Ex Parte Sukup

Patent Trial and Appeal Board

Apr 25, 2013

12135279 (P.T.A.B. Apr. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte NICKOLAS S. SUKUP
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Appeal 2011-000860
Application 12/135,279
Technology Center 3700
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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

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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

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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

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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

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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

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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