13924091 - (D) (P.T.A.B. Jul. 30, 2019)

Matthew Glenn

Patent Trials and Appeals BoardJul 30, 2019

13924091 - (D) (P.T.A.B. Jul. 30, 2019)

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. 13/924,091 06/21/2013 Matthew Glenn 1304 4952 7590 07/30/2019 Bart Perkins 1200 Hester Drive Cumming, GA 30028 EXAMINER PENG, RAYSHUN K. ART UNIT PAPER NUMBER 3711 MAIL DATE DELIVERY MODE 07/30/2019 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 MATTHEW GLENN ____________ Appeal 2017-008647 Application 13/924,091 Technology Center 3700 ____________ Before MICHAEL L. HOELTER, BENJAMIN D. M. WOOD, and FREDERICK C. LANEY, Administrative Patent Judges. LANEY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Matthew Glen (Appellant) seeks our review under 35 U.S.C. § 134(a) of the Examiner’s decision, as set forth in the Final Office Action, dated February 19, 2016 (“Final Act.”), rejecting claims 1–4, 6–8, 11, 12, and 18– 24.1 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Claims 5, 9, 10, and 13–17 have been canceled. Supp. Appeal Br. 3–4 (Claims App.) (filed Oct. 7, 2016). Appeal 2017-008647 Application 13/924,091 2 CLAIMED SUBJECT MATTER Appellant’s claimed subject matter relates to training equipment for helping a user develop their golf swing. Spec. ¶¶ 1, 7. Claims 1, 18, 24 are independent. Claim 1 is illustrative of the subject matter on appeal and is reproduced below. 1. An apparatus for use as a target for a practice golf ball comprising: a flat, rectangular panel operable to redirect the force of the practice golf ball, wherein the panel is positioned at an acute angle with respect to the ground; a barrier positioned behind the panel, wherein the barrier comprises a first barrier wing and a second barrier wing, each of the first barrier wing and the second barrier wing being covered in netting and being attached to each other at least two hinge points, wherein the at least two hinge points permit the first barrier wing and the second barrier wing to be folded onto one another while encompassing the panel; a secondary target positioned in front of the panel, wherein the secondary target comprises a goal, the goal comprising a housing structure that is surrounded by netting with the exception of a bottom plane and a front plane of the housing, such that the absence of netting at the front plane of the housing creates an opening operable to accept the practice golf ball; wherein the secondary target is used as a reference point for identifying the terminal point of the flight path of the practice golf ball, and wherein the secondary target is further used to catch the practice golf ball when the practice golf ball rebounds off of the panel with no horizontal rotation; and a tee shot mat, wherein the tee shot mat is between the panel and the secondary target, such that the panel, the tee shot Appeal 2017-008647 Application 13/924,091 3 mat, and the secondary target are placed in a straight line respective to each other. EVIDENCE The Examiner relies upon the following evidence in the Final Action: Walker US 4,889,341 Dec. 26, 1989 Smith US 702,828 June 17, 1902 Lievens US 6,357,750 B1 Mar. 19, 2002 Wong US 2003/0203775 A1 Oct. 30, 2003 Kuester US 3,516,675 June 23, 1970 Griffin Bulloch Lock Kilpatrick US 4,239,221 US 8,496,546 B2 US 2010/0210377 A1 US 2006/0116225 A1 Dec. 16, 1980 July 30, 2013 Aug. 19, 2010 June 1, 2006 REJECTIONS The Final Action includes the following grounds of rejection: 1. Claims 1, 2, 4, and 21–24 under 35 U.S.C. § 103(a) as unpatentable over Walker, Smith, Lievens, and Wong. 2. Claim 3 under 35 U.S.C. § 103(a) as unpatentable over Walker, Smith, Lievens, Wong, and Kuester. 3. Claim 6 under 35 U.S.C. § 103(a) as unpatentable over Walker, Smith, Lievens, Wong, and Griffin. 4. Claims 7 and 8 under 35 U.S.C. § 103(a) as unpatentable over Walker, Smith, Lievens, Wong, and Bulloch. 5. Claims 11 and 12 under 35 U.S.C. § 103(a) as unpatentable over Walker, Smith, Lievens, Wong, and Lock. Appeal 2017-008647 Application 13/924,091 4 6. Claims 18–20 under 35 U.S.C. § 103(a) as unpatentable over Walker, Kilpatrick, and Bulloch. ANALYSIS First Ground of Rejection The Examiner finds that the combination of Walker, Smith, Lievens, and Wong discloses each of the elements that claims 1, 2, 4, and 21–24 recite. Final Act. 2–6 (filed July 19, 2016). For the “secondary target” element recited in independent claims 1 and 24, the Examiner correlates this to roll stop 56 of Figure 1 from Walker. Id. at 2–3. Appellant argues that this was an error because a skilled artisan would not consider the roll stop 56 to be an equivalent to the recited “secondary target.” Appeal Br. 7. For the following reasons, we agree. Looking to the Claims and the Specification for context, the broadest reasonable interpretation of “secondary target” is an object configured to receive the secondary impact of a properly struck golf ball immediately after it contacts the front panel. First, the claims supports this interpretation. Claim 1 describes the secondary target as “a reference point for identifying the terminal point of the flight path of the practice golf ball” and “used to catch the practice golf ball when the practice golf ball rebounds off of the panel.” Supp. Appeal Br. 2 (Claims App.). Claim 24 recites that “the practice golf ball bounces off of the rectangular panel in the direction of the secondary target” and that the secondary target is configured to have a housing with “an opening operable to accept the practice golf ball.” Id. at 6. Second, the Specification similarly supports our interpretation by stating, the Appeal 2017-008647 Application 13/924,091 5 secondary target “can be placed behind the user (e.g., wherein the user is between the rebounder panel 105 of FIG. 1 and the [secondary target] 310) so that when the user hits a straight shot . . ., the struck ball will rebound straight off of the rebounder panel 105 in the direction from which the shot came and land in the [secondary target].” The Examiner finds that roll stop 56 of Figure 1 from Walker qualifies as a secondary target because it can be placed behind the tee mat and be used as a reference point. Final Act. 3. The Examiner finds that, although Walker describes object 56 as a “roll stop,” it “can serve as a secondary target for a golfer to try and hit a spot on it in line with their shot.” Id. at 16. The Examiner asserts that “[i]f the golfer hooks or slices too much the ball will still land outside this board or on the very edges of it, thus indicating a less than straight shot.” Id. In the Answer, the Examiner explains further that Walker teaches a secondary target in the roll stop because “the roll stop can still provide a visual reference for the golfer to try and hit.” Ans. 16. Finally, the Examiner explains that “the ‘secondary target’ as argued by appellant does not impart any positive structural limitations and that since the ball is capable of hitting [the roll stop] in Walker, this reads on a secondary target under [broadest reasonable interpretation] of a secondary target.” Id. at 16–17. Notably, the Examiner never provides an express construction for “secondary target,” nor does the Examiner explain how the Claims or the Specification support the apparent breadth applied. Appeal 2017-008647 Application 13/924,091 6 We are not persuaded that a preponderance of the evidence supports the Examiner’s finding that the roll stop 56 from Walker is a “secondary target.” Walker describes the roll stop 56 as follows: Cooperating with backstop sheet 54’s action as a distal boundary is roll stop 56 acting as a proximal boundary to the playing area of golf swing analyzer 10. Said roll stop 56 preferably comprises a pair of rectangular planks standing on edge at the extreme proximal end 14 of the practice range, serving to stop practice balls from rolling beyond the reach of the practicing golfer upon their rebound from the distal end of the swing analyzer 10. Walker 6:17–26. In addition, Walker describes the roll stop 56 as “keeping the ball within easy reach of the golfer” when the golf ball is struck with “greater than average force.” Id. at 6:46–49. Otherwise, the configuration of the swing analyzer 10 of Walker causes the golf ball to “roll[] back to rest in the area near the teeing mat 18.” Id. at 6:44–46. The above evidence from Walker shows that, at most, any contact between the golf ball and roll stop 56 is incidental and that roll stop 56 merely keeps the golf ball within reach of the golfer. Walker does not support a finding that the roll stop 56 of Walker is an object specifically configured to receive the secondary impact of a properly struck golf ball immediately after it contacts the front panel. As a result, the Examiner erred by relying on roll stop 56 to show a “secondary target.” Therefore, we do not sustain the Examiner rejection of claims 1 and 24, as well as claims 2, 4, and 21–23 depending from claim 1. The Remaining Rejections In each of the remaining rejections, the Examiner, either directly or Appeal 2017-008647 Application 13/924,091 7 indirectly, relies upon roll stop 56 from Walker to show a “secondary target.” See Final Act. 10–15. For the reasons discussed above (see supra, First Ground of Rejection), the Examiner erred by relying on roll stop 56 to show a “secondary target.” Therefore, we do not sustain the Examiner rejection of claims 3, 6–8, 11, 12, and 18–20. 2 DECISION We reverse the Examiner’s rejections of claims 1–4, 6–8, 11, 12, and 18–24. REVERSED 2 Although we do not agree with the Examiner that there is evidence to support a finding that roll stop 56 is a secondary target, we leave it to the Examiner, upon return of this application for further prosecution, to determine whether it is appropriate to allow or reject the claims in view of the rebound board 42 that Walker discloses, which Appellant concedes is a secondary target (Appeal Br. 7). See 37 C.F.R. § 41.50(b); see also Manual of Patent Examining Procedure (MPEP), 8th ed., rev. 8, July 2010, § 1213.02. We do note, however, that claim 18 does not limit the invention to having the tee shot mat between the panel and the secondary target. Supp. Appeal Br. 4 (Claims App.).