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 .
Allowable Subject Matter
Claims 10 and 13 are allowed.
Claim 10 includes limitations directed towards 10. The launch and catch apparatus of claim 1, wherein the outlet region includes a plurality of rollers that at least partially define the outlet opening and which are configured to reduce spin of the projectile as the projectile is launched from the outlet opening. These limitations when viewed in combination with any intervening and parent claims and any remaining limitations of the claim are seen to provide patentable distinction over the cited prior art of record.
Claim 13 includes limitations directed towards 13. The launch and catch apparatus of claim 12, wherein the shaft has an adjustable length, and further wherein the handle assembly includes a shaft adjustment mechanism configured to selectively secure the shaft at a selected shaft length within a range of shaft lengths. These limitations when viewed in combination with any intervening and parent claims and any remaining limitations of the claim are seen to provide patentable distinction over the cited prior art of record.
Claim Rejections - 35 USC § 102
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 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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-4, 11-12, 14-18 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Bulatao (US 20120099959 A1).
Regarding claim 1, Bulatao teaches 1. A launch and catch apparatus, comprising: See [0008+], a frame having a handle and defining an inlet opening sized to receive a projectile; wherein See Fig. 6; (112)(120), the inlet opening extends in a defined fixed and non-pivotal orientation relative to the frame, and See Fig. 6-8, a tubular body defining an internal volume; wherein the tubular body includes an inlet region operatively coupled to the frame to receive the projectile when the projectile passes through the inlet opening into the internal volume; See Fig. 6-8, wherein the tubular body further includes an outlet region distal the inlet opening and configured to receive and retain the projectile at least substantially within the tubular body after the projectile passes through the inlet opening into the internal volume; See Fig. 6-8, wherein the outlet region defines an outlet opening that is smaller than the inlet opening; wherein the outlet opening has a nominal size; See Fig. 6-8, wherein the apparatus is configured to launch the projectile out of the outlet opening; and See [0008+], wherein the outlet opening is configured to resiliently expand within a range of expanded sizes that are greater than the nominal size when the apparatus is used to launch the projectile out of the outlet opening. See [0046+][0047+] which teaches the squeezing of the tennis balls out of the sleeve and the elasticity of the sleeve.
Regarding claim 2, Bulatao teaches 2. The launch and catch apparatus of claim 1, wherein the outlet opening is configured to resiliently expand between the nominal size and the range of expanded sizes that are greater than the nominal size responsive to at least one of receipt and retention of the projectile within the outlet region and swinging of the apparatus by a user after the projectile is received and retained within the outlet region. See [0047+].
Regarding claim 3, Bulatao teaches 3. The launch and catch apparatus of claim 2, wherein the outlet opening is configured to resiliently expand from the nominal size to within the range of expanded sizes that are greater than the nominal size when the apparatus is used to launch the projectile out of the outlet opening. See [0047+].
Regarding claim 4, Bulatao teaches 4. The launch and catch apparatus of claim 1, wherein the projectile has a maximum transverse perimeter with a shape, and wherein the outlet opening is resilient and configured to conform to the shape of the maximum transverse perimeter of the projectile. See [0047+].
Regarding claim 11, Bulatao teaches 11. The launch and catch apparatus of claim 1, wherein the frame includes a head region that bounds at least a substantial portion of the inlet opening; and further wherein the handle and the head region are secured in a fixed orientation relative to each other. See Fig. 6-8.
Regarding claim 12, Bulatao teaches 12. The launch and catch apparatus of claim 1, wherein the frame includes a handle assembly that includes the handle and a shaft extending between the handle and the inlet opening. See Fig. 6-8.
Regarding claim 14, Bulatao teaches 14. The launch and catch apparatus of claim 1, wherein the internal volume is a tapered internal volume that is larger proximate the inlet opening than proximate the outlet opening. See Fig. 6-8.
Regarding claim 15, Bulatao teaches 15. The launch and catch apparatus of claim 1, wherein at least a substantial portion of the outlet region of the tubular body is formed from a resilient material. See [0047+].
Regarding claim 16, Bulatao teaches 16. A launch and catch apparatus kit, comprising: at least one launch and catch apparatus according to claim 1; and See See Claim 1 Rejection., a projectile sized to be launched and caught with the at least one launch and catch apparatus. See Fig. 6-8 which show the projectiles.
Regarding claim 17, Bulatao teaches 17. The kit of claim 16, wherein the projectile has a maximum transverse perimeter, and wherein the outlet opening has an inner perimeter, and wherein the inner perimeter of the outlet opening is smaller than the maximum transverse perimeter of the projectile when the outlet opening is in the nominal size. See Fig. 6-8; [0047+].
Regarding claim 18, Bulatao teaches 18. The kit of claim 16, wherein the projectile is at least one of a sports ball, a toy ball, a tossing ball, and a children's ball. See Fig. 6-8; [0047+].
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 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 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
The Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper “functional approach” to the determination of obviousness as laid down in Graham. Exemplary rationales that may support a conclusion of obviousness include:
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way;
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
(E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;
(G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
The notations noted below apply to all rejections: In as much structure set forth by the applicant in the claims, the device is capable of use in the intended manner if so desired (See MPEP 2112). It should be noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, it meets the claim limitations. In a claim drawn to a process of making, the intended use must result in a manipulative difference as compared to the prior art. See In re Casey, 370 F.2d 576, 152 USPQ 235 (CCPA 1967) and In re Otto, 312 F.2d 937, 939, 136 USPQ 458, 459 (CCPA 1963). The intended use defined in the preamble and body of the claim breathes no life and meaning structurally different than that of the applied reference.
Claims 5-9, 20-28 are rejected under 35 U.S.C. 103 as being unpatentable over Bulatao (US 20120099959 A1) in view of Seeger (US 0975193 A).
Regarding claim 5, Seeger teaches 5. The launch and catch apparatus of claim 1, wherein the outlet region includes an elastomeric segment that extends around at least a portion of the outlet opening. See Ln 55+.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 6, Seeger teaches 6. The launch and catch apparatus of claim 1, wherein the outlet region includes an adjustment mechanism configured to permit selective adjustment of the nominal size of the outlet opening. See Fig. 1-6, (H), Ln 50+ wherein the Ring I is held in place with the hooks H. These hooks can be adjusted to change the nominal size depending on the size of the ball used or the force desired to eject the projectile.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 7, Seeger teaches 7. The launch and catch apparatus of claim 6, wherein the adjustment mechanism is configured to permit adjustment of the nominal size of the outlet region without removing elements from or adding elements to the outlet opening, the outlet region, or the adjustment mechanism. See Fig. 1-6, (H), Ln 50+ the hooks can be located in different regions to adjust the size of the nominal opening. Additionally, 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. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997) As such, the stretchable ring of Seeger is seen as being capable of achieving this function. Further, the claim appears to recite the process of adjusting wherein the process of adjusting the opening without removing the elements etc... is better claimed in a method claim to provide patentable significance.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 8, Seeger teaches 8. The launch and catch apparatus of claim 1, wherein the outlet region includes a plurality of adjustment indicia configured to demarcate a plurality of nominal sizes of the outlet opening. See Ln 57+ the exact type of indica is not seen to provide patentable distinction over the cited prior art of record as no new and unobvious functional relationship exists between the indica and the substrate.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 9, Seeger teaches 9. The launch and catch apparatus of claim 8, wherein the plurality of adjustment indicia is representative of one or more of different sizes of projectiles, different weights of projectiles, projectiles constructed from different materials, different projectile flight distances, different launch forces, and different user strengths. See Ln 57+ the exact type of indica is not seen to provide patentable distinction over the cited prior art of record as no new and unobvious functional relationship exists between the indica and the substrate.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 20, Bulatao teaches 20. A method of using the launch and catching apparatus of claim 1,wherein the launching includes maintaining the inlet opening at a defined fixed, non-pivotal orientation relative to the frame. See the rejection on Claim 1. The structure of Bulatao when used in the method of Seeger will achieve the claimed fixed orientation.
Seeger does teach what the primary reference is silent on including the method comprising: grasping the handle of the apparatus with a user's hand; orienting the apparatus to receive a launched projectile into the internal volume through the inlet opening; receiving the launched projectile into the internal volume via the inlet opening; wherein the projectile is retained at least partially within the tubular body by the outlet opening; swinging the apparatus in a launching motion having a direction: and launching the projectile out of the tubular body from the outlet opening in the direction of the launching motion; See Fig. 1; Ln 55+.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 21, Seeger teaches 21. The method of claim 20, wherein the launching includes launching the projectile responsive to centrifugal force generated by the launching motion. See Fig. 1; Ln 55+.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 22, Seeger teaches 22. The method of claim 20, wherein the launching results in the outlet opening extending forward of the inlet opening in the direction of the launching motion after the projectile is launched from the outlet opening. See Fig. 1; Ln 55+ Although the disclosure doesn't exility teach the extension forward of the inlet opening, the prior art is capable of functioning in such a manner.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 23, Seeger teaches 23. The method of claim 20, wherein the launching includes contacting at least one of the frame and the inlet region of the tubular body with a portion of the tubular body distal the inlet region. See Fig. 1; Ln 55+ wherein the structure could achieve this contact when launching the projectile similar to the instant invention by stopping the pivoting means. If the pivoting means is not desired it would be obvious to remove this functioning.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 24, Seeger teaches 24. The method of claim 20, wherein the method includes selectively adjusting the size of the outlet opening responsive to one or more of a size of the projectile, a weight of the projectile, a strength of a user using the apparatus, and a desired distance for launching the projectile with the apparatus. See Fig. 1; Ln 55+ The elasticity of the band and the opening size of the hooks achieve this adjustability. The adjustability of the outlet opening is an obvious design choice wherein making items adjustable is not considered a patentable advance.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 25, Seeger teaches 25. The method of claim 20, wherein the method includes using only one of a user's limbs to perform the grasping, the orienting, the receiving, the swinging, and the launching, and further wherein the method includes maintaining the grasping with the one of the user's limbs while performing the orienting, the receiving, the swinging, and the launching with the same one of the user's limbs. See Fig. 1; Ln 55+ One limb is needed to use Seeger.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 26, Seeger teaches 26. (New) The launch and catch apparatus of claim 6, wherein the adjustment mechanism includes at least one of an adjustable band, an adjustable slider, a dial, a cord lock, a knot, a tie, a clasp, a lock, a lock mechanism, a clamp, a pin-and-socket mechanism, a hook-and- loop mechanism, a releasable fastener, a fastener with a plurality of receivers, a fastener with a plurality of sockets, a buckle, and a clip to selectively adjust the nominal size of the outlet opening. See Fig. 1-6, (H), Ln 50+ wherein the adjustable stretchable ring and the hooks of are considered a clasp. A google.com definition search of a clasp defines such as: "a device with interlocking parts used for fastening things together." The ring and hooks interlock an may be considered a clasp.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 27, Seeger teaches 27. (New) The launch and catch apparatus of claim 6, wherein the adjustment mechanism includes at least one of a clamp, a cord lock, a buckle, a clasp, and a knot configured to selectively adjust the nominal size of the outlet opening. See Fig. 1-6, (H), Ln 50+ wherein the adjustable stretchable ring and the hooks of are considered a clasp. A google.com definition search of a clasp defines such as: "a device with interlocking parts used for fastening things together." The ring and hooks interlock an may be considered a clasp.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Regarding claim 28, Seeger teaches 28. (New) The launch and catch apparatus of claim 6, wherein the outlet opening includes at least one elastomeric segment, wherein the adjustment mechanism is configured to selectively adjust a nominal size of the at least one elastomeric segment to adjust the nominal size of the outlet opening, and further wherein the adjustment mechanism includes at least one of a clamp, a cord lock, a buckle, a clast, and a knot configured to selectively adjust the nominal size of the outlet opening. See Fig. 1-6, (H), Ln 50+ wherein the adjustable stretchable ring and the hooks of are considered a clasp. A google.com definition search of a clasp defines such as: "a device with interlocking parts used for fastening things together." The ring and hooks interlock an may be considered a clasp.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Seeger to provide a sling for ball games.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Bulatao (US 20120099959 A1) in view of Lerner (US 4657253 A).
Regarding claim 19, Lerner teaches 19. The kit of claim 16, wherein the projectile has a projectile body, and further wherein the projectile includes a tail that extends from the projectile body. See Fig. 1.
It would have been obvious to one of ordinary skill in the art, at the date of the effective filing, to modify Bulatao with Lerner to reduce the roll or bounce distance if the thrown ball is not caught.
Response to Arguments
The examiner has modified the rejections in view of the applicants’ amendments. The utilization of Bulatao as the new primary reference renders most of the applicants’ arguments moot. With regards to the applicants’ arguments against the adjustment mechanism as the outlet, the examiner has tried to provide more detail to elaborate. Specifically, Claim 7 appears to be directed towards how the apparatus functions. The acts of removing and/or adding in an apparatus claim are not seen to differentiate over the cited prior art of record. The use of the adjustment mechanism needs to be claimed in terms of structure rather than function. For example, if the ring of Seeger were changed to a different place, the removing or adding may be completed when the device is not in use. As such, the limitations of claim 7 could be met by the Seeger device after changing the location or the ring size. Furthermore, claim 7 recites “from or adding element to the outlet opening, the outlet region, or the adjustment mechanism.” As such, the substitution of a larger ring in Seeger would increase the nominal size and not add or remove an element to the outlet opening or the outlet region. The outlet opening, the outlet region and the adjustment mechanism are claimed in the alternative wherein the same number of parts would remain in the adjustment mechanism while not adding or removing elements to the outlet opening or the outlet region reading on the claimed limitation. Further, this adjustment is not completed during the use of the Seeger device but in-between uses reading on the claimed limitations. During patent examination, the pending claims must be "given their broadest reasonable interpretation consistent with the specification." The Federal Circuit’s en banc decision in Phillips v. AWH Corp., 415 F.3d 1303, 1316, 75 USPQ2d 1321, 1329 (Fed. Cir. 2005) Furthermore, reference In Re Stevens where it was held that adjustability, where needed, is not a patentable advance. (In re Stevens, 212 F.2d 197, 101 USPQ 284 (CCPA 1954)) As such, the broad recitation of the adjustment mechanism without specifically claiming the exact structure general in nature and the addition of adjustability to a device if needed (such as for larger or smaller projectiles) is not seen as a patentable advance.
With regards to the newly added claims, reference the new grounds of rejection for as to how the examiner views these limitations are being met by the cited prior art of record.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Hyman US 3078099; Sato US 1008073; Osher US 5224703: which teach devices with similarity to the instant invention.
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 JEFFREY S VANDERVEEN whose telephone number is (571)270-0503. The examiner can normally be reached Monday - Friday 11am - 7pm CST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eugene L 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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/JEFFREY S VANDERVEEN/Examiner, Art Unit 3711