Ex Parte BellandiDownload PDFPatent Trial and Appeal BoardMay 31, 201312173586 (P.T.A.B. May. 31, 2013) Copy Citation 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. 12/173,586 07/15/2008 Alicla Bellandi 506-2 7070 24336 7590 06/03/2013 TUTUNJIAN & BITETTO, P.C. 425 Broadhollow Road, Suite 302 Melville, NY 11747 EXAMINER JALALZADEH ABYANE, SHILA ART UNIT PAPER NUMBER 3764 MAIL DATE DELIVERY MODE 06/03/2013 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 ALICIA BELLANDI ___________ Appeal 2011-004851 Application 12/173,586 Technology Center 3700 ____________ Before EDWARD A. BROWN, MICHAEL L. HOELTER and ANNETTE R. REIMERS, Administrative Patent Judges. REIMERS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-004851 Application 12/173,586 2 STATEMENT OF THE CASE Alicia Bellandi (Appellant) appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject under 35 U.S.C. § 103(a): (1) claims 1, 2, 4 and 9-11 as unpatentable over Curley (US 2009/0062076 A1, pub. Mar. 5, 2009); (2) claims 3, 12, 14, 18-20 and 22 as unpatentable over Curley and Schlosser (US 7,131,936 B2, iss. Nov. 7, 2006); (3) claims 5-7 and 13 as unpatentable over Curley and Wilkins (US 2007/0032353 A1, pub. Feb. 8, 2007); (4) claims 15 and 21 as unpatentable over Curley, Schlosser and Wilkins; and (5) claim 8 as unpatentable over Curley and Frazier (US 7,486,197 B1, iss. Feb. 3, 2009).1 Claims 16 and 17 have been canceled. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. THE INVENTION Appellant’s invention “relates to a mat for teaching specific gymnastic moves, for example, a cartwheel.” Spec., para. [0001]; figs. 1-2. Claims 1 and 14 are illustrative of the claimed invention and read as follows: 1. A standalone mat comprising: a plurality of sequentially aligned sections each delineated for receiving one of a hand or foot of a user, wherein at least two adjacent center sections are designated for exclusively receiving hands, such that one center section receives a right hand and the other center section receives a left hand; and 1 The Examiner has withdrawn the rejection of claims 1-15 and 18-22 under 35 U.S.C. § 112, first paragraph, for failing to comply with the written description requirement. Ans. 13. Appeal 2011-004851 Application 12/173,586 3 at least one indicator in communication with each of said plurality of sequentially aligned sections and responsive to a user’s hand and foot placement onto a respective section while performing a gymnastic movement, said indicator providing proper or improper indications in response to the user’s performance of the gymnastic movement, including whether the hand or foot has been placed in the correct position within each of said plurality of sequentially aligned sections. 14. A gymnastic mat comprising: a plurality of linearly and sequentially arranged sections, wherein at least two adjacent center sections are designated for exclusively receiving hands, such that one center section receives a right hand and the other center section receives a left hand; at least one sensor positioned in each of said plurality of sections; an audio indicator having a sound corresponding to each of said plurality of sections, wherein proper sequential placement of the hands and feet during execution of a gymnastic move results in a predetermined sound sequence of the sound for each of the plurality of sections indicating proper sequential execution of the gymnastic movement; and a power supply connected to said at least one sensor in each of said plurality of sections and said audio indicator. ANALYSIS Obviousness over Curley – Claims 1, 2, 4 and 9-11 Appellant indicates that claims 2, 4 and 9-11 stand or fall with the rejection of independent claim 1. Br. 7. Accordingly, we review this ground of rejection on the basis of claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Appellant argues that Curley fails to teach or suggest “a plurality of sequentially aligned sections . . . wherein at least two adjacent center sections are designated for exclusively receiving hands,” as recited in claim 1. Br. 12 (emphasis omitted). Specifically, Appellant contends that with Appeal 2011-004851 Application 12/173,586 4 respect to Curley, (1) “[t]he hand placement sections (i.e., items 120 and 125) are located on the outside of the mat. The foot placement stations (i.e., items 160 and 165) are located inside the hand placement stations, but they are not aligned with the hand placement stations;” (2) “the hand placement stations [i.e., 120 and 125] are not ‘adjacent’ to each other, and they cannot be considered ‘center sections’ since they are located on the periphery of the mat;” and (3) “sections 120, 125, 160 and 165 are [not] in sequential order given the relatively large gap and divider which lie between the foot placement sections [i.e., 160 and 165].” Id. at 12-13. Appellant further argues that Although paragraph [0050] of Curley explains that the hand and foot placement stations can be varied, one of ordinary skill in the art would not arrive at the particular configuration of the mat recited in the present claims upon reading the disclosure of Curely. As explained in the present specification, the arrangement of Applicant's mat is particularly useful for executing gymnastics moves, and in particular, for ensuring the proper execution of a cartwheel. As such, the mat includes a plurality of sequentially aligned sections that includes two center sections which are reserved exclusively for receiving hands. However, since Curley's mat is designed to be used with yoga exercises, this reference fails to suggest or even remotely contemplate the specific arrangement of the mat recited in the present claims. Id. at 13. Claims are given their broadest reasonable interpretation consistent with the specification, reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Appeal 2011-004851 Application 12/173,586 5 Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). We note that Appellant’s Specification does not expressly define the terms “sequential,” “aligned” or “adjacent” or otherwise indicate that these terms are used in a manner other than their ordinary and customary meanings. We agree with the Examiner that under the broadest reasonable interpretation consistent with Appellant’s Specification, Curley discloses a standalone mat including a plurality of sequentially aligned placement stations (i.e., 120, 160, 165, 125). Ans. 5, 13-16; Curley, figs. 1-2. We further agree with the Examiner that (1) Curley discloses “using the mat to perform any desired exercise such as a dance routine.” Id. at 17 (citing Curley, para. [0050]); and (2) “broadly interpreted, [a] dance routine is considered a gymnastic movement.” Id. We also agree with the Examiner’s reasoning that Curley, in paragraph [0050], mentions that the hand and foot placement stations are removable and exchangeable and that number and location of the placement stations can be varied depending on the nature of the exercise for which the mat is used. Consequently, although Curley shows the two foot placement stations are in the middle in Fig. 1, Curley still teaches the fact that depending on the type of exercise (such as karate, yoga or dance routines) the placement of the stations can be varied and therefore, since the placement stations are removable and their location/arrangement can be changed, the device is capable of having the two [adjacent] hand placements at the center of the mat . . . . As a result, the device of Curley can have the [adjacent] hand placement stations in the middle [i.e., in the center section]. Id. at 15. Appeal 2011-004851 Application 12/173,586 6 The Examiner’s finding that Curley discloses a standalone mat including a plurality of sequentially aligned sections, wherein at least two adjacent center sections can be designated for exclusively receiving hands is supported by a preponderance of the evidence. Appellant has not provided any persuasive evidence of error regarding the Examiner’s findings and conclusions regarding the disclosure of Curley. Appellant also argues that Curley fails to teach or suggest “at least one indicator in communication with each of said plurality of sequentially aligned sections and responsive to a user’s hand and foot placement onto a respective section while performing a gymnastic movement, said indicator providing proper or improper indications in response to the user’s performance of the gymnastic movement,” as required by claim 1. Br. 14 (emphasis omitted). Specifically, Appellant argues that although Curley does briefly mention that the mat therein may include audio sensor feedback, this reference fails to teach or suggest a mat wherein ‘each’ section is in communication with an indicator. Moreover, this reference further fails to teach or suggest that the indicator is responsive to a user’s hand and foot placement ‘while performing a gymnastics movement’ or that the indicator provides proper or improper indications ‘in response to the user’s performance of the gymnastic movement.’ Id. First, as correctly pointed out by the Examiner, “[t]he claim language as presented currently, only requires one indicator, wherein the indicator is in communication with each of the sections . . . not existence of an indicator in each of the sections.” Ans. 17. While Appellant’s Specification describes an embodiment including an indicator in each of the sections (Spec., para. Appeal 2011-004851 Application 12/173,586 7 [00030]; fig. 3), we are not constrained to read any such direct connection into claim 1 when Appellant has chosen to claim the invention using broad language, which under the broadest reasonable interpretation, does not require an indicator in each of the sections. Here, Curley expressly teaches that the “mat of the invention can include an audio sensor feedback located on or in the hand and feet placement stations.” Curley, para. [0051]. Accordingly, we agree with the Examiner that Curley discloses an audio sensor feedback (i.e., at least one indicator) in communication with each of the hand and foot placement stations (i.e., 120, 125, 160, 165). Ans. 17. Second, as discussed supra, we agree with the Examiner that “broadly interpreted, [a] dance routine is considered a gymnastic movement.” Id. In addition, we agree with the Examiner’s reasoning that in paragraph [0051], Curley mentions that when a participant depresses a placement station, the electronic audio recording sounds ‘right foot’ as an audio feedback response. As a result, when the user depresses a right hand on a right foot placement station, the audio feedback device produces the sound ‘right foot’. As a result, the user would know that their hand placement was improper since the proper or correct placement of the right hand on the right hand placement station would produce a ‘right hand’ sound. As a result, based on the hand and foot placement on the placement stations, a corresponding sound is produced which is an indication to the user to see if a performance was correct or incorrect based on the hand and foot placement and the respective generated sound. Also as it can be seen from Fig. 1, the hand and foot placement stations look different (they are visually different). Accordingly, the shape of the placement stations can serve as an indication for the user which are responsive to the user's hand and foot placement Appeal 2011-004851 Application 12/173,586 8 and that the user would know that if the user’s hand is on a foot placement station, the movement is being performed incorrectly and the movement is improper. Id. at 17-18. The Examiner’s finding that Curley discloses at least one indicator in communication with each of the plurality of sequentially aligned sections and responsive to a user’s hand and foot placement onto a respective section while performing a gymnastic movement, wherein the indicator provides proper or improper indications in response to the user’s performance of the gymnastic movement is supported by a preponderance of the evidence. Appellant has not provided any persuasive evidence of error regarding the Examiner’s findings and conclusions regarding the disclosure of Curley. Accordingly, for the foregoing reasons, we sustain the rejection of independent claim 1 and of claims 2, 4 and 9-11, which fall with claim 1. Obviousness over Curley and Schlosser – Claims 3 and 12 Appellant indicates that claims 3 and 12 stand or fall with the rejection of independent claim 1. Br. 7. For the reasons discussed supra, we sustain the rejection of independent claim 1. Accordingly, we likewise sustain the rejection of claims 3 and 12. Obviousness over Curley and Schlosser – Claims 14, 18-20 and 22 Appellant indicates that claims 18-20 and 22 stand or fall with the rejection of independent claim 14. Br. 7. Accordingly, we review this ground of rejection on the basis of claim 14. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Appellant indicates that independent claim 14 includes many of the same limitations as independent claim 1. Br. 17-18. In the interest of brevity, we will not repeat our response to Appellant’s arguments regarding Appeal 2011-004851 Application 12/173,586 9 these same limitations and will only address those arguments that differ from the arguments previously presented, which are addressed supra. First, Appellant argues that “claim 14 recites that the sections of the mat are ‘linearly’ arranged . . . the sections of Curley’s mat are not linearly arranged. Rather, the foot placement sections are situated beneath the hand placements on the mat.” Id. at 18. Regarding Appellant’s first argument, the Examiner found that Curley discloses “linearly” arranged hand and foot placement sections, i.e., 120, 125, 160, 165. Ans. 7, 14, 18-19; Curley, figs. 1-2. The Examiner further pointed out that Curley discloses “rearrangement of the [hand and foot] placement stations [i.e., 120, 125, 160, 165] according to a desired exercise [i.e., a dance routine].” Id. at 19 (citing Curley, para. [0050]). The Examiner concluded that Curley discloses “this limitation [i.e., linearly arranged hand and foot placement sections] of . . . claim 14.” Id. Appellant has not provided any persuasive evidence of error regarding the Examiner’s findings and conclusions regarding the disclosure of Curley. Second, Appellant argues that claim [14] further recites that the ‘proper sequential placement of the hands and feet’ during execution of a gymnastic move results in a predetermined sound sequence which indicates the ‘proper sequential execution of the gymnastic movement’. Since the cited references also fail to teach or suggest these elements, claim 14 is believed to be patentable and non-obvious over the references for these additional reasons. Br. 18. Regarding Appellant’s second argument, the Examiner found that Curley discloses a mat including an audio feedback sensor that is located in Appeal 2011-004851 Application 12/173,586 10 or on the hand and foot placement stations and depression of a placement station by the user, produces “a feedback/audio corresponding to that section, such as ‘right foot’ when the user touches the right foot section.” Ans. 8; see also id. at 19; Curley, para. [0051]. The Examiner further reasoned that as a result, the user would know if their hand or foot placement in any of the placement station is correct or proper based on the produced sound (please note that a dance routine is considered a gymnastic move. Since a dance routine involves a certain order in hand and foot placements, the sound that is generated for a correct routine is specific to that routine and it involves a predetermined sound sequence). For instance, when the user depresses a right hand on a right foot placement station (in performing a routine), the audio feedback device produces the sound ‘right foot’. As a result, the user would know that their hand placement was improper since the proper or correct placement of the right hand on the right hand placement station would produce a ‘right hand’ sound. As a result, based on the hand and foot placement on the placement stations, a corresponding sound is produced which is an indication to the user to see if a performance was correct or incorrect based on the hand and foot placement and the respective generated sounds. Id. at 19. Appellant has not apprised us of error in the Examiner’s findings and conclusions regarding the disclosure of Curley. Appellant merely reiterates a portion of what the disputed claim limitations recite and makes a general allegation that neither Curley nor Schlosser disclose these limitations. Br. 18. Merely reciting the language of the claims and asserting that the cited Appeal 2011-004851 Application 12/173,586 11 prior art references do not disclose each claim limitation is insufficient. See 37 C.F.R. § 41.37(c)(1)(vii) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“we hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”); cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court to examine the claims in greater detail than argued by an appellant, looking for [patentable] distinctions over the prior art.”)). Consequently, Appellant’s argument is unpersuasive. Accordingly, for the foregoing reasons, we sustain the rejection of independent claim 14 and of claims 18-20 and 22, which fall with claim 14. Obviousness over Curley and Wilkins – Claims 5-7 and 13 Appellant indicates that claims 5-7 and 13 stand or fall with the rejection of independent claim 1. Br. 7. For the reasons discussed supra, we sustain the rejection of independent claim 1. Accordingly, we likewise sustain the rejection of claims 5-7 and 13. Obviousness over Curley, Schlosser and Wilkins – Claims 15 and 21 Appellant indicates that claims 15 and 21 stand or fall with the rejection of independent claim 14. Br. 7. For the reasons discussed supra, we sustain the rejection of independent claim 14. Accordingly, we also sustain the rejection of claims 15 and 21. Obviousness over Curley and Frazier – Claim 8 Appellant indicates that claim 8 stands or falls with the rejection of independent claim 1. Br. 7. For the reasons discussed supra, we sustain the Appeal 2011-004851 Application 12/173,586 12 rejection of independent claim 1. Accordingly, we likewise sustain the rejection of claim 8. DECISION We AFFIRM the decision of the Examiner to reject claims 1-15 and 18-22. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED hh Copy with citationCopy as parenthetical citation