Ex Parte CassanoDownload PDFPatent Trial and Appeal BoardSep 30, 201412029529 (P.T.A.B. Sep. 30, 2014) Copy Citation UNITED STAlES PAlENT 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. 12/029,529 FILING DATE 02/1212008 FIRST NAMED INVENTOR Robert Cassano ATTORNEY DOCKET NO. C016-7139USI CONFIRMATION NO. 9019 EXAMINER LONG, ROBERT FRANKLIN 21127 7590 10/02/2014 Novak Druce Connolly Bove + Quigg LLP 100 Cambridge Street Suite 2101 BOSTON, MA 02114 ART UNIT 3721 NOTIFICATION DATE 10/02/2014 PAPER NUMBER DELIVERY MODE 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 addressees): therese.hendricks@novakdruce.com dcdocketing@novakdruce.com cynthiajoseph@novakdruce.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT CASSANO Appeal 2012-003238 1 Application 12/029,5292 Technology Center 3700 Before HUBERT C. LORIN, BIBHU R. MOHANTY, and MICHAEL C. ASTORINO, Administrative Patent Judges. LORIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Robert Cassano (Appellant) seeks our review under 35 U.S.C. § 134 of the final rejection of claims 1-22. We have jurisdiction under 35 U.S.C. § 6(b) (2002). SUMMARY OF DECISION We REVERSE.3 1 The record includes a transcript of the oral hearing held Feb. 11,2014. 2 According to the Appellant, the real party in interest is Cybex International Inc. (Appeal Br. 2). Plppea12012-003238 Plpplication 12/029,529 THE INVENTION Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. Pl treadmill comprising: a pair of rollers mounted on a frame; an endless running belt wound around the rollers under a selected tension; at least one of the rollers having a roller pulley for receiving a drive belt; a drive mechanism comprising a driven rotor having a drive pulley; the drive belt being wound around the roller pulley and the drive pulley at a drive tension created by the selected tension in the running belt which pulls on the drive belt via the roller pulley. THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Ogden Smith US 4,635,928 US 2005/0233864 Pll Jan. 13, 1987 Oct. 20, 2005 The following rejections are before us for review: 1. Claims 9 and 20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Smith. 3 Our decision will make reference to the Plppellant's Plppeal Brief ("Plpp. Br.," filed July 20, 2011) and Reply Brief ("Reply Br.," filed Dec. 2, 2011), and the Examiner's Plnswer ("Plns.," mailed Oct. 3,2011). 2 Plppea12012-003238 Plpplication 12/029,529 2. Claims 1-8, 11-19,21, and 22 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Smith. 3. Claims 1-8, 11-19,21, and 22 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Smith and Ogden. ISSUES Did the Examiner err in rejecting claims 9 and 20 under 35 U.S.C. § 103(a) as being unpatentable over Smith; claims 1-8, 11-19,21, and 22 under 35 U.S.C. § 103(a) as being unpatentable over Smith; and, claims 1-8, 11-19,21, and 22 under 35 U.S.C. § 103(a) as being unpatentable over Smith and Ogden. FINDINGS OF FPlCT We rely on the Examiner's factual findings stated in the Plnswer. Pldditional findings of fact may appear in the Plnalysis below. PlNPlLYSIS The rejection ofclaims 9 and 20 under 35 u.s. C. § 103(aj as being unpatentable over Smith. Claims 9 and 20 are independent claims. The Examiner takes the position that Smith discloses the treadmill as claimed but for "the drive pulley is at a drive tension created by the selected tension in the running belt." Plns. 5. We will not sustain the rejection as to claim 20. The position the Examiner is taking applies only to claim 9 because claim 20 does not mention a "drive pulley is at a drive tension created by the selected tension 3 Plppea12012-003238 Plpplication 12/029,529 in the running belt." This is a limitation in claim 9, not claim 20. Otherwise, the Examiner appears not to have addressed the substance of claim 20. For example, the claim limitation "the roller pulley being mounted for back and forth travel toward and away from the drive mechanism" (claim 20) has not been treated. Pls to claim 9, in construing the claim limitation "the running belt being maintained under a selected tension that acts through the roller pulley to maintain the drive pulley under tension" (claim 9), the Examiner states that "the phrases 'selected tension' and 'maintained tension' [are given] the broadest reasonable interpretation to include tension in the belt that is provided when attached between two elements [and thus] will have tension." Plns. 7. Plccording to the Examiner, "Smith teaches having the both the front and rear rollers to [sic] adjustable and figure 10 shows the rear roller being adjustable. Smith also teaches having the pulley secured at the rear roller and teaches having the rollers be adjusted vertically and horizontally." Plns. 5. Plccording to the Examiner, "[i]t would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the rear roller as shown in the front to interact with pulley assembly to provide the adjustment in both the running belt and drive belt." Plns.7. The Plppellant argues, in part, that "[t]he Examiner's interpretation of Smith amounts to re-invention of Smith that is contrary to the purposeful teaching of Smith to the contrary." Plpp. Br. 7. We find the evidence weighs in favor of the Plppellant's position. The difficulty is with the apparent reasoning in support of the prima facie case of obviousness. Pl "running belt being maintained under a selected tension that 4 Plppea12012-003238 Plpplication 12/029,529 acts through the roller pulley to maintain the drive pulley under tension" (claim 9) does not necessarily follow from the fact that Smith discloses having both the front and rear rollers adjustable. The fact that front and rear rollers are adjustable does not necessarily lead to a "running belt being maintained under a selected tension that acts through the roller pulley to maintain the drive pulley under tension" (claim 9). The reasoning does not have sufficient logical underpinning to establish a prima facie case of obviousness for the claimed subject matter. Plccordingly, the rejection of claims 9 and 20 is not sustained. The rejection ofclaims 1---8,11-19,21, and 22 under 35 u.s.c. § 103(a) as being unpatentable over Smith. The rejection ofclaims 1---8,11-19,21, and 22 under 35 u.s.c. § 103(a) as being unpatentable over Smith and Ogden. The Examiner's position as to independent claims 1 and 15 is the same as that discussed above with respect to the rejection of claim 9. See Plns. 8. The same reasoning is used to find that it would have been obvious over Smith's disclosure of adjustable rollers to have "a drive belt being wound around the roller pulley and the drive pulley at a drive tension created by the selected tension in the running belt which pulls on the drive belt via the roller pulley" (claim 1) and "at least one of the drive pulley and the roller pulley being adapted to enable the drive belt to be readily manually released from being wound around the drive pulley or the roller pulley upon relaxation of the selected tension in the running belt to a selected degree" (claim 15). We do not find the reasoning to have sufficient logical 5 Plppea12012-003238 Plpplication 12/029,529 underpinning to establish a prima facie case of obviousness for the claimed subject matter. CONCLUSIONS The rejection of claims 9 and 20 under 35 U.S.C. § 103(a) as being unpatentable over Smith is not sustained. The rejection of claims 1-8, 11-19, 21, and 22 under 35 U.S.C. § 103(a) as being unpatentable over Smith is not sustained. The rejection of claims 1-8, 11-19, 21, and 22 under 35 U.S.C. § 103(a) as being unpatentable over Smith and Ogden is not sustained. DECISION The decision of the Examiner to reject claims 1-22 is reversed. REVERSED mls 6 Copy with citationCopy as parenthetical citation