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 11/25/2025 has been entered. Applicant’s amendments to the claims have overcome each and every claim objection previously set forth in the Non-Final Office Action mailed 08/25/2025.
No amendments to the drawings or specification have been filed, and the previously applied objections to the drawings and the specification are maintained herein.
Claims 8-11 have been cancelled.
Claims 1-7 and 12 are currently pending and considered below.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: reference numeral 1, defined as “a backrest.” Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities:
Par. [0046] lines 3-4, “a backing layer 10, a firm layer 11, a medium layer 12, and a soft layer 13” should read ---a backing layer 9, a firm layer 10, a medium layer 11, and a soft layer 12--- to properly reflect the reference numerals in the figures.
Par. [0046] lines 4-5, “The backing layer 10 includes plywood, the firm layer 11 includes a first latex, medium layer 12 includes a second latex, and soft layer 13 includes a foam” should read ---The backing layer 9 includes plywood, the firm layer 10 includes a first latex, medium layer 11 includes a second latex, and soft layer 12 includes a foam--- to properly reflect the reference numerals in the figures.
Par. [0046] lines 7-8, “the backing layer 10 abuts the firm layer 11, the firm layer 11 abuts the medium layer 12, and the medium layer 12 abuts the soft layer 13” should read ---the backing layer 9 abuts the firm layer 10, the firm layer 10 abuts the medium layer 11, and the medium layer 11 abuts the soft layer 12--- to properly reflect the reference numerals in the figures.
Par. [0046] line 8, “Backing layer 10” should read ---Backing layer 9--- to properly reflect the reference numerals in the figures.
Par. [0046] line 9, “Soft layer 13” should read ---Soft layer 12--- to properly reflect the reference numerals in the figures.
Par. [0047] lines 5-7, “the backing layer 10 abuts the firm layer 11, the firm layer 11 abuts the medium layer 12, and the medium layer 12 abuts the soft layer 13” should read ---the backing layer 9 abuts the firm layer 10, the firm layer 10 abuts the medium layer 11, and the medium layer 11 abuts the soft layer 12--- to properly reflect the reference numerals in the figures.
Par. [0047] line 7, “Backing layer 10” should read ---Backing layer 9--- to properly reflect the reference numerals in the figures.
Par. [0047] line 8, “Soft layer 13” should read ---Soft layer 12--- to properly reflect the reference numerals in the figures.
Par. [0050] line 1, “The backing layer 10” should read ---The backing layer 9--- to properly reflect the reference numerals in the figures.
Par. [0051] lines 1-2, “firm layer 11 and medium layer 12” should read ---firm layer 10 and medium layer 11--- to properly reflect the reference numerals in the figures.
Par. [0051] line 4, “firm layer 11” should read ---firm layer 10--- to properly reflect the reference numerals in the figures.
Par. [0051] line 5, “medium layer 12” should read --- medium layer 11--- to properly reflect the reference numerals in the figures.
Par. [0052] line 1, “firm layer 11” should read ---firm layer 10--- to properly reflect the reference numerals in the figures.
Par. [0053] line 1, “medium layer 12” should read --- medium layer 11--- to properly reflect the reference numerals in the figures.
Par. [0054] line 1, “Soft layer 13” should read ---Soft layer 12--- to properly reflect the reference numerals in the figures.
Par. [0055] line 1, “soft layer 13” should read ---soft layer 12--- to properly reflect the reference numerals in the figures.
Par. [0064] lines 2-4, “a backing layer 10 to a firm layer 11, a step 122 connecting a firm layer 11 to a medium layer 12, and a step 123 connecting a medium layer 12 to a soft layer 13” should read ---a backing layer 9 to a firm layer 10, a step 122 connecting a firm layer 10 to a medium layer 11, and a step 123 connecting a medium layer 11 to a soft layer 12--- to properly reflect the reference numerals in the figures.
Par. [0064] lines 7-8, “Backing layer 10 comprises plywood, firm layer 11 comprises a first latex, medium layer 12 comprises a second latex, and soft layer 13 comprises a foam” should read ---Backing layer 9 comprises plywood, firm layer 10 comprises a first latex, medium layer 11 comprises a second latex, and soft layer 12 comprises a foam--- to properly reflect the reference numerals in the figures.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
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 1-7 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Blount (US 5,348,523) and further in view of Grell (US 11,432,598).
Regarding independent claim 1, Blount teaches a backrest (bench pad 10), comprising:
a plurality of cutouts (cutouts in sides of middle portion 60, see annotated Fig. 1), wherein each of the plurality of cutouts are configured to allow a portion of a user's body to protrude beyond a top surface plane of the backrest when the user's back is resting on the backrest (col. 6 lines 4-10, “In this manner the bench pad will provide support for the shoulders of a person but because of the reduced width will allow downward rotation of the shoulders without interfering with such motion so that the arms and shoulders of the weight lifter can be moved downward without restriction enabling the weight lifter to lower the barbell to a point at which the barbell will touch his or her chest”);
a plurality of layers (base member 28, resilient pad 32, and cover 34) configured to combine together so to form the backrest (see Figs. 5-6); and
a plurality of materials included in the plurality of layers (col. 6 line 68 – col. 7 line 5, “The base member may be made of wood or wood-like material about three quarters of an inch thick and the padding material may be a polyurethane or urethane foam or similar material selected from any well known and readily available types” and col. 7 lines 7-11, “The cover material 34 may be a strong, durable sheet which has good resistance to water penetration to avoid leakage of perspiration into the pad. A high quality vinyl or cloth or other suitable material may be chosen for this purpose”), wherein the plurality of layers comprises a backing layer (base member 28) and a padding layer (resilient pad 32).
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Blount does not teach a firm layer, a medium layer, and a soft layer, wherein the backing layer includes plywood, wherein the firm layer includes a first latex, wherein the medium layer includes a second latex, and wherein the soft layer includes a foam, wherein the backing layer abuts the firm layer, wherein the firm layer abuts the medium layer, and wherein the medium layer abuts the soft layer, and wherein the foam included in the soft layer is a memory foam.
Grell, in the same field of endeavor with regards to padding for exercise devices, teaches a pad (exercise pad device of Fig. 1) comprising a plurality of layers (see Fig. 4, plurality of foam layers 18), and further teaches wherein each of the plurality of layers may be comprised of any of a variety of materials (see col. 5 lines 40-42), including “foam, rubber, or any other polymer or material that can reversibly deform and act as a pad” (col. 3 lines 49-50) such as “carpet pad, foam rubber, closed cell foam, open cell foam, urethane foam, polyurethane foam, polyvinyl chloride foam, thermoplastic elastomers, ethylene vinyl acetate, or any other polymer or combination of polymers” (col. 3 lines 52-56), thereby indicating each layer can be comprised of a different material having different characteristics including being firm, medium, or soft relative to one another.
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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 padding layer of Blount to further include a plurality of layers including a firm layer, a medium layer, and a soft layer, as is similarly taught by Grell, for the purpose of providing a comfortable overall padded support for a user performing exercises on the device of Blount. Such a modification merely involves modifying the construction of the padding layer to include a plurality of layers and using a variety of materials to form the different layers, thereby creating a firm, medium, and soft layer relative to one another. It has been held to be within the general skill of one in the art to select known materials on the basis of their suitability for the intended use as a matter of obvious design choice. In the instant case, it would have been obvious to modify the padding layer of Blount to be formed from layers of varying hardness to produce a suitable padded structure for adequately supporting and cushioning a user laying on the backrest. See MPEP 2144.07.
Blount as modified by Grell does not teach wherein the backing layer includes plywood (Blount teaches base member 28 is generally made of wood, see col. 4 lines 36-39), wherein the firm layer includes a first latex, wherein the medium layer includes a second latex, and wherein the soft layer includes a foam, wherein the foam included in the soft layer is a memory foam (as modified by Grell, which teaches the various layers may include any of a variety of materials, see col. 3 lines 49-56).
However, as Blount teaches the backing layer includes wood, 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 backing layer to include plywood as a matter of obvious design choice, since it has been held to be within the general skill of one in the art to select a known material on the basis of its suitability for the intended use. In the instant case, the backing layer (base member 28) of Blount is intended to provide adequate support to a user on the backrest, and plywood would achieve the same intended function.
Furthermore, as Blount as modified by Grell teaches the firm, medium, and soft layer may be comprised of any of a variety of materials, 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 firm, medium, and soft layers to include a first latex, a second latex, and a memory foam, respectively, as a matter of obvious design choice, since it has been held to be within the general skill of one in the art to select a known material on the basis of its suitability for the intended use. In the instant case, the various layers of Blount as modified by Grell are intended to provide a padding or cushioning effect to a user on the backrest, and selecting known padding/cushioning materials to construct the various layers would achieve the same intended function. See MPEP 2144.07.
Blount as modified by Grell teaches wherein the backing layer (28) abuts the padding layer (32, modified by Grell to include the firm, medium, and soft layers 18; see rejection to claim 8 above), but does not teach wherein the backing layer abuts the firm layer, wherein the firm layer abuts the medium layer, and wherein the medium layer abuts the soft layer.
However, 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 padding layer such that the backing layer abuts the firm layer, the firm layer abuts the medium layer, and the medium layer abuts the soft layer, as a matter of obvious design choice. Such a modification merely involves the selection of known materials to create the firm, medium, and soft layers and a rearrangement of the layers to achieve the claimed configuration. It has been held to be within the general skill of one in the art to select known materials on the basis of their suitability for the intended use, and it has further been held that a rearrangement of parts is an obvious matter of design choice. In the instant case, arranging the layers such that the backing layer abuts the firm layer, the firm layer abuts the medium layer, and the medium layer abuts the soft layer, would achieve the same intended function of providing adequate support and cushioning to a user on the backrest. Furthermore, it is well known to support softer layers of material with firmer layers of material in order to ensure structural integrity and to provide increased comfort to a user thereon. See MPEP 2144.04(VI)(C) and 2144.07.
Regarding claim 2, Blount further teaches wherein each of the plurality of cutouts have a first area (see Fig. 1).
Regarding claim 3, Blount further teaches wherein each of the plurality of cutouts are symmetrically located about a backrest centerline (see Fig. 1).
Regarding claim 4, Blount further teaches wherein each of the plurality of cutouts comprise a ninety-degree edge (bottom and top edge at ninety-degrees, see illustrated edges in Figs. 1 and 5-6).
Regarding claim 5, Blount does not teach wherein each of the plurality of cutouts comprise a rounded edge. However, 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 top and/or bottom edges of each of the plurality of cutouts of Blount to comprise a rounded edge as a matter of obvious design choice. Such a modification merely involves a change in form or shape, which is generally recognized as being within the level of ordinary skill in the art, absent any showing of criticality or unexpected results. In the instant case, it would have been obvious to modify the ninety-degree edges of the cutouts of Blount to be rounded to increase user comfort when performing exercises on the backrest. See MPEP 2144.04(IV)(B).
Regarding claim 6, Blount further teaches wherein a first cutout of the plurality of cutouts has a first shape (i.e., left cutout with first arcuate shape), wherein a second cutout of the plurality of cutouts has a second shape (i.e., right cutout with second arcuate shape), and wherein the first shape is a mirroring of the second shape (see Fig. 1).
Regarding claim 7, Blount further teaches wherein the plurality of cutouts is configured to allow at least a portion of the user's shoulder to protrude beyond the top surface plane of the backrest when the user's back is resting on the backrest (see col. 6 lines 4-10).
Regarding claim 12, Blount further teaches wherein a first end of the backrest (upper end 24) is tapered (tapering of first end from edges 46, 48 to concave portion 40; see Figs. 4-6), wherein a second end of the backrest (lower end 24) is tapered (tapering of first end from edges 46, 48 to concave portion 38; see Figs. 4-6), and wherein the first end of the backrest is located opposite the second end of the backrest (see Figs. 2-3).
Response to Arguments
Applicant's arguments filed 11/25/2025 have been fully considered but they are not persuasive.
Applicant has incorporated the limitations of original claims 8-11 into independent claim 1 by amendment. The amendments to claim 1 overcome the 35 U.S.C. 102 rejection of claim 1 in view of Blount. However, claims 8-11 were previously rejected under 35 U.S.C. 103 in view of Blount and Grell.
Applicant argues Blount in view of Grell does not provide any teaching, suggestion, or motivation for the specific combination and organization of materials as claimed, and states “The Examiner’s previous reliance on “design choice” is not applicable where, as here, the structure is functionally significant and produces different biomechanical support and deformation characteristics than those taught in the art.” This argument is not persuasive. Applicant has not cited to nor provided examples of how the claimed combination and organization of materials renders a backrest support that performs differently from those known in the art, in particular Grell which teaches forming a pad or cushion for a user out of multiple layers of various materials each having different mechanical characteristics. Furthermore, it is well known to have softer materials supported by firmer materials to ensure structural integrity of a pad or cushion and to provide increased comfort to a user, as is similarly stated by applicant in paragraph [0051] of the instant specification – “In the upholstery art, it is known that a firmer material may keep its shape longer, while a softer material is more comforting to rest upon.”
The Examiner further cites to MPEP 2144.07, which provides “The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)” and to MPEP 2144.04(VI)(C), which provides that a rearrangement of parts of an invention has been held to be an obvious matter of design choice where the rearrangement does not modify the operation of the invention. In the instant case, selecting known materials to create layers in a padding structure and arranging the layers of Blount in view of Grell such that the backing layer abuts the firm layer, the firm layer abuts the medium layer, and the medium layer abuts the soft layer, merely achieves the same functionality of providing a comfortable and supportive backrest for a user performing exercises thereon.
Applicant’s argument that the prior 35 U.S.C. 103 rejection of claim 5 is overcome by the incorporation of the limitations of claims 8-11 into claim 1 is not persuasive. Applicant states “The rounded-edge configuration of the cutouts interacts functionally with the newly claimed multi-layer structure and materials” but does not cite to nor provide examples of how the multi-layer structure and materials would functionally interact with the rounded edges. Applicant further states “This is not a mere aesthetic modification of Blount’s sharp orthogonal edges.” The Examiner cites to MPEP 2144.04(IV)(B) which provides a change in shape is an obvious matter of design choice when a person of ordinary skill in the art would have found such a change obvious absent persuasive evidence that the particular configuration of the claimed invention was significant. In the instant cases, modifying the edges of the cutouts of Blount to be rounded would have been obvious to one of ordinary skill in the art to provide enhanced comfort to a user by preventing sharp edges from digging into a user’s shoulders or upper arms while performing exercises thereon.
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