Ex Parte Leier et al

Patent Trial and Appeal Board

Mar 21, 2017

13341987 (P.T.A.B. Mar. 21, 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.
13/341,987 12/31/2011 Christopher Henry Leier 35077.001C1 8063
34395 7590 03/23/2017
OLYMPIC PATENT WORKS PLLC
P.O. BOX 4277
SEATTLE, WA 98104
EXAMINER
JALALZADEH ABYAN, SHILA
ART UNIT PAPER NUMBER
3764
NOTIFICATION DATE DELIVERY MODE
03/23/2017 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):
joanne@olympicpatentworks.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER HENRY LEIER, JEREMY DAVID LEVINE,
HOWARD PAUL SCHULTZ, and LOPIN WANG
Appeal 2015-006293
Application 13/341,987
Technology Center 3700
Before LYNNE H. BROWNE, JEFFREY A. STEPHENS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants, Christopher Henry Leier et al.,1 appeal under 35 U.S.C.
§ 134 from the Examiner’s decision rejecting claims 1—7 and 10—20 in the
Non-final Action mailed May 8, 2014 (“Non-final Act.”).2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify Christopher Leier and Ann Rylie Leier as the real
parties in interest. Appeal Br. 1.
2 Claims 8 and 9 are cancelled. Appeal Br. 41—43 (Claims App.).
Appeal 2015-006293
Application 13/341,987
THE CLAIMED SUBJECT MATTER
The claims are directed to a dumbbell. Claim 1, the only independent
claim, is reproduced below:
1. A multi-grip dumbbell comprising:
a central dumbbell handle having a first end and a second
end;
a first weighted head interconnected to the central
dumbbell handle in proximity to the first end of the central
dumbbell handle, the first weighted head including at least one
additional dumbbell handle; and
a second weighted head interconnected to the central
dumbbell handle in proximity to the second end of the central
dumbbell handle, the second weighted head including at least one
additional dumbbell handle.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
MacKechnie
Landfair
Fenelon ’155
Fenelon ’740
Cappellini
Lien
Anderson
US 4,623,142
US 6,319,176 B1
US 7,491,155 B2
US 2003/0207740
US 2006/0105891
US 2006/0229172
US 2007/0298940
Nov. 18, 1986
Nov. 20, 2001
Feb. 17, 2009
A1 Nov. 6, 2003
A1 May 18, 2006
A1 Oct. 12, 2006
A1 Dec. 27, 2007
REJECTIONS
The Examiner made the following rejections:
1. Claim 20 stands rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite.
2. Claims 1—4, 13—15, and 20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Cappellini and Lien.
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3. Claims 1—6 and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Andersen and Lien.
4. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Andersen, Lien, and MacKechnie.
5. Claims 16—18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cappellini, Lien, and Fenelon ’155.3
6. Claims 16—18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Andersen, Lien, and Fenelon ’155.
7. Claims 1, 4, 10-12, and 19 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Cappellini and Landfair.
8. Claims 1, 4, 10-12, and 19 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Andersen and Landfair.
Appellants seek our review of these rejections.
ANALYSIS
Rejection 1: The Rejection of Claim 20 as Indefinite
The Examiner did not enter Appellants’ proposed amendment to
overcome the § 112 rejection of claim 20 because it changed the scope of
claim 20. Ans. 21,58. Because Appellants do not address the rejection of
claim 20, the rejection is summarily sustained. See In re Berger, 279 F.3d
975, 984, 985 (Fed. Cir. 2002) (holding that the Board did not err in
3 In the Non-final Action, Rejections 5 and 6 refer to US Publication
2003/0207740 Al, issued to Fenelon (called “Fenelon ’740”). Non-final
Act. 10, 12. In the Answer, the Examiner states that, due to a clerical error,
the Non-final Action incorrectly identified the Fenelon reference as US
Application 2003/0207740 Al, rather than US 7,491,155. Ans. 65. The
Examiner corrected the rejection so that it properly refers to US 7,491,155
(called “Fenelon ’155”). Id. at 65, 69.
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sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the
applicant failed to contest the rejection on appeal).
Rejection 2: The Rejection of Claims 1—4, 13—15, and 20
as Unpatentable Over Cappellini and Lien
Claim 1
Claims 4 and 13—15 depend from claim 1. Appeal Br. 41, 42.
Appellants do not present separate arguments for the patentability of claims
4 and 13—15. See Appeal Br. 12—27. Accordingly, claims 4 and 13—15 stand
or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). Claims 2, 3, and 20 are
addressed below.
With respect to claim 1, the Examiner finds that Cappellini discloses
central dumbbell handle 12 having first and second ends; first weighted head
18 interconnected to central dumbbell handle 12 in proximity to the first end
of central dumbbell handle 12; and second weighted head 18 interconnected
to central dumbbell handle 12 in proximity to the second end of central
dumbbell handle 12. Non-final Act. 3. The Examiner finds that Cappellini
does not specifically teach that first and second weighted heads 18 have “at
least one additional dumbbell handle,” but that Lien does. Id.
With respect to Lien, the Examiner finds that Lien discloses a
dumbbell comprising a central dumbbell handle (e.g., dumbbell bar) and first
and second weighted heads 10 attached to each end of the central dumbbell
handle, wherein first and second weighted heads 10 include at least one
additional dumbbell handle (e.g., 40, 41, 42).4 Id. at 4 (citations omitted).
4 We note that Lien discloses that weight bar 50 (i.e., central dumbbell
handle) is interconnected to first and second weighted heads 10. Thus, claim
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Appellants argue that the Examiner’s rejection is erroneous for several
reasons. Appeal Br. 12—27; Reply Br. 1—31. First, Appellants argue that the
weight plates in Cappellini and Lien (and the other cited prior art) are not
“weighted heads,” as recited in claim 1, and the Examiner erred in equating
such plates and heads. Appeal Br. 13—15 (Cappellini), 16—17 (Lien), 28
(Anderson), 32—33 (Landfair). Appellants assert that the term “weighted
head” is explained in the Specification:
The term “weighted” refers to the fact that the weighted heads
have relatively large masses, the inertia associated with which
requires users to exert significant forces in order to move the
multi-grip dumbbell. . . . The term “weighted” does not refer
simply to the fact that an object or material generally has a mass
that, when acted on by gravity, produces a weight. For example,
a head made from a hollow tube of polyethylene would not be
considered to be a weighted head. ... A weighted head therefore
has a designed mass so that the combined masses of two
weighted heads, the central dumbbell handle, and any other
components of the multi-grip dumbbell together have a mass
that, under the force of gravity, produces the desired fixed
weight.
Reply Br. 5 (citing Spec. 7:18—8:2); see also id. at 6 (“weight plates have a
designed mass so that the combined masses of two weight plates, the central
dumbbell handle, and any other components of [a] dumbbell add up to a
desired fixed weight”). In light of the Specification’s definition and
Appellants’ explanation, a “weighted head” is “a structural mass that, under
the force of gravity, produces a portion of the desired weight for the
dumbbell.” Because Cappellini’s weight plate 18 and Lien’s weight plate 10
are structural masses that produce a portion of the weight for the dumbbell,
1 is anticipated under 35 U.S.C. § 102, and unpatentable under 35 U.S.C.
§ 103, in view of Lien.
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the Examiner correctly finds that the weight plates are weighted heads, as
recited in claim 1.5
Referring to structural features in the various dumbbell embodiments
in the Specification, Appellants contend that the definition of “weighted
head” also requires that a weighted head “includes [1] multiple handles, and
is [2] securely and [3] non-rotatably fixed to a dumbbell [handle].” Appeal
Br. 15; see also id. at 14 (arguing that weighted heads (1) have multiple
“dumbbell handles,” (2) are “securely interconnected to the central
dumbbell,” and (3) “do not rotate” relative to the dumbbell handle; 28
(arguing a weight plate is not a weighted head because the “weight plate
does not include handles of any kind and is not securely and rigidly
interconnected with the dumbbell handle, but is instead conventionally
mounted via a circular aperture in a rotatable fashion”); Reply Br. 3
(“Weighted heads are securely interconnected to the central dumbbell handle
and are connected so that the weighted heads do not rotate with respect to
the dumbbell handle . . . .”); 4 (“a weighted head includes multiple handles
and is securely and non-rotatably fixed to a dumbbell”); 7 (arguing “a
weighted head necessarily includes at least one additional dumbbell handle,
as explicitly stated in claim 1, and has many other properties discussed, at
length, and well[-]illustrated in the current application''’) (emphasis added);
9 (“All of the weighted-head implementations are explicitly shown and
stated to include one or more additional dumbbell handles. The weighted
5 For the same reason, the weight plates in the other prior art references,
Anderson, Fenelon ’155, and Fandfair, are weighted heads as recited in
claim 1. See, e.g., Anderson, 124 (weight plates 12), Fenelon ’155,
Abstract, 4:34—39 (weight member 12), Fandfair, Abstract, 5:39-43 (weight
plate 10).
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heads are described as being interconnected to the central dumbbell handle
in a fixed, non-rotating fashion, . . . 16 (arguing “weighted heads must
be fixedly and non-rotatably interconnected to the central handle in order to
provide for ‘safe and biomechanically correct gripping by a user’ and ‘so
that a user can grasp the dumbbell by the dumbbell handle with one hand
and lift or move the dumbbell safely’”).
As noted by the Examiner (see, e.g., Ans. 31), Appellants’ arguments
seek to narrow the claims by importing structural limitations from the
Specification into the claims. However, it is improper to import limitations
from Appellants’ embodiments into the claims, particularly where
Appellants have chosen to use language in the claims that is broader than the
language used to describe the embodiments in the Specification. See, e.g.,
SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir.
2004). Also, Appellants’ proposed definition that a weighted head includes
multiple handles is inconsistent with the claim language. Claim 1 ’s
requirement of a weighted head with one additional handle is inconsistent
with Appellants’ proposed definition requiring multiple handles. Similarly,
the presence of multiple handles (e.g., first and second side handles, and end
handles) for each weighted head in dependent claims 2 and 4 raises a
presumption that the limitation in Appellants’ proposed definition is not
found in independent claim 1. Bancorp Servs. LLC v. Sun Life Assurance
Co. of Can. (U.S.), 687 F.3d 1266, 1275 (Fed. Cir. 2012) (stating “the
presence of a dependent claim that adds a particular limitation raises a
presumption that the limitation in question is not found in the independent
claim” (internal quotation omitted)). Finally, Appellants’ proposed
definition that a weighted head must be non-rotatably fixed to a dumbbell
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handle is inconsistent with (1) claims 16—18 which recite that the central
dumbbell handle includes an outer member that “is selectively rotatably
mounted to the multi-grip dumbbell,” and (2) embodiments disclosing
dumbbells where “the center handle is selectably rotatably mounted, rather
than fixedly mounted, to the weighted heads.” Spec. 20:3—4; see also Spec.
6:25—28, 20:3—21:10, Figs. 25-26. For the above reasons, Appellants’
arguments are not persuasive.
Second, Appellants argue that Cappellini and the other prior art
references do not use the term “weighted head.” Appeal Br. 13. Appellants’
contention that the prior art references do not define a “weighted head” is
wrongly premised on the fact that they do not use the same terminology as
claim 1. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (explaining that the
determination whether a reference discloses a claim element “is not an
‘ipsissimis verbis’ test,” i.e., identity of terminology is not required).
Appellants’ argument does not show error by the Examiner.
Third, Appellants argue that the Examiner’s reliance on Lien is
inapposite because Lien relates to a weight plate, not a dumbbell. Appeal
Br. 16—17. Appellants argue that the “Examiner is relying on a single
reference to ‘a barbell bar’ in Lien’s abstract as teaching a dumbbell and a
central dumbbell handle. Lien’s abstract does not teach a dumbbell,” and
“Lien teaches a weight plate.” Appeal Br. 16 (emphasis added). However,
Lien’s abstract states, “[a]n improved weight plate includes a planar body
having a central opening for receiving a barbell or dumbbell bar
therethrough.” Lien, Abstract (emphasis added). Thus, Lien discloses
dumbbells using weight plates. See, e.g., Lien, || 4, 13,31. Accordingly,
Appellants do not show error in the Examiner’s finding.
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Fourth, Appellants argue that Lien does not disclose dumbbell handles
as recited in claim 1, and the Examiner erred in equating Lien’s grip
openings 40, 41, 42 with the recited dumbbell handles. Appeal Br. 17—24;
Reply Br. 19—27. Neither the Specification nor Appellants explicitly define
a “dumbbell handle.” An ordinary definition of “handle” is “a part that is
designed especially to be grasped by the hand.” Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/handle, (last
visited March 3, 2017). The Specification explains that dumbbell handles
include, for example, central dumbbell handles (e.g., 802 in Fig. 8A), end
dumbbell handles (e.g., 808 in Fig. 8A), and side dumbbell handles (e.g.,
810, 812 in Fig. 8A) (Spec. 7:11—18), and that
[a] user may grip one or more of a number of different dumbbell
handles on one or more of the multi-grip dumbbells with either
one or two hands. Once the user has a firm grip on one or more
multi-grip dumbbells, the user may perform a variety of different
exercises with the one or more multi-grip dumbbells, including
one-handed exercises, two-handed exercises, dynamic exercises;
passing exercises, and other types of exercises.
Spec. 7:5—10. The Specification also states a “dumbbell handle is designed
so that a user can grasp the dumbbell by the dumbbell handle with one hand
and lift or move the dumbbell safely.” Spec. 12:19-20. In light of the usage
of dumbbell handle in the Specification, a “dumbbell handle” is “any part of
the dumbbell that may be grasped by the hand.”
Appellants argue that that Lien’s openings 40, 41, 42 are not dumbbell
handles because they only accommodate a “few fingers,” and are not
“designed for safe and biomechanically correct gripping by a user ‘without
being constrained to adopt biomechanically inconvenient or dangerous body
positions’ and for safe and biomechanically feasible and efficient handling
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of a multi-grip dumbbell during single-hand exercises and user-to-user
transfers.” Appeal Br. 17—18; see also Appeal Br. 9 (“the phrase ‘dumbbell
handle’ ... is not interchangeable with the generic term ‘handle’ when not
used in the context of dumbbells, as clearly stated in the current application,
but is instead directed to design features of a multi-grip dumbbell ‘that
provide for safe and biomechanically feasible and efficient handling of the
multi-grip dumbbell by a user using a single hand to grasp the multi-grip
dumbbell.’”); Reply Br. 19-27.
Contrary to Appellants’ arguments, Lien states the grip “openings
[are] sized to permit an individual’s fingers to extend through the opening
with the thumb wrapped around the edge of the weight plate for lifting the
weight plate” (Lien 111), and the grip openings are “sized to receive at least
four fingers of a human hand” (Lien, 129). Moreover, contrary to
Appellants’ unsupported arguments that Lien’s dumbbell is not safe to use
(see, e.g., Appeal Br. 24), Lien does not disclose any problems, difficulties,
or safety issues when a user lifts and manipulates the plate, either separately
or as part of the dumbbell. See, e.g., Lien 19 (“weight plate may be
securely gripped and moved”). Comparing Figure 8 of Lien and Figure 8 A
of the Specification, (1) Lien’s grip openings 40, 41, 42 have openings like
those in the Specification’s side dumbbell handles 810, 812, and (2) Lien’s
flange members 21, 22, 23 (located between openings 40, 41, 42) form a
solid graspable edge like the Specification’s end dumbbell handle 808
(located between side handles 810, 812).
Because Lien’s grip openings 40, 41, 42 may be grasped by the hand
when weighted heads 10 are mounted on a central dumbbell bar, the
Examiner correctly finds that openings 40, 41, 42 are dumbbell handles, as
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recited in claim 1. Furthermore, as Lien’s flange members 21, 22, 23 may
also be grasped by the hand like the Specification’s end dumbbell handle
808, we also find that Lien’s flange members 21, 22, 23 are dumbbell
handles, as broadly recited in claim 1.
Fifth, Appellants argue that the Examiner erred in finding that the
weighted heads in Cappellini and Lien (and other cited prior art) are
“interconnected” to the central dumbbell handle, as recited in claim 1. See
Appeal Br. 24—25 (Cappellini and Lien), 28—29 (Anderson), 33—34
(Landfair); see also Reply Br. 8, 15—20 (Cappellini and Lien). Appellants
argue that “the claim term interconnected does not mean ‘loosely coupled,’
‘rotatably mounted,’ or imply anything other than a secure, rigid
interconnection obtained by welding, bolting through asymmetrical
apertures that fit complementary features on ends of the central dumbbell
handle, or other such methods for secure interconnection.” Appeal Br. 12.
As discussed above, it is improper to import limitations from Appellants’
embodiment into the claims, particularly where Appellants have chosen to
use language in the claims that is broader than the language used to describe
the embodiments in the Specification. See, e.g., SuperGuide, 358 F.3d at
875. Also, Appellants’ proposed definition that “interconnected” means a
rigid, fixed, or non-rotatable interconnection is inconsistent with claim 16,
which recites that the central dumbbell handle is “selectably rotatably
mounted to the multi-grip dumbbell.” See Bancorp Servs., 687 F.3d at 1275
(Fed. Cir. 2012) (stating “the presence of a dependent claim that adds a
particular limitation raises a presumption that the limitation in question is
not found in the independent claim” (internal quotation omitted)).
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The Specification discloses that the interconnection between the
weighted heads and the center handle is much broader than Appellants’
proposed narrow definition. In one embodiment, the Specification teaches
that the dumbbell’s “center handle is selectably rotatably mounted, rather
than fixedly mounted, to the weighted heads” so that the dumbbell may be
rolled across the floor (Spec. 20:3—8), and “the outer portion of the central
handle may be viewed as rotating with respect to the interior member of the
central handle and the weighted heads” (Spec. 20:11—12). See also Spec.
6:25—28, 20:3—21:10, Figs. 25—26. An ordinary definition of “interconnect”
is “to connect with one another” and “to be or become mutually connected.”
Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/interconnect (last visited March 3, 2017). In light of
the usage of the term “interconnected” in the Specification, and the various
types of interconnection between the weighted heads and central handle
described in the Specification, the term “interconnected” means “connected
or attached to one other.”
Because the weighted heads in Cappellini (and other cited prior art)
are connected or attached to the central dumbbell handles, the Examiner
correctly finds that weighted heads in Cappellini (and other cited prior art)
are “interconnected” to the central dumbbell handle, as recited in claim 1.
Non-final Act. 3 (Cappellini), 7 (Anderson); see, e.g., Cappellini, 122
(threaded collar 20 secures weighted heads 18); Anderson, || 2, 24
(weighted heads 12 mounted on ends of handle 14).6
6 For the same reason, the weight plates are interconnected to the
central dumbbell handle in Lien, Anderson, Fenelon ’155, and Landfair, as
recited in claim 1. See, e.g., Lien, Abstract (weight plate attached to
dumbbell bar); Anderson, Abstract (weight plate masses 12 loaded onto a
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Sixth, Appellants argue that there is “no possible way to combine Lien
and Cappellini to produce the currently-claimed multi-grip dumbbell.”
Appeal Br. 27. Appellants’ conclusory argument is not persuasive because it
lacks any explanation or analysis, and factual or legal support. It does not
address the Examiner’s reasoning for modifying Cappellini in view of the
teachings of Lien (see, e.g., Non-final Act. 5), and, thus, does not identity
error by the Examiner.
Seventh, in their 40-page Appeal Brief and 31-page Reply Brief,
Appellants repeatedly argue that the Examiner’s findings and reasoning are
arbitrary, unsupported, conclusory, and lack analysis or justification, and the
Examiner did not make an effort to read and understand the current
application and current claims and to interpret the claim language, and did
not make “anything close to aprima facie case for obviousness.” See, e.g.,
Appeal Br. 37-40, 13 , passim', Reply Br. 29-31, passim. However, the
Examiner properly identified the bases for finding that the prior art disclosed
the limitations in every claim in the present application, including, for
example, citing to specific references numbers and figures in the prior art for
every claim, and providing articulated reasoning for the legal conclusion of
obviousness. The Examiner also did a commendable job responding to
Appellants’ numerous arguments in the lengthy Appeal Brief. Appellants’
repeated assertions that the Examiner misapplied the decision in In re Fife,
2013 WL 3294624, Appeal No. 2011-003324 (PTAB April 30, 2013), is not
well taken. See, e.g., Appeal Br. 12—13, 16, 26; Reply Br. 17. As the
Examiner correctly notes, the claims and prior art in the parent application
dumbbell bar); Fenelon ’155, Abstract (weight member 12 attached to
handle); Landfair, Abstract (weight plate 10 loaded onto a dumbbell bar).
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and in the present application are very different. See, e.g., Ans. 24, 57, 83.
Appellants’ arguments are not persuasive.
For the above reasons, the rejection of claim 1 is sustained. Claims 4
and 13—15 fall with claim 1.
Claim 2
With respect to claim 2, Appellants argue that: (1) the “Examiner’s
rejection of claim 2 fails for the same reason that the rejection of claim 1
fails,” (2) Lien does not teach a “weighted head” and “a ‘weighted head’ that
includes a ‘side dumbbell handle,”’ and (3) “Lien’s finger-accommodating
openings are not dumbbell handles.” Appeal Br. 25. As discussed supra,
none of Appellants’ arguments apprise us of error in the rejection of claim 1.
For the same reasons, we sustain the Examiner’s rejection of claim 2 as
unpatentable over Cappellini and Lien.
Claim 3
Claim 1 recites a “central dumbbell handle” and “at least one
additional dumbbell handle.” Claim 3, which depends from claim 1, recites
“wherein the first weighted head includes a first end dumbbell handle; and
wherein the second weighted head includes a second end dumbbell handle.”
The Examiner finds that Lien discloses a central dumbbell handle
(e.g., dumbbell bar), at least one additional dumbbell handle (e.g., one of
grip openings 40, 41, or 42), and end dumbbell handle (e.g., grip opening
40). Non-final Act. 4.
Appellants argue that the Examiner erred because “the Examiner
attempts to read the claim phrase ‘end dumbbell handle’ onto an elongated
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finger-accommodating opening that is identical to the elongated finger-
accommodating openings 41 and 42 shown in Figure 8 onto which the
Examiner has previously read the phrases ‘first side dumbbell handle’ and
‘second side dumbbell handle.’” Appeal Br. 25—26. Appellants conclude
that “there is no excuse for the Examiner to again attempt to read two
different claim phrases [i.e., side and end handles] onto one and the same
type of feature of Lien’s weight plate [i.e., grip opening 40, 40, 41].” Id. at
26.
Claim 3 depends from claim 1, not claim 2. Because “side dumbbell
handles” are only recited in claim 2, Appellants improperly read the “side
dumbbell handle” limitations from claim 2 into claim 3.
The Examiner correctly finds that one of Lien’s three handles 40, 41,
or 42 corresponds to “one additional dumbbell handle” recited in claim 1,
and one of Lien’s other handles correspond to the “end dumbbell handle”
recited in claim 3. Non-final Act. 4; Ans. 55—58. Contrary to Appellants’
arguments, the Examiner does not read the “same” Lien handle onto
different handle limitations in claim 3. Claim 3 does not present structural
or other differences between “one additional handle” and “end dumbbell
handle.”
Appellants argue that “the two different phrases ‘side dumbbell
handle’ and ‘end dumbbell handle’ are used in the current claims” because
“[t]hey have different shapes and they have different geometrical positions
or topologies with respect to the central dumbbell handle.” Appeal Br. 26.
Appellants’ argument is misplaced. As discussed above, it is improper to
import limitations from Appellants’ embodiment into the claims, particularly
where Appellants have chosen to use language in the claims that is broader
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than the language used to describe the embodiments in the Specification.
See, e.g., SuperGuide, 358 F.3d at 875. The only difference in the claims is
the two handles’ location on the weighted head — one is located on the
“side” and the other is located on the “end” of the weighted head. The
claims say nothing about the handles’ shape or topology. As circles
typically do not have a side or an end, defining the “end” and “side” position
of a circular weighted head, as Appellants attempt in the claims, is also
problematic. Thus, to the extent that Appellants’ Specification discloses
“end” and “side” handles, so does Lien. Appellants’ do not show error in
the Examiner’s findings.
For the above reasons, the rejection of claim 3 is sustained.
Claim 20
Claim 20 recites “the cylindrical ring in each weighted head is one of:
circularly shaped; elliptically shaped; triangularly shaped, hexagonally
shaped, and rectangularly shaped.”7
The Examiner finds that Lien discloses a cylindrical ring in the
weighted head that is circularly shaped. Final Act. 5 (citing Lien, Fig. 8);
Ans. 59.
Appellants argue that a “cylindrical ring is a ring with a uniform
cross-section,” a “disc is not a ring,” and “Lien’s weight plate is not a ring,
but is instead a disc with one or more elliptical apertures.” Appeal Br. 27.
7 We note that it is unclear how a “cylindrical” ring can also be
elliptically shaped, triangularly shaped, hexagonally shaped, or rectangularly
shaped. A cylindrical shape is different from an elliptical, triangular,
hexagonal, and rectangular shape.
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Lien’s disk-shaped weight plate, which is in the shape of a cylinder
and has an opening in the center, falls within the broadest reasonable
interpretation of a cylindrical ring. If Appellants are using special
definitions for a cylindrical ring and a disc, they have not been clearly
defined in the Specification, or explained in the Appeal Brief. Appellants do
not show error by the Examiner, and the rejection of claim 20 is sustained.
Rejection 3: The Rejection of Claims 1—6 and 20
as Unpatentable Over Andersen and Lien
Because our decision to sustain the rejections of claims 1—4, 13—15,
and 20 in one of Rejections 1 and 2 above is dispositive, we do not need to
address the additional rejections of these claims. 37 C.F.R. § 41.50(a)(1).
We address the rejection of claims 1, 5, and 6 below.8
Appellants argue claims 1,5, and 6 as a group. Appeal Br. 27—29. We
select claim 1 as the representative claim, and claims 5 and 6 stand or fall
with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
With respect to claim 1, Appellants argue that the Examiner’s
rejection of claim 1 is erroneous because, “as with the previous claim
rejections” in Rejection 2 above, (1) Anderson’s weight plate is not a
“weighted head,” (2) Anderson’s weight plate “is not securely and rigidly
interconnected with the dumbbell handle,” and (3) “Fien’s elongated finger-
accommodating apertures [i.e., grip openings] are not dumbbell handles,”
and “do not provide a secure or even useful grip or handle for a dumbbell.”
Appeal Br. 28. As discussed above (see, e.g., page 5-6 and 11—12),
8 Although we need not reach the rejection of claim 1, we address it
because, based on their dependency from claim 1, claims 5 and 6 incorporate
all of the limitations of claim 1.
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Anderson’s weight plates, like Cappellini and Lien’s weight plates, are
weighted heads interconnected to the central dumbbell handle. As none of
Appellants’ arguments in Rejection 2 are convincing, as discussed supra, or
argue any relevant difference between Anderson and Capellini, we sustain
the Examiner’s rejection of claim 1 as unpatentable over Anderson and Lien.
Claims 5 and 6 fall with claim 1.
For the above reasons, the rejection of claims 1, 5, and 6 as
unpatentable over Andersen and Lien is sustained.
Rejection 4: The Rejection of Claim 7
as Unpatentable Over Andersen, Lien, and Mackechnie
Appellants argue that “[a]s discussed above with respect to
[Rejections 2 and 3], Anderson in view of Lien does not even remotely
suggest the currently claimed multi-grip dumbbell. Thus, the rejection of
claim 7 must necessarily fail.” Appeal Br. 29. As none of Appellants’
arguments in Rejections 2 and 3 are convincing, as discussed supra, we
sustain the Examiner’s rejection of claim 7 as unpatentable over Anderson,
Lien, and MacKechnie.
Rejections 5 and 6: The Rejections of Claims 16—18
as Unpatentable Over Cappellini, Lien, and Fenelon ’155,
and, Alternatively, Over Anderson, Lien, and Fenelon ’155
In the Non-final Action, the Examiner rejected claims 16—18 based on
Cappellini, Lien, and US Publication 2003/0207740 A1 (Fenelon ’740), and,
alternatively, Anderson, Lien, and Fenelon ’740. Non-final Act. 10—14. In
the Answer, the Examiner states that, due to a clerical error, the Non-final
Action incorrectly identified the Fenelon reference as US Application
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2003/0207740 Al, rather than US 7,491,155 B2. Ans. 65. The Examiner
corrected Rejections 5 and 6 so that they properly refer to US 7,491,155. Id.
65—69. In the Reply Brief, Appellants elected not to respond to the corrected
rejections,9 and, thus, do not identify error by the Examiner. Accordingly,
the rejections of claims 16—18 are summarily sustained.
Rejection 7: The Rejection of Claims 1, 4, 10—12, and 19
as Unpatentable Over Cappellini and Landfair
Because our decision to sustain the rejections of claims 1—7, 13—18,
and 20 in at least one of Rejections 1—6 above is dispositive, we do not need
to address the additional rejection of these claims. We address the rejection
of claims 1, 10—12, and 19 below.10
Claim 1
With respect to claim 1, Appellants first argue that the Examiner
erroneously rejected claim 1 because, “as discussed above with respect to
[Rejection 2]”, “Cappellini does not teach a ‘weighted head’ and does not
teach interconnection of a weighted head to a central dumbbell handle.” Id.
at 31. As discussed supra, none of Appellants’ arguments in Rejection 2 are
convincing.
9 According to the Reply Brief, “Appellants has [sic] reviewed the
remaining 36 pages of the [Examiner’s Answer] and has [sic] found nothing
in this tedious disconnected narrative that is any more illuminating than what
has been presented by the Examiner in the first 27 pages, discussed above.”
Reply Br. 29.
10 Although we need not reach the rejection of claim 1, we address it
because, based on their dependency from claim 1 (via claim 4), claims 10-
12 and 19 incorporate all of the limitations of claim 1. Appellants do not
argue claim 4 separately.
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Appellants’ second argument that the “Landfair reference is directed
to a weight plate, not to dumbbells and barbells” is not well taken. Id. at 32.
Contrary to Appellants’ argument, in the quoted passage cited by
Appellants, Landfair states that its “weight plate may thus be used as a
stand-alone exercise device, as a weight plate loaded onto «... dumbbell
bar . . .” Id. (citing Landfair, Abstract) (emphasis added). Landfair states
that “[b]y rotating, the handles provide a sure grip to the user, while allowing
the user to perform various exercises without adjusting his or her grip on the
device.” Id. at Abstract. The Examiner properly finds that Landfair
discloses a dumbbell having a central dumbbell bar interconnected to
weighted heads (i.e., weight plates). Non-final Act. 15. Appellants do not
show error by the Examiner.
Appellants’ third argument that the Examiner’s finding that
“Landfair’s rotatable weight-plate handles constitute dumbbell handles is
ridiculous to the point of absurdity” is also not well taken. Appeal Br. 33.
Because Landfair’s handles 18 are designed to be grasped by the hand, the
Examiner correctly finds that Landfair’s handles 18 are dumbbell handles, as
recited in claim 1. Appellants do not show error by the Examiner.
For the above reasons, the Examiner’s rejection of claim 1 as
unpatentable over Cappellini and Landfair is sustained.
Claims 19 and 10
Appellants argue claims 19 and 10 as a group. Appeal Br. 31—36. We
select claim 19 as the representative claim, and claim 10 stands or falls with
claim 19. 37 C.F.R. § 41.37(c)(l)(iv).
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Claim 19 recites that “the first weighted head and the second weighted
head each includes a cylindrical ring and a crossing member.”
In response to the Examiner’s finding that Landfair’s weighted heads
have a cylindrical ring and crossing member (Non-final Act. 16), Appellants
state,
The Examiner again attempts to read the claim phrase
“cylindrical ring” onto a disk-shaped weight plate in the rejection
of claim 19, which is as absurd in the currently discussed set of
claim rejections as it was in the rejections discussed above with
respect to Issue 1.
Appeal Br. 35. Landfair’s disk-shaped weight plate, which is in the shape of
a cylinder and has an opening in the center, falls within the broadest
reasonable interpretation of a cylindrical ring. If Appellants are using
special definitions for a cylindrical ring and a disc, they have not been
clearly defined in the Specification, or explained in the Appeal Brief.11
Appellants do not show error by the Examiner, and the rejection of claim 19
is sustained. Claim 10 falls with claim 19.
Claim 11
Claim 11, which depends from claim 10 which depends from claim
19, recites “an end dumbbell handle is mounted about each crossing
member.” Appellants argue that the Examiner’s finding that “Landfair
teaches wherein an end dumbbell handle is mounted about each crossing
member (Abstract)” is erroneous because the abstract does not mention “end
dumbbell handle” or multiple “crossing members.” Appeal Br. 35.
11 Appellants’ statement that a “cylindrical ring is a ring with a uniform
cross-section” is unsupported attorney argument, is contrary to its ordinary
meaning, and is not supported by the Specification. Appeal Br. 27.
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Appellants, however, do not consider the Examiner’s other findings
regarding the crossing member, the mounting aperture 14 of the crossing
member, and end dumbbell handle in claims 19 and 10. Non-final Act. 16
(citing Landfair, Fig. 1); Ans. 79. Referring to Figure 1, for example,
Fandfair discloses crossing members between the two handles 18. Fandfair,
Fig. 1 (see, e.g., the central members extending between the top and bottom
of the figure, and encompassing the circular mounting aperture 14); Ans. 79
(the Examiner’s annotated Fig. 1 of Fandfair). To disclose end dumbbell
handles and crossing members, Fandfair does not need to use the same
terminology as claim 1. In re Bond, 910 F.2d at 832. Appellants do not
show error by the Examiner, and the rejection of claim 11 is sustained.
Claim 12
Claim 12 recites that “a weight-plate bracket is included in each end
dumbbell handle, the weight-plate bracket having an aperture through which
a bolt passes to securely mount the end dumbbell handle and weighted head
including the end dumbbell handle to the central dumbbell handle.”
The Examiner finds that Fandfair discloses “a weight-plate bracket
(26, 28) is included in each end dumbbell handle (18, 24, 22), the weight-
plate bracket having an aperture through which a bolt (40, 30) passes to
securely mount the end dumbbell handle (18) and weighted head including
the end dumbbell handle to the central dumbbell handle (Fig. 3, the bolt is
indirectly mounting the end dumbbell handle and the weighted head to the
central dumbbell handle).” Non-final Act. 16.
In response to the Examiner’s finding, Appellants argue that
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the Examiner attempts to read the claim phrase “weight-plate
bracket” arbitrarily onto an annular handle bushing and handle
bushing lip (26 and 28 in Figure 3 of Landfair, as discussed in
the paragraph that begins on line 33 of column 6 of Landfair).
Those even cursorily familiar with basic mechanics would well
appreciate, by looking at the depiction of the weight-plate
bracket 2108 in Figure 21 of the current application and
comparing that weight-plate bracket to Landfair’s cylindrical
handle bushing, that the currently claimed weight-plate bracket
is unrelated in form or function to a cylindrical handle bushing.
The Examiner is sufficiently careless in making these
unsubstantiated and unjustifiable assertions that the Examiner
appears not to have even bothered to look in the current
application at what the claim phrases are referring to.
Appeal Br. 35—36. It is improper to import limitations from Appellants’
embodiment into the claims, particularly where Appellants have chosen to
use language in the claims that is broader than the language used to describe
the embodiments in the Specification. See, e.g., SuperGuide, 358 F.3d at
875. Landfair elements 26, 28, 30, 40 meet the literal language of claim 12,
and act to securely mount the weighted head and end dumbbell handle to the
central dumbbell bar, as recited in claim 12. If Appellants are using a
special definition for a weight-plate bracket or attributing a special form or
function to a weight-plate bracket, it has not been clearly defined in the
Specification, or explained in the Appeal Brief. Appellants do not show
error by the Examiner, and the rejection of claim 12 is sustained.
For the above reasons, the rejection of claims 1, 10—12, and 19 as
unpatentable over Cappellini and Landfair is sustained.
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Rejection 8: The Rejection of Claims 1, 4, 10—12, and 19
as Unpatentable Over Anderson and Landfair
Because our decision to sustain the rejections of claims 1—7 and
10-20 in at least one of Rejections 1—7 above is dispositive, we do not need
to address this additional rejection of these claims. 37 C.F.R. § 41.50(a)(1).
DECISION
For the above reasons, the Examiner’s rejection of claim 20 under 35
U.S.C. § 112, second paragraph, as being indefinite is AFFIRMED.
The Examiner’s rejection of claims 1—4, 13—15, and 20 under 35
U.S.C. § 103(a) as being unpatentable over Cappellini and Lien is
AFFIRMED.
The Examiner’s rejection of claims 1, 5, and 6 under 35 U.S.C.
§ 103(a) as being unpatentable over Andersen and Lien is AFFIRMED, and
we do not reach the rejection of claims 2—4 and 20.
The Examiner’s rejection of claim 7 under 35 U.S.C. § 103(a) as
being unpatentable over Andersen, Lien, and MacKechnie is AFFIRMED.
The Examiner’s rejection of claims 16—18 under 35 U.S.C. § 103(a) as
being unpatentable over Cappellini, Lien, and Fenelon ’155 is AFFIRMED.
The Examiner’s rejection of claims 16—18 under 35 U.S.C. § 103(a) as
being unpatentable over Andersen, Lien, and Fenelon ’155 is AFFIRMED.
The Examiner’s rejection of claims 1, 10-12, and 19 under 35 U.S.C.
§ 103(a) as being unpatentable over Cappellini and Landfair is AFFIRMED,
and we do not reach the rejection of claim 4.
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We do not reach the Examiner’s rejection of claims 1, 4, 10—12, and
19 under 35 U.S.C. § 103(a) as being unpatentable over Andersen and
Landfair.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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