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 .
Response to Amendment
The amendment filed 07/18/2025 has been entered. Applicant’s amendments to the Specification and Claims have overcome each and every objection previously set forth in the Non-Final Office Action mailed 03/18/2025.
Applicant’s filing of a terminal disclaimer has overcome the previously applied nonstatutory double patenting rejections and those rejections have been withdrawn.
Claims 9 and 19 have been cancelled.
Claims 21-22 are new.
Claims 1-8, 10-18, and 20-22 are currently pending and considered below.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged.
This application is a continuation of prior-filed US Application 16/783,825, filed on 02/06/2020 and issued as US Pat. 11,497,977 on 11/15/2022.
Prior-filed US Application 16/783,825 claims the benefit of as a continuation-in-part of prior-filed US Application 16/028,931, filed on 07/06/2018 and issued as US Pat. 10,918,925 on 02/16/2021, which claims the benefit of US Provisional Application 62/529,315, filed on 07/06/2017.
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994)
The disclosures of the prior-filed applications, US Application 16/028,931 and Provisional Application 62/529,315, fail to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. The limitations of claim 1 directed to the connection between the one or more actuators and the wall frame and/or the actuator support frame being adjustable, the first permitted range of incline angles, and the second permitted range of incline angles, are not supported by the disclosures of the prior-filed applications. Accordingly, claims 1-20 are not entitled to the benefit of these prior-filed applications.
Claim Objections
Claims 21-22 are objected to because of the following informalities:
Claim 21, line 2, “hydraulic liner actuator” should read ---hydraulic linear actuator---
Claim 22, line 2, “the first end of the actuator” should read ---the first end of each of the one or more actuators---
Appropriate correction is required.
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.
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.
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.
Claims 1-2, 4, 6-8, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Meissner (US Pat. 7,762,928, cited by Applicant in IDS filed 07/24/2023) and further in view of Schneider (Foreign Pat. Doc. DE102005063225A1, cited by Applicant in IDS filed 07/24/2023, additional translation provided with Non-Final Office Action mailed 03/18/2025).
Regarding independent claim 1, Meissner teaches an adjustable-incline climbing wall (10) comprising:
One or more climbing panels configured to provide a climbing surface (18);
A plurality of climbing grips affixed to the climbing surface (see outline of climbing grips in Figs. 1-2)
A wall frame (16) supporting the one or more climbing panels;
One or more linear actuators (telescoping diagonal support bars 20) configured to extend or retract to position the climbing surface at one of a plurality of incline angles (col. 4 lines 45-54, “The diagonal support bars may consist of lengthwise adjustable ends. One end may be comprised of a threaded male and female component and the other end may be comprised of a male and female telescoping component. The threaded end may be used for small adjustments and the telescoping end may be used for large adjustments. Adjustments are required to align the hinge system, to allow for different climbing angles of the entire framework structure, and to provide a universal product which can be used for more than one type of installation”);
wherein a first end of each of the one or more actuators is connected to an actuator support frame (26) and a second end of each of the one or more actuators is connected to the wall frame (see Fig. 1);
wherein each of the one or more actuators is movable between a first actuator attachment position and a second actuator attachment position by adjusting the first end of each of the one or more actuators along the actuator support frame (col. 7 lines 38-41, “the diagonal support bar 20, assist shocks 22, and actuators 24 are adjustably mounted to the tubular receivers 26 using various shaped couplings 27”);
wherein the one or more actuators are configured to position the climbing surface within a first range of incline angles when the one or more actuators is in the first actuator attachment position and a second range of incline angles when the one or more actuators is in the second actuator attachment position, the second range of incline angles being different from the first range of incline angles (first and second range of incline angles achieved by adjustable attachment of coupling 27 along tubular receivers 26 and by threaded coupling 40 and telescoping coupling 42 of diagonal support bars 20, see Figs. 3-4, see col. 4 lines 45-54).
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Meissner does not teach wherein each of the one or more actuators is movable between a first actuator attachment position and a second actuator attachment position by adjusting the second end of each of the one or more actuators along the wall frame and/or by adjusting an elevation of the first end of each of the one or more actuators relative to the ground surface.
Schneider teaches an analogous adjustable incline climbing wall (Fig. 1) comprising a wall frame (rails 6) and one or more actuators (support struts 8) that are movable between a first actuator attachment position and a second actuator attachment position by adjusting an end (19) of each of the one or more actuators along the wall frame (fourth full paragraph on page 7 of attached copy, “a sliding movable and pivotable connecting joint 19 is provided”; see arrow indicating movement of joint 19 along rail 6 in Fig. 2).
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It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the connection of the one or more actuators to the wall frame of Meissner to be slidably adjustable, as is similarly taught by Schneider, for the purpose of allowing increased adjustability of the climbing wall to facilitate a wider range of incline angles of the climbing surface.
Regarding claim 2, Meissner as modified by Schneider further teaches wherein each of the one or more actuators is movable between the first actuator attachment position and the second actuator attachment position by adjusting the second end of each of the one or more actuators along the wall frame, and
wherein adjusting the second end of each of the one or more actuators along the wall frame comprises sliding the second end of the respective actuator along a rail of the wall frame (see modification in view of Schneider above for claim 1, second end of each actuator will be slidable along a rail of the wall frame via sliding connection of joint 19).
Regarding claim 4, Meissner as modified by Schneider further teaches wherein each of the one or more actuators is movable between the first actuator attachment position and the second actuator attachment position by adjusting the second end of each of the one or more actuators along the wall frame, and
wherein the second end of each of the one or more actuators is attached to a movable element of the wall frame (see modification in view of Schneider above for claim 1, second end of each actuator will be slidable along a rail of the wall frame via sliding connection of joint 19, where joint 19 can be considered a movable element of the wall frame).
Regarding claim 6, Meissner as modified by Schneider further teaches wherein each of the one or more actuators is movable between the first actuator attachment position and the second actuator attachment position by adjusting the second end of each of the one or more actuators along the wall frame, and
wherein the second end of each of the one or more actuators is configured to be adjusted along the wall frame through an electronic control (see modification in view of Schneider above for claim 1, second end of each actuator will be slidable along a rail of the wall frame via sliding connection of joint 19, see second full paragraph on page 6 of attached copy, “it is provided that at least one handle support surface and / or at least one pivot joint and / or at least one support strut is assigned a particular electrically operable adjusting device. The adjusting device may for example be designed as an electrically driven geared motor”).
Regarding claim 7, Meissner as modified by Schneider further teaches wherein each of the one or more actuators is movable between the first actuator attachment position and the second actuator attachment position by adjusting the second end of each of the one or more actuators along the wall frame, and
wherein the second end of each of the one or more actuators is configured to be adjusted along the wall frame automatically as the incline angle of the climbing surface is adjusted (see modification in view of Schneider above for claim 1, second end of each actuator will be slidable along a rail of the wall frame via sliding connection of joint 19, see second full paragraph on page 6 of attached copy, “a substantially automatic assembly and disassembly of the climbing wall can be realized. In a preferred embodiment of the invention, adjusting devices are provided on a plurality of handle support surfaces and on the pivot joints and are coupled to a control device. The control device makes it possible to influence the adjustment devices such that predefinable end positions of the grip support surfaces and of the profile rails relative to the support brackets are adjustable so that predefinable climbing tasks can be simulated without great adjustment effort”).
Regarding claim 8, Meissner as modified by Schneider further teaches wherein the adjustable-incline climbing wall is configured such that the incline angle of the climbing surface is adjusted through an electronic control (see second full paragraph on page 6 of attached copy of Schneider discussing control device for automatically adjusting the incline angle by slidably moving joint 19).
Regarding claim 22, Meissner as modified by Schneider further teaches wherein the actuator support frame (26) supports the first end of the actuator (20) in a raised position relative to a ground surface on which the actuator support frame rests (see Meissner Fig. 1, first end of each telescoping diagonal support bar 20 connected to tubular receivers 26 by couplings 27 is held in a raised position relative to the ground surface).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Meissner (US Pat. 7,762,928, cited by Applicant in IDS filed 07/24/2023) in view of Schneider (Foreign Pat. Doc. DE102005063225A1, cited by Applicant in IDS filed 07/24/2023), and further in view of Brendle (US Pat. 9,132,330, cited by Applicant in IDS filed 07/24/2023).
Regarding claim 3, Meissner as modified by Schneider teaches wherein the second end of each of the one or more actuators is slidable along the wall frame (see rejection above for claims 1 and 2), but does not teach wherein one of the second end of the respective actuator and the wall frame comprises a slot and the other of the second end of the respective actuator and the wall frame comprises a projection that slides within the slot.
Brendle teaches an analogous adjustable incline climbing wall (embodiment of Fig. 17) comprising an actuator (arm 1704) having an end that is slidable along a rail of a frame (flanges 1720 of tilt brace 1700), wherein one of the end of the actuator and the frame comprises a slot (slot 1702 in flange 1720) and the other of the end of the actuator and the frame comprises a projection that slides within the slot (fastener 1703, col. 8 lines 8-9, “Fastener 1703 is slidingly mounted in slot 1702 and pivotally attached to arm 1704”).
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It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the manner in which the second end of each of the one or more actuators of Meissner as modified by Schneider slides along the wall frame to include the second end comprising a projection that is slidable along a slot in the wall frame, as is similarly taught by Brendle, as a matter of simple substitution of one manner of slidable adjustment for another known manner of slidable adjustment within the prior art to achieve the same predictable results of allowing the second end of the actuator to be slidably adjusted between respective positions along the wall frame as desired by a user.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Meissner (US Pat. 7,762,928, cited by Applicant in IDS filed 07/24/2023) in view of Schneider (Foreign Pat. Doc. DE102005063225A1, cited by Applicant in IDS filed 07/24/2023), and further in view of Hinds (US Pat. 6,267,711).
Regarding claim 5, Meissner as modified by Schneider does not teach wherein the movable element (joint 19, see rejection to claim 4 above) is a crossbar.
Hinds, in the same field of endeavor with regards to a movable element of a frame to adjust a position of a component attached thereto, teaches a frame (guide rails 1) and a movable element that is a crossbar (crossbar 5) slidably attached to the frame so as to adjust a position of an attached component along the frame (position of crossbar 5 and attached components 25 via receptors 7, col. 6 line 64 - col. 7 line 2, “Rail sliding receptors (7) emplaced upon the rails (1) and which carry crossbars (5) upon which pulley assemblies (19) are hung are expeditiously raised or lowered by manipulating the right and left retractable spring loaded pin latch assemblies (14) in quick succession”).
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It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the movable element of Meissner as modified by Schneider to include a crossbar, as is similarly taught by Hinds, as a matter of simple substitution of one manner of slidable engagement for another known manner of slidable engagement in the prior art. Such a modification would achieve the same predictable results of providing a slidable attachment of the second end of each of the one or more actuators along the wall frame and would simplify the process of sliding both of the actuators of Meissner as modified by Schneider by allowing them to slide simultaneously.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Meissner (US Pat. 7,762,928, cited by Applicant in IDS filed 07/24/2023) in view of Schneider (Foreign Pat. Doc. DE102005063225A1, cited by Applicant in IDS filed 07/24/2023), and further in view of Speed et al. (US Publication No. 2020/0023257).
Regarding claim 21, Meissner as modified teaches each of the one or more actuators is a linear actuator comprising a threaded rod (via threaded coupling 40) and a telescoping rod (via telescoping coupling 42), but does not teach wherein each of the one or more actuators is a pneumatic linear actuator, a hydraulic linear actuator, or an electric linear actuator.
Speed et al. teaches an analogous adjustable-incline climbing wall (Fig. 1) comprising one or more actuators (supports 30) configured to adjust an incline of a climbing surface (15; paragraph [0061] lines 1-5, “With reference now to the supports 30, the climbing surface 15 of the climbing wall 10 can be selectively and/or permanently kept in (and/or moved to) one or more desired positions in any suitable manner, including, without limitation, through the use of one or more supports”), wherein the one or more actuators may comprise linear actuators, threaded rod actuators, pneumatic actuators, or hydraulic actuators (paragraph [0062] lines 1-8, “Some non-limiting examples of suitable supports 30 include one or more cables, chains, come-alongs, hoists, ratcheting straps, ratchets, linear actuators, cable actuators, threaded rod actuators, actuators, servos, solenoids, pneumatic actuators, hydraulic actuators, winches, ratchet winches, hoists, straps, boards, arms, solid supports, bars, load bars, motors, pins, catches, springs, bungees, ropes, and/or other suitable supports”).
Therefore, as Speed et al. teaches pneumatic or hydraulic actuators as an alternative to linear or threaded rod actuators, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the threaded rod and telescoping rod of the one or more actuators of Meissner with pneumatic or hydraulic linear actuators, as is similarly taught by Speed et al., for the purpose of providing a suitable actuator for adjustably positioning and supporting the wall frame (16) and climbing surface (18) in a desired angular position.
Claims 1, 10-11, 13-14, 16-18, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Brendle (US Pat. 9,132,330, cited by Applicant in IDS filed 07/24/2023) and further in view of Meissner (US Pat. 7,762,928, cited by Applicant in IDS filed 07/24/2023).
Regarding independent claim 1, Brendle teaches and adjustable-incline climbing wall (embodiment of Fig. 17) comprising:
One or more climbing panels configured to provide a climbing surface (main plate 2 of panel 1; see Fig. 1);
A plurality of climbing grips affixed to the climbing surface (hand/foot holds 60-65; see Fig. 5);
A wall frame (formed by flanges 3-8; see Fig. 1) supporting the one or more climbing panels
One or more actuators (arms 1704) configured to position the climbing surface at one of a plurality of incline angles (via sliding attachment with slot 1702 by fastener 1703);
wherein a first end of each of the one or more actuators is connected to an actuator support frame (tilt brace 1700) and a second end of each of the one or more actuators is connected to the wall frame (at bolt 1705);
wherein each of the one or more actuators is movable between a first actuator attachment position and a second actuator attachment position by adjusting the second end of each of the one or more actuators along the wall frame and/or by adjusting an elevation of the first end of each of the one or more actuators relative to the ground surface (elevation of first end at fastener 1703 adjusted via sliding engagement with slot 1702).
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Brendle does not teach wherein the one or more actuators are linear actuators configured to extend or retract, or wherein the one or more actuators are configured to position the climbing surface within a first range of incline angles when the one or more actuators is in the first actuator attachment position and a second range of incline angles when the one or more actuators is in the second actuator attachment position, the second range of incline angles being different from the first range of incline angles.
Meissner teaches an analogous adjustable-incline climbing wall (10) comprising one or more linear actuators (telescoping diagonal support bars 20) configured to extend or retract to position a climbing surface at one of a plurality of angles (col. 4 lines 45-54, “The diagonal support bars may consist of lengthwise adjustable ends. One end may be comprised of a threaded male and female component and the other end may be comprised of a male and female telescoping component. The threaded end may be used for small adjustments and the telescoping end may be used for large adjustments. Adjustments are required to align the hinge system, to allow for different climbing angles of the entire framework structure, and to provide a universal product which can be used for more than one type of installation”), wherein the one or more actuators are configured to position the climbing surface within a first range of incline angles when the one or more actuators is in a first actuator attachment position and a second range of incline angles when the one or more actuators is in a second actuator attachment position, the second range of incline angles being different from the first range of incline angles (first and second range of incline angles achieved by adjustable attachment of coupling 27 along tubular receivers 26 and by threaded coupling 40 and telescoping coupling 42 of diagonal support bars 20, see Figs. 3-4, see col. 4 lines 45-54).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the actuators of Brendle to be linear actuators capable of extending and retracting via telescoping adjustment and threaded adjustment, as is similarly taught by Meissner, for the purpose of increasing the versatility of the climbing wall of Brendle by allowing a wider range of incline angles of the climbing surface to be achieved.
Regarding claim 10, Brendle as modified by Meissner teaches wherein each of the one or more actuators is movable between the first actuator attachment position and the second actuator attachment position by adjusting an elevation of the first end of each of the one or more actuators relative to the ground surface, and
wherein the actuator support frame (1700) comprises a vertical railing (side flange 1720) comprising a plurality of attachment points (various attachment points along slot 1702), such that a connection between the first end of each of the one or more actuators and the actuator support frame may be provided at a plurality of elevations above the ground surface (via sliding attachment of fastener 1703 in slot 1702; see Fig. 17).
Regarding claim 11, Brendle as modified by Meissner teaches wherein each of the one or more actuators is movable between the first actuator attachment position and the second actuator attachment position by adjusting an elevation of the first end of each of the one or more actuators relative to the ground surface, and
wherein a portion (in the broadest reasonable interpretation, fastener 1703 can be considered a portion of the actuator support frame) of the actuator support frame (1700) is movable between at least first and second positions by which the first end of each of the one or more actuators may be provided at a plurality of elevations above the ground surface (via sliding attachment of fastener 1703 in slot 1702; see Fig. 17).
Regarding claim 13, Brendle as modified by Meissner further teaches wherein the elevation of the first end of each of the one or more actuators is configured to be adjusted automatically as the incline angle of the climbing surface is adjusted (Brendle col. 8 lines 20-22, “The angle of the panel 1 can be changed by motors or automation set manually or by a predetermined program changing in intervals or randomly as desired”).
Regarding claim 14, Brendle as modified by Meissner further teaches wherein the adjustable-incline climbing wall is configured such that the incline angle of the climbing surface is adjusted through an electronic control (Brendle col. 8 lines 20-22, “automation set manually or by a predetermined program”).
Regarding claim 16, Brendle as modified by Meissner teaches wherein each of the one or more actuators is movable between the first actuator attachment position and the second actuator attachment position by adjusting an elevation of the first end of each of the one or more actuators relative to the ground surface, and
wherein the elevation of the first end of each of the one or more actuators is configured to be adjusted through an electronic control (Brendle col. 8 lines 20-22, “automation set manually or by a predetermined program”).
Regarding claim 17, Brendle as modified by Meissner teaches wherein each of the one or more actuators is movable between the first actuator attachment position and the second actuator attachment position by adjusting an elevation of the first end of each of the one or more actuators relative to the ground surface, and
wherein the elevation of the first end of each of the one or more actuators is configured to be adjusted automatically as the incline angle of the climbing surface is adjusted (Brendle col. 8 lines 20-22).
Regarding claim 18, Brendle as modified by Meissner further teaches wherein the adjustable-incline climbing wall is configured such that the incline angle of the climbing surface is adjusted through an electronic control (Brendle col. 8 lines 20-22, “automation set manually or by a predetermined program”).
Regarding claim 22, Brendle as modified by Meissner further teaches wherein the actuator support frame (1700) supports the first end of the actuator (at 1703) in a raised position relative to a ground surface on which the actuator support frame rests (see Fig. 17).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Brendle (US Pat. 9,132,330, cited by Applicant in IDS filed 07/24/2023) in view of Meissner (US Pat. 7,762,928, cited by Applicant in IDS filed 07/24/2023), and further in view of Fulkerson (US Pat. 3,592,465).
Regarding claim 12, Brendle as modified by Meissner teaches the actuator support frame (1700) comprises flanges (1720) and a panel attached to a wall for support (Fig. 17), but does not teach wherein the actuator support frame comprises one or more telescoping elements.
Fulkerson, in the same field of endeavor with regards to support frames for exercise equipment attached to a wall, teaches a support frame (12, 14, 15) that comprises one or more telescoping elements (upper crossbeam 14 is mounted to vertical members 12 via plate 15 having a slot 16 that telescopes over a bolt 17; col. 1 lines 32-35, “The frame includes a crossbeam 14 mounted on the upper ends of the vertical members 12 and a plate 15 having a slot 16 is telescoped downwardly over a bolt 17 that normally holds the vertical member on the wall“).
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It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the construction of the actuator support frame of Brendle to include telescoping elements, as is similarly taught by Fulkerson, for the purpose of achieving the same predictable results of providing a suitable support for the one or more actuators and climbing wall (Fulkerson col. 1 lines 35-36, “This serves as a base for supporting the apparatus”) and for providing an easy to assemble support frame that can be more efficiently packaged and transported following manufacture.
Claims 15 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Brendle (US Pat. 9,132,330, cited by Applicant in IDS filed 07/24/2023) in view of Meissner (US Pat. 7,762,928, cited by Applicant in IDS filed 07/24/2023), and further in view of “Vertical Solutions’ (ATP) Adjustable Training Platform” (NPL Cite No. 2 provided by Applicant in IDS filed 07/24/2023, hereinafter referred to as “Vertical Solutions”).
Regarding claims 15 and 20, Brendle as modified by Meissner does not teach a fixed frame element that hingedly supports a lower edge of the wall frame, wherein the fixed frame element comprises a front surface which provides a lower, fixed portion of the climbing surface.
Vertical Solutions teaches an analogous adjustable-incline climbing wall comprising a wall frame supporting a climbing panel (see image on page 2 showing climbing panel supported by vertical elements of a wall frame) that is configured to be positioned at one of a plurality of incline angles by one or more linear actuators connected between the wall frame and an actuator support frame (see image on page 2 showing linear actuators attached between vertical elements of wall frame and vertical elements of actuator support frame connected to structural support wall), and further comprising a fixed frame element that hingedly supports a lower edge of the wall frame, wherein the fixed frame element comprises a front surface which provides a lower, fixed portion of the climbing surface (see annotations of image on page 2 below).
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It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the adjustable-incline climbing wall of Brendle to further include a fixed frame element hingedly supporting a lower edge of the wall frame and providing a lower, fixed portion of the climbing surface, as is similarly taught by Vertical Solutions, for the purpose of providing increased versatility to the climbing wall by simultaneously allowing both a fixed vertical portion and an inclinable portion of the climbing surface.
Response to Arguments
Applicant's arguments filed 07/18/2025 have been fully considered but they are not persuasive.
Applicant argues the combination of prior art to Meissner in view of Schneider would not have been obvious because Schneider does not teach linear actuators and instead teaches slidably adjustable support struts to adjust an angle of incline of the climbing surface, such that Schneider teaches a different way to change the incline of a climbing wall. Applicant further argues the combination of prior art to Brendle in view of Meissner would not have been obvious because replacing the arms of Brendle, which slide to adjust the incline position of the climbing surface, with linear actuators would serve no purpose, such that Meissner teaches a different way to change the incline of a climbing wall.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, it is well-known in the art of exercise devices that increased adjustability is a desired feature because it provides for increased versatility of a device, allows a wider range of difficulty levels to be achieved, and allows a wider variety of users to use the exercise device, thereby decreasing the cost associated with providing specific exercise devices to meet the needs of individual users. Additionally, the court has held that adjustability, where needed, is not a patentable advance when there is an art recognized need for adjustability. In re Stevens, 212 F.2d 197, 101 USPQ 284 (CCPA 1954); MPEP 2144.04(V)(D). Because there is recognized need in exercise devices for increased adjustability of devices to increase device versatility and decrease the costs associated with providing specific devices to meet the needs of individual users, it would have been obvious to combine the telescoping linear actuator of Meissner with the slidable adjustment of Schneider to widen the range of incline angles achievable by the climbing wall to meet a greater variety of users’ needs. For the same reasons, it would have been obvious to combine the slidable adjustment of Brendle with the telescoping linear actuators of Meissner to achieve increased adjustability for the incline of the climbing wall. Therefore, applicant’s arguments are not persuasive.
Applicant further argues the combination of prior art to Brendle, Meissner, and Vertical Solutions would not have been obvious because Brendle is concerned with spatial limitations and the modification in view of Vertical Solutions would prevent the climbing wall from folding up against the support wall. However, the examiner notes the prior art to Vertical Solutions is only relied upon to teach a lower front, fixed frame element hingedly connected to an incline adjustable wall frame, where the fixed frame element provides an additional set of vertically fixed climbing holds. Such a modification would have no effect on the foldability of the climbing wall of Brendle. Therefore, applicant’s argument is not persuasive.
Conclusion
THIS ACTION IS MADE FINAL. 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 KATHLEEN FISK whose telephone number is (571)272-1042. The examiner can normally be reached 8AM-4PM M-F (Central).
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/KATHLEEN M FISK/Examiner, Art Unit 3784
/LOAN B JIMENEZ/Supervisory Patent Examiner, Art Unit 3784