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 .
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
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.
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Claim 16 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 8 of U.S. Patent No. 12,059,590. Although the claims at issue are not identical, they are not patentably distinct from each other because they are more broad and anticipated by 1 and 8 of U.S. Patent No. 12,059,590.
Instant Application
Patent No. 12,059,590
Difference
Claim 16. A treadmill slat for a treadmill belt comprising: at least one web fin descending downward from an upper flange of said transverse slat, said at least one web fin of each said slat extending vertically perpendicular down from each said upper flange of said slat; wherein said vertical downwardly descending web fin of said treadmill slat has a distal end having a lower stabilizing horizontal flange extending horizontally at the downward distal end of the vertical web fin; and, wherein said upper flange of said treadmill slat, said downwardly descending fin and said stabilizing horizontally extending lower flange form an I-beam shape in cross section.
Claim 1. An exercise treadmill comprising: a treadmill frame supporting a continuous treadmill running surface belt moving over a set of pulleys communicating with the continuous treadmill running surface belt and forming a continuous treadmill running surface, the continuous treadmill running surface belt being a closed loop array of a plurality of transverse parallel slats, wherein each of the transverse parallel slats comprises parallel upper and lower flanges, with respective upper and lower flange surfaces and a single web fin extending substantially vertically between, and in a substantially perpendicular relation, to the lower surface of the parallel upper flange and the upper surface of the parallel lower flange, wherein the upper flange surface of the parallel upper flange is part of the continuous treadmill running surface, and wherein the single web fin and the parallel upper and lower flanges form an I-beam shape in cross-section that resists undesirable bending forces imposed upon the continuous treadmill running surface during operational use of the treadmill.
Claim 1 of Patent No. 12,059,590 is more narrow and anticipates all the structures of the instant Claim 16.
Claim 16. A treadmill slat for a treadmill belt comprising: at least one web fin descending downward from an upper flange of said transverse slat, said at least one web fin of each said slat extending vertically perpendicular down from each said upper flange of said slat; wherein said vertical downwardly descending web fin of said treadmill slat has a distal end having a lower stabilizing horizontal flange extending horizontally at the downward distal end of the vertical web fin; and, wherein said upper flange of said treadmill slat, said downwardly descending fin and said stabilizing horizontally extending lower flange form an I-beam shape in cross section.
Claim 8. A treadmill slat formed for use as part of a continuous treadmill running surface, the treadmill slat comprising: an upper flange with an upper surface and a lower surface, the upper surface formed for use as part of the continuous treadmill running surface; a lower flange with an upper surface and a lower surface, wherein the upper and lower surfaces of the upper and lower flanges are substantially in parallel; and a single web fin with opposing first and second ends; wherein the single web fin extends substantially vertically from the fin's opposing first end, in a substantially perpendicular attached relation with the lower surface of the upper flange, to the upper surface of the lower flange in a substantially perpendicular attached relation with the fin's opposing second end; and wherein the single web fin and the upper and lower flanges form the treadmill slat with a cross-section substantially in a shape of an I-beam.
Claim 8 of Patent No. 12,059,590 is more narrow and anticipates all the structures of the instant Claim 16.
Claim Objections
Claim 16 is objected to because of the following informalities:
Claim 16 Line 5 recites “vertical downwardly descending web fin” should be replaced with --web fin descending downward vertically-- to stay consistent with claim language.
Claim 16 Line 7 recites “vertical web fin”, should be replaced with --web fin-- to stay consistent with claim language.
Claim 16 Line 8 recites “downwardly descending fin”, should be replaced with --web fin descending downward-- to stay consistent with claim language.
Claim 16 Line 9 recites “stabilizing horizontally extending lower flange” should be replaced with --lower stabilizing horizontal flange-- to stay consistent with claim language. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 16 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 16 recites the limitation "said transverse slat" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. It appears Applicant intends for the limitation to be --said treadmill slat--.
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) 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Yoo (US 11007404).
Regarding Claim 16, Yoo teaches treadmill slat 50 for a treadmill belt comprising: at least one web fin 200 descending downward from an upper flange 100 of said transverse slat 50, said at least one web fin of each said slat extending vertically perpendicular down from each said upper flange of said slat (Refer to Figs. 1 and 5-7B); wherein said vertical downwardly descending web fin 200 of said treadmill slat has a distal end having a lower stabilizing horizontal flange 300 extending horizontally at the downward distal end of the vertical web fin 200; and, wherein said upper flange 100 of said treadmill slat 50, said downwardly descending fin 200 and said stabilizing horizontally extending lower flange 300 form an I-beam shape in cross section (Refer to Figs. 5-7B Col 5 Lines 11-41).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Refer to attach list of references cited for prior arts pertinent to claim and unclaimed subject matter.
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/NYCA T NGUYEN/ Primary Examiner, Art Unit 3784