DETAILED ACTION
This is the first Office action on the merits based on the 18/813,570 application filed on 08/23/2024. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . The effective filing date of the present application is 10/02/2017. Claims 1-8, as originally filed, are currently pending and considered below.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 08/23/2024 was in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Specification
The abstract of the disclosure is objected to because of the following informalities:
In line 1, “134. An exercise machine is disclosed. The exercise machine comprises” uses a phrase which can be implied (i.e. “is disclosed”). See below. Applicant is suggested to amend the terms in line 1 to --- An exercise machine comprises ---.
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Applicant is reminded of the proper language for an abstract of the disclosure.
The language should be clear and concise and should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc.
The disclosure is objected to because of the following informalities:
The use of the terms NAUTILUS, BOWFLEX, and THERABAND, which are trade names or marks used in commerce, has been noted in this application. They should be capitalized wherever they appear and be accompanied by the generic terminology.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier.
Such claim limitation(s) is/are:
In claim 1, line 2: “a tension generating device.”
In claim 3, lines 1-2, “the translatable arm mount permits the arm to pivot vertically.”
In claim 4, lines 1-2, “the translatable arm mount permits the arm to pivot vertically at least in part using teeth.”
In claim 5, line 1, “the teeth are trapezoidal in shape.”
In claim 6, lines 1-2, “the teeth are engaged using a compressed spring and arm-based lever.”
In claim 7, line 1, “the translatable arm mount permits locking.”
In claim 8, line 1, “the locking is based at least in part on a pin.”
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof (see MPEP § 2183).
Such corresponding structure is/are:
Regarding the tension generating device, the specification, as originally filed, paragraphs 0053-0055, discloses: primary sources of tension and/or resistance based on electronic resistance, pneumatic cylinders, springs, weights, flexing nylon rods, elastics, pneumatics, hydraulics, and/or friction.
Regarding the translatable arm mount, the specification, as originally filed, paragraph 00135, and Figures 9J-9P, discloses: “Figure 9J is a side view section of an exercise machine slider (403) with its locking mechanism and pin locked. Figure 9K is a side view section of an exercise machine slider (403) with its locking mechanism and pin unlocked. Figure 9L is a perspective view of an exercise machine slider (403), revealing the pin (404) as well as teeth (422) for an arm vertical pivot. Figure 9M is a perspective view of the exercise machine slider (403) in a column/rail (402) with revealed teeth (422), with arm (702) set at a vertical pivot at a point parallel to the horizontal plane. Figure 9N is a side view section of the exercise machine slider (403) in a column/rail (402), with arm (702) set at a vertical pivot at a point parallel to the horizontal plane. The female locking member (722) and compression spring (733) are visible within the section of Figure 9N. Figure 9O is a sectional side view of the exercise machine slider (403). Figure 9P illustrates an exploded perspective view drawing of the exercise machine slider (403).” According to the specification, as originally filed, paragraphs 00121 and 00122:
Using trapezoidal teeth for locking is disclosed. The teeth (422) and matching female locking member (722) use a trapezoidal shape instead of a rectangular shape because a rectangular fitting should leave room for the teeth to enter the female locking member. Using a rectangular tooth causes “wiggle” in the locking joint, and this wiggle is leveraged at the end of arm (702). A trapezoidal set of teeth (422) to enter female locking mechanism (722) makes it simpler for the two members to be tightly coupled, minimizing joint wiggle.
Using a trapezoidal set of teeth increases the risk of the joint slipping / back-drive while under the stress of high loads. Empirically a slope of between 1 and 15 degrees, for example 5 degrees, minimizes joint slippage while maximizing ease of entry and tightening. The slope of the trapezoid is set such that the amount of back-drive force is lower than the amount of friction of the trapezoidal surfaces on one another.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 11,110,317 (reference application).
Regarding claim 1, the reference application discloses an exercise machine, comprising: a tension generating device; a translatable arm mount coupled to the tension generating device; an arm coupled to the translatable arm mount; a cable coupled to the tension generating device via the arm; and a track for the translatable arm mount to slide along one dimension of translation (claim 1 of the reference application: “An exercise machine, comprising: a tension generating device; a translatable arm mount coupled to the tension generating device; an arm coupled to the translatable arm mount; a cable coupled to the tension generating device via the arm; and a track for the translatable arm mount to slide along one dimension of translation”), wherein the track is rotatable horizontally (claim 9 of the reference application: “The exercise machine of claim 1, wherein the track is rotatable horizontally.”), wherein the arm is capable of being stowed by pivoting the arm vertically and rotating the arm in a compact manner such that the arm is facing a back of the exercise machine (claim 10 of the reference application: “The exercise machine of claim 9, wherein the arm is capable of being stowed by pivoting the arm vertically and rotating the arm such that the arm is facing a back of the exercise machine.”).
Regarding claim 2, the reference application further discloses wherein the tension generating device is based on at least one of the following: electronic resistance, pneumatic cylinders, springs, weights, flexing nylon rods, elastics, pneumatics, hydraulics, and friction (claim 2 of the reference application: “The exercise machine of claim 1, wherein the tension generating device is based on at least one of the following: electronic resistance, pneumatic cylinders, springs, weights, flexing nylon rods, elastics, pneumatics, hydraulics, and friction.”).
Regarding claim 3, the reference application further discloses wherein the translatable arm mount permits the arm to pivot vertically (claim 3 of the reference application: “The exercise machine of claim 1, wherein the translatable arm mount permits the arm to pivot vertically.”).
Regarding claim 4, the reference application further discloses wherein the translatable arm mount permits the arm to pivot vertically at least in part using teeth (claim 4 of the reference application: “The exercise machine of claim 1, wherein the translatable arm mount permits the arm to pivot vertically at least in part using vertical pivot locking teeth.”).
Regarding claim 5, the reference application further discloses wherein the teeth are trapezoidal in shape (claim 5 of the reference application: “The exercise machine of claim 4, wherein the vertical pivot locking teeth are trapezoidal in shape.”).
Regarding claim 6, the reference application further discloses wherein the teeth are engaged using a compressed spring and arm-based lever (claim 6 of the reference application: “The exercise machine of claim 5, wherein the vertical pivot locking teeth are engaged using a compressed spring and an arm-based lever.”).
Regarding claim 7, the reference application further discloses wherein the translatable arm mount permits locking (claim 7 of the reference application: “The exercise machine of claim 1, wherein the translatable arm mount permits locking.”).
Regarding claim 8, the reference application further discloses wherein the locking is based at least in part on a pin (claim 7 of the reference application: “The exercise machine of claim 7, wherein the locking is based at least in part on a pin.”).
Claim Rejections - 35 USC § 102
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 1-4, 7, and 8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Reyes (US 2011/0294630).
Regarding claim 1, Reyes discloses an exercise machine, comprising:
a tension generating device (the springs 112 together with the one or more resilient members 304; Figures 3C and 3D; paragraphs 0097-0099; refer to the annotated Figure 3C, see below);
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a translatable arm mount (the tension adjuster 144; Figures 3C and 3D; paragraphs 0097-0099; refer to the annotated Figure 3C, see above) coupled to the tension generating device (Figures 3C and 3D);
an arm (the arm assembly 108; Figures 3C and 3D; refer to the annotated Figure 3C, see above) coupled to the translatable arm mount (Figures 3C and 3D; refer to the annotated Figure 3C, see above);
a cable (the cable 308; Figures 3C and 3D; paragraphs 0097-0099; refer to the annotated Figure 3C, see above) coupled to the tension generating device via the arm (Figures 3C and 3D; refer to the annotated Figure 3C, see above); and
a track (the track 304; Figure 3C-3E; paragraph 0088) for the translatable arm mount to slide along one dimension of translation (Figures 3C and 3D; paragraph 0088), wherein the track is rotatable horizontally (Figures 6B and 6C), wherein the arm is capable of being stowed by pivoting the arm vertically (Figure 5B) and rotating the arm in a compact manner such that the arm is facing a back of the exercise machine (Figures 6B and 6C; paragraph 0055).
Regarding claim 2, Reyes further discloses wherein the tension generating device is based on at least one of the following: electronic resistance, pneumatic cylinders, springs (Figures 3C and 3D), weights, flexing nylon rods, elastics (“The resilient member 304 may be a resiliently stretchable device or material, such as a spring or elastic band.”; paragraph 0098), pneumatics, hydraulics, and friction.
Regarding claim 3, Reyes further discloses wherein the translatable arm mount permits the arm to pivot vertically (adjustment of the tension adjuster 144 along the track 304 alters resistance from the one or more springs 112 which correspondingly permits the arm assembly 108 to pivot vertically with more or less resistance via the pivot 120; Figures 3C, 3D, and 5A-5C).
Regarding claim 4, Reyes further discloses wherein the wherein the translatable arm mount permits the arm to pivot vertically (adjustment of the tension adjuster 144 along the track 304 alters resistance from the one or more springs 112 which correspondingly permits the arm assembly 108 to pivot vertically with more or less resistance via the pivot 120; Figures 3C, 3D, and 5A-5C) at least in part using teeth (adjustment of the tension adjuster 144 along the track 304 involves a gear or finger of a ratcheting mechanism engaging at least one of the indentations 308 of the track 304; paragraphs 0089-0092; Figure 3E).
Regarding claim 7, Reyes further discloses wherein the translatable arm mount permits locking (“the tension adjuster 144 may be locked in place by one or more clips, clamps, pins, or the like if desired”; paragraph 0101).
Regarding claim 8, Reyes further discloses wherein the locking is based at least in part on a pin (the tension adjuster 144 may be locked in place by one or more clips, clamps, pins, or the like if desired”; paragraph 0101).
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.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Reyes (US 2011/0294630) in view of Strom (US 2014/0121071).
Regarding claim 5, Reyes discloses the invention as substantially claimed, see above, and further discloses a gear or finger of the ratcheting mechanism to engage at least one of the indentations 308 of the track 304 (paragraph 0091; Figure 3E).
However, Reyes is silent as to: the teeth are trapezoidal in shape.
Strom teaches an analogous exercise machine having teeth that are trapezoidal in shape (the teeth of the gear 216/316 are trapezoidal in shape; Figures 5 and 6).
It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to modify the teeth of Reyes’s invention such that they are trapezoidal in shape, as taught by Strom, in order to reduce shear forces experienced across longitudinal axes of the teeth during use of the exercise machine for the advantage of reducing the risk of catastrophic failure of one or several of the teeth, and thus the ability to adjust the translatable arm mount, during use of the exercise machine.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Reyes (US 2011/0294630) in view of Strom (US 2014/0121071), and further in view of Schroeder (US 7,998,033).
Regarding claim 6, Reyes in view of Strom teaches the invention as substantially claimed, see above, and further teaches wherein the teeth are engaged using an arm-based lever (Reyes: the handle 316 may function as a lever; paragraph 0091; Figure 3E).
However, Reyes in view of Strom is silent as to: the teeth are engaged using a compressed spring and arm-based lever.
Schroeder teaches an analogous invention wherein teeth (the teeth of the gear 97; Figures 7 and 10; column 8, lines 38-60) are engaged using a compressed spring (the compression spring 112; Figure 10; column 8, lines 38-60) and an arm-based lever (the lever 99; Figure 7; column 8, lines 38-60).
It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to modify the engagement of the teeth of Reyes’s invention modified in view of Strom to include a compressed spring, as taught by Schroeder, in order to ensure that the teeth are precisely and securely controlled and engaged (Schroeder: column 8, lines 7-13 and 51-60; Figure 10).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GARY D URBIEL GOLDNER whose telephone number is (313)446-6554. The examiner can normally be reached between 9AM and 5PM, Eastern Time, Monday through Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, LoAn B 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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/GARY D URBIEL GOLDNER/Primary Examiner, Art Unit 3784