Donald Jeffrey. BoatwrightDownload PDFPatent Trials and Appeals BoardOct 9, 201913493234 - (D) (P.T.A.B. Oct. 9, 2019) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/493,234 06/11/2012 Donald Jeffrey Boatwright 637/3 1079 36829 7590 10/09/2019 SCHWARTZ LAW FIRM, P.C. 6100 FAIRVIEW ROAD SUITE 1135 CHARLOTTE, NC 28210 EXAMINER FISCHER, RAE ART UNIT PAPER NUMBER 3784 NOTIFICATION DATE DELIVERY MODE 10/09/2019 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): JJS@SCHWARTZ-IPLAW.COM esh@schwartz-iplaw.com srs@schwartz-iplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DONALD JEFFREY BOATWRIGHT Appeal 2018-008020 Application 13/493,234 Technology Center 3700 Before JAMESON LEE, JONI Y. CHANG, and JUSTIN T. ARBES, Administrative Patent Judges. LEE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to finally reject claims 6 and 12–18. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Donald Jeffrey Boatwright. Appeal Br. 3. Appeal 2018-008020 Application 13/493,234 2 CLAIMED SUBJECT MATTER The claims are directed to a multipurpose exercise stand for compound fitness training. Claim 6 is independent and all other claims on appeal depend, directly or indirectly, from claim 6. Claim 6 is illustrative (emphases added): 6. A multipurpose exercise stand for compound fitness training, comprising: a horizontal push-training bar assembly comprising first and second pairs of parallel tubular inside and outside dip grip segments all residing in the same horizontal plane and all extending in a direction parallel to one another, and a crossbar segment interconnecting and perpendicularly disposed to said first and second pairs of inside and outside dip grip segments, and said first and second pairs being laterally spaced apart to accommodate body lifting and body lowering movement of a user performing a dip exercise while gripping either the two inside dip grip segments or the two outside dip grip segments; a horizontal pull-training bar assembly longitudinally spaced from said push-training bar assembly, and comprising: first and second pairs of inside and outside pull bar segments longitudinally aligned with said first and second pairs of inside and outside dip grip segments; a first crossbar segment connected and perpendicularly disposed to said first and second pairs of inside and outside pull bar segments, and longitudinally aligned with the crossbar segment of said push-training bar assembly; a second crossbar segment connected and perpendicularly disposed to said inside pull bar segments; a third crossbar segment connected and perpendicularly disposed to said inside pull bar segments; and Appeal 2018-008020 Application 13/493,234 3 a center bar segment connected and perpendicularly disposed to said second crossbar segment and said third crossbar segment; and a plurality of longitudinal rigid spacer bars interconnecting said push-training bar assembly and said pull-training bar assembly. Figures 8 and 12 of the Application are reproduced below: Figure 8 illustrates a user performing a body-weight push exercise on an exercise stand, and Figure 12 illustrates a user performing a pull movement on the exercise stand. Spec. ¶¶ 33, 36. REFERENCES Dalebout US Pat. No. 7,537,552 B2 May 26, 2009 Appeal 2018-008020 Application 13/493,234 4 PVC Scuba tank rack, http://www.pvcplans.com/scuba.htm (Feb. 11, 2009) (“PVC Rack”). REJECTIONS A. Claims 6, 12–14, and 16–18 stand finally rejected under 35 U.S.C. § 102(b) as anticipated by PVC Rack. B. Claim 15 stands finally rejected under 35 U.S.C. § 103 as obvious over PVC Rack and Dalebout. OPINION A. The Anticipation Rejection of Claims 6, 12–14, and 16–18 over PVC Rack under 35 U.S.C. § 102 “Anticipation requires the presence in a single prior art disclosure of all elements of a claimed invention arranged as in the claim.” Therasense, Inc. v. Becton, Dickinson & Co., 593 F.3d 1325, 1332 (Fed. Cir. 2010) (quoting Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed. Cir. 1983)). “[U]nless a reference discloses within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim, it cannot be said to prove prior invention of the thing claimed and, thus, cannot anticipate under 35 U.S.C. § 102.” Id. (quoting Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008)) (emphasis in original). The claimed invention is an exercise stand. PVC Rack discloses a rack for storing scuba tanks, not an exercise stand. Nevertheless, if PVC Rack’s scuba tank rack includes all claim elements in the manner required by a claim, and is capable of being used as an exercise stand, then it would Appeal 2018-008020 Application 13/493,234 5 anticipate that claim. PVC Rack includes this illustration of a rack for storing scuba tanks: The Figure above illustrates a rack for storing scuba tanks. According to the Examiner, the above-illustrated rack includes each and every element recited in claim 6 in the manner required by claim 6. Ans. 3–5 (dated June 25, 2018). We reproduce below an annotated version of the same, provided by the Examiner in Appendix A (dated June 4, 2018) to the Examiner Answer: Appeal 2018-008020 Application 13/493,234 6 The Figure above is an annotated version of the illustration from PVC Rack, annotated by the Examiner to show inside and outside dip grip segments. Appellant asserts in a Response filed June 9, 2017, that as many as nine different elements of claim 6 are absent from the rack disclosed in PVC Rack. In the Appeal Brief, Appellant specifically identifies only three, in particular this element: said first and second pairs [of parallel tubular inside and outside dip grip segments all residing in the same horizontal plane and all extending in a direction parallel to one another] being laterally spaced apart to accommodate body lifting and body lowering movement of a user performing a dip exercise while gripping either the two inside dip grip segments or the two outside dip grip segments. App. Br. 14. Appellant argues: “In the ‘PVC Scuba Tank Rack,’ the adjacent parallel pipe sections are laterally spaced-apart a distance of only 8.5 inches. This distance is clearly insufficient to accommodate body lifting and body Appeal 2018-008020 Application 13/493,234 7 lowering movement of a user performing a dip exercise (See Figures 8 and 9 above).” Id. at 15. The Examiner, however, responds as follows: There are users who may use the device by inserting their body in this 8.5 inch space; children and small adults would be capable of fitting between the inside segments. More importantly, there is nothing in the claim which requires that the device be capable of use by inserting the user’s body in the space between the parallel grip segments. Therefore, the assertion is not germane to the rejection of record. Ans. 9–10. The Examiner further finds that “accommodate” means “to provide or make room for” as is commonly understood. Id. at 10. The burden is on the Examiner to demonstrate unpatentability. On this record, we are more persuaded by Appellant than we are by the Examiner, as explained below. We agree with the Examiner that the Specification provides no special definition for the term “accommodate,” and that the term means “to provide or make room for,” as it is commonly understood. Thus, that means the first dip grip segments as well as the second dip grip segments are laterally spaced apart to make room for the user’s body in lifting and lowering movements, as is consistent with all disclosed embodiments in the Specification. Figure 8 as illustrated above is one example. The Specification explains: The inside dip grip segments 21B, 22B are sufficiently spaced apart (e.g., 18 to 36 inches) to accommodate body lifting and body lowering movement of a user performing a dip exercise between the pairs while gripping either of the two inside dip grip segments 21B, 22B or the two outside dip grip segments 21A, 22A. See Figures 8 and 9, respectively. Spec. ¶ 49. In the context of this Specification, we conclude that it is very much germane to the claimed invention whether there is sufficient Appeal 2018-008020 Application 13/493,234 8 unobstructed open space between the first dip grip segments to accommodate, i.e., make space for, body lifting and lowering movements in that space. Implicitly, claim 6 does require insertion of the user’s body in the space between the first dip grip segments and between the second dip grip segments. If there is no such requirement, the recitations regarding lateral spacing and accommodation are without much meaning, if any. We decline to read the accommodation limitation so broadly as though it imposes no limitation or restriction, as that would read out a limitation from the claim. See Texas Instruments Inc. v. U.S. Int’l Trade Comm’n, 988 F.2d 1165, 1171 (Fed. Cir. 1993) (holding that claim language cannot be mere surplusage and an express limitation cannot be ignored). The Examiner states “[i]t is the Office’s position that the grip segments of the PVC Rack are space[d] apart and allow lifting and lowering of the body.” Ans. 10. That position is deficient because it does not adequately account for the limitation of “to accommodate body lifting and body lowering movement of a user performing a dip exercise while gripping either the two inside dip grip segments or the two outside dip grip segments” in claim 6. We further disagree with the Examiner’s finding (Ans. 9–10) that there are users who may use the device of PVC Rack by inserting their body in this 8.5 inch space, and that children and small adults would be capable of fitting between the inside segments. The evidence of record does not support that finding. We note also that the exemplary range described in the Specification for the required lateral spacing is 18–36 inches. Spec. ¶ 49. There is nothing to support the Examiner’s assertion that a person can fit in PVC Rack’s enclosed space that has a width of only 8.5 inches to perform a dip exercise. Further, the Examiner does not address how such a person Appeal 2018-008020 Application 13/493,234 9 could even get within that space, given that there are obstructing crossbars blocking entry. On this record, the PVC Rack for storing scuba tanks is just a rack, and not an exercise stand that meets all requirements of claim 6. We are not persuaded that PVC Rack’s scuba tank rack is capable of being used as an exercise stand as claimed. For the foregoing reasons, we do not sustain the rejection of claim 6 as anticipated by PVC Rack. Claims 12–14 and 16–18 each depend, directly or indirectly, from claim 6, and thus include all elements of claim 6. For the same deficiency of the rejection of claim 6 as discussed above, the rejection of claims 12–14 and 16–18 as anticipated by PVC Rack cannot be sustained. B. The Obviousness Rejection of Claim 15 over PVC Rack and Dalebout Claim 15 depends from claim 6 and further recites “wherein segments of said push-training bar assembly and said pull-training bar assembly are color coded for different exercises.” For this additional limitation, the Examiner relies on the teachings of Dalebout. Ans. 6–7. For the features incorporated from base claim 6, the Examiner relies on the same analysis that was provided for claim 6. Id. at 6. Therefore, for the same deficiency of the rejection of claim 6 as discussed above, the rejection of claim 15 as obvious over PVC Rack and Dalebout cannot be sustained. Appeal 2018-008020 Application 13/493,234 10 CONCLUSION In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 6, 12–14, 16–18 102 PVC Rack none 6, 12–14, 16–18 15 103 PVC Rack and Dalebout none 15 Overall Outcome 6, 12–18 REVERSED Copy with citationCopy as parenthetical citation