Ex Parte Califano

Patent Trial and Appeal Board

May 21, 2014

11765042 (P.T.A.B. May. 21, 2014)

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.
11/765,042 06/19/2007 Christopher J. Califano 1040-2 6764
7590 05/21/2014
Ryan, Mason & Lewis, LLP
90 Forest Avenue
Locust Valley, NY 11560
EXAMINER
LONG, ROBERT FRANKLIN
ART UNIT PAPER NUMBER
3721
MAIL DATE DELIVERY MODE
05/21/2014 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 CHRISTOPHER J. CALIFANO
____________

Appeal 2012-004763
Application 11/765,042
Technology Center 3700
____________

Before BIBHU R. MOHANTY, MICHAEL C. ASTORINO, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GERSTENBLITH, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Christopher J. Califano (“Appellant”) appeals under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 4, 10-13, 15-18, and 20-27.
We have jurisdiction under 35 U.S.C. § 6(b).
Claimed Subject Matter
Claim 17, the sole independent claim on appeal, is representative of
the claimed subject matter and is reproduced below.
17. A method of performing a knee extension exercise
comprising the steps of:
inserting a foot of a user through a body engaging
member at a first end of an elongated elastic element stretchable
along its length so as to provide resistance during the knee
extension exercise, wherein the user is in a seated position with
the one or more vastus muscles in an eccentric position and the
foot elevated above a floor and below a leg of the user;
holding a second end of the elongated elastic element
with a hand of the user; and
extending the leg of the user at a knee of the user and
raising the foot of the user at least by contracting the one or
more vastus muscles of the user, so that the elongated elastic
element passes through a pulley system as a pulley rotates and
provides the resistance from below the knee of the user as the
user extends the leg at the knee, wherein the pulley system is
removably anchored at the floor by an engagement mechanism
to a moveable weighted element and is selectively located at a
position substantially below the knee of the user, wherein the
resistance strengthens at least the one or more vastus muscles of
the user.
App. Br. 19-20, Claims App’x.
References
The Examiner relies upon the following prior art references:
Johnston US 5,286,242 Feb. 15, 1994
Viel US 5,595,559 Jan. 21, 1997
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Dovner US 7,041,040 B2 May 9, 2006
Owen US 2006/0135329 A1 Jun. 22, 2006
Rejections
Appellant seeks review of the following rejections:
I. Claims 15-17 and 23-251 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Owen;
II. Claims 11-13, 18, 20-22, 26, and 27 are rejected under 35
U.S.C. § 103(a) as unpatentable over Owen and Johnston;
III. Claim 4 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Owen and Viel; and
IV. Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Owen and Dovner.
SUMMARY OF DECISION
We REVERSE.
OPINION
Rejection I
The Examiner concludes that Owen would have rendered the subject
matter of claims 15-17 and 23-25 obvious to one of ordinary skill in the art
at the time of invention. Ans. 5-7. The Examiner finds that Owen discloses
the elements of the claims, except that “Owen fails to disclose the user is

1 In the Examiner’s Answer, the Examiner indicated that claims 15-17 and
23-35 are rejected under 35 U.S.C. § 103(a) as unpatentable over Owen.
Ans. 5. The Examiner’s indication of claim “35” is apparently a typo for
claim “25.” See Final Office Action (mailed Mar. 16, 2011) at 1; Ans. 5-7
(addressing claims 17, “15-16,” and “23-25”); App. Br. 4 (listing the
grounds of rejection to be reviewed on appeal). Further, the record does not
indicate any claim numbered higher than claim 27. Accordingly, we
understand this rejection to apply to claims 15-17 and 23-25.
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seated with the foot elevated above a floor and below a leg of the user.” Id.
at 6. The Examiner finds that “figure 2 shows the foot elevated above a
floor (mat 30) and figures 3-4 show [a] user sitting using the bands 82 and
figure 3A shows the user sitting with foot inserted through an engagement
member performing a knee extension exercise while holding the other end of
the band onto the chair handle[].” Id.
Appellant raises several arguments in response to this rejection,
including that “Owen fails to teach or suggest any technique in which a user
extends the leg at the knee and raises the foot by contracting the vastus
muscles.” App. Br. 5. Appellant asserts that “[i]n the arrangement shown in
FIG. 2 of Owen, in order for the user to raise the foot which has been placed
within the ankle strap, the user must bend, rather than extend, the leg at the
knee.” Id. Thus, Appellant contends that the user would not “raise the foot
by contracting the vastus muscles in the manner required by claim 17.” Id.
Additionally, Appellant asserts that “[t]he arrangements shown in
FIGS. 3 and 3A of Owen similarly fail to teach or suggest the
aforementioned limitations of claim 17. . . . [because] in FIG. 3 of Owen, the
foot remains vertically stationary.” Id. Appellant contends that “in FIG. 3A
of Owen, the user does not raise the foot which has been placed in the ankle
strap, much less do so by contracting the vastus muscle.” Id.
In response to Appellant’s argument, the Examiner explains:
figure 2 shows the foot elevated above a floor (mat 30) and
figures 3-4 show [a] user sitting extending the leg at the knee
with the user raising the foot which is attached to resistance
bands 82 (figure 3A shows the user sitting with foot inserted
through an engagement member performing a knee extension
exercise while holding the other end of the band onto the chair

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handle) in which the user will contract the vastus muscles.
Ans. 15-16.
Owen discloses a “portable exercise apparatus (10) comprising of a
platform (20) on which a user performs a variety of resistance and
cardiovascular exercises.” Owen, Abstract. Owen’s apparatus allows for
upper and lower body exercises with resistance provided by elastic cord 82
that is attachable to platform 20 by rotating eyelet system 40. Id. at
para. [0029]; figs. 1, 1B, 2, 3, 3A, 4.
Owen’s disclosure describes at least two embodiments of the
universal exercise apparatus in which the user can perform lower body
exercises while standing (id. at fig. 2) or while seated (id. at fig. 3A).
Figure 2 shows a stick figure representing a user standing on one leg on
platform 20 and the other leg raised above the platform and attached to
elastic cord 82 by ankle strap 89. Id. at fig. 2; see also id. at para. [0029].
The user’s leg attached to elastic cord 82 is bent at the knee. Id. Figure 3A
shows a user sitting on seat 70 with one end of elastic cord 82 attached to the
user’s leg by an ankle strap and the opposite end of the cord grasped by the
user’s hand. Id. at fig. 3A.
We agree with Appellant that the Examiner has not established by a
preponderance of the evidence that Owen discloses a method of performing
a knee extension exercise comprising “extending the leg of the user at a knee
of the user and raising the foot of the user at least by contracting the one or
more vastus muscles of the user” as recited in claim 17.
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First, Owen’s Figure 2 does not disclose a user raising a foot by
contracting one or more vastus muscles.2 See Owen, fig. 2. Second, Owen’s
Figures 3 and 4 appear to show a user performing upper body exercises, and
thus do not disclose a user raising a foot by contracting one or more vastus
muscles. See id. at figs. 3, 4.
Third, Owen’s Figure 3A is unclear as to whether it shows a user
raising a foot by contracting one or more vastus muscles. In particular, we
are unable to discern from the figure alone whether the user’s foot is raised
above or resting on platform 20. Owen explains that Figure 3A shows a
chair including frame members 72, which “are used to assist the user for
balance and leverage while performing some of the lower body exercises
and when getting up from the chair.” Owen, para. [0031]. The description
of Figure 3A, however, is entirely devoid of any disclosure as to which
lower body exercises are being performed. Without more, the Examiner’s
finding that Owen discloses each step of claim 17 is not supported by a
preponderance of the evidence.
Accordingly, we do not sustain Rejection I.
Rejections II-IV
Rejections II, III, and IV rely upon the same findings regarding Owen
as noted above. See Ans. 7-15. Accordingly, for the reasons explained in
the context of Rejection I, we do not sustain Rejections II, III, and IV.

2 The ordinary and customary meaning of “vastus” in the context presented
here is “any of several muscles in the front part of the thigh constituting part
of the quadriceps muscle, the action of which assists in extending the leg.”
See Dictionary.com, available at
http://dictionary.reference.com/browse/vastus (last visited May 8, 2014).
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DECISION
We REVERSE the Examiner’s decision rejecting claims 4, 10-13,
15-18, and 20-27.

REVERSED

pgc