Ex Parte Moschel

Patent Trial and Appeal Board

Oct 25, 2018

14154957 (P.T.A.B. Oct. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/154,957 01/14/2014
7590 10/25/2018
Michael Moschel
54 West 21st Street Suite 506
New York, NY 10010
FIRST NAMED INVENTOR
Michael Moschel
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
61268/8 7121
EXAMINER
THANH, LOAN H
ART UNIT PAPER NUMBER
3784
MAIL DATE DELIVERY MODE
10/25/2018 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 MICHAEL MOSCHEL
Appeal 2017-011770
Application 14/154,957
Technology Center 3700
Before NINA L. MEDLOCK, BART A. GERSTENBLITH, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner's
rejection of claims 19, 20, 28, 29, 31, and 32. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 "The real party in interest is the assignee of record, DTIP.LLC." (Appeal
Br. 3.)
Appeal2017-011770
Application 14/154,957
STATEMENT OF THE CASE
According to the Appellant, "[t]he present invention generally relates
to physical exercise equipment and methods of using the same, and in
particular, to physical exercise equipment that includes a lower body
exercise and a separate, independent, repetitive upper body exercise."
(Spec. ,r 2.)
Sole Independent Claim on Appeal
19. A physical exercise apparatus, comprising:
a frame;
a base supported by the frame and configured to
support a user in an at least partially upright position, wherein
the at least partially upright position includes a user fully
standing, leaning, and / or standing with an at least partial bend
at the user's waist and /or knees;
a sled movably attached to a first portion of the
frame and coupled with a linearly movable resistance load and
configured for the user to face forward such that the user's back
is positioned against the sled for the user to perform a target
exercise of raising and lowering the sled that uses the linearly
coupled movable resistance load and that is targeted to
developing at least one of the gluteus or quadriceps muscles of
the user while the user is in the at least partially upright
position; and
a pair of cycling hand pedals attached to a second
portion of the frame and independently movable from the sled
so that the user can cycle the pair of cycling hand pedals with
the user's hands as a distraction exercise, while the user is
simultaneously performing the target exercise by separately
moving the sled with a portion of his or her upper body in the at
least partially upright position, to distract the user during the
target exercise and substantially biomechanically isolate
muscles of the user's upper body to target the exercise of the at
least one of the gluteus or quadriceps muscles.
2
Appeal2017-011770
Application 14/154,957
Rejection2
The Examiner rejects claims 19, 20, 28, 29, 31, and 32 under 35 U.S.C.
§ 103 as unpatentable over Toups3 and Howell. 4 (Final Action 3.)
ANALYSIS
Independent claim 19 recites "[a] physical exercise apparatus"
(Appeal Br., Claims App.), which the Examiner determines would have been
obvious over the combined teachings of Toups and Howell (see Final
Action 3). The Appellant argues that "[t]he combination of the Toups and
Howell references" does not teach or suggest "the exercise apparatus of
claim 19." (Appeal Br. 19; see also Reply Br. 2-13.) We are persuaded by
the Appellant's position.
Independent claim 19 requires the exercise apparatus to comprise "a
sled" to perform "a target exercise" and "a pair of cycling hand pedals."
(Appeal Br., Claims App.) The Examiner finds that Toups discloses an
exercise apparatus comprising a sled to perform a target exercise; and the
Examiner finds that Howell discloses a pair of cycling hand pedals. (See
Final Action 3--4.) According to the Examiner, it would have been obvious,
"to modify the device of Toups to comprise an upper body exercise device
such as hand pedals coupled to the sled for the purpose of providing a more
complete workout as taught by Howell." (Id. at 4.)
2 Although the Final Action includes rejections of claim 23 (see Final
Action 5-6), this claim has been canceled (see Appeal Br. 8), and thus these
rejections are not on appeal.
3 US 5,976,062 issued November 2, 1999.
4 US 6,902,515 B2 issued June 7, 2005. Quotations to this reference omit
the bolding of drawing-associated numerals.
3
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Application 14/154,957
Independent claim 19 also recites that "the user can cycle the pair of
cycling hand pedals with the user's hands as a distraction exercise, while the
user is simultaneously performing the target exercise," and that this pedaling
"distract[ s] the user during the target exercise and substantially
biomechanically isolate[s] muscles of the user's upper body." (Appeal Br.,
Claims App.) According to the Examiner, such a "distraction exercise"
would "flow naturally from following the suggestion of the prior art of
combining upper and lower body exercises for a more efficient and complete
body workout." (Answer 5---6.)
The problem with the Examiner's rejection is that it is not aligned
with Howell's teachings about a "complete workout." Howell does not
teach that a complete workout is provided by the cycling of hand pedals, but
rather by a "multi-pivotal upper body assembly 14" that "allows a user 18 to
individually and/or simultaneously exercise the legs 20, arms 22,
shoulders 24 and trunk 26." (Howell, col. 6, 11. 2-8.) Howell's "multi-
pivotal upper body assembly 14" includes a "main body member 36" that is
mounted "to resistively move in various directions relative to [a] base body
member 34." (Id. at col. 6, 11. 39--42; see also id. at Figs. 5, 6.)
The "complete workout" taught by Howell involves a "side to side
pivotal exercise movement" in which the user 18 moves "the main body
member 36 against the resistive spring biasing force to exercise the user's
trunk." (Howell, col. 5, 11. 26-27, col. 6, 11. 60---62; see also id. at Fig. 2.)
Howell's "complete workout" also may involve a "forward pivotal exercise
movement" and/or a "backward pivotal exercise movement," in which the
main body member 36 is "pivoted along a forward-to-backward pathway 48."
(Id. at col. 5, 11. 29-33, col. 7, 11. 8-10; see also id. at Figs. 3, 4.) "Moreover,
4
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Application 14/154,957
the main body member 36 may further be pivoted along a rotational or
twisting pathway 50." (Id. at col. 7, 11. 10-12; see also id. at Fig. 5.)
If Toups' s exercise apparatus is modified to provide "a more complete
workout" as taught by Howell, this modified exercise apparatus would
include a main body member 3 6 that is mounted to resistively move in
various directions. The Examiner does not explain sufficiently how or why
the "distraction exercise" recited in independent claim 11 would flow
naturally from this modified exercise apparatus. 5
Thus, the Examiner does not establish sufficiently that the exercise
apparatus recited in independent claim 19 would have been obvious over the
combined teachings of Toups and Howell. The Examiner's further findings
and determinations with respect to the dependent claims do not compensate
for the shortcomings in the rejection of independent claim 19. (See Final
Action 4--5.) We do not, therefore, sustain the Examiner's rejection of
independent claim 19, and the claims on appeal depending directly or
ultimately therefrom, under 35 U.S.C. § 103.
DECISION
We REVERSE the Examiner's rejection of claims 19, 20, 28, 29, 31,
and 32.
REVERSED
5 According to the Appellant, this modified exercise apparatus "would not be
the claimed invention of having a target exercise (using the sled) and a
distraction exercise (using the hand pedals)." (Appeal Br. 17.)
5