Ex Parte Zemont

Board of Patent Appeals and Interferences

Sep 3, 2008

10612521 (B.P.A.I. Sep. 3, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CHERYL E. ZEMONT
____________

Appeal 2008-2817
Application 10/612,521
Technology Center 3700
____________

Decided: September 03,2008
____________

Before TONI R. SCHEINER, DONALD E. ADAMS, and
LORA M. GREEN, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL

This appeal under 35 U.S.C. § 134 involves claims 1, 2, 4, 5, 13, 14,
16, 17, 20, and 21, the only claims pending in this application. We have
jurisdiction under 35 U.S.C. § 6(b).

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Application 10/612,521

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INTRODUCTION
The claims are directed to a method for performing a trigger-point
massage (claims 1, 2, 4, and 5) and a trigger-point therapy device (claims 13,
14, 17, 16, 17, 20, and 21). Claims 1, 13, and 21 illustrative:
1. A method for performing a trigger-point massage, comprising the
following steps:
(a) providing a spherical ball having an array of between 8 to 14
pliable nodes projecting axially from the surface of the spherical ball,
wherein said pliable nodes are substantially cylindrical; and
(b) applying localized pressure to a trigger-point using a single pliable
node of said spherical ball;
wherein said pliable nodes are between one-half inch to one inch in
both length and diameter.
13. A trigger-point therapy device, comprising:
a spherical ball; and
an array of between 8 to 14 pliable nodes projecting axially from the
surface of the spherical ball, wherein said pliable nodes are substantially
cylindrical and are between one-half inch to one inch in both length and
diameter.
21. A trigger-point therapy device, comprising:
a spherical ball; and
an array of 10 pliable nodes projecting axially from the surface of the
spherical ball, wherein said pliable nodes are substantially cylindrical, are
evenly spaced apart from each other and are disposed upon a rigid pin in
press-fit arrangement with said spherical ball, wherein said pliable nodes are
between one-half inch to one inch in both length and diameter.
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The Examiner relies on the following prior art references to show
unpatentability:
Cassidy US 744,718 Nov. 24, 1903
Mauch EP 0,320,958 Dec. 15, 1988
(translated PTO 08-0076)
Sakai US 6,013,042 Jan. 11, 2000

The rejection as presented by the Examiner is as follows:
Claims 1, 2, 4, 5, 13, 14, 16, 17, 20, and 21 stand rejected under
35 U.S.C § 103(a) as unpatentable over the combination of Cassidy, Mauch,
and Sakai.
We reverse.

FINDINGS OF FACT (FF)
1. Cassidy teaches “an appliance for therapeutical and massage purposes”
(Cassidy 1: 12-13).
2. Cassidy’s “device embodies a hollow sphere of flexible material having
an undulated surface area” (Cassidy 1: 23-25). For clarity, we reproduce
Cassidy’s figure 1 below:

“Figure 1 is an exterior elevation of the device in its preferred form”
(Cassidy 1: 30-31).
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3. Cassidy teaches a sphere that:
[H]as ranged over its entire surface area, at any desired distance
from each other and in any suitable relative arrangement,
protuberances a, which are formed integral with the body of the
sphere and are preferably of semispherical contour, each
presenting a convexity raised above the normal surface area of
the sphere.

(Cassidy 1: 43-49.)

4. Cassidy teaches that:
In the operation and use of the invention . . . [t]he sphere
itself is pressed against the part to be treated and manipulated
and rolled around over the surface for any required length of
time, the undulations of the surface area of the sphere causing
direct contact with all parts of the skin-surface, thus
successfully and quickly accomplishing the desired results.

(Cassidy 1: 91-102.)

5. Mauch teaches “a massage device, in particular a device for massaging
the reflex zones of the hands” (Mauch 2: 1-2). For clarity, we reproduce
Mauch’s figure 1 below:

“Figure 1 is a part-sectioned drawing of a spherical massage ball” (Mauch 4:
23).
6. Mauch teaches that “[t]he acupressure nodules [3] can all have the same
size, in which case the massage body has massage characteristics that are
uniform across the entire surface of said body. The distribution density,
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however, can also vary across the surface” (Mauch 4: 8-10). According to
Mauch “[t]he diameter and the spacing of the nodules from one another
measures only very few millimeters so that it is possible to massage the
reflex zones, which are disposed so as to be relatively closely spaced across
the palm of the hand, at several acupressure points” (Mauch 3: 5-8).
7. Mauch teaches that “the nodules have a diameter, height and spacing
from one another measuring between 2 and 5 mm” (Mauch 5: 12-13).
8. Sakai teaches a massaging device for feet and legs (Sakai Abstract).
9. Sakai teaches a massaging device wherein the nodes are between 1.5 – 3
cm in diameter (Sakai 4: 19-24).

DISCUSSION
Based of the teachings of the combination of references relied upon
the Examiner finds that:
It would have been obvious to one having ordinary skill in the
art at the time that the invention was made that the cylindrical
nodes having flat ends as taught by Mauch could be substituted
for the spherical shaped nodes disclosed by Cassidy in order to
use the flat portion of the nodes to massage the trigger-point on
the body. The plastic material is a pliable material (resilient)
that would allow the user’s [sic] to massage the trigger-point
without chafing that portion of the skin on the body. The nodes
could be constructed to be between one half to one inch in
length and diameter as taught by Sakai in order to apply a
specific pressure at a specific pressure point.

(Fin. Rej. 2-3.)
Appellant disagrees. According to Appellant “none of the
references, alone or in combination, teach or suggest the limitation of
‘providing a spherical ball having an array of between 8 and 14
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pliable nodes’ . . . [or] the claimed length and diameter of the nodes”
(App. Br. 6). Appellant asserts that “one of ordinary skill in the art is
not taught to produce a ball with the appellant’s claimed number and
node-size limitations any more so then [sic] any of the other node
sizes and numbers disclosed by Sakai” (id.).
In response, the Examiner asserts that “[t]here are more than 14
nodes on the ball discloses [sic] by Cassidy. Thus, there is an array on
the spherical ball that includes between 8 to 14 nodes” (Ans. 3). This
is however, not what is claimed. Claims 1 and 13 require that the
spherical ball has “an array of between 8 to 14 pliable nodes” and
claim 21 requires “an array of 10 pliable nodes.” The Examiner has
admitted that Cassidy teaches an array having more than 14 nodes,
and fails to identify a teaching in either Mauch or Sakai that makes up
for this deficiency.
We recognize the Examiner’s assertion that Cassidy “teaches
that the nodes can be arranged at any desire [sic] distance from each
other” (Ans. 4; FF 3). The question remains, however, what would
lead a person of ordinary skill in this art to produce a spherical ball
having 10, or between 8-14, pliable nodes? According to Mauch,
“[t]he diameter and the spacing of the nodules from one another
measures only very few millimeters so that it is possible to massage
the reflex zones, which are disposed so as to be relatively closely
spaces across the palm of the hand, at several acupressure points”
(Mauch 3:7-8, FF 6). The Examiner’s reliance on Figure 1 of Mauch
illustrates this closely-spaced nodule arrangement (Fin. Rej. 2; FF 5).
We recognize that Mauch suggests that “if the size of the massage
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body and its acupressure nodules is appropriately dimensioned . . .
said massage balls can also be used to massage other parts of the
body, in particular the back” (Mauch 7: 16-18). In this regard,
however, Mauch teaches that “[t]he shape and the dimensions of the
acupressure nodules, however, can correspond to those described in
the context of Figure 1” (Mauch 7: 20-21). In sum, the combination
of prior art relied upon by the Examiner teaches more than 14
nodules. The Examiner has failed to identify, and we do not find, a
teaching or suggestion in any of the combination of references relied
upon by the Examiner that would lead a person of ordinary skill in the
art to limit the number of nodules to those required by Appellant’s
claimed invention. As discussed above, at best the teachings of
Mauch would suggest that a person of ordinary skill in the art increase
the number of nodules taught by Cassidy.
Accordingly, we reverse the rejection of claims 1, 2, 4, 5, 13,
14, 16, 17, 20, and 21 under 35 U.S.C § 103(a) as unpatentable over
the combination of Cassidy, Mauch, and Sakai.

CONCLUSION
In summary, we reverse the rejection of record.

REVERSED

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