Ex Parte Dyer et al

Board of Patent Appeals and Interferences

Jul 31, 2012

11342936 (B.P.A.I. Jul. 31, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/342,936 01/30/2006 David E. Dyer P12561 4232
37394 7590 07/31/2012
TERENCE P. O'BRIEN
AMER SPORTS NORTH AMERICA
8750 W. BRYN MAWR AVENUE
CHICAGO, IL 60631
EXAMINER
THANH, LOAN H
ART UNIT PAPER NUMBER
3764
MAIL DATE DELIVERY MODE
07/31/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte DAVID E. DYER, GREGORY B. MAY,
PETER J. ARNOLD, JONATHAN M. STEWART and
ROBERT SILBERNAGEL
________________

Appeal 2010-004778
Application 11/342,936
Technology Center 3700
________________

Before JENNIFER D. BAHR, PHILLIP J. KAUFFMAN and
MICHAEL L. HOELTER, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-004778
Application 11/342,936

2
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 1-18 and 21-25 (App. Br. 2). Claims 19 and 20 have
been cancelled (App. Br. 2). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

The Claimed Subject Matter
The claimed subject matter pertains to an exercise device having a
foot link with a foot support portion in a central location thereof and an
engagement mechanism coupled to the foot link “at a location rearward of”
the foot support portion. Independent claim 1 is illustrative of the claims on
appeal and is reproduced below:
1. An elliptical exercise device, comprising:
a frame having a pivot axis;
a foot link having a rearward portion, a forward portion,
and a foot support portion, the foot support portion having a
central location;
a coupling associated with the rearward portion of the
foot link for coupling the rearward portion of the foot link to
the pivot axis so that the rearward portion of each foot link
travels in a closed path relative to the pivot axis;
a swing arm having a pivotal connection to the frame;
an engagement mechanism having a first portion coupled
to the swing arm and a second portion coupled to the foot link
at a location rearward of the central location of the foot support
portion, such that a force applied to the swing arm will produce
a force on the foot link; and
a guide system for supporting the forward portion of the
foot link along a preselected reciprocating path of travel as the
rearward portion of the foot link travels along its path of travel,
the guide system selectably positionable in a plurality of
different positions, such that when the exercise device is in use
Appeal 2010-004778
Application 11/342,936

3
the foot support portion moves along a generally elliptical path
of travel.

References Relied on by the Examiner
Pyles US 6,190,289 B1 Feb. 20, 2001
Maresh US 6,217,485 B1 Apr. 17, 2001
Arnold US 2001/0023219 A1 Sep. 20, 2001
Lee US 6,390,954 B1 May 21, 2002
Stearns US 6,569,061 B2 May 27, 2003
Ellis US 6,758,790 B1 Jul. 6, 2004

The Rejections on Appeal
1. Claims 9 and 25 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Lee (Ans. 5).
2. Claims 1-18 and 21-23 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Arnold, Ellis and Stearns (Ans. 7).
3. Claims 1-18 and 21-23 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Arnold, Ellis and Maresh (Ans. 11).
4. Claims 1 and 24 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lee and Pyles (Ans. 15).
5. Claims 1, 7 and 8 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Arnold (Ans. 17).

ANALYSIS
The rejection of Claims 9 and 25 as anticipated by Lee
Appellants argue claims 9 and 25 together (App. Br. 9). We select
independent claim 9 for review with dependent claim 25 standing or falling
with claim 9 (see 37 C.F.R. § 41.37(c)(1)(vii) (2011)).
Claim 9 is directed to an elliptical exercise device that includes a pivot
axis and first and second foot links having first and second foot supporting
Appeal 2010-004778
Application 11/342,936

4
portions. Claim 9 also includes first and second engagement mechanisms
coupled to the first and second foot links “at a location rearward of the
central location of the first and second foot support portions.” The Examiner
relies on Lee for disclosing all the limitations of claim 9 including pivotal
axis 31, foot links 4 having centrally located first and second foot support
portions 40 and engagement mechanisms 5 coupled to the foot links “at a
location rearward of the central location of the first and second foot support
portions” (Ans. 5-6).
Appellants contend that Lee fails to disclose an engagement
mechanism coupled “rearward of the central portion of the foot support
portion” (App. Br. 9, Reply Br. 2). Appellants state that as shown in Lee’s
Figure 4, “no portion of link 5 is coupled to pedal rod 4 REARWARD of a
central portion of foot plate 40” (App. Br. 10, Reply Br. 2). Appellants
argue that one of ordinary skill in the art of exercise devices, “especially
after reading Appellants’ own disclosure” (and specifically Paragraph 45)
would understand that Lee teaches a coupling “forward” of the foot
supporting portion (footplate 40), not rearward as claimed (App. Br. 10,
Reply Br. 3).
Paragraph 45 of Appellants Specification provides orientation by
stating “[t]he terms ‘rear’ and ‘rearward’ refer to a position location or
direction toward the transverse axle 34.” The orientation thus provided by
Appellants’ Specification is with respect to a transverse axle (pivot axis) and
not with respect to the direction a user may be facing.
The Examiner identifies Lee’s wheel axle 31 as the claimed pivotal
axis (i.e., transverse axis) to which foot links (pedal rods 4) are coupled
(Ans. 5). Lee discloses engagement mechanisms (links 5) coupled to the
Appeal 2010-004778
Application 11/342,936

5
first and second foot links (pedal rods 4) at a location rearward (towards
wheel axle 31) of the central location of the first and second foot support
portions (footplates 40) (Fig. 4). Because Appellants’ Specification defines
rearward as towards the pivot axis, we agree with the Examiner that Lee
discloses the claim limitation of the “engagement mechanisms further
coupled to the first and second foot links, respectively, at a location
rearward of the central location of the first and second foot support
portions, respectively” (italics added). We sustain the Examiner’s rejection
of claims 9 and 25.

The rejection of claims 1-18 and 21-23
as being unpatentable over Arnold, Ellis and Stearns
Each of claims 1-18 and 21-23 include the limitation discussed supra,
i.e., the engagement mechanism being coupled to the foot link at a location
“rearward” of the central location of the foot support portion. The Examiner
primarily relies on the teachings of Arnold but acknowledges that Arnold
“does not explicitly disclose” the engagement mechanism coupled to the
foot link at a location rearward the foot support portion (Ans. 7-8). The
Examiner relies on the teachings of Ellis for this limitation stating that it
would have been obvious to modify the exercise apparatus of Arnold “by
disposing the second portion of the engagement mechanism at or near the
rearward most end of the foot support portion as taught by Ellis” (Ans. 9).
Unlike with respect to Arnold, the Examiner does not identify a
transverse axis in Ellis to establish an orientation in support of this
‘rearward’ finding (Ans. 8). The Examiner has not adequately explained or
established how Ellis’ identified foot link 22 is coupled ‘rearward’ (as that
term is defined by Appellants) with respect to foot support portion 32.
Appeal 2010-004778
Application 11/342,936

6
Because no such orientation in Ellis has been provided or articulated, we are
not persuaded that the Examiner has established a rational underpinning for
finding that Ellis discloses a coupling “at a location at or near the rearward
most end of a foot support portion (32)” (See Ans. 8; App. Br. 10; Reply Br.
5). There is no indication in the record that the reference to Stearns corrects
this deficiency. Accordingly, we reverse the rejection of claims 1-18 and
21-23 as being unpatentable over Arnold, Ellis and Stearns.

The rejection of claims 1-18 and 21-23
as being unpatentable over Arnold, Ellis and Maresh
The Examiner relies on Arnold and Ellis for the same reasons
discussed supra (Ans. 11-13). The Examiner’s reliance on Maresh, like
Stearns, does not cure the deficiency noted above. We reverse the rejection
of claims 1-18 and 21-23 as being unpatentable over Arnold, Ellis and
Maresh.

The rejection of claims 1 and 24
as being unpatentable over Lee and Pyles
Appellants argue claims 1 and 24 together (App. Br. 16). We select
independent claim 1 for review with dependent claim 24 standing or falling
with claim 1. Appellants contend that neither Lee nor Pyles disclose an
engagement mechanism “coupled to the foot link at a location rearward of
the central portion of the foot support portion” (App. Br. 16, Reply Br. 17).
Unlike above with respect to claim 9, Appellants do not address the
‘rearward’ orientation expressed in Appellants’ Specification but instead
Appellants repeat the contention that “one of ordinary skill in the art of
exercise devices, especially after reading Appellants’ own disclosure” would
Appeal 2010-004778
Application 11/342,936

7
understand that Lee’s corresponding coupling is located “forward” foot
plate portion 40, not rearward (App. Br. 17, Reply Br. 18). We disagree for
the reasons stated supra. One skilled in the art of exercise devices reading
Appellants’ own disclosure would understand that Appellants have defined
“rearward” with respect to the transverse axis (Spec. ¶ [0045]). The
Examiner has identified Lee’s wheel axle 31 as the corresponding axis
which provides a “rearward” orientation (Ans. 15). Accordingly, Appellants
have not presented arguments persuasively demonstrating why the
Examiner’s interpretation of Lee and Pyles is unreasonable or in need of
correction. We sustain the rejection of claims 1 and 24.

The rejection of claims 1, 7 and 8 as being anticipated by Arnold
Each of claims 1, 7 and 8 include the limitation of an engagement
mechanism being coupled to the foot link at a location “rearward of the
central location of the foot support portion.” The Examiner identifies
Arnold’s transverse axle 34 as the corresponding pivot axis, such axis
providing a “rearward” orientation (Ans. 17). The Examiner’s stated reason
for this anticipation rejection is that “the central location [of the foot support
portion on the foot link] is not given a frame of reference; therefore it can
arbitrarily be designated with respect to any central part of the foot support
and at least part of the [engagement mechanism] is rearward of this
location” (italics in original)(Ans. 17-18). We note that the Examiner’s
central location is expressed with respect to the foot support component and
not the foot link component. We further note that the Examiner does not
withdraw or retract the earlier finding that Arnold “does not explicitly
disclose” the rearward coupling limitation set forth in claim 1 (see Ans. 8
Appeal 2010-004778
Application 11/342,936

8
and the Examiner’s finding regarding Arnold with respect to the rejection of
claims 1-18 and 21-23). Additionally, the Examiner appears to
misunderstand or misinterpret the claim term “rearward” because
Appellant’s Specification defines this term as “a position, location or
direction toward the transverse axle” (Spec. ¶ [0045]).
Appellants contend, and we agree, that “Arnold does not disclose a
connection rearward of the foot support portion, regardless of what
constitutes the ‘central portion’ of the foot support” and further that
“Appellants have indeed defined a frame [of] reference for the exercise
device and for the meaning of the term ‘rearward’” (Reply Br. 7, 9; Spec. ¶
[0045]). Based on the record presented, we are not persuaded that the
Examiner has presented a coherent reason for the anticipation rejection of
these claims in view of Arnold. We reverse the Examiner’s rejection of
claims 1, 7 and 8.
DECISION
The rejections of claims 1, 9, 24 and 25 are affirmed.
The rejections of claims 2-8, 10-18 and 21-23 are reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

MP