Ex Parte Burks

Board of Patent Appeals and Interferences

Mar 23, 2011

11288628 - (D) (B.P.A.I. Mar. 23, 2011)

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.
11/288,628 11/29/2005 John H. Burks Burks 5215
36267 7590 03/23/2011
DENIS RICHARD O''''BRIEN
PO Box 1699
Blaine, WA 98231
EXAMINER
GINSBERG, OREN ISAAC
ART UNIT PAPER NUMBER
3764
MAIL DATE DELIVERY MODE
03/23/2011 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 JOHN H. BURKS
____________________

Appeal 2009-011701
Application 11/288,628
Technology Center 3700
____________________

Before: WILLIAM F. PATE III, LINDA E. HORNER, and
KEN B. BARRETT, Administrative Patent Judges.

PATE III, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-011701
Application 11/288,628
2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims
20-39. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

The claims are directed to an exercise routine display system and
method. Claim 20, reproduced below, is illustrative of the claimed subject
matter:
20. A display system for displaying an exercise routine to a
user, wherein the exercise routine comprises one or more
exercise tasks, and wherein each of the exercise tasks specifies
how the user is to perform a maneuver, said display system
comprising, in combination:
(a) a maneuver display;
(b) a cabinet housing said maneuver display;
(c) a data processor; and,
(d) data storage media accessible by said data processor,
wherein said data storage media have stored thereon exercise
routine data, and wherein said exercise routine data comprise:
(i) graphics data representing each maneuver; and,
(ii) one or more task parameters, wherein said task
parameters include at least one of:
number of total repetitions of the maneuver to be
performed, pause-time between repetitions, cadence,
hold-time, task duration, and task rate,
wherein said data processor is configured to display
on said maneuver display said graphics data according to
said task parameters stored on said data storage media.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Kim
Bartels
US 2003/0134718 A1
US 2005/0209050 A1
Jul. 17, 2003
Sep. 22, 2005
Appeal 2009-011701
Application 11/288,628
3
REJECTIONS2
Claims 33-39 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Bartels. Ans. 3.
Claims 20-32 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bartels and Kim. Ans. 6.
OPINION
In each rejection the Examiner relies upon figures 9, 11 and 13 of
Bartels to disclose the claimed “graphics data” associated with a maneuver.
Ans. 4, 6. Appellant contends this finding is improper because the claimed
invention can change the parameters of an exercise video, such as the
cadence at which the exercise is performed or the number of repetitions,
while Bartels merely plays the same exercise video, with the same
parameters, without any regard to the cadence or number of repetitions
required by a particular workout. App. Br. 12-15, 24-26. The Examiner
acknowledges the differences between Bartels’ device and the embodiment
disclosed in Appellant’s Specification, but determined that, given its
broadest reasonable interpretation the term “graphics data” could include the
other data represented in figures 9, 11 and 13 and need not include a video
clip. Ans. 11.

2 Appellant contends that the Examiner’s rejection under 35 U.S.C. § 112
second paragraph has not been withdrawn because the Examiner withdrew
that rejection under the inappropriate heading in the Answer. Reply Br. 4.
The Examiner clearly and unequivocally stated on the record that the
rejection under 35 U.S.C. § 112, second paragraph has been withdrawn.
Ans. 9. The particular subheading in the Answer under which the Examiner
withdrew this rejection is not a matter that relates to patentability and,
therefore, lies outside the scope of our review. See In re Mindick, 371 F.2d
892, 894 (CCPA 1967). For the purposes of this appeal, we consider the
rejection as withdrawn.
Appeal 2009-011701
Application 11/288,628
4
Appellant contends that the Examiner’s interpretation of “graphics
data” is unreasonable because it contradicts the express definition provided
in Appellant’s Specification. Reply Br. 9-10. Appellant’s arguments are
persuasive.
[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in applicant’s specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). An applicant is entitled
to be his or her own lexicographer and may rebut the presumption that claim
terms are to be given their ordinary and customary meaning by clearly
setting forth a definition of the term that is different from its ordinary and
customary meaning(s). See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
1994).
Paragraphs [045]-[046] of the Specification provide:
Exercise routine data (ER data): Data required to fully
encode an ER for displaying. ER data comprise, at a minimum,
control data and graphics data.
Graphics data: ER data that encode the visual
representations of maneuvers. Such graphics data include, but
are not limited to, data formatted as JPG, AVI, MOV, MPEG,
and DVD files. The invention is not limited by the source or
type of graphics data, and the graphics data format will be
determined by the type of visual display apparatus used to
display the ER.
Paragraph [035] provides:
Maneuver: A single repetition of a movement or
combination of movements that is or is intended to be
performed by a user. For instance, a single push-up is a
combination of movements of the type referred to herein as a
maneuver.
Appeal 2009-011701
Application 11/288,628
5
In light of these express definitions, we cannot agree with the
Examiner that, when read in light of the Specification, one of ordinary skill
in the art would understand the term “graphics data” to include something
other than “the visual representations of maneuvers.” One of ordinary skill
in the art would not have understood textual data of the type depicted in
figures 11 and 13 of Bartels to be visual representations of maneuvers.
While the Specification states that the examples provided of graphics data
are non-limiting, each of the file types listed is for encoding graphical or
video data, not textual data. Of the figures cited by the Examiner, only figure
9 of Bartels discloses displaying something falling within Appellant’s
express definition of the term “graphics data.” Since there is no disclosure in
Bartels that this data is processed and displayed according to the defined
task parameters, Bartels cannot anticipate claims 33-39. Since there is no
disclosure in Bartels of a data processor configured to display graphics data
according to the defined task parameters and since Kim does not cure this
deficiency, the Examiner has also failed to make a prima facie case of
obviousness for claims 20-32.
DECISION
For the above reasons, the Examiner’s rejections of claims 20-39 are
reversed.
REVERSED

nlk

DENIS RICHARD O''''BRIEN
PO Box 1699
Blaine WA 98231