DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 6, 16, 18, 19, 36-41 are rejected under 35 U.S.C. 103 as being unpatentable over Hummel et al (5,624,112) hereinafter (Hummel) in view of Carlson et al (US2014/0187361 A1) hereinafter (Carlson), Oliver (8,186,684) and/or Estopinal (10,589,166).
Claim 1, Hummel discloses a method for forming a pitching mound for supporting a pitcher's rubber for playing baseball or softball on a synthetic turf field, the method comprising:
assembling a first pitching mound form (front portion A; figures 6 and 7) from a plurality of prefabricated frame sections (front portion A and back portion B), each of the plurality of prefabricated frame sections defining a hollow frame having an upper surface defining an upper opening and a lower surface defining a lower opening (as shown in figure 7, the pitching mound is formed of two equal hollow halves each of which include on upper surface and a lower surface which form an opening) wherein one of the plurality of prefabricated frame sections comprising a pitcher's rubber (pitcher’s rubber 8; figure 7) frame for receiving the pitcher's rubber (pitcher’s rubber 8);
positioning the first assembled pitching mound form (A) on a support structure for the synthetic turf field (figure 6 shows the two hollow halves A and B are place on a support surface the first assembled pitching mound is positioned on a support surface which may include natural or synthetic turf);
placing dirt (abstract of the disclosure; column 3, lines 16-22 and lines 53-56) in the hollow frames of the first assembled pitching mound form and around the pitcher's rubber frame, the dirt extending from the lower surface to the upper surface of each of the plurality of prefabricated frame sections and through the lower opening directly onto the support structure for the synthetic turf field (the first and second frames includes support ridges where dirt is poured in between the ridges);
forming an upper surface of the dirt in the first assembled pitching mound (A) form around cement the pitcher's rubber frame (8) so that the upper surface of the dirt is aligned with the upper surface of each of the plurality of prefabricated frame sections (column 3, lines 16-22, the dirt is leveled off; column 3, lines 8-22), the dirt in the first pitching mound form having a tapering cross-section (as shown for example in figure 7, the mound form has a tapering cross-section); and
Hummel discloses the claimed device with the exception of placing uncured concrete in the hollow frame of the first assembled pitching mound form instead of dirt and covering the cured concrete with synthetic turf. However, Oliver discloses pouring wet (uncured) cement in the hollow form and waiting for the cement to dry before finishing the upper surface; column 2, lines 63-67 and column 3, lines 1-6 and lines 59-66). Additionally, Carlson discloses a hollow frame for supporting a pitching mound, wherein the pitching mound is covered by artificial grass or any other suitable covering. Carlson teaches the support frame can be formed in a variety of different forms one of which is a monolithic construction e.g. a poured in place concrete structure (Note: poured in place concrete is taken to equate to wet or uncured concrete; paragraph 0071). Furthermore, Estopinal discloses the use of a setting material such as concrete being poured into the forms (column 3, lines 65-67 and column 4, lines 1-12). It would have been obvious to one of ordinary skill in the art to have utilized an alternative material i.e. wet or uncured cement/concrete to replace/substitute Hummel’s dirt given that Oliver and/or Carlson and Estopinal teach utilizing an alternative material such as uncured cement/concrete is a suitable alternative to dirt/soil for being poured on a sports field i.e. pitching mound, since such a material is more stable and impede dirt/soil erosion.
Claim 6, Hummer further shows the plurality of prefabricated frame sections comprise metal, and wherein the assembled first pitching mound form defines a peripheral side member defining a circular wall (In FIG. 3 the substructure or base of the mound is illustrated with the location of the structural elements such as 12 shown. FIG. 4 illustrates an example of the strut 12 which may be made out of metal, plastic, or wood, or such other structural material, and may have holes in the struts to make them lighter; column 2, lines 36-41).
Claim 16, Hummel shows the assembling the pitching mound form comprises: aligning predetermined positioning features of adjacent prefabricated frame sections; the positioning comprises: positioning stakes (column 3, lines 23-32) through predetermined holes in at least some of the prefabricated frame sections and into the support structure (column 20, lines 46-55); and positioning rebar in predetermined notches in at least some of the prefabricated frame sections (column 20, lines 30-39 teaches a series of concrete posts, metal, wood etc. may be used with the concrete slab). Regarding the inclusion of rebar(s), it is noted that rebar(s), or reinforcing steel, is commonly added to concrete to increase its tensile strength, since concrete is naturally weak in tension. Therefore, it is crucial in situations where the concrete will experience high tensile stress to use rebars. Nevertheless, Oliver, further teaches that the inclusion of rebars are desireable (column 4, lines 1-5). Therefore, it would have been obvious to one of ordinary skill in the art to have included a rebar(s) in Hummel’s cement mixture given that Oliver teaches the inclusion of rebars increases the tensile strength of the cement mixture.
Claim 18, Hummel discloses the claimed device with the exception of placing a replaceable synthetic turf over the cured fill material of the pitching mound form. However, as disclosed by Carlson it is known to position a replaceable synthetic turf or other known frictional material on a supporting pitching mound (figure 1; paragraph 0062, 0078, 0081). It would have been obvious to one of ordinary skill in the art to have used such a synthetic turf for Hummel’s pitching mound given that Carlson teaches such a material provides frictional footing for a pitcher.
Claim 19, Hummel as modified in view of Carlson shows the pitching mound form may be positioned on a support surface (playing field), the support surface may including any form of finishing material i.e. natural or synthetic turf, when using synthetic turf or the like, the turf material naturally includes a back layer of rubber material which is directly placed on the supporting surface, in the instant case on the concrete filled pitching mound form (paragraph 0062).
Claim 36, Hummel as modified above shows the placing the poured material i.e. the poured cement in the hollow frames extends throughout the hollow frames and fills the space therebetween (figure 7, column 3, lines 16-22). It is noted and as taught by Hummel and the prior art the poured material (irrespective of what material is used) is spread over the base evenly until all poured material is level with the surrounding peripheral wall, the inner concentric rings and struts.
Claim 37, Hummel as alone and as modified above shows the placing the uncured concrete in the hollow frames extends across the entire upper surface of the hollow frames and around the pitcher's rubber frame (figure 7, column 3, lines 16-22). It is noted and as taught by Hummel the poured material is spread over the entire base evenly until all poured material is level with the surrounding peripheral wall, the inner concentric rings and struts including around the pitcher’s rubber.
Claim 38, Hummel alone and as modified above shows the forming the upper surface of the uncured concrete comprises guiding the forming of the surface of the uncured concrete using upper surfaces of the plurality of frame sections (figure 7, column 3, lines 16-22). It is noted and as taught by Hummel the poured material is spread over the entire base evenly until all poured material is level with the surrounding peripheral wall, the inner concentric rings and struts including around the pitcher’s rubber). Note: the act of pouring and spreading is considered to be “guiding” the forming of the surface of the concrete.
Claims 2-3, 17 are rejected under 35 U.S.C. 103 as being unpatentable over the prior art of record as applied to claim 1 above, and further in view of Novinsky (5,213,323).
Claim 2, Hummel shows the pitcher's rubber (8) but does not provide specifics for the frame receiving the pitcher’s rubber frame. However, as disclosed by Novinsky (figures 4 and 5) it is known in the art for a pitcher’s rubber to be received in a U-shaped cavity. It would have been obvious to one of ordinary skill in the art to have used such a frame for Hummel’s pitching rubber since such an arrangement securely holds the pitcher’s rubber in place.
Claim 3, Hummel as modified in view of Novinsky further shows a pair of spaced-apart vertical hollow sleeves disposable in the dirt/cement for receiving a pair of stanchions (48; figure 5).
Claim 17, Hummel as modified in view of Novinsky above further shows installing a pitcher's rubber (8) in a cavity of the center portion for receiving the pitcher's rubber; and adjusting a height of the pitcher's rubber in the cavity (figures 4-5).
Claims 4-5, 7-15, 42 are rejected under 35 U.S.C. 103 as being unpatentable over the prior art of record as applied to claim 1 above, and further in view of Adair et al (8,882,615) hereinafter (Adair).
Claim 4, Hummel shows the plurality of prefabricated frame sections comprises a first half (A) and a second half (B). Hummel discloses the claimed device with the exception of disclosing the plurality of prefabricated sections including a center frame section including a pitcher’s rubber and a plurality of surrounding prefabricated peripheral frame sections. However, as disclosed by Adair, the pitching mound may have one or more plurality of sections including a center section and a plurality of surrounding sections (figures 49-51; figures 1, 50 and 51 shows a pitching mound formed of a plurality of hollow sections, one of which includes a pitching rubber). It would have been obvious to one of ordinary skill in the art to have formed Hummel’s pitching mound from a plurality of hollow section having a different configuration given that Adair teaches such would have been desirable because it aids in transport and storage.
Claim 5, Hummel alone and as modified above further shows attaching a plurality of elongated members (structural struts 12; column 7, lines 8-15) at an angle from the prefabricated center frame section to the plurality of surrounding prefabricated peripheral frame sections, the plurality of elongated members having a first end attachable to the prefabricated center frame section and a second end attached to a different one of the plurality of prefabricated peripheral frame sections; and
wherein the forming comprises guiding the forming of the surface using upper surfaces of the plurality of angled elongated members (figure 7); Note: the act of pouring and spreading is considered to be “guiding” the forming of the surface of the concrete.
wherein the forming comprises guiding the forming of the upper surface of the poured mixture using upper surfaces of the plurality of elongated members (this step is naturally met since upper surface of 12 is used as a guide for pouring in the mixture in order to form a leveled surface).
Claim 7, Hummel as modified in view of Adair shows the plurality of prefabricated frame sections comprises a first frame section comprising the pitcher's rubber frame, a second frame section attachable to said first frame section, and a third frame section attachable to said second frame section (figure 50 shows the various sections); and
the assembled first pitching mound form comprises peripheral side members defining a rectangular configuration (the sections of the pitching mound can be rectangular shape, when fully assembled the pitching mound is oval or round).
Claim 8, Hummel as modified in view of Adair shows the first frame section, the second frame section, the third frame section comprise side members having the same height (Adair shows the height of the various sections have side members have the same height, this would be a requirement because if the height varied then the upper surface would be uneven).
Claim 9, Hummel as modified in view of Adair further shows the third frame section comprise a curved side member (by way of example any one of the outer frame sections shown in figure 50).
Claim 10, Hummel as modified in view of Adair further shows the first frame section comprises a constant peripheral height, the second frame section comprises a tapered frame section, and the third prefabricated frame section comprises a prefabricated tapered frame section;
the assembled first pitching mound form defines peripheral side members defining a tapered rectangular configuration (as shown in figures 1, 40, 50, 79 and 97; some of the frame sections include a constant peripheral height and others include a tapered frame section); and
the cured concrete in the second frame section and in the third frame section having a tapering cross-section (as disclosed by Hummel the pitching mound have tapering cross-sections towards the outer frame of the mound. Adair further shows some of the frame sections include a tapering cross-section, the mixture poured into the hollow sections will also conform to the shape of the pitching mound sections).
Claim 11, Hummel as modified in view of Adair further shows the positioning further comprises:
positioning an assembled second pitching mound form having a pitcher's rubber frame and peripheral side members defining a tapered rectangular configuration adjacent to the assembled first pitching mound form;
connecting the assembled first pitching mound form to the assembled second pitching mound form; and the placing further comprises:
placing the uncured concrete in the hollow frames of the assembled second pitching mound form and around the pitcher's rubber frame, and between the assembled first pitching mound form and the assembled second pitching mound form;
the forming further comprises:
forming an upper surface of the uncured concrete in the assembled second pitching mound form around the pitcher's rubber frame, and between the fabricated assembled first pitching mound form and the assembled second pitching mound form; and
the placing further comprises: placing the synthetic turf over the cured concrete filled second assembled pitching mound form, and between the assembled first pitching mound form and the assembled second pitching mound form (note the rejection of claims 1-2, 4-10).
Claim 12, Hummel as modified in view of Adair further shows the claimed steps with the exception of removing knock-out holes in the adjacent facing side members in the assembled first pitching mound form and the assembled second pitching mound form prior to the placing the uncured concrete; and
the placing comprises placing uncured concrete in the knockout holes. It is noted that the inclusion of holes in the side members of a pitching mound is old and well known and obvious to incorporate because it allows the poured concrete material to be received in the pitching mound form. Note: this feature is also taught by Adair (column 21, lines 62-65). It is further noted that the inclusion of the knockout holes has been given no criticality by the applicant. Lacking any criticality, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have included the knockout holes in any desired position, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 181 F.2d 1019, 86 USPO 70 (CCPA 1950). Furthermore, common sense would dictate that, since the knock-out holes are part of the cross-members and side members, the poured material would naturally seep into the knock-out holes. Any arrangement for the cross-members and side members would have further been considered suitable to artisans of ordinary skill, since no criticality in this arrangement is given --the exact location being a matter of designer prerogative.
It is noted that the common knowledge or well-known in the art statement is taken to be admitted prior art because applicant has failed to traverse the examiner’s assertion of Official Notice.
Claim 13, Hummel as modified in view of Adair further shows the connecting comprising: attaching a first connecting side member between the assembled first pitching mound form and the assembled second pitching mound form; and attaching a second connecting side member between the assembled first pitching mound form and the assembled second pitching mound form (figures 114 and 115 show interconnecting sections; column 20, lines 5-21).
Claim 14, Hummel as modified in view of Adair further shows the first connecting side member comprises a pair of slidably adjustable connecting side members; and the second connecting side member comprises a pair of slidably adjustable connecting side members (figures 114 and 115 show interconnecting sections; column 20, lines 5-21).
Claim 15, Hummel as modified in view of Adair shows the placing comprises: placing the uncured concrete around at least one drain tube having an upper end opening into the cavity in the pitcher's rubber frame and a lower end disposed adjacent to the support structure (column 20, lines 40-45 teach the inclusion of drainage holes).
Claim 39, Hummel shows the plurality of prefabricated frame sections comprises a first half (A) and a second half (B). Hummel discloses the claimed device with the exception of disclosing the plurality of prefabricated sections including a center frame section including a pitcher’s rubber and a plurality of surrounding prefabricated peripheral frame sections. However, as disclosed by Adair, the pitching mound may have one or more plurality of sections including a center section and a plurality of surrounding sections (figures 49-51; figures 1, 50 and 51 shows a pitching mound formed of a plurality of hollow sections, one of which includes a pitching rubber).
the prefabricated center frame comprising four peripheral sides defining four right angle corners (for example show in figure 1); and
each of said peripherally-extending frame sections comprises an inverted corner defining a first inner side and a second inner side (figures 50, 61, 70-72, 80 show inverted sections).
Claim 40, Hummel as modified in view Adair further shows the prefabricated center frame has a height greater than the height of the prefabricated peripheral frame sections (for example this is shown in figure 40. Adair shows the height of the center frame is greater than the height of the peripheral frame sections. Furthermore, Hummel also shows in figure 5 that the center segment of the mound has a height greater than the height of the peripheral frame sections).
Claim 41, Hummel alone and as modified in view of Adair shows the prefabricated peripheral frame sections (perimeter wall 20; figure 2) have the same constant height.
Claim 42, Hummel as modified above further shows attaching a plurality of elongated members (structural struts 12; column 7, lines 8-15) at an angle from the prefabricated center frame section to the plurality of surrounding prefabricated peripheral frame sections, the plurality of elongated members having a first end attachable to the prefabricated center frame section and a second end attached to a different one of the plurality of prefabricated peripheral frame sections; and
wherein the forming comprises guiding the forming of the surface using upper surfaces of the plurality of angled elongated members (figure 7); Note: the act of pouring and spreading is considered to be “guiding” the forming of the surface of the concrete.
wherein the forming comprises guiding the forming of the upper surface of the poured mixture using upper surfaces of the plurality of elongated members (this step is naturally met since upper surface of 12 is used as a guide for pouring in the mixture in order to form a leveled surface).
Claims 43-47, 50 are rejected under 35 U.S.C. 103 as being unpatentable over Hummel et al (5,624,112) hereinafter (Hummel) in view of Adair et al (8,882,615) hereinafter (Adair), Carlson et al (US2014/0187361 A1) hereinafter (Carlson), Oliver (8,186,684) and/or Estopinal (10,589,166).
Claim 43, Hummel discloses a method for forming a pitching mound for supporting a pitcher's rubber for playing baseball or softball on a synthetic turf field, the method comprising:
providing a pitching mound form from a plurality of prefabricated frame sections (a first half (A) and a second half (B)), each of the plurality of prefabricated frame sections defining a hollow frame having an upper surface defining an upper opening and a lower surface defining a lower opening, and one of the plurality of prefabricated frame sections comprising a pitcher's rubber (pitcher’s rubber 8; figure 7) frame for receiving the pitcher's rubber; wherein each of the plurality of prefabricated peripheral frame sections having the same constant first height, the prefabricated center frame having a second height greater than the first height of the prefabricated peripheral frame sections, wherein the prefabricated peripheral frame sections (perimeter wall 20; figure 2) have the same constant height;
attaching a plurality of elongated members (structural struts 12; column 7, lines 8-15) at an angle from the prefabricated center frame section to the distal portions of the plurality of surrounding prefabricated peripheral frame sections;
placing fill material i.e. dirt (abstract of the disclosure; column 3, lines 16-22 and lines 53-56) in the hollow frames of the center and peripheral frame sections and through the lower opening directly onto the support structure;
forming an upper surface of the fill material i.e. dirt in the prefabricated hollow frame sections aligned with the upper surface of the plurality of frame sections i.e. elongated members (column 3, lines 16-22, the dirt is leveled off);
forming an upper surface of the fill material i.e. dirt in [[ the prefabricated peripheral frame sections aligned with the upper surface of the plurality of elongated members (figure 7).
Hummel shows the plurality of prefabricated frame sections comprises a first half (A) and a second half (B). Hummel discloses the claimed device with the exception of disclosing the plurality of prefabricated sections including a center frame section including a pitcher’s rubber and a plurality of surrounding prefabricated peripheral frame sections. However, as disclosed by Adair, the pitching mound may have one or more plurality of sections including a center section and a plurality of surrounding sections (figures 49-51; figures 1, 50 and 51 shows a pitching mound formed of a plurality of hollow sections, one of which includes a pitching rubber). It would have been obvious to one of ordinary skill in the art to have formed Hummel’s pitching mound from a plurality of hollow section having a different configuration given that Adair teaches such would have been desirable because it aids in transport and storage.
Additionally, Hummel discloses the claimed device with the exception of placing uncured concrete in the hollow frame of the first assembled pitching mound form instead of dirt and covering the cured concrete with synthetic turf. However, Oliver discloses pouring wet (uncured) cement in the hollow form and waiting for the cement to dry before finishing the upper surface; column 2, lines 63-67 and column 3, lines 1-6 and lines 59-66). Additionally, Carlson discloses a hollow frame for supporting a pitching mound, wherein the pitching mound is covered by artificial grass or any other suitable covering. Carlson teaches the support frame can be formed in a variety of different forms one of which is a monolithic construction e.g. a poured in place concrete structure (Note: poured in place concrete is taken to equate to wet or uncured concrete; paragraph 0071). Furthermore, Estopinal discloses the use of a setting material such as concrete being poured into the forms (column 3, lines 65-67 and column 4, lines 1-12). It would have been obvious to one of ordinary skill in the art to have utilized an alternative material i.e. wet or uncured cement/concrete to replace/substitute Hummel’s dirt given that Oliver and/or Carlson or Estopinal teach utilizing an alternative material such as uncured cement/concrete is a suitable alternative to dirt/soil for being poured on a sports field i.e. pitching mound, since such a material is more stable and impede dirt/soil erosion.
Claim 44, Hummer alone as modified in view of Adair further shows the plurality of prefabricated frame sections defines a circular wall (figure 3 shows the frame sections define a circular wall 2; the peripheral wall 20 is shown in figure 5).
Claim 45 the placing comprises placing uncured concrete in the knockout holes. It is noted that the inclusion of holes in the side members of a pitching mound is old and well known and obvious to incorporate because it allows the poured concrete material to be received in the pitching mound form. Note: this feature is also taught by Adair (column 21, lines 62-65). It is further noted that the inclusion of the knockout holes has been given no criticality by the applicant. Lacking any criticality, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have included the knockout holes in any desired position, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 181 F.2d 1019, 86 USPO 70 (CCPA 1950). Furthermore, common sense would dictate that, since the knock-out holes are part of the cross-members and side members, the poured material would naturally seep into the knock-out holes. Any arrangement for the cross-members and side members would have further been considered suitable to artisans of ordinary skill, since no criticality in this arrangement is given --the exact location being a matter of designer prerogative.
It is noted that the common knowledge or well-known in the art statement is taken to be admitted prior art because applicant has failed to traverse the examiner’s assertion of Official Notice.
Claim 46, Hummel as modified in view of Adair shows the placing comprises: placing the uncured concrete around at least one drain tube having an upper end opening into the cavity in the pitcher's rubber frame and a lower end disposed adjacent to the support structure (column 20, lines 40-45 teach the inclusion of drainage holes).
Claim 47, Hummel as modified above further shows positioning rebar in predetermined notches in at least some of the prefabricated frame sections (column 20, lines 30-39 teaches a series of concrete posts, metal, wood etc. may be used with the concrete slab). Regarding the inclusion of rebar(s), it is noted that rebar(s), or reinforcing steel, is commonly added to concrete to increase its tensile strength, since concrete is naturally weak in tension. Therefore, it is crucial in situations where the concrete will experience high tensile stress to use rebars. Nevertheless, Oliver, further teaches that the inclusion of rebars are desireable (column 4, lines 1-5). Therefore, it would have been obvious to one of ordinary skill in the art to have included a rebar(s) in Hummel’s cement mixture given that Oliver teaches the inclusion of rebars increases the tensile strength of the cement mixture.
Claim 50, Hummel discloses a method for forming a pitching mound for supporting a pitcher's rubber for playing baseball or softball on a synthetic turf field, the method comprising:
providing a plurality of prefabricated frame sections (front portion A and back portion B) comprising a first frame section (A) comprising the pitcher's rubber frame (pitching rubber 8) and a second frame section (B), and a third frame section;
positioning the plurality of prefabricated frame sections on a support structure (ground surface) for the synthetic turf (natural or synthetic turf) to define a rectangular configuration (as shown for example in figure 7 shows a plurality of spaces forming a rectangular configuration);
placing fill material i.e. dirt (abstract of the disclosure; figure 7; column 3, lines 16-22 and lines 53-56) in the prefabricated frame sections;
forming an upper surface of the fill material i.e. dirt in the prefabricated frame sections aligned with upper surfaces of prefabricated frame sections (column 3, lines 16-22).
Hummel shows the plurality of prefabricated frame sections comprises a first half (A) and a second half (B). Hummel discloses the claimed device with the exception of disclosing the plurality of prefabricated sections including a center frame section including a pitcher’s rubber and a plurality of surrounding prefabricated peripheral frame sections. However, as disclosed by Adair, the pitching mound may have one or more plurality of sections including a center section and a plurality of surrounding sections (figures 49-51; figures 1, 50 and 51 shows a pitching mound formed of a plurality of hollow sections, one of which includes a pitching rubber). It would have been obvious to one of ordinary skill in the art to have formed Hummel’s pitching mound from a plurality of hollow section having a different configuration given that Adair teaches such would have been desirable because it aids in transport and storage.
Additionally, Hummel discloses the claimed device with the exception of placing uncured concrete in the hollow frame of the first assembled pitching mound form instead of dirt and covering the cured concrete with synthetic turf. However, Oliver discloses pouring wet (uncured) cement in the hollow form and waiting for the cement to dry before finishing the upper surface; column 2, lines 63-67 and column 3, lines 1-6 and lines 59-66). Additionally, Carlson discloses a hollow frame for supporting a pitching mound, wherein the pitching mound is covered by artificial grass or any other suitable covering. Carlson teaches the support frame can be formed in a variety of different forms one of which is a monolithic construction e.g. a poured in place concrete structure (Note: poured in place concrete is taken to equate to wet or uncured concrete; paragraph 0071). Furthermore, Estopinal discloses the use of a setting material such as concrete being poured into the forms (column 3, lines 65-67 and column 4, lines 1-12). It would have been obvious to one of ordinary skill in the art to have utilized an alternative material i.e. wet or uncured cement/concrete to replace/substitute Hummel’s dirt given that Oliver and/or Carlson or Estopinal teach utilizing an alternative material such as uncured cement/concrete is a suitable alternative to dirt/soil for being poured on a sports field i.e. pitching mound, since such a material is more stable and impede dirt/soil erosion.
Claims 48, 49, 51 are rejected under 35 U.S.C. 103 as being unpatentable over the prior art of record as applied to claim 1 above, and further in view of Novinsky (5,213,323).
Claim 48, Hummel as modified in view of Novinsky further shows a pair of spaced-apart vertical hollow sleeves disposable in the dirt/cement for receiving a pair of stanchions (48; figure 5).
Claim 49, Hummel as modified in view of Novinsky above further shows installing a pitcher's rubber (8) in a cavity of the center portion for receiving the pitcher's rubber; and adjusting a height of the pitcher's rubber in the cavity (figures 4-5).
Claim 51, Hummel as modified in view of Novinsky further shows a pair of spaced-apart vertical hollow sleeves disposable in the dirt/cement for receiving a pair of stanchions (48; figure 5).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-19, 36-51 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
The patent to Hummel has been used as the primary reference which teaches a plurality of hollow mound sections capable of receiving dirt. Adair has been used for teaching the plurality of hollow mound sections can be more than two and that they can take various configurations including a center section surrounded by a plurality of peripheral sections. Novinsky has been used to show that pitching rubbers are commonly placed in cavity forming a U-shape. The references to Carlson, Oliver and/or Estopinal have been used as teaching references for the poured concrete i.e. wet or uncured concrete which can be poured on site and allowed to cure prior to placing synthetic turf on top of the cured surface. Additionally, these references teach the inclusion of rebars and drainage holes.
The examiner is of the position that the prior art reads on the pending claims. The use of wet or uncured concrete in known in the art and it is not considered patentable subject matter. The examiner recognizes that the pending claims are method claims, but is of the opinion that perhaps the inclusion of structural language in the claims may differentiate over the prior art.
With regards to the Hummel reference being readily moved by a forklift truck … having a floor … (pages 12-14 of the Remarks section). Placing different types of fill material does not prevent the Hummel reference from being transportable. Hummel is formed in to sections, the forklift truck is capable of lifting the weight of the pitching mound irrespective of the type of fill material used. Would regards to the Hummel reference having a floor, the claims as presented do not actually recite the mound not having a floor, only that the upper surface defines an upper opening and the lower surface defines a lower opening. The upper surface does not have a cover so it naturally defines an opening. The lower surface also defines an opening because the lower segments/walls of the mound create a void or opening between the lower surface and the upper surface. The main reason Hummel includes a base is because of the type of fill material being used. By including the base there would be less erosion of the dirt material. However, when concrete or any other type of material is used, a base could be used but it may not be necessary. As for the forklift openings formed in the mound being filled with concrete, one of ordinary skill in the art would know to design the base section such that the openings formed on the bottom of the mound would not be filled with concrete. In conclusion, applicant’s arguments are not found persuasive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MITRA ARYANPOUR whose telephone number is (571)272-4405. The examiner can normally be reached on Mon, Thur, Fri 8:00am to 4:00pm, Wed 8:00-2:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eugene Kim can be reached on 571-272-4463. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MITRA ARYANPOUR/Primary Examiner, Art Unit 3711
/ma/
27 March 2026