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 .
Information Disclosure Statement
The information disclosure statement filed 10/16/2024 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered.
Election/Restrictions
Applicant’s election without traverse of Species 1, figures 1a-e, 2a-e; claims 1-3, 5, 7-9, 11, 13-14, 17-23, 25 in the reply filed on 02/13/2026 is acknowledged. However, claims 2, 3, 21 and 25 also pertain to non-elected species. Regarding claims 2, 3, the rotary adjuster in the elected embodiment is only fixed to the toe clip, not the strap or pedal. Regarding claim 21, the elected embodiment does not show two separate base portions, its only one continuous strap. Regarding claim 25, the rotary adjuster in the elected embodiment only functions to actively adjust the perimeter in either direction.
For these reasons, claims 2, 3, 21, and 25 are further withdrawn from consideration. Claims 1, 5, 7-9, 11, 13, 14, 17-20, 22, 23 are being 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.
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 1, 5, 7-9, 11, 13, 17-20, 22, 23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4, 5, 6, 9, 12-16, 20 of U.S. Patent No. 12509180. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1, 5, 7-9, 11, 13, 14, 17-20, 22, 13 are generic to all that is recited in claims 1, 4, 5, 6, 9, 12-16, 20 of the Patent. That is these claims fall entirely within the scope of the patented claims.
Specifically, claim 1 corresponds to claim 1 of the Patent. Claim 5 corresponds to claim 12. Claim 7 corresponds to claim 4. Claim 8 corresponds to claim 5. Claim 9 corresponds to claim 6. Claim 11 corresponds to claim 9. Claim 13 corresponds to claim 1. Claim 17 corresponds to claim 13. Claim 18 corresponds to claim 14. Claim 19 corresponds to claim 15. Claim 20 corresponds to claim 16. Claim 23 corresponds to claim 20.
Claims 14, 22 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12509180 in view of Loper et al. (USpgpub 20240253731).
Here, claim 1 of the Patent defers from claims 14, 22 of the Application in that these claims specifically introduce the rotary adjuster is a knob and the platform of the pedal having a surface for increased gripping. Loper specifically showcases within a similar arrangement the concept of a rotary adjuster being in the form of a knob 4 and the platform of the pedal 8 having grip features (paragraph 37). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modified the patented claims to include these features as these features are commonly known in the art to produce their intended functions.
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)(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) 1, 5, 9, 11, 17-20, 22, 23 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Loper et al. (USpgpub 20240253731).
Regarding claim 1, Loper et al. discloses a foot retention system including:
a foot platform (8), including a platform surface (38) configured to support a user’s foot, a longitudinal axis, a vertical axis, and a lateral axis (all axis evident or could be defined from fig.1);
a strap (fig.1, 6 on either side of pedal; that is, portion with dial 4 and portion with loop 12), including a first base portion (fig.1, portions defined at the pedal on one side), a second base portion (fig.1, portion defined at the pedal on the other side) and a loop portion (fig.1, portions that loop upward and form the perimeter for engaging the foot) therebetween;
a rotary adjuster (fig.1, elements 4 and 2 could read on this) connected to said strap;
wherein said first base portion and said second base portion are retained to said foot platform and said loop portion is vertically spaced from said foot platform (seen in fig.1);
wherein said strap and said foot platform defines an opening (clearly seen in fig.1) configured to receive a foot therein, said opening having a perimeter length (evident from fig.1);
wherein said rotary adjuster is rotatable about a rotary axis to adjust said perimeter length (seen in fig.1, adjuster 4 is a knob/dial rotatable about its axis).
Regarding claim 5, Loper et al. discloses the foot retention system according to claim 1, wherein said strap includes a first strap portion and a second strap portion (again seen in fig.1; either strap portion extending from the base portion and forming the loop), wherein said rotary adjuster serves to circumferentially displace both said first strap portion and said second strap portion relative to said rotary adjuster (this functionality is evident in fig.1, rotating the dial would tighten or bring the strap portions circumferentially together to as to adjust their positions).
Regarding claim 9, Loper et al. discloses the foot retention system according to claim 1, wherein said rotary axis is a generally radial axis (seen in fig.1).
Regarding claim 11, Loper et al. discloses the foot retention system according to claim 1, wherein said rotary adjuster is positioned adjacent the vertically upward apex of said strap (this recitation is a lot broader than what is believed to be intended by Applicant. Applicant may be intending to place the rotary adjuster directly at the vertical upward apex of the strap but this recitation recites the word “adjacent” for which the plain meaning is “next to”. In addition, since we are referring to an arbitrary portion of the strap and the strap itself has multiple portions, the scope is further broadened. Thus in an assembly having two strap portions, there could be two apexes and in addition, an apex could be defined as a section of the strap such that something positioned adjacent or next to could be placed a significant distance away. Thus, given the BRI of this recitation in the manner it is written; Loper et al. discloses this limitation. Both the adjuster could be considered to be adjacent the apex of the upper strap portion or it could simply be considered as being at the apex of the right strap portion in fig.1. Note- even if Applicant were to amend this to clarify the position of the adjuster, it will likely be provided a 103 rejection in light of simply teaching the adjuster to the desired location such as at the toe clip.)
Regarding claim 17, Loper et al. discloses the foot retention system according to claim 1, wherein said adjustment of said perimeter length includes a loosened orientation of increased perimeter length and a tightened orientation of reduced perimeter length relative to said loosened orientation; wherein, in said loosened orientation, the user's foot may be freely withdrawn from said foot retention system in a rearward direction (this functionality is clearly evident from fig.1).
Regarding claim 18, Loper et al. discloses the foot retention system according to claim 17, wherein said rotary adjuster is rotatable about said rotary axis by greater than 360 degrees between said loosened orientation and said tightened orientation (the knob 4 is freely rotatable greater than 360 degrees as evident from fig.1).
Regarding claim 19, Loper et al. discloses the foot retention system according to claim 17, wherein said rotary adjuster is rotatable about said rotary axis by less than 360 degrees between said loosened orientation and said tightened orientation (the knob is rotatable less than 360 degrees; that is it is capable of being rotated less than 360 degrees to perform loosening or tightening since that is simply dependent on the size of the foot).
Regarding claim 20, Loper et al. discloses the foot retention system according to claim 17, wherein said foot retention system remains connected to said foot platform when the user's foot is withdrawn therefrom (evident from fig.1).
Regarding claim 22, Loper et al. discloses the foot retention system according to claim 1, wherein said platform surface includes a configured surface for increased grip and retention with the user's foot to restrain displacement therebetween (the surface 38 is capable of providing this functionality; note Applicant isn’t even claiming a specific structure in this claim, none the less because of how commonly known this concept is, a 112 b will not be provided for this “unlimited” functional language clause. That being said, paragraph 37 in Loper specifically states gripping features could be provided).
Regarding claim 23, Loper discloses the foot retention system according to claim 1, wherein said rotation of said rotary adjuster serves to actively reduce said perimeter length in a first rotation direction and serves to actively increase said perimeter length in a second direction of rotation opposed to said first direction of rotation (the knob 4 is capable of actively increasing or decreasing the perimeter length since rotating in either direction is going to either increase or decrease the perimeter).
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(s) 7, 8, 13, and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Loper et al. (USpgpub 20240253731) in view of Dussault (USP 9895280).
Regarding claims 7 and 8; Loper et al. fails to explicitly disclose wherein said rotary adjuster is circumferentially fixed to a third element, wherein the third element serves as a link to connect said loop portion to said foot platform and the third element being the toe clip.
Dussault teaches the use of a strap tightening mechanism which is analogous to the problem being solved by Applicant, that of tightening of straps with an adjustable mechanism. Specifically, Dussault teaches the use of a rotary adjuster (rotary adjustment system 400, 500 and its engagement with ratchets provided on the straps) which is circumferentially fixed to a third element (the rotary adjuster 500 in this art is circumferentially fixed to a third element which is the bracket 200 which would be analogous to a toe clip in the bicycle pedal art), wherein the third element serves as a link to connect said loop portion to said platform (100; evident from figures the third element is the link to connect the straps to the overall massager device).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the foot retention system in Loper et al. according to the teachings and/or suggestions in Dussault such that the tightening assembly in Loper is replaced with the tightening mechanism as taught by Dussault. That is, the straps in Loper would be provided with ratchet teeth and the toe clip in Loper which is analogous to the third element in Dussault would mount the rotary adjuster knob/gear. This arrangement would provide the same and predictable result of facilitating the loosening or tightening of the straps and thus adjust the perimeter thereof so as to allow a user to tighten the straps to their body. It is noted that the concept of strap adjusters using this type of rack/pinion is very well known in the art as provided by evidentiary references and in addition, the concept of placing the rotary adjuster in various locations, especially in the pedal art, is also well known and within the level and creativity of a PHOSITA 1. In light of the combination, it is understood, that the rotary adjuster would be placed on the toe clip which is the analogous third element in Loper.
Regarding claim 13, Loper et al. fails to disclose the foot retention system according to claim 1, wherein said rotary adjuster includes a rack and pinion gear mechanism, wherein a pinion gear is rotated about said rotary axis to adjust said perimeter length.
Dussault teaches the use of a strap tightening mechanism which is analogous to the problem being solved by Applicant, that of tightening of straps with an adjustable mechanism. Specifically, Dussault teaches the use of a rotary adjuster (rotary adjustment system 400, 500 and its engagement with ratchets provided on the straps) includes a rack and pinion gear mechanism, wherein a pinion gear (420) is rotated about an rotary axis to adjust a perimeter length of the strap assembly..
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the foot retention system in Loper et al. according to the teachings and/or suggestions in Dussault such that the tightening assembly in Loper is replaced with the tightening mechanism as taught by Dussault. That is, the straps in Loper would be provided with ratchet teeth and the toe clip in Loper which is analogous to the third element in Dussault would mount the rotary adjuster knob/gear. This arrangement would provide the same and predictable result of facilitating the loosening or tightening of the straps and thus adjust the perimeter thereof so as to allow a user to tighten the straps to their body. It is noted that the concept of strap adjusters using this type of rack/pinion is very well known in the art as provided by evidentiary references and in addition, the concept of placing the rotary adjuster in various locations, especially in the pedal art, is also well known and within the level and creativity of a PHOSITA 2. In light of the combination, it is understood, that the rotary adjuster would be placed on the toe clip which is the analogous third element in Loper.
Regarding claim 14, the combination discloses wherein said rotary adjuster includes a knob (520 in Dussault), wherein said knob may be manually manipulated to rotate said pinion gear (evident from teaching).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Prior art includes numerous references drawn to rack/pinion strap tighteners and other pedal references that could serve as bases for 103 rejections. Note there are many possibilities based on the prior art and current breadth of the claims.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS C DIAZ whose telephone number is (571)270-5461. The examiner can normally be reached M-F 9am-6pm.
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, John Olszewski can be reached at 571-272-2706. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THOMAS C DIAZ/Primary Examiner, Art Unit 3617
1 USP 2205742, 3090046 among many others showcase the rack/pinion strap tighteners. USP 3842688, 4327602, 4945787, 6510764 showcase various examples where these tighteners could be placed in specific locations such as on a toe clip.
2 USP 2205742, 3090046 among many others showcase the rack/pinion strap tighteners. USP 3842688, 4327602, 4945787, 6510764 showcase various examples where these tighteners could be placed in specific locations such as on a toe clip.