Ex Parte SukupDownload PDFPatent Trial and Appeal BoardApr 25, 201312135279 (P.T.A.B. Apr. 25, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte NICKOLAS S. SUKUP ____________________ Appeal 2011-000860 Application 12/135,279 Technology Center 3700 ____________________ Before BIBHU R. MOHANTY, MICHAEL W. KIM, and PHILIP J. HOFFMANN, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000860 Application 12/135,279 2 STATEMENT OF THE CASE1 Appellant appeals under 35 U.S.C. § 134 from the final rejection of claims 6-16. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The rejected claims are directed to a workout device that supports free weights, thereby eliminating the need for the user to drop the weights after an exercise is completed (Spec. p. 5, ll. 26-31). Claim 6 is the sole independent claim on appeal. EXEMPLARY CLAIM Claim 6, reproduced below, is illustrative of the claimed subject matter: 6. A workout device comprising: a frame; an activating assembly having a pedal connected to the frame; an activating arm connected to the pedal at one end and connected to an activating member at the opposite end; and a support arm pivotally mounted to the frame and positioned such that the activating member engages the support arm. 1 Our decision refers to Appellant’s Specification (“Spec.,” filed June 9, 2008), Appeal Brief (“App. Br.,” filed February 10, 2010), and Reply Brief (“Reply Br.,” filed July 27, 2010), as well as the Examiner’s Answer (“Ans.,” mailed May 27, 2010). Appeal 2011-000860 Application 12/135,279 3 THE REJECTIONS The Examiner rejects the claims as follows: Claims 6-16 under 35 U.S.C. § 102(b) as anticipated by Ammoscato (US 5,472,397, iss. Dec. 5, 1995)2. ANALYSIS Independent claim 6 is rejected as anticipated by Ammoscato. The claim recites the limitation of “a support arm pivotally mounted to the frame and positioned such that the activating member engages the support arm.” To reject the claim, the Examiner finds that stanchion 30 and frame 12 of Ammoscato teach the claimed “frame,” and thus because Ammoscato shows dumbbell support assemblies 38 pivotally mounted to stanchion 30, Ammoscato teaches the claimed “support arm pivotally mounted to the frame” (Ans. 4-5). In response, Appellant argues although Ammoscato shows dumbbell support assemblies 38 mounted to stanchion 30, Ammoscato does not teach that stanchion 30 is a part of frame 12 or otherwise connected to frame 12, and thus Ammoscato does not anticipate the claim (App. Br. 3-4, Reply. Br. 2-3). More specifically, Appellant argues Ammoscato teaches a main frame 12 including at least one lower member 14 and at least one upper member 16 supported in a substantially spaced, parallel relationship by a pair of upright members 2 Although the Examiner rejected claims 1-4 under 35 U.S.C. § 103 in the Office Action mailed November 12, 2009, the Examiner withdrew the rejection of these claims in the Examiner’s Answer (Ans. 3). Appellant points out claim 5 was previously canceled (App. Br. 2). Thus, only the rejection of claims 6-16 is outstanding. Appeal 2011-000860 Application 12/135,279 4 18, but, instead of disclosing support arms mounted to the frame or pivotally mounted to the frame, as required by claim 6, Ammoscato discloses that the pair of dumbbell support assemblies 38 are pivotally mounted to a center stanchion 30, the center stanchion 30 being mounted to the backrest 24 and extending substantially downwardly to project between the upper members 16 of the frame 12. (Col. 4, lines 8 - 38; Figs. 1, 5). Thus, because Ammoscato fails to disclose dumbbell assemblies 38 mounted, or pivotally mounted to any member of frame 12, but instead discloses the dumbbell assemblies mounted to a center stanchion 30 which not only is not defined as part of frame 12 but also is not mounted to frame 12, Ammoscato does not teach a support arm mounted to a frame (Reply Br. 2-3). We note, however, Ammoscato describes in column 4, lines 12-14, that upper member 16 is a part of frame 12. We note Appellant does not point to any definition in the claims or the Specification which precludes stanchion 30, upper member 16, and frame 12 of Ammoscato from teaching the “frame” limitation of claim 6. Therefore, we sustain the rejection of independent claim 6 under 35 U.S.C. § 102(b) as anticipated by Ammoscato. Dependent claim 7 is rejected as anticipated by Ammoscato. The claim recites “[t]he device of claim 6 wherein the pedal locks in position.” To reject the claim, the Examiner finds Appellant has not provided [in the claim] any structure associated with the phrase ‘pedal locks in place.’ As broadly construed, the biasing member [72 of Ammoscato] ‘locks’ the pedal [foot actuator 60 of Ammoscato] into a default position, and therefore, absent any further structure, the claim Appeal 2011-000860 Application 12/135,279 5 language is met by Ammoscato when examined in the broadest reasonable light (Ans. 5). In response, Appellant argues one of ordinary skill in the art would not construe the claim limitation of “wherein the pedal locks in position” as simply corresponding to a default position, and Appellee [sic – appears this should be “the Examiner”] has presented no support suggesting otherwise. No evidence or argument has been presented to support a conclusion that Ammoscato’s “default” position is “locked” into such a default position based on the disclosure of Ammoscato, or that those of skill in the art would consider a default position, whether in the device of Ammoscato or otherwise, to correspond to a locking position, particularly where Ammoscato’s disclosure is silent as to any locking function with respect to the device (Reply Br. 4). We note, however, Appellant does not point to any definition in the claims or Specification which precludes the limitation of “the pedal lock[ing] in position” from requiring more than biasing of the pedal, which biasing member 72 of Ammoscato does to foot actuator 60. Thus, we find the broadest reasonable interpretation of the claimed “pedal lock[ing] in position” includes biasing of a pedal, which occurs in Ammoscato. Therefore, we sustain the rejection of dependent claim 7 under 35 U.S.C. § 102(b) as anticipated by Ammoscato. Appellant does not submit separate arguments regarding the patentability of claims 8-16, which depend from independent claim 6. Thus, we sustain the rejection of dependent claims 8-16 under 35 U.S.C. § 102(b) as anticipated by Ammoscato, for the same reasons as independent claim 6. Appeal 2011-000860 Application 12/135,279 6 DECISION The Examiner’s rejection of claims 6-16 under 35 U.S.C. § 102(b) as anticipated by Ammoscato is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED mls Copy with citationCopy as parenthetical citation