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 .
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 7 and 12 have been cancelled.
Claims 1-6, 8-11 and 13-22 have been examined.
Claim Rejections - 35 USC § 103
Claims 1-4, 6, 9-11, and 13-22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kaczmarek (US Patent Application Publication 2010/0075565) in view of Lewis-Dove (US Patent Application Publication 2021/0170218) and Mullen et al (US Patent Application Publication 2021/0162251).
1, 3, 13, 15, 18, and 20. Kaczmarek discloses fitness equipment with integrated play equipment comprising:
a support structure comprising:
a plurality of vertical supports (24); and
a plurality of horizontal cross members (Fig 1) attached to the plurality of vertical supports to allow for overall stability; and
a play equipment feature (34) attached to said freestanding support structure.
Kaczmarek discloses the equipment significantly as claimed including positioning exercise apparatus on the structure at various locations, but does not explicitly disclose wherein the vertical supports include a first, second, and third plurality of apertures on each side of a vertical support adapted to removably receive various fitness attachments such as a first support bracket and second support bracket configured to removably receive and support a barbell and the plurality of horizontal cross members.
Lewis-Dove teaches a similar exercise apparatus (Fig 14) having vertical supports and rungs extending therebetween as part of larger fitness structure wherein the vertical supports include a plurality of apertures (Fig 1) receiving support brackets (1451-1452) which can removably receive and support a barbell (1431) as well as dip bars (2341; Fig 24) and other fitness equipment (Fig 24-28). It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the exercise apparatus of Kaczmarek to include apertures on each side of the vertical support as taught by Lewis-Dove with a reasonable expectation of success such that various exercise features (such as the chin up bar and dip supports, as well as a barbell supporting bracket) can be interchangeably attached based on the users desired exercise routine.
Further, Kaczmarek does not disclose the equipment having a foot extending horizontally from a vertical support of the plurality of vertical supports, wherein the foot includes a hole that is sized to receive a removable earth anchor such that a central axis of the removable earth anchor is offset from a central axis of the vertical support.
Mullen et al disclose a similar exercise apparatus comprising a freestanding support structure with vertical members configured to support various exercise attachments, wherein the vertical supports have feet (114) at a bottom thereof and “define a plurality of apertures that are configured to receive fasteners (e.g., bolts, etc.) such that the short frame 110 may be secured (e.g., anchored, etc.) to a ground surface” (Par. 0037). It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the vertical supports of Kaczmarek to have feet with apertures as taught by Mullen et al to secure the exercise apparatus to a ground surface.
2, 14, and 19. Kaczmarek discloses the equipment as in claim 1, wherein the vertical support is a first vertical support, the apparatus further comprising the first vertical support and a second vertical support of the plurality of vertical supports, wherein the first vertical support and the second vertical support are connected by a horizontal cross member at heights configured to serve as pull up bars (74; Par. 0027).
4, 16, and 21. Kaczmarek discloses the equipment as in claim 1, further comprising two supports (60) configured at heights and spacing to serve as dip bars for exercise moves and serve as a handrail for steps leading (35) to play features (Fig 1).
6 and 17. Kaczmarek discloses the equipment as in claim 1, further comprising a horizontal platform (36) connected to the freestanding support structure and perpendicular to an adjacent vertical place which has an opening configured at heights to allow a foot of a user to be inserted to provide stability when performing core exercise moves (Fig 1).
9. Kaczmarek discloses the equipment as in claim 1, further comprising a removable vertical and horizontal member (28) from which various suspension exercise equipment (34)may be hung from a height of over 8 feet (Fig 1).
10. Kaczmarek discloses the equipment as in claim 1, further comprising a modular design including four vertical supports, five horizontal cross members and a series of platforms independent from the other features; and
additional equipment including two additional vertical supports, a plurality of barriers with horizontal cross members, and a platform may be added to expand the fitness equipment; and
a horizontal bar and A-frame vertical support may be added to the modular design and the additional equipment to provide a place from which to hang swings (Fig 1).
11. Kaczmarek discloses the equipment as in claim 1, further comprising a modular design, wherein an additional horizontal bar and A-frame vertical support (28) may be added to the modular design to provide an additional place from which to hang swings
22. Kaczmarek discloses the exercise apparatus of claim 18, further comprising a horizontal platform connected to the freestanding support structure and perpendicular to an adjacent vertical plane which has an opening configured at heights to allow a foot of a user to be inserted to provide stability when performing core exercise moves (See Examiner's Figure).
Examiner’s Figure (From Fig 1)
[AltContent: textbox (Horizontal Platform)][AltContent: textbox (Opening)]
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Claims 5 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Kaczmarek in view of Lewis-Dove and Mullen et al as applied to Claims 1-4, 6, 9-11, and 13-22, and further in view of Voyer (CA 3000075).
5. Kaczmarek in view of Lewis-Dove and Mullen et al disclose the equipment significantly as claimed, but do not disclose the fitness equipment further comprising a platform system supported by and connected to the freestanding support structure via an aperture extending through the first vertical support and the second vertical support such that the first vertical support is removably received on a first side of at least one of the first vertical support of the second vertical support and having a plurality of platforms arranged at decreasing heights attached on an opposing side of the freestanding support structure and having supports configured to be supported on a ground surface to provide a rigid system capable of supporting dynamic forces associated with fitness and play features, wherein said platform system is oriented to allow a user to perform box jump exercises as well as steps. (Box adjacent 35 as shown in Fig 1).
Voyer teaches a similar playset having integrated workout stations (Fig 1) which has a platform system (stairs 163) which are connected to vertical supports which are configured to be supported on a ground surface which allows a user to walk or box jump up the stairs. It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the equipment of Kaczmarek in view of Lewis-Dove and Mullen et al. to have stairs connected to the freestanding support structure which would provide an additional option for a user to climb to reach the elevated platform as well as provide an additional exercise (stairclimbing and/or hopping) to the integrated workout station.
8. Kaczmarek in view of Lewis-Dove and Mullen et al disclose the equipment significantly as claimed, including barriers surrounding the elevated platform, but do not disclose the fitness equipment further comprising a plurality of removable barriers and a plurality of equipment components being sized and configured to be interchangeably connected to the freestanding support structure in a variety of positions for maximum versatility for a user (Fig 1).
Voyer teaches a similar playset having integrated workout stations (Fig 1) and an elevated platform, wherein the elevated platform is surrounded by removable barriers (170) and equipment elements (e.g. spinning toys, viewing bubbles, etc.) that are interchangeable between adjacent vertical support posts (Fig 1). It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the barrier of Kaczmarek to include interchangeable barriers and play equipment as taught by Voyer et al to increase the modularity and customization of the playset.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-6, 8-11 and 13-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No. 11957971. Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter claimed in the instant application is fully disclosed in the patent and is covered by the patent since the patent and the application are claiming common subject matter, as follows: an apparatus comprising a freestanding support structure having a plurality of vertical supports with apertures to removably receive support brackets, cross members, and other fitness equipment; a platform system supported by and connected to the freestanding support structure; a plurality of play equipment features, and a foot sized to receive a removable earth anchor.
Furthermore, there is no apparent reason why applicant was prevented from presenting claims corresponding to those of the instant application during prosecution of the application which matured into a patent. See In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA 1968). See also MPEP § 804.
Response to Arguments
Applicant’s arguments with respect to the claims 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA T KENNEDY whose telephone number is (571)272-8297. The examiner can normally be reached on M-F 7a-4:30p MST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, LoAn Jimenez can be reached on (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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/JOSHUA T KENNEDY/Primary Examiner, Art Unit 3649 1/12/2026