavity and is configured to drive the transmission assembly to rotate (motor 210, fig 3 and col. 8, lines 1-9 of Peng); but lacks a first transmission assembly; wherein the first transmission assembly is at least partially mounted in the accommodation cavity, and the first transmission assembly is slidable or rotatable relative to the main body, and is drivingly connectable to the second transmission assembly; at least a portion of the drive assembly is fixed in the accommodation cavity and is configured to drive the first transmission assembly to slide or rotate, and the drive assembly is configured to separately drive the first transmission assembly to move and to drive the second transmission assembly to move.
However, Zhou teaches a massage device (fig 2) with a transmission assembly (4,5,41,61; fig 5) wherein the first transmission assembly is at least partially mounted in an accommodation cavity (space withing 14 in fig 5), and the first transmission assembly is slidable or rotatable relative to a main body (14, fig 5 and see [0036-37]), and is drivingly connectable to a second transmission assembly (6, fig 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 have modified the first massage member of the modified Peng to include a first transmission assembly as taught by Zhou so as to provide an additional clamping massage effect for the user.
Claim(s) 7 and 15-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Peng and Zhou as applied to claim 4 above, and further in view of Wang (2025/0248888).
With respect to claim 7, the modified Peng shows a second massage assembly (see annotated fig 3 of Peng) but lacks the second massage assembly drivingly connected to the first transmission assembly and is arranged on a side of the main body, and the first transmission assembly is configured to drive the second massage assembly to swing relative to the main body.
However, Wang teaches a massager (1, fig 1) comprising a second massage assembly (see left sided portion of element 1 in fig 2) drivingly connected to a first transmission assembly (A, in fig 2) and is arranged on a side of the main body (arranged on an upper side of the body as seen in fig 2), and the first transmission assembly is configured to drive the second massage assembly to swing relative to the main body (see [0042]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the second transmission assembly of the modified Peng to drive in a swing massage as taught by Wang so as to provide an additional massaging effect for the user.
With respect to claim 15, the modified Peng shows a soft rubber shell (silicone cover; 600, fig 3 of Peng), wherein the soft rubber shell at least covers the second massage member (see col. 10, lines 18-31 of Peng).
With respect to claim 16, the modified Peng shows a vibration member (410, fig 3 of Peng), wherein the vibration member is arranged in the second massage assembly (see 400 in second massage assembly in annotated fig 3 of Peng).
Allowable Subject Matter
Claims 5-6, 8-9, and 11-13 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
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/KELSEY E BALLER/ Examiner, Art Unit 3785
/TU A VO/ Primary Examiner, Art Unit 3785