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.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “electronic sensor configured to measure at least one motion-related variable of a swing and communicate the at least one motion-related variable of the swing to a swing trainer application on a computing device via a network; and a power source in electrical communication with the at least one electronic sensor” as recited in claim 1; the “gyroscope or an accelerometer” as recited in claim 4; and the “fan resistance mechanism” as recited in claim 16; must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 20 is rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Bates (US Patent No. 3,618,942).
Bates discloses a fitness trainer (see all Figures), comprising: a shaft extending from a proximal end to a distal end (10), the proximal end having a grip (18), and the distal end comprising a loop (for example components 28 and 26 as shown in Figures 1-2); a removable elastic band extending from a first end to a second end (14), the first end being configured to be attached to the loop of the shaft (the end of (14) attached to the bat or club (10) as shown in Figure 1); and a carabiner at the second end of the removable elastic band (see component 48 as shown in Figure 6), the carabiner being configured to fix the second end of the removable elastic band to a structure (see Figure 1).
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 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.
Claims 1-6, 8-12, 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Gathright et al (US Patent No. 10,912,979) in view of Kato et al. (US Patent Publication No. 2013/0288812).
Regarding claim 1, Gathright discloses a swing motion trainer (10), comprising:
a shaft (assemble of 12 and 18) extending from a proximal end (14) to a distal end (16), the proximal end having a grip (17), and the distal end comprising an interchangeable mechanism (the reference teaches removable resistance element in the form of weighted ball 22 that is removably coupled at the distal end as shown in Figure 8); a removable resistance element (22) configured to be attached to the distal end of the shaft via the interchangeable mechanism (24). The attachment loop (20) and removable connector (24) collectively correspond to the claimed interchangeable mechanism. Gathright does not disclose least one electronic sensor configured to measure at least one motion-related variable of a swing and communicate the at least one motion-related variable of the swing to a swing trainer application on a computing device via a network; and a power source in electrical communication with the at least one electronic sensor. However, Kato teaches a golf swing apparatus including a sensor section (10) configured for analyzing the action of a golf swing. Kato teaches sensors including angular velocity sensors and three-axis acceleration sensors, wherein measurement results from the sensors are used for analysis of the golfer’s swing. Kato further teaches in paragraph 41 that sensor section (10) includes sensor casing (11), a sensor, A/D converter, CPU, wireless interface, wireless antenna, and a power supply. In addition, Kato teaches transmitting measured swing data by wireless receiver associated with computer (C), which functions as a data-analysis device, wherein the received data are computationally processed by the CPU and results are output by the computing device. Therefore, 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 golf swing training aid of Gathright to include the electronic sensor, power source, wireless interface, and computing-device swing analysis system taught by Kato, in order to provide objective electronic measurement and analysis of the user’s swing while performing the weighted swing-training exercise.
Regarding claim 2, Kato discloses the network in a Bluetooth network (see paragraph 66).
Regarding claim 3, wherein the computing device is configured to quantify at least one of speed, velocity, repetition, or resistance of the swing based on the at least one motion-related variable of the swing; Gathright teaches that the golf swing training aid is particularly useful for training swing speed and swing efficiency and teaches varying the loading of the trainer using different weighted balls. Gathright explains that increasing the load allows training of motor patterns at varying weights and speeds. Table 1 as shown in column 3 identifies multiple selectable ball weights for both lighter and heavier configurations. Kato teaches measuring golf swing motion using sensors including angular=velocity and acceleration sensors. Kato further teaches transmitting measured sensor data to computer ( C ), where the data computationally processed by the CPU and calculated results are output. Thus, Kato teaches acquiring a motion-related variable representative of the speed/velocity characteristics of a swing and computationally processing that data. it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the computing device of the Gathright-Kato combination to quantify speed or velocity of the swing from the angular-velocity and/or acceleration measurements taught by Kato, because Gathrigh expressly identifies swing speed as a performance characteristic being trained, while Kato provides sensors and computational processing specifically for analyzing golf-swing motion. Such use would merely employ Kato’s known swing-measurement system for its intended purpose to objectively evaluate the swing-speed performance sought to be improved by Gathright.
Regarding claim 4, wherein the at least one electronic sensor comprises at least one of a gyroscope or an accelerometer (for example in paragraph 41 of Kato, the sensor casing 11 is disclosed as including an angular velocity sensor and three-axis acceleration sensor for obtaining golf swing measurements).
Regarding claim 5, Gathright teaches interchangeable resistance elements comprising weighted balls (22) having different predetermined weights, thereby providing different training loads. Although Gathright does not expressly teach providing the selected weight to an application, it would have been obvious to configure the swing trainer application of Kato to receive the weight of the selected resistance element in order to associate measured swing data with the training load being used and facilitate evaluation of swing performance at different resistance levels.
Regarding claim 6, Gathright expressly teaches that the removable resistance element is a weighted ball (22) and teaches interchangeable weighted balls having different predetermined weights including 50, 70,100,115, 150 grams (see table 1 in column 3). It would have been obvious to configure the swing trainer application of Kato receive the weight of the selected weighted ball to associate the measured swing-performance data with the known training load and permit comparison of performance at different resistance levels.
Regarding claim 8, Gathright teaches the use of grip (17) at the proximal end of shaft (12) but does not disclose wherein the grip is a rubber grip. It would have been obvious to one having ordinary skill in the art at the time of the invention was made to make the grip of Gathright out of any material including rubber material, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 9, Gathright expressly teaches the removable resistance element as being a weighted ball (22).
Regarding claim 10, Gathright teaches connector (24) for removably attaching weighted ball (22), and expressly teaches a threaded, locking quick link (24a) as one suitable connector. Thus, Gathright teaches a threaded connection configured to attach to the weighted ball.
Regarding claim 11, wherein the weighted ball is shaped as a sphere (as shown in Figures 7-8 of Gathrigh, the resistance element (22) is sphere shape.
Regarding claim 12, Gathright teaches the weighted balls having weights within the claimed range of 70 grams to 125 grams (see table 1 in column 3).
Regarding claim 17, wherein the shaft is flexible such that the shaft is configured to bend during the swing (column 1 line 60of Gathright discloses that the shaft component (18) as being flexible).
Regarding claim 18, wherein the shaft is made of aluminum or carbon fiber (in column 1 lines 55-60 of Gathright it is disclosed that any suitable material could be used to construct shaft component (18)). In addition, it would have been obvious to one having ordinary skill in the art at the time of the invention was made to make the shaft components of Gathright out of any material including aluminum or carbon fiber material, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over the references as applied to claim 1 above, and further in view of Perlmutter (WO 02/35184).
Gathright in view of Kato teaches the swing motion trainer of claim 1 as discussed above but do not teach the swing trainer application including pre-set workouts, past workouts, and/or workouts of other users. Perlmutter teaches storing swing-performance data for subsequent retrieval and analysis and comparing a golfer’s performance with that of another golfer, including a profession or skilled golfer (for example, see abstract, Figure 2, pages 10-13). It would have been obvious to one of ordinary skill in the art to configure the swing trainer application of Gathrigh/Kato to include past workout information and/or workout information of other users, as taught by Perlmutter, to permit comparison of a user’s swing performance with prior performance or the performance of another golfer, thereby facilitating evaluation and improvement of swing performance.
Claims 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over the references as applied to claim 1 above, and further in view of Bates (US Patent No. 3,618,942).
Regarding claim 13, Bates teaches an elastic tether (14) having a first end connected to the swing-training device and a second end connected to a fixed anchoring structure, whereby stretching of the tether provides resistance during the swing (see abstract and all Figures). It would have been obvious to substitute Bate’s elastic resistance element for Gathright’s weighted resistance element as a known alternative means for providing resistance during swing training, yielding the predictable result of resistance generated by elastic tension.
Regarding claim 14, Bates teaches removably connecting the elastic tether to a fixed anchoring structure, while Gathright teaches a gated carabiner (24b) as a removable connector for attaching a resistance element. It would have been obvious to provide the second end of Bates’ elastic tether with Gathright’s carabiner to facilitate quick and removable connection of the elastic resistance element to a fixed support.
Regarding claim 15, Bates teaches coupling elastic tether (14) to an eyelet of the swing-training device, while Gathright teaches an eye/loop-type attachment structure for removably coupling a resistance element to the trainer (see Figures). It would have been obvious to employ an eye-bolt-type attachment at the shaft as a known equivalent attachment structure to provide a secure and removable connection between the shaft and elastic resistance element.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over the references as applied to claim 1 above, and further in view of Passamanech et al. (US Patent No. 4,907,800).
The references applied to claim 1 teach the swing motion trainer but do not teach the removable resistance element being a fan resistance mechanism. Passamanech teaches a swing-training apparatus having a fan resistance mechanism (18), wherein rotating of the fan during the sing produces air resistance opposing the swing motion. It would have been obvious to one of ordinary skill in the art to provide the swint trainer of the references applied to claim 1 with the fan resistance mechanism of Passamaneck to provie resistance during the swing and thereby improve swing training and exercise.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over the references as applied to claim 1 above, and further in view of Cummings (US Patent No. 5,427,376).
Gathright in view of Kato teaches the swing motion trainer as discussed in claim 1 above but does not disclose a plurality of demarcations indicating a plurality of grip locations. Cummings teaches a golf grip having a plurality of indicia markings at different locations along the grip for indicating proper hand and finger placement (see abstract and Figures 1-4). It would have been obvious to provide the shaft/grip of Gathright with the multiple grip-position markings taught by Cummings to indicate predetermined hand-placement locations and facilitate proper and repeatable gripping during swing training.
Conclusion
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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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/NINI F LEGESSE/Primary Examiner, Art Unit 3711
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