Ex Parte Grind

Patent Trial and Appeal Board

Jun 18, 2013

12317586 (P.T.A.B. Jun. 18, 2013)

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.
12/317,586 12/29/2008 Steven M. Grind P23027 7226
7590 06/18/2013
Precor Incorporated
Amer Sports North America
8750 W. Bryn Mawr Avenue
Chicago, IL 60631
EXAMINER
THANH, LOAN H
ART UNIT PAPER NUMBER
3764
MAIL DATE DELIVERY MODE
06/18/2013 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 STEVEN M. GRIND
____________

Appeal 2011-002714
Application 12/317,586
Technology Center 3700
____________

Before STEFAN STAICOVICI, MICHELLE R. OSINSKI, and
HYUN J. JUNG, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

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Application 12/317,586

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STATEMENT OF THE CASE
Steven M. Grind (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision finally rejecting claims 1-4, 6-11, 14-18, 22, and 26-
30.1 Claims 5, 21, and 23-25 have been canceled. We have jurisdiction over
this appeal under 35 U.S.C. § 6(b).

INVENTION
Appellant’s invention relates to an exercise device. Fig. 1.
Claim 1 is illustrative of the claimed invention and reads as follows:
1. An exercise device comprising:
a frame;
a first foot link having a top surface and a
bottom surface, wherein the first foot link is
curved;
a first guide against the top surface;
a second guide against the bottom surface
and spaced from the first guide in a direction along
the first foot link;
a third guide substantially opposite the first
guide and against the bottom surface,
wherein the first guide and the second guide
are configured such that the first foot link is
glidable relative to both the first guide and the
second guide,
wherein one of the first guide and the second
guide extends along a first axis and is pivotable
about a second axis different than the first axis to
raise or lower a portion of the first foot link; and

1 Claims 12, 13, 19, and 20 are objected to by the Examiner as being
dependent upon a rejected base claim and otherwise indicated as being
allowable if rewritten in independent form including all of the limitations of
the base claim and any intervening claim. Final Rejection, mailed February
19, 2010, at 12. Claims 12, 13, 19, and 20 are not part of the instant appeal.
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Application 12/317,586

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wherein the first foot link is configured to
change between a plurality of different available
paths in response to force applied by a person to
the first foot link.

REJECTIONS
The following rejections are before us for review:
The Examiner rejected claims 1-4, 6-9, 15, 22, 26, and 30 under 35
U.S.C. § 102(b) as anticipated by Rodgers (US 2007/0087907 A1, publ.
Apr. 19, 2007).
The Examiner rejected claim 27 under 35 U.S.C. § 102(b) as
anticipated by Badarneh (US 2006/0172862 A1, publ. Aug. 3, 2006).
The Examiner rejected claims 10 and 11 under 35 U.S.C. § 103(a) as
unpatentable over Rodgers and Birrell (US 6,165,107, iss. Dec. 26, 2000).
The Examiner rejected claim 16 under 35 U.S.C. § 103(a) as
unpatentable over Rodgers.
The Examiner rejected claims 14, 17, and 18 under 35 U.S.C. § 103(a)
as unpatentable over Rodgers, Rodgers ‘062 (US 2007/0219062 A1, publ.
Sep. 20, 2007), and Kuo (US 7,041,036 B1, iss. May 9, 2006).

SUMMARY OF DECISION
We REVERSE.

ANALYSIS
The anticipation rejections
Appellant presents essentially identical arguments for the anticipation
rejections of claims 1-4, 6-9, 15, 22, 26, and 30 and of claim 27. See App.
Br. 13-14, 16-17, and 19-20. As such, the following analysis applies equally
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to the two sets of claims, i.e., claims 1-4, 6-9, 15, 22, 26, and 30, rejected
over Rodgers, and claim 27, rejected over Badarneh.
Each of independent claims 1, 27, and 30 requires, inter alia, “a first
guide against the top surface” and “a second guide against the bottom
surface and spaced from the first guide in a direction along the first foot
link.” App. Br., Claims Appendix.
The Examiner found that Rodgers teaches an exercise device
including a foot link 112 having a top surface and a bottom surface, a first
guide roller 104 against the top surface, and a second guide roller 154
against the bottom surface and spaced from the first guide roller 104. Ans. 5
(citing to Figure 23 of Rodgers). Similarly, the Examiner also found that
Badarneh teaches an exercise device including a first foot link 452 having a
top surface and a bottom surface, a first guide against the top surface, and a
second guide against the bottom surface and spaced from the first guide.
Ans. 8 (citing to Figure 25a of Rodgers); see also Ans. 10, Examiner’s
Annotated Figure 1.
Appellant argues that second guide roller 154 of Rodgers is not
“against” the bottom surface of foot link 112, but rather is against frame 108.
App. Br. 13 and 17. Likewise, Appellant argues that the rollers of Badarneh
are not against the bottom convex surface of bar 452, but rather “roll along
sides of bar 452.” App. Br. 19.
In response, the Examiner opines that, “[a]s defined by
www.dictionary.com, the word ‘against’ can mean ‘near’.” Ans. 15. Thus,
according to the Examiner, because second guide roller 154 of Rodgers is
near the bottom surface of foot link 112 and the second roller of Badarneh is
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likewise near the bottom surface of bar 452, each constitutes a second guide,
as called for by each of independent claims 1, 27, and 30.
Although we appreciate the Examiner’s position that an ordinary and
customary meaning of the term “against” is “near,” nonetheless, the term
“against” can also mean “in contact with.” See www.dictionary.com; see
also MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th Ed. 1997). We
determine the scope of the claims in patent applications not solely on the
basis of the claim language, but upon giving claims “their broadest
reasonable interpretation consistent with the specification” and “in light of
the specification as it would be interpreted by one of ordinary skill in the
art.” In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004). Here, Appellant’s Specification describes guides 23A, 23B, 23C,
23D and foot links 26L, 26R. Spec. 2, para. [0010] and fig. 1. The
Specification further states that, “[g]uides 23 allow tracks 26 to slide or glide
therebetween while being supported by guides 23.” Spec. 3, para. [0015].
According to the Specification, guides 23A and 23D (first guide) “engage”
and respectively, “slidably contact,” top surface 51 of tracks 26. Id.
Similarly, guides 23B and 23C (second guide) “engage or slightly contact”
and respectively, “slidably contact,” bottom surface 52 of tracks 26. Id.
Thus, read in light of the Specification, it is unreasonable to interpret
the term “against” to mean “near,” as the Examiner proposes. Such an
interpretation is inconsistent with Appellant’s description of the relationship
between guides 23A, 23B, 23C, 23D and foot links 26L, 26R, which
requires contact between guides 23 and slides 26. Hence, for the foregoing
reasons, we agree with Appellant that “the terms ‘against’ and ‘near’ are
NOT equivalent.” Reply Br. 3. Accordingly, we agree with Appellant that
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neither roller 154 of Rodgers nor the Examiner identified second guide of
Badarneh are “against”, i.e., in contact with, the bottom surface of foot link
112 and bar 452, respectively. Id.; see also App. Br. 13, 20.
As such, we do not sustain the rejections under 35 U.S.C. § 102(b) of
claims 1-4, 6-9, 15, 22, 26, and 30 as anticipated by Rodgers and of claim 27
as anticipated by Badarneh.

The obviousness rejections
The Examiner’s proposed modification of Rodgers and the application
of Birrell, Rodgers ‘062, and Kuo do not remedy the deficiency of Rodgers
as described supra upon which the Examiner’s conclusion of obviousness is
based. Therefore, for the foregoing reasons, we likewise do not sustain the
rejections under 35 U.S.C. § 103(a) of claims 10 and 11 as unpatentable over
Rodgers and Birrell; of claim 16 as unpatentable over Rodgers; and of
claims 14, 17, and 18 as unpatentable over Rodgers, Rodgers ‘062, and Kuo.

SUMMARY
The decision of the Examiner to reject claims 1-4, 6-11, 14-18, 22,
and 26-30 is reversed.

REVERSED

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