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 .
Priority
Acknowledgement is made of Applicant’s claim for foreign priority to IT102021000007334 filed 25 March 2021. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Election/Restrictions
Applicant’s election without traverse of Invention II drawn to an exercise machine (claims 10-19) in the reply filed on 22 July 2024 is acknowledged. Claims 1-9 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Response to Amendment
The claim objections have been obviated in view of Applicant’s amendments filed 17 March 2026.
The rejections of claims 10-12 and 14-15 under 35 U.S.C. 112(b) have been obviated in view of Applicant’s amendments filed 17 March 2026 and are withdrawn.
Claims 1-9 are withdrawn as being drawn to a nonelected invention. Claims 13 and 16-19 have been canceled.
Claims 1-12 and 14-15 are still pending. Claims 10-12 and 14-15 are examined on the merits as follows.
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 data processing unit” in claim 10 is interpreted as including “a microprocessor or microcontroller” as described in paragraph [0036] of the specification, and equivalents thereof. The limitation meets the three-prong test as follows:
the generic place holder is “unit;”
the functional language is “data processing;” and
the generic place holder of “unit” is not modified by sufficient structure, material, or acts for performing the claimed function.
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 § 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 10-12 and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Bleich et al. (WO 2013/028581, hereinafter Bleich, a copy of which was provided with the Non-Final Rejection mailed 25 October 2024) in view of EoSFitness (NPL, a copy of which is provided with this office action) further in view of Gillies et al. (US 2014/0046121, hereinafter Gillies).
Regarding claim 10, Bleich teaches a strength exercise machine (Para. [0234]: “In alternative embodiments, methods and systems of this disclosure can be used to improve the potential benefit and safe use of exercise machines or equipment such as, for example, treadmills Fig. 48C, stationary bicycling equipment Fig. 48B, elliptical trainers Fig. 48A, stair steppers Fig. 48E, rowing machines Fig. 48F, weight lifting, resistance exercise equipment, and push up or pull up exercise equipment.” Each of the listed exercise machines are used to build a user’s strength and are thus considered strength exercise machines.) comprising:
a user interface (user interface 370) configured to allow a user to interact with the strength exercise machine (Fig. 50);
a data processing unit (microprocessor 354), the user interface being operatively connected to the data processing unit (Fig. 50); and
a memory unit (data storage 356) operatively connected to the data processing unit (Fig. 50);
the data processing unit of the strength exercise machine being configured to:
acquire at least one parameter representative of a physical exercise being performed by the user with the strength exercise machine, including detecting, by an optical sensor or an accelerometer, an eccentric phase and a concentric phase of a movement of the user while the user is performing the physical exercise ( Para. [0140]: “Sensor 70 may comprise accelerometer(s); … proximity, acoustic, optical, or pressure sensors; … or other MSK activity sensors well known to practitioners of the art.” Para. [0234]: “The exercise machines can be designed to track MSK movement (e.g., treadmill foot strike timing, bike pedal cadence and/or torque and timing, elliptical foot, leg, or arm motion). For example, timing of skeletal muscle contraction can be sensed via magnetic or light based switches, via pressure sensors, or via one or more of a myriad of other standard sensors that can be located on or in the machines. Alternatively, pressure or stretch sensors worn in contact with the peripheral skeletal muscle (e.g., using straps around muscle of limbs) can be used to identify the timing of skeletal muscle contraction and MSK movement. Other ways MSK movement might be tracked include: … via monitoring individual or multiple muscle EMG activity.” MSK is defined as “musculoskeletal” in paragraph [0030]. Fig. 50 shows wherein MSK signals from the sensors 342, 350 are in communication with the microprocessor 354. The MSK signals and movement is acquired by the exercise machine and is representative of the exercise being performed. These movements must be tracked while a person is actively performing an exercise. The exercise machine is configured to track the timing of skeletal muscle contraction and MSK movement which would be indicative of eccentric and concentric muscle movements. Eccentric and concentric muscle movements can also be detected using EMG activity.);
determine an indication of breathing to be followed by the user while performing the physical exercise based on the acquired at least one parameter representative of the physical exercise (Fig. 5. Para. [0144]: “Many factors 97 can contribute to identifying an overall "target rate" 96, from which the associated … respiratory rate 94 can be identified. The relevant factors 97 can include but are not limited to: population data 98, personal physiologic data (physiologic attributes of the user) 100, (e.g. age, height, weight, fitness, etc), the specific physical activity involved 102, stored or sensed information on performance goals (e.g. endurance training, warm-up, cool-down, training, racing, etc.) 104, personal preferred (and/or maximum) HR 106 and MSK cadence 108, personal exercise history, individual competition, etc.” The MSK movements/signals indicate the specific physical activity which contributes to determining the target respiratory rate. The relevant factors include sensed information including warm-up and cool-down acquired from the user during exercise. Para. [054]: “Accordingly, the methods and systems of the current disclosure can be further configured to identify the user's optimal timing empirically based on the individual's current conditions and/or the nature of their movements.”); and
provide the user with a determined indication of the breathing to be followed by the user while the user is performing the physical exercise with the strength exercise machine, (Para. [0235]: “The data derived from the MSK activity sensors can be leveraged to provide visual, auditory or tactile feedback to the user.”),
the strength exercise machine further comprising a display module operatively connected to the data processing unit, the determined indication of the breathing to be followed by the user comprising a graphic representation viewable through the display module of the strength exercise machine, the data processing unit being configured to display the determined indication of the breathing to be followed by the user in the form of the graphic representation through the display module of the strength exercise machine (Para. [0139]: “the feedback 68 can comprise a visual graphic display that guides the user to adjust the cadence and/or and timing of their activity.” Para. [0206]: “Additional processed results from microprocessor 354 (e.g., aHR, MSKcj), visual feedback cues, etc.) can be sent to wireless I/O 364 and/or wired I/O 358 for external control and/or feedback devices, external data and/or graphical display via user interface 370.”).
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Bleich does not expressly teach wherein the indication of the breathing is a function of the detected eccentric phase and the detected concentric phase of the movement of the user; and wherein the indication of the breathing includes a first breathing phase corresponding to the eccentric phase and a second breathing phase corresponding to the concentric phase, wherein the first breathing phase includes inhaling during eccentric movement of the user and the second breathing phase includes exhaling during concentric movement of the user.
However, in a similar field of endeavor, EoSFitness discusses “How Proper Breathing Techniques Can Improve Your Workout” wherein it teaches to “exhale during the challenging part of the movement (the concentric phase), and then inhale as you finish the movement (the eccentric phase).” The preferred breathing technique is a function of the concentric and eccentric phases of a user’s movement where a user exhales on the concentric phase and inhales on the eccentric phase.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the machine of Bleich by specifying the indication of breathing as a function of the eccentric phase and concentric phase; wherein the first breathing phase corresponding to the eccentric phase includes inhaling and the second breathing phase corresponding to the concentric phase includes exhaling, as taught by EoSFitness. One of ordinary skill in the art would have been motivated to make this modification in order to “improve your cardio endurance, help you lift heavier weights, improve your speed, help you recover more quickly, burn more fat during your workout, help you expel CO2 more efficiently, [and] make your workout more enjoyable,” as suggested by EoSFitness.
Bleich in view of EoSFitness still does not expressly teach the graphic representation comprising an indicator (dot 26), an animation of which helps the user follow the first breathing phase and the second breathing phase, the indicator appearing on a time pattern displayed as a sine curve and changing a position of the indicator, during the animation, with respect to the sine curve, the ascending phase of which is an inhaling phase and the descending phase of which is an exhaling phase, indicating to the user to follow the first breathing phase including inhaling corresponding to the ascending phase of the sine curve and to follow the second breathing phase including exhaling corresponding to the descending phase of the sine curve.
However, in a similar field of endeavor, Gillies teaches an indication of a breathing to be followed by a user comprising a graphic representation, the graphic representation comprising an indicator, an animation of which helps the user follow the first breathing phase and the second breathing phase, the indicator appearing on a time pattern displayed as a sine curve and changing a position of the indicator, during the animation, with respect to the sine curve, the ascending phase of which is an inhaling phase and the descending phase of which is an exhaling phase, indicating to the user to follow the first breathing phase including inhaling corresponding to the ascending phase of the sine curve and to follow the second breathing phase including exhaling corresponding to the descending phase of the sine curve (Figs. 3-4. Para. [0041]: “The session may be composed of a period where one image is shown on the display unit and the breathing pattern is monitored and displayed. Such an image is illustrated in FIG. 2. A sine, or cosine, wave 22 is illustrated with one dot 24 illustrating the current breathing rate of the patient and one dot 26 illustrating the target breathing rate of e.g. 6 breaths per minute.” Para. [0047] discusses wherein an inhalation period is when a sympathetic reaction is triggered and an exhalation period is when a parasympathetic reaction is triggered. Fig. 4 shows wherein the sympathetic reaction/inhalation period is on an ascending phase of the sine curve and the parasympathetic reaction/exhalation period is on a descending phase of the sine curve.).
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the graphic representation of Bleich with the sine curve animation of Gillies. One of ordinary skill in the art would have been motivated to make this modification in order “to transmit to the display unit (12) a combination of the current physiological information and a target breathing rate,” as suggested by Gillies (Abstract), where the target breathing rate can be easily and intuitively followed during an exercise.
Regarding claim 11, Bleich in view of EoSFitness further in view of Gillies teaches the strength exercise machine of claim 10, further comprising an audio speaker operatively connected to the data processing unit, the determined indication of the breathing to be followed by the user comprising an audio message usable by the user through the audio speaker of the strength exercise machine, the data processing unit being configured to broadcast the determined indication of the breathing to be followed by the user in the form of the audio message through the audio speaker of the strength exercise machine (Bleich: Fig. 50. Para. [0206]: “Also shown on the left is a small speaker, such as an ear bud 340, for the user to receive audible feedback prompts for timing their activity in accordance to the present disclosure. … Feedback prompt information as determined by 354 are communicated to audio driver 360 for creating sounds delivered to the user via ear bud 340 or, optionally, via wireless audio output 362.”).
Regarding claim 12, Bleich in view of EoSFitness further in view of Gillies teaches the strength exercise machine of claim 11, wherein the audio speaker comprises a speaker or a hardware component configured to be operatively connected to a headset (earbud 340) with which the user is provided (Bleich: Fig. 50 shows the ear bud 340 connected to the system via a 3.5mm jack.).
Regarding claim 14, Bleich in view of EoSFitness further in view of Gillies teaches the strength exercise machine of claim 10, wherein the data processing unit is configured to directly acquire the at least one parameter representative of the physical exercise (Bleich: Fig. 50. The MSK movements/signals are sent directly and automatically to the microprocessor 354.).
Regarding claim 15, Bleich in view of EoSFitness further in view of Gillies teaches the strength exercise machine of claim 10, further comprising a sensor unit operatively connected to the data processing unit, the data processing unit being configured to acquire the at least one parameter representative of the physical exercise from the sensor unit configured to detect said at least one parameter representative of the physical exercise (Bleich: Fig. 50. Para. [0206]: “Shown to the left of system 338, are transducers for detecting the user's CC (a pair of ECG electrodes 344 to provide single lead operation, optionally a third ECG electrode 346, a PPG sensor 348 that can be used instead of or in addition to the ECG 344), and MSK signals (accelerometer 342; optional cadence switch 350 or other comparable device for use with external equipment for sensing the user's rhythmic activity, such as a crank sensor on a bicycle or magnetic switch on the rotor of an elliptical exercise machine).”).
Response to Arguments
Applicant’s arguments filed 17 March 2026 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant argues that Tzvieli teaches the opposite correspondence between the concentric and eccentric phases and the inhalation and exhalation period from what is recited in amended claim 10. The Office agrees; however, Applicant’s amendments have resulted in the new grounds of rejection made above wherein EoSFitness teaches the claimed correspondence.
Applicant further argues that none of Bleich, Tzvieli, nor Calm teaches an animated indicator that moves along a sine curve. The Office agrees; however, Applicant’s amendments have resulted in the new grounds of rejection made above wherein Gillies teaches the claimed animated indicator.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Catrina A Letterman whose telephone number is (303)297-4297. The examiner can normally be reached Monday - Thursday, 8am - 4pm MT.
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/C.A.L./Examiner, Art Unit 3784
/Megan Anderson/Primary Examiner, Art Unit 3784
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