Ex Parte BurksDownload PDFBoard of Patent Appeals and InterferencesMar 23, 201111288628 (B.P.A.I. Mar. 23, 2011) 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. 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 Copy with citationCopy as parenthetical citation