DETAILED ACTION
This is the first Office Action on the merits based on the 18/947,113 application filed on 11/14/2024. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claims 1-20, as originally filed, are currently pending and considered below.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 02/26/2026 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Specification
The disclosure is objected to because of the following informalities:
In Page 2 Para. 3, the term “hydraulic liner actuator” should be corrected to --- hydraulic linear actuator ---
In Page 16 Para. 5, the term “hydraulic liner actuator” should be corrected to --- hydraulic linear actuator ---
Appropriate correction is required.
Claim Objections
Claim 6 is objected to because of the following informalities:
On line 2, “hydraulic liner actuator” should be corrected to --- hydraulic linear actuator ---
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 11 and 13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 11, the limitation “a ground surface” in line 2 lacks antecedent basis and clarity. It is unclear if the “a ground surface” is the same as the “a ground surface” of claim 9. Dependent claim 13 is rejected as being dependent off of claim 11.
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 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, 5-8, 15, and 17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7, 10-11, 14, 17, and 18 of U.S. Patent No. 11,731,020. Although the claims at issue are not identical, they are not patentably distinct from each other.
Non Statutory Double Patenting
Claim
Instant Application
Claim
US Patent No. 11,731,020
Examiner Notes
1
“An adjustable-incline climbing wall assembly comprising: a. one or more climbing panels, a front face or faces of which provide a climbing surface; b. a plurality of climbing grips affixed to the climbing surface; c. a system for supporting and adjusting the incline of the climbing surface, the system comprising i. one or more frame elements affixed to at least one of the one or more climbing panels, wherein the one or more frame elements comprises first and second forward-extending wings; ii. a support structure comprising a first leg and a second leg; and iii. one or more actuators configured to adjust the incline of the climbing surface to a plurality of angles within a permitted range; wherein the first forward-extending wing is pivotably connected to the first leg at a pivot point positioned in front of a bottom edge of the climbing surface and the second forward-extending wing is pivotably connected to the second leg at a pivot point positioned in front of the bottom edge of the climbing surface.”
1
“An adjustable-incline climbing wall assembly comprising: a. one or more climbing panels, a front face or faces of which provide a climbing surface; b. a plurality of climbing grips affixed to the climbing surface; c. a system for supporting and adjusting the incline of the climbing surface, the system comprising i. one or more frame elements affixed to at least one of the one or more climbing panels, wherein the one or more frame elements comprises first and second forward-extending wings; ii. a support structure comprising a first leg and a second leg; and iii. one or more actuators configured to adjust the incline of the climbing surface to a plurality of angles within a permitted range; wherein the first forward-extending wing is pivotably connected to the first leg at a pivot point positioned in front of a bottom edge of the climbing surface and the second forward-extending wing is pivotably connected to the second leg at a pivot point positioned in front of the bottom edge of the climbing surface; and wherein each of the one or more actuators is connected to both one of the first and second legs and at least one of the one or more frame elements.”
Claim 1 of the instant application is broader in scope than claim 1 of the ‘020 Patent. Refer to the bolded limitations of the ’020 Patent.
5
“wherein the first leg and the second leg are angled outward, such that the distance between a front end of the first leg and a front end of the second leg is greater than the distance between a rear end of the first leg and a rear end of the second leg.”
7
“wherein the first leg and the second leg are angled outward, such that the distance between a front end of the first leg and a front end of the second leg is greater than the distance between a rear end of the first leg and a rear end of the second leg.”
6
“wherein the one or more actuators comprise a pneumatic linear actuator, a hydraulic liner actuator, or an electric linear actuator.”
10
“the one or more actuators comprise a pneumatic linear actuator, a hydraulic liner actuator, or an electric linear actuator.”
7
“wherein the one or more actuators are configured to be operated manually.”
11
“wherein the one or more actuators comprise a hand-cranked actuator or a manually-set tube strut.”
The Examiner notes that claim 7 of the instant application has broadened the scope of the limitation by using the term “operated manually” to the narrower limitation “manually set tube strut” of claim 11 of the 020’ Patent.
8
“wherein the one or more frame elements further comprises a crossbar that spans between the first and second forward-extending wings.”
14
“wherein the one or more frame elements further comprises a crossbar that spans between the first and second forward-extending wings.”
15
“wherein the permitted range of angles includes at least a range between 20° and 60° relative to vertical.”
17
“wherein the permitted range of angles includes at least a range between 20° and 60° relative to vertical.”
17
“wherein the adjustable-incline climbing wall assembly is a freestanding unit.”
18
“wherein the adjustable-incline climbing wall assembly is a freestanding unit.”
Allowable Subject Matter
Claims 2-4, 9-10, 12, 14, 16 and 18-20 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.
Claims 11 and 13 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The relevant prior art of record includes Wu (US Patent No. 7,195,582; DP: 03/27/2007), Sudeith (US Patent No. 11,745,072; DP: 09/05/2023), Speed (US Patent Pub. No. 2021/0275888; PD: 09/09/2021), Schneider (DE102005063225; FD: 12/20/2005), and Eisenbarth (US Patent Pub. No. 2024/0245967; PD: 06/25/2024).
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Schneider discloses an adjustable-incline climbing wall assembly (Mobile climbing device of Figure 1 above) comprising: a. one or more climbing panels (Support surfaces 2; Figure 1), a front face or faces of which provide a climbing surface (Functional surface 4; Figure 1); b. a plurality of climbing grips (i.e., the grip surfaces 2a provide areas for a user to hold onto) affixed to the climbing surface; c. a system for supporting and adjusting the incline of the climbing surface, the system comprising i. one or more frame elements (Support struts 8; Figure 1), wherein the one or more frame elements comprises first and second forward-extending wings (Support struts 8; Figure 1); ii. a support structure (Support means 3; Figure 1) comprising a first leg and a second leg (Left and right support arms 7; Figure 1); wherein the first forward-extending wing is pivotably connected to the first leg at a pivot point positioned in front of a bottom edge of the climbing surface and the second forward-extending wing is pivotably connected to the second leg at a pivot point positioned in front of the bottom edge of the climbing surface (i.e., the bottom supports 8 have bottom ends with pivot points at connecting joints 19) but does not teach one or more frame elements affixed to at least one of the one or more climbing panels; one or more actuators configured to adjust the incline of the climbing surface to a plurality of angles within a permitted range.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892 Notice of References Cited for additional pertinent prior art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW M KOBYLARZ whose telephone number is (571)272-8096. The examiner can normally be reached Mon-Fri 7:30-5:00.
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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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/ANDREW M KOBYLARZ/Examiner, Art Unit 3784