11326038 (B.P.A.I. Oct. 12, 2010)

Ex Parte Hockemeyer

Board of Patent Appeals and InterferencesOct 12, 2010

11326038 (B.P.A.I. Oct. 12, 2010)

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. 11/326,038 01/05/2006 Timothy John Hockemeyer 67086-010 1093 26096 7590 10/13/2010 CARLSON, GASKEY & OLDS, P.C. 400 WEST MAPLE ROAD SUITE 350 BIRMINGHAM, MI 48009 EXAMINER GINSBERG, OREN ISAAC ART UNIT PAPER NUMBER 3764 MAIL DATE DELIVERY MODE 10/13/2010 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 TIMOTHY JOHN HOCKEMEYER ____________________ Appeal 2009-009751 Application 11/326,038 Technology Center 3700 ____________________ Before WILLIAM F. PATE, III, MICHAEL W. O’NEILL, and FRED A. SILVERBERG, Administrative Patent Judges. SILVERBERG, 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 2009-009751 Application 11/326,038 STATEMENT OF THE CASE Timothy John Hockemeyer (Appellant) seeks our review under 35 U.S.C. § 134 of the final rejection of claims 9, 10, 12, 14, 16 and 18-22. We have jurisdiction under 35 U.S.C. § 6(b) (2002). We REVERSE. THE INVENTION Appellant’s claimed invention is directed to a weightlifting system including a spotter platform which flanks a weight bench (Spec. 2: para. [0006]). Claim 9, reproduced below, is representative of the subject matter on appeal. 9. A weightlifting system comprising: a weight bar frame rack; and a spotter platform mountable to said weight bar frame rack, said spotter platform to provide a generally planar platform upon which a spotter may stand when said spotter platform is at a down position. THE REJECTIONS The following rejections by the Examiner are before us for review: 1. Claims 9, 10, 21 and 22 are rejected under 35 U.S.C. § 102(b) as being anticipated by Greenland (US 6,905,446 B2, issued Jun. 14, 2005). 2. Claims 12, 14, 16 and 18-20 are rejected under 35 U.S.C. § 102(b) as being anticipated by Petrone (US 5,954,619, issued Sep. 21, 1999). 2 Appeal 2009-009751 Application 11/326,038 ISSUES The issues before us are: (1) whether the Examiner erred in finding that Greenland’s horizontal supporting member describes a spotter platform upon which a spotter may stand when the spotter platform is at a down position, as called for in independent claim 9 (App. Br. 4); and (2) whether the Examiner erred in finding that Petrone’s portions 142, 144 of the cradle describe a spotter platform, as called for in independent claims 12 and 19 (App. Br. 10). ANALYSIS Rejection of claims 9, 10, 21 and 22 under 35 U.S.C. § 102(b) as being anticipated by Greenland Appellant contends (1) that the entire purpose of Greenland is to avoid the requirement of a human spotter (App. Br. 4), and (2) that Greenland’s horizontal supporting member 102 does not describe a spotter platform, as called for in independent claim 9 (App. Br. 8). The Examiner found (1) that Greenland describes a spotter platform 102 (Ans. 3), and (2) that “platform 102 of Greenland is capable of supporting a user to stand on, therefore anticipating the claim” (emphasis added) (Ans. 6). Independent claim 9 calls for, inter alia, “a spotter platform mountable to said weight bar frame rack, said spotter platform to provide a generally planar platform upon which a spotter may stand when said spotter platform is at a down position.” Greenland describes an “exercise device 100, or self-spotting exercise attachment 100, enables the weightlifter W to lift weights safely and controllably without the use of a human spotter (emphasis added) (col. 5, ll. 3 Appeal 2009-009751 Application 11/326,038 6-8) . Greenland further describes that “[t]o do so, a horizontal supporting member 102, which may have upstanding flanges or retainers 104 is connected to a vertical attachment member 106” (col. 5, ll. 8-11). Thus, Greenland describes that the exercise device 10 is intended to be used without a spotter, and that the horizontal supporting member 102 is provided to assist in the exercise device 10 being used without a spotter. Greenland is silent as to whether horizontal supporting member 102 is capable of supporting a spotter, as the Examiner has found. Thus, it is unclear whether Greenland’s horizontal supporting member 102 is capable of supporting a spotter. Accordingly, it is incumbent upon the Examiner to provide an adequate basis in fact and/or technical reasoning that would support a finding that the horizontal supporting member 102 could function as a spotter platform, as called in the claim 9. However, the Examiner has not provided an adequate basis in fact and/or technical reasoning that would support a finding that the horizontal supporting member 102 could function as a spotter platform. See In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (“Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.”) We reverse the rejection of independent claim 9, and claims 10, 21 and 22 which depend therefrom. Rejection of claims 12, 14, 16 and 18-20 under 35 U.S.C. § 102(b) as being anticipated by Petrone Appellant contends Petrone does not describe a spotter platform, as called for in independent claims 12 and 19 (App. Br. 10). 4 Appeal 2009-009751 Application 11/326,038 The Examiner found that Petrone describes (1) a spotter platform 142, 144 (Ans. 4), and (2) “selectively moving a spotter platform between a stored position (figure 8) to a down position (figure 7)” (Ans. 4-5). Appellant contends “that under no proper interpretation are the portions 142 and 144 [of Petrone] properly interpreted as a spotter platform” (emphasis added) (App. Br. 10-11). Independent claims 12 and 19 calls for, inter alia, a spotter platform movable between a stored (cl. 12) or stowed (cl. 20) position to a down position. Petrone describes “[a]n apparatus for use in the storing of a dumbbell in a position for presentation to a user at a desired height of the dumbbell for commencement of an exercise routine” (Abstract; col. 2, ll. 8-30). Petrone further describes that “[a] pair of cradles are hingedly mounted to the sleeve for movement between a dumbbell presentation attitude and an out-of-the- way attitude” (Abstract; col. 2, ll. 8-30). Petrone still further describes a pair of cradles 50 and 52 (col. 3, ll. 10-12), wherein “[e]ach cradle is bent about its transverse centerline 140 at an angle ‘A’ of about 45 degrees so that those portions 142 and 144 of the body member on opposite sides of the bend, flare upwardly and outwardly . . . to accept one end 146 of a dumbbell 148 therein” (col. 4, ll. 50-54). In Petrone, portions 142, 144 of cradles 50, 52 are intended to accept one end 146 of a dumbbell 148, and not support a spotter. Petrone is silent as to whether the portions 142, 144 are capable of supporting a spotter, as the Examiner has found. Thus, it is unclear whether Petrone’s portions 142, 144 are capable of supporting a spotter. Accordingly, it is incumbent upon the Examiner to provide an adequate basis in fact and/or technical reasoning 5 Appeal 2009-009751 Application 11/326,038 that would support a finding that Petrone’s portions 142, 144 are capable of supporting a spotter, as called in claims 12 and 19. However, the Examiner has not provided an adequate basis in fact and/or technical reasoning that would support a finding that Petrone’s portions 142, 144 are capable of supporting a spotter. See id. We reverse the rejection of independent claims 12 and 19, and claims 14, 16, 18 and 20 which depend therefrom. CONCLUSIONS The Examiner has erred in finding that Greenland’s horizontal supporting member describes a spotter platform upon which a spotter may stand when the spotter platform is at a down position, as called for in independent claim 9. The Examiner has erred in finding that Petrone’s portions 142, 144 of the cradle describe a spotter platform, as called for in independent claims 12 and 19. DECISION The decision of the Examiner to reject claims 9, 10, 12, 14, 16 and 18- 22 is reversed. REVERSED JRG 6 Appeal 2009-009751 Application 11/326,038 CARLSON, GASKEY & OLDS, P.C. 400 WEST MAPLE ROAD SUITE 350 BIRMINGHAM, MI 48009 7