13442369 (P.T.A.B. Feb. 15, 2017)

Ex Parte Frederick

Patent Trial and Appeal BoardFeb 15, 2017

13442369 (P.T.A.B. Feb. 15, 2017)

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. 13/442,369 04/09/2012 KENNETH D. FREDERICK KDF 12020 3400 82357 7590 02/17/2017 Tames; Rav Rr As;s;neiates; Tntelleetiial Prnnertv T J .P EXAMINER 4268 Northern Pike Rd Monroeville, PA 15146 ATKINSON, GARRETT K ART UNIT PAPER NUMBER 3764 NOTIFICATION DATE DELIVERY MODE 02/17/2017 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): jray@jrayassoc.com apogeegroup @ Comcast, net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KENNETH D. FREDERICK Appeal 2015-005512 Application 13/442,369 Technology Center 3700 Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1— 3, 5, 9, 11—13, and 15. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2015-005512 Application 13/442,369 CLAIMED SUBJECT MATTER The claims are directed to an exercising device with a multi-position handle. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An exercising device comprising: (a) a U-shaped axle having a substantially straight portion and a pair of end portions connected to said substantially straight portion, each of said pair of end portions disposed generally perpendicular to said straight portion; and (b) at least one wheel mounted for rotation on a peripheral surface of said straight portion of said axle. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Deal US 2005/0202944 A1 Sept. 15,2005 Hurst US 2008/0167168 A1 July 10,2008 REJECTIONS Claims 1—3, 9, and 11—13 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Deal. Claims 5 and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Deal and Hurst. 2 Appeal 2015-005512 Application 13/442,369 OPINION Independent claim 1 recites an exercise device comprising a U-shaped axle having a substantially straight portion} The Examiner finds that the axle of Deal has a substantially straight portion located at the apex of U-shaped axle 4 where roller 8 is located in Figure 4. Final Act. 2. With respect to Deal, the Examiner further asserts in an Advisory Action dated July 18, 2014: In regards to applicant’s argument that the bent shaft [of Deal] does not contain a substantially straight portion, the Office asserts that all arcs contain several substantially straight portions along the curvature (all portions where a line tangent to the arc exists) according to the broadest reasonable interpretation of “substantially straight portion”. Additionally, a straight line drawn thought [sic] the thickness of the curvature at the apex would define a straight portion. Adv. Act. 2. The Examiner’s findings and conclusions, including those expressed in the Advisory Action, are in error. Referring to Figures 2 and 4 of Deal, it is seen that the Deal apparatus comprises a continuously curved shaft 4 about which a wheel 3 (Fig. 2) or a ball/roller 8 (Fig. 4) is mounted for rotation. Indeed, the axle of Figure 2 is described as “near semi-circular” in shape (Deal 113), whereas the axle of Figure 4 is described as a “semi circle” (Deal 115). We therefore agree with Appellant that the bent shaft 4 of Deal, whether “near semi-circular” or “semi-circle” in shape, has no “substantially straight portion,” even at the “apex” relied upon by the Examiner. See App. Br. 8, 9. 1 Independent claim 15 contains the same limitation. 3 Appeal 2015-005512 Application 13/442,369 Further, the Examiner’s assertions (Adv. Act. 2) that “all arcs contain several substantially straight portions along the curvature (all portions where a line tangent to the arc exists)” and “a straight line drawn through the thickness of the curvature at the apex would define a straight portion” are not directed to the specific language of the claim nor do they prove that the bent axle or shaft 4 of Deal has a substantially straight portion. First, claim 1 calls for a U-shaped axle having a substantially straight portion, ft does not refer to an arc. However, to the extent the Examiner is equating the claimed U-shaped axle to an arc, we cannot agree that the interpretation of one skilled in the art would be consistent with that of the Examiner: “all arcs contain several substantially straight portions along the curvature (all portions where a line tangent to the arc exists).” Indeed, all locations where a line tangent to an arc exists are in fact points on the arc where the tangents contact the arc. A “point” is defined as “a dimensionless geometric object having no properties except location.”2 A “portion” is defined as “a section or quantity within a larger thing; a part of a whole.”3 A “portion” is thus something that has dimensions. However, a point is a dimensionless object. Therefore, it would be unreasonable to conclude that a point is a substantially straight portion of an axle or even an arc. Second, the Examiner asserts that a straight line drawn through the thickness of the curvature at the apex would define a straight portion. The Examiner does not specify whether such “straight line” means a radial line 2 The American Heritage Dictionary of the English Language, http://search.credoreference.com/content/entry/hmdictenglang/point/0 (last visited February 1, 2017). 3 The American Heritage Dictionary of the English Language, http://search.credoreference.com/content/entry/hmdictenglang/portion/0 (last visited February 1, 2017). 4 Appeal 2015-005512 Application 13/442,369 or a chord. In either event, we cannot agree that one skilled in the art would view an imaginary and arbitrary line defining some cross-section of Deal’s axle as defining or equating to a substantially straight portion of the axle itself as required by the claim language. There is no evidence that one skilled in the art would understand the claim language to cover the regions identified by the Examiner. As such, the Examiner’s interpretation appears to be employed for the sole purpose of satisfying the claim language. The PTO’s claim interpretation must be consistent with the one that those skilled in the art would reach. In re Cortright, 165 F. 3d 1353, 1358 (Fed. Cir. 1999). For the foregoing reasons, we do not sustain the Examiner’s rejection of claim 1 or dependent claims 2, 3, 9, and 11—13 as anticipated by Deal. As for claims 5 and 15, the Examiner does not rely on Hurst in any way that would cure the deficiency in the Examiner’s rejection based on Deal. As such, we do not sustain the rejection of claims 5 and 15 as unpatentable over Deal and Hurst. DECISION The Examiner’s rejections of claims 1—3, 5, 9, 11—13 and 15 are reversed. REVERSED 5