DETAILED ACTION
This Office Action is a Second Non-Final Office Action in view of applicant’s amendments and arguments filed 11/04/2025. The previously applied 35 U.S.C. 103 rejections under NPL 1 in view of D’Haenens of claims 1-18 have been withdrawn, and a new grounds of rejection is presented below. The previously applied 35 U.S.C. 103 rejections under NPL 1 of claims 19-20 have been maintained. See Response to Arguments below.
Response to Amendment
The amendment filed 11/04/2025 has been entered. Applicant’s amendments to the claims have overcome each and every objection and 35 U.S.C. 112 rejection previously set forth in the Non-Final Office Action mailed 06/30/2025.
Applicant’s filing of a terminal disclaimer has overcome the non-statutory double patenting rejections previously set forth in the Non-Final Office Action mailed 06/30/2025.
Claims 2 and 4 have been cancelled.
Claims 1, 3, and 5-20 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. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 112(a) as follows:
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 disclosure of the prior-filed application, Provisional Application No. 62/529,315, fails 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. Specifically, Provisional Application No. 62/529,315 does not provide adequate support for the claim limitations directed to the actuator support frame, the fixed frame element, or the first and second actuators, as the prior-filed application does not disclose an embodiment of the invention comprising these limitations. Therefore, claims 1-20 do not receive the benefit of prior-filed Provisional Application No. 62/529,315.
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, 3, 7-9, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over D’Haenens (BE 905390 A), further in view of Brendle (US 9,132,330), and further in view of Singley (US 9,017,224).
Regarding independent claim 1, D’Haenens teaches an adjustable-incline climbing wall (Fig. 1) comprising:
a. one or more climbing panels (1, 2) configured to provide a climbing surface (i.e., surface of climbing panels);
c. a wall frame supporting the one or more climbing panels (triangles 6 with associated frames, see annotated Fig. 1);
d. a system for adjusting an incline of the climbing surface, the system comprising
i. a support assembly comprising
a fixed frame element that supports a lower edge of the wall frame in a raised position relative to a ground surface on which the support assembly rests (see annotated Fig. 1), and
an actuator support frame (vertical slide 5, see annotated Fig. 1); and
ii. a actuator (bar 3 and slide 4) configured to adjust the incline of the climbing surface so that the climbing surface may be positioned at a plurality of angles within a permitted range (see Figs. 1-3);
wherein the actuator has a first end hingedly connected to the actuator support frame (via slide 4) and a second end hingedly connected to the wall frame (see hinged connection between bar 3 and slide 4, and hinged connected between bar 3 and lower portion of wall frame);
wherein the lower edge of the wall frame is hingedly connected to a top of the fixed frame element (see hinged connection between lower wall frame and fixed frame element in annotated Fig. 1); and
wherein the permitted range includes between about 970 and about 550 relative to the ground surface (lower panel 1 capable of achieving angles between 950 and 750, upper panel 2 capable of achieving angles between 1150 to 550; see page 6 of Specification translation, first full paragraph, “The extreme values of the inclination of the lower panel range from -5 ° to + 15 °. For the angle corresponding to the pivoting of the upper panel relative to the lower panel, the extreme values are from - 20 ° to + 20 °” indicating when the lower panel is inclined to 950 relative to the ground, the upper panel is capable of achieving an angle of 1150 (-250 from vertical) relative to the ground, and when the lower panel is inclined to 750 relative to the ground, the upper panel is capable of achieving an angle of 550 (+350 from vertical) relative to the ground).
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D’Haenens appears to suggest a plurality of climbing grips affixed to the climbing surface (page 2 of Specification translation, fourth paragraph, “the climbing device comprises at least one essentially solid panel having an adjustable tilt surface and gripping members to enable it to grip onto said panel”), but does not explicitly teach a plurality of climbing grips affixed to the climbing surface.
Brendle teaches an analogous adjustable-incline climbing wall (Fig. 17) having a plurality of climbing grips (hand/foot holds 60, 61, 62, 63, 64, 65, shown in Fig. 5) affixed to a climbing surface (affixed to main plate 2 of wall panel 1).
Therefore, 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 climbing device of D’Haenens to include a plurality of climbing grips affixed to the climbing surface of the one or more climbing panels (1, 2), as is similarly taught by Brendle, for the purpose of achieving the same predictable results of allowing a user to practice his/her climbing skills using the climbing device with climbing grips affixed to the climbing surface.
D’Haenens does not teach the actuator (3, 4) being a linear actuator.
Singley, in the same field of endeavor with regards to angle adjustment systems, teaches a linear actuator (60, Figs. 8-9) for selectively adjusting an angle of a climbing surface (surface of upright frame 10 of ladder exerciser 1) of a climbing device (ladder exerciser 1) between negative and positive tilts (col. 1 lines 25-27, “The inclination tilt of the exercise ladder ranges from a negative to a positive tilt thereby providing a wide range of exercise possibilities”).
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 actuator of D’Haenens with the linear actuator of Singley as a matter of simple substitution of one known actuator for adjusting the incline of a climbing surface for another in the art to achieve the same predictable results of allowing a user to selectively incline the climbing surface between positive and negative tilts. As modified, the linear actuator will maintain hinged connections between the actuator support frame and the wall frame to allow the climbing surface to achieve the tilting/inclining functionality, but the hinged connection between the linear actuator and actuator support frame will maintain a fixed position as is taught by Singley, rather than the bar and slide connection of the actuator of D’Haenens..
Regarding claim 3, D’Haenens as modified further teaches wherein the permitted range includes between 1000 and 550 relative to the ground surface (lower panel 1 capable of achieving angles between 950 and 750, upper panel 2 capable of achieving angles between 1150 to 550; see page 6 of Specification translation, first full paragraph, “The extreme values of the inclination of the lower panel range from -5 ° to + 15 °. For the angle corresponding to the pivoting of the upper panel relative to the lower panel, the extreme values are from - 20 ° to + 20 °” indicating when the lower panel is inclined to 950 relative to the ground, the upper panel is capable of achieving a maximum angle of 1150 (-250 from vertical) relative to the ground, and when the lower panel is inclined to 750 relative to the ground, the upper panel is capable of achieving a minimum angle of 550 (+350 from vertical) relative to the ground).
Regarding claim 7, D’Haenens as modified further teaches wherein the linear actuator (60, as modified by Singley) is selected from the group consisting of a pneumatic linear actuator, a hydraulic linear actuator, and an electric linear actuator (via electric tilt motor 52 of Singley, see Figs. 8-9).
Regarding claim 8, D’Haenens as modified further teaches wherein the first end of the linear actuator (60, as modified by Singley) is hingedly connected to the actuator support frame (5 of D’Haenens) at a fixed location (see rejection of claim 1 above).
Regarding claim 9, D’Haenens as modified further teaches wherein the second end of the linear actuator (60, as modified by Singley) is hingedly connected to the wall frame at a fixed location (in same manner as bar 3 of D’Haenens is fixedly hinged to lower wall frame).
Regarding claim 13, D’Haenens as modified further teaches wherein the actuator support frame (5 of D’Haenens) supports the first end of the actuator at a position that is higher than the top of the fixed frame element (see D’Haenens annotated Fig. 1 above).
Claims 5-6, 10-12, and 14-18 are rejected under 35 U.S.C. 103 as being unpatentable over D’Haenens (BE 905390 A), further in view of Brendle (US 9,132,330), further in view of Singley (US 9,017,224), and further in view of NPL 1 (Vertical Solutions, “ATP: The Next Generation in Climber Training Boards” with attached fully-detailed product page for “(ATP) Adjustable Training Platform” retrieved via embedded hyperlink).
Regarding claim 5, D’Haenens as modified teaches the top of the fixed frame element is positioned above the ground surface (see Fig. 1), but does not teach wherein the top of the fixed frame element is at least twelve inches above the ground surface, and wherein the fixed frame element comprises a front surface which provides a lower, fixed portion of the climbing surface.
NPL 1 teaches an analogous adjustable-incline climbing wall (see annotated screenshot from attached product page) comprising a support assembly comprising a fixed frame element (kicker panel, annotated figure below) that supports a lower edge of a wall frame (see annotated screenshot) in a raised position relative to a ground surface on which the support assembly rests, wherein the top of the fixed frame element (kicker panel) is at least twelve inches above the ground surface (see specifications on page 5, “Kicker Panel Height” of 24” – 36”); and wherein the fixed frame element (kicker panel) comprises a front surface which provides a lower, fixed portion of a climbing surface (see image on page 1).
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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 support assembly and fixed frame element of D’Haenens such that the top of the fixed frame element is at least twelve inches above the ground surface and wherein the fixed frame element comprises a front surface which provides a lower, fixed portion of the climbing surface, as is similarly taught by NPL 1, for the purpose of providing an additional stationary climbing surface for the user to perform a wider variety of climbing routines with and that serves as a stable base for the inclinable wall frame and climbing panel.
Regarding claim 6, D’Haenens as modified by NPL 1 teaches wherein the lower, fixed portion of the climbing surface comprises one or more climbing grips (see NPL image showing climbing grips on the fixed portion of the climbing surface on page 1 and 4).
Regarding claim 10, D’Haenens does not teach wherein the support assembly includes a base unit having a first end and a second end, the actuator support frame being positioned at the first end of the base unit and the fixed frame element being positioned at the second end of the base unit.
NPL 1 teaches an analogous adjustable-incline climbing wall (see annotated screenshot from attached product page) comprising a support assembly comprising a fixed frame element (kicker panel, annotated figure below) that supports a lower edge of a wall frame (see annotated screenshot) in a raised position relative to a ground surface on which the support assembly rests, and an actuator support frame (see annotated screenshot), wherein the support assembly includes a base unit having a first end and a second end, the actuator support frame being positioned at the first end of the base unit and the fixed frame element being positioned at the second end of the base unit (see annotated screenshot and figures on page 5).
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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 support assembly of D’Haenens to include a base unit such that the actuator support frame is positioned at the first end of the base unit and the fixed frame element is positioned at the second end of the base unit, as is similarly taught by NPL 1, as a matter of simple substitution of one known support assembly for an adjustable-incline climbing wall for another known in the art to achieve the same predictable results of providing adequate support for the inclinable climbing surface. As modified, the structures of the support assembly of D’Haenens will be substituted by the support assembly of NPL 1, including the vertically extending actuator support frame with cross structures, and the actuator of D’Haenens will be substituted for the two linear actuators of NPL 1 to maintain the structural integrity of the system for adjusting the incline of the climbing surface. The overall adjustability of the climbing surface (formed by lower and upper panels 1, 2) of D’Haenens will be maintained.
Regarding claim 11, D’Haenens as modified by NPL 1 further teaches one or more stabilization members (horizontal members and/or downwardly extending diagonal members; see NPL 1 annotated screenshot below) that connect the actuator support frame to the fixed frame element (see annotated screenshot and figures on page 5).
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Regarding claim 12, D’Haenens as modified by NPL 1 further teaches wherein the actuator support frame comprises at least first and second vertical members and a crossbar member (see NPL 1 annotated screenshot below).
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Regarding claim 14, D’Haenens does not teach wherein the linear actuator comprises a first linear actuator and a second linear actuator, each of the first and second linear actuators having a first end hingedly connected to the actuator support frame and a second end hingedly connected to the wall frame, the first ends of the first and second linear actuators being aligned along the same horizontal plane and the second ends of the first and second linear actuators being aligned along the same horizontal plane; and wherein the first and second linear actuators are configured to operate in sync with one another.
NPL 1 teaches an analogous adjustable-incline climbing wall (see annotated screenshot from attached product page) comprising a linear actuator comprising a first linear actuator and a second linear actuator (dual hydraulic rams), each of the first and second linear actuators having a first end hingedly connected to an actuator support frame (on first and second vertical members, respectively) and a second end hingedly connected to a wall frame (see image on page 1 and figures on page 5), the first ends of the first and second linear actuators being aligned along the same horizontal plane and the second ends of the first and second linear actuators being aligned along the same horizontal plane (see image on page 1 and figures on page 5); and wherein the first and second linear actuators are configured to operate in sync with one another (see image on page 1 and figures on page 5, dual hydraulic rams work in sync to adjust incline of climbing wall).
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 system for adjusting the incline of the climbing surface of D’Haenens to include a first and second linear actuator hingedly connected between the wall frame and an actuator support frame comprising two vertical members, as is similarly taught by NPL 1, as a matter of simple substitution of one known support assembly for an adjustable-incline climbing wall for another known in the art to achieve the same predictable results of providing adequate support for the inclinable climbing surface. As modified, the structures of the support assembly of D’Haenens will be substituted by the support assembly of NPL 1, including the vertically extending actuator support frame with cross structures, and the actuator of D’Haenens will be substituted for the two linear actuators of NPL 1 to maintain the structural integrity of the system for adjusting the incline of the climbing surface. The overall adjustability of the climbing surface (formed by lower and upper panels 1, 2) of D’Haenens will be maintained.
Regarding claim 15, D’Haenens as modified by NPL 1 further teaches wherein the actuator support frame comprises at least first and second vertical members and a crossbar member (see NPL 1 annotated screenshot above).
Regarding claim 16, D’Haenens as modified by NPL 1 further teaches wherein the first end of the first linear actuator is positioned proximate a top of the first vertical member and the first end of the second linear actuator is positioned proximate a top of the second vertical member (see NPL 1 figures on page 5), but does not teach the first end of the first linear actuator is positioned substantially at the top of the first vertical member and the first end of the second linear actuator is positioned substantially at the top of the second vertical member. 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 position of the first and second linear actuators such that they are respectively positioned substantially at the top of the first and second vertical members as a matter of obvious design choice to achieve the same predictable results of fixedly and hingedly attaching the first ends of the first and second linear actuators to the first and second vertical members to provide angle adjustability to the climbing wall. Such a modification merely involves rearranging parts of an invention, and it has been held that rearranging parts of an invention involves only routine skill in the art, absent criticality or unexpected results. See MPEP 2144.04, Section VI, Subsection C.
Regarding claim 17, D’Haenens as modified by NPL 1 further teaches a first stabilization member (horizontal member and/or downwardly extending diagonal member, see NPL 1 annotated screenshot above) that connects the first vertical member of the actuator support frame to the fixed frame element and a second stabilization member (horizontal member and/or downwardly extending diagonal member, see NPL 1 annotated screenshot above) that connects the second vertical member of the actuator support frame to the fixed frame element (see NPL 1 annotated screenshot above and figures on page 5).
Regarding claim 18, D’Haenens as modified by NPL 1 further teaches wherein the top of each of the first and second vertical members is positioned higher than the top of the fixed frame element (see NPL 1 image on page 1 and figures on page 5) and the first and second stabilization members extend diagonally downward between the respective vertical member and the fixed frame element (see downwardly extending diagonal member in NPL 1 annotated screenshot above and figures on page 5), but does not teach wherein each of the first and second stabilization members extend diagonally downward between substantially the top of the respective vertical member and the fixed frame element. 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 a position of fixation for each end of the first and second stabilization members to the first and second vertical members to respectively be located substantially at the top of each of the first and second vertical members such that the first and second stabilization members extend diagonally downward between substantially the top of the vertical member and the fixed frame element as a matter of obvious design choice to achieve the same predictable results of providing a stable and secure structure for supporting the climbing wall. Such a modification merely involves rearranging parts of an invention, and it has been held that rearranging parts of an invention involves only routine skill in the art, absent criticality or unexpected results. See MPEP 2144.04, Section VI, Subsection C.
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over NPL 1 (Vertical Solutions, “ATP: The Next Generation in Climber Training Boards” with attached fully-detailed product page for “(ATP) Adjustable Training Platform” retrieved via embedded hyperlink).
Regarding independent claim 19, NPL 1 teaches an adjustable-incline climbing wall comprising:
a. one or more climbing panels configured to provide a climbing surface, the one or more climbing panels being configured to receive a plurality of climbing grips (see annotated screenshots and image on page 1);
b. a wall frame supporting the one or more climbing panels (see annotated screenshots);
c. a system for adjusting an incline of the climbing surface, the system comprising
i. a support assembly comprising
a fixed frame element (kicker panel) that supports a lower edge of the wall frame in a raised position relative to a ground surface on which the support assembly rests (see annotated screenshots), and
an actuator support frame (see annotated screenshots); and
ii. at least first and second linear actuators (dual hydraulic rams), the first and second linear actuators being configured operate in sync with one another to adjust the incline of the climbing surface so that the climbing surface may be positioned at a plurality of angles within a permitted range (see image on page 1 and figures on page 5, dual hydraulic rams work in sync to adjust incline of climbing wall within permitted range of 0⁰ to 50⁰ from vertical, see page 5 “Angle Adjustability”);
wherein each of the first and second linear actuators has a first end hingedly connected to the actuator support frame (on first and second vertical members, respectively) and a second end hingedly connected to the wall frame (see image on page 1 and figures on page 5);
wherein the lower edge of the wall frame is hingedly connected to a top of the fixed frame element (see annotated screenshots);
wherein the actuator support frame comprises at least first and second vertical members and a crossbar member (see annotated screenshots).
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NPL 1 teaches wherein the first end of the first linear actuator is positioned proximate a top of the first vertical member and the first end of the second linear actuator is positioned proximate a top of the second vertical member (see figures on page 5), but does not teach the first end of the first linear actuator is positioned substantially at the top of the first vertical member and the first end of the second linear actuator is positioned substantially at the top of the second vertical member. 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 position of the first and second linear actuators such that they are respectively positioned substantially at the top of the first and second vertical members as a matter of obvious design choice to achieve the same predictable results of fixedly and hingedly attaching the first end of the first and second linear actuators to the first and second vertical members to provide angle adjustability to the climbing wall. Such a modification merely involves rearranging parts of an invention, and it has been held that rearranging parts of an invention involves only routine skill in the art, absent criticality or unexpected results. See MPEP 2144.04, Section VI, Subsection C.
Regarding claim 20, NPL 1 further teaches a first stabilization member (horizontal member and/or downwardly extending diagonal member) that connects the first vertical member of the actuator support frame to the fixed frame element and a second stabilization member (horizontal member and/or downwardly extending diagonal member) that connects the second vertical member of the actuator support frame to the fixed frame element (see annotated screenshot above for rejection of claim 11 and figures on page 5).
Response to Arguments
Applicant's arguments filed 11/04/2025 with respect to the prior art status of NPL 1 (Vertical Solutions, “ATP: The Next Generation in Climber Training Boards” with additional product page retrieved via an embedded hyperlink) have been fully considered but they are not persuasive. Applicant argues the undated product sheet titled “(ATP) Adjustable Training Platform” retrieved through an embedded hyperlink in the blog post titled “ATP: The Next Generation in Climber Training Boards” (with publication date of 04/20/2018) does not qualify as prior art because there is no date associated with the hyperlinked PDF. However, after extracting the metadata through Document Properties from a downloaded version of the attached PDF, the date of creation and modification is listed as 04/25/2018. Therefore, the product sheet constitutes prior art in view of the priority of the instant application.
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Applicant's arguments filed 11/04/2025 with respect to the previous rejection of claims 19-20 in view of NPL 1 have been fully considered but they are not persuasive. Applicant argues it would not have been obvious to a person of ordinary skill in the art to have either moved the actuators upward or reduced the height of the support structure in the design shown in NPL 1 with respect to the positioning of the first and second actuators along the first and second vertical frames because such modifications would require “significant re-engineering in order to ensure adequate stability and the ability to move the wall through the desired range of incline angles.” The examiner respectfully disagrees. Changing a position of the actuators along the respective vertical frames to be located substantially at respective tops of the vertical frames merely requires a rearrangement of the essential working parts of the invention. In response to applicant’s argument that moving the first ends of the actuators upwards along the respective vertical members to be positioned at the respective tops thereof would alter the operations of the climbing wall of NPL 1, the examiner respectfully disagrees, as one of ordinary skill in the art would merely rearrange the position of both ends of the actuators to be positioned higher along the vertical members and the wall frame to achieve the same desired functionality, again merely requiring a rearrangement of the essential working parts of the invention. Additionally, the examiner notes the claim language of “positioned substantially at a top” allows variability in the distance from the connection of the actuators along the vertical members and the terminal top end of the vertical members. Therefore, the rejection to claims 19-20 in view of NPL 1 have been maintained.
Applicant’s arguments filed 11/04/2025, with respect to the applicability of NPL 1 in view of D’Haenens to amended claim 1 have been fully considered and are persuasive. The examiner agrees that the previous rejection improperly relied on the angle of the upper panel relative to the lower panel, which would not be applicable to the singular panel of the climbing wall of NPL 1. Therefore, the 35 U.S.C. 103 rejections of claims 1, 3, and 5-18 over NPL 1 in view of D’Haenens have been withdrawn. However, upon further consideration, a new ground(s) of rejection has been made in view of D’Haenens. See above.
Conclusion
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, LoAn Jimenez can be reached at (571) 272-4966. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KATHLEEN M FISK/Examiner, Art Unit 3784
/LOAN B JIMENEZ/Supervisory Patent Examiner, Art Unit 3784