Marc Martino

Patent Trials and Appeals Board

Jul 2, 2021

2020006031 (P.T.A.B. Jul. 2, 2021)

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.
15/130,161 04/15/2016 Marc Gregory Martino MART-019-UA 4309
13346 7590 07/02/2021
Hackler Daghighian Martino & Novak
10900 Wilshire Blvd.
Suite 300
Los Angeles, CA 90024
EXAMINER
WONG, STEVEN B
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
07/02/2021 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):
jcf@hdmnlaw.com
marc@hdmnlaw.com
uspto@dockettrak.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARC GREGORY MARTINO
Appeal 2020-006031
Application 15/130,161
Technology Center 3700
Before JENNIFER D. BAHR, JOHN C. KERINS, and
JEREMY M. PLENZLER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision, set forth in the Non-Final Action dated October 16,
2019, and repeated in the Answer, dated June 23, 2020, to reject claims 1–5,

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Marc Martino.
Appeal Br. 3.
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8, 10–13, 25–27, and 30–33.2 See Non-Final Act. 1–13; Ans. 3–12. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.
CLAIMED SUBJECT MATTER
The claims are directed “to balls which are thrown and/or caught
between users/players” and, more particularly, “to a football or baseball
which is launched by a slingshot by the thrower/pitcher and then can still be
caught by a receiver/catcher.” Spec. ¶ 2. Claim 1, reproduced below, is the
only independent claim and is illustrative of the claimed subject matter.
1. A launching and/or catching toy kit, comprising:
a football comprising:
a) a generally elongated spheroidal body defined
as comprising a longitudinal axis, where a length of the
body along the longitudinal axis between a front end of
the body to a back end of the body is longer than an
equatorial diameter, wherein the equatorial diameter is at
least 2 inches;
b) a support non-movably attached to the body,
where a first end of the support is disposed within the
body or attached to the body and a second end of the
support extends beyond the back end of the body;
c) a tail attached to the second end of the support;
d) a first and a second elastic band hook oppositely
disposed about the longitudinal axis and attached to the
body and/or the support; and
at least two slingshots associated with the football, each
slingshot configured to launch the football from a first user to a
second user or from the second user to the first user, each
slingshot comprising:

2 Appellant’s position regarding the pending rejections is set forth in the
Appeal Brief dated April 16, 2020, and in the Reply Brief dated August 23,
2020.
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a) a handle configured to be gripped by the first or
second user;
b) a pair of prongs connected and/or extending
from a top of the handle, wherein the pair of prongs form
an opening wherein the opening is at least as wide as a
maximum width of the football;
c) at least one elastic band connected to each prong
of the pair of prongs;
wherein each at least one elastic band is releasably
captured by its respective first or second elastic band
hook on the football during launching by the first or
second user.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Alger US 2,525,332 Oct. 10, 1950
Yount US 3,494,346 Feb. 10, 1970
Myers US 6,120,398 Sept. 19, 2000
Cummings ’448 US 9,341,448 B2 May 17, 2016
Larner US 9,476,666 B1 Oct. 25, 2016
Neal US 2009/0011870 A1 Jan. 8, 2009
Cummings ’577 US 2014/0000577 A1 Jan. 2, 2014
Cummings ’647 US 2014/0338647 A1 Nov. 20, 2014

REJECTIONS
I. Claims 1, 4, 8, 10–13, 26, and 30–33 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Cummings ’448, Cummings ’647, and
Neal.
II. Claims 1, 4, 8, 10–13, 26, and 30–33 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Cummings ’448, Cummings ’647, Neal,
and Cummings ’577.
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III. Claim 2 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Cummings ’448, Cummings ’647, Neal, and Larner.
IV. Claim 2 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Cummings ’448, Cummings ’647, Neal, Cummings ’577, and Larner.
V. Claim 3 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Cummings ’448, Cummings ’647, Neal, and Alger.3
VI. Claim 3 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Cummings ’448, Cummings ’647, Neal, Cummings ’577, and Alger.
VII. Claim 5 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Cummings ’448, Cummings ’647, Neal, and Yount.
VIII. Claim 5 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Cummings ’448, Cummings ’647, Neal, Cummings ’577, and Yount.
IX. Claims 25 and 27 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Cummings ’448, Cummings ’647, Neal, and Myers.
X. Claims 25 and 27 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Cummings ’448, Cummings ’647, Neal,
Cummings ’577, and Myers.

3 The Examiner sets forth Rejection VI twice, verbatim, on pages 7–9 of the
Non-Final Action. In the Answer, in re-stating the rejections, instead of
repeating Rejection VI twice, the Examiner sets forth Rejection V (i.e.,
Rejection VI without Cummings ’577), followed by Rejection VI (i.e.,
including Cummings ’577). Ans. 9–11. We understand this to be a
correction of the ostensibly inadvertent inclusion of Cummings ’577 in both
rejections of claim 3, rather than in just the second rejection of claim 3, in
the Non-Final Rejection. This is consistent with the Examiner’s pattern of
including an alternative rejection, adding Cummings ’577, for each claim
grouping.
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OPINION
Rejections I and II
Claims 1, 8, 10, 11, 13, and 30–33
The Examiner finds that Cummings ’448 discloses a toy kit
comprising a projectile including a generally elongated spheroidal body
generally shaped like a football, elastic band hooks attached to the body, a
support attached to the body at one end, and a tail attached to the support at a
second end. Non-Final Act. 3 (citing Cummings ’448, Fig. 62). The
Examiner also finds that Cummings ’448 discloses using launchers such as
bows or slingshots to launch the projectile, but does not specifically disclose
elastic bands for engaging the hooks of the projectile. Id. The Examiner
relies on Cummings ’647 for the specifics of the launcher/slingshot. Id.
(determining it would have been obvious to provide Cummings ’448 with
the launcher of Cummings ’647 “in order to provide a means for launching
the projectile”). Further, the Examiner determines it would have been
obvious to provide an additional slingshot with the kit of Cummings ’448
“to permit the user to replace a broken one” or “to provide multiple
projectiles and slingshots in order to allow more than one user [to] play with
the projectiles at a time.” Id. According to the Examiner, such a
modification is “an obvious duplication of parts and their associated
functions.” Id.
The Examiner finds that Cummings ’448 and Cummings ’647 lack a
teaching of a specific projectile body diameter. Non-Final Act. 3–4. The
Examiner finds that Neal teaches a projectile diameter of about two to five
inches for a tailed projectile and determines it would have been obvious to
provide the head of the Cummings ’448 projectile “with a diameter of at
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least about 2 inches in order to provide a ball that is easily thrown, caught[,]
and played with by users as taught by Neal.” Id. at 4; see Neal ¶ 5 (teaching
providing the projectile with “a spheroid having a diameter in a range of
about two to five inches” with aerodynamic properties inhibiting “end-over-
end rotation of the spheroid after being thrown, hit, or launched”).
Although the Examiner finds, as discussed above, that
Cummings ’448 discloses a projectile with a football shape in Figure 62, the
Examiner also sets forth an alternative rejection (Rejection II). Non-Final
Act. 5. The Examiner notes that Cummings ’448 discloses other head
designs, in addition to bounce-back head 550 shown in Figure 62. Id. (citing
Cummings ’448, col. 19, ll. 54–64). The Examiner cites Cummings ’577 as
evidencing that launched projectiles having “a more football-shaped body”
were known in the art. Id. (citing Cummings ’577, Fig. 1). In view of the
teaching of Cummings ’448 of alternative head designs, the Examiner
determines it would have been obvious to provide the projectile “of
Cummings ’448 with a more football shaped body in order to provide an
alternative shape for the body.” Id.
Appellant argues that Neal’s teachings with respect to projectile head
diameter are not applicable to the projectiles of Cummings ’448, and that, in
fact, Neal teaches away from the claimed invention, because Neal’s
teachings are directed to a projectile that is to be thrown or caught, in
contrast to the projectile of Cummings ’448, which Appellant contends is
not being thrown or caught by a player. Appeal Br. 13–15. Appellant
submits that the projectiles of Cummings ’448 and Neal are launched
differently, and, thus, a person having ordinary skill in the art would not
have been motivated to combine their teachings. Reply Br. 2–3.
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Appellant’s arguments about the incompatibility of Neal and
Cummings ’448 are not persuasive. Cummings ’448 teaches projectiles that
can be tossed, thrown, or launched with a launcher. Cummings ’448,
col. 15, ll. 2–3; col. 18, ll. 29–30; col. 19, ll. 65–66; col. 20, ll. 16–25.
Similarly, Neal teaches projectiles designed to be “thrown, hit, or launched.”
Neal ¶ 5. Regardless of how the projectiles of Cummings ’448 and Neal are
put into motion, the manner of their travel is the same, and similar
aerodynamic properties are desired for both. Thus, a person having ordinary
skill in the art would consider the teachings of Neal with respect to projectile
diameter to be applicable to the projectiles of Cummings ’448.
Appellant argues that, in the absence of Appellant’s disclosure, one
skilled in the art would have no reason to provide the projectiles of
Cummings ’448 with a diameter of at least 2 inches. Appeal Br. 24. The
Examiner responds by explaining that, because Cummings ’448 and
Cummings ’647 “are silent as to a particular size for their projectiles[,] one
of ordinary skill in the art would look to secondary references teaching
projectiles that are launched such as that taught by Neal.” Ans. 13–14.
Given the silence of Cummings ’448 and Cummings ’647 with respect to
projectile size, the modification proposed by the Examiner to use the
diameter taught by Neal is nothing more than the mere application of a
known technique to a piece of prior art ready for the improvement. See KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007).
Appellant takes issue with the Examiner’s finding that
Cummings ’448 and Cummings ’647 are silent with respect to size. Reply
Br. 4 (arguing that a person of ordinary skill in the art having knowledge of
Cummings ’448, Cummings ’647, Cummings ’577, and Neal would “also
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have the knowledge of the products actually produced by Cummings”).
Appellant argues that a projectile having a diameter of at least 2 inches
would not fit in the space between the handle of the slingshot of
Cummings ’647 and the user’s hand. Reply Br. 3 (relying on a photograph
of what Appellant asserts is “[t]he slingshot of Cummings ’647”).
Appellant’s arguments are not persuasive. Appellant does not provide
a sufficient evidentiary showing to establish that the products purchased and
measured by Appellant are made by Cummings and would be covered by the
claims of Cummings ’647. Nevertheless, even assuming those products are
made by Cummings and covered by the claims of Cummings ’647, the
teachings of the Cummings patents are not limited to or by these products.
Appellant does not direct our attention to any teaching in the Cummings
patents as to recommended or required dimensions for the projectiles or
slingshots so as to effectively refute the Examiner’s finding that
Cummings ’448 and Cummings ’647 are silent with respect to size. Thus, it
would have been obvious to a person of ordinary skill in the art of toy
projectiles to look to the teachings of other toy projectiles, such as those of
Neal. For the same reasons, Appellant’s argument that the Cummings ’448,
Cummings ’647, or Cummings ’577 projectile measures 1.25 inches, based
on a measurement of a commercially available product, and, thus, does not
fall within the range set forth in claim 1, is unavailing. See Reply Br. 4;
Appeal Br. 24–25.
Appellant also argues that Cummings ’448 teaches away from the
claimed invention because, according to Appellant, Cummings ’448 does not
show a football body with hooks that was meant to be shot back and forth by
a slingshot for a game of catch. Appeal Br. 15–16 (citing Cummings ’448’s
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teaching that “‘[f]ootball’ heads 570 may be used, for example with a
projectile that is designed to be thrown by hand”); see also Reply Br. 5
(asserting that head 550 in Figure 62 of Cummings ’448 is “a blunt arrow
head with a flat front surface designed to reduce the chance of injury” and
cannot be fairly characterized “as a football shaped body with hooks”).
Appellant’s argument mischaracterizes, or fails to fully appreciate, the
teachings of Cummings ’448.
First, we discern no error in the Examiner’s finding that head 550
illustrated in Figure 62 of Cummings ’448, which has hooks (launcher
engagers 600), is a football comprising “a generally elongated spheroidal
body” as recited in claim 1. Additionally, Cummings ’448 teaches that
“[b]ounce-back heads 550 may be blunt or rounded but, regardless of shape,
bounce-back heads 550 would harmlessly ‘bounce’ off of whatever they
hit.” Cummings ’448, col. 19, ll. 54–56. Further, Cummings ’448 expressly
discloses that at least three head options “(e.g.[,] a bounce-back head, a
suction head, and a ‘football’ head)” for its shafted projectile, which
includes a shaft, a head, a launcher engager (one or more hooks or slots), and
a tail. Id. at col. 11, ll. 6–12; see also id. at col. 20, ll. 16–18, 23–25
(disclosing use of at least one launcher engager 600 (one or more hooks)
with heads 500, 550, 570, as well as contemplating various combinations of
disclosed elements). Thus, whether expressly illustrated or not,
Cummings ’448 discloses a projectile having a football head or body of
spherical shape having hooks for engagement with a launcher.
Moreover, even if none of the head shapes disclosed by
Cummings ’448 were deemed to be a “football,” in the alternative rejection
(Rejection II), the Examiner cites evidence, in the form of Cummings ’577,
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that projectiles with heads comprising “a more football-shaped body” with
hook elements 20 were known in the art. Non-Final Act. 5. Appellant does
not dispute either the Examiner’s finding that Cummings ’577 shows a
football-shaped body or the Examiner’s determination that it would have
been obvious to use a head as taught by Cummings ’577 in the combination
of Cummings ’448 and Cummings ’647.
Appellant argues that providing two slingshots in the kit is “contrary
to normal business operations and would reduce profit margins.” Appeal
Br. 17 (boldface omitted). According to Appellant, “[i]f a part breaks, the
manufacture[r] wants the customer to purchase another product.” Id.
Further, Appellant asserts that “it is very rare where a slingshot itself would
break.” Id. This line of argument lacks evidentiary support and is not
persuasive. As for profit margins, pursuant to fundamental economic
concepts and business norms, in setting a price for a product, such as a toy
kit having multiple parts, a manufacturer would take into account the
manufacturing cost, handling cost, and markup for the parts included in the
kit. Further, Appellant’s assertion that it would be rare for a toy slingshot to
break, at best, amounts to unsupported attorney argument and, frankly,
strikes us as specious.
Appellant contends that “the only reason why a manufacturer would
provide two slingshots is when they intend the play pattern to be different
than normal.” Appeal Br. 18. We disagree. The provision of two or more
slingshots or multiple projectiles in a kit is, as the Examiner states, “an
obvious duplication of parts and their associated functions” (Non-Final Act.
3), and not the product of innovation.
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Appellant argues that the features of Appellant’s invention,
particularly the body diameter size and football shape, as well as the
provision of at least two slingshots, creates “a new play pattern of playing
catch with a slingshot football,” which is “a new and unexpected result.”
Appeal Br. 19. This argument is not persuasive. Given the teachings of
Cummings ’448, Cummings ’647, and Neal, it is not unexpected that the
projectiles and slingshots could be used in this manner. To the contrary, the
use Appellant describes reflects the general purpose for which the projectiles
and launchers of Cummings ’448, Cummings ’647, and Neal were designed.
For the above reasons, Appellant fails to apprise us of error in the
rejections (Rejections I and II) of claim 1, or of claims 8, 10, 11, 13, and 30–
33, for which Appellant does not present any separate arguments.
Accordingly, we sustain both the rejection of these claims as unpatentable
over Cummings ’448, Cummings ’647, and Neal, and the rejection of these
claims as unpatentable over Cummings ’448, Cummings ’647, Neal, and
Cummings ’577.
Claim 4
Claim 4 depends from claim 1 and recites that “the tail comprises a
finger grip feature formed as a continuous part of the tail, the finger grip
feature configured to be easily grasped by the first user when launching.”
Appeal Br. 36 (Claims App.). The Examiner reads the claimed “finger grip
feature” on tab 284 of Cummings ’448. Non-Final Act. 4.
Appellant argues that “tab 284 is formed as a continuous part of the
rod shaft 200 as best shown in FIG. 10” and “cannot be part of the double
fletching 220,” which is made of “soft foam that would not hold up to the
high forces and abuse that the tab 284 endures during shooting.” Appeal
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Br. 28. The Examiner responds by explaining that “the entire end (320) of
the projectile is considered to be the tail as recited” and that “[t]he finger
grip (tab 284, 374) continuously extends from this portion of the projectile
and thus forms a continuous part of the tail.” Ans. 20. Thus, although the
Examiner uses the reference number 320 to identify the tail, in reading claim
4 on Cummings ’448, the Examiner appears to be relying on the structure at
the end of the projectile near fletching 320 as the “tail.” The Figure 62
embodiment relied on by the Examiner comprises tubular shaft 300 and tab
374, the construction and assembly of which is shown in further detail in
Figure 45. See Cummings ’448, col. 18, ll. 25–30. As illustrated in Figure
45, tail reinforcer 370 is attached to the second end of shaft 300, thus
corresponding to the claimed “tail,” and tab 374 is formed as a continuous
part thereof.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s rejections (Rejections I and II) of claim 4. Accordingly, we
sustain both the rejection of claim 4 as unpatentable over Cummings ’448,
Cummings ’647, and Neal, and the rejection of claim 4 as unpatentable over
Cummings ’448, Cummings ’647, Neal, and Cummings ’577.
Claim 12
Claim 12 recites “an overall weight of the football is less than 100
grams.” Appeal Br. 37 (Claims App.). The Examiner determines that it
would have been obvious to manufacture the projectile of Cummings ’448
with the claimed weight “in order to provide a ball that is easily projected by
a user.” Non-Final Act. 4.
Appellant argues that most footballs weighing 400 grams, and smaller
foam and junior size footballs weighing 200 grams, would be “simply too
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heavy to be effectively shot by a slingshot toy.” Appeal Br. 28–29.
Appellant also submits that “the weight of the Cummings ’448 arrow is
merely 25 grams.” Id. at 29. Further, Appellant contends that “[c]learly
keeping the weight below 100 grams is critical to the product’s functioning.”
Id.
The Examiner correctly considers Appellant’s comparison to most
footballs and junior size footballs weighing 200 grams or more to be
inapposite because it is not directed to the combination set forth in the
rejections. Ans. 20. Rejections I and II are based on the projectiles of
Cummings ’448 designed to be launched using a launcher, as taught by
Cummings ’647, and not on full size or junior size footballs mentioned by
Appellant. As the Examiner aptly points out, Appellant admits that the
arrow of Cummings ’448 “is merely 25 grams,” which “is less than 100
grams as recited” in claim 12. Id. Thus, a person having ordinary skill in
the art would have been prompted to make the projectile of Cummings ’448
under 100 grams to be suitable for its intended purpose, namely, being
launched using a launcher. “A person of ordinary skill is also a person of
ordinary creativity, not an automaton.” KSR, 550 U.S. at 421.
For the above reasons, Appellant fails to apprise us of error in the
rejections (Rejections I and II) of claim 12. Accordingly, we sustain both
the rejection of claim 12 as unpatentable over Cummings ’448, Cummings
’647, and Neal, and the rejection of claim 12 as unpatentable over
Cummings ’448, Cummings ’647, Neal, and Cummings ’577.
Claim 26
Claim 26 depends from claim 1 and further recites “at least one divot
disposed within the body behind the first or second elastic band hook.”
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Appeal Br. 37 (Claims App.). The Examiner finds that Figures 1–3, 22,
and 23 (or 62)4 of Cummings ’448 show “that it is known in the art to
provide divots either before or after the hooks in the projectile body” and
determines that it would have been obvious “to provide divots either before
or after the hooks in the football shaped body of Cummings ’448 in order to
provide gripping characteristics or alter the weight characteristics of the
body.” Non-Final Act. 5.
Appellant asserts that none of the Figures of Cummings ’448 cited by
the Examiner “show such divot structures in the body disposed behind the
hooks.” Appeal Br. 32. In response, the Examiner provides annotated
versions of Figures 3, 22, and 62 of Cummings ’448 to identify the structure
purportedly corresponding to the claimed “divot.” Ans. 6.
Although the annular groove identified in suction head 500 of
Figure 3 of Cummings ’448 appears to be a divot, this bounce-back head is
not the football head (bounce-back head 550 or football head 570) relied on
by the Examiner, and, further, the annular groove, as shown in Figure 2,
appears to be located under the hooks (launcher engagers 600), rather than
behind the hooks. Thus, it is not apparent why this structure would have
suggested a divot located in a football head behind one of the hooks as
claimed. The showing in Figure 22 also seems deficient, in that the flat rear
surface of bounce-back head 550 identified as a divot appears to be located
either under or forward of the hooks (launcher engagers 600). Finally, the
structure the Examiner identifies as a divot in Figure 62 appears to be part of
shaft 300, not body 550, and, thus, is not “disposed within the body” as

4 The Examiner corrects the citation to Figure 23 to refer to Figure 62 of
Cummings ’448. Ans. 5.
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recited in claim 26. See Reply Br. 7 (arguing that “the Examiner points to
the flat portion of the plastic support”).
For the above reasons, the Examiner fails to establish a sustainable
case that the subject matter of claim 26 would have been obvious. Thus, we
do not sustain either the rejection of claim 26 as unpatentable over
Cummings ’448, Cummings ’647, and Neal, or the rejection of claim 26 as
unpatentable over Cummings ’448, Cummings ’647, Neal, and Cummings
’577.
Rejections V and VI
Claim 3 depends from claim 1 and further recites that “the tail extends
outwardly in a vertical plane aligned along the longitudinal axis which is
generally perpendicular to a horizontal plane which is aligned along the
longitudinal axis but also extends through the first and second elastic band
hook, and” that “the tail does not extend outwardly along the horizontal
plane.” Appeal Br. 36 (Claims App.). The Examiner determines, in view of
the tail fin arrangement shown in Figures 1 and 2 of Cummings ’647, that it
would have been obvious “to provide a tail fin that is perpendicular to the
plane of the hooks in order to alter/optimize the flight characteristics of the
projectile.” Non-Final Act. 7. The Examiner also finds that, although
Cummings ’448 and Cummings ’647, in combination, teach providing fins
extending in both vertical and horizontal directions, Alger, which is cited by
Cummings ’448 for its fletching attachment technique, shows fletching in
Figures 1–3 having only two fins. Id. Thus, the Examiner reasons that it
would have been obvious “to provide the projectile of Cummings ’448 as
modified by Cummings ’647 with only two fins in the vertical plane in order
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to reduce manufacturing costs by reducing the amount of required
materials.” Id.
Appellant argues that the Examiner’s articulated “reasoning fails to
explain why one skilled in the art would orient the two fins in the vertical
plane and not in the horizontal plane,” as claimed. Appeal Br. 27. Further,
Appellant contends that, in the latter portion of the paragraph in which
Cummings ’448 cites Alger, “Cummings ’448 teaches away from . . . using
Alger’s teaching.” Id.
As the Examiner correctly acknowledges (see Ans. 19),
Cummings ’448 discusses the technique for attaching the fletching to the
shaft, not the configuration or fin pattern of the fletching itself. Cummings
’448, col. 26, ll. 2–10. Thus, Cummings ’448’s discussion of the
disadvantages of Alger’s attachment technique does not teach away from the
fin pattern of the fletching illustrated by Alger, or other two-fin fletching
patterns.
As for the tail extending outwardly in a vertical plane rather than in a
horizontal plane, the Examiner states that “[t]he particular plane for the fins
is obvious given the teachings of the combination and lacking a showing of
significance for the particular plane.” Ans. 20. The Examiner’s observation
that Appellant’s Specification fails to show any criticality to the direction(s)
in which the tail extends appears to be correct. See, e.g., Spec. ¶¶ 6, 42
(stating that the tail may extend outwardly in a vertical plane that is
generally perpendicular to a horizontal plane that extends through the elastic
band catches). Further, Appellant does not direct our attention to any
disclosure in the Specification that indicates any significance or criticality to
the tail not extending outwardly in a horizontal plane.
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Cummings ’448 discloses that “[t]he fletching assists in the flight of
the arrow.” Cummings ’448, col. 1, l. 32. Cummings ’448 also teaches that
the fletching includes “at least one fin,” thereby contemplating a fletching
configuration that does not extend in both the vertical and horizontal planes
and supporting the Examiner’s position that providing fewer than four fins
was known in the art. Id. at col. 2, l. 31. Further, Appellant does not point
to any disclosure in Cummings ’448 that suggests that extending the fin
outwardly in any particular direction is preferable relative to any other
direction, nor do we discern any such disclosure. This supports the
Examiner’s position that the particular plane in which the tail extends is a
design consideration within the skill of the art and does not patentably
distinguish the claimed invention from the prior art applied in the rejections
of claim 3.
For the above reasons, Appellant fails to apprise us of error in the
rejections (Rejections V and VI) of claim 3. Accordingly, we sustain both
the rejection of claim 3 as unpatentable over Cummings ’448, Cummings
’647, Neal, and Alger, and the rejection of claim 3 as unpatentable over
Cummings ’448, Cummings ’647, Neal, Cummings ’577, and Alger.
Rejections IX and X
Claim 25
Claim 25 depends from claim 1 and recites, in pertinent part, that the
body is comprised of a front section and a rear section of different materials,
wherein the rear section volume is at least double the front section volume.
Appeal Br. 37 (Claims App.). The Examiner determines it would have been
obvious to provide a nose shield of a different material, as taught by Myers,
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on the projectile of Cummings ’448 in order to protect the end of the
projectile. Non-Final Act. 9 (citing Myers, Fig. 3; col. 2, ll. 13–17).
Appellant argues that the structure of Myers is too heavy to provide “a
workable slingshot football” because “a normal sized football [weighs] 400
grams and a junior sized football [weighs] 200 grams.” Appeal Br. 30. This
argument is not persuasive because it is not responsive to the rejections set
forth by the Examiner. The Examiner does not propose making the
projectile of Cummings ’448 the size or weight of a normal or junior sized
football. Rather, as the Examiner explains, Myers is relied upon “merely for
its teachings that it is known in the art of projectiles to provide the projectile
either as a single material or with a nose shield (21) for the end of the
projectile.” Ans. 21.
Appellant does not apprise us of error in the rejections (Rejections IX
and X) of claim 25. Accordingly, we sustain the rejection of claim 25 as
unpatentable over Cummings ’448, Cummings ’647, Neal, and Myers, and
the rejection of claim 25 as unpatentable over Cummings ’448,
Cummings ’647, Neal, Cummings ’577, and Myers.
Claim 27
Claim 27 depends from claim 1 and further recites that “the body,
support and tail are made as a single manufactured part from the same
material.” Appeal Br. 37 (Claims App.). The Examiner determines that it
would have been obvious, in view of the teaching of Myers of a one-piece
projectile of a single material, “to form the projectile of Cummings ’448 as
modified by Cummings ’647 from the same material in order to facilitate
manufacture of the projectile by forming the projectile all at one time and
not requiring assembly.” Non-Final Act. 9 (citing Myers, Fig. 2).
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Appellant argues that “[m]aking the entirety of the Cummings ’448
structure the same foam is contrary to the teaching of Cummings ’448,”
which, according to Appellant, “teaches how to make a light arrow
structure.” Appeal Br. 31. According to Appellant, Myers’s heavy foam
would make the Cummings ’448 projectile too heavy. Id. at 31–32.
The Examiner responds by pointing out, correctly, that Appellant’s
assertion about Myers’s foam being too heavy lacks “evidentiary support,”
and that Myers “is directed to the same art” and “teaches that it is well
known in the art of projectiles to form the projectile from a single material.
Ans. 21–22; see Myers, col. 2, ll. 9–10 (teaching toy footballs “formed of a
relatively resilient plastic foam-like material”). As Appellant acknowledges
on page 32 of the Appeal Brief, Appellant’s Specification evidences that
some foam materials are sufficiently light for a projectile. Spec. ¶ 69.
Appellant does not provide any evidence or persuasive technical reasoning
to show that the foam material of Myers would necessarily be unsuitably
heavy for the projectiles of Cummings ’448. Notably, the Examiner does
not propose modifying the Cummings ’448 projectiles by making them full
size or junior size footballs.
For the above reasons, Appellant does not apprise us of error in the
rejections (Rejections IX and X) of claim 27. Accordingly, we sustain the
rejection of claim 27 as unpatentable over Cummings ’448, Cummings ’647,
Neal, and Myers, and the rejection of claim 27 as unpatentable over
Cummings ’448, Cummings ’647, Neal, Cummings ’577, and Myers.
Rejections III, IV, VII, and VIII
Appellant does not present any arguments specifically contesting the
rejections of claims 2 and 5. See Appeal Br. 12–32. Thus, we understand
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Appellant to be relying on the arguments presented against the rejections
(Rejections I and II) of claim 1 in contesting these rejections. For the
reasons set forth above, Appellant’s arguments fail to apprise us of error in
the rejections of claim 1, and, likewise, fail to apprise us of error in the
rejections of claims 2 and 5. Accordingly, we sustain the rejection of claim
2 as unpatentable over Cummings ’448, Cummings ’647, Neal, and Larner,
and the rejection of claim 2 as unpatentable over Cummings ’448,
Cummings ’647, Neal, Cummings ’577, and Larner. We also sustain the
rejection of claim 5 as unpatentable over Cummings ’448, Cummings ’647,
Neal, and Yount, and the rejection of claim 5 as unpatentable over
Cummings ’448, Cummings ’647, Neal, Cummings ’577, and Yount.
CONCLUSION
The Examiner’s rejections are AFFIRMED as to claims 1–5, 8, 10–
13, 25, 27, and 30–33, and REVERSED as to claim 26.

DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 8, 10–
13, 26, 30–
33
103 Cummings ’448,
Cummings ’647,
Neal
1, 4, 8, 10–
13, 30–33
26
1, 4, 8, 10–
13, 26, 30–
33
103 Cummings ’448,
Cummings ’647,
Neal,
Cummings ’577
1, 4, 8, 10–
13, 30–33
26
2 103 Cummings ’448,
Cummings’647,
Neal, Larner
2

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2 103 Cummings ’448,
Cummings ’647,
Neal,
Cummings ’577,
Larner
2
3 103 Cummings ’448,
Cummings ’647,
Neal, Alger
3
3 103 Cummings ’448,
Cummings ’647,
Neal,
Cummings ’577,
Alger
3
5 103 Cummings ’448,
Cummings ’647,
Neal, Yount
5
5 103 Cummings ’448,
Cummings ’647,
Neal,
Cummings ’577,
Yount
5
25, 27 103 Cummings ’448,
Cummings ’647,
Neal, Myers
25, 27
25, 27 103 Cummings ’448,
Cummings ’647,
Neal,
Cummings ’577,
Myers
25, 27
Overall
Outcome
1–5, 8, 10–
13, 25, 27,
30–33
26

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RESPONSE
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 IN PART