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 .
Priority
Acknowledgement is made of Applicant’s claim for priority as a continuation of application no. 17/629,468 (now U.S. Patent No. 12,214,244) filed 24 January 2022 which claims priority to PCT/US2021/035222 filed 01 June 2021 which claims priority to provisional application no. 63/032,830 filed 01 June 2020.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 03 February 2025 has been considered by the examiner. It is noted that copies of the foreign references were included in the parent application 17/629,468.
Election/Restrictions
Applicant's election with traverse of Species B (Figures 12-15) in the reply filed on 29 June 2026 is acknowledged. The traversal is on the ground(s) that there would be no serious search and/or examination burden. This is not found persuasive because search for each of the identified species would be burdensome because each requires differing text search terms to identify the mutually exclusive characteristics. Couple the search with amendments that may occur during the course of prosecution, and the potential variations of the invention multiply accordingly, presenting an even greater burden for the examiner as prosecution advances. Applicant further argues that a search for Species B would necessarily produce results applicable to Species A and Species C. The Office respectfully disagrees. Species B lacks structures present in the other species which results in a device that has a different form and function.
The traversal is not found persuasive. The requirement is still deemed proper and is therefore made FINAL.
Claims 22-40 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim.
Claims 21-40 are still pending. Claims 22-40 are withdrawn. Claim 21 is examined on the merits as follows.
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 21 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zane (US 4,986,536).
Regarding claim 21, Zane teaches an exercise bar comprising:
a center bar (bar 12);
a pad (pad 17) extending from the center bar and having a substantially planar surface configured to engage a user's back (Fig. 1 shows the pad 17 being substantially planar. Col. 3, lines 47-49: “Applicant's device also lends itself to be worn backward when the user wants to do leg lunges and regular squats.” The device can be worn backwards such that the pad 17 engages a user’s back.);
a pair of support bars (shoulder braces 22, 23) extending from the center bar and configured to rest on a user's shoulder (Fig. 1); and
a pair of weight bars (weight holders 19, 19’) extending from the center bar (Figs. 1, 6).
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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.
Claim 21 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 13, and 14 of U.S. Patent No. 12,214,244 in view of Zane (US 4,986,536).
Claims 1, 13, and 14 of U.S. Patent No. 12,214,244 recite “an exercise bar comprising: a center bar; a pad extending from the center bar and having a substantially planar surface configured to engage a user’s back; a pair of support bars extending from the center bar and configured to rest on a user’s shoulder; and a pair of weight bars.” U.S. Patent No. 12,214,244 does not recite “a pair of weight bars extending from the center bar.” However, in a similar field of endeavor, Zane teaches an exercise bar comprising a center bar (bar 12); a pad (pad 17); a pair of support bars (shoulder braces 22, 23); and a pair of weight bars (weight holders 19, 19’) extending from the center bar (Fig. 1). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the weight bars to extend from the center bar with the predicted result of providing a balanced exercise bar for squat exercises (see MPEP 2141(III)).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Catrina Letterman whose telephone number is (303)297-4297. The examiner can normally be reached Tuesday - Friday, 8am - 5pm MT.
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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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/C.A.L./Examiner, Art Unit 3784
/Megan Anderson/Primary Examiner, Art Unit 3784
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