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 .
Claim Rejection - 35 U.S.C. 102(a)(1)
The claim is rejected under 35 U.S.C. 102(a)(1) as being anticipated by the “FLEXISPOT Under Desk Bike” disclosure on Amazon on 17 March 2018 because 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.
The appearance of the exercise bike disclosed on Amazon is substantially the same as that of the claimed design. See e.g., International Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240, 93 USPQ2d 1001 (Fed. Cir. 2009) and MPEP 1504.02.
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Two designs are substantially the same if their resemblance is deceptive to the extent that it would induce an ordinary observer, giving such attention as a purchaser usually gives, to purchase an article having one design supposing it to be the other.” Door-Master Corp. v. Yorktowne Inc., 256 F.3d 1308, 1313 (Fed. Cir. 2001) (citing Gorham Co. v. White, 81 U.S. 511, 528 (1871)).
The mandated overall comparison is a comparison taking into account significant differences between the two designs, not minor or trivial differences that necessarily exist between any two designs that are not exact copies of one another. Just as ‘minor differences between a patented design and an accused article's design cannot, and shall not, prevent a finding of infringement,’ so too minor differences cannot prevent a finding of anticipation.” Int'l Seaway , 589 F.3d at 1243 (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
Claim Rejection - 35 U.S.C. 102(a)(1)
The claim is rejected under 35 U.S.C. 102(a)(1) as being anticipated by the “FLEXISPOT Under Desk Bike 2024” disclosure on Amazon on 5 February 2024 because 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.
The appearance of the exercise bike disclosed on Amazon is substantially the same as that of the claimed design. See e.g., International Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240, 93 USPQ2d 1001 (Fed. Cir. 2009) and MPEP 1504.02.
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Two designs are substantially the same if their resemblance is deceptive to the extent that it would induce an ordinary observer, giving such attention as a purchaser usually gives, to purchase an article having one design supposing it to be the other.” Door-Master Corp. v. Yorktowne Inc., 256 F.3d 1308, 1313 (Fed. Cir. 2001) (citing Gorham Co. v. White, 81 U.S. 511, 528 (1871)).
The mandated overall comparison is a comparison taking into account significant differences between the two designs, not minor or trivial differences that necessarily exist between any two designs that are not exact copies of one another. Just as ‘minor differences between a patented design and an accused article's design cannot, and shall not, prevent a finding of infringement,’ so too minor differences cannot prevent a finding of anticipation.” Int'l Seaway , 589 F.3d at 1243 (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
Claim Rejection - 35 U.S.C. 103
The claim has been rejected under 35 U.S.C. 103 as being unpatentable over FLEXISPOT Under Desk Bike (2024) design disclosed in February 2024 on Amazon (hereinafter FLEXISPOT) in view of WELLERGON Exercise While Working-Desk Exercise Bike disclosure in October 2019 on Amazon (hereinafter WELLERGON).
Although the invention is not identically disclosed or described as set forth in 35 U.S.C. 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 designer having ordinary skill in the art to which the claimed invention pertains, the invention is not patentable.
FLEXISPOT is an exercise bike that has an overall appearance with design characteristics that are visually similar to those of the claimed design (see the following figures). Both FLEXISPOT and the claim are exercise bikes sharing the following design features: elevated desk (A), adjustable feature (B), triangular seat (C), irregular shaped body (D), pedals inserted inside a circular design (E), four protruding legs with wheels (F).
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FLEXISPOT and the claim differ in that the claim includes a smooth side body (D), whereas FLEXISPOT shows a protruding side design (G).
WELLERGON teaches a smooth side body design (D) (See image below).
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It would have been obvious to a designer of ordinary skill before the effective filing date of the present claimed invention to provide the FLEXISPOT irregular body design with smooth sides as taught by WELLERGON because such a modification is a simple substitution of a known design choice. WELLERGON makes clear that designing an exercise bike with an irregular body design and smooth sides is well within the ordinary skill of a designer in the art. Therefore, such substitution of one known design element for another known design element in the same field would have been within the skill of an ordinary skilled designer.
Conclusion
The claim is rejected under 35 U.S.C 102(a)(1) and 35 U.S.C. 103 as set forth above.
References cited and not applied are considered pertinent to the appearance of the claimed design.
Responding to Official USPTO Correspondence
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Online via the USPTO's Electronic Filing System‐Web (EFS‐Web) (Registered eFilers only) https://www.uspto.gov/patents/apply
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Facsimile to the USPTO's Official Fax Number (571‐273‐8300)
Hand‐carry to USPTO's Alexandria, Virginia Customer Service Window https://www.uspto.gov/patents/maintain/responding-office-actions
Hague - Reply Reminder
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Reply Reminder for Restriction Requirements Concerning Figure Numbering
Renumbering of the reproductions in any elected embodiment is not required. To ensure compliance with 37 CFR 1.1026 and Section 405 of the Administrative Instructions, and to maintain consistency with the published International Registration, the numbering of the reproductions included in the elected embodiment should not be changed even if non-elected embodiments are cancelled.
In replying to this Refusal electing an embodiment for prosecution, applicant should also consider amending the application to cancel the reproductions and remove the description corresponding to the nonelected embodiment(s), and to correct inventorship, as appropriate, resulting from such amendment pursuant to 37 CFR 1.48. See MPEP 602.01(c)(1). Applicant should note that correcting inventorship after an Office action on the merits has been given or mailed in the application will require an additional fee pursuant to 37 CFR 1.48(c).
Discussion of the Merits of the Application
All discussions between the applicant and the examiner regarding the merits of a pending application will be considered an interview and are to be made of record. See MPEP 713. The examiner will not discuss the merits of the application with applicant’s representative if the representative is not registered to practice before the USPTO. Appointment as applicant’s representative before the International Bureau pursuant to Rule 3 of the Common Regulations under the Hague Agreement does NOT entitle such representative to represent the applicant before the USPTO. Furthermore, an applicant that is a juristic entity must be represented by a patent attorney or agent registered to practice before the USPTO. Additional information regarding interviews is set forth below.
Interviews
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Any inquiry concerning this communication or earlier communications from the examiner should be directed to SALAMAH JORDAN whose telephone number is (571)272-9640. The examiner can normally be reached Monday-Friday 9AM-5PM EST.
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/SALAMAH JORDAN/Examiner, Art Unit 2912