DETAILED ACTION
This is the First Office Action on the Merits based on the 18/908,234 application filed on 10/07/2024 and which claims as originally filed have been considered in the ensuing 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
Application 18/908,234 is a continuation of application 17/939,877 filed 09/07/2022 now US Patent 12,109,477, which claims priority to a provisional filed 09/07/2021. Accordingly, the instant application has priority to 09/07/2021.
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.
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:
A trigger mechanism configured to modify operations in claim 17, contains a generic placeholder (trigger mechanism) coupled with functional language (configured to modify operations); the trigger mechanism has been disclosed as an infrared beam (paragraph [0018] or a mechanical switch (paragraph [0055])
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.
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.
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 1-6, and 18-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by
Del Monaco et al (US 11,883,729).
Regarding claim 1:
Del Monaco et al disclose a slat-based belt (conveyor 102, shown as having slats) that rotates around a front axis and a rear axis (rear axis is shown in Fig. 13, the conveyor is configured to rotate about a first and second axis); and a guard assembly (protective cover 300, see Fig. 10) configured to be positioned at multiple arc positions with respect to an arc of the slat-based belt at the rear axis of the treadmill (the protective cover is hingedly connected to the treadmill, allowing for different arc positions with respect to the arc of the rear axis of the treadmill. The Examiner notes that the claim language does not require that the arc positions be held for any period of time or fixed in place, merely that the positions exist).
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Regarding claim 2:
Del Monaco et al disclose that at least one arc position of the multiple arc positions includes an arc position of 90 degrees with respect to a vertical axis of the treadmill (when attached in the manner shown in Fig. 10, the connection portion of the cover is in a position of 90 degrees with respect to a vertical axis of the treadmill. The claim language does not require that the entire guard assembly be angled 90 degrees with respect to the vertical axis).
Regarding claim 3:
Del Monaco et al disclose that the guard assembly further comprises: a flexible guard (the top portion including resiliently biased tabs 310 has been considered the flexible guard, lacking any other structural or functional limitations as the component is part of the guard and flexible due to the resiliently biased nature of the tabs); a rigid guard (the bottom portion including the protrusions 308 has been considered the rigid guard, lacking any other structural or functional limitations as the component is part of the guard and rigid such that the cover pivots around the protrusions) and a channel (the channel disposed between the top and bottom portions configured to cover the treadmill belt) disposed between the flexible guard and the rigid guard.
Regarding claim 4:
Del Monaco et al disclose that the guard assembly further comprises: a cover (the middle section of the guard assembly) that covers a rear portion of the slat-based belt and exposes an upper surface of the flexible guard (the upper surface of the resiliently biased tabs is open to the user).
Regarding claim 5:
Del Monaco et al disclose a slat-based belt (conveyor 102, shown as having slats) that rotates around a front axis and a rear axis (rear axis is shown in Fig. 13, the conveyor is configured to rotate about a first and second axis); and a guard assembly configured to be positioned at an arc position of 90 degrees with respect to a vertical axis of the treadmill (the protective cover is hingedly connected to the treadmill, allowing for different arc positions with respect to the arc of the rear axis of the treadmill. When attached in the manner shown in Fig. 10, the connection portion of the cover is in a position of 90 degrees with respect to a vertical axis of the treadmill. The Examiner notes that the claim language does not require that the arc positions be held for any period of time or fixed in place, merely that the positions exist and further fails to require that the entire guard assembly be angled 90 degrees with respect to the vertical axis ).
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Regarding claim 6:
Del Monaco et al disclose that the guard assembly further comprises: a flexible guard (the top portion including resiliently biased tabs 310 has been considered the flexible guard, lacking any other structural or functional limitations as the component is part of the guard and flexible due to the resiliently biased nature of the tabs); a rigid guard (the bottom portion including the protrusions 308 has been considered the rigid guard, lacking any other structural or functional limitations as the component is part of the guard and rigid such that the cover pivots around the protrusions) and a channel (the channel disposed between the top and bottom portions configured to cover the treadmill belt) disposed between the flexible guard and the rigid guard.
Regarding claim 18:
Del Monaco et al disclose a slat-based belt (conveyor 102, shown as having slats) that rotates around a front axis and a rear axis (rear axis is shown in Fig. 13, the conveyor is configured to rotate about a first and second axis); and a guard assembly comprising: a flexible guard (the top portion including resiliently biased tabs 310 has been considered the flexible guard, lacking any other structural or functional limitations as the component is part of the guard and flexible due to the resiliently biased nature of the tabs); a rigid guard (the bottom portion including the protrusions 308 has been considered the rigid guard, lacking any other structural or functional limitations as the component is part of the guard and rigid such that the cover pivots around the protrusions) and a channel (the channel disposed between the top and bottom portions configured to cover the treadmill belt) disposed between the flexible guard and the rigid guard.
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Regarding claim 19:
Del Monaco et al disclose that the flexible guard is configured to deform when an object contacts the flexible guard (when a user presses the resiliently biased tabs, the tabs will deform).
Claims 18 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by
Yoo et al (US 11,691,046).
Regarding claim 18:
Yoo et al discloses a movable belt (belts 110, 120) that rotates around a front axis and a rear axis (rollers 111, 112) ; and a guard assembly comprising: a flexible guard (debris remover 180 which contains a brush with bristles, see column 12 lines 54-59, which as disclosed by Applicant is a form of flexible guard); a rigid guard (cover 151); and a channel (the cover 151 defines a channel in which the debris remover is placed, thus defining a channel between the two components) disposed between the flexible guard and the rigid guard.
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Regarding claim 20:
Yoo et al disclose that the flexible guard comprises a brush with bristles (“The protruding portion of the debris remover 180 may include a surface or scraper 184 configured to scrape debris off of the left and right belts 110 and 120 and induce a static charge, such as fabric, felt, sweeper, or a brush (e.g., microbrush, fine brush, or bristle brush) to catch hair and debris.” see column 12 lines 54-59).
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 18-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 4 of U.S. Patent No. 12,109,477. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following:
The Examiner notes that claim 1 of US Patent 12,109,477 is more narrow than claim 18 and therefore anticipates claim 18.
Instant application 18/908,234
US Patent 12,109,477
Claim
Limitation
Claim
Limitation
18
a movable belt that rotates around a front axis and a rear axis;
1
a movable belt that rotates around a front axis and a rear axis
18
and a guard assembly comprising: a flexible guard; a rigid guard; and a channel disposed between the flexible guard and the rigid guard.
The Examiner notes that the instant application has claims that are more broad than that of US Patent 12,109,477.
a guard assembly comprising: a flexible guard that extends towards the rear axis and is spaced apart from the movable belt by a first gap and is exposed by a housing body; a rigid guard positioned downstream of the flexible guard with respect to a moving direction of the belt and spaced apart from the movable belt by a second gap; and a channel disposed between the flexible guard and the rigid guard.
19
the flexible guard is configured to deform when an object contacts the flexible guard.
4
the flexible guard is configured to deform when an object larger than the first gap intrudes into the first gap, thereby increasing the size of the first gap.
Allowable Subject Matter
Claims 7-17, upon which claims 8-17 depend upon claim 7, are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MEGAN M ANDERSON whose telephone number is (313)446-6531. The examiner can normally be reached M-TH 6 a.m. -4 p.m. (Arizona).
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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/Megan Anderson/ Primary Examiner, Art Unit 3784
