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 .
Examiner's Note
Examiner has cited particular paragraphs and/or columns and line numbers and/or figures in the references as applied to the claims below for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested from the applicant, in preparing the responses, to fully consider the references in entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner. The Examiner notes that it has been held that a recitation that a structural element is "adapted to", “configured to”, “capable of, “arranged to”, “intended to” or “operable to” perform a function does not limit the claim to a particular structure and thus only requires the ability to so perform the function. (See In re Hutchison, 69 USPQ 138. See also, MPEP 2111.04) As such, under the broadest reasonable interpretation of the claims and the prior art, the recitations of "adapted to", “configured to”, “capable of, “arranged to”, “intended to” or “operable to” will be deemed met by an element in the prior art capable of performing the function recited in connection with "adapted to", “configured to”, “capable of, “arranged to”, “intended to” or “operable to”. The examiner is aware of the functional language in the various claims.
Disclaimer
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 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.
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 16 is rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by McCollum (US Patent No. 4,732,390).
McCollum discloses a golf stance guide, comprising: four posts each comprising an proximal region and a distal region, the proximal region of the four posts (25,25’,26,30, and/or 50) comprising a first side front post (see the left side post as shown in the figure below), a first side rear post, a second side front post opposite to the first side front post, and a second side rear post opposite to the first side rear post, a front distance between the first side front post and the second side front post is less than a rear distance between the first side rear post and the second side rear post; and a body (10) connecting the four posts and positioned between the proximal region and the distal region of the four posts (since the posts are adjustable, they are capable of meeting the recited distance between them as recited).
Regarding the intended use set forth in the preamble (the device being a golf stance guide), the training device is capable of being used as a golf stance guide if so desired. Applicant is not claiming a process. Please note that the examiner is giving the broadest reasonable interpretation of the claims as set forth in MPEP 904.01(a). The examiner notes that apparatus claims must be structurally distinguishable from the prior art. SEE MPEP 2114.
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[AltContent: textbox (Second side rear
post)][AltContent: textbox (Second side)][AltContent: textbox (Front post)][AltContent: textbox (First side)][AltContent: textbox (Head
(top end of these posts)][AltContent: textbox (Front post)][AltContent: textbox (body)][AltContent: textbox (First side rear post)][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow]
Claim Rejections - 35 USC § 103
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 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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over McCollum.
McCollum does not explicitly disclose the distances as recited in the claim. It would have been obvious to one having ordinary skill in the art at the time the invention was made to provide any distance range including the recited distance ranges since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Allowable Subject Matter
Claims 1-5, 7-10 and 12 are considered allowable because the closest prior art McCollum (4732390) or the other prior art of record disclose or render obvious the claimed arrangement of four posts comprising a configuration with at least a portion angling and/or curving toward first pair posts while defining a space therebetween for receiving a user’s foot. Although McCollum teaches posts, the examiner did not find any reference, alone or in combination, that teaches or suggests the specific asymmetric post configuration is configured to receive a foot/shoe as recited in the claim when affixed in the manner recited, in combination with the other recited features of the claim. Therefore, claim 1 and the rest of the claims that directly or indirectly depend on claim 1 are found allowable.
Claims 29-31 and 35-36 are considered allowable because the closest prior art McCollum (4732390) or the other prior art of record disclose or render obvious a body having first, second, third, and fourth arms arranged such that the first arm is substantially linear with the third arm and the second arm is angled relative to the fourth arm, with each of the four foot positioning posts secured to a respective arm of the body, as recited in claim 29. None of the prior art of record including McCollum disclose foot-positioning posts supported by a platform or base but does not disclose or suggest the claimed arm-based body configuration or the particular arrangement of the arms and posts. The examiner did not identify any teaching or suggestion that would have led one of ordinary skill in the art to modify the prior art to arrive at the claimed structural configuration. Therefore, claim 29 and all claims that directly or indirectly depend on it are considered allowable.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NINI F LEGESSE whose telephone number is (571)272-4412. The examiner can normally be reached Mon - Friday 9 AM - 5:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nicholas J. Weiss can be reached at (571) 207-1775. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NINI F LEGESSE/Primary Examiner, Art Unit 3711
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