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 .
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.
This application is a continuation of US Nonprovisional 17/948,604 filed on 09/20/2022 and issued as US 12,357,872 on 07/15/2025.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 08/09/2024 and 06/10/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the examiner.
Claim Objections
Claims 2, 9-10, 12, and 19-20 objected to because of the following informalities:
Claim 2, lines 1-2, “the first and second platforms” should read ---the left and right platforms---
Claim 2, line 8, “the first and second platforms” should read ---the left and right platforms---
Claim 2, line 9, “the first and second platforms” should read ---the left and right platforms---
Claim 9, line 2, “the first and second platforms” should read ---the left and right platforms---
Claim 10, line 1, “neutral sides surfaces” should read ---neutral side surfaces---
Claim 10, line 2, “the respective first and second platforms” should read ---the respective left and right platforms---
Claim 10, line 3, “the first and second platforms” should read ---the left and right platforms---
Claim 12, lines 1-2, “the first and second platforms” should read ---the left and right platforms---
Claim 12, line 3, “the first and second platforms” should read ---the left and right platforms---
Claim 12, line 5, “the first and second platforms” should read ---the left and right platforms---
Claim 19, line 2, “the first and second platforms” should read ---the left and right platforms---
Claim 20, line 2, “the respective first and second platforms” should read ---the respective left and right platforms---
Claim 20, line 3, “the first and second platforms” should read ---the left and right platforms---
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.
Claims 1-2, 5-12, 15-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by LaCaze (US 9,393,458).
Regarding independent claim 1, LaCaze discloses a system configured to redistribute weight of a user in a standing position comprising:
left and right platforms (305, Figs. 4-7) that are mirror images of one another and are configured to support a left and right foot of the user (Figs. 8-10), respectively, each platform including a top surface (top surface formed by top surface 322 and surface of rotatable plate 330) and a bottom surface (floor contacting surface) separated by a plurality of planar side surfaces (sides of base 310), each of the plurality of planar side surfaces of the left platform being configured to lie adjacent to each of the plurality of planar side surface of the right platform based on the orientation of the left and right platforms with respect to one another (Figs. 7-10, col. 7 lines 60-63, “the example rotational resistance system 300, as shown by reference to FIGS. 4-7, is designed to be employed with the user standing on two devices 305 in adjacent relation on a floor or planar surface”),
wherein the left and right platforms are configured such that when a foot of the user is in contact with the top surface, a first point of contact on the top surface corresponding to an inside of a ball of the foot is higher with respect to a reference plane than a second point of contact on the top contact surface corresponding with an inside of a heel of the foot, the second point of contact being higher with respect to the reference plane than a third point of contact corresponding with an outside of the ball of the foot, the third point of contact being higher with respect to the reference plane than a fourth point of contact corresponding with an outside of the heel of the foot (a user is capable of positioning the left and right platforms 305 and rotating his/her feet on the rotating plates 330 to achieve the claimed orientation of the foot relative to a reference plane).
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Regrading claim 2, the Office notes the limitation of claim 2 represents a product-by-process claim. Claim 2 recites the steps used by applicant involving a top plane and the reference plane (i.e., imaginary planes rather than structural planes) to achieve the final limitation of claim 2 of “the top surface of each of the first and second platforms having a fixed orientation relative to the respective bottom surface of each of the first and second platforms based on the second orientation of the top plane relative to the reference plane.” The court has held that “[b]ecause validity is determined based on the requirements of patentability, a patent is invalid if a product made by the process recited in a product-by-process claim is anticipated by or obvious from prior art products, even if those prior art products are made by different processes." Amgen Inc. v. F. Hoffmann-La Roche Ltd., 580 F.3d 1340, 1370 n. 14, 92 USPQ2d 1289, 1312, n. 14 (Fed. Cir. 2009).
In the instant case, the Office notes the orientation of the top surface (formed by top surface 322 and surface of rotatable plate 330) relative to the bottom surface (ground contacting surface) of the left and right platforms (305) of LaCaze is capable of being formed using the process claimed of the top surface having a top plane parallel to the reference plane in an initial orientation, the top plane and reference plane forming a second orientation by tilting the top plane to a first degree about a first axis parallel to the reference plane and then rotating the top plane to a second degree about a second axis orthogonal to the reference plane, wherein the second degree is greater than the first degree, the top surface being parallel to the top plane in the second orientation, the bottom surface being parallel to the reference plane in the second orientation. These limitations merely represent manipulation of an imaginary top plane relative to an imaginary reference plane and creates no structural requirements aside from the final product having a top surface being parallel to the manipulated top plane in the second orientation and fixed relative to the bottom surface. Because the top surfaces of each of the left and right platforms of LaCaze forms a fixed angular orientation relative to the respective bottom surfaces, the Office holds the platforms of LaCaze satisfy the limitations of claim 2. See MPEP 2113.
Regarding claim 5, LaCaze further discloses wherein the top surface (322, 330) of the left and right platforms (305) are planar (see Fig. 7).
Regarding claim 6, the Office notes the limitation of claim 6 represents a further step in a product-by-process claim depending from claim 2. Following the rejection of claim 2 above, the orientation of the top surface of each of the left and right platforms of LaCaze relative to the respective bottom surfaces (i.e., the final product) satisfies the resulting structural requirements of the product-by-process of claims 2 and 6, absent further structural and/or functional limitations. The Office notes the angular orientation of the top surfaces relative to the bottom surfaces of the platforms of LaCaze are capable of being achieved by tilting the imaginary top plane to the first degree between 10⁰ and 12.5⁰ about the first axis relative to the reference plane and constructing the top surfaces to be parallel to the resulting top plane.
Regarding claim 7, the Office notes the limitation of claim 7 represents a further step in a product-by-process claim depending from claims 2 and 6. Following the rejections of claims 2 and 6 above, the orientation of the top surface of each of the left and right platforms of LaCaze relative to the respective bottom surfaces (i.e., the final product) satisfies the resulting structural requirements of the product-by-process of claims 2, 6, and 7, absent further structural and/or functional limitations. The Office notes the angular orientation of the top surfaces relative to the bottom surfaces of the platforms of LaCaze are capable of being achieved by rotating the imaginary top plane to the second degree between 20⁰ and 25⁰ about the second axis relative to the reference plane and constructing the top surfaces to be parallel to the resulting top plane.
Regarding claim 8, LaCaze further discloses wherein the top surface (322, 330) of the left and right platforms (305) includes visual indicia (degree of rotation indicators 315) configured to define how the left and right foot, respectively, are to be oriented relative to the top surface (the degree of rotation indicators provides reference points for a user to rotate his/her feet to a desired orientation on rotating plates 330).
Regarding claim 9, LaCaze further discloses wherein one of the plurality of side surfaces (sides of base 310) of each of the first and second platforms (305) is a neutral side surface (any of the side surfaces of base 310 may be considered a neutral side surface).
Regarding claim 10, LaCaze further discloses wherein when the respective neutral side surfaces (any of the side surfaces of base 310) of the respective first and second platforms (305) are in contact with one another, the respective left and right foot of a user standing on the first and second platforms are parallel to one another (a user is capable of standing on the first and second platforms with his/her left and right foot parallel to one another when any of the respective side surfaces of the bases 310 of the platforms 305 are in contact with one another).
Regarding independent claim 11, LaCaze discloses a system configured to redistribute weight of a user in a standing position comprising:
left and right platforms (305, Figs. 4-7) that are mirror images of one another and are configured to support a left and right foot of the user (Figs. 8-10), respectively, each platform including:
a top plane parallel to a reference plane in an initial orientation, the top plane and the reference plane forming a second orientation by tilting the top plane to a first degree about a first axis parallel to the reference plane and then rotating the top plane to a second degree about a second axis orthogonal to the reference plane, wherein the second degree is greater than the first degree (the Office notes these limitations represent process steps in a product-by-process claim to achieve the final product of a platform having a top surface positioned angularly relative to a bottom surface; see similar analysis and rejection presented above for claim 2, see MPEP 2113);
a top surface being parallel to the top plane in the second orientation, the top surface configured as a contact surface (top surface formed by top surface 322 and surface of rotatable plate 330); and
a bottom surface being parallel to the reference plane in the second orientation (bottom surface of each platform 305),
wherein the top surface and a bottom surface are separated by a plurality of planar side surfaces (side surfaces of base 310), and
wherein each of the plurality of planar side surfaces of the left platform is configured to lie adjacent to each of the plurality of planar side surface of the right platform based on the orientation of the left and right platforms with respect to one another (Figs. 7-10, col. 7 lines 60-63, “the example rotational resistance system 300, as shown by reference to FIGS. 4-7, is designed to be employed with the user standing on two devices 305 in adjacent relation on a floor or planar surface”).
Regrading claim 12, LaCaze further discloses wherein the top surface (formed by top surface 322 and surface of rotatable plate 330) of each of the first and second platforms (305) is oriented at a fixed complex angle relative to the respective bottom surface (ground contacting surface) of each of the first and second platforms based on the second orientation of the top plane relative to the reference plane (absent further structural and/or functional limitations, the Office holds the top surfaces of each platform of LaCaze satisfies the limitation of being oriented at a fixed complex angle relative to the respective bottom surfaces as the angular orientation of each top surface is capable of being achieved using the complex angles of the top plane relative to the reference plane in the product-by-process limitations of claim 11) such that when a respective foot of the user is in contact with the top surface of each of the first and second platforms, a first point of contact on the top surface corresponding to an inside of a ball of the foot is higher with respect to a reference plane than a second point of contact on the top contact surface corresponding with an inside of a heel of the foot, the second point of contact being higher with respect to the reference plane than a third point of contact corresponding with an outside of the ball of the foot, the third point of contact being higher with respect to the reference plane than a fourth point of contact corresponding with an outside of the heel of the foot (a user is capable of positioning the left and right platforms 305 and rotating his/her feet on the rotating plates 330 to achieve the claimed orientation of the foot).
Regarding claim 15, LaCaze further discloses wherein the top surface (322) of the left and right platforms (305) are planar (see Fig. 7).
Regarding claim 16, the Office notes the limitation of claim 16 represents a further step in a product-by-process claim depending from claims 11 and 12. Following the rejection of claims 11 and 12 above, the orientation of the top surface of each of the left and right platforms of LaCaze relative to the respective bottom surfaces (i.e., the final product) satisfies the resulting structural requirements of the product-by-process of claims 11, 12 and 16, absent further structural and/or functional limitations. The Office notes the angular orientation of the top surfaces relative to the bottom surfaces of the platforms of LaCaze are capable of being achieved by tilting the imaginary top plane to the first degree between 10⁰ and 12.5⁰ about the first axis relative to the reference plane and constructing the top surfaces to be parallel to the resulting top plane.
Regarding claim 17, the Office notes the limitation of claim 17 represents a further step in a product-by-process claim depending from claims 11, 12 and 16. Following the rejections of claims 11, 12 and 16 above, the orientation of the top surface of each of the left and right platforms of LaCaze relative to the respective bottom surfaces (i.e., the final product) satisfies the resulting structural requirements of the product-by-process of claims 11, 12, 16, and 17, absent further structural and/or functional limitations. The Office notes the angular orientation of the top surfaces relative to the bottom surfaces of the platforms of LaCaze are capable of being achieved by rotating the imaginary top plane to the second degree between 20⁰ and 25⁰ about the second axis relative to the reference plane and constructing the top surfaces to be parallel to the resulting top plane.
Regarding claim 18, LaCaze further discloses wherein the top surface (322, 330) of the left and right platforms (305) includes visual indicia (degree of rotation indicators 315) configured to define how the left and right foot, respectively, are to be oriented relative to the top surface (the degree of rotation indicators provides reference points for a user to rotate his/her feet to a desired orientation on rotating plates 330).
Regarding claim 19, LaCaze further discloses wherein one of the plurality of side surfaces (sides of base 310) of each of the first and second platforms (305) is a neutral side surface (any of the side surfaces of base 310 may be considered a neutral side surface).
Regarding claim 20, LaCaze further discloses wherein when the respective neutral side surfaces (any of the side surfaces of base 310) of the respective first and second platforms (305) are in contact with one another, the respective left and right foot of a user standing on the first and second platforms are parallel to one another (a user is capable of standing on the first and second platforms with his/her left and right foot parallel to one another when any of the respective side surfaces of the bases 310 of the platforms 305 are in contact with one another).
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 3-4 and 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over LaCaze (US 9,393,458).
Regarding claims 3 and 13, LaCaze does not teach wherein each of the left and right platforms has eight planar side surfaces. However, it would have been an obvious matter of design choice to one having ordinary skill in the art prior to the effective filing date of the claimed invention to modify the shape of the left and right platforms to be of whatever form or shape was desired or expedient, including forming the platforms with eight planar side surfaces or in the shape of an octagon. It has been held that a change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent a showing of unexpected results or criticality. Here, modifying the shape of the left and right platforms of LaCaze will not alter the overall functionality of the platforms as a user will remain capable of positioning his/her feet on the respective platforms in whatever position is desired. See MPEP 2144.04(IV)(B).
Regarding claims 4 and 14, LaCaze as modified teaches wherein any one of the eight planar side surfaces of the left platform is configured to contact and lie parallel to any one of the eight planar side surfaces of the right platform (as modified in claims 3 and 13 above, the eight side surfaces of each platform will be capable of contacting and lying parallel to the eight side surfaces of the other platform due to the planar nature of the side surfaces).
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