DETAILED ACTION
1. This action is made Final in response to applicant’s Amendments / Request for Reconsideration filed 1/5/26. Claim 5 is cancelled; claims 6-8, 14, 17-19 and 21 are amended; claims 1-4 and 6-21 are pending.
Claim Rejections - 35 USC § 103
2. 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 of this title, 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.
3. Claims 1-4, 9, 11-17 and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Gentles et al. (US Pub. No. 2014/0332742) in view of Wartenweiler et al. (US Pub. No. 2014/0135153).
With respect to claims 1-2, Gentles et al. teaches a system 10 comprising: horizontal elements 12 forming a multi-sided play area bounded by the horizontal elements 12 at a bottom perimeter of the system 10; vertical elements 12 extending perpendicularly upward from ends of the horizontal elements at the bottom perimeter of the system 10; and a flexible partition 18 coupled to the vertical elements 12 to bound a perimeter of the multisided play area by forming panels extending between the vertical elements 12, each panel having a height corresponding to a height of the vertical elements 12 and a length corresponding to a length of the horizontal elements 12; wherein the flexible partition 18 comprises a net forming the panels (Fig.’s 1-2; paragraphs [0027]-[0029]).
Admittedly, Gentles teaches wherein the system has horizontal elements between the vertical elements at a top perimeter of the system. However, analogous art reference Wartenweiler teaches that it is known for play systems to have flexible net partitions positioned between vertical elements without horizontal elements between vertical elements at a top perimeter of the play system – Fig.’s 1, 3; paragraph [0041]. At time of applicant’s effective filing, a person ordinary skill in the art would have found it obvious to modify Gentles et al by removing the top horizontal elements. The rationale to combine is to reduce the number of parts for assembly and improve portability/stowage. The proposed combination has a reasonable expectation of success as the functionality of the primary reference is not frustrated.
With respect to claims 3-4, Gentles teaches a plurality of tension attachments 20 each coupling the flexible partition 18 to a corresponding one of the vertical elements 12, wherein each one of the tension attachments 20 is adjustable to adjust a tension of the flexible portion/partition 18 by adjusting a distance between the flexible partition 18 and the corresponding one of the vertical elements 12, wherein the plurality of tension attachments 20 are straps, and wherein the straps comprise elastic components (Fig 2; paragraphs [0030], [0035]; While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. If a prior art structure is capable of performing the intended use as recited, then it meets the claim. See MPEP 2114, In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997)). Here, the elastic nature of the net and tension attachments 20 enables the adjusting.
With respect to claims 9 and 11-12, Gentles teaches a gate (“door”) formed in the flexible partition to facilitate passage of a player in or out of the multi-sided play area, wherein the gate comprises: a gate support element 16 configured to: extend parallel to the vertical elements; and couple to a corresponding horizontal element (via hinge 14) at a distance from a corresponding vertical element; and a material to extend from the gate support element to the corresponding vertical element to close during play and open to facilitate the passage of the player, wherein the gate comprises a closure element (i.e. aligned holes of the hinge portions 14) to couple to at least one of the gate support element or the corresponding vertical element (paragraph [0032]; Fig.’s 1, 3, 4A-4C). See MPEP 2114, In re Schreiber.
With respect to claim 13, Gentles teaches wherein the flexible partition 18 is coupled directly to a first vertical element 12 of the vertical elements and indirectly to a second vertical element 12 of the vertical elements via the plurality of tension attachments 20 (best seen in Fig. 1; the “indirect” coupling is accomplished through intermediate connecting components).
With respect to claim 14, Gentles teaches a method comprising: coupling a first end 14 of a first horizontal element 12 to a first vertical element 12 to position the first horizontal element 12 perpendicular to the first vertical element; coupling a first end 14 of a second horizontal element 12 to the first vertical element 12 to position the second horizontal element 12 perpendicular to the first vertical element and at a non-zero angle relative to the first horizontal element and to form a bottom perimeter of a multi-sided play area using the horizontal elements 12 (Fig.’s 1-2); coupling a second vertical element to a second end of the second horizontal element 12 to be approximately parallel to the first vertical element 12; and coupling a flexible partition 18 to the first vertical element 12 and the second vertical element 12 to extend between the first vertical element 12 and the second vertical element 12 along the second horizontal element 12 to form the multi-sided play area at least partially bounded by the flexible partition 18 (Fig.’s 1-2; paragraphs [0027]-[0029]).
Admittedly, Gentles teaches wherein the system has horizontal elements between the vertical elements at a top perimeter of the system. However, analogous art reference Wartenweiler teaches that it is known for play systems to have flexible net partitions positioned between vertical elements without horizontal elements between vertical elements at a top perimeter of the play system – Fig.’s 1, 3; paragraph [0041]. The motivation to combine is the same as stated above.
With respect to claims 15-16, Gentles teaches coupling a gate support element 16 to one of the first horizontal element or the second horizontal element 12, the gate support element 16 being perpendicular to the first horizontal element and the second horizontal element and approximately parallel to the first vertical element 12 and the second vertical element 12; and coupling a gate (“door”) to the gate support element 16 and one of the first vertical element 12 or the second vertical element 12; and further comprising opening the gate by uncoupling the gate from the gate support element or the one of the first vertical element or the second vertical element (inherent to normal operations of the “door” and “hinge pin 16”).
With respect to claim 17, Gentles fails to expressly teach a sleeve attachment and tension attachment as claimed. However, secondary reference Wartenweiler teaches wherein coupling of the flexible partition to the first vertical element and the second vertical element comprises coupling the flexible partition directly to the first vertical element by a sleeve attachment (Fig.’s 4a, 4b) and coupling the flexible partition to the second vertical element by the at least one tension attachment 8a (Fig.’s 4a-4c; paragraphs [0034], [0052]-[0053]). At time of applicant’s effective filing, a person ordinary skill in the art would have found it obvious to attach the net of Gentles to the second vertical element using the sleeve and tension attachment of Wartenweiler. The rationale to combine is to facilitate secure and convenient attachment between the net and vertical supports, while also applying tension to the net, which will provide a taught net, suitable for some rebound performance during game play.
With respect to claim 20, Gentles teaches wherein the coupling of the first end 14 of the first horizontal element 12 to the first vertical element 12 comprises inserting one of the first end of the first horizontal element into the first vertical element or inserting the first vertical element into the first end 14 of the first horizontal element (Fig. 1). Here, the connecting hinge 14 could be construed as being part of either the horizontal element first end or the vertical element first end.
With respect to claim 21, Gentles teaches a system comprising: horizontal elements 12 forming a multi-sided play area bounded by the horizontal elements 12 wherein the horizontal elements 12 are located at the bottom of the play area and form a bottom perimeter; vertical elements 12 extending perpendicularly upward from ends of the horizontal elements; a flexible partition 18 coupled to the vertical elements 12 to bound a perimeter of the multisided play area by forming panels extending between the vertical elements 12 (Fig.’s 1-2; paragraphs [0027]-[0029]); and tension attachments 20 each coupling the flexible partition 18 to a corresponding one of the vertical elements 12, wherein each one of the tension attachments 20 is adjustable to adjust a tension of the flexible portion/partition 18 by adjusting a distance between the flexible partition and the corresponding one of the vertical elements (Fig 2; paragraphs [0030], [0035]; While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. If a prior art structure is capable of performing the intended use as recited, then it meets the claim. See MPEP 2114, In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997)). Here, the elastic nature of the net and tension attachments 20 enables the adjusting.
Gentles teaches wherein the system has horizontal elements between the vertical elements at a top perimeter of the system. However, analogous art reference Wartenweiler teaches that it is known for play systems to have flexible net partitions positioned between vertical elements without horizontal elements between vertical elements at a top perimeter of the play system – Fig.’s 1, 3; paragraph [0041]. The motivation to combine is the same as stated above.
4. Claims 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Gentles et al. (US Pub. No. 2014/0332742) in view of Wartenweiler et al. (US Pub. No. 2014/0135153) and further in view of Dinoffer (US Pat. No. 9,545,551).
With respect to claims 6-8, Gentles does not expressly teach a stiffener as claimed. However, analogous art reference Dinoffer teaches the following features to be known in the art: a stiffener element 160, wherein the stiffener is configured to: couple to a flexible partition 150 to reduce vertical collapsing of the flexible partition 150; and extend approximately parallel to a vertical elements, wherein the stiffener element 160 is configured to couple directly to the flexible partition 150, wherein the stiffener 160 forms part of a tension attachment and is coupled to a corresponding vertical element 274 to apply tension to the flexible partition 150 (Fig. 5a; column 5, lines 3-14). At time of applicant’s effective filing, a person ordinary skill in the art would have found it obvious to add a stiffener to the net portion of Gentles as taught by Dinoffer. The rationale to combine is to add rigidity to the net, which will prevent the net from sagging. The proposed modification has a reasonable expectation of success since the modification does not frustrate the intended purpose of Gentles.
5. Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Gentles et al. (US Pub. No. 2014/0332742) in view of Wartenweiler et al. (US Pub. No. 2014/0135153) and further in view of Arias (US Pat. No. 9,447,602).
With respect to claim 10, Gentles utilizes a hinge/rod connection to open and close the gate (i.e. “door”), as opposed to a hook-and-loop element. However, within the art, this feature is known as evidenced by Arias at Fig. 1 – elements 38, 42, 32, column 2. At time of applicant’s effective filing, a person ordinary skill in the art would have found it obvious to use a hook and loop closure element in lieu of the hinge/rod connection. The rationale to combine is to make a simple substitution of elements for purposes of facilitating convenient opening and closing of the gate/door.
6. Claims 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Gentles et al. (US Pub. No. 2014/0332742) in view of Wartenweiler et al. (US Pub. No. 2014/0135153) and further in view of Cho (US Pub. No. 2006/0119045)
With respect to claims 18-19, Wartenweiler, cited above for the tension attachment 8a, teaches adjusting a tension in the flexible partition 13 by adjusting the tension attachment 8a to adjust a distance between the tension attachment 8a and a second vertical element (paragraphs [0034], [0052]-[0053]; Fig.’s 4a-4c). The rationale to combine is the same as stated above. Admittedly, Wartenweiler utilizes an elastic hook connection as opposed to a strap as claimed. However, analogous art reference Cho teaches that it is known to use tension straps 38 and adjusting a distance between a vertical support element and a game net (paragraph [0029]). At time of applicant’s effective filing, a person ordinary skill in the art would have found it obvious to utilize straps to facilitate the tension adjustment of the net as taught by Cho. The rationale to combine is extolled by Cho at paragraph [0029] – “improve the ball bouncing or return characteristics”. The proposed modification has a reasonable expectation of success as the strap could be used in conjunction with the hook portion of Wartenweiler.
Response to Arguments
7. Applicant's arguments filed 1/5/26 have been fully considered but they are not persuasive.
The essence of applicant’s arguments is that the 103 rejections of the independent claims improperly consider the removal of the top horizontal elements of Gentles to be obvious in view of the teachings of Wartenweiler et al. Applicant provides various reasons to support this position, examiner’s response to teach argument is set forth below:
The combination of Gentles and Wartenweiler is “contradictory” and the combination fails to show “the desired invention” - See Remarks, page 3.
Examiner respectfully disagrees. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Applicant expressly admits the combining feature of Wartenweiler, stating that it teaches “no rigid horizontal member across the top” – See Remarks, page 3.
Gentles already describes its panels as portable and lightweight. See Remarks, page 3.
Examiner considers this evidence to actually support the combination. Gentles expressly admits that it is important that the game system is lightweight and portable. The combination thus comports and improves a stated goal of Gentles. A person ordinary skill in the art would recognize that removing rigid elements will reduce weight, reduce footprint and thus improve shipping, manufacturing, and portability.
Removing an entire side would render Gentles inoperable for its intended purpose. See Remarks page 3.
The proposed combination does not remove an “entire side” as applicant alleges. Rather the combining feature of Wartenweiler is merely removing the horizontal elements between vertical elements at a top perimeter of the play system. That is to say, the panel or net will span between the vertical elements, but without having the horizontal elements spanning therebetween at the top perimeter. No side is being deleted. Regarding the principal operation of Gentles, the net of the combined game system will still produce a rebound effect of a thrown ball without the top horizontal members due to the tensioning of the net, including “elastic shock cords” 20 that attach the net to horizontal members at the bottom perimeter and the vertical members as shown in the drawings -Fig. 2; paragraph [0030]. Notably, moreover, Gentles expressly contemplates wherein the game system can be played with “a loose net” that is “designed to retain rather than rebound a ball” – paragraph [0032]. Thus, the principal operation of Gentles is not considered frustrated by the combination. Moreover, in response to applicant's argument that the combination would require removing a corner/hinge, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). A person ordinary skill in the art would understand the top horizontal members can be removed without removing a hinge/corner that allows the pit shape to occur. Obviously, the hinges 14 could be positioned on just the bottom horizontal members (See hinges 14 on bottom perimeter – Fig. 2). The overall system structure may lose some of its rigidity, but this is a tradeoff of for providing a lighter weight and more easily portable game system. A person ordinary skill would also recognize other design features to provide sufficient support or rigidity to the game without the top horizontal members – slightly heavier, or thicker bottom horizontal members/bottom hinges/vertical supports. Again, and notably, Gentles expressly contemplates a less rigid game system when the net is intended to be used to “retain rather than rebound a ball or puck” (paragraph [0032]).
Conclusion
8. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See Lin (US Pub. No. 2007/0087869).
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 MICHAEL DAVID DENNIS whose telephone number is (571)270-3538. The examiner can normally be reached M-F 8:00 am - 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eugene Kim can be reached at (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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/MICHAEL D DENNIS/Primary Examiner, Art Unit 3711