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 .
Claims 1-20 have been examined.
Claim Objections
Claims 1, 5-7, and 13-18 are objected to because of (at least) the following informalities:
Claim 1, Line 4: “said pair or” should be changed to --each of said--.
Claim 1, Line 10: “said first” should be changed to --said at least one first--
Claim 1, Line 18: “connectors rotation” should be changed to --connectors, rotation--.
Claim 1, Line 20: “one or more” should be changed to --said one or more--.
Claim 5, Line 5: “underlying spaced-apart” should be changed to --underlying said spaced-apart”.
Claim 6, Lines 1 and 3: “of first’’ should be changed to --of said at least one first”
Claim 6, Lines 2 and 4: “of second should be changed to --of said at least one second”
Claim 7, Lines 1 and 3: “of first’’ should be changed to --of said at least one first”
Claim 7, Lines 2 and 4: “of second should be changed to --of said at least one second”
Claims 13-15: It appears that each instance of “outer telescoping” should be changed to --inner telescoping-- and vice versa as it is not clear how an outer telescoping section would be movable within an inner telescoping member.
Claim 16, Line 1: “the distal” should be changed to --a distal--.
Claim 17, Line 1: “the distal” should be changed to --a distal--.
Claim 18, Line 1: “the distal” should be changed to --a distal--.
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 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential structural cooperative relationships of elements, such omission amounting to a gap between the necessary structural connections. See MPEP § 2172.01. The omitted structural cooperative relationships are:
- Claim 1: between the machine member and the exercise machine frame and between the moveable frame member and the exercise machine frame
- Claims 6-15: between the “frame member(s)” and the exercise machine frame
Examiner further notes that Claims 16 and 17 depend from Claims 11 and 12, respectively, but recite the same limitation set forth in Claims 11 and 12 and, thus, are duplicate claims and should be canceled.
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)(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.
Claim 1-2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Little (US Patent 5,626,546).
1. Little discloses an exercise machine employing one or more flexible tension bands, said exercise machine including:
a. a pair of exercise arms (220A,220B) rotatably mounted on frame members vertically above a surface supporting the exercise machine, said pair of exercise arms being rotatably mounted on a rotatable mount (220AB,220BG) on said frame members for upward and downward rotational motion, said pair of exercise arms being horizontally spaced-apart (Fig 7) and each including a member (220C) to be engaged by opposed hands of an individual located between said pair of exercise arms,
b. at least one first connector (220AE,220BE) connected to each of said pair of exercise arms, and at least one second connector (14E,14F) vertically spaced-apart from said first connector and being connected to a machine member (12L,12R) vertically below the rotatable mount of each exercise arm, and further including at least one third connector (14AE) connected to a moveable frame member (14AA) for being moveable to positions above and below the rotatable mount of each exercise arm, and
c. one or more flexible tension bands (16) being configured to be connected to said at least one first and second, vertically spaced-apart connectors, whereby when said one or more flexible tension bands is (are) connected to said at least one first and second, vertically spaced-apart connectors rotation of the exercise arms in an upward direction stretches said one or more flexible tension bands creating a tension force opposing the upward direction of rotation of the exercise arms, one or more flexible tension bands being configured to be connected to said at least one first connector and to said at least one third connector when said at least one third connector is in a position vertically above the rotational mount of a corresponding exercise arm, whereby when said one or more flexible tension bands is (are) connected to said at least one first connector on an exercise arm and also to said at least one third connector when said at least one third connector is in a position vertically above the rotational mount of said exercise arm rotation of the exercise arm in a downward direction stretches said one or more flexible tensions bands creating a tension force opposing the downward direction of rotation of the exercise arms (Fig 1).
2. Little discloses the exercise machine of claim 1, wherein said at least one second connector and said at least one third connector is a loop (14AG).
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.
Claims 3-4 and 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Little.
3-4. Little discloses the exercise machine significantly as claimed, but does not explicitly disclose wherein said at least one second connector and said at least one third connector is either a C-ring or a D-ring. The examiner takes official notice that the use of C-rings and D-rings (along with hooks, carabiners, and the like) is well-understood, routine, conventional activity engaged in by those in the relevant art, in that the additional elements are widely prevalent or in common use in the art to provide a connection point for a variety of different types of tension/resistance band known in the exercise art. It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the connection blocks of Little to be C-rings or D-rings to accommodate a variety of tension/resistance bands known in the art. Such a modification is merely a design consideration to one of ordinary skill in the art and would produce expected and predictable results.
Note: Applicant may challenge the examiner's position of Official notice, specifically stating that such elements are not well-understood, routine, conventional activity by amending the claim, e.g., to add additional elements or modify existing elements, present persuasive arguments based on a good faith belief as to why the rejection is in error and/or submit evidence traversing the rejection. If Applicant does not traverse the examiner’s assertion of official notice, the examiner’s common knowledge or well-known in the art statement will be taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of Official Notice.
6-7. Little discloses the exercise machine of claim 1, including a plurality of first connectors on each exercise arm (Fig 7 shows two first connectors on each exercise arm) and a plurality of second connectors on frame members underlying each exercise arm (14E-14H). However, Little does not disclose the number of first connectors on each exercise arm being different than the number of second connectors on the frame members underlying each exercise arm.
The examiner takes official notice that providing an different number of first and second connectors is well-understood, routine, conventional activity engaged in by those in the relevant art, in that the additional elements are widely prevalent or in common use in the art to provide multiple connection points to perform a variety of different types of exercises known in the exercise art as this is merely a duplication of components. Examiner reminds applicant that it has been consistently held that a duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. V Bemis Co., 193 USPQ 8 and that a duplication of parts has no patentable significance unless a new and unexpected result is produced and is a design consideration within the skill of the art. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). Accordingly, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the exercise machine of Little to have any number of first and second connection points to accommodate a variety of exercises known in the art. Such a modification is merely a design consideration to one of ordinary skill in the art and would produce expected and predictable results.
Claims 8-18 are rejected under 35 U.S.C. 103 as being unpatentable over Little in view of Gedeon-Janvier (US Patent Application Publication 2022/0193477).
8-10 and 13-15. Little discloses the exercise machine significantly as claimed, but does not disclose an exercise arm-engaging member secured to a frame member vertically below the rotational mount of each exercise arm and in vertical alignment with each exercise arm, said exercise arm-engaging member including telescoping sections, an outer telescoping section being movable within an inner telescoping member and having a distal end with a roll thereon for engaging the exercise arm, and a locking member for retaining said outer telescoping section against movement relative to said inner telescoping member when said roll engages the exercise arm in a desired position for commencing an exercise.
Gedeon-Janvier discloses a similar exercise machine having a pair of exercise arms (8) rotatably mounted on a machine frame (16) to be engaged against a resistance about the rotatable mount and further comprising an exercise arm engaging member (40) telescopically connected to the machine frame vertically below each of the pair of exercise arms (Fig 2) and having an engagement member at an upper portion thereof to serve as an emergency spotter if the user is unable to complete an exercise (Par. 0022). It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the machine of Little to have the exercise arm engaging members as taught by Gedeon-Janvier to serve as a mechanical spotter for a user.
11-12 and 16-18. Little discloses the exercise machine significantly as claimed, but does not disclose including a bracket rotatably mounted adjacent the distal end of each exercise arm and including an opening in a distal end thereof, a hand-engaging member including a stem received with said opening in said distal end of said bracket, said stem including a plurality of opening spaced-along said stem, and a locking member extending through an opening in said bracket for engagement with said stem for locking said hand-engaging member against movement in said bracket.
Gedeon-Janvier discloses a similar exercise machine having a pair of exercise arms (8) rotatably mounted on a machine frame (16) to be engaged against a resistance about the rotatable mount and further comprising rotatable handgrips (22.1,22.2) having a locking member (64.1) which is engageable within a plurality of openings (62.1) extending about a bracket to which the handgrips are mounted which allows a user to reposition handgrips to a location/orientation which is best suited for a variety of different exercises (Par. 0028). It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify the single crossbar of Little to be a pair of adjustable angle handgrips as taught by Gedeon-Janvier to increase the number of different variations of exercises by a user.
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 19-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,527,986. Although the claims at issue are not identical, they are not patentably distinct from each other because the limitations of Claims 19 and 20 in combination with Claim 1, from which they depend, of the application encompass the limitations of the patent.
Allowable Subject Matter
Claim 5 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Jones et al, Siaperas, McBride et al, Watterson et al, and Bingham et al all disclose similar exercise machines rotatable arms operating against a resistance.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA T KENNEDY whose telephone number is (571)272-8297. The examiner can normally be reached M-F 7a-4:30p MST.
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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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/JOSHUA T KENNEDY/Primary Examiner, Art Unit 3784 9/23/2026
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