Ex Parte GeorgeDownload PDFPatent Trial and Appeal BoardFeb 14, 201712229382 (P.T.A.B. Feb. 14, 2017) 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. 12/229,382 08/22/2008 Nathaniel L. George NG-US-001 9739 7590 02/14/2017 Nathaniel T Oenrae EXAMINER 148 Rose Lane San Jose, CA 95127 GRAHAM, MARK S ART UNIT PAPER NUMBER 3711 MAIL DATE DELIVERY MODE 02/14/2017 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 NATHANIEL L. GEORGE Appeal 2015-004691 Application 12/229,382 Technology Center 3700 Before JAMES P. CALVE, GEORGE R. HOSKINS, and LEE L. STEPINA, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the non-final rejection of claims 1—12 and 14—17. Appeal Br. 3. Claim 13 is canceled, and claims 18 and 19 are withdrawn. Id. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2015-004691 Application 12/229,382 CLAIMED SUBJECT MATTER Claim 1 and 17 are independent. Claim 1 is reproduced below. 1. A sports training belt comprising: a first band of fabric configured to wrap around the waist of a user; said first band having a first end, a second end, an inside surface, an outside surface, an upper edge and a lower edge; said band having an essentially rectangular shape; a first paired fastener comprising a first and a second fastener elements; wherein said first fastener element is attached to said first end of said band and wherein said second fastener element is attached to said second [end] of said band so that said first end of said first band and said second end [of] said first band can be detachably secured to each other; a first element of a first wrist strap fastener pair and a first element of a second wrist strap fastener pair attached to the upper edge of said first band; said elements of said first and said second wrist strap fastener pairs spaced about equidistant from the middle of said first band; a first element A and a first element B of a foot strap fastener pair attached to the lower edge of said first band; said first elements A and B spaced about equidistant from the middle of said first band; a pair of wrist straps each being length-adjustable and each further comprising a non-removable, fixed length elastic member; each of said wrist straps having a first end and a second end, said first end of each wrist strap having a second element of a wrist strap fastener adapted to detachably and fixedly engage with any one of the first elements of any wrist strap fastener attached to the upper edge of said first band; said second end of each wrist strap having an adjustable loop for securing said second end of each wrist strap to a wrist of the user; said loop further comprising a thumb loop for encircling the thumb of the user; said loop and thumb loop leaving the palm and the back of the hand essentially uncovered; the overall length of said wrist straps being adjustable between about 8 inches to about 22 inches and the length of the wrist strap being adjusted such that when the hand is placed in the position of maximum tension for 30 seconds, the hand does not twitch; and 2 Appeal 2015-004691 Application 12/229,382 a single length-adjustable foot strap, said foot strap further comprising a non-removable, fixed-length elastic member, said foot strap having a first end and a second end, said first end of said foot strap having a second element of a foot strap fastener adapted to detachably and fixedly engage with one of the first elements A or B attached to the lower edge of said first band; said second end of said foot strap adapted for securing said second end of said foot strap to a foot of the user; wherein said foot strap is adapted to position said elastic member of said foot strap at the heel of the foot to which said foot strap is secured. REJECTIONS Claims 1, 2, 5, 9-12, and 14—17 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Gutkowski (US 5,813,955, iss. Sept. 29, 1998), Raabe (US 650,656, iss. May 29, 1900), Nurge (US 5,362,295, iss. Nov. 8, 1994), and Morse (US 5,704,856, iss. Jan. 6, 1998). Claims 3,4, and 6—8 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Gutkowski, Raabe, Nurge, Morse, and Stewart (US 2006/ 0122547 Al, pub. June 8, 2006). ANALYSIS Claims 1, 2, 5, 9—12, and 14^17 as unpatentable over Gutkowski, Raabe, Nurge, and Morse The Examiner found that Gutkowski teaches all of the elements in independent claims 1 and 17, except a foot strap that can be secured to a heel of a user, a wrist strap with an adjustable wrist loop and a thumb loop, and an adjustable overall length wrist strap. Non-Final Act. 7—A. The Examiner found that Raabe teaches a foot strap attached at a heel, Nurge teaches an adjustable wrist strap that loops around a user’s wrist and thumb, and Morse teaches an adjustable overall length wrist strap. Id. at 3^4. 3 Appeal 2015-004691 Application 12/229,382 Appellant does not contest the Examiner’s findings that Raabe, Nurge, and Morse teach the claimed features that Gutkowski lacks. See Br. 6—9. Instead, Appellant raises various arguments against the combinability of the teachings of Raabe, Nurge, and Morse with Gutkowski. Id. For the reasons that follow, the Examiner’s reasons for combining features of Nurge and Morse with Gutkowski are supported by rationale underpinnings, but we are not persuaded that a skilled artisan would have been motivated to replace the foot attachment of Gutkowski with Raabe’s foot strap. As Appellant points out, Gutkowski’s foot strap (foot attachment 250) is designed so that it does not restrict a user’s range of leg movements. Br. 6 (citing Gutkowski, 2:62—67). This feature allows the aerobic exercise device of Gutkowski to be used to improve cardiovascular fitness and muscle tone while performing walking, running, or stationary exercises without changing the user’s gait during walking or running to provide elastic resistance to the ankles of the user while retaining freedom of movement without discomfort, pain, or injury. Gutkowski, 1:8—17, 2:2—9, 2:37-43, 2:62—67, Figs. 1, 2. Gutkowski achieves this objective via foot assembly 250 that includes ankle wrap covering 254 that measures 5 A inches in width and secures to a user’s ankle and heels via heel strap 284. Id. at 6:57—7:23, 9:35—43, Figs. 1, 2, 6. An elastic member (rubber bungee cord 296) attaches to one of three rings 268, 270, 272 placed along an upper edge of ankle wrap covering 254, i.e., above the ankle and above a heel of a user. Figure 2 of Gutkowski, which is reproduced below, shows the arrangement of the rings above ankle wrap covering 254, where elastic band 296' attaches to a ring on an outside of the user’s ankle on each leg. 4 Appeal 2015-004691 Application 12/229,382 FIG. 2 Figure 2 shows a user exercising with our annotations showing the unnumbered rings on ankle wrap attachment 254. Gutkowski, 3:61—64. In contrast to Gutkowski, Raabe’s foot strap limits a user’s freedom of movement, as illustrated in Figures 1 and 4 of Raabe (provided below). 5 Appeal 2015-004691 Application 12/229,382 Figure 1 shows Raabe’s exercise device in use. Figure 4 shows a foot strap of Raabe’s exercise device. The footstraps of Gutkowski and Raabe loop under a user’s arch, but Raabe’s footstrap attaches elastic band 7 to ring 12 in a way that limits the user’s freedom of movement. The attachment point 12 of Raabe’s foot strap at the user’s lower ankle near the heel applies pressure in a way that draws the heel upwardly and forces a user’s toes downwardly (see Fig. 1), whereas Gutkowski’s ankle wrap 254 attaches bungee cords 296 to rings 268, 270, 272 above the ankle to provide more freedom of movement during exercise, walking, or running. Br. 6—7. The Examiner appears to concede that Raabe’s foot strap works differently than Gutkowski’s foot strap. Ans. 6—7. We appreciate the Examiner’s reasoning that a skilled artisan would have been motivated to substitute Raabe’s foot strap for that of Gutkowski “if it was desired to exercise the muscles which such an attachment point affected.†Non-Final Act. 3; Ans. 6—7 (“it merely gives the ordinary skilled artisan a different known attachment point with which to use the elastic strap.â€). However, Gutkowski’s foot strap is designed to exercise a user’s muscles in a way that does not limit a user’s freedom of movement, change a user’s natural gait, or injure a user. Whether this feature is “critical†or not, Gutkowski nonetheless values this feature. Appellant argues persuasively that substituting Raabe’s foot strap for that of Gutkowski undermines this objective of Gutkowski. Both foot straps permit users to exercise their legs. The Examiner has not explained sufficiently why a skilled artisan would have been motivated, considering the advantages gained and lost, to modify Gutkowski by reducing three attachment points of Gutkowski above the ankle to the one of Raabe and limiting a user’s freedom of movement. 6 Appeal 2015-004691 Application 12/229,382 Regarding the substitution of Nurge’s wrist strap, we appreciate that Gutkowski distinguished Nurge’s wrist strap from Gutkowski’s wrist strap during the prosecution that led to Gutkowski’s patent. Br. 7. However, the Examiner’s reason for substituting Nurge’s wrist strap for that of Gutkowski is to provide a strap that is more comfortable or effective for an exercise and is supported by a rational underpinning. Non-Final Act. 3; Ans. 7. Nurge’s wrist strap 36 is worn on a user’s wrist and includes thumb loop 50 to hold wrist strap 36 in position during use. Nurge, 6:35—40. This configuration eliminates the need for a user to grip a handle or hand grip during use. Id. at 3:21—26. These features are fully consistent with Gutkowski’s wrist strap that is designed to avoid pinching the hand or tightening around the hand during use. Gutkowski, 2:5—9. A skilled artisan desiring to provide a user with the ability to grasp something in the palm of the hand during exercise would have been motivated to replace Gutkowski’s wrist strap, which uses palm pad 204 that loops over middle and ring fingers, with Nurge’s wrist strap. Ans. 6. Gutkowski’s distinguishing of its wrist strap from that of Nurge’s wrist strap during prosecution does not undermine this rationale. Appellant’s arguments do not persuade us of error in this rationale. We also agree with the Examiner that Gutkowski teaches that tension strength of the elastic cords of its device is recognized as a result effective variables that affect the quality of the user’s exercise and ability to bring the heart rate into an ideal calorie burning range. Non-Final Act. 4; Ans. 8. A skilled artisan would have been motivated to reduce the tension in the straps for individuals whose health or fitness levels would be exercised optimally at tension levels lower than the 20—25 lbs. or more of tension disclosed in Gutkowski. Gutkowski does not teach away from lowering these levels. 7 Appeal 2015-004691 Application 12/229,382 Finally, the Examiner’s reason for modifying Gutkowski’s elastic straps to include an adjustable length, as taught by Morse, is supported by a rational underpinning to allow the device and straps to be adjusted to tailor fit users of different size. Non-Final Act. 4; Ans. 8. The fact that Morse’s strap attaches between a user’s wrist and an area above the opposite knee does not alter the fact that Morse teaches the adjustability of the strap to fit the device to each person’s size and anatomy in a way that ensures proper tension in the device and proper utilization thereby. Morse, 4:11—19 (strap is adjusted so bungee cord 16 and tether 28 are “taut†but not stretched). Because the Examiner’s reason for substituting Raabe’s foot strap on Gutkowski is not supported by rational underpinning, we do not sustain the Examiner’s rejection of claims 1, 2, 5, 9-12, and 14—17. Claims 3, 4, and 6—8 as unpatentable over Gutkowski, Raabe, Nurge, Morse, and Stewart The Examiner relied on Stewart to teach features of claims 3, 4, and 6—8, and not to overcome the deficiencies of Gutkowski and Raabe that are discussed above for claim 1, from which these claims depend. Non-Final Act. 5—6. Thus, we do not sustain the rejection of these claims. DECISION We reverse the rejections of claims 1—12 and 14—17. REVERSED 8 Copy with citationCopy as parenthetical citation