Ex Parte Voges et alDownload PDFPatent Trial and Appeal BoardMay 27, 201613450364 (P.T.A.B. May. 27, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/450,364 04/18/2012 Mitchell Clark Voges 27189 7590 06/01/2016 PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 525 B STREET SUITE 2200 SAN DIEGO, CA 92101 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. l 16540-l l 16C3 5267 EXAMINER BLAU, STEPHEN LUTHER ART UNIT PAPER NUMBER 3711 NOTIFICATION DATE DELIVERY MODE 06/01/2016 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): docketing@procopio.com PTONotifications@procopio.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MITCHELL CLARK VOGES and DANIEL PATRICK HOLLISTER Appeal2014-005167 Application 13/450,364 Technology Center 3700 Before LYNNE H. BROWNE, PATRICK R. SCANLON, and ANNETTE R. REIMERS, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Mitchell Clark Voges and Daniel Patrick Hollister (Appellants) appeal under 35 U.S.C. § 134 from the rejection of claims 1, 3, 7, and 8. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal2014-005167 Application 13/450,364 CLAIMED SUBJECT MATTER The claims are directed to a method for fitting golf equipment. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method for fitting a plurality of golfers with golf equipment using a launch monitor and an optimization engine running on a processor, the method comprising: in the launch monitor, receiving launch data related to how each golfer launches a golf ball using a golf club, the golf club comprising a grip, shaft, and a club head, the club head comprising a loft, center of gravity, an orientation, and a weight distribution; determining velocity information, spin information, and launch angle information imparted to the golf ball based on the launch data; extrapolating a distance and flight path based on the velocity, spin, and launch angle information; in the optimization engine, determining optimized information for the spin, launch angle, or both-to achieve at least one selected optimal ball flight condition for each of the plurality of golfers, based on the determined velocity, spin, and launch angle information and the extrapolated distance and flight path; and correlating the optimized spin, launch angle or both as indicated by the optimization information with at least one of the golf ball, grip, shaft, and club head required to achieve the optimized spin, launch angle, or both for each of the plurality of golfers, wherein the correlation indicates different golf balls, grips, shafts, or club head for two of the plurality of golfers with the same velocity information as a result of the optimization of their respective velocity, spin, and launch angle information as determined. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Muldoon us 5,421,098 June 6, 1995 2 Appeal2014-005167 Application 13/450,364 Engfer Go bush Naruo US 5,749,792 May 12, 1998 US 6,758,759 B2 July 6, 2004 US 2004/0033845 Al Feb. 19, 2004 REJECTIONS 1 Claims 1, 3, 7, and 82 stand provisionally rejected on the ground of nonstatutory obviousness-type double patenting over claims 1, 2, 20, 21, 29, 79, and 87 of copending Application No. 10/722,580 in view ofNaruo, Gobush, and Muldoon. Claims 1, 3, 7, and 8 stand rejected under 35 U.S.C. 103(a) as unpatentable over Gobush, Engfer, Naruo, and Muldoon. DISCUSSION Provisional Obviousness-Type Double Patenting The Examiner provisionally rejected claims 1, 3, 7, and 8 on the basis of obviousness-type double patenting in view of then-pending claims 1, 2, 20, 21, 29, 79, and 87 of U.S. Patent Application No. 10/722,580 in view of Naruo, Gobush, and Muldoon. Final Act. 4--5. The '580 application has issued as U.S. Patent No. 8,827 ,842 B2. Because the circumstances surrounding the co-pending '580 application have changed since institution of the double patenting rejection in the instant application, we decline to 1 The rejection of claims 1, 3, 7, and 8 under 35 U.S.C. § 112, second paragraph, is withdrawn. Ans. 9-10. 2 The statement of this rejection indicates that claims 1, 3, 6, and 7 stand provisionally rejected on the ground of nonstatutory obviousness-type double patenting; however, claim 6 is withdrawn. We understand the inclusion of claim 6 and omission of claim 8 in this rejection to be a typographical error. 3 Appeal2014-005167 Application 13/450,364 reach the rejection. See Ex parte Moncla, 95 USPQ2d 1884 (BP AI 2010) (precedential). Obviousness Rejecting claims 1, 3, 7, and 8, the Examiner finds that Gobush discloses a method for fitting a plurality of golfers with golf equipment comprising, inter alia, using ... an optimization engine in the form of a computer (Col. 1, Ln. 40-53) ... receiving launch data including a launch angle, velocity and spin (Claim 21 ), in the optimization engine determine optimized a launch angle or spin rate information to achieve at least one selected optimal ball flight condition in the form of the system presents ideal launch conditions for maximizing distance (col. 9, Lns. 1-5, Fig. 8). Final Act. 7. Appellants argue that "Gobush may describe determining ideal launch conditions, but Gobush provides no teaching, suggestion or any other form of disclosure of how to achieve these ideal launch conditions by selecting particular club parameters." Appeal Br. 8. In support of this argument, Appellants further argue that: the recitation "in the optimization engine, determining optimized information for the spin, launch angle, or both to achieve at least one selected optimal ball flight condition . . . " clearly requires that the "optimization engine" determines optimized information. When a system, such as that of Go bush, merely calculates carry distances for hundreds of combinations oflaunch angles and spin rates and displays the data (or graphical representations of the data), the system is not determining the optimized information. The system is instead requiring the user to review the hundreds or thousands of combinations to determine which combinations produce the "maximized/optimized carry distance." In such a scenario, the 4 Appeal2014-005167 Application 13/450,364 Appellant respectfully submits that "system" is not acting as "an optimization engine." Reply Br. 2-3. Gobush discloses a system that: calculates the distances of a golf ball struck at a variety of launch angles and spin rates that are close to those for the golfer. . . . In order to display this particular data, the system performs the trajectory calculations ... between about 50-100 times .... From the graphical data (*), the golfer can determine which of these two variables could be changed to improve the distance. Gobush, col. 19, 11. 11-24. Thus, as Appellants contend, in Gobush the golfer, rather than the system, determines "optimized information for the spin, launch angle, or both," as required by Claim 1. Appeal Br. 11. Accordingly, the Examiner's finding is in error. For this reason, we do not sustain the Examiner's decision rejecting independent claim 1, and claims 3, 7, and 8, which depend therefrom. DECISION The Examiner's rejection of claims 1, 3, 7, and 8 under 35 U.S.C. 103(a) as unpatentable over Gobush, Engfer, Naruo, and Muldoon is REVERSED. REVERSED 5 Copy with citationCopy as parenthetical citation