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 .
Status of Claims
This Action is in response to the amendment filed on August 11, 2025.
As directed by the amendment: Claims 47 and 53 were amended. Claims 55-56 were canceled. Claims 78-83 are newly added. Thus, claims 47-54 and 57-83 are pending and currently under consideration for patentability under 37 CFR 1.104. Claims 60-77 are withdrawn.
Claim Interpretation
It is noted that while features of an apparatus may be recited either structurally or functionally, “Apparatus claims cover what a device is, not what a device does,” and a “‘recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus’ if the prior art apparatus teaches all the structural limitations of the claim,” see MPEP 2114(II). In the instant case, the claims recite functional language for how the upper body user support frame is intended to interact with the user’s body (such as “adapted to surround and support the upper body of the user standing on, or supported by, the inclined platform,” “adapted to support the torso of the user’s body in a substantially static position during movement of the inclined platform” “when supported by the rigid upper body user support frame … the user’s torso being supported by the back support and offset at an angle relative to a vertical axis” in claim 1. This is a non-exhaustive list). In these instances where the claims recite functional language, as long as the prior art teaches all the structural limitations and is capable of performing the function, it will be considered to read on the functional language.
Claim 47, lines 7-8 recite “a back support adapted to support the torso of the user’s body in a substantially static position during movement of the inclined platform” and the phrase “substantially static position” is interpreted to mean the back support is substantially static relative to the inclined platform. This interpretation is taken in light of the specification (“user of the muscle activation assembly is in a substantially static position relative to the base and is tilted about 360˚ of motion, or part thereof, thereby imparting forces on the body of the user” see the last three lines of para. [0019] of the Specification filed December 21, 2018). Thus, a prior art back support could move with the tilting, inclined platform so as to circumferentially move the user’s upper body, and still read on supporting the torso in a “substantially static position.”
Claim 59, lines 2-3 recite “wherein the inclined platform does not substantially rotate around a vertical axis during operation” and this is interpreted to mean the central axis of the platform is not aligned with a vertical axis when the platform rotates. This interpretation is based upon the disclosure stating that the platform is adapted to undergo “a precession like motion around a central point so as to circumferentially move a user’s body … through an arc around a central point” (see the last sentence of [0010]). This motion is about a central point such as a central pivot (and the last sentence of [0011] and see Figs. 1-15). The central pivot (such as 113, Fig. 4) has a vertical axis associated with it, but because the platform is tilted the precession like rotation of the platform is not substantially (primarily) around the vertical axis.
Claim Interpretation - 35 USC § 112(f)
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. Such claim limitation(s) is/are:
“an automated platform driving means for driving the inclined platform” found in claim 57. The corresponding structure for the “automated platform driving means” is an electric motor connected to a rotational plate having a series of circumferential bearings which engage with the platform based upon para. [0013] of the Specification.
Because this claim limitation is being interpreted under 35 U.S.C. § 112(f), it is 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 limitation interpreted under 35 U.S.C. § 112(f), applicant may: (1) amend the claim limitation to avoid it being interpreted under 35 U.S.C. § 112(f) (e.g. by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation recites sufficient structure to perform the claim function so as to avoid it being interpreted under 35 U.S.C. § 112(f).
Claim Objections
Claims 48, 59, and 81 are objected to because of the following informalities:
Claim 48, lines 10-11 recite “being set by the roller bearing guide of the portion” and Examiner suggests --being set by the roller bearing acting to guide the portion-- to more closely match the language from lines 7-8 (“the roller bearing acting to guide a portion”). This clarification will also help avoid any confusion that lines 10-11 could otherwise be referring to a “roller bearing guide” structure.
Claim 59, line 2 recites “a vertical axis” and Examiner suggests --the vertical axis-- because “a vertical axis” has already been recited in claim 47, the last two lines.
Claim 81, line 2 recites “a central point” and Examiner suggests --the central point-- because a “central point” has already been recited in claim 47, line 13.
Appropriate correction is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claim 83 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Claim 83, lines 2-3 recite “such that the user’s upper body is supported in a substantially upright position” which is directed to or encompassing a human. Examiner suggests --and adapted to support the user’s upper body in a substantially upright position--.
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) 47-52, 57-59, and 78-83 are rejected under 35 U.S.C. 103 as being unpatentable over Tudico (2010/0222187) in view of Chang et al. (2008/0161169) and Gehris Jr. (2011/0212814).
Regarding claim 47, Tudico discloses a muscle activation system (Fig. 1; Note, the recitation of “muscle activation” is merely a recitation of purpose or intended use in the preamble and the body of the claim describes a complete invention. Thus, the intended use is not limiting, see MPEP 2111.02(II). However, it is noted that Tudico’s system applies a centrifugal force to the body which results in “centripetal restoration by all the muscles of the body” see para. [0010], and intensely works “all the muscles of the subject’s body” in the last sentence of [0055]) comprising:
an inclined platform (mobile platform 44, Fig. 1) for a user to stand on (see Fig. 1);
an upper body user support frame (handrail 70, Fig. 1) adapted to support the upper body of the user standing on, or supported by, the inclined platform (“which the subject can grasp to prevent a total loss of balance” see the last two sentences of [0054]. By grasping with their hands to prevent a loss of balance, the upper body is supported); and
a base (frame 10, which includes rectilinear uprights 12, feet 14, and the unlabeled convex structure below slip-ring 28, see Figs. 1-3), coupled to the inclined platform (44, Fig. 1) via a coupling (rectilinear rod 40 and swivel joint 50, Fig. 3, Fig. 5), said coupling allowing relative orientation motion between the base and the inclined platform (swivel joint 50 allows the inclined platform to inclined relative to the base as seen in Fig. 3; “the outer socket and the inner ball articulate in one another … In this way, when the platform 44 is fitted around the rod 40, this platform may pivot freely about the inner ball 54 of the swivel joint 50.” See the last two sentences of [0041]), wherein the inclined platform (44) is angled relative to the base during movement of the inclined platform (see angle α in Fig. 3 relative to the horizontal plane);
the inclined platform (44) adapted to undergo a precession like motion (see Fig. 3 and para. [0054]: “when the off-center distance between the axes Z-Z and Z'-Z' is not zero, as in FIG. 3, the rotary motive movement R operates the platform 44 so that it describes an offcenter rotary travel about the axis Z-Z, while being tilted relative to a horizontal plane, the tilt α of the platform being the most marked in the plane P containing the axes Z-Z and Z'-Z'” see Fig. 3 and lines 1-7 of [0054], the offcenter rotary travel while tilted relative to horizontal produces a precession like motion) around a central point (a point on the platform that aligns with axis Z-Z, Fig. 3) so as to circumferentially move the user’s upper body when supported by the upper body user support frame (“when the platform is operated in an offcenter manner about the fixed axis, the subject’s body is mobilized by a centrifugal force in a circumferential direction coupled with a linear mobilization parallel to the plane of the platform, linked to the tilting of the latter” see the last two sentences of [0009]. See also lines 7-18 of [0054]. The user may grasp the upper body user support frame 70 during use “to prevent a total loss of balance,” see the last two sentences of [0054]), substantially through an arc around the central point (“the bodily axis of the subject corresponds generally to the axis 44A” see lines 7-10 of [0054] and see Fig. 3. The central point is a point of the platform along axis Z-Z, Fig. 3. Both the user and the platform move aligned with axis 44A, in an arc around central point Z-Z. “Axis 44A of the platform 44 also rotates about the axis Z-Z, according to the rotation R” see lines 17-18 of [0051]) with the user’s torso being offset at an angle (the angle of axis 44A, relative to the vertical axis Z-Z, Fig. 3) relative to a vertical axis through the base (axis Z-Z, Fig. 3).
Tudico additionally states that the upper body user support frame (70, Fig. 1) may take on various forms (see the last sentence of [0054]), but is silent regarding the upper body user support frame being rigid and attached to and mounted on the inclined platform and adapted to surround and support the upper body of the user standing on, or supported by, the inclined platform, the rigid upper body user support frame undergoing movement with the inclined platform, wherein the rigid upper body user support frame includes a back support adapted to support the torso of the user’s body in a substantially static position during movement of the inclined platform; with the user’s torso being supported by the back support.
Chang teaches a related tilting platform device (see Figs. 1-3C) for activating spinal muscles (device for training musculature surround the spine by causing a reflexive movement for the user based on the body’s sense of balance for maintaining posture, see all of [0002]) including an upper body user support frame (circular safety bar 43, and belt 46 form the upper body user support frame, see Fig. 2a. This is considered an upper body user support frame because “belt 46 is configured to surround the user’s waist,” see lines 16-17 of [0030] and thus the circular safety bar 43 is positioned above the user’s waist. Furthermore, the user grips the safety bar 43, see lines 1-4 of [0031]) attached to and mounted on the inclined platform (the safety bar 43 and belt 46 are attached and mounted on the inclined platform via stationary bar 44 and movable bar 45, see Figs. 2a-2b; bar 44 is “fixedly coupled to a rear surface of the rolling plate 33,” see lines 1-3 of [0030]. The plate 33 is an inclined platform, see Figs. 3a-3c) and adapted to surround and support the upper body of the user standing on, or supported by, the inclined platform (circular bar 43 is above the waist belt 46 and thus adapted to surround and supports the user’s body above the waist (i.e., upper body) and the user is also able to grip bar 43 for additional support, see Fig. 2a, and lines 1-4 of [0031]). The upper body user support frame (43, 46, Fig. 2a) undergoing movement with the inclined platform (due to bar 44 being fixedly attached to the rear surface of the inclining platform 33, Figs. 2a-2b, the upper body user support frame will undergo the same movements as the platform 33 in Figs. 3a-3c). The upper body user support frame (43, 46, Fig. 2a) includes a back support (semi-circular support 451, Fig. 2b. This is positioned to be worn at the rear of the waist belt 46 as seen in Fig. 2b, and thus configured to support the lower back) adapted to support the torso of the user’s body (support 451 is configured to support the lower back as it is to be worn at the rear of the waist belt, see the last sentence of [0030]) in a substantially static position during movement of the inclined platform (the back support 451 is “to more efficiently prevent the user’s shaking” and due to the belt 46 fastening the waist to the bar(s) 44, 45, the user will remain substantially static relative to the inclined platform); with the user’s torso being supported by the back support (semi-circular support 451 is to be worn against the lower back, see Fig. 2b and the last sentence of [0030]). This upper body support frame provides a safer environment for balance training by surrounding the user with the circular safety bar (43, Figs. 2a-2b, thus providing a predictable result of helping to prevent a fall) and the “user can be more stably supported by the securing unit 40 by gripping the safety bar 43” (see the second sentence of [0031]). The upper body support frame is also advantageous because it is adjustable to conform to the body size of the user (via belt parts 461, 462, and height adjustment of movable bar 45, see lines 5-7 of [0030] and the penultimate sentence of [0030]).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the upper body support frame of Tudico to be attached to and mounted on the inclined platform and adapted to surround and support the upper body of the user and to include a back support adapted to support the torso of the user’s body as taught by Chang because this provides a predictable result of a safer environment for balance training by surrounding the user with the circular safety bar (43) and allowing the user to be more stably supported by gripping the safety bar (see the second sentence of [0031] of Chang), while also being adjustable to conform to the body size of the user (see lines 5-7 of [0030] of Chang).
The modified Tudico/Chang does not specifically state that the upper body user support frame is rigid.
Gehris teaches a related balance training platform (Fig. 1) with an upper body user support frame (“The hand rail 30 may be height-adjustable via supports 40, 42, 44, 46 … [and] a patient can be completely surrounded by hand rail 30” see Fig. 1 and the first two sentences of [0025]. It is noted that reference character “30” does not appear in Figure 1, but it is clear from paragraph [0025] that it is the substantially oval shaped support with latch 32 and hinge 34) that is rigid (“Hand rail 30 may include ergonomically-designed padding around an aluminum or metal support” see the last sentence of [0025], and additionally note that the height-adjustable vertical supports 40, 42, 44, 46, are likewise stated to be “telescoping metal, for example, aluminum rods” see the first sentence of [0022]). One of ordinary skill in the art would recognize that metal or aluminum rods are rigid, and strong enough to be suitable for the intended purpose of providing a support frame for the user to grip to assist their balance and prevent them from falling off the platform (see lines 1-4 of [0023]).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the material of the upper body user support frame of Tudico/Chang to include a rigid metal or aluminum as taught by Gehris because such a material selection would be expected to be strong enough to help support at least part of the user’s weight and thus be suitable for the user to grip to assist their balance and prevent them from falling off the platform.
Regarding claim 48, the modified Tudico/Chang/Gehris device discloses wherein: said inclined platform (44, Tudico) includes a first circumferential rim (downward extending foot 60, Fig. 3 of Tudico, is positioned near the circumference of the platform 44); said system further includes: a roller bearing (shoe 62, Fig. 3, which “rests in a sliding manner” against discal element(s) 64, see the first sentence of [0044] of Tudico, and moves “in a substantially circular trajectory” 68 as stated in the last sentence of [0051] and Fig. 7 of Tudico. This sliding movement in a circular trajectory reads on a roller) for rolling (moving in a circular trajectory) along the first circumferential rim (the shoe(s) 62 are positioned along the first circumferential rim 60, and roll in a circular trajectory against discal elements 64, see Fig. 3 and Fig. 7 of Tudico. Thus, they roll along (adjacent) the first circumferential rim 60, even though the rolling is against discal element(s) 64) and the roller bearing (62) being driven around (near) the first circumferential rim (60) in a substantially horizontal plane by a drive motor (motor 20, Fig. 2 of Tudico. Motor 20 has a vertical output shaft 26 that causes the entire platform 44 to rotate R; see the last seven lines of [0032] and the first two lines of [0053] of Tudico. This rotation R causes the rim 60 to move in a substantially horizontal plane, see Fig. 3); the roller bearing (62) acting to guide a portion of the first circumferential rim (60) to which it is engaged in a first substantially horizontal level (the bearing 62 slides along discal element 64 in a circular trajectory as discussed above, which subsequently guides the tilting movement of the associated first circumferential rim 60 to which bearing 62 is engaged in a first substantially horizontal level, see Fig. 3 of Tudico, the shoe 62 is engaged with rim 60 at the distal bottom of rim 60. The bottom of 60 is a substantially horizontal level); and the angle of inclination of the inclined platform thereby being set by the roller bearing (62) [acting to] guide the portion of the first circumferential rim (60; “Since this platform rests via these shoes 61 on the surfaces 64A of the discal elements 64, this translational movement causes the platform to tilt so that the latter forms a non-zero angle α with the horizontal in the plane of FIG. 3” see lines 4-8 of [0051] of Tudico, the sliding, circular trajectory of 62 guides the tilting of the platform 44 to which rim 60 is attached) and the coupling (rod 40 and swivel joint 50, Fig. 5 of Tudico) between the base and the inclined platform (the coupling 40, 50 allows the platform 44 to pivot, see the last two sentences of [0041] of Tudico. Thus, the coupling helps to set the angle of inclination of platform 44 in conjunction with the bearing(s) 62 and discal elements 64).
Regarding claim 49, the modified Tudico/Chang/Gehris device discloses wherein said base (frame 10, which includes rectilinear uprights 12, feet 14, and the unlabeled convex structure below slip-ring 28, see Figs. 1-3 of Tudico) is coupled to the inclined platform (44, Tudico) by a universal joint (swivel joint 50, Fig. 5 of Tudico. This is a universal joint because its inner ball 54 can “pivot freely in all directions” thus allowing universal motion as it connects shaft 40 to plate 44 to tilt at a relative incline, see the last two sentences of [0041]).
Regarding claim 50, the modified Tudico/Chang/Gehris device discloses wherein, during operation, the inclined platform (44, Fig. 3 of Tudico) is substantially supported by said first circumferential rim (foot 60, Fig. 3 of Tudico) and said universal joint (the platform 44 is supported by universal joint 50 and by foot 60 as seen in Fig. 3 of Tudico).
Regarding claim 51, the modified Tudico/Chang/Gehris device discloses wherein the angle of inclination of the inclined platform (44) is altered through the raising or lowering of the universal joint (50, Fig. 3, Fig. 5 of Tudico. At least the socket 52 of the universal joint 50 is raised or lowered based upon being tilted such as seen in Fig. 5 of Tudico. For example, in Fig. 4 the socket 52 is substantially level, but then universal joint 50 is moved horizontally due to actuator 32 moving carriage 38 as seen in Figs. 3-4, and at least part of the socket 52 is raised and part of the socket 52 is lowered in accordance with the tilt as seen in Figure 5 of Tudico) between the base and the inclined platform (joint 50 is located between the base and the inclined platform 44).
Regarding claim 52, the modified Tudico/Chang/Gehris discloses wherein said inclined platform (44, Fig. 3 of Tudico) is generally planar (it is flat as seen in Fig. 4) and a normal axis to the inclined platform (axis 44A, Fig. 3 of Tudico) undergoes a rotation around the central point (The central point is a point of the platform along axis Z-Z, Fig. 3 of Tudico. Axis 44A rotates around this central point “the axis 44A of the platform 44 also rotates about the axis Z-Z, according to the rotation R” see lines 17-18 of [0051] of Tudico).
Regarding claim 57, the modified Tudico/Chang/Gehris device discloses further comprising: an automated platform driving means (motor 20, motor 32, Figs. 2-3 of Tudico; which may be automated by predetermined control programs, see lines 1-3 of [0056]. This is at least a corresponding equivalent of the disclosed 112(f) automated platform driving means because the motors are controllable by predetermined programs to drive the platform to tilt in an automated manner) for driving the inclined platform (44, Tudico) through its motion (see lines 1-8 of [0055] of Tudico).
Regarding claim 58, the modified Tudico/Chang/Gehris device discloses wherein said automated platform driving means comprises an electric motor (“electric motor 20,” Fig. 2; see line 13 of [0032] of Tudico) interconnected (via vertical output shaft 26, Fig. 3) to a rotational plate (“rectilinear horizontal bar 30 …bar 30 also rotates about [axis Z-Z]” see Fig. 3 and lines 1-7 of [0033] of Tudico) having a series of circumferential bearings (discal bearing means 64 are arranged in a circumferential manner as seen in Fig. 6 of Tudico) which engage with (via feet 60 and shoes 62, Fig. 3, Fig. 6 of Tudico) the inclined platform (44) to drive the motion of the inclined platform (see all of para. [0048] of Tudico).
Regarding claim 59, the modified Tudico/Chang/Gehris device discloses wherein the inclined platform (44, Tudico) does not substantially (i.e., not primarily) rotate around a vertical axis during operation (the platform 44 is tilted relative to a horizontal plane such as by angle α, see the operation in Fig. 3 and lines 1-7 of [0054]. The platform defines a central “axis of revolution 44A” see lines 1-2 of [0039] and thus performs substantially the same precession like movement about a central point as in the instant invention. The motion of the axis 44A is offset from the vertical axis during operation in Fig. 3 and thus the rotation is not substantially around a vertical axis because the tilted axis 44A is not aligned with the vertical axis).
Regarding claim 78, the modified Tudico/Chang/Gehris device discloses wherein the user’s torso is held against or secured to the back support in the substantially static position when supported by the back support (the waist is part of the torso, and the user’s waist is held against or secured to the back support 451 via belt 46 being fastened, see Fig. 2b and lines 16-22 of [0030] of Chang).
Regarding claim 79, the modified Tudico/Chang/Gehris device discloses wherein said rigid upper body user support frame (43, 46, Fig. 2a of Chang, as modified by Gehris to include rigid materials) further includes at least one upper limb support (circular safety bar 43, Figs. 2a-2b of Chang) positioned for the user to grasp and push or pull in order to hold the user’s torso against the back support (“The user can be more stably supported by the securing unit 40 by gripping the safety bar 43” see lines 3-4 of [0031] of Chang. The circular bar is positioned to be gripped by the user, and this bar 43 is configured to perform the function because it is up to the user to decide whether to push or pull against the bar to hold themselves against the back support 451, Fig. 2b).
Regarding claim 80, the modified Tudico/Chang/Gehris device discloses wherein the rigid upper body user support frame (43, 46, Fig. 2a of Chang, as modified by Gehris to include rigid materials) is adapted to receive at least one strap (belt 46, Figs. 2a-2b of Chang) for securing the user’s torso to the back support (the belt fastens the user’s waist to the back support 451, see Figs. 2a-2b and lines 16-17 of [0030] of Chang).
Regarding claim 81, the modified Tudico/Chang/Gehris device discloses wherein said rigid upper body user support frame (43, 46, Fig. 2a of Chang, as modified by Gehris to include rigid materials) is mounted off-center (mounted via stationary bar 44 and movable bar 45, Figs. 2a-2b of Chang) relative to a central point of the inclined platform (the frame is mounted off-center via 44, 45, at an outer edge of the platform 33 as seen in Figs. 2a-2b of Chang).
Regarding claim 82, the modified Tudico/Chang/Gehris device disclose further comprising a support stem (the stationary bar 44, movable bar 45, and adjusting holes 441 are collectively considered the “support stem”, see Figs. 2a-2b and lines 5-13 of [0030] of Chang) coupled with the rigid upper body user support frame (the circular safety bar 43 and belt 46 are connected to movable bar 45, see Figs. 2a-2b of Chang) that is mounted on an outer edge of the inclined platform (bar 44 is mounted at an outer edge of the platform 33 as seen in Figs. 2a-2b of Chang).
Regarding claim 83, the modified Tudico/Chang/Gehris device discloses wherein the support stem (44, 45, 441, Figs. 2a-2b of Chang) is mounted substantially perpendicular to the inclined platform (bars 44, 45, extend substantially vertically, in a perpendicular manner from the platform as seen in Figs. 2a-2b of Chang) such that the user’s upper body is supported in a substantially upright position (the user’s waist is fastened in belt 46, Figs. 2a-2b of Chang, and this will keep the user in a substantially upright position).
Claims 53-54 are rejected under 35 U.S.C. 103 as being unpatentable over Tudico (2010/0222187) in view of Chang et al. (2008/0161169) and Gehris Jr. (2011/0212814) as applied to claim 47 above, and further in view of Inada (4,746,116).
Regarding claim 53, the modified Tudico/Chang/Gehris device discloses wherein said rigid upper body user support frame (43, 46, Figs. 2a-2b of Chang) further includes at least one handhold for the user to hold on to during operation (the bar 43 can be gripped by the user, see lines 3-4 of [0031] of Chang), but is silent regarding a plurality of hand holds.
Inada teaches a related exercising device with a movable platform (platform 4, see Fig. 1) including a rigid upper body user support frame (vertical frame structure 3, Fig. 1, formed of socket and spigot pipes bolted together, see col. 2, lines 50-58) attached to and mounted on the platform (see Fig. 1 and col. 2, lines 44-47; col. 4, lines 8-12) and adapted to surround and support the back of the user standing on, or supported by, the platform (see Fig. 8), and the upper body user support frame (3) undergoing movement with the platform (see col. 2, lines 44-47). The upper body user support frame includes a plurality of hand holds (U-shaped hand grips 34, 34, and the front handle 35, Figs. 7-8) for the user to hold on to during operation (see Fig. 8).This provides an expected result of further surrounding the user to prevent inadvertently falling out of the apparatus, and allowing the user to grasp or lean on a variety of different parts of the surrounding frame for balance or assistance while performing their desired exercise (see col. 4, lines 35-38, Fig. 8).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the circular safety bar (43, Chang) of the rigid upper body user support frame of Tudico/Chang/Gehris to include a plurality of hand holds as taught by Inada because this is a combination of prior art elements (adding the U-shaped hand grips 34) according to known methods (fastening the U-shaped grips 34 to a substantially horizontal bar 35, 35, which corresponds to safety bar 43 of Chang) to yield predictable results (the user will have additional hand hold locations to choose from and thus be able to grasp the hand hold that is most comfortable while performing the exercise). Thus, the modified rigid upper body support frame improves safety and convenience of the user.
Regarding claim 54, the modified Tudico/Chang/Gehris/Inada device discloses wherein said rigid upper body user support frame (43, 46 of Chang, as modified by Gehris to include rigid materials and as modified by Inada to include U-shaped hand grips 34, 34) further includes lower arm holds adapted to structurally support the user’s lower arms (the portion of horizontal handle 35 that is underneath each “U” shaped grip 34, is adapted to, i.e., capable of supporting the user’s lower arms if they choose to place a portion of their forearms against this support. See Figs. 7-8 of Inada and note that the horizontal handle 35 corresponds to the circular safety bar 43 of Chang).
Response to Arguments
Applicant's arguments filed August 11, 2025, have been fully considered but they are not persuasive.
Regarding the argument that existing machines cannot (i) support the torso of the user in a substantially static position, which is offset at an angle relative to a vertical axis through the base, and (ii) cause the torso to undergo circumferential movement at substantially the same offset angle during precession like motion of the inclined platform (see the first three paragraphs of page 12 of the Remarks), this argument is not persuasive. Tudico (2010/0222187) causes a user’s torso to undergo the same type of circumferential movement (“when the platform is operated in an offcenter manner about the fixed axis, the subject’s body is mobilized by a centrifugal force in a circumferential direction coupled with a linear mobilization parallel to the plane of the platform, linked to the tilting of the latter” see the last two sentences of [0009]. See also lines 7-18 of [0054]), and Chang et al. (2008/0161169) teaches an upper body user support frame that helps to support the torso in a substantially static position relative to a tilting platform (see the claim 47 rejection statement above).
Regarding the argument that existing exercise machines cannot provide substantially uniform circumferential movement of the user’s torso off-axis relative to gravity (see the penultimate paragraph of page 12 of the Remarks), this argument is not persuasive. First, it is noted that the features upon which applicant relies (i.e., “substantially consistent and uniform circumferential movement of the user’s torso off-axis relative to gravity”) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Furthermore, it is noted that Tudico does provide substantially uniform circumferential movement of the user’s torso off-axis relative to gravity (see the last two sentence of [0009] and lines 7-18 of [0054]).
Regarding the argument that Arnold provides no disclosure or teaching as to the configuration of a “handlebar assembly” and thus it is unclear how Arnold’s disclosure would enable one of ordinary skill to modify the location of the handrail 20 of Fig. 2 of Arnold to be relocated to be attached and mounted on the inclined platform as allegedly taught by Arnold (see the first two paragraphs of page 13 of the Remarks), this argument has been considered, but it is moot because Arnold is not relied upon in any of the current rejection(s). However, it is noted that Arnold specifically teaches “support pole 303 can upwardly extend from the oscillating platform 23 … form the center or else wise” (col. 14, lines 16-18). Thus, providing an upper body support (such as support pole 303) attached to and mounted on the inclined platform is clearly enabled by Arnold.
Regarding the argument that Arnold’s Fig. 29 refers to an upwardly extending support pole 303 which is centrally located, but not equivalent to the claimed rigid upper body support frame of the claimed invention that would maintain stability of the user’s torso in a substantially static position during movement (see the last paragraph of page 13 of the Remarks), this argument has been considered, but it is moot because Arnold is not relied upon in any of the current rejection(s). However, it is noted that Arnold specifically states the support pole extends upwardly from the oscillating platform 23 “from the center or else wise” (col. 14, lines 16-18), and Arnold was additionally modified by Inada to teach an upper body support frame that would be able to maintain stability of the user’s torso relative to the platform.
Regarding the argument that the role of the handrail 20 of Arnold or support pole 303 is to allow the user to maintain an upright position during rotation of the platform, and it is not clear why one of ordinary skill would replace Arnold’s body support frame with the frame structure 3 of Inada for the user to lean against the padded horizontal handle 35 during exercise because there would be no motion of the oscillating platform 23 and Arnold requires movement of the user’s body to initiate motion of the oscillating platform (see the last paragraph of page 14 of the Remarks, through the first full paragraph of page 15), this argument has been considered, but it is moot because Arnold is not relied upon in any of the current rejection(s). Additionally, it is unclear why Applicant believes leaning against handle 35 of Inada would restrict movement of the user’s feet. A person can lean against an object and still move their feet and/or transfer pressure between the soles of the feet.
Regarding the argument that Inada clearly teaches that the user’s feet are fixed in place on the platform 4 and not intended to be moved in order to perform the swinging exercise (see the last paragraph of page 15 of the Remarks, through the first paragraph of page 16), this argument has been considered, but it is moot because Arnold is not relied upon in any of the current rejection(s). Furthermore, to any extent that this argument would apply to the Tudico/Chang/Gehris/Inada rejection of claims 53-54, it is noted that Tudico does not rely on the user’s feet to drive the motion of its platform. Furthermore, the current rejection(s) only rely upon Inada for the feature of additional hand holds (34, 34, Fig. 7 of Inada).
Regarding the argument that Arnold has no use for the frame structure 3 with padded horizontal handle 35 as taught by Inada and the proposed modification would render Arnold inoperable as the user’s motion would be restricted when resting their back against handle 35 (see the second paragraph of page 16 of the Remarks), this argument has been considered, but it is moot because Arnold is not relied upon in any of the current rejection(s). Additionally, it is unclear why Applicant believes leaning against handle 35 of Inada would restrict movement of the user’s feet. A person can lean against an object and still move their feet and/or transfer pressure between the soles of the feet.
Regarding the argument that the proposed combination of Arnold and Inada was only suggested in light of the teachings of the present invention, and thus the Office Action applied impermissible hindsight in formulating the rejection(s) (see the third paragraph of page 16 of the Remarks), this argument has been considered, but it is moot because Arnold is not relied upon in any of the current rejection(s). Furthermore, in response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Regarding the argument that neither Arnold nor Inada disclose or suggest the features of amended claim 47 (see the last paragraph of page 16 of the Remarks, through the second paragraph of page 17), this argument has been considered, but it is moot because Arnold is not relied upon in any of the current rejection(s) and Inada was not relied upon for any of the argued features.
Regarding the argument that one of ordinary skill would not modify Arnold to include the limitations of amended claim 47 because restricting movement of the user’s torso would prevent motion of Arnold’s platform (see the third and fourth paragraphs of page 17 of the Remarks), this argument has been considered, but it is moot because Arnold is not relied upon in any of the current rejection(s).
Regarding the argument that restricting movement of the user’s body would not provide “a more stimulating and enjoyable experience of exercising” required by Arnold, and in fact the proposed modification would result in the user being in a static position and not moving during the exercise and thus Arnold teaches away from the present invention (see the last paragraph of page 17 of the Remarks through the first paragraph of page 18), this argument has been considered, but it is moot because Arnold is not relied upon in any of the current rejection(s).
Regarding the argument that Inada’s user’s torso can move between the horizontal handles 35, and there is no requirement that the user’s torso be supported by a back support in a substantially static position during movement of the platform (see the second paragraph of page 18 of the Remarks), this argument is not persuasive. The pending claims are apparatus claims, not method claims. As such, the instant claims do not require the user’s torso to be in a substantially static position during movement of the platform. Furthermore, the upper body user support frame taught by Chang would keep the user’s torso in a substantially static position relative to the platform due to the belt (46) fastened to the user while the support frame moves with the platform (via attachment of bar 44, Figs. 2a-2b of Chang).
Regarding the argument that Inada is only concerned with fixation of the user’s feet on the platform during exercise, and even if the user’s torso was fixed on the padded horizontal handle 35 of Inada, it is not clear how the user would effect the swinging action required by Inada (see the third paragraph of page 18 of the Remarks), this argument is not persuasive. It is noted that Tudico does not rely on the user’s feet to drive the motion of its platform. Furthermore, the current rejection(s) only rely upon Inada for the feature of additional hand holds (34, 34, Fig. 7 of Inada).
Regarding the argument that if Inada’s user adopted a substantially static position, then no movement or swinging action would occur so Inada teaches away from the present invention which requires the user’s torso to be supported in a substantially static position during exercise (see the third paragraph of page 18 of the Remarks), this argument is not persuasive. First, it is reiterated that the pending claims are apparatus claims, not method claims. As such, the instant claims do not require the user’s torso to be in a substantially static position during exercise. Second, a “teaching away” requires a reference to actually criticize, discredit, or otherwise discourage investigation into the claimed solution. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Furthermore, it is noted that "[w]e will not read into a reference a teaching away from a process where no such language exists." DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006).” In the instant case, there is no language in Inada that actually criticizes, discredits, or discourages the use of an upper body user support frame that is attached to and mounted on an inclined, movable platform.
Regarding the argument that Arnold and Inada do not disclose that the torso undergoes circumferential movement at substantially the same offset angle during precession like motion of the inclined platform and accordingly, Arnold and Inada cannot achieve the same beneficial effects (see the last paragraph of page 18 of the Remarks), this argument has been considered, but it is moot because Arnold is not relied upon in any of the current rejection(s). Furthermore, Tudico does cause a user’s torso to undergo the same type of circumferential movement (“when the platform is operated in an offcenter manner about the fixed axis, the subject’s body is mobilized by a centrifugal force in a circumferential direction coupled with a linear mobilization parallel to the plane of the platform, linked to the tilting of the latter” see the last two sentences of [0009]. See also lines 7-18 of [0054]).
Regarding the argument that the dependent claims are patentable at least by virtue of their dependency on claim 47 (see page 19 of the Remarks), this argument is not persuasive because claim 47 is rejected.
Regarding the argument that new claims 78-83 are non-obvious in view of Arnold, Inada, Miller, Perry, Chen and Tudico and due to their dependency on claim 47 (see the last paragraph of page 19 of the Remarks, through the first paragraph of page 21), this argument has been considered, but it is moot because Arnold is not relied upon in any of the current rejection(s). Furthermore, claim 47 is rejected and Chang et al. (2008/0161169) discloses the limitations of new claims 78-83.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. VanBuren (2010/0285941) discloses a related perturbation oscillating platform for reactive balance training and therapy.
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/CHRISTOPHER E MILLER/ Examiner, Art Unit 3785