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 .
Election/Restrictions
Applicant's election with traverse of Species VI (FIG. 11) in the reply filed on 1/7/2026 is acknowledged. The traversal is on the ground(s) that Species VI is directed to the exercise and hydration device of FIGS. 11 and 16 and covers features of the exercise and hydration device of FIGS. 1-4 (Species I). This is found persuasive because paragraph [0068] of the specification discloses that the “hydration device 800 [of FIG. 11] may have… identical features as those described with respect to the exercise and hydration devices 100, 200, 300 of FIGS. 1-7” (see page 6 of the Remarks, filed on 1/7/2026). As a result, Species I and VI are effectively combined into one species. Furthermore, Applicant argues that at least the independent claims are generic and cover all of the above-identified species and that Species VI includes at least claims 1-10, 14, and 17-23. This is also found persuasive. Therefore, claims 1-10, 14, and 17-23 are currently being examined.
The requirement between the combination of Species I and Species VI and the other Species (Species II-V and VII-VIII) is still deemed proper and is therefore made FINAL.
Claims 15-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 1/7/2026.
Claims 1-10, 14, and 17-23 are currently pending. An action on the merits follows.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 6/5/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objection
Claim 7 is objected to because of the following informality:
In claim 7 line 2, “snaped” should be changed to --snapped--.
Appropriate correction is required.
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.
Claims 14 and 18-22 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by US 6,745,785 (Kotovsky).
Regarding claim 14, Kotovsky discloses a method of using an exercise and hydration device (cane can be used for exercise, i.e., walking, and carries flasks for holding liquids for drinking - abstract, FIGS. 1-27), comprising:
obtaining one or more exercise and hydration devices (cane 10 - Col 2:26-38, FIGS. 1-27), wherein the one or more exercise and hydration devices 10 comprise:
an elongated tubular body, the elongated tubular body having a first end and a second end defining a length therebetween, wherein the length is greater than 1 foot (see annotated FIG. 12 below),
a cavity defined within the elongated tubular body (see annotated FIG. 12 below),
an aperture defined within the elongated tubular body at the first end, wherein the aperture provides access to the cavity (see annotated FIG. 12 below), and
a cap sealing the aperture (see annotated FIG. 12 below);
removing the cap from the aperture (each flask comprises a cap 30 and a base 32 in which fluid is held and on which the cap 30 fits - Col 2:40-41);
pouring a potable liquid through the aperture to at least partially fill the cavity with the potable liquid (during assembly, cap 30 is removed from each base 32 of each flask 25,26,28 and each flask is filled with a desired liquid - Col 3:62 to 4:27); and
moving with the one or more exercise and hydration devices in one or both of a user's hands to engage the user's upper body during a cardio exercise (the cane is inherently engaged by the user’s hands during walking, which can engage the user’s upper body during the walking cardio exercise).
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Regarding claim 18, Kotovsky teaches the method of claim 14, and further discloses wherein the one or more exercise and hydration devices comprise an exercise and hydration device (cane 10 can be used for exercise, i.e., walking, and carries flasks for holding liquids for drinking - abstract, FIGS. 1-27), and wherein moving with the one or more exercise and hydration devices comprises walking or running with the exercise and hydration device in one hand at less than a 90 degree angle to the user's wrist (the cane is inherently engaged by one hand of a user during walking, and the cane is capable of being angled at less than 90 degrees relative to the user’s wrist either by user’s desire or during the course of operation as the first end of the cane and the second end of the cane interact with the user’s hand and ground surface, respectively, which can cause the cane to be angled at less than 90 degrees relative to the user’s wrist).
Regarding claim 19, Kotovsky teaches the method of claim 14, and further discloses wherein moving with the one or more exercise and hydration devices comprises extending the one or more exercise and hydration devices away from the user's body as the user walks or runs (during a walking movement, a user would naturally extend the cane forward to engage the ground surface as support).
Regarding claim 20, Kotovsky teaches the method of claim 14, and further discloses wherein moving with the one or more exercise and hydration devices comprises walking, running, or hiking (cane can be used for walking or hiking if the user desires).
Regarding claim 21, Kotovsky teaches the method of claim 14, and further discloses wherein the elongated tubular body 10 comprises a plurality of body segments 18,20,22 removably coupled to one another (cane 10 comprises a plurality of elongated portions removably coupled to one another via threading as shown in annotated FIG. 12 above - Col 3:43-51).
Regarding claim 22, Kotovsky teaches the method of claim 14, and further discloses wherein the cap 30 is a screw cap that is coupled to the first end by threading (cap 30 can screw onto the base 32 - Col 2:61, FIGS. 1b-1c and 3b).
Claims 14 and 17 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by US 4,986,535 (Hull et al., hereinafter “Hull”).
Regarding claim 14, Hull discloses a method of using an exercise and hydration device (abstract, FIGS. 2-12), comprising:
obtaining one or more exercise and hydration devices (FIGS. 2-12), wherein the one or more exercise and hydration devices comprise:
an elongated tubular body 10, the elongated tubular body having a first end and a second end defining a length therebetween (see annotated FIG. 4 below), wherein the length is greater than 1 foot (the length is greater than 1 foot as it spans wider than the width of a user as shown in FIGS. 5-12),
a cavity defined within the elongated tubular body 10 (see annotated FIG. 4 below),
an aperture defined within the elongated tubular body at the first end, wherein the aperture provides access to the cavity (cap containing a removable plug 26 to allow the device to be partially filled with a fluid 22 such as water - Col 2:12-26, see annotated FIG. 4 below), and
a cap 26 sealing the aperture (see annotated FIG. 4 below);
removing the cap 26 from the aperture (removing the removably plug 26 allows the device to be partially filled with a fluid 22 such as water - Col 2:12-26, see annotated FIG. 4 below);
pouring a potable liquid 22 through the aperture to at least partially fill the cavity with the potable liquid (Col 2:12-26); and
moving with the one or more exercise and hydration devices in one or both of a user's hands to engage the user's upper body during a cardio exercise (see FIGS. 5-12).
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Regarding claim 17, Hull teaches the method of claim 14, and further discloses wherein the one or more exercise and hydration devices comprise an exercise and hydration device, and wherein moving with the one or more exercise and hydration devices comprises walking with the exercise and hydration device positioned behind the user's neck and on top of each of the user's shoulders (Col 2:4-8, FIGS. 11-12).
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.
Claims 1, 4, 7, and 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Kotovsky in view of US 10,610,738 (Seeger et al., hereinafter “Seeger”).
Regarding claim 1, Kotovsky discloses an exercise and hydration device (cane can be used for exercise, i.e., walking, and carries flasks for holding liquids for drinking - abstract, FIGS. 1-27), comprising:
an elongated tubular body comprising a first end and a second end, wherein the elongated tubular body defines a cavity and the first end defines an aperture that provides access to the cavity, and wherein a length of the exercise and hydration device is defined between the first end and the second end and a width of the exercise and hydration device is defined by a diameter of the aperture (see annotated FIG. 12 below; each portion of the flask is necessarily cylindrical to fit into the cylindrical shaft 14 and thus inherently has a diameter at the aperture - Col 2:40-49); and
a cap 30 coupled to the first end, the cap sealing the aperture (see annotated FIG. 12 below);
wherein the cavity is sized to carry an amount of a potable liquid that adds a weight to the exercise and hydration device that is desirable for upper body strength training by a user of the exercise and hydration device (during assembly, cap 30 is removed from each base 32 of each flask 25,26,28 and each flask is filled with a desired liquid, which inherently adds weight when introduced into the flask - Col 3:62 to 4:27; the cane is used for walking and can engage and exercise the user’s upper body when resistance is applied from the ground surface through the cane and the user’s hand and arm through to the user’s upper body).
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However, Kotovsky does not explicitly disclose wherein the weight is greater than 0.5 lbs.
Seeger teaches a similarly sized cylindrical exercise device having a center member 12 with a length (L1) of 22 inches and a diameter of approximately 1.92 inches, and the hollow interior portion of the center member 12 can be partially filled with approximately 38 ounces of a brine solution (Col 8:60 to 9:15, see annotated FIG. 11 below). Since Kotovsky discloses the cane can be 3 to 5 feet (36 inches to 60 inches) in length (Kotovsky: Col 3:29-32) and FIG. 12 shows nearly the entire length of the cane can be inserted with flasks containing liquid, it would be obvious to one skilled in the art that if Kotovsky’s device had the same 1.92 inches diameter as taught by Seeger, then at least 38 ounces of liquid (e.g., water) can be distributed among the three flasks. If the liquid is water, 38 ounces in volume translates to approximately 1.02 pounds (meeting the claimed limitation of greater than 0.5 lbs) at room temperature, assuming the density of water is about 0.99802 g/ml. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed to modify Kotovsky’s device with the diameter as taught by Seeger in order to provide a diameter to the device that is sufficiently sized for a user to comfortably grip the body of the device.
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Regarding claim 4, modified Kotovsky teaches the exercise and hydration device of claim 1, and Kotovsky further discloses wherein the width is uniform along a majority of the length of the exercise and hydration device (see annotated FIG. 12 above).
Regarding claim 7, modified Kotovsky teaches the exercise and hydration device of claim 1, and Kotovsky further discloses wherein the cap 32 is configured to be popped off or snaped onto the first end to facilitate quick removal and reattachment of the cap and wherein the cap is coupled to the elongated tubular body by an attachment that enables the cap to remain coupled to the elongated tubular body by the attachment after the cap is removed from the first end (the cap 30 can form a friction fit with the base 32 as shown in FIGS. 1a-1b and 3b, and thus can be popped off to facilitate quick removal and reattachment of the cap).
Regarding claim 9, modified Kotovsky teaches the exercise and hydration device of claim 1, and Kotovsky further discloses a grip positioned at a center of the elongated tubular body (the middle portion of the elongated tubular body as shown in annotated FIG. 12 above has a surface that can be interpreted as a grip).
Regarding claim 10, modified Kotovsky teaches the exercise and hydration device of claim 1, and modified Kotovsky discloses wherein the amount of the potable liquid is between 25 to 32 ounces (since at least 38 ounces of liquid can be provided in the cane 10 of Kotovsky when modified with the diameter of Seeger, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that a smaller amount can be provided, i.e., 25 to 32 ounces).
Claims 2-3 and 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Kotovsky in view of Seeger as applied to claim 1 above, and further in view of US 9,877,888 (Sosebee).
Regarding claims 2-3, modified Kotovsky teaches the exercise and hydration device of claim 1, but Kotovsky does not explicitly disclose wherein the length is 80% to 110% of a user's height for improved stability during upper body strength training (as in claim 2), or wherein the length is approximately 6 feet (as in claim 3).
Sosebee teaches a similar cane-like device (mobility device 1 can be a cane - Col 1:16-19 and 1:67 to 2:2) having a main support structure 3 with an upper end 4 that extends to a height near to the height of the user. In one embodiment, the height of the support structure 3 is between 60 inches to 72 inches (5 feet to 6 feet). See Col 2:1-15.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kotovsky’s invention with the length as taught by Sosebee in order to provide a cane size that can assist users in various mobility functions, including walking, using stairs, or simply moving from a sitting position to a standing position (Sosebee: Col 1:29-31).
Regarding claims 5-6, modified Kotovsky teaches the exercise and hydration device of claim 1, but Kotovsky does not explicitly disclose wherein the width is approximately 1 inch (as in claim 5), or wherein the length is more than 20 times greater than the width (as in claim 6).
Sosebee teaches a similar cane-like device (mobility device 1 can be a cane - Col 1:16-19 and 1:67 to 2:2) having a main support structure 3 with a diameter that is preferably between one inch and one and one-eighth inches (Col 2:27-31).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kotovsky’s invention with the diameter as taught by Sosebee in order to provide a cane size that can be sufficiently small such that the hand of the user can comfortably fit around the cane (Sosebee: Col 2:22-31). With a diameter of one inch as taught by Sosebee and a length of 36 to 60 inches as disclosed by Kotovsky (Col 3:31-32), the length is more than 20 times greater than the width, i.e., diameter.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Kotovsky in view of Seeger as applied to claim 1 above, and further in view of US 2004/0140311 (Benat).
Regarding claim 23, modified Kotovsky teaches the exercise and hydration device of claim 1, but Kotovsky does not explicitly disclose wherein the elongated tubular body is insulated to maintain a temperature of the potable liquid when the potable liquid is stored inside the cavity.
Benat teaches a flask having a double wall where a thermally conductive or thermally insulating fluid is introduced into a chamber delimited by the double wall (para 0011).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the flasks of Kotovsky with the double walled design and thermally insulating fluid as taught by Benat in order to maintain a desired ideal temperature of the liquid until the moment the liquid is consumed (Benat: para 0005).
Claims 1 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Hull in view of Seeger.
Regarding claim 1, Hull discloses an exercise and hydration device (abstract, FIGS. 2-12), comprising:
an elongated tubular body 10 comprising a first end and a second end (see annotated FIG. 4 below), wherein the elongated tubular body 10 defines a cavity and the first end defines an aperture that provides access to the cavity (see annotated FIG. 4 below), and wherein a length of the exercise and hydration device is defined between the first end and the second end and a width of the exercise and hydration device is defined by a diameter of the aperture (the device is made from P.V.C. pipe, thus being cylindrical and inherently having a diameter and a length between the two ends - Col 2:12-22, see annotated FIG. 4 below); and
a cap 26 coupled to the first end, the cap sealing the aperture (see annotated FIG. 4 below);
wherein the cavity is sized to carry an amount of a potable liquid that adds a weight to the exercise and hydration device that is desirable for upper body strength training by a user of the exercise and hydration device (the device is partially filled with a fluid 22 such as water, thus increasing the weight of the device while the user’s performs various exercises as shown in FIGS. 5-12 - Col 2:22-26).
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However, Hull does not explicitly disclose wherein the weight is greater than 0.5 lbs.
Seeger teaches a similarly sized cylindrical exercise device having a center member 12 with a length (L1) of 22 inches and a diameter of approximately 1.92 inches, and the hollow interior portion of the center member 12 can be partially filled with approximately 38 ounces of a brine solution (Col 8:60 to 9:15, see annotated FIG. 11 below). Since Hull discloses the device is at least 22 inches in length (the device is wider than the width of the user which is at least 22 inches as shown in FIGS. 5-12) and that fluid can flow from one end to the other (Col 1:36-38), it would be obvious to one skilled in the art that if Hull’s device had the same 1.92 inches diameter as taught by Seeger, then at least 38 ounces of liquid (e.g., water) can be distributed throughout the device. If the liquid is water, 38 ounces in volume translates to approximately 1.02 pounds (meeting the claimed limitation of greater than 0.5 lbs) at room temperature, assuming the density of water is about 0.99802 g/ml. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed to modify Hull’s device with the diameter as taught by Seeger in order to provide a diameter to the device that is sufficiently sized for a user to comfortably grip the body of the device.
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Regarding claim 8, modified Hull teaches the exercise and hydration device of claim 1, and Hull further discloses wherein the second end comprises a rubber base (end cap 16 is provided at the second end - see annotated FIG. 4 above; end caps are made of rubber - claims 10-11).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892 form.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA S LEE whose telephone number is (571)270-1661. The examiner can normally be reached Monday-Friday 11am-7pm Eastern.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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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/Joshua Lee/ Primary Examiner, Art Unit 3784