Ex Parte Goldblatt

Patent Trial and Appeal Board

Aug 29, 2016

13490914 (P.T.A.B. Aug. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/490,914 06/07/2012
100776 7590 08/30/2016
Gregor N Neff
489 Fifth Avenue 12th Floor
New York, NY 10017
FIRST NAMED INVENTOR
Vivian B. Goldblatt
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.
33192-2001 4275
EXAMINER
MENDIRATTA, VISHU K
ART UNIT PAPER NUMBER
3711
MAILDATE DELIVERY MODE
08/30/2016 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 VIVIAN B. GOLDBLATT
Appeal2014-007633
Application 13/490,914
Technology Center 3700
Before STEFAN STAICOVICI, KEN B. BARRETT, and
SEAN P. O'HANLON, Administrative Patent Judges.
O'HANLON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Vivian B. Goldblatt (Appellant) appeals under 35 U.S.C. § 134 from
the Examiner's decision rejecting claims 7-24. 1 We have jurisdiction over
this appeal under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
1 Claim 1-6 are canceled. App. Br. 21 (Claims Appendix).
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Application 13/490,914
SUMMARY OF INVENTION
Appellant's invention "relates to game boards in which, during play,
game pieces or 'tiles' are positioned at various locations on the game board
by multiple players, such as in 'Scrabble,' TM Chess, Checkers, Bingo, etc."
Spec. 2. Independent claim 7, reproduced below, is illustrative of the
claimed subject matter:
7. A game board structure, said structure including
a. a frame for supporting a loose game board, said frame
having a bottom wall and at least one side wall joined to said
bottom wall forming a support for said game board and forming
a receptacle beneath the location of said board
b. said game board having markings defining multiple game
piece locations on said game board,
c. a pivotable support structure for pivotably supporting
said loose board in said frame,
d. said pivotable support structure including at least one
pivot member extending at each of two opposite sides of said
board at a location spaced inwardly from one side edge of said
board and pivotably supporting said board on said frame,
whereby said board can be pivoted to tilt said board to dislodge
said game pieces therefrom and cause said game pieces to fall
into said receptacle.
App. Br. 21 (Claims Appendix) (paragraph structure modified).
Independent claims 12 and 20 are also directed to game board structures, the
pertinent limitations of which are provided below.
REFERENCES
The Examiner relies on the following prior art references in rejecting
the claims on appeal:
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Application 13/490,914
Lloyd
Prentice
Drew
Jackman
Mahoney
Liversidge
Csanady
Persidsky
Quercetti
Hart
Rylander
us 2,191,991 Feb.27, 1940
us 2,460,264 Jan.25, 1949
US2,551,318 May 1, 1951
us 3,152,806 Oct. 13, 1964
us 3,464,701 Sept. 2, 1969
us 4,334,680 June 15, 1982
us 5,201,524 Apr. 13. 1993
us 5,490,675 Feb. 13, 1996
US 6,286,835B1 Sept. 11, 2001
US 7,651,094 Bl Jan.26,2010
US 2011/0042894 Al Feb. 24, 2011
REJECTIONS
1. Claims 7, 8, 16, 17, and 19 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Quercetti.
2. Claim 12 is rejected under 35 U.S.C. § 102(b) as being anticipated by
Drew.
3. Claims 7-11, 16, 17, and 19 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Persidsky.
4. Claims 20-23 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Csanady.
5. Claim 12 is rejected under§ 35 U.S.C. 103(a) as being unpatentable
over Drew and Prentice.
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6. Claim 12 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Prentice and either Lloyd or Mahoney.
7. Claim 12 is rejected under 35 U.S.C. 103(a) as being unpatentable
over Csanady and either Lloyd or Mahoney.
8. Claims 13 and 14 are rejected under 35 U.S.C. 103(a) as being
unpatentable over any one of Drew, Prentice, Csanady with either Lloyd or
Mahoney, and Liversidge.
9. Claim 15 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over any one of Drew, Prentice, Csanady with either Lloyd or Mahoney,
Liversidge, and Hart.
10. Claim 18 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Persidsky and Jackman.
11. Claim 24 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Csanady and Rylander.
ANALYSIS
Rejection 1
Claims 7, 16, 17, and 19
The Examiner finds that Quercetti discloses all of the elements of
independent claim 7, including a frame for supporting a loose game board
(black-board 6)2 having multiple markings thereon. Final Act. 2. Appellant
traverses the Examiner's findings, arguing first that "[t]he blackboard of
Quercetti is not 'loose' ... because it is secured to the carrying case by the
two levers 10." App. Br. 8. According to Appellant, the term "loose" is
2 Parentheticals refer to the terminology of the cited references.
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intended to mean "'completely detachable and separable from the frame,' or
'removably attachable."' Reply Br. 1 (citing Ans. 11-12).
Claim terms are to be given their broadest reasonable interpretation,
as understood by those of ordinary skill in the art and taking into account
whatever enlightenment may be had from the Specification. In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997). Any special meaning assigned to a
term "must be sufficiently clear in the specification that any departure from
common usage would be so understood by a person of experience in the
field of the invention." Multiform Desiccants, Inc. v. Medzam, Ltd., 133
F.3d 1473, 1477 (Fed. Cir. 1998). Absent an express intent to impart a novel
meaning to a claim term, the words take on the ordinary and customary
meanings attributed to them by those of ordinary skill in the art. Brookhill-
Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003)
(citation omitted).
Appellant does not direct us to, nor do we find, any indication in the
Specification that the claim term "loose" was used outside of its ordinary
meaning. The Examiner defines "loose" as "a situation in which an article is
movable (as in loosely connected), and not rigidly connected" (Ans. 11),
which is consistent with a dictionary definition of the term (see, e.g.,
http://www.merriam-webster.com/dictionary/loose (last visited August 26,
2016) ("not rigidly fastened or securely attached")). Such definition is also
consistent with a described embodiment of Appellant's invention where the
board is secured to the frame. See Spec. 12:2-5 (setting forth that "pins 54
[can be] fitted into holes closed at the top to secure the board 44 to the frame
rather than just resting in the notches 56" that allows board 44 to be lifted).
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Appellant does not convincingly persuade us why the term "loose" should be
interpreted more narrowly than its ordinary and customary meaning.
Instead, we adopt the meaning set forth by the Examiner. As Quercetti's
blackboard 6 is movably connected to box 1 (see Quercetti Figs. 1-3), we
find Appellant's arguments unpersuasive.
Appellant also argues that "the game board 6 of Quercetti does not
have 'markings defining multiple game piece locations on the game board."'
App. Br. 8. Assuming arguendo that claim 7 affirmatively requires a game
board, we agree with the Examiner that Quercetti discloses cells that can be
considered game board locations within the meaning of the claim. Ans. 12
("Quercetti teaches a game board with a plurality of cells that are completely
capable of being used as locations."); see also Quercetti 2:65----67, Fig. 4. To
the extent that Appellant argues that the specific content of the "markings" is
a distinguishing feature (Reply 2 ("The 'markings' recited in Claim 7 are
used to describe the type of game board in which the invention is used.")),
we are not persuaded. We agree with the Examiner (see Ans. 12-13) that
the content of location markings on a game board does not have a new and
unobvious functional relationship with the game board, and therefore that
content does not distinguish the claim over the prior art. See In re Gulack,
703 F.2d 1381, 1386 (Fed. Cir. 1983) (citing In re Miller, 418 F.2d 1392
(CCPA 1969)).
Appellant also asserts that the Quercetti "game pieces must be
magnetic and adhere to the game board surface by magnetic attraction," and,
therefore, the Quercetti game board cannot be pivoted to dislodge the game
pieces therefrom. App. Br. 9 (citing Quercetti 2:39--43). We are not
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persuaded by this argument. Initially, we note that the claim does not
positively recite the game pieces, but merely requires the recited game board
structure be usable with a game board that is usable with game pieces.
Appellant's attempt to distinguish the recited game board structure by the
nature of the game pieces used in conjunction therewith is unpersuasive.
Additionally, although the Specification discloses that "the game board [can
be] pivoted on its pivot points [so that] the game pieces slide under the force
of gravity downwardly into a receptacle" (Spec. 4), Appellant did not limit
the claim to require dislodging solely by the force of gravity. Rather,
Appellant broadly claims "to dislodge said game pieces therefrom." App.
Br. 21 (Claims Appendix). We find the Examiner's finding that "[t]he game
pieces although magnetically attached can be stricken or flicked for
dislodging and falling into the receptacle" (Ans. 13) to be a reasonable
interpretation of this phrase. As the magnetic game pieces of Quercetti can
be stricken or flicked for dislodging, Appellant's arguments fail to apprise us
of any error.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of independent claim 7, as well as claims 16, 17, and 19, each of
which depends directly or indirectly from claim 7, as being anticipated by
Quercetti.
Claim 8
Claim 8 depends directly from claim 7 and further requires, inter alia,
that the game board structure "includes a retainer structure for holding each
game piece against sideways movement at each of said locations" and
"includes open grooves ... for receiving said at least one pivot member to
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rotate in said grooves and to permit said board to be lifted free from said
frame." App. Br. 21 (Claims Appendix). The Examiner finds that the
ferromagnetic nature of Quercetti' s game board serves as such a retainer
structure by holding game pieces in place magnetically, noting that "the
claim does not require any specific physical structure for 'retainer."' Final
Act. 2. The Examiner further finds that Quercetti has grooves (stops 2, teeth
4) that receive a pivot member (latches 11) and allow for some amount of
rotation when the board is lifted. Id. at 2-3.
Appellant argues that "[t]he Quercetti reference has absolutely
nothing to prevent the game pieces from moving sideways." App. Br. 10.
We find this argument unpersuasive in light of the Examiner's finding that
the surface of Quercetti' s board (black-board 6) is ferromagnetic and can,
therefore, hold magnetic game pieces thereon in position against sideways
movement. See Final Act. 2; see also Quercetti 2:36-43. Appellant's
argument does not apprise us of any error in the Examiner's findings or
reasoning, and is therefore unpersuasive.
Appellant also argues that "[i]t is contrary to the teachings of the
Quercetti reference that the game board can be lifted free of the pivots at one
end of the receptacle." App. Br. 9. Rather, Appellant continues,
"Quercetti' s board is secured to the housing and cannot be lifted free." Id.
We find this argument to be unpersuasive, as Quercetti Figure 2 shows the
board lifted free of the frame. We note that claim 8 merely requires that the
grooves "permit said board to be lifted free from said frame" (App. Br. 21
(Claims Appendix)), but does not require that the board be removable from
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the frame. Limitations not appearing in the claims cannot be relied upon for
patentability. In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of claim 8 as being anticipated by Quercetti.
Rejection 2
Independent claim 12 is directed to a game board structure and
requires, inter alia, a frame having walls that form a receptacle, a grid with
holes therein, a slot positioned to receive a game board slide, and a game
board slide that is "slidable ... to allow game pieces on [a game] board to
fall down through said holes and into said receptacle when said board is slid
out." App. Br. 22-23 (Claims Appendix). The Examiner finds that Drew
discloses all of the elements of claim 12, including, inter alia, a game board
slide (set of cards 4) and a grid (board 1) with holes (openings 2) therein to
allow suitably sized game pieces to fall therethrough. Final Act. 3.
Appellant traverses these findings, arguing first that Drew's chess pieces "do
not rest on a game board underneath the grid" and "cannot fall through the
holes 2." App. Br. 12. Appellant also argues that "the language 'to allow
game pieces to fall down through holes"' is structural rather than functional.
Id at 13-14.
It is well established that claims directed to an apparatus must be
distinguished from the prior art in terms of structure rather than function,
and in order to satisfy the functional limitations in an apparatus claim the
prior art apparatus must be capable of performing the claimed function. See,
e.g., In re Schreiber, 128 F.3d 1473, 1477-78 (Fed. Cir. 1997). Here, claim
12 is drawn to a "game board structure" (i.e., an apparatus), and the
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recitations at issue-"said game board being slidable ... to allow game
pieces on said board to fall down through said holes"---describes how a
game board can be used with the recited game board structure. These
recitations describe an intended or functional use of the apparatus, and to
anticipate, Drew's game board structure must be capable of such use. We
agree with the Examiner's finding that suitably sized game pieces would fall
through openings 2 of Drew's board 1 when set of cards 4 is removed.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of claim 12 as being anticipated by Drew.
Rejection 3
Claims 7, 9-11, 16, 17and19
The Examiner finds that Persidsky discloses all of the elements of
independent claim 7. Final Act. 4. Appellant traverses the Examiner's
findings, arguing that "Persidsky does not have a frame supporting a 'loose'
game board, and the board cannot be tilted to dislodge game pieces." App.
Br. 10. Appellant's arguments are premised on improper interpretations of
"loose" and "dislodge," both of which are discussed above. We find these
arguments unpersuasive for the reasons set forth above and because we see
no error in the Examiner's findings.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of independent claim 7, as well as claims 9-11, 16, 17, and 19,
each of which depends directly or indirectly from claim 7, as being
anticipated by Persidsky.
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Claim 8
The Examiner finds that Persidsky discloses all of the elements of
claim 8, including, inter alia, a frame (trough 32) having open grooves
therein. Final Act. 4 (citing Persidsky Figs. 5, 5A, 10). Appellant traverses,
arguing that "Persidsky ... does not show or suggest the open grooves
recited in dependent Claim 8 to allow the pivotable game board to be lifted
free of the frame." App. Br. 11.
As set forth above, functional claim language (such as "open
grooves ... to permit said board to be lifted free from said frame") is
satisfied if the structure defined in the prior art is capable of such functional
use. Persidsky' s board halves 42, 44 are rotatable and slidable relative to
box 30 within channels 96, 98 via bars 92, 94, but each board half is always
connected to the channels because "[ c ]hannels 96, 98 are both closed off at
each of their ends so as to prevent bars 92, 94 from sliding out." Persidsky
6:14--15; see also id. at Figs. 9-11. The Examiner has not convincingly
explained how the Persidsky game board halves are capable of being lifted
free from the trough, and we therefore reverse the rejection of claim 8 as
being anticipated by Persidsky.
Rejection 4
Claims 20, 21, and 23
Independent claim 20 is directed to a game board structure and
requires, inter alia, a frame having walls that form a receptacle, the
receptacle having an outlet opening "of a size for allowing game pieces in
said receptacle to be poured out of said receptacle." App. Br. 24 (Claims
Appendix). The Examiner finds that Csanady discloses all of the elements
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of claim 20, including, inter alia, a frame with an outlet opening (hole 80).
Final Act. 5 (citing Csanady Figs. 2, 5). Appellant traverses the Examiner's
findings, arguing that "the hole 80 is not an 'outlet opening' to allow a
marble to be removed from the housing." App. Br. 19.
As set forth above, functional claim language (such as "an outlet
opening ... for allowing game pieces in said receptacle to be poured out") is
satisfied if the structure defined in the prior art is capable of such functional
use. We agree with the Examiner's finding that Csanady's frame hole is
"capable of being used ... to allow the marble to be removed from the
housing." Ans. 16; see also Csanady 4:24--26 (explaining that "hole 80
is ... dimensioned to receive at least one marble 18" and "affords an
entranceway to the bottom wall 58 of the box 54"). Appellant has failed to
persuasively convince us of error in the Examiner's findings or reasoning.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of independent claim 20, as well as claims 21 and 23, each of
which depends directly from claim 20, as being anticipated by Csanady.
Claim 22
Claim 22 depends directly from claim 20 and further requires, inter
alia, that the "game board has a retainer grid ... forming a barrier around
each of said game piece locations to impede sideways movement of said
game pieces on said game board." App. Br. 24 (Claims Appendix). The
Examiner finds that Csanady discloses a retainer grid/border (border 35).
Final Act. 5. Appellant disagrees, arguing that "[i]tem 35 in the Csanady
reference is merely a painted or otherwise decorated ring around the outside
of selected holes to identify them in playing the game," but "serve[ s] no
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function of retaining a marble in the holes." App. Br. 19. The Examiner
answers that "[t]he internal peripheral wall making holes (35) can clearly be
treated as [borders] capable of impeding the movement of suitable size game
pieces (see Fig.2)." Ans. 16.
Csanady's border 35 encircles first game hole 34, which is sized to
allow marbles 18 to pass therethrough. Csanady 2:64--3: 1. Thus, marbles
positioned within border 35 will rest atop bottom board 14. See id. at Fig. 2.
We agree with the Examiner's assessment that when in such a position, the
peripheral edge of hole/border 34/35 will impede, at least to some degree,
sideways movement of suitably sized game pieces, such as marbles 18. See
id. Appellant has failed to persuasively convince us of error in the
Examiner's findings or reasoning.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of claim 22 as being anticipated by Csanady.
Rejection 5
The Examiner finds that Drew discloses a game board structure
disclosing substantially all of the elements of independent claim 12, but uses
Prentice to explicitly teach game pieces sized to fall through holes. Final
Act. 6. Appellant first repeats arguments regarding Drew, which we find
unpersuasive for the reasons set forth above. App. Br. 14--15.
Appellant next argues that "there is nothing in either of the Drew or
the Prentice references which would provide anyone with motivation to
combine them." App. Br. 15. This argument is unpersuasive because the
reason to modify or combine references need not be found in the references
themselves. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 415-21 (2007)
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(setting forth that the motivation to modify or combine reference teachings
may arise in the interrelated teachings of multiple prior art references, the
effects of demands known to the design community or present in the
marketplace, the background knowledge possessed by a person having
ordinary skill in the art, the existence at the time of invention of a known
problem for which there was an obvious solution encompassed by the
claims, and common sense).
Appellant also argues that "neither reference ... discusses the
problem of removal of game pieces after the game is finished, and neither
provides a solution for the problem." App. Br. 15. This argument is
unpersuasive because it is not necessary for the prior art to serve the same
purpose as that disclosed in Appellant's Specification in order to support the
conclusion that the claimed subject matter would have been obvious. See In
re Linter, 458 F.2d 1013, 1016 (CCPA 1972). "A reference may be read for
all that it teaches, including uses beyond its primary purpose." In re
Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012) (citing KSR, 550 U.S. at 418-
21 ). Here, the Examiner determines that the combination of Drew and
Prentice satisfies the requirements of claim 12, and Appellant fails to
persuasively apprise us of error in the Examiner's findings or reasoning.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of claim 12 as being unpatentable over Drew and Prentice.
Rejection 6
The Examiner finds that Prentice discloses the invention substantially
as claimed in claim 12, but "does not teach a slot on the side wall for [a]
game board to slide into the structure." Final Act. 7. The Examiner relies
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alternatively on Lloyd or Mahoney as teaching such a slot, concluding that it
would have been obvious to a skilled artisan to modify the Prentice game
structure "to insert the game board into the game structure through slots."
Id. at 7-8 (citing Lloyd Fig. 6; Mahoney Fig. 2).
Appellant traverses the Examiner's findings, arguing first that the
Examiner has not shown "how the combination of Prentice with either Lloyd
or Mahoney would duplicate the invention" and "none of the cited
references shows any structure or operation which facilitates discharging and
recovering game pieces from a game board quickly and effectively." App.
Br. 16. The Examiner proposes to replace the rotational arrangement of
Prentice's board-like member 10 and varying member 40 with a sliding
arrangement as in Lloyd or Mahoney. Lloyd is particularly relevant, as it
discloses a first embodiment with a rotational connection between game
board 10 and disc 12 and a second embodiment with a sliding connection
between game board 22 and member 25. See Lloyd Figs. 1, 6. With such an
arrangement, Prentice's secondary playing pieces 70 aligned with apertures
30 would fall through the apertures when varying member 40 is removed
from frame 12. Additionally, if principal playing pieces 60 were suitably
sized, they too would fall through apertures 30 upon removal of varying
member 40. Appellant's arguments fail to persuasively convince us of error
in the Examiner's findings or reasoning.
Appellant also argues that "there is no suggestion in any of the
references motivating anyone to combine the references in the manner
suggested by the Examiner." App. Br. 16. This argument is unpersuasive
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because the reason to modify or combine references need not be found in the
references themselves. See KSR, 550 U.S. at 415-21.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of claim 12 as being unpatentable over Prentice and either Lloyd or
Mahoney.
Rejection 7
The Examiner finds that Csanady discloses the invention substantially
as claimed in claim 12, including, inter alia, a slide (bottom board 14) with
indicia thereon, but "does not teach a slot on the side wall for [a] game board
to slide into the structure." Final Act. 8 (citing Csanady Figs. 1, 2, 4 ). The
Examiner relies alternatively on Lloyd or Mahoney as teaching such a slot,
concluding that it would have been obvious to a skilled artisan to modify the
Csanady game structure "to provide a slot to slide game board easily and to
create a variation." Id. at 9 (citing Lloyd Fig. 6; ~vfahoney Fig. 2).
Appellant traverses the Examiner's findings, first arguing that
Csanady does not include a "game board slide having printed thereon a
plurality of game indicia." App. Br. 16. As noted by the Examiner,
Csanady's bottom board 14 includes game indicia (e.g., colored band 43 and
color discs 45). See Final Act. 8; Csanady 5:24--39.
Appellant also argues that Csanady does not include a "game board
that can be slid out from under the mesh to allow the game pieces to fall
therethrough." App. Br. 17. This argument is unpersuasive because the
Examiner relies on Lloyd or Mahoney to teach this feature. See Final Act.
8-9.
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Appellant also argues that "neither Lloyd nor Mahoney ... has a slot
and a slide meeting the claim language." App. Br. 17. The Examiner relies
on Lloyd Figure 6, which shows a sliding connection between game board
22 and member 25, and Mahoney Figure 2, which shows playing boards 14
slidably disposed in grooves 16. See Final Act. 9; see also Lloyd 2:54--57,
Fig. 6; and Mahoney 1:71-2:9, Fig. 2. Appellant's conclusory statement
fails to apprise us of error in the Examiner's findings or reasoning, and is
therefore unpersuasive.
Finally, Appellant argues that "there is nothing in any of the
references suggesting or motivating one to make the combination the
Examiner has made." App. Br. 17. This argument is unpersuasive because
the reason to modify or combine references need not be found in the
references themselves. See KSR, 550 U.S. at 415-21.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of claim 12 as being unpatentable over Csanady and either Lloyd
or Mahoney.
Rejection 8
Claim 13 depends directly from claim 12 and further requires that the
"receptacle has four side walls and a bottom wall, and an exit opening in one
of said side walls shaped and sized to allow game pieces to flow out of said
receptacle." App. Br. 23 (Claims Appendix). The Examiner finds that
Liversidge teaches a game apparatus with a sliding structure and an outlet
opening, and concludes that it would have been obvious to a skilled artisan
to modify the game board structure of "any one of Drew, Prentice, [or]
Csanady in view of Lloyd or Mahoney" to include such a sliding structure
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and outlet "[i]n order to easily retrieve game pieces from the game
apparatus." Final Act. 9.
Appellant traverses the Examiner's findings, arguing that Liversidge
does not disclose collecting pins in a receptacle. App. Br. 18. The
Appellant's arguments in this regard attack the Liversidge reference
individually, when the rejection is over a combination of references. See In
re Keller, 642 F.2d 413, 426 (CCPA 1981) ("[O]ne cannot show non-
obviousness by attacking references individually where, as here, the
rejections are based on combinations of references."). For example, the
Examiner also relies on Drew, which discloses tray 3 defining a receptacle
therein, Prentice, which discloses frame 12 defining a receptacle therein,
and/or Csanady, which discloses box 54 defining a receptacle therein, and
relies on Liversidge to teach placing an outlet in such receptacles.
Therefore, Appellant has failed to persuasively convince us of error in the
Examiner's findings or reasoning.
Appellant also argues that there "is no motivation in the Liversidge
patent or any of the other references to combine them." App. Br. 18. This
argument is unpersuasive because the reason to modify or combine
references need not be found in the references themselves. See KSR, 550
U.S. at 415-21.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of claim 13, as well as claim 14, which depends directly from claim
13, as being unpatentable over any one of Drew, Prentice, Csanady with
either Lloyd or Mahoney, and Liversidge.
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Rejection 9
Appellant has not addressed the obviousness rejection of claim 15 as
being unpatentable over any one of Drew, Prentice, Csanady with either
Lloyd or Mahoney, Liversidge, and Hart. See App. Br. 8-19. Accordingly,
Appellant has waived any argument of error, and we summarily sustain the
rejection of this claim. See l~yatt v. Dudas, 551F.3d1307, 1314 (Fed. Cir.
2008) (explaining that summary affirmance without consideration of the
substantive merits is appropriate where an appellant fails to contest a ground
of rejection).
Rejection 10
Appellant has not addressed the obviousness rejection of claim 18 as
being unpatentable over Persidsky and Jackman. See App. Br. 8-19.
Accordingly, Appellant has waived any argument of error, and we
·1 • t. . . -C t.. 1 • summaniy sustam tue rejectwn 01 tuiS c1mm.
Rejection 11
Appellant has not addressed the obviousness rejection of claim 24 as
being unpatentable over Csanady and Rylander. See App. Br. 8-19.
Accordingly, Appellant has waived any argument of error, and we
summarily sustain the rejection of this claim.
DECISION
The Examiner's decision to reject claims 7-24 under 35 U.S.C.
§§ 102(b) and 103(a) is affirmed.
19
Appeal2014-007633
Application 13/490,914
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
20