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 is a FINAL Rejection to Amendments and Arguments filed by Applicant on 04/21/2025. Claims 10, 13, 17, 21, and 24 have been amended. Currently pending for review are Claims 10-26.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 10-26 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 10, 17, 21, and 24 recite “capable of moving with the user's shoulders and arms”, there is a lack of support in the original disclosure for this limitation and therefore it is considered new matter since it is more narrow than original disclosed. Applicant may overcome the rejection by clearly providing support for the original disclosure, amending, or canceling the claim.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 10 and 12 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Johnson et al (US 6099446).
Regarding Claim 10, Johnson et al teaches an exercise device including a system of resistance elements for strengthening and toning a user's core muscles while performing a crunch movement including oblique and lateral flexion and extension, comprising: a shoulder harness 20 made from a non-stretch material and including a front portion 23, a right-side portion 22, a left-side portion 22, and a back portion 21 and being sized to extend over a user's shoulders and loop around a user's armpits between the front portion and the back portion to enable the user's shoulders and arms to serve as anchoring points as the user performs the crunch movement (Refer to Figs. 1&2 Col 4 Lines 4-26:” Preferably, the body harness 20 comprises leather to provide durability and comfort. Also preferably, a pair of shoulder straps 23 extend across the chest of a user between the body harness 20 and the torso straps 22 to help hold the body harness 20 in place.”); a belt portion 50 capable of being secured about a hip of the user (Refer to Figs 1,2,&5); and a system of resistance elements 55 extending between the shoulder harness 20 starting at a height below the user's armpits and the belt portion 50 (Refer to Fig. 1); wherein the system of resistance elements includes at least one resistance band extending between the shoulder harness starting at a height below the user's armpits and the belt and whereby the shoulder harness that loops around the user's armpits is capable of moving with the user's shoulders and arms as the user performs the crunch movement to enable the least one resistance element to be pulled and create a resistance when the user performs oblique flexion and extension (Refer to Col 5 Lines 43-49:” Also ideally, an attachment strap 55 extends between the waist band 50 and the torso straps 22 to hold them together. The attachment strap is releasably coupled to the torso straps 22 and is releasably coupled to the waist band 50. More ideally, the attachment strap 55 is resiliently elastic. Most ideally, a plurality of attachment straps extend between the waist band 50 and the torso straps 22.”). The Office takes the position that the limitation of “capable of moving with the user's shoulders and arms as the user performs the crunch movement to enable the least one resistance element to be pulled and create a resistance when the user performs oblique flexion and extension” is considered intended use and since the device of Johnson et al meets all the structures claimed and there is nothing limiting the device to be used in such a manner, it is capable of performing the intended use. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. MPEP 2111.04 “Adapted to,” “Adapted for,” “Wherein,” and “Whereby” Clauses [R-9].
Regarding Claim 12, Johnson et al continues to teach wherein the system of resistance elements 55 includes at least one resistance band capable of having a variable resistance (Refer to Col 5 Lines 43-49, the Office takes the position that the resistance is variable as it stretches to different lengths).
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.
Claim(s) 10, 11, 13-14, 16, 21, 23, 24, and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Glisan (US 7874970) in view of Johnson et al (US 6099446).
Regarding Claim 10, Glisan teaches an exercise device including a system of resistance elements for strengthening and toning a user's core muscles while performing a crunch movement including oblique and lateral flexion and extension (The Office takes the position that the limitation is considered an intended use, a prior art structure which is capable of performing the intended use as recited in the preamble meets the claim. Refer to MPEP 2111.02 Effect of Preamble.), comprising: a shoulder harness 15,50 including a front portion , a right-side portion , a left-side portion, and a back portion and being sized to extend over a user's shoulders and loop around a user's armpits between the front portion and the back portion to enable the user's shoulders and arms to serve as anchoring points as the user performs the crunch movement (Refer to Figs. 1-3); a belt portion 14 capable of being secured about a hip of the user (Refer to Figs. 1-3); and a system of resistance elements 16,17 extending between the shoulder harness 15,50 starting at a height below the user's armpits and the belt portion 14 (Refer to Fig. 1 Col 4 Lines 33-34:” The first and second connectors 16 and 17 are flexible and adjustable, and releasably connect the hip harness 14 to the torso harness 15. Each of the first and second connectors 16 and 17 has a strap 61 and a fastener 62. The strap 61 can be elastic or inelastic.”); wherein the system of resistance elements includes at least one resistance band 16,17 extending between the shoulder harness starting at a height below the user's armpits and the belt and whereby the shoulder harness that loops around the user's armpits is capable of moving with the user's shoulders and arms as the user performs the crunch movement to enable the least one resistance element to be pulled and create a resistance when the user performs oblique flexion and extension (Refer to Fig. 1 Col 4 Lines 33-34:” The first and second connectors 16 and 17 are flexible and adjustable, and releasably connect the hip harness 14 to the torso harness 15. Each of the first and second connectors 16 and 17 has a strap 61 and a fastener 62. The strap 61 can be elastic or inelastic”). The Office takes the position that the limitation of “capable of moving with the user's shoulders and arms as the user performs the crunch movement to enable the least one resistance element to be pulled and create a resistance when the user performs oblique flexion and extension” is considered intended use and since the device of Glisan meets all the structures claimed and there is nothing limiting the device to be used in such a manner, it is capable of performing the intended use. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. MPEP 2111.04 “Adapted to,” “Adapted for,” “Wherein,” and “Whereby” Clauses [R-9]. Glisan fails to expressly disclose wherein the shoulder harness 15,50 is non-elastic. Johnson et al teaches a hardness system having elastic resistance elements extending from a shoulder harness to a hip belt wherein the shoulder harness is made of non-elastic material (Refer to Figs. 1&2 Col 4 Lines 4-26:” Preferably, the body harness 20 comprises leather to provide durability and comfort. Also preferably, a pair of shoulder straps 23 extend across the chest of a user between the body harness 20 and the torso straps 22 to help hold the body harness 20 in place.”). Johnson et al is from the same field of endeavor as Applicants invention and therefore it would have been obvious to modify the hardness 15,50 of Glisan et al to be leather since Johnson et al teaches that such material are known in the art to be suitable for shoulder harnesses to provide durability and comfort.
Regarding Claim 11, Glisan in view of Johnson et al continues to teach further including at least one handle 35,36 operative arranged with the belt 14 to allow the user to hold the at least one handle while performing the crunch movement to anchor down the belt 35,36 against the resistance of the resistance elements 16,17 (Refer to FIGS 1-3..thE Office takes the position that the handle 35,36 of Glisan et al while disclosed as a loop, is structurally the same as the handles straps 30 of Applicant and therefore can function with the intended use as a handle).
Regarding Claim 13, Glisan in view of Johnson et al continues to teach wherein the system of resistance elements further includes at least one resistance band 16 extending between the right-side portion of the shoulder harness 15,50 starting at a height below the user's armpits and the belt 14 and at least one resistance band 17 extending between the left-side portion of the shoulder harness 15,50 starting at a height below the user's armpits and the belt 14 to provide targeted lateral flexion and extension resistance to the user's core muscles (Refer to Glisan et al Fig. 1..The Office takes the position that the resistance bands of Glisan is capable of providing the intended use of “targeted lateral flexion and extension resistance to the user's core muscles”).
Regarding Claim 14, Glisan in view of Johnson et al continues to teach further including at least one handle 35,36 operative arranged with the belt to allow the user to hold the at least one handle while performing a crunch movement to anchor down the belt against the resistance of the resistance elements 16,17 (Refer to FIGS 1-3..thE Office takes the position that the handle 35,36 of Glisan et al while disclosed as a loop, is structurally the same as the handles straps 30 of Applicant and therefore can function with the intended use as a handle capable of being used while performing a crunch movement to anchor down the belt against the resistance of the resistance elements 16,17 ).
Regarding Claim 16, Glisan in view of Johnson et al continues to teach wherein the system of resistance elements 16,17 includes at least one resistance band capable of having a variable resistance (Refer to Fig. 1 the Office takes the position that the resistance is variable as it stretches to different lengths).
Regarding Claim 21, Glisan teaches exercise device including a system of resistance elements for strengthening and toning a user's core muscles while performing a crunch movement (The Office takes the position that the limitation is considered an intended use, a prior art structure which is capable of performing the intended use as recited in the preamble meets the claim. Refer to MPEP 2111.02 Effect of Preamble.), comprising: a shoulder harness 15,50 including a front portion, a right-side portion, a left-side portion, and a back portion and being sized to extend over a user's shoulders and loop around a user's armpits between the front portion and the back portion to enable the user's shoulders and arms to serve as anchoring points as the user performs the crunch movement (Refer to Figs. 1-3); a belt portion 14 capable of being secured about a hip of the user (Refer to Figs. 1-3); and a system of resistance elements 16,17 extending between the shoulder harness 15,50 starting at a height below the user's armpits and the belt portion 14 to provide targeted flexion and extension resistance to the user's core muscles while performing a crunch movement (Refer to Fig. 1 Col 4 Lines 33-34:” The first and second connectors 16 and 17 are flexible and adjustable, and releasably connect the hip harness 14 to the torso harness 15. Each of the first and second connectors 16 and 17 has a strap 61 and a fastener 62. The strap 61 can be elastic or inelastic.”); and at least one handle 35,36 operative arranged with the belt 14 to allow the user to hold the at least one handle 35,36 while performing the crunch movement to anchor down the belt against the resistance of the resistance elements (Refer to FIGS 1-3..The Office takes the position that the handle 35,36 of Glisan et al while disclosed as a loop, is structurally the same as the handles straps 30 of Applicant and therefore can function with the intended use as a handle capable of while performing the crunch movement to anchor down the belt against the resistance of the resistance elements). The Office takes the position that the limitation of “capable of moving with the user's shoulders and arms as the user performs the crunch movement to enable the system of resistance elements to provide targeted flexion and extension resistance to the user's core muscles when the user performs oblique flexion and extension” is considered intended use and since the device of Glisan meets all the structures claimed and there is nothing limiting the device to be used in such a manner, it is capable of performing the intended use. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. MPEP 2111.04 “Adapted to,” “Adapted for,” “Wherein,” and “Whereby” Clauses [R-9]. Glisan fails to expressly disclose wherein the shoulder harness 15,50 is non-elastic. Johnson et al teaches a hardness system having elastic resistance elements extending from a shoulder harness to a hip belt wherein the shoulder harness is made of non-elastic material (Refer to Figs. 1&2 Col 4 Lines 4-26:” Preferably, the body harness 20 comprises leather to provide durability and comfort. Also preferably, a pair of shoulder straps 23 extend across the chest of a user between the body harness 20 and the torso straps 22 to help hold the body harness 20 in place.”). Johnson et al is from the same field of endeavor as Applicants invention and therefore it would have been obvious to modify the hardness 15,50 of Glisan to be leather since Johnson et al teaches that such material are known in the art to be suitable for shoulder harnesses to provide durability and comfort.
Regarding Claim 23, Glisan in view of Johnson et al continues to teach wherein the system of resistance elements 16,17 includes at least one resistance band capable of having a variable resistance (Refer to Fig. 1 the Office takes the position that the resistance is variable as it stretches to different lengths).
Regarding Claim 24, Glisan teaches exercise device for strengthening and toning a user's core muscles while performing a crunch movement (The Office takes the position that the limitation is considered an intended use, a prior art structure which is capable of performing the intended use as recited in the preamble meets the claim. Refer to MPEP 2111.02 Effect of Preamble.), comprising: a shoulder harness 15,50 capable of being worn over the user's shoulders and including a front portion, a right-side portion, a left-side portion, and a back portion and being sized to extend over a user's shoulders and loop around a user's armpits between the front portion and the back portion to enable the user's shoulders and arms to serve as anchoring points as the user performs the crunch movement (Refer to Figs. 1-3); a belt 14 capable of being secured about a hip of the user (Refer to Figs. 1-3); at least one resistance member 16,17 extending between the shoulder harness starting at a height below the user's armpits and the belt 14 (Refer to Fig. 1 Col 4 Lines 33-34:” The first and second connectors 16 and 17 are flexible and adjustable, and releasably connect the hip harness 14 to the torso harness 15. Each of the first and second connectors 16 and 17 has a strap 61 and a fastener 62. The strap 61 can be elastic or inelastic.”); and at least one handle 35,36 operative arranged with the belt to allow the user to hold the at least one handle 35,36 while performing the crunch movement to anchor down the belt against the resistance of the at least one resistance member (Refer to FIGS 1-3..The Office takes the position that the handle 35,36 of Glisan et al while disclosed as a loop, is structurally the same as the handles straps 30 of Applicant and therefore can function with the intended use as a handle capable of while performing the crunch movement to anchor down the belt against the resistance of the resistance elements). The Office takes the position that the limitation of “capable of moving with the user's shoulders and arms as the user performs the crunch movement to enable the system of resistance elements to provide targeted flexion and extension resistance to the user's core muscles when the user performs oblique flexion and extension” is considered intended use and since the device of Glisan meets all the structures claimed and there is nothing limiting the device to be used in such a manner, it is capable of performing the intended use. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. MPEP 2111.04 “Adapted to,” “Adapted for,” “Wherein,” and “Whereby” Clauses [R-9]. Glisan fails to expressly disclose wherein the shoulder harness 15,50 is non-elastic. Johnson et al teaches a hardness system having elastic resistance elements extending from a shoulder harness to a hip belt wherein the shoulder harness is made of non-elastic material (Refer to Figs. 1&2 Col 4 Lines 4-26:” Preferably, the body harness 20 comprises leather to provide durability and comfort. Also preferably, a pair of shoulder straps 23 extend across the chest of a user between the body harness 20 and the torso straps 22 to help hold the body harness 20 in place.”). Johnson et al is from the same field of endeavor as Applicants invention and therefore it would have been obvious to modify the hardness 15,50 of Glisan et al to be leather since Johnson et al teaches that such material are known in the art to be suitable for shoulder harnesses to provide durability and comfort.
Regarding Claim 26, Glisan in view of Johnson et al continues to teach wherein the system of resistance elements 16,17 includes at least one resistance band capable of having a variable resistance (Refer to Fig. 1 the Office takes the position that the resistance is variable as it stretches to different lengths).
Claim(s) 17 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Eriksrud Ola (NO 333435 B1) in view of Basilisco Nicholas (GB 2487352 A).
Regarding Claim 17, Eriksrud teaches an exercise garment for toning a user's core muscles while performing a crunch movement including oblique and lateral flexion and extension, comprising: a vest 10 including a front portion, a right-side portion, a left-side portion and a back portion and being sized to extend over a user's shoulders and loop around a user's armpits between the front portion and the back portion to enable the user's shoulders and arms to serve as anchoring points as the user performs the crunch movement (Refer to Fig. 1); a belt 23 capable of being secured about a hip of the user (Refer to Fig. 1); wherein a portion of the vest 10 that extends over the user's shoulders and loops around the user's armpits is made from a non-stretch material (Refer to Translation:” The vest is designed with a relatively stiff material, ie a material that can be shaped according to the body shape of a wearer and provide good padding. This gives the vest a shape with a certain stiffness that will help to distribute the forces acting on the training vest during use. Such a material may be, for example, neoprene, polyurethane, cellular plastic, etc. This form may be reinforced on the outside of a mesh material to increase rigidity and to distribute the forces in use.”). Eriksrud fails to expressly disclose a plurality of elastic members extending between the vest and the belt, the plurality of elastic members including a first elastic member extending between the front portion of the vest starting at a height below the user's armpits and the belt, a second elastic member extending between the right-side portion of the vest starting at a height below the user's armpits and the belt, a third elastic member extending between the left- side portion of the vest starting at a height below the user's armpits and the belt, and a forth fourth elastic member extending between the back portion of the vest starting at a height below the user's armpits and the belt 23 and is capable of moving with the user's shoulders and arms as the user performs the crunch movement to enable at least one of the elastic members to be pulled and create a resistance when the user performs oblique flexion and extension. Basilisco teaches a device comprising a shoulder harness 10 and a belt 130 and a plurality of elastic members 140 extending between the harness 100 and the belt 130, the plurality of elastic members including a first elastic member 140 extending between the front portion of the harness 100 and the belt 130, a second elastic member 140 extending between the right-side portion of the harness 100 and the belt 130, a third elastic member extending between the left- side portion of the harness 100 and the belt 130, and a forth fourth elastic member extending between the back portion of the harness and the belt 130 (Refer to Fig. 4) and is capable of moving with the user's shoulders and arms as the user performs the crunch movement to enable at least one of the elastic members to be pulled and create a resistance when the user performs oblique flexion and extension (Refer to Fig. 4 Abstract Translation:”An exercise apparatus comprising a first section 100 adapted to be worn on a users shoulder or chest, a second section 120 adapted to be worn on a users hips or legs and a resistance element 140 releasably anchored 120 and 130 to the first 100 and second sections 120. The tensile force provided may be controlled and adjusted by winding the resistance element around a wheel or using a tensioning mechanism 200 with a torsion spring in combination with a non-elastic cord or strap. The resistance element 140 may be an elastic band or cord, an elastic tube or a coil spring. Hooks or buttons may be used as the anchoring means 120 and 130. The device may be used to exercise a users abdominal, back or pelvic muscles”.). Basilisco is from the same field of endeavor as Applicants invention and therefore it would have been obvious to modify the vest and belt of Eriksrud to be in view of Basilisco such that there are elastic members extending around the front, sides, and back between the harness/vest to the belt since Basilisco teaches that such combination of anchoring allows for core work outs and therefore such modification would have been obvious to produce expected results and furthermore the Office takes the position that the attachments would be under the user’s armpits since they are anchored at the bottom of Eriksrud’s vest 10 to the belt 23.
Regarding Claim 20, Eriksrud to be in view of Basilisco continues to teach wherein the system of resistance elements 140 includes at least one resistance band capable of having a variable resistance (Refer to Fig. 4 the Office takes the position that the resistance is variable as it stretches to different lengths).
Response to Arguments
Applicant’s arguments with respect to claim(s) filed on 04/21/2025 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.
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.
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/NYCA T NGUYEN/ Primary Examiner, Art Unit 3784