Ex Parte Luger et al

Patent Trial and Appeal Board

Jun 21, 2018

15155168 (P.T.A.B. Jun. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
15/155, 168 05/16/2016 Nathan R. Luger
138578 7590 06/21/2018
Sherrill Law Offices, PLLC
4756 Banning Avenue
Suite 212
White Bear Lake, MN 55110
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
OCT122USPT03 4731
EXAMINER
URBIEL GOLDNER, GARY D
ART UNIT PAPER NUMBER
3764
MAILDATE DELIVERY MODE
06/21/2018 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 PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES J. ROSENOW, MARK R. NESTANDE,
NATHAN R. LUGER, THOMAS C. COY, and DANIEL C. BOYLES
Appeal2017-009751
Application 15/155,168
Technology Center 3700
Before EDWARD A. BROWN, JEREMY M. PLENZLER, and
LISA M. GUIJT, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection2 of claims 1-13. We have jurisdiction under 35 U.S.C. § 6(b ).
We reverse.
1 Appellants identify the real party in interest as Octane Fitness, LLC. Br.
2.
2 Appeal is taken from the Final Office Action dated Sept. 22, 2016.
Appeal2017-009751
Application 15/155, 168
STATEMENT OF THE CASE
Claims 1 and 13 are the independent claims on appeal. Claim 1,
reproduced below, is exemplary of the subject matter on appeal, with
disputed limitations italicized for emphasis.
1. An exercise device having (-) a frame with a forward end
and a rearward end wherein the frame is configured and arranged
to accommodate user access onto the exercise device from the
rearward end, (-) left and right leg linkages, each including (i) an
upper leg member pivotally coupled to the frame for pivoting
about an upper pivot point, with the upper pivot point of each leg
linkage defining a point on a laterally extending upper pivot axis
that passes through the upper pivot point of each leg linkage, and
(ii) a lower leg member directly pivotally coupled to the upper
leg member distal to the upper pivot point for pivoting about a
lower pivot point, and (-) a foot support attached to each lower
leg member distal to each respective lower pivot point,
characterized by an ergonomically synergistic combination of:
(a) an interconnection of the upper leg members for
synchronized out of phase pivoting about each respective upper
pivot point,
(b) each of the lower leg members being separate and
independent for autonomous pivoting of each of the lower leg
members relative to each other about each respective lower pivot
point, and
( c) a joint-pivot spatial correlation selected from at least one
of:
(i) a location of the upper pivot axis configured to pass
through or posterior to the hip region of an orthostatic forward
facing suited user supported upon the foot supports with the foot
supports horizontally and vertically aligned, and
(ii) a location of each of the lower pivot points
configured to be respectively proximate to one of the knees of
the orthostatic forward facing suited user supported upon the foot
supports with the foot supports horizontally and vertically
aligned.
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Appeal2017-009751
Application 15/155, 168
THE REJECTIONS
I. Claims 1-8 and 10-13 stand rejected under 35 U.S.C. § 102(a)(l)
as anticipated by Gordon (US 7,645,215 B2; Jan. 12, 2010).
II. Claim 9 stands rejected under 35 U.S.C. § 103 as unpatentable
over Gordon and Steams (US 6,183,397 Bl; Feb. 6, 2001).
ANALYSIS
Rejection I
The Examiner finds, inter alia, that Gordon discloses separate and
independent lower leg members, as claimed, because drive cord 92, which is
attached to each of lower links 34, 3 is coupled to spring 50 that separates
drive cord 92 into two separate cords, "ensuring that there is not an
instantaneous equal reaction where one leg drives the other with the same
force." Final Act. 4 (citing Gordon 9:39, 9:64--10:3). The Examiner also
finds that
because the spring breaks the link between opposing leg
members, the forward leg is enabled to travel forward and begin
to lower while being resisted only from the resistance member
90 and not being opposed against by downward forces created by
the other leg ... for autonomous pivoting of each of the lower
leg members relative to each other about each respective lower
pivot point.
Id. (citing Gordon 10:4--9).
3 See, e.g., Gordon 9:8-10 ("driver cord 92 is attached from one lower leg
link 34 to the other via generally guide pulleys and or sprockets, spools or
the like"), Figs. 1, 2.
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Application 15/155, 168
Appellants argue that Gordon fails to disclose "separate and
independent lower leg members configured and arranged for autonomous
pivoting of each of the lower leg members relative to each other about each
respective lower pivot point," as claimed. Br. 7. Appellants argue that
"spring 50 used by Gordon does not, as advanced by the Examiner, break the
link between the lower leg links so as to provide autonomous pivoting." Id.
Appellants submit that
Gordon, when read as a whole and in context, clearly discloses
that the spring 50 does not completely break the link between
opposing leg members, but rather references a break in a direct
link between opposing leg members such that an instantaneous
equal reaction of one link to movement of the other is replaced
with a compl[ia]nt reaction of one link to movement of the other.
Such compliant interaction is not autonomy.
Id. at 8. Appellants also submit that
the phrase "As the forward moving leg travels forward and
begins to lower it is desirable to only have resistance form [sic]
the resistance member 90 and not be opposed against by
downward forces created by the other leg" does not teach or
suggest autonomy. Again, when read as a whole and in context,
this phrase is referencing a relative lack of opposition from the
other leg link at the beginning of downward movement of the
forward leg, not throughout the entire downward movement. It
is well known that springs exert an opposing force approximately
proportional to their change in length. Hence, the spring on the
machine of Gordon will exert its smallest opposing force at the
beginning of downward movement of the forward leg when
expansion of the spring is at a minimum.
Id. Appellants further submit that the passages from Gordon relied on by the
Examiner support Appellants' argument that
the spring replaces a direct interconnection of the lower leg links
- directing an instantaneous and equal translation of movement
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Application 15/155, 168
Id.
between the leg links - with an indirect interconnection of the
lower leg links which provides for a compliant translation of
movement between the leg links (i.e., an influencing translation
of movement that allows some offset in timing and distance of
translation. Again, such compliant interaction is not autonomy.
The Examiner responds that Gordon teaches that "the lower leg
members are capable a/being separate and independent for autonomous
pivoting," as claimed. Ans. 15.
As set forth supra, claim 1 recites "each of the lower leg members
being separate and independent for autonomous pivoting of each of the
lower leg members relative to each other about each respective lower pivot
point." Thus, we construe claim 1 as requiring complete separation and
independent operation between one lower leg relative to the other, such that
movement of one lower leg does not, in any instance, cause or affect?
pivoting of the other lower leg. In other words, claim 1 does not read on a
device that allows for some circumstances where the pivoting of one lower
leg is dependent on the pivoting of the other.
Gordon discloses that
[ w ]hile the flexible drive cord 92 pulls against resistance member
90 via shaft 86 and flexible cord 94, drive cord 92 [] continues to
make[] its way from one lower link to the other by channeling
through the device as directed by pulleys, thus, linking one leg
linkage 30 to the other, where downward movement of one leg
causes the other let to move upward and forward. As the above
action describes an instantaneous equal reaction where one leg
drives the other with the same force, this is not the case, as there
is a spring or spring like component 50, as seen in FIG. 3,
coupled to and separating the drive cord 92 into two separate
cords. The purpose of spring is to rather than directly link each
leg 30 to one another it rather and more effectively indirectly
links one leg to the other. This configuration is more beneficial
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Application 15/155, 168
for three reasons: 1) As the forward leg travels forward and
begins to lower it is desirable to only have resistance f-1 r ]om the
resistance member 90 and not be opposed against by downward
forces created by the other leg. The spring breaks the link
between opposing leg members.
Gordon 9:58-10:9.
In view of this disclosure in Gordon, a preponderance of evidence
fails to support the Examiner's finding that Gordon's lower leg linkages 30
are separate and independent for autonomous pivoting, as claimed. Rather,
we agree with Appellants that, at the most, Gordon discloses that spring 50,
which separates drive cords 92 while still connecting them together,
eliminates the instantaneous equal reaction. Gordon does not explicitly
disclose that all reactions are eliminated, such that the pivoting of Gordon's
lower leg linkages 30 are separate and independent mechanisms. Instead,
spring 50 indirectly connects lower leg linkages 30, such that lower leg
linkages 30 (and their respective pivoting) remain, at least to some extent,
dependent.
Accordingly, we do not sustain the Examiner's rejection of
independent claim 1under35 U.S.C. § 102(a)(l) as anticipated by Gordon,
and claims 2-8 and 10-12 depending therefrom. Independent claim 13
recites the same limitation as discussed supra, and the Examiner relies on
the same findings with respect to claim 1, and therefore, we also do not
sustain the Examiner's rejection of claim 13 under 35 U.S.C. § 102(a)(l) as
anticipated by Gordon. See Final Act. 9-10 (citing Gordon 9:64--10:9).
Re} ection II
The Examiner's reliance on Steams for disclosing a control console
does not cure the deficiencies in the Examiner's findings with respect to
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Gordon as applied to independent claim 1 from which claim 9 depends. See
Final Act. 11. Therefore, for the same reasons stated supra, we do not
sustain the Examiner's rejection of claim 9.
DECISION
The Examiner's decision rejecting claims 1-13 is reversed.
REVERSED
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